Project 39A has released a report titled DeathPenalty Sentencing in Trial Courts: Delhi, Madhya Pradesh and Maharashtra(2000-2015) containing findings from a study of all capital cases decided by trial courts of Delhi, Madhya Pradesh and Maharashtra between 2000 and 2015. Analysing 215 judgments (43 from Delhi, 82 from Madhya Pradesh, and 90 from Maharashtra), the report exposes the hollowness of sentencing hearings that are conducted. Combining empirical analysis and doctrinal critique, substantial parts of the report are also dedicated to demonstrating the normative and procedural gaps in death penalty sentencing framework that have been the legacy of the Bachan Singh judgment and the numerous inconsistencies in Supreme Court judgments in the 40 years thereafter.
Contrary to the Constitution Bench decision in Bachan Singh (1980) which emphasised the relevance of mitigating factors in capital sentencing, trial courts heavily relied only on aggravating circumstances of the crime to decide the outcome. In 51% of the 215 trial court judgments, mitigating circumstances were not considered. Further, in complete defiance of the spirit of individualised justice envisaged in s.235(2) CrPC, 44% cases involved sentencing on the same day as conviction. In addition, the trials courts did not consider the default punishment of life imprisonment in 73% cases while deciding between life imprisonment and the death sentence. It would, however, be incorrect to attribute complete blame for a broken state of capital sentencing in trial courts exclusively to these courts themselves.
The report also comments on the challenge in collating trial court judgments and records. Observing the lack of effective implementation of digitisation strategies, the report states that a large proportion of judgments had to be physically collected from records rooms across different High Court benches after due authorisation.
Same day sentencing
Section 235(2) of the CrPC provides for a bifurcated trial, where the conviction and sentencing are meant to be separate proceedings. In asking for and imposing the death sentence, Bachan Singh provides the framework for conducting sentencing hearings. However, the report notes that those requirements are barely ever met and a very significant indicator of that breakdown is the practice of same day sentencing. The abysmal absence of consideration of sentencing factors discussed below is worsened by the practice of same day sentencing. Even when sentencing hearings are not conducted on the same day, it was observed that barely enough time is given to prepare for meaningful sentencing hearings. The report finds that in 44% of the cases analysed across the three states, sentencing hearings took place on the same day as conviction. The crisis was most acute in Madhya Pradesh where same-day sentencing was observed in 76.9% of the cases. Maharashtra had sentencing on the same day in 34.4% of the cases, but 57% of the cases had sentencing on the same day or with just a 24-hour gap. Delhi fared better relatively with 53.4% of sentencing hearings taking place at least one week after the conviction.
Non-consideration of mitigating factors
The report documents significant concerns about the quality of sentencing hearings in the trial courts. The requirements of the law as laid down by a 5-judge bench of the Supreme Court in Bachan Singh and its actual practice in the trial court seem to be at complete variance. The confusion and severe lack of clarity of the legal position as expressed through various Supreme Court judgments over the last 40 years seem to have had a devastating impact on sentencing hearings in the trial courts.
Trial courts across the three states used a crime-centric approach to impose the death penalty, and dismissed mitigating circumstances without any meaningful consideration. Resultantly only aggravating factors were used to impose the death penalty, most of which centrered around brutality of the crime. For instance, in one of the cases from Madhya Pradesh, the trial court observed: "Can any mitigating circumstance be a reason for such a beastly act? Can such a person gain mercy and sympathy from society? Can such a person have repentance for his deeds and reform for the good? Should the court allow such a person to live a grand life after serving the punishment?"
Although Bachan Singh required sentencing courts to give a 'liberal and expansive' interpretation to mitigating factors, trial courts across the three states imposed the death penalty without considering, and in some cases, even mentioning any mitigating circumstances. The Report draws a distinction between consideration and mention of mitigating factors, using the latter for those cases where courts did not mention even a single mitigating factor while imposing the death penalty, let alone considering and dismissing on the basis of brutality of the crime.
While creating a sentencing framework for courts deciding between life imprisonment and the death penalty, Bachan Singh had placed no importance on the role of public opinion in deciding the outcome. Three years later, a 3-judge bench in Machhi Singh v. State of Punjab (1983) made public opinion relevant to capital sentencing by stating that the death penalty might be deserved in cases where the conscience of the society is so shocked as to warrant the imposition of the death penalty. Subsequently, satisfying the collective conscience and society's cry for justice have been used frequently by the Supreme Court to impose the death penalty. Despite frequent usage, this approach has been critiqued by the Supreme Court itself in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, for want of clarity around the meaning of 'public conscience' and the counter-majoritarian role of courts.
The Report finds that trial courts across Delhi, Madhya Pradesh and Maharashtra have frequently invoked collective conscience, to the complete exclusion of mitigating factors. 31 cases in Delhi, 35 in Madhya Pradesh and 46 in Maharashtra used this as a relevant factor in deciding appropriate punishment. Of these total 112 cases, in 63 cases the courts considered absolutely no mitigating factors.
As per the legislative mandate under s.354(3) CrPC, life imprisonment is the default punishment while death sentence can only be imposed if 'special reasons' exist. In line with this directive, Bachan Singh laid down a sentencing framework that requires courts to weigh aggravating and mitigating circumstances of both the crime and the accused and ensure that the option of life imprisonment is unquestionably foreclosed. Far from complying with this high standard to rule out the option of life imprisonment, trials courts across Maharashtra, Madhya Pradesh and Delhi barely even considered the question of life imprisonment. In 35 cases (of 43) from Delhi, 60 cases (of 82) from Madhya Pradesh and 63 cases (of 90) from Maharashtra, courts went on to impose death sentences without discussing the alternative of life imprisonment. Even in these small numbers of cases across the three states where life imprisonment was discussed, it was dismissed on the basis of brutality of the crime in all (100%) cases. These numbers point to a complete breakdown of the sentencing framework developed in Bachan Singh.
Reformation has been identified as a crucial mitigating factor in Bachan Singh where the Supreme Court went a step ahead to impose a burden on the prosecution to show that the accused is beyond the probability of reformation. However, findings from trial court judgments across the three states show that the probability of reformation is hardly ever considered and, even when it is, it is incorrectly tied to the brutality of the crime. In Maharashtra, out of a total of 90 cases, in 52 cases the trial courts sentenced the accused persons to death without considering the probability of reformation. Among 82 trial court judgments in Madhya Pradesh, only 14 discussed reformation, and 10 out of 43 did so among the judgments from Delhi. In 14 cases from Madhya Pradesh where probability of reformation was considered during sentencing, it was dismissed on the basis of crime in 9 cases. Similarly, in Delhi, in 4 of the 10 cases where it was considered, the circumstances of the crime resulted in its dismissal. 38 of the 90 cases from Maharashtra that considered the probability of reformation while sentencing, in 27 cases it was dismissed on the basis of brutality.
Comparing the data in this Report from 2000-2015 with Project 39A's Annual Death Penalty Statistics for 2016-19 shows interesting patterns about increased imposition of the death penalty for murders invovling sexual violence.
For the period 2000-15, the Report finds that 49% of the death sentencess for murder simpliciter, while 28% had the death penalty imposed for murder involving sexual ofences. In Madhya Pradesh, however, sexual violence comprised a higher proportion of 36% of the total death sentences, as compared to 25% in Maharashtra and 23% in Delhi.
However, Project 39A's data since 2016 reveals that the proportion of death sentences imposed for sexual violence have risen significantly. Between 2016- 2019, out of a total number of 44 death sentences imposed in Madhya Pradesh, 34 (77.2%) involved sexual offences and in Maharashtra, this was true for 17 out of 34 (50%) sentences.
The full report can be read here.