ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
Reader Mode
-A A +A

Deadly Errors in Judgment

The Supreme Court’s reversal of its own judgment makes the case for a moratorium on the death penalty.


It is not uncommon for the Supreme Court to set aside the death penalty awarded to a convict by a lower court. It is also not unheard of for the Supreme Court to entirely acquit those who have been awarded the death penalty by lower courts. It is, however, the first time that the Supreme Court has set aside its own judgment that had confirmed the conviction of and death penalty for the accused in Ankush Maruthi Shinde v State of Maharashtra.

The litany of deadly horrors in this case is long. A poverty-stricken family is set upon by unknown assailants who rob, assault, and murder them over the course of one horrific night. The police, far from identifying the suspects, concoct an entirely false case against six innocent men, only because they belong to a “criminal tribe.” No actual evidence is unearthed to link them to the scene of the crime or their remote involvement in the matter. “Eyewitnesses” repeatedly change their statements as the circumstance warrants. Yet, shockingly, the trial court, the high court, and the Supreme Court confirm their convictions on the basis of this thin and unreliable “evidence.”

The men are on death row for more than a decade, living solitary, tortured, and pitiable lives in jails. One of them turns out to have been a minor when the offence allegedly took place, but no heed is paid to that by any of the courts. When three of them find their death sentences commuted by the Bombay High Court, the Supreme Court overturns such commutation and awards the death penalty without hearing them at all. The ­Supreme Court then dismisses their review petitions without an open court hearing.

It was only when the curative petition in the Supreme Court was placed before a totally different bench and the “error” was discovered that the wheels of justice finally began to turn. This case provides ample justification for the rule introduced by the Supreme Court that review petitions in death penalty cases must be heard in open court to bring in transparency to the ­process. In the end, the Supreme Court has acquitted all the ­accused, directed the state of Maharashtra to pay compensation to them, and attempted to hold the police accountable for this callous lapse. What it has not done is offer any sort of mea culpa for its own failings in this case.

While the Supreme Court is fond of justifying the death penalty on the grounds that it must be applied only in the “rarest of rare cases” and after carefully weighing all mitigating and ­aggravating factors in a case, in reality it has been happy to discard the law at the drop of a hat. The judgment awarding the death penalty to the convicts in the “Nirbhaya” case, for example, is long on impassioned rhetoric and short on the law when it comes to awarding the death penalty. The very same bench that overturned the death penalty in the Ankush Shinde case also awarded the death penalty in another case on the same day, in a judgment that is empty of any analysis or reasoning on why the death penalty was merited in the matter (Khushwinder Singh v State of Punjab).

To be fair to the Supreme Court, while it has commuted ­almost all death penalties in the recent past (11 out of 12 in 2018, for instance), the trial courts on the other hand seem to be more perversely enthusiastic about death penalties than ever. As the report by National Law University, Delhi on the annual statistics for the death penalty shows, 2018 paradoxically also saw the highest number of death penalties awarded by the trial courts since 2000. If the quality of the investigation, trials, and the judgments in the Ankush Shinde case are anything to go by, it is safe to assume that a large number of such death penalties have been awarded by the courts in cases with grievously faulty trials.

And, yet, this hardly seems to inform bloodthirsty calls in the public for increasing the imposition of death penalty by the courts. Politicians of all stripes are happy to accede to these ­demands, which are ignorant or unconcerned about the ­vagaries of a broken criminal justice system that only ends up crea­ting more victims than punishing any hardened criminals. The courts at the lower level seem happy to go along with the popular mood, imposing the death penalty liberally despite the evident failings in the prosecution’s case or the ability of the ­defen­dant to mount a proper defence. It is then up to the appe­llate courts to try and remedy the injustice, but, as the Shinde case shows, they too are fallible. Even when they are eventually acquitted or find their death penalty commuted, the torment suffered by convicts as a result of the endless delays and flawed decision-making in a broken criminal justice system is rarely remedied.

With the criminal justice system being what it is, it is hard to see the death penalty as anything but an institutionalised form of murder, one that unerringly chooses its victims from the ­oppressed and disenfranchised sections of society. With the political leadership unwilling to do the morally right thing, we can only hope that the Supreme Court will finally awaken to the reality of the situation and put in place an immediate moratorium on the death penalty.

Updated On : 19th Mar, 2019


(-) Hide

EPW looks forward to your comments. Please note that comments are moderated as per our comments policy. They may take some time to appear. A comment, if suitable, may be selected for publication in the Letters pages of EPW.

Back to Top