The Amnesty International India and People’s Union for Civil Liberties, Tamil Nadu and Puducherry have together brought out a significant study of the Supreme Court judgments in death penalty cases from 1950-2006. Researched and written by Bikram Jeet Batra, consultant to AII, the report has two parts. Part I, written by Dr.V.Suresh and D.Nagasaila, of PUCL-TN&P, is on the need to re-examine the Death Penalty in India. Part II is the crux of the report, with the study of Supreme Court judgments. The report and its summary can be read here.
As it is the first major study of Indian Supreme Court’s judgments in death penalty cases, its findings deserve a close scrutiny. The report analyses 726 reported judgments of the Supreme Court, which resulted in confirmation of death penalty to the convicts. Of these cases, 86 are such in which the three courts –trial court, high court, and the Supreme Court gave three different verdicts – a factor, which is reasonably sufficient to avoid death penalty, and which was the basis for an internal rule of caution within the Supreme Court for a number of years. As Dr.V.Suresh pointed out, the Supreme Court has shifted this caution, because of increasing crime.
Bikram, while speaking on the subject, said no Judge seems to have a clear meaning of what constitutes rarest of rare, and the award of capital punishment after Bachan Singh judgment, (1980) continues to be as arbitrary as it was earlier. To cite one example, one of the conditions laid down in Bachan Singh to determine whether the case falls under the rarest of rare category, was that the Prosecution should show evidence that the accused is beyond reform. But this condition is always observed in the breach. In none of these cases, he claimed, the prosecution had given evidence for inability to reform the accused. Courts generally considered a case as the rarest of rare, by examining whether the crime was gruesome and brutal, even though all murders will necessarily be gruesome and brutal. Citing several cases, he drew home the point that the Court was inconsistent in several of its decisions. The system is deeply flawed, arbitrary, and reflects deep class divisions, he said.
Considering that it is the legislature which can abolish death penalty, is this report aimed as an appeal to the Judiciary to reexamine the Bachan Singh judgment by a larger Bench, and evolve a clear sentencing policy? According to the authors, clear guidelines are not possible to evolve. Bikram does not believe that the judiciary is any longer interested in settling the constitutionality of the issue of death penalty. It is for the legislature which has to take the initiative, and given the lack of consistency in judicial decisions, take the road to the abolition of death penalty, the authors said.