Report No. 262

(iv) Empirical Data on the Imposition of the Death Penalty

a. Rates of Imposition of the Death Penalty

5.2.66 Data presented at the National Consultation and submitted to the Law Commission in response to the public consultation, substantiate the picture of inconsistent, arbitrary and judge centric application of the death penalty.

5.2.67 Data gathered by the National Crimes Record Bureau on death sentences indicates that in the period between 2000 and 2012, 1677 death sentences were imposed by Indian courts. As was mentioned in the National Consultation by some participants this implies that India sends on average 129 persons to death row every year, or roughly one person every third day.

In Khade, the Supreme Court, took note of these figures and stated that this number was alarmingly high and appeared to suggest that the death penalty is being applied much more widely than was envisaged by Bachan Singh. [T]he number of death sentences awarded is rather high, making it unclear whether death penalty is really being awarded only in the rarest of rare cases.- Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.

5.2.68 Juxtaposing the NCRB data on death sentences imposed against the overall convictions for murder in the same time period provides another useful, albeit approximate, insight.598 This data shows that during the period 2004-2012, convictions were recorded by courts in 180439 cases involving murder.

In the same time period, the death sentence was imposed in 1178 cases, that is, in 0.65% of the cases involving murder convictions. In absolute numbers this is a large figure, as recognized by the Supreme Court in Khade. In addition, given the arbitrariness and inconsistency in the imposition of the death penalty, the question posed by the Supreme Court in Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 bears repeating:

[I]f in similar cases or in cases of murder of a far more revolting nature the culprits escaped the death sentence or in some cases were even able to escape the criminal justice system altogether it would be highly unreasonable and unjust to pick on the condemned person and confirm the death penalty awarded to him/her by the courts below simply because he/she happens to be before the Court. But to look at a case in this perspective this Court has hardly any field of comparison.

The court is in a position to judge 'the rarest of rare cases' or an 'exceptional case' or an 'extreme case' only among those cases that come to it with the sentence of death awarded by the trial court and confirmed by the High Court. All those cases that may qualify as the rarest of rare cases and which may warrant death sentence but in which death penalty is actually not given due to an error of judgement by the trial court or the High Court automatically fall out of the field of comparison.

More important are the cases of murder of the worst kind, and their number is by no means small, in which the culprits, though identifiable, manage to escape any punishment or are let off very lightly. Those cases never come up for comparison with the cases this Court might be dealing with for confirmation of death sentence.

To say this is because our Criminal justice System, of which the court is only a part, does not work with a hundred percent efficiency or anywhere near it, is not to say something remarkably new or original. But the point is, this Court, being the highest court of the Land, presiding over a Criminal Justice System that allows culprits of the most dangerous and revolting kinds of murders to slip away should be extremely wary in dealing with death sentence Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767, at para 45

598 Aparna Chandra, Mrinal Satish, Vrinda Bhandari and Radhika Chitkara, Hanging in the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-2013) [forthcoming 2015] (on file). The numbers only provide an approximate insight because while the conviction rates are for murder, the death sentence figures may take into account sentences imposed for non-murder capital offences. Since, there are very few capital sentences imposed in offences that do not involve murder as well, the variation, if any, between this approximation and the actual number of murder related death sentences will be negligible.

5.2.69 In other words, how can any court in the country determine whether the cases before them are the rarest of rare? Each judge can only limit her analysis to the cases she has presided over or read about. In light of the large volumes of cases, the determination that one or the other case is a "rarest of rare case" would remain nothing but a legal fiction. Whether a law that permits the taking of life on the basis of a legal fiction, is in consonance with the text and spirit of the Constitution, bears investigation.

5.2.70 The excessive use of the death penalty is evidenced by another figure. Data supplied by the Supreme Court to the Death Penalty Litigation Clinic, National Law University, Delhi, and presented at the National Consultation indicates that between 2000-2015, trial courts imposed the death sentence on 1790 persons.601 of these, 1512 cases were decided by the High Court. The remaining are either still pending, or their judgements have not been located. In 62.8% of these 1512 cases, the appellate courts commuted the sentence.

That is, though the appellate courts agreed with the trial court on conviction, they rejected the court's sentencing determination. In another 28.9% of the cases where the trial court awarded the death sentence, or roughly a third, ended in acquittal, pointing to an even deeper systemic problem relating to the quality of adjudication in the lower courts. In all, the death sentence was confirmed only in 4.3% of the cases. The Supreme Court's data thus shows that trial courts erroneously impose the death penalty in 95.7% cases.

601 This figure excludes TADA cases.

b. "Judge Centric" Death Penalty Jurisprudence

5.2.71 An empirical examination of the death penalty carried out in the 1970 by Professor Blackshield highlighted the judge-centric nature of application of the death penalty in those days. This study analysed over 70 decisions of the Supreme Court between 1972-1976, where the Court had to decide between life imprisonment or death penalty.

The author found evidence of judge-centric sentencing when he noted that a large number of death sentences were given/confirmed by Benches consisting of Justices Vaidialingam, Dua, and Alagiriswami.602 Further, Blackshield also analysed the various aggravating and mitigating factors employed by the Supreme Court and found no coherence in the Court's approach in applying the same. While delay after sentence was given importance in five cases, it was discounted in another five.

Similarly, the (young) age of the accused was given due consideration in two cases but discounted in another case. The "immoral" relationship of the accused-Appellant was treated as a mitigating factor in two cases and an aggravating factor in one case.603 The similarities between Justice Bhagwati's dissent referenced above, Professor Blackshield's research, and the present state of the death penalty are striking.

602 A.R. Blackshield, Capital Punishment in India, 21(2) Journal of the Indian Law Institute, 156-158 (April-June 1979).

603 A.R. Blackshield, Capital Punishment in India, 21(2) Journal of the Indian Law Institute, 162, (April-June 1979).

5.2.72 Justice Bhagwati's concern that the death penalty depends not on the facts of the case, but on the composition of the Bench echo in recent admissions by the Supreme Court that the imposition of the death penalty is "judge centric." Sangeet v. State of Haryana, (2013) 2 SCC 452, at para 33.

This concern is further substantiated by research presented at the National Consultation examining the impact of judicial conscience on the outcome of death penalty cases. Post-2000, one judge of the Supreme Court imposed the death sentence in 14 out of 30 cases (of which two involved acquittal by the High Court, two involved turning life sentences into death, and in two the death sentence was imposed despite acquittal by another Supreme Court judge).

Pertinently, five of these 15 cases imposing death, have now been declared per incuriam by the Supreme Court itself. A second judge imposed the death sentence in 8 out of 18 cases, whereas two other judges imposed no death penalties in adjudicating 10 and 16 cases respectively.605

605 Presentation made by Dr. Yug Mohit Chaudhry at the National Consultation (on file).

5.2.73 These studies and examples illustrate the limited possibility of "principled sentencing" in India, which is the underlying assumption for the constitutionality of the death penalty in India.

c. Geographical Variations

5.2.74 The NCRB data cited above also points to another axis of disparity in death penalty jurisprudence. When broken down by state, the rate of imposition of death sentences as a percentage of the rate of convictions for murder for the period 2004-12, shows significant disparity by state. For example, a murder convict in Kerala is about twice as likely to get the death sentence as a murder convict in the rest of the country put together; a murder convict in Jharkhand is 2.4 times as likely to get the death sentence compared to the rest of the country, Gujarat 2.5 times, West Bengal 3 times, Karnataka 3.2 times, Delhi 6 times, and Jammu and Kashmir 6.8 times.

A murder convict in Karnataka is 5.8 times as likely to get the death sentence compared to Tamil Nadu. A murder convict in Gujarat is again 5.8 times more likely to get the death sentence than one in Rajasthan. Maharashtra sends murder convicts to death row 2.9 times more frequently than Madhya Pradesh. Uttar Pradesh sends the most number of persons to the death row, but as a proportion of the conviction rate for murder, it is about par with the national average. Karnataka was the second largest contributor to the death row in this period, and its death sentence rate was 3.2 times the national average.606

606 See Aparna Chandra, Mrinal Satish, Vrinda Bhandari and Radhika Chitkara, Hanging in the Balance: Arbitrariness in Death Penalty Adjudication in India (1950-2013) [forthcoming 2015] (on file).