 I work with the research wing of the sector and I was one of the researchers for this study and I'm also a part of the dry course and depth research that I'm also involved in. My colleagues, Lubiti Rambarajan, Preeti Pratishruti Das, Rahul Raman and I were the lead researchers on the project. We did most of the interviews when halfway to the project when we had an interview in Bangalore and an interview in Delhi. That's when the entire team sort of joined in and the entire office was travelling all across the country and this was for about a period of nine to ten months and it's been a very rewarding experience. So George Gatboy in an exceptional study of England's Supreme Court in 1970 spoke about how the justices of the Supreme Court occupy a unique place among the public policy decision making elite of India and how they're very esteemed by the public. He spoke about how their exemplars of honesty and integrity and probably they're the only political group on whom, probably the only group in the political system on whom trust can be claimed and whose motives and actions the public can be perceived as beyond the approach. Just like this great work, there are very few studies on judicial thought processes that have been undertaken in India and this study matters of judgement with 60 former Supreme Court judges is an aim to take a small step in that direction in the context of the criminal justice system and the decency. I would like to thank Justice Vijesh Kumar for joining us today. Sir was one of the 60 participants in the study. Thank you so much, sir, for raising us. As stakeholders who have participated in and observed the administration of criminal justice, the thought processes of former judges are immensely valuable. So how we started off the interview was that first we prepared a comprehensive list of all the former Supreme Court judges. That was not a very difficult task because the Supreme Court directly, we had access to the Supreme Court directly. Once we had made that list, we wrote all the Supreme Court judges. The number was 60 out of those 86 judges consented to be interviewed. Judges who refused to participate were mainly because of physical inability, busy schedule or lack of criminal law included. Today with the Supreme Court judges continuing to undertake high-value dispute resolution, holding important tribunal positions and heading important institutions, they continue to remain very active and busy even after denying it from the best. Since this was a time-bound study, the busy schedule of some judges did not form an interview with them. Some judges who were unwilling to participate because of lack of criminal law experience, with them we pursued another round of communication because we felt that the study would nonetheless benefit from their experience and the position that they held within the decision. This did convert from no to yes and we ended up interviewing each other. Another interesting aspect was that when we were calling up judges to get their consent to participate in the study, some judges refused because of lack of criminal law experience. But these judges had in fact adjudicated criminal law cases. It was a conscious decision on our part to not limit the sample size to judges who had only administered criminal law cases or death penalty cases because I mean once you read the report and once I don't share the findings, you realize that the scope of the study was not limited to the question of death penalty, but it also addressed systemic issues within the criminal justice system. So like I said before we travelled across the country, this was between September of 2015 to February of 2017. We carried out in-depth, semi-structured interviews. So we had a questionnaire to guide us that was generally for us to keep the interviews on track and to get information around the three broad themes which have emerged as the chapters in the report. So the first chapter is Investigative and Trial Processing. The second chapter is Inventing In-depth and Educational. And the third chapter is Judicial Attitudes Towards the Resilent. All interviews were conducted by two interviewers, one lead the interviewer and the other is the interviewer of the report. It was either at their residential or office space and most interviews lasted for an average of 90 minutes. But in fact, Rahul did an interview with last year for six hours. I mean they were brave to be brave but in last year for six hours. So because we had varying time availability to different judges, that's why we couldn't obtain responses from every question. So if you read the report, not on every question, we have 60 responses. So it depended on the time availability. Some judges were busy and could give us only one hour whereas there were judges who were very kind and would give us as much as they could. The interview experience I would say was a varied one. Some were extremely rich than the others. And all of us felt that silence was a very important tool which encouraged judges to answer or expand on brief answers with anecdotes. We pressed judges for richer details of the case and it was fascinating for us that these judges remembered my new details of cases that they had exudicated decades ago. It was really fascinating. I mean there were anecdotes about how the judges went about deciding the case, what were the thoughts that crossed their mind and was fascinating for us. The most important takeaway and the general feel that we got after these interviews which I don't think the report can capture and only all my colleagues who did these interviews can understand was the universality of these interviews, these conversations which is extremely difficult to capture before. Judges lamenting over the broken truth of the justice system like ineptigative mass practices, the regret over enforcing a death penalty or generally the discomfort in the death penalty. These were some of the emotional parts of the interviews that were truly moving and the content of the emotional part was a general feel of the immediate research encounter rather than a quantifiable feeling. And we find it important to talk about it today because it's reflective of judges perspectives and their accounts. The dynamics between the judges and us also played out differently in different interviews. Some interviews were unidirectional while others offered us the space to go back and forth and to ask follow up questions. It was quite evident that some judges had thought a lot about the issues than the others. And as far as the level of preparation for the interviews is concerned, some judges were fully aware of the major legal developments like the law commission, the 60 second report of the death penalty, the constitutional bench judgment of Shri Haran v. The preparation in some cases was so good that they had print out all these materials and they constantly kept referring to it while they spoke to us. When we started the interview process, we offered anonymity and when I say anonymity, I mean anonymity was to judges to say that none of the findings will be attributed to their names. And also that they could choose to not be identified as one of the 60 participants. But it was great that almost all judges did not want the anonymity. However, as researchers we understand and we realize that the burden was on us to not let the focus of the finding shift to individual judges and who said what. And we wanted the focus to be on what was said in the context of evaluation of the criminal justice system, which is why we have anonymized all the findings. So you do find a list of all the 60 participants, the former judges, but no findings are attributed, no quotes are attributed to any of the judges. We sincerely appreciate the time and effort the former judges put into this. Their willingness to speak candidly, the intellectual challenges they posed was thoroughly rewarding. As researchers, I think for the all, I mean, I think everyone from the center did all most of the interviews. Everyone did either, I mean, at least one interview and I think just this unique opportunity to interact with judges with judicial career across 27 years from 1975 to 2017. That was a very unique opportunity. The manner in which the judges responded to us and the way they facilitated the interviews is testament to their humility and commitment to taking forward some extremely difficult conversations about the criminal justice system. These conversations encouraged us to think about a wide range of issues and I do hope that most of the participating judges found the conversations to be thought provoking as well. The experience of interviewing the judges demonstrated to us the value of such conversations in understanding judicial thought and activity processes. These were very valuable lessons and we've discussed this multiple times internally as well that there are many things that we would do differently if we were to do such a study of it. So my task now is to very briefly take you through the findings before we have Rebecca and Anuj comment on it and I promise to be as brief as possible. As we said there are 60 former Supreme Court judges, the idea was very much to ask them about the criminal justice system in general as well as ask their views on the debt penalty and we wanted to see how each informed the other. In terms of the profile of judges, eight of the participants were former Chief Justices. Between the 60 judges they had decided 208 debt penalty cases and had confirmed 97 of those. And the first track of conversation was on the investigative and trial processes. We wanted to get the judges' views on what they thought of investigation, trial, legal representation and wrongful convictions. And I think it was very interesting to see that on all of these issues, be it torture, access to legal representation or fabrication of evidence and wrongful convictions, the perception that a large majority of the judges had was very close to what we might understand as the ground realities of the criminal justice system. And it was rather nuanced and well informed. In terms of fabrication of evidence, judges acknowledged the misuse of Section 27 of the Indian Evidence Act through which recovery evidence is brought in and how evidence is planted and the kind of conversations they had about the instances in which it had happened before them and how they could identify when evidence was fabricated was all very interesting. And on torture, out of the 39 judges who spoke about torture, 38 acknowledged that torture was a rampant reality of the Indian criminal justice system. And there was, of course, there was only one judge who said that torture does not take place within the Indian criminal justice system. But interestingly what were the perspectives on torture, even though there was acknowledgement among the 38 out of the 39 judges who spoke about it, that torture does happen. They necessarily didn't feel that there was certain helplessness about torture and a certain willingness to acknowledge its importance or its role in the criminal justice system to say that if we didn't have that, we would struggle to find convictions. And of course there was another group of judges who actually felt that it was completely useless to go down that route and to think that torture was of any utility and that it created more problems for us than it solved. And therefore that engagement with a certain frustration and an inevitability of torture was quite revealing for us. They said that it's expected that something like that will happen within a system like ours. On legal representation, there wasn't a single judge who was happy with how legal aid was functioning, how the legal aid system is working. And the judges who had a lot of criminal law experience felt that the quality of legal representation, particularly what was coming from the legal aid, was quite unsatisfactory. But interestingly, not all of them made that connection between poor legal representation and poverty and socioeconomic discrimination. That connection did not seem to exist as strongly as one would have expected. On wrongful convictions, again, out of the 49 judges who spoke about it, 43 of them acknowledged that wrongful convictions was a reality of the Indian criminal justice system. But again, when they discussed wrongful convictions, one concern that seemed to be operating was that, well, it's not wrongful convictions that we really need to worry about, that it's also the wrongful acquittals. And so there was this dynamic where the wrongful conviction was pitted against the wrongful acquittal. And that tendency not to view both of these as separate issues, that we need not reduce the seriousness or the undesirability of one by citing the other, did not seem to operate for all of them. That somehow there was a set off between wrongful convictions and the other problem of wrongful acquittals. And even in terms of wrongful acquittals, wrongful convictions, the concern seemed to be even within that group of people who said that's something that's unacceptable within a criminal justice system. The concern seemed to be rather focused on a narrow understanding of wrongful conviction to say that it was an innocence-related issue, that it was not as much a wrongful conviction on faulty processes, on faulty convictions. That understanding of wrongful conviction, that wrongful conviction could mean two things, that you've got the wrong person and that you're punishing the innocent. And secondly, that we are getting convictions through processes that are illegal, that are unconstitutional, that did not seem to influence the understanding of what we might call a wrongful conviction. And I think these two quotes sort of explain and I thought particularly this one that if you're asking me whether I'm concerned about unmerited acquittals, I'm not worried about them. I'm worried about unmerited convictions because a criminal jurisprudence is designed only to prevent an innocent from being convicted. A criminal jurisprudence can afford to have a guilty person's escape but not to have an innocent person proven guilty. Again, as we said, I think it's very important in studies like this to remember that there's no single narrative, the grand meta narrative of how Supreme Court judges think. That's just not possible. But it's important to understand the strands within which they exist and that's what's quite revealing as we went into the section on the debt penalty when I come to that, we'll discuss that. So I think while reading the report, please avoid the temptation and that's again, as I said, it's not the purpose of the study to say that there's a certain way in which Supreme Court judges think. That's a far more complicated exercise and you will see why I'm saying that once we get into the debt penalty section. In the debt penalty section, we started with sentencing in debt penalty cases and how they understood sentencing to be done in debt penalty cases. And of course we went into meaning of rarest of rare, what they understood as aggravating and mitigating and the role they saw for judicial discretion. And I think it's very important to unpack many of these things, particularly the aggravating and mitigating factors. Around which there's very little discussion, there's an assumption that aggravating factors have to be presented, mitigating factors have to be presented. But what does each of that mean? And there's very little discussion particularly on what is a mitigating factor and I'll discuss that in slightly more detail. On meaning of the rarest of the rare, again we saw different views on that, particularly if you look at the court to your right. If in my mind I think that a case is rarest of rare, I can write many things to show that. If I think it is not, then I will write things to show it is not. That is the flaw of the formulation. You award death in cases where you think it should be given. And that seemed to be a very dominant worry with the judges, that the rarest of the rare meant that the law stopped being a guiding factor at some point. That legal principles stopped being the guiding factor, that it came down to what individual judges thought. Now in terms of, and if you look at the problem on the left, but at the end of the day, every judge has his own concept of what is rarest of rare. Of course up to five to seven things will be common for everybody. But being from a farming family, I think if somebody kills to save his land, you might have a different approach. In the sense that there is some justification, self-defense or whatever. But I have noticed judges who are not from farming families, their approach is totally different. And we contrast these two course only show as to what plays on judges' minds when they start discussing the death penalty. We did three sentencing exercises with the judges, where we presented and the report towards the end tells you what was the fact scenario presented before them. They were given in each of these three cases, they were given a card first which spoke about the case on conviction and the evidence and asked whether they would convict on the evidence. After that they were presented consolidated mitigation evidence and to say what are the circumstances of the accused person. It was very interesting to see their responses to the sentencing exercise and a couple of things to notice on that. They said that A, there was a lot of disagreement on what is a mitigating factor. And you will see that playing out in many of the court decisions, the inconsistency in whether X factor, whether young age, is it a mitigating factor or is it not a mitigating factor? Is no prior conviction, is it a relevant factor or is it not a relevant factor? And it played out quite evidently in the sentencing exercises that A, among certain judges there was a certain doubt about is mitigation relevant at all. It should be even get into questions of mitigation and two, even if we got into questions of mitigation, which factors are relevant and there seems to be widespread disagreement on that. In terms of the rarest of rare itself, it was quite interesting to see the various formulations of the rarest of the rare. That it literally was a case of each judge having his or her own understanding of what the rarest of rare meant or what the rarest of rare required, right from some judges believing that it's only about category of crimes that the moment it is a certain category, it is rarest of rare. It does not require any further consideration to saying that if certain aggravating factors exist, then that's it. There's no further investigation that's required. So in terms of these 60 judicial minds, many of whom had decided death penalty cases, their own understanding, and of course we might argue that what they knew at that point and what they were talking to us now might be very different and acknowledge that. But this is the closest we can get to how judges think because I don't think such a study with sitting judges is going to be possible, right? So in terms of their own understanding of rarest of rare, I think there's a lot to be concerned about that there seems to be a lot of legal confusion as to what the doctrine requires under Bachchan Singh, right? In terms of, I mean, of course, it almost appears as though that the doctrine is completely empty and every judge is free to fill that doctrine with whatever content they feel fit, and if you just contrast it to what Bachchan Singh requires. On judicial attitudes to the death penalty, I guess the big ticket part of this, we went in assuming that most of the judges would be in support of the death penalty and they were, right? But I think the idea was to sort of have a much deeper understanding of why they support the death penalty or even if they don't support it, why they don't support it. So that was the conversation that was important. We asked all judges irrespective of what we felt from their judgments and we, of course, before interviewing every judge, we would read all their death penalty judgments irrespective of whether it was a confirmation or commutation or within the High Court or in the Supreme Court. All judges were asked abolitionists and what they saw as reasons for abolition and what they saw as reasons for retention. Even 30 out of the 44 retentionist judges who ultimately thought that we must retain the death penalty did identify abolitionist reasons, right? They did say that there are certain strong reasons that we must consider for abolition despite them being retentionists themselves. And three out of the 11 abolitionist judges felt there was absolutely no reason to retain the death penalty. So in that sense to show that certain abolitionist arguments have a certain force that is inescapable and since these are attempts at driving the conversation forward on the death penalty, to show that there are certain abolitionist justifications that seem to resonate even with judges who believe that the death penalty should be retained. Very quickly on the abolitionist justifications and the retentionist justifications, it seemed that if you look at the abolitionist justification on your left, you will see that there are certain key elements that are missing that are part of a dominant abolitionist discourse. One is the disparate impact of the death penalty absolutely found no mention, that the discriminatory impact of the death penalty on socio-economic groups and marginalised groups absolutely found no mention or purchase. And the second was there was no real discussion of the system as such within which the death penalty is being administered. So while most of the others get accounted for and the report tells you how many of them spoke up on each of these, but these two aspects about the criminal justice system and its interaction with the death penalty and the discriminatory impact of the death penalty found no real purchase. On the retentionist justification it was a very, it was an approach focused on the gravity of the offence and the nature of the offence and the particular needs of Indian society and a sense that we are not ready for it just yet and certainly backed by different logical purposes. For some it was deterrence, for some it was retribution that certain persons who did certain kinds of actions had deserved to die. So in that sense it was not as much a deterrence argument as a just desert kind of argument. And thoughtfully that as judges they feel that as long as there's legal sanction they've got to give it in some case or the other and the burden to do away with the death penalty is not that of the judge, is that of the political system. And the report has many other of these courts you can look at. The main reason for abolition is it is very difficult to judge in which case the death penalty should be given and which it should not. If you look at the case law sentencing in death penalty cases become confusing. On the other hand you have another judge who said death penalty has to be retained because the law is still there. It is up to the parliament to take it away but according to me it would be too dangerous to abolish the death penalty. As I say there are many kinds of criminals, some of them are blood thirsty and cannot be reformed. If the death penalty is abolished there will be a menace to the society. And I think very quickly having gone through what they said on the criminal justice system and the death penalty, for us the biggest takeaway really was when we spoke to judges about the criminal justice system there was a great understanding and sensitivity to the realities of the criminal justice system. In terms of torture, in terms of fabricated evidence, wrongful convictions, very poor legal representation. But when it came to the death penalty the conversation seemed to suddenly turn very retributive in nature. That it seemed to focus that the only issue that we need to concern ourselves with when it comes to the death penalty is the heinousness of the offence. That we don't need to account for the systemic realities to worry about the fairness of the administration. And this is different from just the judicial arbitrariness kind of discussion. It seems that there was this very neat disconnect that when we came to discussing the death penalty it became about what crimes are we talking about. That needs to be the determining factor. There was very little place in that sense for all those systemic issues about the criminal justice system that we spoke about in the initial parts. I'm sure there will be a much greater chance to discuss this with Rebecca and Anuji as well and I'll stop here with my summary of what we have found. And I haven't had the chance to discuss how judges understood judicial discretion and arbitrariness but I hope I'll have some time to just ask some questions on that during the discussion phase. So thank you very much. Careful in the way in which he presented the findings of this report. And I think one of the advantages of being a criminal lawyer is that you can occasionally leave the realm of being correct and careful and really address the issue in the manner in which it should be addressed. When I read this report it actually validated what I felt over the years and that is both judges and certainly most lawyers actually have no understanding of the law and particularly of judicial precedence. And very often we have judgments which are passed which are in complete violation of judgments which were earlier passed of constitution benches and or benches of higher strength. This report also validated the fact that in fact most judges did not understand the constitutional guidelines and the judgment passed by the Supreme Court in 1980 in the famous case called Bachchan Singh versus state. What I will now seek to do is actually I'll try and map out this journey from Bachchan Singh to Yakub Mehman where conflicting judgments have been given by the Supreme Court. On account of the fact that there has been very little understanding of what previous judgments and judgments with higher constitutional bench judgments have said on the subject. Now in Bachchan Singh's case which was decided in 1980 the constitutionality of the death penalty was challenged both in substantive as well as procedural grounds. A five judge bench of the Supreme Court held that the death penalty passed judicial master but with respect to the procedural challenge it felt that section 354 sub clause 3 of the Court of Criminal Procedure invested courts with unguided discretion and allowed the death sentence to be arbitrarily almost freakishly imposed. Let me just pause here and explain the section 354 3 of the Court of Criminal Procedure was something that was introduced by the new Court of Criminal Procedure and it required judges imposing the death penalty to give special reasons before they did so. Now in Bachchan Singh's case the Court made it clear that death penalty should be imposed only in extreme cases, life imprisonment was a rule, death penalty was the exception. And to award the death sentence it held and this was very important that the Court was required to examine the aggravating and mitigating circumstances of the crime as well as the aggravating and mitigating circumstances of the offender. Most importantly it emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by courts. In fact I'll quote from Bachchan Singh, it's a very interesting quote. It says, judges should never be bloodthirsty, hanging or murderers has never been good for them, a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option of life is unquestionably foreclosed. So this was the mandate of the constitution bench of the Supreme Court. It continues to hold, it has not been overruled by a bench of a higher strength. However, three years later in 1983 a three judge bench of the Supreme Court in Machi Singh versus Data Punjab while playing lip service to the Bachchan Singh formulation introduced an inconsistency which has caused chaos in all subsequent judgements. It listed five categories of cases in which, and I quote, the community's conscience was so shocked that it would expect the holders of judicial power to inflict death penalty and the categories listed in Machi Singh's case were manner of commission of murder, motive for commission of murder, antisocial or socially abhorrent nature of the crime, magnitude of the crime, personality of the victim of murder. Now Bachchan Singh had refused to list out these categories of cases but Machi Singh on the other hand and that's the biggest departure it made. It focused on the crime and not on the criminal. It upheld the jurisprudence whether nature, manner, motive of the crime took precedence over the circumstances of the criminal and the possibility of reform. So from Bachchan Singh which talked about the need to assess the aggravating and mitigating circumstances of the crime as well as the aggravating and mitigating circumstances of the criminal the criminal actually vanished in Machi Singh's judgment. We went through a period of further judicial confusion in the application of the rarest of rare formula and it led us to a judgment of the Supreme Court in 1995 called Rabji was the state of Rajasthan where a two-member bench virtually overruled the constitution bench's formulation in Bachchan Singh versus state of Punjab and came to the conclusion that it was the nature and gravity of the crime alone that mattered, nothing with respect to the criminal and the criminal was not germane for consideration of appropriate punishment in a criminal trial. In 2006 another two-member bench in Aloknath Patta's case said that different benches of the Supreme Court have adopted different criteria and awarded death penalty and it lamented that there was no sentencing policy in clear cut terms that has been evolved by the Supreme Court. In 2008 in Swami Shraddhanan's case a three-member bench laid down that the categories carved out in Machi Singh were not inflexible and were itself a deviation from the Bachchan Singh formulation. But it took almost ten years for Rabji's judgment to be declared per incurium by the Supreme Court and the Supreme Court in a judgment delivered in May 2009 it's called Santosh Kumar Bariya's case. It attempted to derive further guidelines from Bachchan Singh's case and once again focused on the requirement that in order to award the death penalty the alternative punishment of life has to be unquestionably foreclosed. And it noted with some concern that the deviation made in Rabji versus state of Rajasthan in 1995 from the Bachchan Singh formulation was in fact per incurium and it went on to say, and this is what really stuns me that Rabji's case had been followed in six decisions by the Supreme Court where the judgment, where the death sentence had been awarded in the last nine years. So in Bariya's case the Supreme Court held that capital sentencing is one field where safeguards continuously took strength from the constitution and on the other hand public opinion had no role to play. What is interesting about Santosh Kumar Bariya's case was the fact that it noted that for ten years the judgment of Rabji versus state held center stage it was based on an incorrect understanding of the Constitution Bench's judgment and that six decisions by the Supreme Court where death penalty had been awarded based on Rabji in that period. Had taken place it declared the law laid down in Rabji versus state to be per incurium. In 2009 a two member bench of the Supreme Court in Mohammad Farooq Abdul Ghafoor versus state of Maharashtra held that the swinging fortunes of an accused in our criminal justice system accentuated due to inherent imperfections of the system, delays, cost of litigation, inadequate legal aid, access to courts and inarticulate information on the socio-economic and criminological context of crimes greatly resulted in the imposition of the death penalty. So it talked about the swinging fortunes of an accused in our criminal justice system and it endorsed the view that invariably the marginalized and the destitute suffer the extreme penalty. In 2012 in Sangit versus state the Supreme Court felt that the aggravating and mitigating circumstances approach needed a fresh look particularly because the circumstances of the criminal had over the years taken a back seat in the sentencing process. And then finally just as Madan Lakour's judgment in Shankar Kishan Rao Khade versus state of Maharashtra's case where the Supreme Court visited the entire all the judgments of the court since Pachan Singh and held that aggravating circumstances of the crime were not exhaustive and the test that had to be applied was one the crime test, two the criminal test, three the rarest of rare test. And it's almost like a mathematical formulation they said that the crime test had to be fully satisfied that is there should be no mitigating circumstances as far as the crime was concerned only then you move on to the criminal test. And there must be no mitigating circumstances as far as a criminal was concerned and then you looked into whether you award death penalty on the basis of the RR test or the rarest of rare test. This is perhaps the closest we've come so far to some kind of intelligent guidelines that the Supreme Court has given on the subject. So really in this landscape what we see is that the Supreme Court itself has not followed the law it has laid down in Pachan Singh. And therefore the confusion that we see in this report with judges not really understanding what was the ratio of Pachan Singh's case is partly because over a period of time the Supreme Court has not revisited, has not gone back in Red Pachan Singh's case and has not really understood what that case meant. Let me reiterate Pachan Singh made it absolutely clear that while awarding the death penalty you have to look at the aggravating and mitigating circumstances of the criminal as well as the aggravating and mitigating circumstances of the crime. Unfortunately in most cases and I noticed that even in the Yakup Mem and Judgement there was about a page and a half discussion on sentencing and there was absolutely no procedure that was followed whereby the aggravating circumstances were listed, the mitigating circumstances were listed and certainly nothing about the criminal, the fact that he had suffered this long period of incarceration. The fact that he was a model prisoner, the fact that he had psychiatric problems post his conviction and solitary confinement none of that found mention in the discussion leading to the imposition of the death penalty on Yakup Mem. So really what do we have here? We have a completely confused bag where we are not really sure what is expected from judges. In a way lawyers presenting cases are also to be blamed. Defense lawyers take sentencing as one of the easiest appearances in the entire criminal case and it's over in five minutes. My client is innocent, my client has been wrongly convicted, I will be filing an appeal if the sentence has been awarded by a subordinate court. And no attempt is made by the lawyer to introduce facts which will be important for the judge to come to an ultimate formulation. I've always maintained that in death penalty hearings there must be compulsory evidentiary hearings. You have to, and if the state is seeking death penalty like you have the probation officer's report, you must call for a report. We must know how long this prisoner has been incarcerated. What is his mental health status? What is his background? Is there possibility of reform? How has he conducted himself in jail? What does his family look like? Something on the basis of which courts can then determine whether or not there are mitigating circumstances. That is completely absent from our jurisprudence and that is really the tragedy of our system today. I know we will subsequently talk about the other problems of the criminal justice system where we really can never be sure whether we are coming to a right verdict or not. Given the fact that so much of our system is based on torture, is based on illegal collection of evidence, is based on lack of adherence to procedural requirements. In such a system when you are awarding the highest penalty, then I think it is important for us to remember the tests laid down both in Bachen Singh's case as well as in the subsequent judgement of Shankar Khade where the Supreme Court talks of the crime test, criminal test and the RR test. There was a period in the Delhi High Court when we had a bench headed by Justice Mukta Gupta and Justice Murli Dhar where they were dealing exclusively with murder references which are death penalty cases where they insisted on compulsory evidentiary hearings for purposes of deciding whether the death penalty needed to be confirmed or not. I think it was a very, very good practice but that stopped even in our court today and we no longer have compulsory evidentiary hearings for death penalty. I think that is a requirement which must never be ignored. I think lawyers must and particularly, I mean there is this case which the centre has asked me to deal with where we are dealing with a couple who were involved in human sacrifice. One of the interesting things that comes out is that it was a horrific crime but they made no attempt to hide the fact that they had done what they had done and they surrendered as soon as the police came and as soon as the neighbours came. Some of these things are important for purposes of sentencing. Did they resist arrest? Did they try and hide the crime? Did they run away? They simply said look we have done this, we believe we had to do it to attain whatever we had to attain. These are factors which are important but even in that case we noticed that the evidence was very sketchy. There was absolutely no attempt made by defence lawyers both in the trial court as well as in the high court to present the mitigating circumstances of the criminal. And that really is at the heart of this discussion. Both judges and lawyers need to know the law. All judges and lawyers have to revisit Bacchan Singh and have to find innovative ways in which they can present the evidence with respect to there. I think we are obsessed with the fact that we should say nothing which will in any way add to the fact that he may be guilty. So we are not going to discuss the fact that he did this because he was in a difficult mental space because then there is a tacit admission of the fact that we committed the crime. While that may be relevant I will still say that attempts must be made at all times to track the mental health record of criminals, the fact that they have behaved in a particular manner in jail, their families, the background they come from. None of this is done and as a consequence we really argue death penalty on an empty slate. We have nothing to go by and we have nothing to present to the court when we plead that there are in fact mitigating circumstances which do not justify the imposition of the death penalty. So this report is revealing but I am not surprised because I have seen that in 30 years of my practice. Long ago Justice Krishna Iyer said that bail is really the hunch of the bench. It is quite similar with respect to all other cases. Some judges feel this is a heinous crime, others don't. It really depends where your case is listed on which day and that could be the difference between life and death but that is the way our system is. And so that is something which is very worrying and that is something which has come out very beautifully in this report. Thank you. I remember about almost 18 years back I was as a law student involved in organising a seminar here in India International Centre in the main one on death penalty and I was wondering what has changed. What has changed has been the kind of research that people like your group have done and which has completely changed the way we think about this at some level. And I really want to congratulate you and your team the entire centre on death penalty to have brought out this report and the report that you did last year as well. Because you really provide us a kind of empirical background to think about this issue because I was thinking about the difference. The difference is the kind of material that we put together 18 years back was almost entirely from not from India actually. It was actually the kind of material that we put together from Amnesty International working in the UK or much of the material coming from the US. And that is really the strength of the research that you guys have done and Amnesty International in India before you guys have. So congratulations again. Now to my mind the report that you guys produced last year and this report. You know it seems to be and it is really about the problem of death penalty which is what your mandate is. But really for me what unsurprisingly brings us to think about much more carefully is the absolute pathology of the criminal justice system in almost every aspect. And as you say that is the principal challenge of this report, the disconnect as you ended with. The disconnect of the fact that all these judges, I mean most of the judges, 39 out of the 60 judges agreed that the fundamental flaws in the criminal justice system that we have today. And we talk about that in some detail as you do in your first chapter. But at the same time they were able, many of these same judges were able to convert the debate on death penalty into the standard modes of tropes of retentionist versus abolitionist mode. So that is really interesting this kind of, you call it double speak or you can call it schizophrenia. I will just read out the conclusion of the report so you can see what I am trying to gesture towards. Just because that is I think one of the central challenges that this report really throws at us. Among the starkest outcomes of this study is the negligible impact of the skepticism concerning the criminal justice system on the support of the death penalty. This is page 141 of the report. So there is a widespread skepticism among these same judges about the criminal justice system but that does not seem to affect their position on death penalty too much. While the arguments in support of the death penalty in abstraction may seem attractive, the normative coherence of the arguments in fear of the death penalty begins to thin when applied to the realities of the system. This near inexplicable double speak on the one hand explicitly acknowledging the crisis within India's criminal justice system. On the other hand articulating such strong support for death penalty creates a peculiar situation where the death penalty starts to appear as a perfect distraction from the criminal justice system chronic malaise. And that's really the central problem at some level I think which we have to somehow learn to grapple with. And maybe one way to think about it and I'll try to hazard a guess or two about this particular possibility of speaking two different languages about something which are closely tied. And let's think about this. I mean if we were having this debate on death penalty like we were having 18 years back, what is the difference, or are we having now? What is the difference in this debate on death penalty in India versus it happening in any other jurisdiction? What is the specificity of the death penalty debate in India? At some level of course there are fundamental criminal justice system everywhere but what happens very often with these standard death penalty debates and as law students in particular are very familiar in writing articles and having these familiar debates on death penalty is that it becomes like an abstract question with those pedagogical issues about retribution, deterrence, reformation, standard troops in which we can have these debates in law school classrooms as well as amongst us on TV rooms etc. Whenever there is some high-profile person being hanged, which is muscifully not as often as it could be. So it's interesting that this could happen because we could have that abstract debate. At the same time there's this problem which everybody knows and that's precisely the interesting fact that everybody knows that this is the nature of the criminal justice system and the kind of public secrecy aspect of this. So as the first chapter of this report discusses which is on really the systemic crisis of the criminal justice system which Mojad is cognizant of and that's really interesting because they all know that the entire process which the criminal trial is supposed to represent the kind of ideas of fairness is actually doesn't work for most people who, especially for people who come from poor backgrounds. So the four particular issues that are highlighted in this first chapter, first which is around fabrication of evidence which is really the big issue on which they talk about planting of evidence which has been made possible by section 27 of the Indian Evidence Act. So as we know, most of us know that confessions to a police officer is inadmissible in general except for when there's a kind of an exception under Indian Evidence Act section 27 which allows for evidence which is to put it very crudely which is discovered on that part of the confession which leads to discovery of evidence which is material to the case is deemed to be admissible. So this has really led to a chronic case of planting of evidence, this is an absolutely standard practice and that's a really interesting part of this report because they would talk about the section and they would start talking about the practice in every aspect and that is a really interesting the question of law in books and law in action that we all are familiar with and the interesting thing is that judges know exactly what's going on and they are extremely familiar with the kind of modus operandi of these processes that almost all of these instances of section 27 confessions basically by back dot section 27 allowed confessions to be admissible and evidence is routinely planted by the police etc. So and this by the way section 27 was challenged and in another in this segment called Devman Upadhyay in 1963 I think Jaisa Subarao gave a minority opinion, he according to him it should have been struck down and there was a majority which obviously upheld it and we hope that like Jaisa Subarao's other minority opinion and right to privacy maybe this will also be some day struck down but there's no reason to hold your breath on that but so this is obviously a chronic problem which judges are well aware of the other is of stock witnesses, again a well-known instance of how stock witnesses in case of recovery are created, of recovery documents how they are made now these are all issues that are familiar most of us many of us who are not from legal background familiar through Hindi cinema or other you know regional cinemas about these kind of practices are absolutely routine and judges are well aware of this and they are well aware of the problem of torture, torture is widespread and they most of them are you know know exactly what's going on so it's not like they are not on it, they are you know even judges who don't come from a criminal background aware of what's going on and the fact of legal representation the fact that many of these people as the prior report that they produced the center produced last year in a provide example evidence how it's the most of the people on death row are people from poor backgrounds who have not had adequate legal representation at the trial level and the fact of the kind of the problem of legal aid which the fact that it's so poorly you know staffed etc is the judges are well aware of this and the fact that they are also well aware of the fact that wrongful conviction is rather more common than you think that they are aware of all these pathologies and frankly these pathologies are all pathologies of the police even the question of legal representation is really the question of the fact that they don't especially the poorer folk don't have representation at the investigation stage when they really need to you know to make sure the police don't do what they usually do so it's really the fact that at one level they are aware of the materiality of police investigations and what goes on in these trials the judges supreme court judges the same time when it comes to these debates on what the position on death penalty is they will go into abstract arguments about why you know there are kind of standard positions that many of you are aware of these issues of retribution or of deterrence or of all of those things which you know which we are familiar with so what is remarkable is this kind of a disconnect between these two and the fact that you know you can have this kind of a philosophical abstract debate on this issue and speak in bromides in general terms about it while you can constantly aware that the system itself which has made this possible is fundamentally broken you know so and this is by the way I don't know whether this is peculiar to the judges alone many of us who clamor for new criminal statutes if it newer criminal remedies for social problems we don't seem to understand that you know that until we deal with the problem of it's not just the judges you know that at one level we are talking about more and more statutes of criminal remedies at the same time you know the fundamental problems of criminal procedure the fundamental facts that you know the fact that how police functions is not just about terror offenses or capital crimes but and of course in those cases it's fairly clear I mean in the sense that those cases are obviously most deserving of attention because the severity of sentence obviously of death penalty itself but the fact that this problem of criminal procedure and the fact of dysfunctionality which is really about police functioning or malfunctioning really because again we are talking about misuse of 1627 1627 is created to be misused you know it's basically it is there asking for it to be misused so you know that the term itself is again you know kind of it doesn't help us understand this better so it's really about the fact that we also not just the judges I mean we also continue to have these abstract debates on criminal justice in order of criminalization introducing death penalty for newer offenses or not or severe penalties for them without really necessarily discussing the dysfunctionality of the police functioning or of investigative procedure and it seems like we are able most of us including judges are and it is really remarkable that they are completely on the ball with regard to all of this but the same time many of them consider it a necessary evil many of them think that you know that this is perhaps you know how it is and so in a sense they have to be pragmatic with this so I think this is really a kind of a pathology which really infects not just it infects many of us who who are trying who try to understand the problem of criminal law in India in general you see it's not just and for me this is precisely the merit of the work that the centre has been doing which that while the you know it looks through the axis of death penalty it really shines a light through on the entire criminal justice system and show us the sheer extent of the problem that we are dealing with on this I have a couple of suggestions also just to take this further one would be that along with this report it would be really useful if you know some of the interviews especially you can publish in more detail if they are willing judges are not averse to it because some of them are really instance of this judge who Supreme Court judge who used to be a district just talking about another district judge being taken as a recovery witness and who refused to re-narrate the police story and then constable immediately wanted to arrest him and threaten him etc but luckily another policeman recognized him as another district judge so these are really interesting stories to bring us a little I am sure there is so much more that you can do with the material that you have got the kind of research that you have been able to do and the kind of access you guys have been able to achieve is really you know unparalleled in legal research in India so that would be wonderful and another aspect which maybe some more detail would be useful would be some of many of these judges have backgrounds in criminal law as public prosecutors or as you know as district judges etc so that would be really useful to kind of disaggregate this material because obviously it makes a major difference because you know and the stories are much more rich and it's interesting to contrast that also that's another variable to keep in mind but really I think I think for me the principle take away was really on this question of the disconnect and I think I mean I cannot I mean for me it's just beginning to think about it and I think we really need to think about this together thank you