In January 2020, The Central Government of India urged the Supreme Court on issuing victim-centric guidelines in death row cases suggesting that the present framework adopts an overly ‘accused-centric’ approach. Most societies perceive the rights of the accused as diametrically opposite to that of the victims and the Indian society is no different. This article argues that society’s demand for ‘instant’ capital punishment arises not because such punishments are effective for deterring crimes but rather because of lack of trust in our criminal justice system.
In the case of Bachan Singh vs Union of India, the court held that in death-row cases, every judge is duty-bound to consider the probability that an accused can be reformed or rehabilitated and whether death penalty is the only deserved punishment and an alternative punishment is ‘unquestionably foreclosed’. In a death row case, the burden of proof lies on the State to prove that the accused is beyond reformation by substantial evidence. However, this obligation of ‘considering the possibility of reformation’ has not even been discussed, let alone practiced during trial. In the last four decades, judges have solely focused on the heinous and the gruesome nature of the crime and ordered for extreme punishments without second consideration. Interviews with former Supreme Court judges are a testament to this very fact that they do not often consider an alternative punishment in death penalty cases. Regardless of their differing views on considering reformation before ordering for a death penalty, there seemed to be a general consensus in all these interviews that the constituent elements for ordering a death penalty is extremely vague, with one judge even calling it a ‘gut conclusion’. According to a study by National Law University in Delhi, 755 people have been hanged in independent India until now. NLU Director Arup Surendranath who is also heading the death penalty research project in an interview with Times of India, [A1] said that- “Some prison authorities have written to us that either the records have been lost or destroyed by termites.” The current system of capital punishment in India seems more about putting out a statement, rather than actual execution. For instance, Texas is infamously known to give death penalties ‘like candies’ and then within a small period of time, the accused are electrified on the chair. If India believes in having capital punishment, why is it that they don’t execute it and do so by keeping proper records of the same? The idea is not that they should, but that it is incredibly inhumane to make someone wait for years with the trepidation that they can die anytime, but also not knowing when.
When courts read into the behavioural traits or psychological predispositions of the accused, they often overlook the fact that different individuals display different reactions to a crime and that the sense of ‘shame’ or ‘contrition’ does not look the same in every accused person. Hence, courts have been observed to make extremely deductive (and conclusive) decisions by identifying the ‘lack of remorse’ displayed by the accused during trial to be an indicator for determining ‘inability to reform’. In the case of Bablu and Mubarik Hussain vs State of Rajasthan, the Supreme Court affirmed that the accused has no remorse on the basis of a mere declaration by the accused admitting to his act of abusing his wife and children. The judgement in this case laid out an extremely vague precedent on the standards of determining the ability to reform. Does mere accepting to have committed a crime immediately indicate that a person is beyond reformation? Isn’t accepting to one’s misdeeds the first step towards being better humans? The precedent in this case indeed begs a lot of questions on the line of ‘supposed moral ethics’ that the Indian society is so believed to follow.
Even though victim’s families too have varying responses to the crime given that some families seek closure by reconciling with the accused while others choose to internalize the process of recovery, the courts still follow a standardized response to these cases, i.e. death penalty. Research from other jurisdictions has similarly concluded that a positive display of remorse has helped some of the accused to avoid death penalty, while a negative display was equated with the accused being heinous and underserving of an alternative punishment.
The Nirbhaya gang rape case of 2012 gave rise to an incredible amount of outrage among people who demanded nothing but the rapists to be either publicly castrated or hanged to death. When the court ordered for death penalty in the case, the public celebrated. This was an exceptional verdict because no other gang rape case had incited such public outrage, not even in the recent Hathras case of rape and murder. This brings out a very important question- If the offence and the graveness is qualitatively same, why is the punishment so strikingly different where the accused in one were hanged to death while the other case excused them from a death penalty[A2] . The aim behind it is not to encourage that they all should have been given a death penalty but to bring out the grave fallacy in our justice system which seemingly enjoys drama than justice. Justice Handy, from the fictitious case of Spelunceanexplorers had stated that courts own a public responsibility and their judgment seems to depend on what the public wants. Death penalty cases are largely the same- they echo the rage of the public. But the fact is that the public reacts on the basis of emotions on the heinous crime and it is not the law that speaks. The judges cannot practically respond to such rage by infringing the human rights of others. Public angst and emotions cannot be an alternative to reason and logic. There needs to be better enforcement of law as an adequate response to such crimes, but death penalty holds no such answers. For then, it is the revenge we seek and not justice.
The purpose of reformation is to give every offender a chance to ameliorate himself and the wrongs after he has committed a crime. However, courts have continued to dismiss any such possibility by considering criminal antecedents, associated tendencies and other indeterminate yardsticks. Substituting death penalty with life imprisonment after having spent an unreasonable period of time in prison is no consolation for violating an accused person’s right to a speedy trial and the de-prioritization and whimsical consideration of reformation being an alternative form of punishment, strikes at the very root of a person’s right to a fair trial.
The Death Penalty India Report 2016 found that death penalty was disproportionately awarded to people from marginalized communities who are victims of not only economic vulnerability but also social exclusion. Statistics suggest that most people sitting in jail waiting for death penalty are minorities. They are people who cannot afford expensive lawyers. The case of Mithu vs State of Punjab states that death penalty is not mandatory. But then, what are the standards to distinguish the same from cases where death penalty is ‘imperative’? The current system of justice is evidently vague when it comes to answering such questions. The Nirbhaya case verdict came out only a day after the decision of the Bombay High Court in the case of BilkisBano, who too was a victim of gang-rape in the post Godhra riots in 2002, saw her family and child murdered, but in whose case the Court refused to award death sentence to the perpetrators of the crime, overturning the appeal by the CBI for capital punishment and awarding the three main accused a sentence of life imprisonment. The two decisions delivered a day apart reflects a shifting stand as far as imposition of death sentence for sexual offences is concerned.
This disproportion also exists in regards with the gender of the accused. A recent study concluded that “because women are stereotyped as weak, passive and in ‘need of male protection’, prosecutors and juries seem reluctant to impose death penalty upon them. On the other hand, in cases where the victim was a woman, the death sentence rate in those cases was 10.9%, seven times the rate when men were the victims (1.5%).”
Retentionists argue that death penalty helps bring closure to the victims and their families. However, studies suggest that the response of victims in real life was the exact opposite. The common response from all these families was that they did not find the closure they were expecting; leaving many of them angrier. Post the trial is concluded, victims and their families are not provided with any kind of support or rehabilitation, while the legal proceedings leave the families of the death row prisoners financially drained as they try to opt for the finest possible legal representation by hiring private lawyers over legal aid representation (owing to its ineffective quality). Consequently, these families also face unemployment and diminished opportunities along with ostracization by their communities. Hence, just like victims, the accused too suffer from withdrawal symptoms, damaged relationships and aversion, although the degree of suffering of both the victims and the accused can neither be equalized nor quantified in any way.
Crimes are multidimensional and complex with causes ranging from greed, anger, neglect, socio-economic circumstances, cultural motivations such as honour killings, or even childhood abuse. Hence, not considering all these factors while pronouncing punishment not only deprives the accused of the opportunity to reform in a conducive environment but also defeats the purpose of giving the victims the closure that they seek. A recent research concluding that murder rates have in fact declined in eleven countries that have abolished death penalty is a testament to the weak link between promoting death penalty and decreasing crime rates.
‘Deterrent’ models such as Death Penalty often overlook the underlying reasons for dissatisfaction among victims post the trial is concluded and the impact of the crime on ‘secondary victims’ namely their families and communities. Restorative models of justice are being increasingly preferred because they adopt an individualistic bottom-up approach that emphasizes on the needs of all those affected. Restorative justice seeks to involve all stakeholders throughout the process of the trial to build social capital and address the roots of crime and deter future occurrences. It also recognizes the need for victims to heal and seek closure in their own unique ways while also providing them the resources and support to do so. Hence, a truly ‘victim-centric’ model is one that encourages the idea of seeking restorative justice.
At the very least, it is only rational to contend that it is the certainty of punishment rather than its harshness that truly deters crime. Normalizing capital punishment shuns death row prisoners as less than human- ‘members of a faceless, undifferentiated mass that deserve nothing but to suffer in prison and never be able to afford an opportunity to step into the society again as reformed human beings. Over-incarceration drains the State’s financial resources which could otherwise be invested in rehabilitating both offenders and victims, as capital punishment does little to ameliorate the lives of the victims and their families. The current approach promotes a narrative that undermines or rather takes away the rights of the accused in order to protect the rights of the victims which is indicative of the fact that our criminal justice system has still a long way to go before it truly achieves the values of everyone being equal in the eyes of law and that the rights of one would not undermine another’s. For when it comes to death penalty, almost everyone loses.
 Theodore Einsberg, Stephen P. Garvey, Martin T. Wells, “But was he sorry? The role of remorse in Capital Sentencing”, Cornell Law Review, Vol. 83:1599
Preferred Citation: Prety Priya, “Death Row Prisoners and their Victims”, The Law Culture (2021)
She is a Second year law student at Jindal Global Law School
Her areas of interest are Human Rights Law and International Refugee Law and Protection