Interview: ‘Constitutional values must define our approach to death penalty, not majoritarian urge’

A recent report by Project 39A, a research and advocacy group at New Delhi’s National Law University that works on the death penalty, found that the number of prisoners on death row at the end of 2021 was the highest in India since 2004.

As of December 31, 2021, as many as 488 prisoners in India were facing death sentences, an increase of nearly 21% from 2020’s figure of 404. This was because the number of death sentences imposed by trial courts increased sharply in 2021, while High Courts and the Supreme Court decided on fewer appeals of prisoners sentenced to capital punishment.

In 2021, trial courts in India sentenced 144 persons to death, as compared to 78 in 2020. Meanwhile, High Courts took decisions on 39 cases involving the death sentence in 2021 and 31 in 2020, as compared to 76 in 2019. Out of the 39 cases in 2021, High Courts confirmed capital punishment for pm;u four persons.

The Supreme Court pronounced verdicts in six cases involving the death sentence in 2021 and 11 in 2020, compared to 28 in 2019. From the six cases in 2021, the Supreme Court did not confirm any death sentence.

Anup Surendranath, the executive director of Project 39A, spoke to Scroll.in about the changes in the implementation of the death penalty in recent years, and the ways in which he believes the legislature and judiciary should change their approach towards the matter.

Excerpts from the interview:

The report by Project 39A states that the implementation of the death penalty has seen significant shifts in the past six years. What would you say these shifts are?
The first trend that we see is that trial courts are imposing death sentences in large numbers. However, appellate courts have not been upholding many of these death sentences. In the past two years, the High Courts have decided fewer cases involving capital punishment, which is why the number of death row inmates has risen.

The Supreme Court, in its recent judgements involving such crimes, has repeatedly commented on how the lower courts are not following the proper processes before imposing the death penalty. It has noted that courts have not taken into account mitigating circumstances and the possibility that a person may be reformed.

In several cases, convicts are sentenced only on the basis of the gravity of the offence. But that is not the mandate of the law, irrespective of what one may personally believe. That was also the concern of the Supreme Court.

Another clear trend that has emerged is that in recent years, a large proportion of death sentences have been imposed in murders that involved sexual violence. Earlier, the majority of the cases that attracted the death penalty were those of murder that did not involve sexual assault.

A challenge that may grow in the next few years is the imposition of the capital punishment in non-homicide cases of sexual assault cases. In the past two or three years, there have been amendments to the Protection of Children from Sexual Offences Act and the Indian Penal Code to provide for death sentences even in non-homicidal cases. This is an aspect that may become prominent in the future.

What are the mental health implications of a larger number of prisoners on death row?
One may ask as to what is the problem with the widespread imposition of the death penalty by trial courts if the appellate courts are ultimately not upholding them. But the problem here is that a large number of people continue to live in the shadow of the death penalty.

In October 2021, we published a report on the mental health of death row inmates. Our study documented how living as a prisoner on death row has very severe and serious psychological impacts.

An unnecessary and exaggerated use of capital punishment raises very grave concerns. The people on death row are made to lead a very torturous existence, as are their families.

Is there a possibility that a death sentence can lead to a prisoner facing increased stigmatisation from fellow inmates?
That is a complex dynamic. Even within prisons, there is a hierarchy of people who are likely to get worse treatment. If a person is in prison for a sexual offence against a child, they are more likely to get the rough end of the stick, so to say.

It is not necessarily the case that death row inmates get worse treatment from other prisoners. This depends on the crime for which a person has got the punishment.

However, if the offence is of a nature that can cause a death row prisoner to be stigmatised, it is common for further violence to be inflicted on the prisoner by other inmates.

Recently, several states have introduced the death penalty for newer offences. Do you believe that this indicates a shift towards greater approval for retributive justice?
The larger question involved here is that we seem to believe, as a society, that more and more criminalisation and harsher punishments are the go-to solutions for social problems. However, in reality, that just does not work.

Criminal law is not a great response to social problems such as alcoholism, spurious liquor, drug abuse and sexual violence. These are complex socio-economic and cultural problems that you are not going to solve through high-handed laws.

However, there is a larger belief within the society that such measures work, and the implementation of the death penalty is a manifestation of that.

I do not think that questions of governance can be tackled merely by aligning with majoritarian beliefs. The point of governance should be to reduce crime. It should also be to educate and inform people on why stringent laws are not necessarily solutions to social problems.

On the whole, it is difficult to convince the public at large that they must be concerned about the suffering inflicted by the death penalty. In that sense, there might be very little importance that the public attaches to the mental health of death row inmates. However, a constitutional democracy is not just about majoritarian beliefs and demands. Issues also need to be addressed in the framework of constitutional values and our commitment to them.

Some people may even believe that public stoning should be a mode of punishment. They have the freedom to hold that opinion. However, legislators, judges and bureaucrats cannot respond to crime in that manner.

In what ways would you like the legislature and the judiciary to change their outlook towards the death penalty?
History shows us that instilling fear is a bad way to govern and to expect that people’s behaviour will change. The sooner legislators and judges recognise this, the better it will be. They can then focus on things that can really make a difference to making the lives of people more secure.

It is one thing to consider what needs to be done in cases of people who commit crimes, and the nature of punishment that needs to be imposed. However, the larger issue is the manner in which crime can be prevented in the first place.

This is not something that can be achieved merely by dangling the sword of harsher punishment. We need to work on complex socio-economic factors such as education, meaningful policing and sensitisation on gender and sexuality.

All of this would seem rather vague, and calling for a harsher punishment may seem like a more concrete solution. However, we need to move beyond looking for meaningless and ineffective quick fixes.