A recent trend in Indian courts shows an alarming increase in death sentences awarded by trial courts, raising concerns among legal experts. This judicial inclination appears to be moving away from the long-standing 'rarest of rare' principle, which dictates that the death penalty should be reserved for exceptional circumstances. Studies, such as one conducted by NALSAR University of Law, have revealed that higher courts frequently acquit individuals from death row, suggesting potential miscarriages of justice at the trial level, including cases of wrongful conviction. While the Supreme Court has issued guidelines emphasizing the consideration of an accused's mental health and personal history before imposing a death sentence, compliance by trial courts remains notably low, indicating a systemic challenge in the application of capital punishment in India.

A recent trend in Indian courts shows an alarming increase in death sentences awarded by trial courts, raising concerns among legal experts. This judicial inclination appears to be moving away from the long-standing 'rarest of rare' principle, which dictates that the death penalty should be reserved for exceptional circumstances. Studies, such as one conducted by NALSAR University of Law, have revealed that higher courts frequently acquit individuals from death row, suggesting potential miscarriages of justice at the trial level, including cases of wrongful conviction. While the Supreme Court has issued guidelines emphasizing the consideration of an accused's mental health and personal history before imposing a death sentence, compliance by trial courts remains notably low, indicating a systemic challenge in the application of capital punishment in India.

A recent trend in Indian courts shows an alarming increase in death sentences awarded by trial courts, raising concerns among legal experts. This judicial inclination appears to be moving away from the long-standing 'rarest of rare' principle, which dictates that the death penalty should be reserved for exceptional circumstances. Studies, such as one conducted by NALSAR University of Law, have revealed that higher courts frequently acquit individuals from death row, suggesting potential miscarriages of justice at the trial level, including cases of wrongful conviction. While the Supreme Court has issued guidelines emphasizing the consideration of an accused's mental health and personal history before imposing a death sentence, compliance by trial courts remains notably low, indicating a systemic challenge in the application of capital punishment in India.

Heard of the bloody assizes, a series of trials in 1685 England of persons accused of treason in the Monmouth Rebellion? Moving from county to county, a court of Judge George Jeffreys dealt with more than 1,400 prisoners, sent about 300 of them to the gallows and 800 to forced labour in the West Indies.

Another ‘hanging judge’ was Isaac C. Parker. Administering a wild American frontier, he gave out 160 deaths from 1875 to 1896; of them 79 actually swung. Parker’s life story, by Roger Tuller, is titled Let No Guilty Man Escape.

Star chambers of the above kind, we thought, were in the barbaric past when laws were evolving from Hammurabi’s eye-for-an-eye justice. Penal laws have been getting liberal, even for crimes like murder. Europe has stopped killing convicts; India still has death penalty for murder, but the sentencing norm since the 1980 Bachan Singh case has been: jail life is the rule; death an exception.

Bachan, if you have forgotten, had served a term for killing his wife, and was living with his cousin Hukam Singh. One night, he slew Hukam’s wife, son and daughter-in-law who had resented his stay in the house. The trial court gave him death, the high court agreed. Bachan went to the Supreme Court, saying death penalty was unconstitutional. The court dismissed his claim, but said life term should be the sentencing norm for murder, and convicts should swing only in ‘the rarest of rare’ cases.

The court asked trial judges to weigh mitigating and aggravating conditions while handing down penalty—severity of the crime may be an aggravating element; the accused’s age, background and absence of criminal history may be considered mitigating factors. Since then there have been several judgments improving on Bachan, but the ‘rarest of rare’ norm has remained unchallenged.

Naturally, legal eyebrows were raised when Judge R.K. Diwakar of a fast-track court in Muzaffarnagar, UP, handed down 22 death sentences in 10 cases decided in four months, one of them to a woman, and none of them in a mass-killing terror case. Jurists and the bar, alarmed about the bloody assizes, raised a hue and cry, forcing the district judge to pull back about 100 cases from Diwakar’s court.

Diwakar may have gone to the extreme, but jurists are concerned that trial courts have been tilting towards the gallows of late. Star chambers aren’t in there yet, but a convicting atmosphere is enveloping trial courts. Trial judges are dangling the rope more often than before in murder cases, though higher courts are, thankfully, staying soft.

A recent NALSAR University of Law study on death penalty found that high courts had acquitted 326 persons from death rows in 191 cases in the past 10 years. The Supreme Court acquitted another 38. Last year, the top court acquitted half of the persons who approached it—10 of 19. And horror of horrors! Many of the death judgments were not mere sentencing errors but errors of judging guilt. Simply put, quite a few convicts who were threatened with the rope were not even guilty.

The top court’s 2022 ruling in Manoj v. State of MP had asked trial judges to consider an accused’s mental health, jail conduct and personal history before awarding death. Less than five per cent of cases had followed the guidelines.

Tailpiece: Which is harsher—death or solitary life in jail? A rich banker wagered that death is preferred to solitary jail life; a lawyer said he would prove otherwise by staying alone and confined for 15 years. Who won? Read Anton Chekhov’s short story The Bet.

prasannan@theweek.in

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