NLU Delhi’s Centre on the Death Penalty on Saturday released a comprehensive and thought provoking report on capital punishment in India titled ‘Matters of Judgment‘. It is an opinion study on the criminal justice system and the death penalty featruing 60 former judges of the Supreme Court of India.

These judges, which include the likes of Justices AK Ganguly, Santosh Hegde, Ruma Pal, BN Srikrishna and RC Lahoti, adjudicated 208 death penalty cases among them between 1975 and 2016.

The Report records an overwhelming acknowledgment and widespread concern among former Supreme Court judges about the crisis in India’s criminal justice system on account of widespread prevalence of torture, fabrication of evidence, abysmal quality of legal aid and wrongful convictions.

However, these concerns​ ​about​ ​the​ ​criminal​ ​justice​ ​system​ ​did​ ​not​ ​have​ ​a​ ​bearing​ ​on​ ​their​ ​views​ ​on​ ​the​ ​death​ ​penalty. Despite 43 former judges acknowledging wrongful convictions as a worrying reality, only five judges recognised the ‘possibility of error’ as a possible reason for abolition of death penalty in India.

It was also noted that that there exists no uniform understanding of the requirements of the ‘rarest of rare’ doctrine in furtherance of the Bachan Singh Case (1980) and this gave rise to serious concerns of judge-centric sentencing.

For a significant number of judges, the ‘rarest of the rare’ was based on the description of offences alone and had little to do with the judicial test requiring that the alternative of life imprisonment be ‘unquestionably foreclosed.’

Deterrence emerged as the strongest penological justification for retaining the death penalty, with 23 former judges seeing merit in that argument. 

Speaking at the event, Dr. Anup Surendranath, Director of Centre on the Death Penalty said,

“Judges acknowledge the misuse of section 27 of the Evidence Act as also planting of evidence. They acknowledged that torture was a reality. Only one of them said that it does not exist. Some said that it is expected that something like that will happen. They also acknowledged wrongful convictions. But wrongful convictions were eventually pitted against wrongful acquittals by some judges and were not viewed as independent problems.

There is no certain way in which the Supreme Court judges think. There are a lot of differences on what mitigating factors could be. Their own understanding of what constitutes ‘rarest of rare’ is also varied. We knew that most judges supported the death penalty but we wanted to know why they supported it.”

Senior Advocate Rebecca John also spoke about the rarest of rare doctrine and the confusion surrounding the application of this doctrine,  as is evident if one traces the journey from the law laid down in the constitution bench judgment in Bachan Singh’s case – to the latest judgement of the Supreme Court in the Delhi gang rape case.

“When I read this report, it validates what I always believed in. Most judges, indeed most lawyers, have no understanding of the constitutional position on death penalty as laid down in Bachan Singh’s case. In that case it was made clear that life imprisonment was the rule and death was the exception and the option of death was available only when the alternate option of life was unquestionably foreclosed. It was made absolutely clear that to award the death penalty, courts have to look at the aggravating and mitigating circumstances of the offence as well as those of the offender. This was certainly not done in the Yakoob Memon case. No mitigating circumstances of the crime or the criminal were considered . He was a model prisoner, he had served a long period of time in jail on death row and he had mental health issues as well .

Defence lawyers are also to be blamed as no attempt is made by them to argue facts which would be useful for the judges to come to a legally sound determination of circumstances that are necessary during sentencing hearings.

Justice Krishna Iyer had , in the context of grant or refusal of bail , once said that judicial discretion is usually based on the  hunch of the bench. Ultimately, it all depends on where the case is listed and what is the bench’s views on the subject . Life and death hangs literally on a thread – which is so very scary.”

Dr. GS Bajpai, Registrar and Professor of Criminology & Criminal Justice at NLU Delhi, gave the closing speech wherein he spoke about the criminal jurisprudence in various countries and the need to adopt fresh insights.

“This report is not as simplistic as we think based on its face value and has to be decoded further with respect to the observations made by the judges.

It is said that criminal law is deficient. I would say that it is not that criminal law is deficient but we have failed criminal law. It is the institutions that have failed criminal law in India. Fresh insights are not being imported into the criminal law of this country. It is as if we only like to debate.

This study is not the conclusion but like a hypothesis which should be taken forward by law researchers.”

You can read the entire report here.