Issues in death penalty litigation

a) Access to prisoners: While lawyers usually do not meet their clients in prison, excessively strict prison conditions too usually prevent anything more than a ten minute meeting every week, often through grills. Lawyers, particularly in appellate courts, often overlook these aspects and hardly ever meet prisoners and cases are argued without proper instructions, overlooking apparent mental illness or sometimes even conceding conviction. This and other restrictions on correspondence makes interacting with prisoners on death row even more difficult as they largely belong to socio-economically vulnerable backgrounds with very little or no education. These factors severely affect the quality of legal representation which can be provided to prisoners sentenced to death.

b) Compulsion and Self-Incrimination: Article 20(3) of the Constitution renders a statement procured from the accused under compulsion inadmissible, and such a protection also extends to recoveries made there under. However, challenges to the admissibility of recoveries under Section 27 of the Evidence Act are rare, despite studies confirming a high prevalence of torture at the pre-trial stage. As the law requires the accused to show proof of compulsion, absent or incompetent representation at this stage gravely impacts the case. This session seeks to explore practical experiences in light of the law on compulsion and the protection against self incrimination in death sentence cases.

c) Scientific evidence: Increasingly, convictions in death penalty cases use complex scientific evidence such as DNA, blood group analysis and electronic evidence. However issues such as the chain of custody, exemption to experts from testifying under s. 293 CrPC and the possibilities of tampering of planting of evidence remain unaddressed. It must be remembered that expert evidence is only an opinion under s. 45 of the Evidence Act and given the poor handling and storage of forensic evidence courts must be circumspect about accepting it at face value.

While DNA evidence has been hailed as unimpeachable evidence in Court, the above mentioned factors which affects the accuracy of the evidence, are ignored by the Court. It is important to look at how foreign jurisdictions have considered DNA evidence and its accuracy doubted the world over.

Electronic evidence plays an important role as documents such as call records, CDs and CCTV footage are increasingly used in evidence. While Anvar v. Basheer (2015) overruled State (N.C.T. Of Delhi) vs Navjot Sandhu (2005) holding that valid Section 65B certificate was mandatory for the admissibility of electronic evidence. The question remains to be answered in relation to offences committed before Anvar’s case and whether the change in law has affected how electronic evidence is tendered, as 65-B certificate requirements continue to be routinely flouted.

Sentencing in death penalty cases is an area that has been largely unexplored in India other than proforma arguments, bereft of content, pertaining to the socio-economic circumstances of the accused. The procedural requirements for sentencing under the CrPC which require a bifurcated trial and recording of special reasons if death sentence is chosen over life imprisonment are followed more in their breach. Findings from the Trial Court Sentencing Research Project being conducted show that in most cases trial courts pronounced the sentence on the same day as conviction. In other cases a short adjournment of one day was given to formally comply with section 235(2).

Even the substantive understanding of ‘rarest of rare’ in capital cases is often contrary to the original meaning assigned to it by the Supreme Court in Bachan Singh’s case. While the law requires circumstances of both the “crime” and “criminal” to be considered, often cases focuses mostly on the crime. Factors related to the “criminal” are inconsistently applied by courts. While highlighting these issues, we draw from findings published in our Matters of Judgment.

In Union of India v. V Sriharan the Supreme Court carved out a special category of sentence where the Supreme Court or the High Court can substitute the death sentence with imprisonment for life, or imprisonment in excess of 14 years, and put that category beyond the application of remission. This decision should also inform the understanding the “rarest of rare” framework of Bachan Singh which requires that the death sentence can be imposed only after the alternative options are unquestionably foreclosed. Other sentencing innovations such as the 2013 Criminal Law Amendment have only made the already murky area of sentencing even more unclear.

Mitigation is the process of gathering and presenting evidence to a court that portrays the accused as embedded in their historical, biological, psychological and social context. It is important to understand that mitigation is not a legal excuse or justification for the crime. Instead, it serves to explain the behaviour of the prisoner and to inspire compassion with the judge. This process typically entails collecting documentary evidence and conducting interviews with key informants, including family members, partners, employers, school teachers, doctors, as well as clients themselves.

In the United States, mitigation investigations commence before trial and includes extensive meetings with the prisoner, his family as well as psychiatric evaluations in most cases. Where the prisoner is unable to afford this, it is provided for by the State.

While Bachan Singh recognizes the importance of a bifurcated trial and the need for evidence to be presented at the sentencing stage, this is rarely done in practice. Noticing these deficits, the Supreme Court has suggested the appointment of probation officers, but even this has not been applied in practice. Recently, the Supreme Court has issued directions which outline the duty of the defense counsel during the sentencing stage. These should inform practice regarding mitigation.

One of the foundational principles of criminal jurisprudence rests on the assumption of rationality of every person and their capacity to understand the consequences of those actions. As a result, mental health of the accused is a significant factor that influences outcomes at various key stages of a trial, especially in capital cases.

To ensure a fair trial, the accused must have the capacity to instruct their counsel and make out a defence. Hence section 328 and 329 require that the trial be postponed where the accused is of unsound mind. Strict compliance with these provisions is required as absence of an inquiry upon a plea taken by an accused might vitiae a trial.

The defence of unsoundness of mind negates culpability of the accused. However, the burden of proof is on the accused and the threshold is a derivation of the M’Naghten rule. The narrow understanding of insanity has often resulted in the accused discharging an evidentiary burden which is much higher than the preponderance of probabilities. Further, the inherent nature of mental illness is such that it defies predictability making it nearly impossible to identify a determinate moment at which the accused became of unsound mind.

At the sentencing stage, mental health at the time of commission of the offence has often been considered as a mitigating factor to commute the death sentence of the accused. However, at the stage of execution, two concurrent 3 judge benches have come to two diametrically opposite conclusions, one leading to an execution in 1977 (Amrit Bhushan Gupta v Union of India) and one leading to commutations in 2013 (Shatrughan Chauhan v Union of India). It is to be noted, that while some progress has been made in including concerns regarding mental illness in a criminal trial, issues pertaining to intellectual disability remain underdeveloped in criminal law jurisprudence in India.