Lethal Lottery: A significant study on the death penalty in India

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.

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  • Forget legislators, is the Indian society ready to abolish death penalty. I dont think so. I dont think that parties will be interested in taking a leadership
    role in this issue.Civil rights
    groups and lawyers can try for clear guidelines and perhaps over the years can create a milieu conducive for abolition of death
    sentence.The system may be deeply flawed but it enjoys the credibility. So reforming the system is a better option than
    to try for abolition at this stage.
    Abolition can be a long term goal
    and there should be other goals
    that are consistent with that.
    Let the human rights groups hold
    an opinion poll to gauge the
    public opinion and views of the
    political parties.

  • Ravi’s suggestion is actually the strategy being employed in the US, where after deep frustration with the abolition attempts, the target is constitutional challenges to individual methods of execution and then requiring the state to come up with alternatives. Personally, i dont know if lethal injection sanitises the process of execution so much that instead of being a step towards abolition, it becomes the end goal in itself.
    I also think Ravi is right in saying that the Parliament will not abolish it, at least in the near future. Every subsequent terrorist attack will be blamed on the abolition of the death penalty, just like BJP’s rhetoric after abolition of POTA. We don’t have strong enough traditions of criminology which give reliable counter-evidence relating to actual impact of criminal laws and punishment to respond to such ‘common-sense’ wisdom.