In most death penalty cases, court invoked ‘collective conscience’ of society: Study

The three states were chosen for the study since they rank high on the list of states awarding capital punishment and a large number of decisions in capital cases were overturned at the appellate level — in the High Courts and Supreme Court.

The Supreme Court’s 1983 ruling in Machhi Singh And Others vs State of Punjab which introduced ‘collective conscience’ into the capital sentencing framework and laid down five categories, where the community would “expect the holders of judicial power to impose death sentence, because collective conscience was sufficiently outraged”.

The study found that “in such cases, the trial courts opined that the crime was heinous enough to shake the collective conscience of the society and, therefore, the harshest punishment available under the law had to be meted out to the offenders”.

Of the 112 cases in which collective conscience was a factor impacting the decisions of courts, absolutely no other mitigating factor was considered in 63 cases.

In 1980, in Bachan Singh vs State of Punjab, the Supreme Court developed a framework for sentences in cases that involved the death sentence while evolving the ‘rarest of rare’, a doctrine that advocated a restrictive approach to the award of capital punishment.

The Bachan Singh case required trial courts to weigh the circumstances of the offence and the offender, while also considering the probability of reformation, and the suitability of the alternative option of life imprisonment.

While Bachan Singh also requires a separate hearing for sentencing after conviction that would look into relevant facts, the Project 39A study found that sentencing on the same day of conviction was rampant — 44 per cent cases had sentencing hearings on the same day as the pronouncement of guilt.

“Same day sentencing has an obvious impact on the nature and quality of arguments that are eventually presented before the court,” the study noted.

Another indicator of the ineffective quality of arguments by defence counsel, as recorded in the judgments, was the lack of individualised arguments in cases involving multiple accused.

Of 52 cases in the three states, where multiple accused were involved, individual mitigating circumstances for each accused was argued only in nine cases.

The study also found that trial courts mainly relied on aggravating circumstances to impose death sentences.

In Madhya Pradesh, in 51 judgments out of a total 82, no mitigating circumstances were considered during sentencing. In Maharashtra, it was true of 41 out of 90, and in Delhi, in 18 out of 43 cases.

Incidentally, in Delhi, of the 80 death sentences handed by trial courts between 2000 and 2013, over 60% later resulted in acquittals or where sentences were commuted by the Delhi High Court.

In Maharashtra, out of approximately 120 sentenced to death by trial courts between 2000 and 2013, more than half the prisoners were acquitted or had sentences had sentences commuted by Bombay High Court.

“At the time of conceptualising the study, the exact statistics were not available for Madhya Pradesh. However, we noticed a trend, especially in cases involving sexual violence, that there had been short trials and quick confirmation proceedings by the High Court,” the authors noted.