As we make clear in our introduction, under the rarest of rare (Bachan Singh) doctrine, in India, in death sentencing, judges are meant to first identify and then balance aggravating with mitigating factors. Since 2003, the High Court Division of the Supreme Court of Bangladesh has, in several cases, endorsed the rarest of rare doctrine as formulated by the Indian Supreme Court, though the jurisprudence is not so well developed.
Many of the judges interviewed in India and Bangladesh had decided death penalty cases, some in the highest judicial forum, providing a unique opportunity to understand first hand sentencing practices. That these judges revealed considerable confusion about death penalty sentencing on multiple fronts is a cause for unease. The meaning of the rarest of rare, the identification of aggravating and mitigating factors, the balancing of those factors, and establishing that the alternative option of life imprisonment is unquestionably foreclosed all emerged as areas of confusion, ambiguity, and inconsistency.
The Meaning of the Rarest of Rare
Interviews confirmed that the rarest of rare doctrine was not sufficiently helpful in structuring discretion in sentencing death penalty cases and inadequate training further militated against principled and uniform sentencing. Indeed, eight judges were clear that the vagueness of the doctrine was the biggest factor in creating unfettered discretion:
It’s totally unfettered discretion. Where to choose?… What should the yardstick be?… The disparity is so huge! …there is no sound sentencing policy. (I -/100)
It can be safely said that the Bachan Singh threshold of rarest of rare cases has been most variedly and inconsistently applied [giving] rise to a state of uncertainty in capital sentencing law which clearly falls foul of constitutional due process and equality principle. (I -/-)
Even a former Chief Justice of India admitted that the formulation was unclear, and that he did not understand what it really meant, explaining that all murders are brutal and there was insufficient guidance on how to differentiate between them. In his view, there are two tests: one considers the brutality of the murder, and the other the shock to social and collective conscience, an interpretation which does not reflect the original formulation or the evolving jurisprudence.
Those Indian judges who explicitly articulated their understanding of the rarest of rare doctrine (who had decided 80 death penalty cases among them and confirmed 41 death sentences) expressed a considerable variety of meanings often at variance with the framework laid down in Bachan Singh. Some, erroneously, adopted an approach that understood rarest of rare as an issue of crime categories (for example, the rape and murder of a minor).Footnote 33 Other judges felt that the requirements of the Bachan Singh doctrine would be satisfied under certain aggravating factors, such as the number of victims or weapons used, leaving no room for mitigation.
Until recently, Bangladesh retained mandatory death penalty laws for specific offences. However, in the case of BLAST and others vs. Bangladesh and othersFootnote 34 (popularly known as the ‘Shukur Ali’ case), the apex court of the country ruled that mandatory death penalty provisions are unconstitutional. Since then, judges have had to exercise discretion in determining whether to impose a death sentence in all capital cases. However, without proper guidance on sentencing discretion, jurisprudence similarly demonstrates little uniformity in Bangladesh. The Supreme Court does not consistently apply the rarest of rare doctrine, and the higher judiciary has taken markedly different positions across cases.
Most Bangladeshi judges were of the view that discretion is essential for ensuring justice, but just under a third felt that the death sentence was the default:
According to law, life imprisonment and death are not two options. The normal rule is death penalty. If the prosecution can prove the case beyond doubt, a judge has to go for death penalty. (B 33/7)
Indeed, one judge went as far as to deny the existence of discretion, observing that:
Judges have no discretion in awarding death sentence. If an offence is punishable with death and it is proved beyond any reasonable doubt, a judge is bound to give death penalty. (B 25/5)
The other two-thirds did not consider death to be the rule in such cases and saw sentencing discretion as vital for just punishments, with 14 judges categorically asserting that they tried to follow the rarest of rare doctrine, though some thought that more guidance was needed:
It is important to have discretion. At the same time, …in absence of a proper guideline, even the judges may take wrong decision. (B 25/0)
Confusion About Aggravation, Mitigation and Reformation
While the decision in Bachan Singh provides an indicative list of aggravating and mitigating factors, judges had widely different views on what constituted aggravation and mitigation and how they should be balanced.
Indian judges tended to give priority to aggravating factors and exclude certain mitigation features. In particular, they gave undue weight to the brutality and heinous nature of crimes but also to the vulnerability of the victim. In clear contradiction to Bachan Singh, six judges suggested wholescale rejection of mitigation as a requirement in death penalty sentencing. Others pronounced that mitigation is simply an excuse for the crime or was wholly irrelevant in particularly heinous offences. A few of the Bangladeshi judges also argued that mitigating factors should not be considered in certain crimes, including rape followed by murder or murder resulting from an acid attack:
Mitigating circumstances should not be considered if the offence is very cruel. (B 25/5)
Similarly, particularly brutal offences could dissuade Indian judges from giving adequate consideration to the possibility that the defendant could be reformed. Ten judges were of the view that the prospects for reform could be deduced from the seriousness of the crime. More ominously, 14 judges stated that the possibility of reformation should have no application to death penalty cases:
A man who is determined to kill innocent persons…how do you expect to reform him?… and reform him for what purpose and how … and what will happen after he’s reformed in the jail? Are we going to release him? (I -/13)
While the Bachan Singh judgment prohibits sentencing judges from considering public opinion, 11 judges—who had between them confirmed 41 death sentences—explicitly referred to the ‘collective conscience’ as a relevant aggravating factor:
[the collective conscience] is a relevant consideration so far as punishment is concerned, because punishment has to be proportionate… It can only be judged with respect to …how the public feels about it, and what the public thinks about it. (I -/-)
Furthermore, two-thirds of the Bangladeshi judges felt that public opinion and media pressure had an impact on the sentences passed by some judges:
Public conscience and media pressure may often influence judges. Judges are after all human beings. (B 27/0)
Media pressure can influence a judge while sentencing an offender. Some cases receive huge media coverage and judges consider such cases differently (B 32/3)
It has been established elsewhere that death penalty sentencing in India is judge-centric, with similar cases resulting in very different outcomes (Law Commission of India 2015:10; Batra 2008). In the absence of clear sentencing guidelines and confusion about what should count as mitigating or aggravating features, over half of the Indian judges were of the view that discretion was guided significantly by the judges’ backgrounds, particularly their class, sociocultural status, and religious beliefs:
… at the end of the day, every judge has his own concept of what is rarest of rare. (I 21/-)
Some people like to give the death sentence, some people say no, I have no right to take somebody’s life. That depends on … a judge’s background. (I 18/-)
One judge who had decided 90 cases in the appellate courts summed up concerns expressed by many others:
On the same considerations, different people react differently. And that is the strongest reason why I am against the death penalty. I find it horrible and terrifying, the subjective element in death penalty sentencing. If X is hearing my case, I will end up hanging from a rope, but if Y is hearing it instead, I’ll live…. What Amnesty International has said in the Lethal Lottery report describes it very well, really. (I -/-)
Without adequate guidance, some Bangladeshi judges expressed views that suggested they were similarly capricious in their sentencing. When explicitly asked if they thought sentencing in death penalty cases was judge-centric, almost all replied in the affirmative, with just three arguing that it is judge-centric ‘only to some extent’. None believed that sentencing is uniform in its application. They explained that inconsistencies arose from the personalities of the judges, the extent to which they were punitive or liberal, the demeanour of the defendant, and even the experience and knowledge of the judges:
Yes, death sentencing practice in Bangladesh varies from judge to judge. Some judges award capital punishment quite easily or frequently; they think it’s a matter of credit to award death penalty. On the contrary, some judges remain very careful while awarding death penalty. This varies depending on the morality, honesty, knowledge of law and high ambition of the judges. (B 32/3)
What is absolutely clear from these interviews is that Bangladeshi and Indian judges are similarly confused, arbitrary, and judge-centric in their sentencing of capital cases; they fail to understand adequately the rarest of rare doctrine and the importance of mitigating factors; their decisions are influenced by their own personal backgrounds; and some seem to be unperturbed by such arbitrariness among those responsible for deciding who will live and who will die.
Utilitarian Justifications for the Death Penalty
Thus far, the empirical data has demonstrated unequivocally that these judges are fully aware of the considerable flaws in the investigation, trial, and sentencing of capital cases. The Marshall hypothesis would predict that they would be profoundly opposed to the death penalty.
While we did not explicitly ask the Indian judges for their position on the death penalty, the views of 55 of the 60 judges emerged (see methods section above) and showed that 44 were retentionist, while 11 were abolitionists. The 11 abolitionists heard 61 death penalty cases between them in the Supreme Court and confirmed 19 death sentences, while the 44 retentionist judges confirmed 86 death sentences in 163 death sentence appeals. Hence, the abolitionists confirmed death sentences in just under a third of their cases, whereas retentionists confirmed death sentences in over a half their cases, perhaps suggesting that personal politics may have played a part in the judicial practices of these judges.
Nineteen of the 24 judges in Bangladesh who expressed their views were in favour of retention of the death penalty, while five were in favour of abolition. Though the samples were relatively small, particularly in Bangladesh where we draw on only 30 interviews (with twice as many in India), almost the same proportion were retentionist: 80% in India and 79% in Bangladesh, despite the rather different levels in the use of the death penalty in these two countries, as described in the introduction.
While 43 of the Indian judges had acknowledged the possibility of error while discussing the general state of India’s criminal justice system, only a small proportion of these considered this to be relevant to their stance on the death penalty:
…there will be too many uncertainties in investigation and trial. You may have imposed death sentence on someone who is not really guilty! (I -/3)
Other judges felt that arbitrariness in the administration of the death penalty, and, in particular, judge-centric sentencing, were strong justifications for abolition. Some were of the view that the death penalty served no penological purpose, and others had principled objections concerning the sanctity of life or the potential for offenders to be reformed. We heard a range of justifications for abolition from Bangladeshi judges: namely, that no useful purpose is served by the death penalty; that it promotes enmity between those affected by serious crime; that it amounts to ‘judicial murder’; and that it is inconsistent with the tenets of a civilised nation:
I don’t support the death penalty… As a civilized nation, we cannot murder a murderer… We cannot be cruel simply because the offender is cruel. (B 26/3)
Of main concern to us here, however, is the preponderance of judges favouring retention, given their knowledge of their unjust systems.
Bangladeshi and Indian judges who expressed a preference for retention of the death penalty provided different rationales, but most were consequentialist. Only five expressed retributive justifications (four of them Indian judges):
Perhaps I do have this instinct of retribution; that…you have harmed someone in such a brutal, wrong way that perhaps this can be your only punishment. I won’t give death sentence very easily, normally. But … the instinct of retribution is not completely extinguished in my own psyche. (I -/1)
The purpose of death penalty is merely retributive – to pay evil back with evil. (B 28/3)
A few maintained that the death penalty should be retained due to the current socio-economic and cultural context within Bangladesh. While they could envisage abolition in the future, they argued that the time has yet to come and that the conditions in Bangladesh (in terms of economic development as well as the knowledge, awareness and attitudes of the people) are in sharp contrast with other countries that have abolished the death penalty:
Our country is not a civilised one yet. I believe, it will take another fifty years for us to get properly developed. In the present contexts, the death penalty needs to be retained. (B 27/26)
I … believe in human rights and therefore I do not support the death penalty. But I think, considering the situations prevalent in Bangladesh, the death penalty should be retained. (B 31/0)
A few Indian judges similarly felt that the ‘Indian psyche’ was not yet ready for abolition, with one estimating that it would take at least another 50 years before abolition would be contemplated by Indian society.
In a somewhat related point, two judges justified retention on the basis that abolition would run contrary to societal expectations. One felt that the purpose was to maintain social harmony and another to preserve people’s trust in the judicial system:
In our country the people support the retention of the death penalty. They believe that the society loses its balance if the death penalty is not awarded for serious offences. (B 34/1)
These judges thought the death penalty could hold offenders to account in a disorganised or dysfunctional justice system of the type they had described earlier in the interviews. While this was not a clear consequentialist rationale for retention, it was an expression of faith in the most punitive punishment to uphold people’s trust in the justice system, even when they were clear that the system was undependable.
However, the vast majority gave pure utilitarian reasons for retention:
The main purpose of awarding death penalty is to prevent people from committing heinous crimes. It works as an effective deterrent. (B 33/-)
I think the death penalty should be retained as a deterrent punishment so that no person in society has the audacity to kill any other person illegally. … a death sentence reduces the tendency of killing. (B 32/3)
Some compared death sentences with life prison sentences:
The death sentence has a greater deterrent effect than life imprisonment because … [it] creates a sensation among the people which prevents future crimes. (B 25/0)
Others were also worried that life sentenced prisoners may be released, by using their political connections; that the death penalty was necessary for the permanent incapacitation of the most dangerous offenders:
… it would be too dangerous to abolish … there are many kinds of criminals, some of them are bloodthirsty and cannot be reformed. If death penalty is abolished, they will be a menace to the society. (I -/-)
Empirical evidence from the USA, Singapore, and Hong Kong suggesting that the death penalty does not produce a greater deterrent effect than can be achieved by a sentence of life imprisonment was thought to be unpersuasive (Cohen-Cole et al. 2009; Zimring et al. 2010). Many espoused intuitive ‘beliefs’ in deterrence, dismissing the need for statistics to prove a deterrent effect by stating that it was not ‘a game of numbers’ and that statistics from other countries could not be applied in their country:
India lives in rural areas. After a trial, if a person is convicted and given the death penalty, it creates a sensation in the entire village. People talk. That itself creates some kind of terror in the village and is a big factor in containing criminal tendencies of human beings. (I -/2)
Contradictions in Judicial Support for Capital Punishment
Research has established that support for the death penalty often rests on a belief that the criminal justice system can be administered without error. When members of the public with retentionist impulses are asked whether they would still favour the death penalty if it were proven to their satisfaction that an innocent person had been executed, support declines significantly (e.g. Sato 2018; Hood and Seemungal 2012; Cheong et al. 2018).
Both studies presented here revealed that judges were fully aware of the corruption, torture, fabricated evidence, and other abuses of due process in the criminal justice systems of Bangladesh and India. They knew that these conditions are likely to lead to wrongful convictions. Judges had a poor opinion of both defence and prosecution lawyers, recognising that they failed to protect defendants from corrupt practices in the pre-trial investigation and from failures by magistrates and judges to dismiss evidence collected by improper means.
Judges were similarly clear that the criminal justice systems in Bangladesh and India failed to guard against arbitrary sentencing in death penalty cases and that offenders convicted of serious crimes do not receive equal treatment under the law; that the death penalty is highly discriminatory and disproportionately affects the economically disadvantaged and those belonging to racial, ethnic, and religious minorities and is often used as a tool for silencing political opposition. They understood that imposing a death sentence is largely dependent on who the judge is and what his or her views on the death penalty are and that sentencing is judge-centric and something of a ‘lethal lottery’ (Batra 2008).
Marshall’s hypothesised that when provided with rigorous evidence of its flaws, public opinion would turn against the death penalty. However, a paradox emerges from these studies: knowledge of an irretrievably defective system did not engender denunciation of the ultimate penalty. Despite personal knowledge of its flaws beyond that of members of the public, many judges have trust in the death penalty to deter crime and to realise other sentencing aims and feel retention benefits society.
Marshall’s only explanation for those whose opinions do not change in the face of awareness of procedural and other flaws was that their support was based on vengeful retributive rationales that cannot be altered by such information. However, only a few of the judges offered retributive rationales; most maintained that the death penalty should be retained for its deterrent efficacy in reducing serious crimes, with a few relying on contextual arguments related to the socio-economic or cultural conditions.
The key reason for this paradox would appear to be a strongly utilitarian approach to justice at all stages of the criminal process. Not only did our judges express strongly utilitarian justifications for sentencing people to death, in terms of their erroneous belief in its deterrent effect, but some also articulated utilitarian justifications for misconduct in pre-trial processes, suggesting that it was necessary to break the rules to secure convictions when the system was dysfunctional and ineffective. They accepted misconduct as a necessary evil in overburdened and under-resourced systems. The very information that would persuade significant proportions of the general public that the death penalty should not be applied within justice systems that cannot be trusted to protect the rights of defendants was presented by some judges as a justification for retention. Only when such systems could be improved, at some time in the future, they argued, could the death penalty be abolished. Clearly, in the minds of these judges, utilitarianism trumped human rights for those exposed to corrupt and unreliable processes.