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death penalty

The death penalty – a fatal margin of error

On March 5, 2019, a three-judge bench of the Supreme Court headed by Justice A.K. Sikri (now retired) found Khushwinder Singh guilty and befitting of the death sentence (Khushwinder Singh v. State of Punjab).

death penalty

Background –

  • In 2013, the Fatehgarh Sahib sessions court had convicted and sentenced him to death for killing six relatives of his wife with the motive of committing theft.
  • The last time the death penalty was upheld by the Supreme Court was in July 2018 in the Delhi gang rape case. Since then, the court has acquitted 10 death row prisoners and reduced the sentence to life imprisonment of 23 others.
  • The judgment exemplifies the varied standards of legal representation that impacts the imposition of the death penalty.

Fair or unfair?

  • Singh’s death sentence stands in contrast to nine cases decided by three-judge benches headed by Justice Sikri since November 2018 which resulted in six commutations to life imprisonment and eight acquittals.
  • In these judgments, the duty of the court to conduct an effective sentencing hearing was emphasised and factors such as good conduct in custody, education, age, social, emotional and mental condition of the offender, and the possibility of reform were highlighted as relevant considerations in the sentencing scheme.
  • However, none of these factors appear to have been considered for Singh. Grounds relating to the criminal such as his conduct in prison, his socio-economic and educational backgrounds, or the probability of reformation receive no comment from the court.

Judicial activism –

  • It is commonly accepted that a judge in adversarial proceedings cannot go on a ‘truth searching exploration’ beyond what is presented. Yet, death penalty jurisprudence is rife with examples where duty has been placed upon the courts to elicit information relating to the question of sentence, even if none is adduced before it.
  • Justice K.S. Radhakrishnan’s judgment in Ajay Pandit v. State of Maharashtra (2012), held that the court has a ‘duty and obligation’ to elicit relevant facts even if the accused was totally silent in such situations.
  • Unlike Khushwinder Singh’s case, in the past few months the Supreme Court has rightly considered evidence about the criminal by calling for medical records, reports of prison conduct, including poetry written by a convict post-incarceration to ascertain the appropriate sentence. This was not attempted in Singh’s case.
  • At the core of the arbitrariness in death penalty sentencing is the inconsistent approach to mitigating factors. The Supreme Court has, unfortunately, not developed any requirements that guide the collection, presentation and consideration of mitigating factors.
  • Very often, barely any mitigating factors are presented on behalf of death row prisoners; if they are, they are of poor quality. Judges are often left only with information concerning the crime to determine the punishment. The quality of legal representation continues to affect the administration of the death penalty, even when cases are decided by pro-active and sensitive judges.

Way forward –

  • Justice Kurian Joseph’s parting words in Chhannu Lal Verma v. State of Chhattisgarh, calling for the gradual abolition of the death penalty, require serious introspection from the court and the body politic, and for us to recognise that the efforts to make the administration of the death penalty fairer are like chasing the wind.
  • Our institutions may persist with attempts to ‘tinker with the machinery of death’ until there is a collective realisation that the death penalty is untenable in a fair criminal justice system.
  • Till such time, the setting of established benchmarks for practice, and a system of oversight are necessary to ensure that the quality of legal representation does not become the difference between a sentence of life and death.

SourceThe Hindu

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