For the first time, NLU Delhi’s Centre on the Death Penalty has analysed death penalties across lower courts and released a report, which suggests a picture in which the judiciary ordering a convict killed seems more subject to randomness than an evolving jurisprudence or overarching policy.
NLU Delhi assistant professor Anup Surendranath, who is director of its Centre on the Death Penalty, said that this was their first comparative report closely tracking death penalty statistics in lower courts since 2015. “The idea is to sort of track regularly what is happening n the court and just see the trends really,” he said. “It’s very interesting to see, especially in the trial courts, because there’s so little data coming out in lower courts.” As such, getting numbers that they are “reasonably confident” in - the 2015 figures were compared with Amnesty International’s and stood up well, said Surendranath - has been a labourious task. “We do an exhaustive exercise of tracking the high court cause list,” he explained about the methodology. “All death sentences from trial courts have to come up for confirmation to high courts. We track the cause list, and we do widespread tracking of local media, because much of it doesn’t get reported in the national press.”
Sessions courts at first instance: West Bengal drives increase, scuppers downwards trend
According to the Centre’s data, Indian sessions courts handed down nearly 50% more death sentences in 2016 than they did in 2015: a total of 136 versus 70 in 2015. That high 2016 figure was a bit of a surprise, said Surendranath, as the Centre (which assists in a number of death row convicts’ appeals) had cautiously hoped that 2015’s tally of 70 might have been the start of a new downwards trend: over the last 15 years, pretty consistently, around 100 convicts have been sentenced to death every year.
Regionally, the largest increase in 2016 came from West Bengal where in 2016, a total of 39 convicts were sitting on death row as at 31 December 2016 (compared to around 14 in 2015, recalled Surendranath). In other states, figures stayed fairly steady, with the most popular state Uttar Pradesh naturally ‘leading’ with 70 death row prisoners in 2016.
However, death penalty appeals from states like Maharashtra (47 death row convicts) and Madhya Pradesh (37) were much more often in the Supreme Court than UP’s, where a larger number of cases tended to languish at the high court level, said Surendranath.
Breakdown by crime: More death for murder, less for sexual violence
The vast majority of that spike appears to have come from murder cases, with an additional 69 murder, dacoity & murder, and kidnapping & murder convicts sentenced to death in 2016 over and above 2015’s tally of 34 death sentences for murder (and 0 for dacoity & murder, and 3 for kidnapping & murder).
Death penalties for terror-related offences stayed roughly the same, at 5 in 2016 (down from 6 in 2015).
Death penalties for murder involving sexual violence actually decreased slightly from 28 in 2015 to 21 in 2016.
One death penalty was handed down for drug offences in 2016 (versus none recorded in 2015).
However, partly setting off that increase, high courts stepped up to commute and acquit much larger numbers: 44 high court commutations (versus 15 in 2015), and 14 acquittals (versus only 3 in 2015).
That said, the death penalties confirmed by high courts also increased by a similar amount, tripling between 2015 and 16, up from 3 to 14.
Supreme Court about-turn after deadly 2015
The Supreme Court, however, saw a drastic U-turn in its death penalty jurisprudence in 2016. Then again, it was hard to outdo 2015’s tally, when the apex court had handed down only 1 commutation and 8 confirmations (of which four prisoners’ special leave petition (SLP) were dismissed in limine, without a hearing on merits, which had happened only nine times since 2004).
As we had reported in-depth in 2015, the Supreme Court’s near-record number of death penalty confirmations could mostly be attributed to then-Chief Justice of India (CJI) HL Dattu more aggressive stance that made commutations and reviews increasingly hard to obtain for death row convicts’ lawyers.
But with Dattu out, 2016 was a markedly different picture: last year, the Supreme Court did not confirm a single death sentence, commuting 7 and acquitting 3.
Surendranath said 2016 was a record in the Supreme Court, as the first year in at least 15 that not a single death penalty criminal appeal was upheld (although one death penalty review petition, which usually has a low chance of success, was confirmed in 2016).
That massive fluctuation in whether people are or are not killed by the state and the judiciary is not necessarily a good thing though.
According to Surendranath, “there is a doctrinal problem” on how courts apply the “rarest of the rare”, which is the rather vague test that is meant to be followed before awarding a death penalty. “The oscillation is really worrying us,” he added.
In 2016, Supreme Court benches presided over by justices Ranjan Gogoi and UU Lalit were responsible for most of the changes in fortunes of death row appellants.
2016’s three outright acquittals of the original crime appellants had been convicted for, would basically have hinged on the facts and evidence of each case (the Centre, together with senior counsel Colin Gonsalves represented Dhal Singh vs Chhattisgarh, who was acquitted of all murder charges, for instance, in a 2:1 decision with Justice PC Pant dissenting).
But the eight commutations in 2016 saw Gogoi apply the jurisprudence (that Dattu had ignored) which requires judges to consider all surrounding mitigating factors of a convict (such as social history, history of substance abuse) before confirming a death sentence.
See from page 8 onwards of the Centre’s PDF below with more details on each of those cases.
NLU Delhi’s death penalty centre
Surendranath said that the centre now consisted of 18 people working full-time, with further assistance from interns and students.
An upcoming major project, which has the assistance of 15 student volunteers and researchers, relates to death row inmates’ mental health issues. A report on that will probably be out by next year.
Of course, the centre’s is likely to have its work cut out for quite some time beyond that. As its report noted, India and a minority of countries have been bucking global trends and efforts to reduce the role of death as a judicial punishment:
In November 2016, India opposed the United Nations Resolution (A/Res/71/187) calling for a moratorium on executions with a view to abolishing the death penalty, as it goes against Indian statutory law.
The Resolution was, however, adopted by the General Assembly by 115 votes to 38, with 31 countries abstaining.
Countries that opposed the Resolution besides India, included the United States of America, Japan, Bangladesh, Kuwait, Egypt, Iraq, Iran, China, Saudi Arabia, Pakistan and Afghanistan.
India opposed a similar call for a moratorium in 2007 and 2012.
And with the appeals against the death penalty convictions of the December Delhi gang rapists and murderers of Jyoti Singh likely to come up this year, the politics and opinions surrounding the death penalty are likely to stay controversial.