Study explores drivers of death terms

CAPITAL PUNISHMENT

THE MOST GLARING ASPECT HIGHLIGHTED WAS REGARDING THE NON-CONSIDERATION OF MITIGATING FACTORS WHILE SENTENCING

The shock and impact of a crime on the collective conscience of society was a major reason cited by trial courts in Delhi while imposing death sentence on convicts, according to a report by research organization Project 39A of National Law University, Delhi .

The study also revealed blatant non-compliance by trial courts with the sentencing framework laid down by Supreme Court in its 1980 judgment in Bachan Singh v. State of Punjab, where a Constitution bench of the apex court was called upon to decide constitutional validity of the capital punishment.

The report titled ‘Death Penalty Sentencing in Trial Courts’, which will be published on May 15, analysed 215 judgments from 3 states, 43 from Delhi, 90 from Maharashtra and 82 from Madhya Pradesh, in which trial courts gave death sentence between 2000 and 2015. Out of the 43 cases in Delhi in which death sentence was handed down between 2000 and 2015, trial courts invoked impact of crime on collective conscience in 31 cases (72%) as grounds.

In MP, the said ground was used in 43% cases (35 out of 82) while in Maharashtra the figure stood at 51% (46 of 90 cases).

Collective conscience of society as a ground to justify death penalty was first used by the SC in the 1983 judgment of Machhi Singh v. State of Punjab. In that case, court held that when “collective conscience of society is shocked, it will expect holders of judicial power to inflict death penalty”. It was, however, most famously used by SC in its 2005 judgment in Parliament attack case in which it awarded capital punishment to convict, Afzal Guru. Collective conscience found its most recent endorsement in the 2017 judgment of SC in Dec 2012 Delhi gang rape case of Mukesh v. State of NCT of Delhi.

But what is collective conscience of society?

“It is an amorphous term. It has become a catch phrase in Delhi. Nobody really understands what it means. It is part of the mindlessness of death sentencing. It is not possible to judicially determine what it means”, said senior counsel Rebecca John.

The most glaring aspect highlighted by Project 39A’s report was regarding the non-consideration of mitigating factors while sentencing accused.

“This study shows that the death penalty sentencing framework has completely collapsed. The utter inconsistency, confusion and arbitrariness in the Supreme Court’s death penalty jurisprudence has had a devastating impact on the sentencing process in the trial courts”, Dr. Anup Surendranath, executive director of Project 39A said.

Another significant aspect highlighted in the report was regarding how trial courts failed to consider individual roles of the accused in the crime when sentencing an accused in a case involving more than one convict.