The number of death sentences awarded by trial courts in India saw a sharp rise in 2018, according to ‘Death Penalty in India: Annual Statistics Report 2018’, prepared by Project 39A at the National Law University, Delhi. The 162 death sentences by trial courts last year are the highest in a calendar year since 2000 — in 2017, capital punishment was accorded to 108 persons. No death sentences were pronounced in eight states — among them Arunachal Pradesh, Goa, Jammu and Kashmir, Meghalaya, Mizoram, Nagaland, Sikkim, and Tripura.
Last year, the Supreme Court commuted death sentences to life imprisonment in 11 of the 12 cases it heard. It upheld the sentence for three persons convicted in the December 16 Delhi gangrape case.
The number of people on death row in India as of December 2018 stands at 426 — it was 366 for the corresponding month in 2017 and 400 in 2016.
The spike in the number of death sentences could be the result of a legislative intervention last year that extended capital punishment to non-homicide crimes. In August, Parliament amended the Indian Penal Code to provide for death as a possible punishment in cases of rape and gangrape of girls below the age of 12.
Among states that invoked this IPC amendment, Madhya Pradesh did so in the highest number of cases involving child sexual assault, resulting in death sentences to 22 people last year, of whom seven were sentenced in cases concerning sexual assault of girls below 12 years not involving murder. In contrast, only six had been accorded the death penalty by sessions courts in MP in 2017. The MP government has also introduced a rewards scheme for public prosecutors who seek the death penalty.
A points system —100 to 200 points for maximum punishment at lower courts, 500 for a life sentence and 1,000 points for obtaining a death sentence — is now in place and, accordingly, titles like “Best Prosecutor of the Month” and “Pride of Prosecution” are bestowed on those earning more than 2,000 points. Those who clock less than 500 are issued a warning, said the report.
Beyond the numbers, the report lists a number of developments from 2018 that are likely to influence the discourse on the death penalty in the country. Since the Supreme Court upheld the constitutionality of capital punishment in
Bachan Singh (1980), a sitting judge in the apex court called for reconsidering the death penalty. In Chhannu Lal Verma vs State of Chhattisgarh, where the court commuted the death sentence to life, Justice Kurian Joseph, now retired, wrote: “… We are of the view that a time has come where we view the need for death penalty as a punishment, especially its purpose and practice. It is necessary to reexamine the need for death penalty.”
The report also counts the Supreme Court’s judgment in Babasaheb Kamble v State of Maharashtra as “a significant development in the death penalty jurisprudence”. According to the report, the Supreme Court could previously “dismiss the Special Leave Petitions without giving any reasons and not admitting them to be heard as appeals.
Such ‘in limine’ dismissals became constitutionally untenable after the ruling in Mohd Arif v The Registrar, Supreme Court where the Court held that review petitions in death sentence cases will mandatorily be heard in open court. With this requirement, ‘in limine’ dismissals of SLPs were absurd because it left nothing for the court to ‘review’ because there were no reasons. The Supreme Court through its judgment in Kamble in November 2018 finally did away with ‘in limine’ dismissals of SLPs in death penalty cases”.
The SC also recognised the right of death row prisoners for meeting mental health professionals at a reasonable frequency and for reasonable lengths of time (‘Inhuman conditions in 1,382 prisons’). The report argues: “The circumstances of the convicted individual are to be viewed in the context of their entire lives and location in society. It is in this complex undertaking of contextualising an individual that assistance from a mental health professional becomes crucial and can offer significant insights during the sentencing process.”
Anoop Surendranath, director of the Centre on Death Penalty at the National Law University, counts the approach of the SC, especially its scepticism towards the manner in which lower courts have handed out death penalties, as an important development in the debate around capital punishment. The apex court’s approach, he says, is in contrast to the enthusiasm in the government for legislative expansion of capital punishment.
Besides legislating for death in child sex assault cases in wake of national outrage over the rape and murder of a minor girl in Kathua (the IPC amendment), the government earlier this month amended the POCSO Act to introduce death penalty for penetrative aggravated sexual assault on children below the age of 18. The government in August 2018 introduced a Bill providing for the death penalty or life imprisonment for crimes involving piracy at sea. India also voted against the UN General Assembly’s draft resolution proposing a ban on the death penalty.