Most death sentences since 2000: NLUD Project 39A's report on Death Penalty in 2018February 3 2019
The tendency of trial courts to impose death sentences is on the rise, if the third edition of the Death Penalty report by Project 39A of the Centre on Death Penalty at National Law University, Delhi (NLUD) is any indication.
As per the Death Penalty in India: Annual Statistics report, the year 2018 witnessed trial courts handing out 162 death sentences, a jump from the 108 awarded in 2017, and the highest number since 2000.
This tendency is also apparent in the legislative changes made last year, whereby the scope for imposition of the death penalty was expanded, particularly in the face of public outcry following the Kathua rape case.
On the other hand, the report notes that the Supreme Court chose to go in a different direction, commuting all but one of the death penalty cases that it heard in 2018.
The annual report provides an overview of the trends discernible as far as Indian courts are concerned, in addition to legislative changes and political developments. Key highlights in this regard include the following.
Imposition of Death Penalty at different levels
- Trial/Sessions Courts: 162 death sentences awarded, of which two prisoners died while undertrial. The highest number of death penalties were handed out in Madhya Pradesh (22). This is followed by Maharashtra (16) and Karnataka and Uttar Pradesh (15 death sentences each). No death penalties were reported from Jammu and Kashmir in 2018. 426 prisoners remain under the death sentence throughout the country as of December 31, 2018.
- High Courts: 23 death sentences were confirmed by High Courts in 2018. 58 death sentences were commuted, whereas 10 cases were remitted. In 23 cases, the accused was acquitted.
- Supreme Court: 12 death penalty cases were heard by the Supreme Court in 2018, of which 11 were commuted to life imprisonment of different kinds. In the remaining 1 case, the Supreme Court confirmed the death penalty for the 3 convicts in the December 2016 Delhi gang-rape case.
- The report also states that in the last year, President of India Ram Nath Kovind rejected one mercy petition to commute a death sentence. The petition was made in January 2014.
Concern for administration of Death Penalty in the Supreme Court
Overall, the report notes that the Supreme Court has indicated a growing concern for the judicial administration of the death penalty, as evident from the number of death penalties it has commuted in the last year.
In this regard, the report also notes that Chief Justice of India Ranjan Gogoi, who assumed office in October last year, made the hearing of death penalty cases a priority. To this end, he constituted four 3-judge benches sitting simultaneously for over 6 weeks to decide death sentence cases.
"The investment of such judicial resources in deciding death sentence cases was missing during the tenures of Chief Justices Dipak Misra (August 2017 to October 2018) and Jagdish Singh Khehar (January 2017 to August 2017)," the report points out.
Another noted development as far as death penalty jurisprudence is concerned is the Supreme Court's decision in Babasaheb Kamble v. State of Maharashtra. With this case, in November 2018, the Court did away with ‘in limine’ dismissals of Special Leave Petitions in death penalty cases.
Further, in In Re: Inhuman Conditions, the Court recognised the right of prisoners sentenced to death to meet mental health professionals at a reasonable frequency and for reasonable lengths of time, at all stages as part of their right to effective legal representation.
Special mention is also made of Justice Kurian Joseph's dissenting opinion in the case of Chhannu Lal Verma v. State of Chhattisgarh, where he observed that the time had come to reconsider the need for the death penalty as a punishment, especially its purpose and practice.
Legislative expansion of Death Penalty
Recent times have witnessed an expansion in the scope of application of the death penalty to non-homicide cases, particularly through the following legal amendments.
- Criminal Law Amendment Act of 2018 (CLA) in August, 2018 was introduced to provide for the death sentence as a possible punishment for rape and gang-rape of girls below the age of 12 years. The report notes that this amendment was applied the most in Madhya Pradesh, which is also the state that saw the highest number of death penalties being handed out in 2018. Apart from Madhya Pradesh, Rajasthan is the only other state in which this amendment was invoked the last year.
- In January 2019, the Union Cabinet approved and introduced in the Lok Sabha amendments to the Protection of Children from Sexual Offences Act, 2012 (POCSO) which brought in the death sentence as a possible punishment for penetrative aggravated sexual assault with children below the age of 18 years.
- In August 2018, the Cabinet also approved a bill providing death penalty or life imprisonment for crimes involving maritime piracy or piracy at sea.
The special case of Madhya Pradesh
As noted earlier, the report found that Madhya Pradesh was the state where the highest number of death penalties(22), was handed out. This figure denotes a dramatic increase of close to four times the number in 2017 (6).
The report also raises concern that the Madhya Pradesh government has implemented incentives to encourage the award of death penalty. In particular, a rewards system has been devised for Public Prosecutors to incentivise the seeking of death penalty.
"The scheme awards 100-200 points for maximum punishment at lower courts, 500 for a life sentence and 1000 points for obtaining a death sentence. In an apparent bid to secure faster convictions, the reward system also creates awarding titles like ‘Best Prosecutor of the Month” and “Pride of Prosecution” to prosecutors earning more than 2000 points while issuing strict warnings to those earning below 500 points. "
The report also notes,
"The government in Madhya Pradesh had consistently pushed for punishing child sexual assault with the death penalty and the 2018 IPC amendments to the IPC introducing the death penalty for the rape of girls below 12 years has been used most in Madhya Pradesh."
Two key developments were noted in the report as far as the political currents underpinning the imposition of death penalty in India is concerned.
- Member of Parliament Shashi Tharoor moved a private member bill to abolish death penalty in the 2018 Monsoon Session of the Parliament. The same is currently pending in Parliament.
- In November 2018, India voted against the UN General Assembly’s Draft Resolution to establish a moratorium on the death penalty.
Concerns regarding unavailability of information
A general concern has also been raised regarding unsatisfactory responses from official sources when it comes to information on the death penalty. As highlighted in the report,
"While numerous [official] responses were incomplete or provided incorrect details, 7 states and 2 union territories did not respond to RTI applications. Most applications resulted in several transfers within the department before we could receive a final response and this process caused significant delays in data collection. Further, many High Court websites were not regularly updated and this made tracking the status of appeals/ confirmations more difficult."
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