On the side-lines of CPG’s International Workshop Death Penalty in Asia: Reform Issues in Comparative Perspectives which took place at the end of last year, the team sat down with a number of experts to discuss the issue of the death penalty within the framework of their respective countries. This is the first of a four interviews and is looking at India. The expert, Himanshu Agarwal, works with Project 39A at the National Law University in Delhi, India.

In the interview, he talked about India, which as a retentionist country, imposes the death penalty for a number of offences. Exact numbers, according to Himanshu, can be difficult to obtain since there is either no official data or it gets released delayed (official figures from 2017 were just released in late 2019) but even then, there is a mismatch between Project 39A’s self-collected and the published data.

Himanshu also talks about how the system can be unfair towards the accused person as the prosecutors have to give no notice to the defence about seeking the death penalty and because of other, extraneous factors like judge’s predilections.

India has executed less than other retentionist countries and the last execution was in 2015, but the scope of the death penalty in India seems to be expanding legislatively resulting in more convictions. In 2018 162 people got sentenced to death, the highest number in the last 18 years. (Note: In March 2020, India executed four prisoners convicted for the rape and murder of a woman on a bus in New Delhi in 2012, making these the first executions since the 2015 case mentioned in the interview). Read the full interview:

Q: How would you characterise the situation of the death penalty in India today and what are some of the challenges that you see? Could you also explain the judicial process leading to a death penalty in India?

A: India is a retentionist country so we have the death penalty in India for a number of offences. The number of prisoners in death row today is about 391 the last time we checked. And this is already a major problem because we don’t have official data on the statistics of the prisoners who are sentenced to death. The data for 2017 for instance was only released recently and there seems to be a mismatch between the data that we were able to collect and the data that the government has released. So that is one area of problems.

In terms of the process that leads to the imposition of the death sentence we have a trial court that trials a person for various offences and there is supposed to be a verification of trial at the sentencing stage after collection of mitigating and apricating circumstances. A person may be sentenced to death.

In such cases the prosecutor does not have to give notice to the defence of whether they will be seeking the death penalty or not so that makes it even harder for trial court lawyers to prepare for sentencing.

After the person has been sentenced to death by trial court there is an automatic process of confirmation which goes to the high court. If the high court also confirms the death sentence then the case invariably travels to the supreme court.

There was a recent judgement in which we were involved which says that the supreme court cannot dismiss a death penalty case without giving reasons, which now effectively means that there is a strong barrier to appeal even to the supreme court.

If the supreme court confirms the death sentence you also have a right of review of the same judgement in an open court by at least three judges – that’s the judicial process.

After this process is complete you also have the clemency process in which India seems to be unique in that we have parallel jurisdiction with both central and heads of state. So, the governor in respective states, as well as the President of India have power to grant clemency in death penalty cases. Lastly, there is also jurisprudence in India to allow for challenges to be made in constitutional courts after clemency has been dismissed, which is a separate way of judicial review that exists.

So, it is after these processes are complete that person then gets closer to execution.

In India, we have not executed a lot of people compared to other retentionist countries in Asia. The last execution was in 2015, however the scope of the death penalty in India seems to be expanding at least legislatively.

We have had an amendment made in 2013 which increased the scope of the death penalty and more recently last year, the criminal law amendment of 2018 introduced the death penalty for non-homicidal sexual assault for children below the age of 12. This year an Act was amended to introduce the death penalty for similar cases as well. So, the death penalty then seems to be increasing and there seems to be a corresponding increase in the imposition of the death sentence by trial court.

In 2018 the number of death penalties imposed by trial court in India was 162, which was the highest in the last 18 years. The death penalty trend seems to suggest an increase of the use and the legislative expansion of the death penalty.

Q: Does this increase correspond with public opinion? Are there any surveys on whether people are generally supportive of the death penalty?

A: No, we do not have a formal study or survey analysing public opinion towards the death penalty.

However, if the legislation is looked at in terms of being an index to, or a reflection of public opinion, then there seems to be broadly based support for the death penalty. There were proposals to abolish the death penalty made by private members in parliament, however, all of those proposals were defeated in parliament and instead we had the expansion of the death penalty.

So, it seems that at least the politicians see the public opinion to be in favour of the death penalty.

Q: Which is also what lead to the expansion in terms of including non-homicidal crimes against children below the age of 12?

A: Absolutely, yes. But we don’t have detailed studies similar to what was done in Malaysia or Japan to assess public opinion. We don’t have that.

Q: What do you see are the main problems with the death penalty more generally and specifically in India?

A: Well, I think one of the biggest problems is the sentencing procedures generally and that we are not able to define with sufficient certainty which crimes would be death eligible and which ones would not and as a result, there seems to be a lot of arbitration in terms of different judges who have their own views. And so, the death sentence seems not to be reserved for the most heinous crimes or for a person who is most culpable, but for extraneous factors such as individual judges predilections, the role of lawyers and other factors.

This seems to be a general trend globally and also specifically in India as we have seen through our litigation practice as well as through research, which does in fact suggest that the death penalty is rather arbitrarily imposed.

Q: What aspects surrounding the death penalty do you think are the most worthwhile working on?

A: Many aspects deserve attention and I would start from the bottom up. I wouldn’t choose an exclusively abolitionist strategy. I think it is definitely worthwhile working on individual death penalty cases for instance, to ensure that due process is completely followed. The process of litigating individual cases can then reveal flaws within the common justice system as a whole. These I believe can eventually be fatal do the death penalty itself.