33 % of 69 who were awarded death by Supreme Court got amicus aid

NEW DELHI: Over a third of the 69 people handed death penalty by the Supreme Court between 2000 and 2013 had amicus representation (where an advocate is appointed by the court if an accused is unrepresented).

The SC had in three recent cases (Santosh Kumar Bariyar vs State of Maharashtra, Sangeet vs State of Haryana and Shanker Kisan Rao Khade vs Maharashtra) acknowledged error in granting death penalty in 16 cases involving 20 individuals. Disturbingly, in over half these cases in which the court found error, the accused were represented by amicus curie.

These instances have been cited in a report on death penalty to strike a note of caution regarding the “over-representation” of amicus curie, indicating that effective legal aid continues to be a concern for the socially and economically backward.

Earlier, TOI had front-paged an article on how the law was loaded against the poor and minorities. Data from interviews with 373 death row convicts over a 15-year period had found that three-fourths of those given death penalty belonged to backward classes, religious minorities and 75% were from economically weaker sections.

Another study cited by the Law Commission in its report on death penalty ‘Hanging in Balance: Arbitrariness in Death Penalty Adjudication in India’ reaffirms this bias against the socially-economically disadvantaged. The study shows that out of 281 persons who were awarded death penalty by at least one level of court between 2000 and 2013, and whose cases went up through all tiers of the judicial system, 128 persons were given death sentence only by the trial court. Both the high court and the SC either commuted the sentence or acquitted the person in these cases. Of these, 7.03% of such accused were represented by amicus curie.

In the same period, 79 accused were given death penalty by both the trial court and the high court but were either acquitted or had their sentences commuted by the SC. Amicus representation of this was 22.8% and finally, of the 69 persons who were given death penalty by the SC itself, 36.2% has amicus representation.

“The over-representation of amicus curie in cases relating to error and to the imposition of death penalty is a cause for caution, not least because it may signal the impact of structural and systemic biases on the imposition of death penalty. Merely because a person is represented by amicus before the SC does not imply that the person did not get good legal representation. However, the fact that an accused is represented by amicus does indicate the person’s economic circumstances, the ability to hire quality legal representation before trial courts, and to ensure that a robust record is created at the trial stage level, is likely to be compromised in such instances,” the report said.

“The impact of the lack of access to quality legal representation particularly at the trial stage is also likely to be compounded by the existence of inconsistencies in the death penalty jurisprudence, which result in ill-trained lawyers having to argue before inadequately guided judges on an incoherent area of law. This may be partially responsible for the higher presence of amicus representation in cases in which the death penalty is upheld by the SC,” the report added.