New Delhi: As India hung four rapists guilty of the 2012 Delhi gangrape and murder on 20 March 2020, the number of death sentences pronounced by trial courts for murder involving sexual violence nearly doubled over three years to 2019, reflecting a popular consensus around such crimes.
But it is not a view that the Supreme Court shared, at least in 2019, our analysis indicates.
In deciding rape-and-murder cases in 2019, it seems that the judiciary was hierarchically dissonant: trial courts were convinced, like the legislature, that a sentence of death sends a strong message to society and potential criminals. The Supreme Court took a longer, less popular view and considered the background of offenders and their future relationship with society.
Death sentences awarded by trial courts overall dropped by 32% in 2019 over the preceding four years, but the number of death sentences in trial courts for murder involving sexual violence rose from 27 in 2016 to 54 in 2019, according to the Annual Statistics Report, 2019 by Project 39A, a legal aid and research centre at New Delhi’s National Law University
On the one hand, we see a rise in death sentences for murders of a sexual nature by trial courts in 2019. But this is contrary to a fall in the number of death sentences in general. On the other hand, the Supreme Court commuted the death penalty to life when past cases of rape and murder came before it.
The jump in trial-court death sentences can be explained by the prevailing socio political response to sexual violence. Kathua, Unnao, the Hyderabad rape and murder and its aftermath, have amplified this conversation. In August 2019, Parliament amended Section 5 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, introducing the death penalty for aggravated penetrative sexual assault against a minor. Andhra Pradesh introduced a bill to amend Section 376 in the Indian Penal Code (IPC), punishing rape with death. Politicians, news anchors, and the general public have vigorously demanded that laws and policies be centred around the victim and not the accused.
The Supreme Court, specifically in 2019, went against this grain.
During former Chief Justice of India Ranjan Gogoi’s tenure (October 2018 to November 2019) special benches for death penalty matters were constituted, and at least 19 judges heard 36 death penalty cases involving 49 prisoners. The Supreme Court commuted death to life imprisonment in 17 of these cases--nearly half of the total number they decided that year. All 17 cases involved sexual violence and murder, in which the lower courts awarded the death penalty.
Two kinds of data stand out: one, this is the first time in 20 years that the Supreme Court heard and decided as many as 36 capital cases in a single year; two, in 47% of cases involving sexual violence and murder, the Court used a sentencing approach that is at odds with populist and institutional anger directed at offenders.
The Dilemma of Sentencing in Capital Punishment
All death penalty cases must adhere to the sentencing framework laid down in Bachan Singh, a 1980 judgment by the Supreme Court.
Judges, while using individual discretion, must consider the circumstances of the crime and the criminal before sentencing the accused to death. A metaphorical weighing scale decides which factor outweighs the other, and consequently whether the accused gets the death penalty. This is also called the ‘rarest of the rare’ metric.
The Bachan Singh judgment lists aggravating and mitigating circumstances, but also accepts its own limitations: "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society."
But Bachan Singh does not tell us how sentencing ought to be done, beyond a balance of mitigating and aggravating factors. What kind of expertise should the court seek to arrive at a conclusion? There is neither legislative nor judicial clarity in 40 years since the judgment.
Further, unlike the American Bar Association, which has “Guidelines for the Appointment And Performance Of Defense Counsel In Death Penalty Cases”, there is no equivalent in India. Consequently, death penalty sentencing is rarely evidence led.
Best practices in death-penalty sentencing call for detailed reports by psychiatrists, social workers and experts who can help the court piece together the offender’s life. These reports should ideally detail prior medical history, mental health concerns and should have interviews with family, friends, teachers, employers or any one with whom the accused spent significant amounts of time.
For instance, the Supreme Court, in the Delhi gang rape case, ordered the convicts to file affidavits relating to their socio-economic status, mental health, education and any other information throwing light on their circumstances. This is because the process of sentencing (deciding how to punish an offender) needs more than case- law citations and purely legal arguments.
To do this, courts need to invest institutional resources into a person who the public would rather have executed. There may be little incentive for most judges, when the socio political context is otherwise discouraging, to undertake a long and complex mitigation exercise.
Fast-track courts have been set up to expedite rape and murder trials, and in the case of a law introduced in Andhra Pradesh, within 21 days. There are other, more pragmatic considerations, such as a lack of basic infrastructure in sessions courts. These, among many reasons, may leave little room to conduct a thorough sentencing exercise.
In 2019, the Supreme Court commuted death sentence to life imprisonment in 17 cases of murder with sexual violence. To understand the Court’s reasons, it is important to study the trial-court judgments in these cases.
Trial Courts Use Consistent Sentencing Process
Across states in India, what stayed consistent within trial courts was the sentencing process.
Arguments by the prosecution and the defence was confined to a long line of Supreme Court judgments (Macchi Singh, Dhananjoy Chatterjee, Shivaji Shankar Alhat, Rajendra Prahladrao Wasnik, Mohd. Mannan, Vasanta Sampat Dupare, Laxman Naik, among others). This was a standard proforma—both sides used precedents to argue for or against the death penalty, almost collegiate in its style of advocacy. No other evidence was proffered and none asked for by the court.
Trial courts’ reasons for sentencing the accused to death were cast from similar moulds: the crime was “heinous”, “cold-blooded” or “brutal”; the accused was a “monster” or a “beast”; reformation was considered impossible because of the accused’s “lust for sex”, or “lack of remorse”; and any leniency in punishment would erode public confidence in the law.
Personal feelings of disgust, anger and sadness often merged with a need to respond to a ‘collective’ sentiment. It is important to remember that district courts are geographically located where the crime occurs. Public emotions in sexual violence cases run high, and therefore judges may be loathe to show ‘sympathy’ to the accused, a bias confirmed by Matters of Judgment, a 2017 study by Project39A, National Law University Delhi
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Jail conduct or reports by a psychiatrist or a social worker, all part of a sentencing exercise, were not taken into account to determine if the accused was truly incapable of reform. This is a burden that Bachan Singh in fact places explicitly on the prosecution and not the defence. This means that the Government must prove in court that an offender, in effect, deserves to die because he is beyond reform. This proof, as we have seen in these cases, came from citing judicial precedents alone, with facts similar to the case at hand.
The Supreme Court Moves The Goal Posts
At the Supreme Court, judgments were based on different considerations.
The focus shifted from the nature of the crime, to the criminal. The court looked at the background of the accused, socio economic and psychological, to commute these sentences to life in prison. Judges regarded reformation as probable, and used conduct in jail, prior criminal history or the age of the accused to support their decision. The Court even considered bad legal representation as a mitigating factor, holding that this compromised the accused’s life.
Lawyers in some cases were allowed to produce evidence of mental-health concerns, which the Court placed on record. The year 2019, therefore, may have been unusual in the Court’s history—the volume and nature of judgments allows us to read into judicial thinking on these offences as a current event.
But like trial courts, the Supreme Court has also used public opinion as a reason to award the death penalty in the past.
Matters of Judgment--which interviewed 60 former Supreme Court judges--reported that 30% of justices believed that public and media pressure played a role in sentencing outcomes. But, according to three former judges, this pressure affected only trial and high court judges.
Being in the vicinity of the crime makes sessions judges, who tend to be younger than appellate court judges, especially susceptible to intense media scrutiny, said one former Chief Justice of India.
At the top of the judicial ladder, it is, perhaps, easier to be insulated from the pressures of ‘local’ crimes.
Some sexual-violence cases do prompt national outrage and protest. Why should the death sentence be imposed based on selective public opinion? During CJI Gogoi’s tenure though, it is clear that the Supreme Court was largely hesitant to award the death penalty. However, this is not an indication that the Court will now punish all crimes of rape and murder in this way.
The Supreme Court’s History Of Arbitrariness in Death Penalty
Lethal Lottery, a study of Supreme Court judgments of death penalty cases between 1950 and 2009, was the first to lay bare the Supreme Court’s arbitrariness in sentencing.
An analysis of over 700 reported judgments of the court overwhelmingly makes the case for abolition, because it was impossible for judges to have a uniform sentencing policy. For rape and murder cases the study found that “despite the rhetoric around the issue, it is striking that the Supreme Court has not upheld a death sentence in any case of rape and murder of an adult woman, while it has done so in a number of cases where the victim was a child”.
The current analysis shows that this hasn’t been the case over 2019—the Supreme Court has, as we observed, commuted death sentences in most sexual-violence cases. This confirms the inherent flaws in sentencing: that is subjective and depends on the judge hearing the case.
As a former judge of the Supreme Court said in Matters of Judgment, “Some people like to give the death sentence, or some say no-I have no right to take somebody’s life. That again depends on your background, a judge’s background.”
It is incorrect to conclude that the Supreme Court’s spate of commutations is a lack of concern for the victim. The Court emphatically states in its judgments that the victims of these crimes deserve justice—and therefore it sentenced the accused to life in prison, of anywhere between 20 years and till natural death.
But the Supreme Court, even with the constitutionality of the death penalty having been upheld, has disparate responses to crimes that are punishable by death. As Lethal Lottery reminds us, the history of the Court with death penalty is riddled with inconsistencies. With sexual violence it is particularly complicated, when social and political commentary is shrill and retributive. It is possible that a judge may overlook investigative lacunae to send a message to society in these cases.
In a case of rape and murder, the High Court of Bombay in 2015, confirmed the death sentence and said:
“We have observed above that in such a serious crime, investigating agency ought to have investigated in connection to ….(the evidence). The moot question despite lapses, infirmities, and inaction would be why the criminal justice system should suffer and why the courts should forget victim of crime particularly when reliable, truthful, convincing incriminating and clinching circumstances have been legally established by the prosecution against the accused. However, this case is an example once again to remind the investigating agency and the prosecution of its onerous duty to place the truth before the Court with utmost sensitivity instead of adopting an overconfident approach in such a serious crime where question of life and death of a person is involved and where victim is none else then a 13 1⁄2 years old small, innocent, helpless and powerless girl student.”
The High Court here admits in one breath that the criminal justice system suffers from lapses and infirmities, and that the investigative team was lacking. Yet, the evidence is considered ‘clinching’ and the death penalty is given on this basis. The Supreme Court ultimately commuted this sentence to life imprisonment but upheld the conviction.
Matters of Judgment calls this phenomena normative “double speak”. It found that former judges of the Supreme Court expressed severe doubts about investigative methods and quality of legal representation, among many other systemic ailments. Yet there was support for the death penalty, even in the face of a vague and undefined “rarest of the rare” approach to sentencing that they themselves admit.
Variations in sentencing within the judiciary deserves a closer look. Judges seem to be driven by considerations that are at odds with each other, raising these questions: What drives trial courts to punish in one way and the Supreme Court in another? How does a judge ascertain the value of one life, and why are these lives treated differently across the judicial spectrum? How has this changed over time—have courts been harsher in some years and not in others? What accounted for these changed attitudes? Has the death penalty reduced crimes of sexual violence, and are we safer today?
Despite the public outrage and need for revenge, understanding the basis of these judicial outcomes and the factors that influence them, might bring us closer to finding some answers.
(Lubhyathi Rangarajan was a founding member of Project 39A and led the research design for Matters of Judgment. An independent lawyer since August 2017, she relied on published and unpublished data from Project 39A for this piece. )