This is a crucial opportunity to bring consistency in practice and, thus, ensure that those facing capital punishment get a hearing that's fair, humane — and just. For, it's about life and death.
The Supreme Court’s decision to frame uniform norms for trial courts in awarding the death sentence is a welcome intervention. This is a case that a three-judge bench led by Chief Justice of India U U Lalit had taken up on its own and has now referred to a larger Constitution bench of five judges. In making the reference, the Court acknowledged that the current practice “places the convict at a hopeless disadvantage, tilting the scales heavily against him”. A scrutiny of the “fairness” of the procedure to impose death penalty comes 42 years after a five-judge bench of the Supreme Court in Bachan Singh v State of Punjab upheld the death penalty and introduced the “rarest of the rare” safeguard. The 2015 Law Commission Report on Death Penalty recommended abolition of death sentence except in terror-related cases. The report noted the global trend to be a continuous drop in “active retentionist” countries — over 144 countries have either in law or practice abolished the death sentence. In India, at a time when legislation imposing death sentences are increasing, raising the procedural bar in imposing capital punishment is a crucial balance between total abolition and active advocacy of the death sentence.
The death row debate in India cannot ignore the reality of the structural discrimination against those from a certain caste, class, and religion. In a 2016 study analysing profiles of 385 death row prisoners, Project 39A, a criminal reforms advocacy group, found that 76 per cent of such prisoners belonged to scheduled castes and scheduled tribes, other backward classes or religious minorities and over three-fourths were from economically vulnerable and over 62 per cent did not complete secondary school. While these prejudices are a common thread in the criminal justice system, capital punishment extends them to an irrevocable, final state of punishment. Another 2020 Project 39A study of trial court judgments showed that in Delhi, of the 80 death sentences handed by trial courts between 2000 and 2013, over 60 per cent later resulted in acquittals or where sentences were commuted by the high court. The same study also showed that 72 per cent of all cases in which Delhi trial courts awarded the death penalty from 2000 to 2015 cited “collective conscience of the society” as an influencing factor. The data points towards a flag-waving approach of trial courts in awarding capital punishment.
The Supreme Court in its reference stressed that a trial court must take into account “the social milieu, the age, educational levels, whether the convict had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, were relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused”. The case is a crucial opportunity to bring consistency in practice and, thus, ensure that those facing capital punishment get a hearing that’s fair, humane — and just. For, it’s about life and death.
