Sexual violence now at heart of debate on capital punishment: Project 39A Death Penalty Report

The annual Death Penalty in India Report by Project 39A of the National Law University, Delhi (NLU Delhi), published earlier this month, has found that “sexual violence against women and children is now at the heart of the debate on capital punishment in India.”.National debates and legislative trends, as well as data on administration of the death penalty in this Report, indicate that the issue of sexual violence against women and children is now at the heart of the debate on capital punishment in India.NLUD Death Penalty report.On the legislative side, the Death Penalty Report refers, inter alia, to the amendment made to the Protection of Children from Sexual Offences (POCSO) Act, which now also provides for death penalty as the maximum punishment in cases of aggravated penetrative sexual assault, regardless of the gender of the victim..Similar reference is also made to the Andhra Pradesh Criminal Law (Amendment) Bill, 2019, which provides for the exclusive punishment of death penalty in cases involving rape by amending Section 376 of the Indian Penal Code, following the gang rape and murder of a 26-year-old veterinary doctor in Telangana in December..Coupled with this, the report found that the highest rate of death sentences imposed in 2019 were for murders involving sexual offences, surpassing the rate on this count from 2018. This, despite a fall in the total number of trial court death penalty sentences from the previous year..The highest number death row prisoners as of 2019 were found in Uttar Pradesh (54), followed by Maharashtra (45) and Madhya Pradesh (34). The report also found that no death sentences have been handed out in four years in six states - Arunachal Pradesh, Goa, Meghalaya, Mizoram, Nagaland, Sikkim..Award of death penalty for murders involving sexual violence on the rise.The report found that in 2019, trial courts in India imposed 102 death sentences, which is a significant drop from the 162 death sentences awarded in 2018, as well as the lowest since 2016. (It may be noted that the first Death Penalty in India report was prepared tracking the 2016 statistics)..However, the death sentences imposed for murders involving sexual offences by trial courts was at the highest in four years (since 2016) at 52.94% (54 out of 102 sentences)..In contrast, in 2018, the most number of death sentences were awarded in murder (simpliciter) cases. This year, however, the report notes,.“Despite the drop in the total number of death sentences imposed by sessions courts, the proportion of sexual offences in these cases increased from 41.35% (67 out of 162) in 2018 to 52.94% in 2019 (54 out of 102 sentences).”NLUD Death Penalty report.The trend has been taking place over the four year period starting 2016, with the figure being at 18% in 2016 to 39.81% in 2017, 41.35% in 2018 and almost 53% in 2019 (at the trial court level). The majority of victims in these cases were below 12 years.."In 2019, 39.21% of the total death sentences (40 out of 102) are cases of murder involving sexual offences with victims below 12 years of age.”.A similar trend was also observed at the High Court level this year..“This was also the year of highest number of confirmations by the High Courts in 4 years, with a majority in offences of murder involving sexual offences at 65.38% (17 out of 26).”NLUD Death Penalty report.Supreme Court deals with record high of death penalty cases under CJI Ranjan Gogoi’s tenure.The report found that in 2019, the Supreme Court pronounced the highest number of decisions (27) in capital cases since 2001, primarily under former Chief Justice of India Ranjan Gogoi’s tenure. This is attributed to CJI Gogoi prioritising the listing of such cases.."This trend can be linked to Chief Justice Ranjan Gogoi giving priority to listing of death penalty cases. He has repeatedly indicated the urgency with which he regards death penalty appeals.”NLUD Death Penalty report.The report cautions that the number of listings is not indicative of the number of cases. All the same, it is pointed out,.“… it is evident that Chief Justice Gogoi prioritised hearing of death penalty matters well over his predecessors of the past four years. An interesting contrast is the large numbers of listings by Chief Justice (Dipak) Misra in the advance list, and comparatively low numbers in the daily listing."NLUD Death Penalty report.However, it adds,."The stark number of listings in the daily regular lists is the best indicator of the matters being prioritised by the Chief Justice of India for hearing, whereas a failure to have cases move from the advance lists to regular lists is indicative a significant absence of such prioritisation.”.Increase in rate of death penalty imposed at Supreme Court.The report found that while this year saw a significant drop in the number of death sentences imposed by sessions courts, the Supreme Court saw the converse trend..“This year (2019) saw the highest number of death penalty decisions by the apex court in a single year since 2001."NLUD Death Penalty report.In 2019, the Supreme Court confirmed the death sentence for 6 persons in 6 cases. Notably, the collective conscience of society was found to have played a significant role in these confirmations..In all the confirmation decisions, brutality of the offence and collective conscience played a major role in determining the outcome.NLUD Death Penalty report.In two confirmation cases (including review, three out of six), the report found that the death sentence was confirmed by the Supreme Court despite one judge on the Bench dissenting on the point of sentence..Residual doubts regarding evidence plays into reduction of sentence by Supreme Court.2019 saw the Supreme Court commuting the death sentence to imprisonment for 17 persons in 17 cases. The quantum of sentence imposed instead runs as follows:Life imprisonment where the convict is eligible for remission after 14 years for 8 convictsA fixed imprisonment term of 30 years for 2 convictsA fixed imprisonment term of 25 years for 3 convictsImprisonment for the remainder of natural life (without possibility of remission) for 4 convicts.The report found that a commonly invoked factor while commuting death sentences in 2019 was ‘residual doubt’ arising out of circumstantial evidence which formed the basis of the conviction..“The line of reasoning in these cases was that though there was sufficient corroboration to convict on the basis of circumstantial evidence, it was not sufficient to impose a death sentence. Thus, a relatively lenient view as regards punishment had to be taken for want of better evidence. This argument was used in 3 cases to commute the death sentence for 3 persons.”NLUD Death Penalty report.On acquittals.The Supreme Court was found to have acquitted 10 persons in 3 cases, who were earlier awarded the death sentence. In all 3 cases, the Supreme Court raised questions on the evidence, particularly around identification of the accused..On remission.Two cases involving 2 death row convicts were remitted back to the trial court in 2019 by the Supreme Court. It may be noted that no cases were so remitted in the previous three years (2016-2018)..Mental illness as a mitigating factor.The last year also saw the Supreme Court acknowledging ‘post-conviction mental illness’ to be a relevant mitigating factor in determining appropriate punishment, given that defendants often suffer from mental illness post-incarceration. Such illness often goes undiagnosed and untreated given the lack of facilities across prisons..Post-conviction Mental Illness is a mitigating factor for commutation of death penalty, Supreme Court.In this case, the Court found that while insanity could not be established, the death sentence was commuted to imprisonment for the rest of the defendant’s natural life, on grounds of mental illness..2019 saw High Courts confirm the death sentence for 26 persons in 15 cases..In 35 cases, involving 56 death row convicts, High Courts commuted the death sentence awarded to various terms of imprisonment. The quantum of imprisonment so imposed runs as follows:Life imprisonment where the convict is eligible for remission after 14 years for 27 convictsA fixed imprisonment term of 20 years for 2 convictsA fixed imprisonment term of 25 years for 3 convictsA fixed imprisonment term of 30 years for 6 convictA fixed imprisonment term of 35 years for 3 convictsImprisonment for the remainder of natural life (without possibility of remission) for 13 convicts.32 persons in 17 death penalty cases were acquitted, whereas 7 cases involving 15 death row convicts were remitted back to trial courts..The report took critical note that the death warrants issued in 2019 illustrate the lack of compliance with the guidelines issued by the Supreme Court in this regard in the case of Shabnam v. Union of India..As noted in the report,“Death warrants were issued against 1 prisoner in 2018 and against 6 prisoners in 2019, with all warrants eventually stayed by the courts…"."… All warrants that were issued indicate a lack of compliance with the guidelines issued in the case of Shabnam v. Union of India, which requires that a warrant for execution not be issued until reasonable time for exhausting all remedies under the law has lapsed and specifies procedures to be followed in issuing such warrant.”NLUD Death Penalty report.[Read the full report]