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Study explores drivers of death terms

By Murali Krishnan
PUBLISHED ON MAY 13, 2020 11:55 PM IST

The shock and impact of a crime on the collective conscience of society was a major reason cited by trial courts in Delhi while imposing death sentence on convicts, according to a report by research organization Project 39A of National Law University, Delhi .

The study also revealed blatant non-compliance by the trial courts with the sentencing framework laid down by the Supreme Court in its 1980 judgment in Bachan Singh v. State of Punjab, where a Constitution bench of the Supreme Court was called upon to decide the constitutional validity of the capital punishment.

The report titled ‘Death Penalty Sentencing in Trial Courts’, which will be published on May 15, analysed 215 judgments from three states , 43 from Delhi, 90 from Maharashtra and 82 from Madhya Pradesh, in which trial courts imposed death sentence between 2000 and 2015.

Out of the 43 cases in Delhi in which death sentence was handed down between 2000 and 2015, trial courts invoked the impact of the crime on society’s collective conscience in 31 cases (72%) as grounds to send convicts to death row.

In Madhya Pradesh, the said ground was used in 43% cases (35 out of 82) while in Maharashtra the figure stood at 51% (46 of 90 cases).

‘Collective conscience of society’ as a ground to justify death penalty was first used by the Supreme Court in the 1983 judgment of Machhi Singh v. State of Punjab. In that case, the court held that when “collective conscience of society is shocked, it will expect the holders of the judicial power centre to inflict death penalty”.

It was, however, most famously used by the top court in its 2005 judgment in the Parliament attack case in which it awarded capital punishment to convict, Afzal Guru. Collective conscience found its most recent endorsement in the 2017 judgment of the Supreme Court in the December 2012 Delhi gang rape case of Mukesh v. State of NCT of Delhi.

But what is collective conscience of society?

“It is an amorphous term. It has become a catch phrase in Delhi. Nobody really understands what it means. It is part of the mindlessness of death sentencing. It is not possible to judicially determine what it means. By trying to do that, courts are causing violence to the Bachan Singh framework”, said senior counsel Rebecca John.

In the case of Bachan Singh, the Supreme Court formulated a sentencing framework to be followed for imposing death penalty. It required the weighing of aggravating and mitigating circumstances relating to both the circumstances of the offence and the offender, to decide whether a person should be sentenced to death or given life imprisonment.

According to the Bachan Singh judgment, for a case to be eligible for the death sentence, the aggravating circumstances must outweigh the mitigating circumstances.

“Machhi Singh is a 3-judge bench judgment and it is per incuriam (in ignorance of law) as it does not confirm to Bachan Singh which is a 5-judge bench judgment. It is the Supreme Court itself which has created this confusion. The fact is that ‘collective conscience cry’ was not part of Bachan Singh framework. It has been specifically acknowledged in Bariyar’s case (Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra) wherein it was said that judges have no way of reliably determining what is “collective conscience”, John added.

The most glaring aspect highlighted by Project 39A’s report was regarding the non-consideration of mitigating factors while sentencing accused.

As per the report, no mitigating circumstances were mentioned in 42% of death penalty cases (18 of 43 cases) in Delhi. The number was 62% (51 of 82 cases) in Madhya Pradesh and 47% (42 of 90 cases) in Maharashtra.

The Bachan Singh judgement recognized the age of the accused as a relevant mitigating circumstance. But 37% of the prisoners sentenced to death in the three states were between 18-25 years of age.

One of the most important aspects of the sentencing framework laid down in the Bachan Singh judgement is to consider whether the alternative punishment of life imprisonment can be “unquestionably foreclosed.” Only then can death penalty be imposed.

Despite the same, trial courts in the three states discussed life imprisonment as an alternative only in 26.6% cases before imposing death penalty. It was discussed in 8 out of 43 cases in Delhi, 22 out of 82 cases in MP and 27 out of 90 in Maharashtra.

In all cases where it was discussed as an alternative, it was dismissed on the ground of brutality of the crime.

“This study shows that the death penalty sentencing framework has completely collapsed. The utter inconsistency, confusion and arbitrariness in the Supreme Court’s death penalty jurisprudence has had a devastating impact on the sentencing process in the trial courts. There is barely anything common between the law laid down by a 5-judge bench in Bachan Singh and what passes for sentencing hearings in our courts”, Dr. Anup Surendranath, executive director of Project 39A said.

In a total of 211 out of the 215 cases across the three states, 44% cases saw sentencing on the same day as the conviction. This concern was rather acute in Madhya Pradesh where same-day sentencing was observed in 76.9% of the cases.

Maharashtra saw it in 34.4 percent of the cases, but 57% of the cases saw sentencing within 24 hours of conviction. Delhi fared better relatively with 53.4% of sentencing hearings taking place at least one week after the conviction.

This, the study said, has an obvious impact on the nature and quality of arguments that were presented before the court.

Another significant aspect highlighted in the report was regarding how trial courts failed to consider individual roles of the accused in the crime when sentencing an accused in a case involving more than one convict.

In 17 cases out of 82 in Madhya Pradesh which involved more than one person sentenced to death, individual roles in crime was considered during sentencing only in five cases. Individual mitigating circumstances were considered only in one case in the state.

In Maharashtra, in the 23 cases out of 90 that involved more than one person sentenced to death, individual roles in crimes and individual mitigating circumstances were considered during sentencing in 16 and 4 cases respectively.

12 cases out of 43 in Delhi involved more than one person sentenced to death. However, individual role in crime and individual mitigating circumstances were considered during sentencing only in 2 and 4 cases respectively.

The failure to consider individual role and individual mitigating circumstances of the four convicts in the 2012 Delhi gang rape case was highlighted by senior advocate Raju Ramachandran who served as amicus curiae (friend of the court) in the matter before the Supreme Court.

Ramachandran’s arguments in this regard had led to top court rehearing arguments on sentencing in detail before it confirmed the death penalty handed down by the trial court to the four convicts in the case.

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