death penalty
death penalty

Life or Death: A question of chance in the Supreme Court?

Murali Krishnan

The submissions of amicus curiae Raju Ramachandran in the Nirbhaya case have thrown up some interesting data pertaining to death penalty in rape and murder cases heard by the Supreme Court of India.

Ramachandran’s submissions cover cases of rape and murder heard by the apex court since 1991, wherein the court considered the imposition of death penalty. In all, the apex the court has decided 49 cases of rape and murder in which death penalty was discussed.

Senior Advocate Raju Ramachandran
Senior Advocate Raju Ramachandran

Out of the 49 cases, the court awarded death penalty in 16 cases. In the remaining 33 cases, it awarded imprisonment of various terms, ranging from 18 years to life. Out of the 33 cases of imprisonment 28 cases were of life imprisonment.

In 3 cases, imprisonment for 30 years was awarded and imprisonment for 18 and 35 years were awarded in one case each. Interestingly, out of the 49 cases, the victims were minors in 38 cases, and below the age of 10 in 28 of the cases.

What is striking is that there is no particular trend which is visible in awarding death penalty or life imprisonment. In cases in which the Court has awarded life imprisonment or lesser sentences, it has relied on different mitigating circumstances to arrive at its decision.

In 11 cases, the Court has applied the ‘rarest of rare’ test to award life imprisonment. Another common mitigating circumstance applied by the Court is “possibility of reformation”, which has been applied in 8 cases to award life imprisonment or lesser sentences.

Besides these, the age of the accused and clean antecedents are other mitigating factors taken into by the Court while awarding imprisonment instead of death penalty.

One of the many criticisms levelled against Supreme Court regarding death penalty sentences is the non-uniform application of its own guidelines.

According to noted criminal lawyer Rebecca John,

“I think post Bachan Singh, the Supreme Court itself was guilty of diluting the ratio of Bachan Singh. There was a lot of wavering and going “back and forth” during the course of the next two decades. So in the journey from Bachchan Singh to Yakub Memon, there were many twists and turns.

In Yakub Memon, the mandate of Bachan Singh was clearly not followed. The mandate to take into account the aggravating and mitigating circumstances of the crime and the criminal, were not followed.

As a criminal lawyer, I don’t think uniform application of the law has happened.”

However, a comparison of the data through the time also reveals an interesting side to the story. There has been a decline in the percentage of cases in which the court has awarded death penalty in cases of rape and murder.

From 1991 -2000, the court discussed death penalty in a total of 10 cases of rape and murder. It awarded death penalty in 60% of these cases. The next decade from 2001 to 2010 saw a total of 18 cases being considered by the Court, out of which 6 culminated in death penalty. Thus, there was a drop from 60% to 33.33%.

From 2011 to the present, the Court discussed death penalty in 21 cases, but awarded it only in 4, a further fall from 33% to 19 %.

There is definitive fall in the percentage of rape and murder cases in which death penalty was awarded.

Rebecca John
Rebecca John

Rebecca John also agrees to the same.

“In the last few years, there has been a fair degree of setting aside death penalty than in the earlier years. Death Penalty is more often than not, used as a sentence of last option now.

And the court has been more inclined not to go through with the sentence of death penalty which is a remarkable shift from its earlier stance.”

However, she offers an interesting perspective when she says that “in the more politically charged cases, or in cases wherein there was a strong public opinion, the Supreme Court was less inclined to follow its own mandate and guidelines set out for death penalty.”

“It was easier for the Court it to follow those guidelines in cases which did not invoke strong public opinion. So when it came to Afsal Guru or Yakub Memon, it was pretty obvious which way the Supreme Court would go.”

So while I agree with you that the number of death sentences has progressively lessened over a period of time yet in “unpopular” cases – like that of Yakub Memon or Afsal Guru – the Supreme Court has somehow carried the weight of public sentiments and that has reflected in its judgments.”

Is this decline in death sentences in rape and murder cases an indicator of the increasing acceptance of anti-death penalty jurisprudence amongst the judges of the Supreme Court?

Anti-death penalty movements have gained significant ground in the past few years. Various law schools and NGOs in the country have given impetus to such movements and studies. While abolition of death penalty from the statute book might seem to be a distant dream, such sentiments and studies are finding increasing acceptance amongst judges of the country.

“Yes, the evolution of that jurisprudence has clearly helped the defenders of the accused. They are far more empowered today with jurisprudence on their side than they were a few years ago; And that jurisprudence has developed steadily.

It was often the case that those accused who were given death sentences, were usually people who were very poorly represented in court etc. But with the kind of statistics and jurisprudence available today, like the NLU Delhi Death Penalty Clinic’s report etc., it is easier to take on the challenge of death penalty”.

John also says that the verdict in Nirbhaya case would be a defining moment since the case is one which falls outside the parameter of “terror matrix” but at the same time has a lot of public pressure attached to it.

“I am very keenly watching these proceedings. In cases which fall within the parameter of ‘terror matrix’ it is predictable which way the court will go. However, that is not the case in ‘non-terror cases’. Are they going to continue being weighed down by the weight of public opinion is something which I am waiting to see. I am watching the case like a hawk. Clearly, Nirbhaya case would be a defining moment.”

Whether the judges of the Constitutional courts will augment the trend of saying ‘no’ to death penalty, a trend which is still at a nascent stage, remains to be seen.

(Lead Image taken from here)

Read the data submitted by Raju Ramachandran below.

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