The National Law University of Delhi, in association with the London-based Death Penalty Project and the Universities of Oxford and Reading, interviewed 60 former Supreme Court judges about their views on the death penalty and fairness in sentencing. This important study raises concerns about the continued application of the death penalty in India.

Most judges expressed concerns that torture and the fabrication of evidence was widespread in India, and that it resulted in wrongful convictions, and yet they believed that the death penalty should be retained. Indeed, only five judges thought that the possibility of error should be a justification for abolition. While academic research has failed to establish a deterrent effect of the death penalty, over and above the effect of a life sentence, some judges felt that the fear of death must deter crime.

The report also makes clear that there is confusion among judges about which cases should be sentenced to death, with considerable disparities in how to interpret India’s ‘rarest of rate’ doctrine. In particular, judges focused primarily on the types offences that deserve death, paying little attention to, or being unclear about, the weight and scope of mitigating circumstances. Opinions varied enormously as to whether poverty, youth, and mental illness should mitigate against capital punishment even though all are judicially recognized.

While few people are executed in India, there are almost four hundred people in prison under sentence of death, most of whom are economically vulnerable, poorly educated, and from the lower castes or religious minorities, as a previous rigorous study of all those on death row in India has shown. With poor legal aid provision, it is clear that in India – as in all countries that retain the death penalty – is the disadvantaged and the vulnerable who are most likely to be sentenced to death, and that sentence will follow a flawed and unfair process.

Professor Carolyn Hoyle, academic consultant to the project, says:

The National Law University of Delhi has conducted rigorous academic research on former Supreme Court judges showing that there is something of a crisis in criminal justice in India. Judges are confident in their ability to apply the law with integrity and yet the evidence suggests arbitrariness and confusion about the legal principles that should guide them. This must be cause for concern when judges have at their disposal a sentence of death.