Only five former judges, out of 60 interviewed by researchers, acknowledged the “possibility of error” in the context of the death penalty.
New Delhi: How does the death penalty work? Why is it seen as necessary? How are judicial decisions leading around it made? What is the future of the death penalty in India? A new study looks to answer these questions by going right to the source of the decisions – former Supreme Court justices.
The Centre on the Death Penalty at the National Law University Delhi released a report on Friday based on in-depth interviews with 60 former Supreme Court justices (out of a possible 86). Of the 60 interviewed, 47 had been decided death penalty cases. The study, titled ‘Matters of Judgment’, revealed a rather contradictory result: while most of the judges saw immense problems in the criminal justice system as a whole – including the use of torture, fabrication of evidence, wrongful convictions etc. – these issues did not change how they thought about the death penalty. In fact, most of them did not even link the issues they saw in the justice system with their thinking on the death penalty, whether for or against it. For instance, when talking about the criminal justice system, 43 of the judges interviewed thought that wrongful convictions were a “worrying reality”, the report says, but only five judges acknowledged the “possibility of error” in the context of the death penalty.
“For a lot of the justices interviewed, the death penalty actually meant the implementation of the penalty, which is execution. Because they seem to come from that kind of understanding, they did not seem to see the death penalty as a problem, because there are hardly any executions that happen in the country. So the entire interaction and experience with the criminal justice system and the hardship that a person goes through – they acknowledge it while talking about the trial and investigation process, but somehow it never made it to their understanding of the death penalty,” Neetika Vishwanath, on of the lead researchers, told The Wire. “It was shocking for us that the arguments they were using to justify the death penalty were very similar to what you may get from your family and friends, despite their experience with the system. They believed in it as a matter of instinct.”
“There was also an emotional, personal response, that for crimes like this we need to have the death penalty,” added head of the Centre on the Death Penalty Anup Surendranath, “which is really worrying.”
Research conducted by the Centre last year showed that 95% of death sentences in India are thrown out by the higher courts – but only after the undertrials spend years on death row. Even more surprising was the statistic that nearly one-third of those sentenced to death by lower courts are ultimately acquitted.
Thinking about the criminal justice system…
A large proportion of the former justices interviewed saw deep, worrying problems with India’s criminal justice system. Of the 39 judges who talked about it, only one thought torture by the police and other investigative agencies does not happen. Of the 38 who accepted that torture does take place, 12 thought it could be justified, given the pressures investigators are working under. The existence of torture was also rationalised by stating that investigating agencies are “either lazy, or don’t have enough manpower, or do not know methods of scientific investigation,” the report says. The rest of the judges said torture is unacceptable and also does not serve the purposes of the criminal justice system.
Issues with the criminal justice system don’t stop at torture. Thirty-eight former judges told the researchers that they think investigative agencies abuse Section 27 of the Evidence Act, which “permits the statement of a person in police custody to be admitted in evidence to the extent that it distinctly relates to the facts discovered”. The judges also talked about evidence planting, agencies providing false recovery witnesses and so on.
Another major loophole the judges saw in the criminal justice system was the legal representation provided to the accused, particularly under the legal aid system (where the state appoints a defence lawyer for an accused). Not a single judge quoted in the report thought that the current legal aid system is satisfactory, saying that the quality of representation was low. A former judge who was the chairperson of the State Legal Services Authority for over two years even called the legal aid system a “farce”. Even though they were not asked about it directly, 14 judges said that the issues with the legal aid system would disproportionately affect the poor, who often have no choice but to use a lawyer provided by the state. “A judge who confirmed 6 death sentences in the Supreme Court said that although the accused has fundamental right to counsel of choice, they cannot afford the same. This is because a good lawyer would charge exorbitantly high fees. This would lead to the court assigning a lawyer who does not have much practice,” the report states.
Last year, the Centre on the Death Penalty found that three-quarters of all death row prisoners are from lower castes or religious minorities.
Forty-three of the 49 judges stated that wrongful convictions are a reality in India. Seven of these 43 weren’t particularly bothered by this, as they thought the number of wrongful convictions is statistically insignificant. However, another judge said, “the principle of benefit of the doubt supports the fact that you can acquit hundred guilty people for want of evidence, but convicting an innocent is a great sin”.
…And about the death penalty
From the interviews, the report says, it emerged that 44 of the judges believed that the death penalty should be retained and 11 thought it should be abolished. The stance of the other five judges is not mentioned in the report. Researchers from the Centre on Death Penalty asked all the judges they interviewed to give justifications for both abolishing and retaining the death penalty – irrespective of what the judge’s own belief on the matter was. The odd thing the researchers noted here was that even when providing abolitionist arguments, very few judges brought up the serious issues they saw in the criminal justice system. Somehow, the two subjects did not overlap in the judges’ minds. As the report says:
The challenge really is to comprehend the considerations which drive the death penalty in a system that is plagued with torture, fabricated evidence, and wrongful convictions. As the harshest punishment in our legal system, the discussions and positions on the death penalty must feel the utmost impact of these worrying realities. It is the extreme ends of our criminal justice system, that need to be tempered by the grim reality that the former judges brought out…Ultimately, the fact that their concerns about the criminal justice system has not migrated to their discussion on the death penalty is indicative of the terms on which multiple competing interests get balanced.
Another issue the report highlights is the way sentencing is carried out. Criminal law in India bifurcates the conviction and sentencing stages. In addition, sentencing judges have to give special reasons if they decide that the death penalty is the appropriate punishment for a crime, as opposed to life imprisonment. In the Bachan Singh judgment, the Supreme Court laid out guidelines on making this decision, including the ‘rarest of rare’ doctrine often talked about. But do people really understand what it means?
According to the report, “The meaning of the ‘rarest of rare’, the identification of aggravating and mitigating factors, balancing those factors, and establishing that the alternative option of life imprisonment is unquestionably foreclosed, all emerge as aspects afflicted with confusion, a lack of clarity, and inconsistent treatment.” This is true not only for the general public, but even for the judges interviewed. According to the sentencing framework, the report says, “judges must firstly, identify and balance aggravating and mitigating factors, and then proceed to determine that the alternative option is unquestionably foreclosed. As is evident, this exercise requires sentencing judges to do a lot more than establish that the crime is ‘rare’ merely by virtue of its brutality.” But is that what happens?
Thirteen judges talked about their understanding of the ‘rarest of rare’ doctrine, revealing contradictions between their beliefs and also with the framework itself, the report says. Most of these judges also accepted the subjectivity that was involved in sentencing, including for the death penalty. One judge who confirmed a death sentence that led to an execution told the researchers about reducing subjectivity, “The problem is so rampant, so obvious, that it is difficult to find any consistency in the approach, and it is difficult to see rationale in awarding death sentence in one case and not awarding in another, more severe case.”
“There was a lot of disagreement on how we should do sentencing,” Surendranath told The Wire. “What should we consider relevant? What sentencing factors should be taken into account? On that there was utter confusion, on once we find somebody guilty, how do we fix their punishment. There is no uniformity of approach. Even if we agree that there should be the death penalty – how are we to determine that? It can’t be based on what each judge thinks.”
“Somehow, the judges themselves interpreted judge-centric as the discretion that a judge has,” added Vishwanath. “They though of it in a very dichotomous way – it would either be judge-centric or something as mechanical as a computer telling you what a sentence should be. So they decided the judge-centric approach is better, more human.”
One judge though, who thought that nothing justifies the retention of the death penalty, told the researchers, “On the same considerations different people react differently. And that is the strongest reason why I am against the death penalty. I find it horrible and terrifying, the subjective element in death penalty sentencing. If X is hearing my case I will end up hanging from a rope, but if Y is hearing it instead, I’ll live. That’s one thing which is absolutely and completely unacceptable to me. What Amnesty International has said in the Lethal Lottery report describes it very well, really.”