2021 Sees Highest Death Row Population Since 2004; No Death Sentence Confirmation By Supreme Court : Project 39A NLU-D Report

For documentation of the data published in the report, reliance is placed on online English and vernacular news portals to track reports of the imposition of the death penalty by sessions courts. This is then verified using information from district court and High Court websites. This method has been consistently employed for all six editions of the report published since 2016.

Nearly 100% Increase in Death Sentences by Session Courts

As the sessions courts returned to their normal functioning in 2021, they imposed nearly twice as many death sentences (144) as they did in the first year of the pandemic in 2020 (78). This was also more than the 104 death sentences imposed in 2019, before the pandemic.

Sexual offences continue to dominate capital sentencing

While murder simpliciter accounted for a majority of the death sentences imposed by trial courts in 2021 at 62 out of 144 death sentences, these actually accounted for 34 different cases. In comparison, 48 death sentences in a significantly larger number of cases (45) were imposed for crimes involving sexual offences. Crimes involving sexual offences therefore, accounted for 54.21% of all cases that resulted in a death sentence in 2021, continuing the preponderance of sexual offences in death penalty sentencing, a trend that was observed in 2019 (61.62%) and 2020 (59.67%) as well.

Appellate Courts

Unlike trial courts, appellate courts decided fewer matters in comparison to pre-pandemic years. High Courts decided 39 matters in 2021 and 31 matters in 2020 compared to 76 in 2019. The Supreme Court decided 6 matters in comparison to 28 in 2019. Notably, however, with the resumption of hybrid hearings in September 2021, the Chief Justice of India (Justice N.V. Ramana) seems to have prioritised death sentence matters. The Court listed 40 death sentence matters to be heard on priority before 4 benches. Between September-December 2021, 3 benches of the Supreme Court heard arguments in 14 cases involving 17 prisoners and delivered judgments in 5 of those.

Developments in the Supreme Court: No death sentence confirmations and shift in approach to death penalty sentencing

For the first time in the 6 years since Project 39A started publishing the Annual Statistics Reports, the Supreme Court did not confirm a single death sentence in 2021.

In addition to the prioritisation in the listing of death penalty matters, 2021 marked a unique and important shift in the approach of the Supreme Court towards capital sentencing.

The benches in Court No. 5, presided by Justice L. Nageswara Rao, relied on affidavits from family and community members of 4 prisoners in commuting their sentences. While doing so, they expressed concern about the non-compliance with the death penalty framework by courts below, particularly the predominant focus on crime-based circumstances over the circumstances of the criminal that are required to be considered in mitigation. The bench also observed that an effective sentencing hearing would require the State to present evidence to establish the improbability of reformation and rehabilitation of the accused, and the Court to elicit relevant factors bearing on the question of reformation. In a different approach, the benches in Court No. 2, presided by Justice U.U. Lalit, required production of sentencing materials like reports prepared by probation officers, jail authorities and mental health experts, in all death sentence cases before them.

Legislative Developments

While the Supreme Court's approach to death penalty adjudication in 2021 demonstrates an increasing caution in the use of capital punishment, the legislative developments of 2021 revealed a different story altogether. In 2021, Punjab and Madhya Pradesh, introduced the death penalty for causing deaths by spurious liquor, while Maharashtra did so for 'heinous' offences of rape and gangrape. The Women & Child Development Ministry also introduced a bill proposing the capital punishment for repeat aggravated trafficking offences involving children and women.

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