Why India needs a rethink before expanding scope of death penalty

Put yourself in the shoes of a rape and murder victim’s parents. They lost their 19-year-old girl to a brutal rape and murder 10 years ago. The way she died is too horrific to even recount. Possibly more brutal than even the Nirbhaya incident. The needle of suspicion lay on three men – all of whom were history sheeters. Or as the police likes to describe them – “bad characters.”

Her parents have gone through hell for the last 10 years. In their eyes justice was nothing less than the death penalty for all three. But while the Delhi High Court had given the death punishment calling the accused “predators”, the Supreme Court exonerated all three defendants for the 2012 rape and murder of the victim in the Chhawala neighbourhood of Delhi.

Reason: the prosecution failed to prove the charges beyond reasonable doubt and that there were glaring lapses in the investigation.

The parents are devastated. Gutted. Shocked. Unwilling to believe this turn of events. So would you, if you were the parents of the victim.

But the Supreme Court has given its informed reasoning saying there cannot be punishment based on moral conviction. This is not the first time that the highest court of the land has overturned death row convictions.

Here comes a chilling statistic. Over the past six years, the Supreme Court has confirmed just one death sentence for every 42 that sessions courts impose.

In February 2014, a Delhi court sentenced the three accused to death after finding them guilty of raping and killing the victim in 2012. On 26 August, 2014, the Delhi High Court confirmed the death penalty. It said the defendants were “predators” roaming the streets and “were looking for prey.”

The three individuals named Ravi Kumar, Rahul, and Vinod were found guilty. They were all in their 20s.

Now here comes the twist.

A Supreme Court bench led by Chief Justice UU Lalit said the prosecution failed to prove the charges against the three men “beyond reasonable doubt” and the court (Delhi High Court) acted like a “passive umpire” while convicting them.

The identity of the accused was not established by the prosecution, the Supreme Court said, pointing to what it called “glaring lapses” in the trial. Of 49 witnesses, 10 were not cross examined in the trial, the court pointed out.

“Courts should strictly decide cases on merits in accordance with law. Courts should not be influenced by any kind of outside moral pressures or otherwise,” the Supreme Court said.

Justice Ravindra Bhat and Justice Bela M Trivedi were the two other judges on the bench.

This was a clear indication the investigative process was botched up. Insufficient evidence meant the three accused would go scot-free.

The “shocked” Supreme Court said the basis of the trial court’s order were “nothing but conjectures and surmises”. There simply wasn’t enough evidence they had committed the crime for which they would be given capital punishment.

Eminent lawyer Srinivas Kotni said, “Criminal investigations are very tricky, especially in a country like ours. The Indian Penal Code, 1860 and Criminal Procedure Code, 1973 are comprehensive codes for determining a criminal offence and also for undertaking a criminal investigation and trial. Death row acquittals are very common in India for a variety of reasons.

“One of them could be booking an innocent person as an accused in the first instance itself by the police or lack or destruction of evidence due to any reason which escapes the attention of the investigator. Poor investigation by the police and mishandling of evidence are also responsible for such acquittals.”

In fact, the sessions courts have been quite trigger happy handing out an average 125 death sentences a year since 2016. But for every 42 such death penalties, just one gets confirmed by the Supreme Court after scrutiny, says a report by National Law University’s Project 39A, a death penalty research unit.

As the call for giving death penalty to rapists intensifies following a recent spate of gruesome gang rapes and murders, there is need to examine India’s stand in sentencing convicts to capital punishment.

There is no point in expanding the scope of the death penalty if the fall out rate is so high. Obviously the glaring gaps in the process of presenting a watertight case are too huge, embarrassing and ultimately painful for the family of the victim/s.

Srinivas Kotni goes on to add: “Sometimes acquittals happen due to unclear or inconclusive forensic reports. I also feel that the police authorities are heavily over worked due to our humongous population and crime rate coupled with lack of adequate infrastructure.”

Parliament, on the other hand, had expanded the scope of death penalty by introducing it in cases of rape of girls below 12 years under Protection of Children from Sexual Offences (POCSO).

As per Project 39A report on death penalty, released by National Law University, Delhi, between 2000 and 2014 trial courts sentenced 1,810 people to death, more than half of which were commuted to life imprisonment and about a quarter of those, 443, were acquitted by the Supreme Court and high courts.

The number of prisoners on death row at the end of 2021 stood at 488, the highest in 17 years, according to the Death Penalty in India Report.

The most recent executions in India took place in March 2020, when the four 2012 Delhi gang rape and murder perpetrators in the Nirbhaya gang rape cases were executed at the Tihar jail in Delhi

It is important to understand how the process of trial unfolds:

1. Trial courts (or fast-track courts) handling cases of sexual offences against women and children are bound by deadlines. They need to decide the case within six months after filing of the charge-sheet. But on an average, trial courts take between 1 and 2 years to reach a verdict
2. But high courts and the Supreme Court deal with such matters on a case-by-case basis. There is no fixed time-frame.
3. After conviction by the Supreme Court, a convict gets 30 days’ time to seek review. Even after a review plea is dismissed, the convict can file a curative petition. There is no time-frame within which it has to be filed; but courts accept sixx months after dismissal of review plea as the standard.
4. As a last resort, a convict has right to seek mercy by filing a petition directly with the President.
5. Indian courts and jail administration are generally lenient if there is delay in filing of review, curative or mercy petitions by a convict, as imprisoned persons find it difficult to hire lawyers and prepare petitions.

Former Chief Justice of India Ranjan Gogoi had heard death penalty cases on priority by constituting four benches, each comprising three judges, which sat simultaneously for over 6 weeks to decide cases of capital punishment.

The apex court had confirmed seven death punishments in 2017 whereas in 2016 it had confirmed capital punishment in one case and commuted seven death penalties.

Lower courts have also been hasty in issuing death warrants. When a person sentenced to death has exhausted all legal options, the sessions court issues a death warrant.

When Project 39A analysed death sentences by trial courts in Delhi, Madhya Pradesh and Maharashtra between 2000 and 2015, it found that in 44 per cent of the cases, conviction and sentencing were done on the same day.

Political decision-making is often seen in cases of sexual offence as it helps in image building. Shivraj Singh Chouhan announced in January 2017 that the country should think of laws that allow capital punishment for rape. Then, he said his government would make rape of minors punishable by death. In 2018, the number of death sentences by sessions court in Madhya Pradesh went from six to 22.

It is crystal clear the graph of number of death sentences dips amazingly as the cases get referred up. In 2021, high courts confirmed six of the 144 death sentences by sessions courts. The Supreme Court did not confirm a single death sentence in 2021.

But is this any fault of the parents of the victim. Put yourself in their shoes. How does it feel?

No one killed her.

The author is CEO of nnis. Views expressed are personal.

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