[Death Penalty] Sentencing Taken As A Formality; Trial Courts Need Training : Sr Adv Rebecca John

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 o"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 [1983]), 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 ...

[Death Penalty] Sentencing Taken As A Formality; Trial Courts Need Training : Sr Adv Rebecca John

Radhika Roy

"Sentencing in trial courts is done in a super-fast manner based on an incorrect understanding of SC judgments"

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