With 561 prisoners on death row at the end of 2023, India’s death row population has continued to rise to reach its highest-ever numbers since 2004. In an unprecedented trend, the Supreme Court of India acquitted nearly 55% of the death row prisoners (six prisoners) in the cases it heard in 2023. This development must be understood alongside the Court initiative (in September 2022) to convene a Constitution Bench to reform death penalty sentencing. However, given the continued evidence of the broken state of sentencing in India’s courts, the potential of this Bench to truly turn things around appears uncertain. Instead, the high rate of acquittals with a skyrocketing death row population must compel the Court to consider whether India’s death penalty reform can ever be limited to the question of sentencing.
More commutations and acquittals
Data from Project 39A’s 2023 annual statistics on the death penalty show that the Court’s attempts to reform sentencing through its directions in Manoj vs The State Of Madhya Pradesh (May 2022) have failed to trickle down to trial courts for the second year in a row. In 2023, trial courts imposed 86.96% of death sentences in the absence of information pertaining to the accused that was mandated in Manoj.
Additionally, the High Courts continued their reluctance in confirming death sentences in 2023. While the Supreme Court did not confirm the death sentence in any of the 10 cases it decided, only one death sentence was confirmed across High Courts. This follows the findings from the Death Penalty India Report (2016) that ultimately, 4.9% of the death sentences imposed by trial courts between 2000-15 were confirmed at the appellate level. Over the years, a majority of the death cases before the Court have resulted in the Court upholding convictions, but commuting the death sentences to life imprisonment.
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The acquittals of death row prisoners by the Supreme Court deserve particular attention. Despite comprising a smaller proportion of death cases at the Court in previous years, these decisions underscore systemic failures by the police, prosecution, and trial courts. Acquittals have been outcomes of fabricated evidence, manipulated first information reports, the possibility of tampered forensic evidence and dubious recoveries of incriminating evidence by the police. What made the year 2023 particularly striking is the dominance of acquittals in the Court’s death penalty decisions in the year.
The Court has confined itself to case-specific reprimands in acquittal decisions, without acknowledging systemic problems within which the death penalty is being administered. When it comes to sentencing, the Court has been more willing to recognise systemic concerns plaguing the death penalty. The decision of the Court in September 2022 to send crucial issues surrounding death penalty sentencing to a Constitution bench reflects that acknowledgement. However, the growing number of acquittals by the Supreme Court in death penalty cases creates an urgency to recognise the very high chances of error in our criminal system. Repeated instances of acquittals from death row must force us to reconsider the risk we are taking in a system such as ours.
State of the prisoner
Death row prisoners live in constant distress due to an ever-looming fear of execution. They are subjected to constant violence, ridicule and humiliation within prisons. Prison policies segregating them from work, education and leisure remove the little means available for them to cope under such dehumanising circumstances. The death row experience comes with life-long psychological ramifications, which continue well after a prisoner has been acquitted or commuted.
Yet, the death row population continues to increase every year due to the exaggerated and unjustifiable use of the death penalty by the trial courts. Data from Project 39A’s report, revealing a 15% decrease in High Court case disposal rate, exacerbates an already deep crisis. A majority of death row prisoners are needlessly subjected to the horrors of death row before their acquittal or commutation. Others may have been less fortunate. In September 2023, a person under the sentence of death in Yerwada jail died by suicide after spending six years on death row. His case had been pending confirmation in the Bombay High Court since 2019. It should not be acceptable to us as a society that we are increasingly subjecting individuals to a dehumanising punishment using processes that are far from reliable.
In light of such a crisis, the Supreme Court has much to reconsider. The Court’s convening of a Constitution Bench, laudable as it may be, may not only be ineffective but also off the mark in tackling the death penalty crisis. Death penalty sentencing reform from the Supreme Court has persistently failed to percolate to trial courts, pointing to the futility of this exercise. More importantly, Project 39A’s 2023 report shows a dissonance between the narrow sentencing question that the Court prioritises over the actual scope of the crisis that runs across the criminal process in death cases — from the police to prisons. In effect, the Supreme Court is perhaps undertaking an exercise that does too little, too late.
Lakshmi Menon is with Project 39A, National Law University, Delhi. Snehal Dhote is with Project 39A, National Law University, Delhi. The writers authored the ‘Death Penalty in India: Annual Statistics Report 2023’. The views expressed are personal. Those in distress or having suicidal tendencies could seek help and counselling
