Project 39A at National Law University, Delhi, held a webinar on the topic – 40 years of Death Penalty Sentencing; The Uncertain Legacy of Bachan Singh. Senior Advocate Rebecca John was in conversation with Anup Surendranath, Executive Director of Project 39A.
Surendranath commenced the discussion by announcing that there was a two-fold agenda to the webinar. Firstly, there would be an examination of a report whichhad been recently released by Project 39A titled, "Death Penalty Sentencing in Trial Courts: Delhi, Madhya Pradesh and Maharashtra (2000-2015)". Secondly, there would a Q&A session with Rebecca John regarding the same. JOHN'S COMMENTS ON THE REPORT In a 2016 report by the organization, 372 death row prisoners and their families had been interviewed, and the trajectory of 1500 death sentences was observed between 2000-2015 awarded by the trial courts. It was found that only 4.9% of the death sentences awarded by the trial courts was eventually confirmed by the Appellate Courts. In another report wherein 60 former Supreme Court judges had been interviewed, the consensus was the justice system was broken; evidence was often fabricated and the accused suffered from extremely poor representation. All of this led to wrongful convictions, yet the judges favoured the awarding of the death penalty. John stated that present report is important as a trial court is where it all starts. "Sentencing in trial courts is done in a super-fast manner based on an incorrect understanding of the judgements of the Supreme Court and this becomes the basis of errors that take place in superior courts." John noted the multiple aspects highlighted in the Report – same day sentencing, collective conscience, how certain factors were mitigating in some cases, but aggravating in others. In doing so, John mentioned an example of how young age was not a mitigating factor as the judges stated that age cannot justify the commission of such a beastly. Per contra, regarding old age, the judges stated that there is no scope for reformation at such an age. The Report also focuses on the lack of understanding of law, not just on behalf of the courts, but also on behalf of the law practitioners. John states that the best case law we have on the matter is Bachan Singh v. State of Punjab [AIR 1980 SC 898]. However, the even the Apex Court is guilty of deviating from it. "Three years after Bachan Singh, you had Machhi Singh (v. State of Punjab ), which did a 360 degree turn. And it is Machhi Singh which is found to be the appealing judgement and not Bachan Singh, despite Bachan Singh being rendered by a Constitution Bench". John also referred to the case of Rajbir v. State of Rajasthan (1997) which only focused on crime and not on any other factors. 13 years later, in 2009, there was the Santosh Bariyar v. State of Maharashtra case wherein at least 6 decisions of the Apex Court, including Rajbir, in which death penalty had been awarded were declared per incuriam. John further stated that there was a tendency to latch onto the concept of "rarest of the rare" as prescribed by Bachan Singh. However, she notes that the important part is to focus on whether the option of life has been completely foreclosed or not. "I was reminded of this judgment by J. Krishna Iyer rendered in 1977. He said that questions like bail or jail in the Pre-trial stage belongs to the blurred space of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. I feel this paragraph can be used even with respect to death sentences because there are no guidelines, no good practices which courts should have laid down which should be compulsory for the sentencing process, and that is really the framework of this Report." John concluded her comments by stating that there was no institutional coherence, and due to this lack of institutional coherence, there was a mess which had been created where even the Supreme Court was contradicting itself. ASPECT OF CRIMINAL LAW JURISPRUDENCE On being asked by Surendranath regarding the state of criminal law jurisprudence in the country and whether there was lack of clarity and quality in a broader sense as well, John stated that confusion was consistent across the board as there was no standard sentencing policy. "The problem arises because in many penal sections, there are a wide range of punishments that a judge can pick from. What will a trial judge base his sentencing on? Look at Sections 124A or 195A of IPC. There's imprisonment or with fine or both. I have a whole list where very broad frameworks are present. It's the discretion of the Bench! There is really no reason why one may have gotten away with lesser sentence or may have gotten some strict sentence, and that is really a problem with the system". IMPACT ON TRIAL COURT JUDGES Surendranath then asked John, "Obviously there is the aspect of lack of legislative guidance within the statute books as well. And what happens is that there is further judicial confusion that is introduced into the lack of legislative clarity. How does that impact trial court judges?" John responded that she goes into Court with the mindset that the judges do not know the law. However, the problem arises with the fact that majority of lawyers are also unaware of the law. "Sentencings are taken as a formality. No effort is made to convey to the judge points that may lower the sentence and you just hope for the best. There is a need to bring in more institutional coherence into this whole exercise. "There is one example we have in Delhi HC; Bharat Kumar's case which was done by J. Muralidhar, where they asked for the Probationary Officer's report and came to the conclusion that the man could be reformed. I believe we should do compulsory evidentiary hearings; I believe it is not sufficient to just argue these points".
John wondered why more had not been done after J. Muralidhar had successfully opened the door for calling for evidence at the Appellate level. She felt that obvious errors in trial court went either unnoticed or were not dealt by the Appellate courts due to procedural lacunae. "Since we stick to the stand that there shall be no introduction of evidence at the Appellate Court or Super Appellate Court, there is no scope for correction. This is the story of death penalty cases in this country."
IMPACT OF QUALITY OF REPRESENTATION IN TRIAL COURTS ON APPELLATE COURT HEARINGS Surendranath raised the issue surrounding the mistakes that are committed by lawyers during trial court proceedings due to lack of awareness of legal procedures or precedents. He enquired from John the impact which errors committed during trial proceedings had on representation in the Appellate Courts. John began her answer by stating that the proceedings at the trial court level were the toughest where the foundation or the structure of case must be laid wherein lawyers need to be equipped with various aspects of cross-examination and evidence (such as DNA evidence). "Most lawyers are not equipped with this. Lawyers in bigger cities are still learning a lot of this stuff. This whole DNA thing sounds very, very complex. We have just about gotten to cross-examining post-mortem doctors. All the technical stuff which is thrown in DNA repots goes unchallenged." John further stated that even the nuts and bolts of litigation, such as questioning a witness, are done poorly. There is also no attempt made to distinguish multiple accused persons or isolate the role of one accused. Therefore, it is important to set up a stronger foundation as largely poor people end up becoming the victims of poor representation. DELHI GANG RAPE CASE (DECEMBER 2016) Surendranath asked John about her involvement in the court proceedings of Delhi gang rape case and public's perception of the same. He asked about the difficult of lawyers in representing people in such unpopular cases, where outcome is based on facts and not evidence. John, Advocate Vrinda Grover and Senior Advocate Anjana Prakash were a part of the case. John began with how everything had become tied up with political events: "At the time when I was asked to appear in the case, we were asking for very basic things. A mercy petition was filed and the case of "Shatrughan Chouhan" said that some concession was to be given for delay. There was fair amount of backlash from the High Court. I've thought about this subsequently, but I feel sometimes courts don't like such cases being represented so robustly at whichever stage. I could sense from the body language that they were not quite approving that I was appearing in the matter. But the relief that we sought was a part of the Supreme Court judgement. It was a given that you had to agree. When we went to the SC for the post-mercy challenge, what amazed me was also the fact that that law was unknown to the Supreme Court."
John also raised the infirmities in the grasp of law by the Apex Court: "First question asked was how could we interfere with decision of President under Article 72. But, both Shatrughan Chouhan and Kehar Singh say that President has the right to review the entire case material and come to a decision which is separate from the courts". John further touched upon the fact the following:
"It was sad because that rich jurisprudence got lost. My takeaway is that: 1. You are unpopular when you represent such cases. You're unpopular in the Bar where a lot of people come ask you why you are doing this case. You are not very popular with the Bench. 2. The Bench is tragically unfamiliar with the jurisprudence. You have to tell them that there is scope of judicial review." On her personal journey during the case, John said: "I think it was more difficult for Grover who was dealing with all the forums. It was emotionally very challenging. The reason we did it was because we were trying to establish that there were rights that even a death row convict has till the last breath of his life. All the protections under Article 21 are available to convict. It doesn't matter if he is the worst criminal on earth. We were not challenging the merits of the case, but post-mercy there is a journey and we were trying to uphold that".
John further commended the trial court judge as he did an amazing job in scrupulously following the law and giving a fair chance to everyone, even with the "nonsense happening in front of him". Another positive was the Sunday hearing wherein Supreme Court judges agreeing to the fact that an isolated hanging could not take place and that all remedies must be exhausted – "It was a very compassionate judgement. Ultimately it is a space where you have to be humane". John also stated that there was a change in perspective regarding appreciation of the crimes: "We've all changed in the way we look at these cases. In Kehar Singh (Indira Gandhi assassination case) we had the two pillars of the Bar, Ram Jethmalani and Shanti Bhushan appearing in it and I don't think there was this much opposition. Now we are looking for add-on offences, looking for increased sentences, more crimes punishable with death…" ADDITIONAL COMMENTS On the aspect of Supreme Court's power of reviewing lower court orders, John evoked an incident regarding the Ankush Maruti Shinde case, where the Supreme Court recognised all the errors that had been made and went about reassessing the errors, and came to conclusion that the men were innocent and then awarded them compensation for their 15-16 years of wrongful incarceration. On the need for consistency and coherence in trial court orders, John said: "Trial courts need direction and they need training. Someone needs to put practice directions in place. Obviously a superior court cannot tell the trial courts how to decide a case. But, how to view mitigating circumstances, how to view aggravating circumstances, get out of the 'rarest of the rare', look at reformation and then come to the conclusion that the question of life has been unquestionably foreclosed. I think the time has come for these directions".
John also commented on the routineness of sentencing which emerges when death sentencing is commuted to life without remission. "I find this very problematic and recently judicial officers have been resorting to it. It's not a this or that situation. Both need to be challenged. Life without remission is not a substitution to death penalty, how much ever we value life". On future of death penalty litigation, John stated that the reformation needs to start at the point of original jurisdiction, where the mistakes are made: "Trial is very complicated business. People tend to look at trial court lawyers as if they haven't made it in life. But, they're an important part of the hierarchy. That is where the foundation is made. If the structure is in place, you can fight well in Appellate". In an answer to a question regarding cognizance by higher courts of poor representation, John stated: "Sending the case back would mean the starting of the process all over again. But, there are has been an instance where the Delhi High Court allowed for recording of additional evidence. The Courts should be troubled when there is poor representation. They should either warn the lawyer or ask the litigant if they want a better lawyer. We need to have a discussion on what constitutes poor representation". The webinar ended with John condemning the Centre's challenge to the guidelines put forward in the case of Shatrughan Chouhan by claiming that the same should be made victim-centric. "There needs to be a proportionality of response; Criminal Procedure is essentially giving procedural rights to an accused and those must be upheld; Article 21 rights have to be upheld; the law laid down by the Supreme Court has to be upheld; you're taking a human being's life."