Context: As per a study by Project 39A, in most death penalty cases, court invokes ‘collective conscience’ of society.

More on the news:

  • The team led by Executive Director of Project 39A and Assistant Professor of Law at NLU, Delhi, and it looked at 215 trial court judgments from Delhi, Madhya Pradesh and Maharashtra to study the award of death sentences by trial courts.
  • The three states were chosen for the study since they rank high on the list of states awarding capital punishment and a large number of decisions in capital cases were overturned at the appellate level — in the High Courts and Supreme Court.

Key findings of the study:

  • Seventy-two per cent of all cases in which Delhi trial courts awarded the death penalty from 2000 to 2015 cited “collective conscience of the society” as an influencing factor.
  • In Madhya Pradesh  around 42% of death penalty cited this and on the other hand in Maharashtra 51% of cases cited “collective conscience of the society”.
  • The study found that in such cases, the trial courts opined that the crime was heinous enough to shake the collective conscience of the society and, therefore, the harshest punishment available under the law had to be meted out to the offenders.
    • Of the 112 cases in which collective conscience was a factor impacting the decisions of courts, absolutely no other mitigating factor was considered in 63 cases.
  • The Project 39A study found that sentencing on the same day of conviction was rampant : 44 per cent cases had sentencing hearings on the same day as the pronouncement of guilt.
    • It has an obvious impact on the nature and quality of arguments that are eventually presented before the court.
  • Ineffective quality of arguments by defence counsel: lack of individualised arguments in cases involving multiple accused.
    • Of 52 cases in the three states, where multiple accused were involved, individual mitigating circumstances for each accused was argued only in nine cases.
    • Trial courts mainly relied on aggravating circumstances to impose death sentences.
    • For instance, In Madhya Pradesh of the 51 judgements out of 82 no mitigating circumstances were considered during the judgements.In Maharashtra, it was true of 41 out of 90, and in Delhi, in 18 out of 43 cases.
    • In cases involving sexual violence, that there had been short trials and quick confirmation proceedings by the High Court.
  • Acquitals:
    • Incidentally, in Delhi, of the 80 death sentences handed by trial courts between 2000 and 2013, over 60% later resulted in acquittals or where sentences were commuted by the Delhi High Court.
    • In Maharashtra, out of approximately 120 sentenced to death by trial courts between 2000 and 2013, more than half the prisoners were acquitted or had sentences commuted by Bombay High Court.

Machhi Singh And Others vs State of Punjab

  • The Supreme Court’s 1983 ruling in Machhi Singh And Others vs State of Punjab which introduced ‘collective conscience’ into the capital sentencing framework and laid down five categories.
  • It means the community would “expect the holders of judicial power to impose the death sentence, because collective conscience was sufficiently outraged.

Bachan Singh vs State of Punjab

  • In 1980, in Bachan Singh vs State of Punjab, the Supreme Court developed a framework for sentences in cases that involved the death sentence while evolving the ‘rarest of rare’, a doctrine that advocated a restrictive approach to the award of capital punishment.
  • This case required trial courts to weigh the circumstances of the offence and the offender, while also considering the probability of reformation, and the suitability of the alternative option of life imprisonment.

Law Commission recommendation:

  • In 2013, the Supreme Court had asked the Law Commission to examine whether the death penalty is deterrent punishment or is retributive justice or serves an incapacitative goal.
  • In its report in 2015, Law Commission, ten headed by Justice A P Shah, had proposed the abolition of capital punishment for non-terrorism cases (i.e. it should be abolished for all crimes other than terrorism-related offenses and waging war).
  • According to the Law Commission’s Report, India is among a handful of countries such as China, Saudi Arabia, Iran and Iraq that still carry out executions.
  • At end of 2014, 98 countries had abolished the death penalty, 7 had abolished it for ordinary crimes, and 35 were abolitionists in practice, making 140 countries abolitionists in law or practice.

Supreme Court seeks less painful means of execution

  • The Centre told the Supreme Court that there is no viable method at present other than hanging to execute condemned prisoners.
  • Lethal injections are unworkable and often fail.
  • The government was responding to a query from the court on alternative modes of execution.

Supreme Court’s view:

  • The court had previously said a condemned convict should die in peace and not in pain.
  • A human being is entitled to dignity even in death.
  • The court had asked the government to consider the “dynamic progress” made in modern science to adopt painless methods of causing death.

Projet 39A:

  • Project 39A is inspired by Article 39-A of the Indian Constitution, a provision that furthers the intertwined values of equal justice and equal opportunity by removing economic and social barriers. 
  • These are constitutional values of immense importance given the manner in which multiple disparities intersect to exclude vast sections of our society from effectively accessing justice.
  • Project 39A aims to trigger new conversations on legal aid, torture, DNA forensics, mental health in prisons, and the death penalty. 


Image Source: Indian Express