Association for Democratic Rights, Punjab

In the Supreme Court, death penalty review hearings are limited to 30 minutes

And other things you may not have known about life, death and the gallows.

“We are satisfied that the arguments canvassed before us do not present compelling circumstances to indicate an error apparent on the face of the record.” The Supreme Court’s terse one-liner of a declaration in its October 28 judgement, in which it refused to intervene in Surendra Koli’s case, put paid to the hopes of those who were expecting fairness in the procedure by which convicts are sentenced to death. The court held that a review petition is very limited in scope – it is not the same as an appeal where evidence can be appreciated afresh, and only glaring flaws, writ large on the judgement of conviction and sentence, would make a strong case for the judges to revisit their decision. Even then, they would hardly go into the heart of the matter, and only check for explicit procedural errors, if any.
In 2011, the court was absolutely certain that Koli was indeed guilty and deserved nothing other than the death penalty. However, as I have argued in Caravan magazine, a bare perusal of the judgement would reveal the loopholes in the court’s reasoning, and also underscore the fact that Koli was deprived of a fair trial, a sine qua non for justice, especially because an execution is irrevocable and irreversible.
This ruling compels a question. If the court follows the same trajectory in the other pending review cases involving the death penalty, would it be reasonable to expect even a modicum of justice? Would such a cavalier approach to matters of life and death even count as judicious?
Playing hide and seek
The judgement delivered by a Constitution Bench of the Supreme Court on 2 September this year held out a ray of hope for those affected by the capriciousness of death penalty rulings. Writing for the majority, Justice Rohinton Nariman held that all review petitions against the Apex Court’s verdicts awarding the death penalty shall be heard in open court, instead of the previous “chamber hearings” in which judges only decided among themselves, without entertaining any arguments by lawyers. Admitting that different judicial mindsets can result in arbitrary sentencing, Justice Nariman stated that an open review hearing is an integral part of a convict’s fundamental right to life under Article 21 of the Constitution, for everyone is entitled to a fair and reasonable procedure. But the court did not provide enough scope for this: all review hearings were to be limited to 30 minutes.
However, for a section of death penalty abolitionists who eschew moral arguments and focus solely on the practical and pragmatic aspects, there was something to be optimistic about. That a process as irreversible as capital punishment must ensure that there are no systematic and structural flaws in convicting and sentencing, that there should be accuracy of results – no innocent should be sent to the gallows – was heartening. For, as Justice Bhagwati wrote in his dissent in Bachan Singh vs State Of Punjab, “[T]here can be no doubt that the death penalty in its actual operation is discriminatory, for it strikes mostly against the poor and deprived sections of the community and the rich and affluent usually escape from its clutches.” The abolitionists hoped that even within that half an hour, the court would delve into all the facts of the case and check if anything was remiss.
This was the second time the court owned up to its mistakes in sending people to the gallows. The first time was in 2009, when in Santosh Bariyar vs State Of Maharashtra, when Justice Sinha ruled that because of the wide disparity in views of what counted as “rarest of the rare” category of offences that warranted a capital sentence, the untrammelled judicial discretion could well have been misused. And even if the death penalty in itself is constitutional, the inherent arbitrariness in interpretation was bound to lead to perversity. And that this abuse of judicial discretion had resulted in two men being executed, while six were waiting, staring at the hangman’s noose.
But he limited himself to only the sentencing, and did not venture into addressing whether innocents could indeed have been wrongfully convicted. Although, in paragraph 57, he did say that any decision must take into account the circumstances of the convict (his socio-economic status), he did not look into the possible practical manifestations of this. ‎In an ideal society and legal system, disparities in such status should not make any difference, but in reality, it profoundly affects, and even determines, a person's interaction with criminal law. Not only are the socially marginalized more susceptible to being falsely implicated, but because of their indigence, they are also unable to afford legal counsel to help them stand up to prosecutorial vindictiveness.
Our judiciary displays a cognitive dissonance when it comes to the death penalty. On one hand, it has no qualms in agreeing that it is tarred by the vice of arbitrariness, but on the other, doesn’t walk the talk. When it comes to implementing a process that should ensure, with almost negligible margin for error, that no innocent man is condemned, it resolutely takes shelter behind legalese and so-called immutable judicial procedure and refuses to resolve the grave, structural issues behind them.
Fatal errors, second thoughts
The most fundamental of these issues is the fact that innocents are indeed held guilty and sentenced to death. And there is no dearth of evidence to substantiate this claim.
In 2013, Samuel Gross, a professor in the University of Michigan Law School, produced startling data. Analysing cases since 1973, Gross and his colleagues provided overwhelming evidence to contend that at a conservative estimate, at least 4.1 percent of those on death row in America would have been exonerated, had they received a fair trial and not been victims of malicious or vindictive prosecution. A fair trial, in this context, would mandatorily include access to competent defence lawyers as well as evidence that should stand the strictest judicial scrutiny. And exoneration would mean, in Gross’s words, an acquittal: “a case in which someone who was sentenced to death has been completely cleared of the offense for which s/he was sentenced to death and freed.” This could also be due to technical reasons, but that does not take away anything from a man’s innocence, since “conviction only on the basis of proof beyond reasonable doubt” is a fundamental tenet of criminal law.
When it comes to issues of inherent discrimination against a certain group, especially in cases challenging established morality, our Supreme Court has been uninhibited in its disdain for “academic studies”. Take, for instance, Justice Singhvi’s remarks in Suresh Kumar Koushal vs Naz Foundation. He held that homosexuals do not comprise a group whose membership is large or significant enough to make a compelling case for outlawing the criminalization of gay sex, and the statistics of atrocities and brutalities presented by numerous civil liberties groups were either deficient or even contrived. Thus, the conclusion from Gross’s study might not, in all probability, sit well with our judges.
But since judicial decisions from abroad – especially those of the Supreme Court of the United States – do not face the same hostility, and are often quoted with approval, it is to them that one must turn. And the most compelling one is the majority’s judgement in Furman v. Georgia. That decision, delivered in 1972, stands as one of the tallest monuments in death penalty jurisprudence, for it imposed a moratorium on execution. There was little else the court could do, faced as it was with evidence so compelling that Justice Potter Stewart exclaimed that executions were “so wantonly and so freakishly imposed” as to be “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The Eighth Amendment to the United States Constitution, which prohibits “cruel and unusual punishment”, is the counterpart to our Constitution’s Article 21, which decrees that the state shall not deprive anyone of his life and liberty except by procedure established by law. And such procedure, as our Supreme Court has held and frequently reiterated, must be substantially fair; there should be no scope for structural errors, however remote, to creep in. The Furmancase is of critical importance since it acknowledged the pervasive racial bias in death sentences, so much so that Justice Thurgood Marshall, in his concurring opinion, held that capital punishment, even if properly imposed and carried out, was unconstitutional. Recognising that the poor and racial minorities were susceptible to being wrongfully criminalized, and subsequently denied a fair chance to fully defend their innocence, Justice Douglas, concurring with the majority, said: “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
This “play of prejudices” did not immediately make every judge recoil from imposing the death sentence, but years later, even its strongest votaries regretted their decisions, though there was no way to atone for the past. For instance, Justice Lewis Powell, who launched a withering attack on the majority’s ruling in the Furman case, had a rethink much later, "based on pragmatic concerns rather than on questions about the morality or constitutionality of the death penalty itself." Going a step further, in 1994, he confessed to have grievously erred in rejecting a 1987 study that conclusively established the presence of systemic racial bias in awarding death sentences in Georgia.
Justice Powell was followed by Justice Blackmun, who in Callins v. Collins wrote: “[F]rom this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavoured – indeed, I have struggled – along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.”
Now what?
It is unfortunate that in India, there are no studies or robust research to prove the deep entrenchment of numerous prejudices in sentences of capital punishment. Despite that, bearing in mind the uncertain state of access to justice, an unscrupulous police and prosecuting agency, and of course, judges swayed by public opinion (mostly, an unabashed demand for vengeance), it would be tilting at windmills to claim that every convict sent to death row had his day in court. Although the court in the Santosh Bariyar case refused to admit it, that the judiciary can be influenced by public opinion and outcry is not improbable. The Law Commission of India, in its 200^th Report, stated that trial by media had a very strong propensity to influence judicial opinions, and in Jai Kumar vs State of MP, the Supreme Court itself held that the law must “answer the cry of the people” and regard public opinion as a barometer for determining whether to sentence people to death or not.

For far too long, the Supreme Court has refused to confront, and remedy, its own foibles in capital punishment. Innocent lives have been snuffed out, while more await their turn. Even if reconciled to their fate, they deserve at least one chance to protest their innocence. The Supreme Court’s past records demand that it gives them a fair hearing, without dismissing their claims. A full and proper legal hearing, not a hurried, supercilious review, is the minimum requirement.

Either the court agrees to this, or it signs the death warrant – of any claim to dispensing ‎justice.

Saurav Datta teaches media law and jurisprudence in Bombay.