Abolition of the Death Penalty: A Tough Road ahead for India

The movement against the death penalty in present-day India faces a tremendous challenge in terms of extensive public clamour for swift executions, removal of appeals, and even support for summary executions. With the imminent execution of the four convicts in the Delhi gang rape and murder case against the background of reactions to incidents in Hyderabad, Kathua and Unnao, harsher punishments are receiving tremendous public support, and politicians are only happy to oblige. The Supreme Court has issued administrative orders1 to hear death sentence cases faster amidst misplaced concerns in the public that death row prisoners have too many loopholes in the law to exploit.

Framing the death penalty as a political– legal issue in India is not easy. Located within the wider spectrum of social and state violence in India, the exceptional nature of the cruelty of the death penalty is difficult to establish. The suffering inflicted by the death penalty is the constant and daily uncertainty between life and death for the prisoner and the extremely dehumanising experience that one’s life is completely at the mercy of another human being. We live in a society where loss of life has been normalised and life as such is not attached with any real kind of sanctity. Routine loss of life in different contexts—hunger, extreme weather, agrarian crisis, violence on the grounds of caste, gender, religion, sexuality, language, and region, the ever increasing validation of street justice and lynchings, summary executions and illegal encounters by the state—have led to the significant erosion of the value we place on the sanctity of life. In the context of such erosion, getting moral, social, political and legal purchase on concerns around the death penalty is undoubtedly difficult.

There is no escaping the fact that we are becoming a more violent society and our threshold for acceptable violence is on the rise. As a punishment inflicted through the instrumentality of the law, the suffering and cruelty of the death penalty will become increasingly irrelevant and difficult for us to see. And this was very clear in the reactions to the encounter killing of the four men arrested in November 2019 for the rape and murder of a woman in Hyderabad. The legal process itself was seen as undeserved, even though the death penalty would have been an option. Concerns around the “misuse” of the legal process were part of the celebration of the encounter killings. There is similar outrage at the four convicts in the December 2012 Delhi gang rape and murder using options available to them in the law to challenge their executions. When the due process of the law itself comes to be seen as something that must be denied to certain people, the inherent problems with the death penalty as a punishment do not even begin to enter that conversation.

The widespread social fear and frustration with the extent of sexual violence in our society has fuelled support for the death penalty in this decade. Though feminist lawyers and women’s rights activists have unequivocally stood against death penalty as a response to sexual violence, the widespread public demand for it has resulted in the legislative expansion of the death penalty in this context. The 2018 amendments to the Indian Penal Code (IPC) and the 2019 amendments to the Protection of Children from Sexual Offences (POCSO) Act introducing death penalty for the non-homicide offence of child rape (“aggravated sexual assault” in the POCSO) stand as a stark reminder of the direction in which we are headed on the death penalty. This legislative expansion has come in despite very

strong concerns from child rights groups that harsher punishments will only worsen the already abysmal reporting of such crimes.2 Though the 2013 IPC amendments introduced death penalty for the repeat offence of rape under Section 376E, it would not be surprising if the ongoing review of our major criminal legislations recommends the death penalty for the rape of adults. This constant move to wards higher punishments and over-criminalisation is also indicative of a deeper malaise. Widespread governance failure ensures that our only response to grave social problems is punishment and criminalisation. It is a muscular response that sells well and allows governments to send the message that they are taking these issues with “utmost seriousness.”

However, the picture emerging from the courts in India is a complicated one. There seems to be an expanding and exaggerated use of the death penalty in India’s lower courts, while the Supreme Court appears to be sceptical about the manner in which the death penalty is being used. Trial courts in 2018 imposed the highest number of death sentences (162) in nearly two decades.3 While 102 death sentences were imposed in 2019,4 we have already seen nearly 40 death sentences imposed within the fi rst two months in 2020. Trial courts in Madhya Pradesh have been particularly keen about the death penalty, emerging as the state with the highest number of death sentences in 2018. A blatantly unconstitutional prosecution policy that rewards prosecutors for getting the death penalty imposed has contributed to this in no small measure.5 However, in 2019, the Supreme Court did away with 27 death sentences out of the 36 that it decided.6 The Supreme Court seems to have come under severe scrutiny in the lead-up to the executions in the 2012 Delhi gang rape and murder case. The high decibel criticism that the accused were “manipulating” the system to frustrate justice seems to have influenced comments in at least one other death sentence review petition.7

In this heightened state of support for the death penalty, the crisis afflicting the use of the “rarest of rare” doctrine becomes

more acute. With the introduction of the death penalty for child rape, the “rarest of rare” framework developed in the context of murder under Section 302 of the IPC is going to come under even more stress. A doctrine that was supposed to weigh both the circumstances of the crime and the accused, already leans heavily towards mainly considering the crime. In such a context, child rape cases under the POCSO threaten towards the absolute collapse of the doctrine. This threat exists because precedent and doctrine have not sufficiently laid down the normative foundations for consideration of mitigating factors in all cases, and neither is there authoritative guidance on the manner in which mitigating factors are to be weighed. However, there exist precedents in all directions that allow crime-centric judges to discard mitigating factors in light of the gravity of the offence. This threat is particularly accentuated in the context of child rape and the coming years will be critical for the “rarest of rare” doctrine.

All things considered, the opposition to the death penalty is likely to run into very rough weather in the coming years. With the imminent executions in the Delhi gang rape and murder case, it is going to be very tough to battle the perception that every sexual violence is like that. Any argument for abolition will have to confront the question: “What if there is another Nirbhaya?” Nuanced points of opposition to the death penalty will be increasingly difficult to communicate in this climate of violence and governance failure. Issues of arbitrary application of the “rarest of rare” doctrine, with a disparate impact of the death penalty on the poorest and most marginalised sections of India’s population, are unlikely to find the kind of importance they might have in the recent past. These shrill calls for the harshest punishment with as little due process as possible must be confronted with equally powerful narratives. Wrongful convictions in our criminal justice system have just not received the kind of attention they deserve. The deep and widespread crisis points make our criminal justice system very susceptible to wrongful convictions, but it is also a system where it is very difficult to establish it. The Innocence Project in the United

States has managed to significantly blunt the sharpness of the support for the death penalty by repeatedly demonstrating cases that have gone horribly wrong (and even executed in some cases). The success of the Innocence Project has relied heavily on using DNA forensics for exoneration, but unfortunately that is not really an option in our system.8 Investigating agencies in our system rely excessively on torture-based evidence and planted evidence to secure convictions by exploiting loopholes in the Indian Evidence Act to bring in such evidence.

However, there must be no illusion that the abolition of the death penalty will come on the back of the majority of the population supporting it. Across the globe, abolition has never been based on public support. It has either taken a rigorous constitutional review in the courts or has been based on exceptional moral leadership by politicians. However, we must be honest that both of those are non-starters as long as there is baying for blood in the manner that we are currently witnessing. We need to find ways to tell powerful stories that demonstrate the price we pay for wrongful convictions in our system. It is on the impact of those stories that the full force of the arguments on arbitrariness and discrimination can be built. Undoubtedly, the most important story we must tell about the death penalty is that this punishment brutalises us all. It entrenches violence as a valid response, and we need to find a way to effectively convey that the arc of our moral evolution as a society cannot be in that direction. However, gettting to a point where we can make a moral and philosopical case against the death penalty also requires us to build a strong case against the death penalty based on the realities of the criminal justice system in India.

But above all, the biggest challenge will be to demonstrate that the rights of victims cannot be secured by taking away the rights of the accused. Victims and their families undoubtedly face great difficulty in filing the first information reports (FIRs), getting a fair and prompt investigation, a timely trial, in the lack of support and protection, etc. However, solutions to all those concerns cannot lie

in taking away the rights of the accused by legitimising encounter killings, diluting the prohibition on confessions to the police as admissible evidence (and thereby allowing more torture), reversing burden of proof, permitting longer periods of incarceration without framing of charges, etc. Changes in these directions in our criminal law will not increase convictions or the reliability of those convictions and we will only be handing out a legal process that looks nowhere like a fair trial. Robust protections for the accused force better quality investigations and prosecutions. Investigators and prosecutors need to realise that they cannot secure convictions based on unreliable and unscientific evidence. Until that time we are not going to halt plummeting conviction rates and are going to be hostage to the tragic reality that it is the process that is the only reliable punishment.

Anup Surendranath (anup.surendranath@ nludelhi.ac.in) teaches at the National Law University, Delhi and is also Executive Director, Project 39A at NLU, Delhi.

Views expressed are personal.