Judges, especially those from the Supreme Court, have an aura of infallibility around them. They are expected to be objective enforcers of the spirit of the law, keeping aside their prejudices. Ideally, they are to be guided by the law alone. But there are areas in criminal jurisprudence where objectivity slips away and discretion takes over. This can have serious implications, especially if the matter involves the question of life and death.

A fascinating new study undertaken by the Centre for Death Penalty and published by the National Law University, Delhi, brings out the many contradictions that plague the process of awarding the death penalty in India. As the debate on whether capital punishment should be abolished rages on, the study, which involved interviews with 60 former judges of the Supreme Court, has exposed serious flaws in the system and presents a solid argument in favour of getting rid of the death sentence.

Many of the judges interviewed agreed to the fact that the criminal justice system is broken. That the police resort to all sorts of illegal means to ensure a conviction – they torture the accused, plant evidence and abuse laid down procedures. A weak legal aid infrastructure means that the accused, especially those from weaker sections of society, have no meaningful help to challenge these abuses.

More disturbing, however, is the undermining of guidelines the Supreme Court put together in determining a fit case for death penalty. This is often referred to as the “rarest of rare” doctrine. Responses from the judges in the study suggest there was hardly any consistency in how they determined if the case was among the “rarest of rare”, with socio-economic background, individual predilections and how the judges as individuals perceive the brutality of the crime often determining the end sentence. Worse, despite the Supreme Court itself having rejected public opinion as a guiding principle in awarding capital punishment, several judges pointed to the effect the crime committed on the public psyche as an important factor in sending the accused person to the gallows.

The picture the study paints is this: despite attempts to regulate the award of death sentences, arbitrariness in determination is rampant. This leads to the next obvious question: if discretion drives decision-making, has the “rarest of rare doctrine” failed?

The study

The study, conducted over the last 18 months, interviewed 60 former judges of the Supreme Court. In India, any death penalty imposed by the trial court has to be confirmed by the High Court. The convict can then approach the Supreme Court in appeal. The decision of the apex court is final, keeping aside the Constitutional power of the President and Governors to commute the sentence or pardon the convict.

The interviews are a fascinating window into the workings of the judges’ minds when they deal with cases of capital punishment. The first part of the study involved eliciting the views of the judges about the current state of the criminal justice system.

A criminal case typically involves three stages: filing of the case and investigation, judicial trial, and sentencing, which is essentially the awarding of punishment for the crime committed.

The first stage depends heavily on the quality of the investigation agencies and the law that guides the process. The judges’ responses clearly show that the police rampantly abuse procedures established by law to successfully prosecute those it believes have committed that particular crime.

In the study, 38 of the 39 judges who discussed the use of torture in investigations believed that it was rampant. Only one judge, a former chief justice of India, said torture did not happen.

Twelve judges, in some way, justified torture. Of these, five said that the police resorted to torture because investigation agencies work under strenuous conditions, without being given adequate time and independence to do their work. Seventeen judges believed that torture undermined the criminal justice system.

Questions were also posed on the misuse of Section 27 of the Evidence Act. This provision allows the admission of a statement the accused person made to the police if such a statement led to a fact or evidence. Across the country, the police are known to plant evidence to fix accused persons. There have been many instances where signatures of the accused have been taken on blank sheets of paper and later filled up with concocted stories, which show that the statement led to the recovery of evidence such as a murder weapon. Thirty-eight judges were of the view that investigating agencies abuse this provision. One judge said he was not sure if there were any genuine cases under the provision.

These responses clearly show how broken the investigation apparatus is. It is startling that the same flawed investigation, which abuses procedures and uses brutal methods like torture, is relied upon to confirm a death sentence.

Neetika Vishwanath, who was part of the study, said while there was widespread acknowledgement of the problems in the investigation system, this did not have much effect on the final sentencing.

“Somehow, when the judges spoke about death penalty, problems with the system were not concerns,” she said.

There was also an almost unanimous opinion that legal aid in India was substandard. The quality of legal representation facilitated through legal aid networks was mostly unsatisfactory, these judges pointed out. Some of them had headed the legal services authority in their respective states.

This means that a combination of illegal investigation techniques and poor legal representation is affecting the system – a fatal flaw especially for those from poorer sections of society who do not have the power to challenge the might of the prosecuting state effectively.

Forty-three judges acknowledged the existence of wrongful convictions in India. This was attributed to improper investigation and substandard legal representation. Some judges said the justice system was susceptible to money, power and political influence.

Rarest of rare doctrine

But perhaps the most disturbing part of the report are the views of the judges on the “rarest of rare” doctrine – the very foundation on which capital punishment is determined in India.

The doctrine was developed by the Supreme Court in the 1980 Bachan Singh vs State of Punjab case to restrict the number of death penalties. The court put in place guidelines for determining whether a particular criminal act deserved capital punishment.

The court awarding the sentence is expected to analyse aggravating and mitigating circumstances, balance them, preferably in a tabulated form, and then make the final decision. The judges have to be sure that the possibility of a life sentence is completely foreclosed.

There are several mitigating circumstances. The socio-economic background of the convict, age and possibility of reformation are some mitigating factors, according to the Supreme Court.

There was also the question of predetermination in the crime committed.

However, the responses from many of the judges in the study showed that the brutality of the crime was almost a determining factor in awarding the death sentence. Rarest, in that sense, has been construed as the rare nature of the crime itself.

Thirteen of the 22 judges who provided detailed responses on this subject recognised that the “rarest of rare” doctrine “was subjective to such an extent that it has no real standard at all”. This meant that it was applied differently by different judges.

For example, some judges felt the doctrine was too “offender-centric” and did not focus sufficiently on the victims and their families. Crime against women, minors, persons with mental instability and national leaders were considered some of the aggravating factors. Some forms of crime like terrorism received special attention.

Quite stunningly, at least six judges said the very concept of “mitigating factors” was irrelevant, something that runs contradictory to the Bacchan Singh guidelines. Mitigation was seen as an excuse for crime. “Circumstances of the criminal can never be an ‘excuse’ for the crime committed, and that there was no real reason to explore such circumstances,” the judges said. One judge said that trying to determine if a criminal would reform was like “astrology”.

There was also a recognition that discretion played a key role in whether capital penalty was awarded or not. This discretion was guided by the judges’ class, cultural and religious background, though the judges were cautious in terming this discretion as arbitrariness.

Further, a sizeable number of judges said public opinion mattered. A crime became graver depending on the effect it had on the collective conscience. This again is in direct violation of the 1980 guidelines, which exhorted courts to neglect public opinion and go by the law. There was an acknowledgment that media and public pressure played a part in sentencing.

The judges had heard 208 death penalty cases between them in the Supreme Court and confirmed 92 death sentences in 63 cases.