An opinion study on the criminal justice system and death penalty with 60 former judges of the Supreme Court has revealed ‘wide spread’ prevalence of torture, fabrication of evidence, abysmal quality of legal aid and wrongful conviction.
The report – ‘Matters of Judgement’ – published by the Centre on the Death Penalty at National Law University, Delhi – that attempts to understand “judicial thought and adjudicatory processes” that govern the administration of the death penalty in India – states that 38 judges acknowledged that “torture was rampant” in India’s criminal justice system.
The report delves into three issues : investigative and trial processes, sentencing in death penalty cases and judicial attitudes towards the death penalty.
On investigative and trial processes, the study states that 38 judges (out of 39 who responded to this question) acknowledged that “torture was rampant”, while one said that it does not happen at all ; 12 judges justified the use of torture citing reasons such as an overburdened police force ; and 17 of them said that torture is unacceptable and does not work. “Torture is the worst human rights violation” Former Chief Justice of India who served as an appellate judge for 26 years is quoted in the study.
On wrongful convictions, 43 out of the 49 who responded this question, the study states, acknowledged the possibility of wrongful convictions within the criminal justice system of India and 6 judges denied such a possibility ; six judges denied such a possibility ; 14 judges felt that wrongful convictions were a direct result of improper investigation ; and 13 judges said that susceptibility of the criminal justice system to power, money and corruption was the main reason behind wrongful convictions.
The study states that when asked about reasons they saw for abolition and retention of the death penalty in India – in response, 29 former judges identified abolitionist justifications ; 39 identified retentionist justifications ; 14 retentionist judges took the position that there was no reason whatsoever to consider abolition in India and 3 abolitionist judge.
“Death penalty has to be retained because the law is still there. It is up to the Parliament to take it away but according to me it would be too dangerous to abolish the death penalty as I say there are many kinds of criminals, some of them are blood thirsty and cannot be reformed. If death penalty is abolished, they will be a menace to the society,” a judge who served in the Supreme Court for 6 years, is quoted in the study.
On fabrication of evidence, the study states that 15 judges spoke about their experiences at the bar and the bench and planting of evidence in several cases. “This included cases where the murder weapon was proved to be planted as it did not match the injury, and where clothing was recovered at the behest of the accused who did not understand the language in which the seizure memo was prepared,” the study states.
Shockingly, according to the study, not a single found the legal aid system satisfactory. The study states 14 judges acknowledged that poor legal representation disproportionately impacts the poor.
“If you’re asking me whether I am concerned about unmerited acquittals? I’m not worried about them. I’m worried about unmerited convictions because the criminal jurisprudence is designed only to prevent an innocent being convicted. A criminal jurisprudence can afford to have a guilty person’s escape but not to have an innocent person proven guilty.” a judge who decided nearly 180 murder cases in appellate courts is quoted in the report.
On sentencing in death penalty cases, the report states that “some judges” felt that ‘rape and murder of a minor’ would fall within the ‘category’ of rarest of rare ; Other judges in this category, felt the requirements of the “rarest of rare doctrine would be satisfied on the existence of certain aggravating circumstances such as, the number or nature of the victims”. “It was evident that there existed no uniform understanding of the requirements of the ‘rarest of rare’ doctrine and this gave rise to serious concerns of judge-centric sentencing,” the report said.
On judicial discretion in sentencing, the report said, that 31 judges were of the view that the discretion available was significantly guided by the judge’s background. According to the study, different factors such as “class, socio-cultural background, and religious beliefs were flagged as factors influencing the exercise of judicial discretion”.