Torture is “rampant” in the criminal justice system and the legal aid system is unsatisfactory, 60 former Supreme Court judges have revealed according to a study that attempts to understand “judicial thought and adjudicatory processes” that govern the administration of death penalty in India. The report, ‘Matters of Judgment’ — published by the Centre on the Death Penalty at National Law University, Delhi — delves into three issues: investigative and trial processes, sentencing in death penalty cases and judicial attitudes towards 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” in India’s criminal justice system, while one said that it does not happen at all. Twelve 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,” a former Chief Justice of India who served as an appellate judge for 26 years is quoted in the study as saying.
On wrongful convictions, 43 out of the 49 respondents acknowledged the possibility and six judges denied it. Fourteen judges felt that wrongful convictions were a direct result of improper investigation; while 13 said that susceptibility of the criminal justice system to power, money and corruption was the main reason behind wrongful convictions.
The study says that when asked about abolition/retention of the death penalty in India, 29 former judges identified abolitionist justifications, 39 identified retentionist justifications, 14 retentionist judges took the position that there was no reason to consider abolition in India.
“Death penalty has to be retained because the law is still there. It is up to 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 bloodthirsty and cannot be reformed,” a judge was quoted as saying. According to the study, not a single judge found the legal aid system satisfactory. It states that 14 judges acknowledged that poor legal representation disproportionately impacts the poor.
“I’m worried about unmerited convictions… A criminal jurisprudence can afford to have a guilty person escape but not have an innocent person proven guilty,” a judge is quoted in the report. On sentencing in death penalty cases, the report says that “some judges” felt that “rape and murder of a minor” would fall in the “category” of the rarest of rare, others 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”.
The report says, “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.”