#TheHindu #Editorial Trial and error

The Supreme Court, in its 1980 Bachan Singh vs State of Punjab ruling, laid down the “rarest of the rare” principle in handing out the death penalty. However, the high frequency of the award of capital punishment by trial courts across the country should give pause for thought. New research findings from the Centre on the Death Penalty at the National Law University in Delhi show that trial courts handed down 1,800 death sentences over the last year. Trial courts have been handing out death sentences at the rate of ten a month for the last 15 years. Much of the debate around the death penalty in India centres on Supreme Court rulings and observations, and with good reason. Last year, while handing down its Shatrughan Chauhan vs Union of India ruling, the Supreme Court spelt out clear guidelines on the legal rights of prisoners on death row. Higher courts have the opportunity to rectify flaws in lower court judgments; indeed, fewer than 5 per cent of the 1,800 death sentences were confirmed by the Supreme Court, and a third resulted in acquittal. However, the new numbers point to the fact that too little attention is being paid to the wanton misuse of the death penalty in India’s lower courts, resulting in decades spent on death row while there is only a slim probability of it being confirmed.

Why trial courts are handing out death sentences at such a fast pace needs to be studied. These courts are more proximate to crimes than higher courts in terms of occurrence and distance, and their working is poorly scrutinised by the media. And the data are rarely supervised by the High Courts under whose jurisdiction they come. In addition, a fair amount of confusion prevails over the circumstances in which the death penalty should be given, on account of lack of clarity on the part of higher courts. The principle of the “rarest of the rare” seems subjective considering that among the 385 prisoners now on death row in India, the largest proportion is there for murder, and 25 per cent for committing a single murder. Nor can we automatically assume that the higher courts are confirming the deserving cases. Fourteen eminent former judges wrote to President Pranab Mukherjee about the death sentence having been wrongly given in 13 cases: two of these convicts had already been executed. These were cases in which not just the trial courts but the High Courts and the Supreme Court too had seemingly erred: every level of the system had then failed them. The moral imperative apart, the inconsistent outcomes from the judicial system on this question should be reason enough for India to urgently revoke its position on the death penalty.

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