COVID-19 and the demand for harsh penalty against sexual offences may have led to steep rise in the number of death row prisoners in India

INDIA'S total number of prisoners on death row has risen to 488 – the highest population on death row in the past 17 years since 2004, when there were 563 such prisoners.

As per the recently released Death Penalty in India: Annual Statistics Report 2021 published by the criminal justice system research institute Project 39-A at the National Law University Delhi (NLU-D), the number of prisoners on death row jumped from 404 in the year 2020 to 488 in 2021, marking a nearly 21% jump. The report highlighted that the spike was "attributable to the trial courts imposing death sentences at pre-pandemic levels but appellate courts deciding far fewer death sentence cases". It also highlighted that the limited functioning of appellate courts since the onset of COVID-19 also resulted in fewer appeals of death-row prisoners being decided while more continue to languish in jail.

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Trial courts imposed a total of 144 death sentences in the year 2021, while high courts decided 39 matters in that year. Earlier in 2020, the trial courts imposed a total of 78 death sentences, while high courts decided 31 matters. Although the Supreme Court listed death sentence matters on priority in September 2021, it decided six matters in that year, as opposed to 11 in 2020 and 28 in 2019.

Speaking to The Leaflet, Gale Andrew, a research associate with Project 39-A, said that there wasn't sufficient data to conclusively say what influenced the trends of decision-making with appellate courts and trial courts. However, she noted, "We surmise it was a question of prioritisation of cases across courts. All courts were functional in 2021, but there were shifts from physical hearings to video-conferencing and varied priorities in listing matters in contrast to the period before the pandemic." 

Andrew further pointed out that the Supreme Court saw a clear shift in prioritisation with almost no matters heard early until September 2021 from when they began listing of death penalty cases on priority. "Various High Courts may not have chosen to prioritise cases in the same way, with variations observable between different High Courts. For instance, Madras and Bombay High Courts seem to have decided far more death penalty cases", she said. She also added that sessions courts across the country heard such matters regularly in the manner they did before the pandemic, which may have led to such differences in the numbers.

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Significantly, the Supreme Court did not confirm any death sentence in 2021, with four cases seeing a commutation of sentence, and two other cases receiving acquittals.

Meanwhile, out of the 39 cases decided by high courts in 2021, four resulted in confirmation of the death sentences, 18 in commutation to life imprisonment, 15 in acquittal of all charges, and two cases were remitted to the trial court.

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Andrew cautioned against calling it a trend of increasing commutations, "because of the low number of decisions by appellate courts in 2021." However, she added, "The high proportion of commutations each year by High Courts as well as the Supreme Court demonstrate an increasing skepticism of the manner in which death sentences are imposed by trial courts. We cannot say, however, if it represents a skepticism of the death penalty itself."

States with the highest number of persons presently on death row are Uttar Pradesh (86), Maharashtra (41), West Bengal (38), Bihar (37) and Madhya Pradesh (37). According to the report, 62 out of 144 of the death sentences imposed by trial courts in 2021 were for the crime of murder, whereas 48 death sentences were meted out in cases pertaining to sexual offences. The proportion of cases, however, was higher in matters of sexual violence, with 48 death sentences imposed in 45 cases. Of the 62 death sentences for murder, these were imposed in 34 cases. Effectively, sexual offences accounted for 54.21% of all cases resulting in a death sentence. The report notes that sexual violence, therefore, continues to form the bulk of the implementation of death penalty in India despite a drop in proportion of sexual violence cases from that of 2019 and 2020, when it was at 61.62% and 59.67% respectively.

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Andrew explained to The Leaflet that this increasing imposition of the death penalty for sexual offences was evident since the 2019 Annual Statistics Report, with sexual violence cases constituting a majority of death penalty cases imposed. "We cannot say with certainty what influences these trends, but it appears that the public discourse on harsher punishments for incidents of sexual violence (such as the Nirbhaya case, Kathua and Unnao) has influenced the implementation of the death penalty in India with trial court judges increasingly imposing the death penalty for such cases", said Andrew.  She emphasised the need for further consideration of the effectiveness of death penalty for such cases, cautioning against "the disproportionate focus currently on harsher punishments instead of creating systems that would support and protect survivors of sexual violence."

The states of both Punjab and Madhya Pradesh introduced the death penalty in March 2021 and August 2021 respectively for the offence of causing deaths by the sale or manufacture of spurious liquor. Further, the 'Shakti' bill recently approved by Maharashtra's state legislature introduced the death penalty for 'heinous' offences of rape and gangrape.

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The report concluded: "Collectively, these changes reveal an important shift in the approach of the Supreme Court to the death penalty. It represents a prioritisation of death penalty matters and an increasing focus on the non-compliance of established procedures before this extraordinary punishment can be imposed. It draws attention once again to the complete breakdown of the death penalty sentencing framework in India."

International Developments

Another notable development in 2021 was India's vote against a resolution on the question of the death penalty after the United Nations Human Rights Council's call upon states to consider acceding to or ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights for the abolition of the death penalty.

Also read: Death penalty is premeditated murder in the name of society's 'collective conscience'

Elsewhere, countries such as Sierra Leone abolished the death penalty after their parliament passed a unanimous resolution on July 23, 2021. Sierra Leone is now one of the 22 African countries and 109 countries in the world to have done so. In Asia as well, Kazakhstan abolished the death penalty.

(Sabah Gurmat is a staff-reporter at The Leaflet.)