Death penalty | “Damocles’ sword cannot be kept hanging”

On Monday this week, the Supreme Court issued guidelines to expedite the process surrounding mercy petitions for death sentences. Its decision came in an appeal by the Maharashtra government against a Bombay High Court judgement that commuted the death sentences of two convicts in a rape and murder case.

India is one of the few nations to retain the death penalty for crimes of exceptional brutality. There has also been an increase in the number of death sentences pronounced each year. In 2023, the total number of inmates living on death row was 561, the highest in two decades. 

The path to execution is long and tangled. A death sentence by a trial court requires ‘confirmation’ from the High Court that it qualifies as a ‘rarest of rare’ case. The High Court can also acquit, remit or commute the sentence or allow appeal. A convict can then move the Supreme Court, triggering a chain of review and curative petitions. On the executive side, the President and the Governor can remit, commute or suspend a death sentence. Glaringly, last year saw the lowest number of death sentence confirmations by the higher judiciary since 2000—High Courts confirmed just one sentence and the Supreme Court confirmed none.

The constitutional and procedural dimensions of the death penalty have kept cropping up in the discourse. In 1967, the Law Commission’s 35th Report strongly supported the death penalty. However, in 2003, the Commission’s 187th Report acknowledged the procedural flaws in sentencing though it did not advocate abolition. In its 262nd Report in 2015, the Commission finally called for doing away with the death penalty for all crimes except terrorism and related offences. 

In Jagmohan Singh (1972), the Supreme Court had upheld the constitutionality of capital punishment if due process was followed. This stance was refined in Bachan Singh (1980), where a 4:1 majority introduced the ‘rarest of rare’ doctrine and held that there were sufficient safeguards to prevent the incorrect application of the death penalty. In dissent, Justice P.N. Bhagwati highlighted the mental anguish inflicted on prisoners and the subjectivity of judges. 

Over the last decade, some decisions of the Supreme Court have leaned toward Justice Bhagwati’s humanitarian view. In Shatrughan Chauhan (2014), the Court held that prolonged delays in execution could justify commuting a death sentence. In Manoj (2022), the Court mandated an exhaustive investigation into the “mitigating circumstances” of the convict and emphasised a balanced approach to sentencing. In a suo moto writ later that year, the Court referred the question of granting a “meaningful opportunity…to the accused/convict on the issue of sentence” to a five-judge bench. 

Monday’s verdict was of a piece with this trend. It called out the mental distress suffered by those on death row. Justice A.S. Oka remarked that “the sword of Damocles cannot be kept hanging [over a convict’s head] for an inordinately long time.” The Court directed the states and Union Territories to establish dedicated cells to expedite mercy petitions. 

The capital punishment debate remains polarising. However, inordinate delays in sentence execution expose the faults in the criminal justice system even to those unsure of their stance. In the present case, for instance, the convicts were arrested in 2007 and sentenced five years later. The High Court confirmed their punishment in 2015. The President rejected their mercy petitions in 2017, but execution warrants were issued only in April 2019, prompting the convicts to file writ petitions in the High Court. In July of that year, the High Court commuted the death sentence, leading to an appeal to the top court. That amounts to 17 years between arrest and a decision in the Supreme Court. 

There’s more alarming data like this in connection with death penalty cases, even around the experiences of convicts as they wait in limbo. Earlier this year, Shreya Rastogi and Neetika Vishwanath, directors at Project 39A, wrote about how the empirical data collected in recent years “corroborates Justice Bhagwati’s concerns.” The Constitution Bench reference is an opportunity for the Court to take a hard look at the death penalty in light of this data. Until this fresh reckoning happens, orders and directions of the Court in individual cases will feel like a trickle.

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