Do away with death penalty

In February 2024, Project 39A, the criminal justice initiative of the National Law University, Delhi, released the Annual Statistics Report 2023 on the Death Penalty in India. According to the report, 2023 saw the highest number of prisoners on death row in nearly two decades, with 561 prisoners living on the harrowing death sentence. Significantly, 2023 also marked the year with the lowest rate of death sentence confirmations by the appellate courts since 2000, with only one sentence being confirmed by the Karnataka High Court in a murder simpliciter case.

One of the primary reasons for the decline of confirmations by the appellate courts has been serious lapses in the investigation of cases by the police. For instance, sections 24 and 25 of the Indian Evidence Act, 1872, make confessions to police officers or to persons in police custody inadmissible. Yet police officers habitually engage in a host of oppressive practices to extract inculpatory statements from people in custody. Another reason for courts adopting this cautious approach while sentencing is the substandard quality of trials in lower courts. One recurring error in trial court decisions has been the failure to take into consideration mitigating factors. Mitigating factors such as young/old age, mental and emotional disturbance, the probability that the accused can be reformed and rehabilitated, etc. are frequently overlooked by trial courts in the sentencing phase, which is in the teeth of the principles enunciated in the landmark case of Bachan Singh v. State of Punjab.

In stark contrast to the trial courts’ approach, the circumspect demeanour adopted by the Supreme Court offers a ray of hope. The silver lining of the report is that since 2021, the SC has been proactive in obtaining evidence relating to the life circumstances and reformatory possibilities of convicts. Following in the SC footsteps, the Kerala and Telangana High Courts directed mitigation investigators (professionals trained in social sciences) to collect information on the accused’s socioeconomic circumstances and provide psychological evaluation reports. These orders are in consonance with the guidelines laid down in Manoj v. State of MP, wherein the Court held that the State must present a psychological and psychiatric evaluation of the accused before the Sessions Court to establish the accused’s actual frame of mind during the commission of a crime.

Having discussed the important findings of the report, we would now like to turn our attention to the legitimacy of the death sentence itself. The death penalty must be abolished for all crimes. Period. The most compelling argument for its abolition is its irreversibility. The paragraphs above have elucidated how, despite the presence of safeguard mechanisms like Sections 24 and 25 of the IEA and guidelines by the Supreme Court, investigating authorities and trial courts continue to flout these guidelines brazenly, depriving the prisoners of their right to a fair trial, which is a facet of the right to life under Article 21 of the Constitution. Under such dreary circumstances, is it justified to entrust these authorities with the licence to decide the question of the life and death of a person?

Even the honourable and discreet judges of the appellate courts are not immune to human fallibilities. Consider the case of Ravji v. State of Rajasthan. While confirming the death sentence in that case, the Supreme Court held that circumstances relating to the criminal are irrelevant. It was only 13 years after his execution that the Supreme Court declared in another case (Santosh Kumar Bariyar v. State of Maharashtra) that the decision in Ravji’s case was per incuriam. The mistake had been acknowledged, but there was nothing that the judges could do to bring Ravji back to life.

In addition to its incorrigibility, the death penalty must also be opposed, not least because there are alternative, humane methods of punishment that are equally efficacious in deterrence, socio-economic biases in the imposition of sentences (the more influential a person, the less likely he is to be given the death penalty), and because it leaves no space for appeal and no chance for clemency.

For the jurisprudence on capital punishment in India, 2024 might be a watershed year. The SC is likely to hear two important matters this year: the first dealing with the framing of guidelines for mitigating circumstances to be considered while imposing a death sentence, and the second challenging the constitutional validity of hanging as a method of execution. It is hoped that these matters will eventually lead the Supreme Court to take cognizance of the broader issue at stake, the issue that continues to haunt the 561 prisoners living under the spectre of death, which is undeniably the most dehumanising aspect of the death row phenomenon.

(The writers are students at National Law University, Jodhpur)