Death Penalty A Cruel and Futile Exercise

As courts are deciding the question of execution of Mukesh Singh, Akshay Thakur, Pawan Kumar and Vinay Sharma in the December 2012 gang rape and murder case, the debate on the death penalty in India is once again at the forefront. Public outcry following the incident led almost the entire nation to believe that any punishment short of the death penalty would amount to ‘grave injustice’ for the victim and her family. However, the question as to effectiveness of the death penalty remains unanswered.

The disparate impact of the criminal justice system on the poor and marginalised groups is a grim reality in India. The death penalty, similarly, has a severely disproportionate impact on socio-economically vulnerable groups, and this is one of the foremost reasons weighing against the retention of the punishment within the criminal justice system of India. The Death Penalty India Report 2016 (DPIR) published by National Law University Delhi, found that nearly 75 per cent of all the prisoners sentenced to death in India belong to socio-economically marginalised communities, including Dalits, OBCs and religious minorities. The DPIR also found that over 62 per cent of the prisoners sentenced to death had not completed secondary school, and around 23 per cent of them had never been to school even for a single day. This data highlights the broken nature of the criminal justice system in India and indicates that the system is not capable of administering the death penalty in a fair and non-arbitrary manner.

The socio-economic backwardness of prisoners sentenced to death also prevents them from accessing legal resources and quality legal representation, and consequently violates their right to a fair trial. Of all death-row prisoners who spoke about their interactions with lawyers in the DPIR, nearly 75 per cent had never met their lawyer outside the courtroom. This number only increased at the appellate levels as High Courts and the Supreme Court are geographically more distant than the trial courts. The impact of not having good lawyers, and not meeting the lawyers representing the prisoners have a discernible impact on their right to a fair trial. Neither are they aware of the status of their cases, nor are they able to participate in their own trial. Meetings with lawyers in capital cases are especially important since the Supreme Court’s judgment in Bachan Singh v. State of Punjab (1980) requires evidence on aggravating and mitigating factors to be presented before the sentencing court, to enable a decision between life imprisonment and the death penalty. Aggravating factors of the crime available from case file and from the papers presented before courts. Thus, courts have ready access to circumstances of the crime. Mitigating factors of the offender, on the other hand, involve building a social, personal and psychological history of the individual, which need to be gathered from repeated personal meetings with the offender, their family and members of their community. Unless this is done, courts cannot have an accurate understanding of the individual before them. It is a cardinal principle of criminal law that punishment must be individualised and the socio-economic vulnerability of death-row prisoners often means that barely any sentencing information is presented before the judge.

The political push and public outrage demanding the death penalty has real and perilous consequences on the criminal justice system. The 2012 gang rape and murder case in Delhi is a case in point. The public anger around the incident led to the national belief that the death penalty was the only appropriate outcome of the case. The courts adjudicating the matter also justified the imposition of the death penalty to satisfy the ‘collective conscience’ and ‘society’s cry for justice’. The trial court and the High Court did not even examine the mitigating circumstances of the defendants.

The Supreme Court, acknowledging the shortcomings of the sentencing process, took it upon itself to appreciate mitigating evidence in the case and asked defence counsels to file separate mitigation affidavits for the defendants. However, the uncanny similarity between the affidavits betrayed the complete lack of depth of the mitigation investigations. The nature of the affidavits not only raised concerns about the quality of legal representation received by the four convicts, but also about the Supreme Court’s own understanding of a fair sentencing process in a capital case. Ignoring very apparent deficiencies in the quality of sentencing arguments of the defence counsels, the Supreme Court, like the trial court and the High Court, went on to confirm the death sentences to satisfy the ‘collective conscience’ of the public.

Such judicial outcomes set dangerous precedents for capital sentencing jurisprudence in a system where most defendants are too poor to afford a lawyer and prevent the state from carving out effective responses to deal with violent crimes like the one in this case.

On the issue of sexual violence, decades of research by women’s rights groups highlights the inefficacy of harsh punishments and seeks to shi the focus on training police officers to efficiently and sensitively investigate sexual offences. However, the bloodlust and outrage surrounding violent crimes have little patience for legal procedures. Courts have been giving in to such demands, and data shows that the proportion of death sentences imposed for sexual offences has consistently increased from 18 per cent in 2016, to almost 53 per cent in 2019. Ignoring documented research on the issue, and pronouncing death sentences on offenders does little beyond satisfying the retributive instinct of the public. However, seeking quick fixes within a broken criminal justice system only enables the state to give an easy, but inadequate cop-out for the state as a response to violent crimes.

This article first appeared in the Deccan Herald, and can be found here. The author is a research associate at Project 39A, National Law University Delhi. The views expressed are personal.