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Capital punishment in India is the highest legal penalty for crimes under the country's main substantive penal legislation, the Bharatiya Nyaya Sanhita (formerly Indian Penal Code), as well as other laws. Executions are carried out by hanging as the primary method of execution. The method of execution per Section 393(5) of Bharatiya Nagarik Suraksha Sanhita, 2023 is "Hanging by the neck until dead", and the penalty is imposed only in the 'rarest of cases'.
Currently, there are around 564 prisoners on death row in India. The most recent executions in India took place on 20 March 2020, when four of the 2012 Delhi gang rape and murder case perpetrators were executed at the Tihar Jail in Delhi.
History
In the Code of Criminal Procedure (CrPC), 1898 death was the default punishment for murder and required the concerned judges to give reasons in their judgment if they wanted to give life imprisonment instead. By an amendment to the CrPC in 1955, the requirement of written reasons for not imposing the death penalty was removed, reflecting no legislative preference between the two punishments. In 1973, when the CrPC was amended further, life imprisonment became the norm and the death penalty was to be imposed only in exceptional cases, particularly if a heinous crime committed deems the perpetrator too dangerous to even be 'considered' for paroled release into society after 20 years and required 'special reasons'. This significant change indicated a desire to limit the imposition of the death penalty in India.
Capital offences
Capital punishment in the Bharatiya Nyaya Sanhita
{| class="wikitable sortable"
|-
! Section under BNS or other law !! Nature of crime
|-
| § 65(2) of BNS || Rape of a child below 12 years of age
|-
| § 66 of BNS || Rape and injury which causes death or leaves a woman in a Persistent Vegetative State
|-
| § 70(2) of BNS || Gang rape of a child under 18 years of age
|-
| § 71 of BNS || Repeat offenses in the context of rape
|-
| § 103(1) of BNS || Murder
|-
| § 103(2) of BNS || Lynching
|-
| § 104 of BNS || Murder by prisoner serving life sentence
|-
| § 107 of BNS || Abetment of suicide of child or person of unsound mind
|-
| § 109(2) of BNS || Attempted murder by prisoner serving life sentence
|-
| § 111(2)(a) of BNS || Organized crime offenses causing death
|-
| § 113(2)(a) of BNS || Terrorism resulting in the death of any person
|-
| § 140(2) of BNS || Kidnapping or abducting in order to murder or for ransom
|-
| § 147 of BNS || Treason against the Government of India
|-
| § 160 of BNS || Abetment of mutiny, if mutiny is actually committed in consequence
|-
| § 230(2) of BNS || Giving or fabricating false evidence with intent to procure conviction of capital offence resulting in death of innocent person
|-
| § 232(2) of BNS || Threatening any person to give false evidence resulting in death of innocent person
|-
| § 310(3) of BNS || Felony murder while committing dacoity or banditry
|-
|}
Capital punishment in non-BNS offences
{| class="wikitable"
|+
! Act
! Section
! Offence description
|-
|The Organized Crime Act, 2001
| 3 (1)
| Organized crime resulting in death of person
|-
| Army Act, 1950
| 34
| Offences in relation to enemy and punishable with death
|-
| Army Act, 1950
| 37
| Mutiny
|-
| Army Act, 1950
| 38 (1)
| Desertion
|-
| Assam Rifles Act, 2006
| 21
| Offences in relation to enemy and punishable with death
|-
| Assam Rifles Act, 2006
| 24
| Mutiny
|-
| Assam Rifles Act, 2006
| 25 (1) (a)
| Desertion
|-
| Assam Rifles Act, 2006
| 55
| Civil offences
|-
| Bombay Prohibition (Gujarat Amendment) Act, 2009
| 65A (2)
| Death caused by the consumption of Laththa
|-
| Border Security Force Act, 1968
| 14
| Offences in relation to the enemy and punishable with death
|-
| Border Security Force Act, 1968
| 17
| Mutiny
|-
| Border Security Force Act, 1968
| 18 (1) (a)
| Desertion
|-
| Border Security Force Act, 1968
| 46
| Civil offences
|-
|Coast Guard Act, 1978
|17
|Mutiny
|-
|Coast Guard Act, 1978
| 5
| Person contravening with intent to wage war or assist external aggression or any violation of provision made under S.3
|-
| The Geneva Convention Act 1960
| 3
| Grave breaches of Geneva Conventions
|-
| The Explosive Substances Act, 1908
| 3 (b)
| Punishment for special category of offences relating to explosive substances, likely to danger life or cause serious harm
|-
| The Indo-Tibetan Border Police Force, Act 1992
| 16
| Offences in relation to enemy or terrorist
|-
|The Indo-Tibetan Border Police Force, Act 1992
|19
|Mutiny
|-
|The Indo-Tibetan Border Police Force, Act 1992
|20 (1) (a)
|Desertion
|-
|The Indo-Tibetan Border Police Force, Act 1992
|49
|Civil offences
|-
|The Karnataka Control of Organised Crime Act, 2000
|3 (1) (i)
|Organized crime resulting in death of person
|-
|The Maharashtra Control of Organised Crime Act, 1999
|3 (1) (i)
|Organized crime resulting in death of person
|-
|The Narcotics Drugs and Psychotropic Substances Act, 1985
|31A (1)
|Repeated commission of offences involving commercial quantity of any narcotic drug or psychotropic substance
|}
List of capital offences challenged in the court
{| class="wikitable"
|+
!Act
!Section and offence description
!Judicial challenges
|-
|Indian Penal Code
|302 - Murder
|Bachan Singh v. State of Punjab (1980)
|-
|Indian Penal Code
|364 - Kidnapping for ransom
|Vikram Singh & Anr v. Union of India (2020)
|-
|Indian Penal Code
|376 E - Certain repeat offences in the context of rape
|Vijay Jadhav v. State of Maharasthra (2019)
|-
|The Narcotics Drugs and Psychotropic Substances Act, 1985
|31A (1)
|Indian Harm Reduction v Union of India (2011)
|-
|Arms Act, 1959
|27 (3) (Repealed)
|State of Punjab v. Dalbir Singh (2012)
|}
Categories of people exempted from capital punishment
{| class="wikitable"
|+
!Categories
!Law or case
|-
|Juveniles
|Section 21, Juvenile Justice Act (No minor in conflict with the law shall be sentenced to death)
|-
| People with mental illness or insanity
| Shatrughan Chauhan v. Union of India (2014) (Para 79- 87)
|}
Process
Trial court
After the completion of proceedings as prescribed by the Code of Criminal Procedure, the judge pronounces the judgment in a case under Section 235. In case of conviction of the accused, there shall be a mandatory pre-sentencing hearing as according to Section 235(2),
Confirmation by High Court
After the decision and sentencing by the Court of Sessions, a high court needs to confirm it for the death sentence to be valid. The high court may confirm the death sentence awarded by the Court of Sessions, pass any other sentence warranted by law, annul the conviction, convict the person of any offence for which the Court of Sessions might have convicted them, order a new trial on the same or amended charge or acquit the accused person under Section 368, Code of Criminal Procedure. The High Court may also enhance the sentence awarded by the Court of Session to death sentence according to Section 386 (c), CrPC. The High Court shall not enhance the sentence awarded to the accused without giving them a reasonable opportunity of showing cause against such enhancement and while showing such cause, the accused may even plead for acquittal or reduction of sentence awarded by the Court of Session. CrPC may direct the public prosecutor to appeal to the High Court against the sentence granted by the Court of Session on grounds of inadequacy. Further, exercising of its suo-moto revisional powers under Section 397, CrPC read with Section 401, CrPC, the High Court may, even in the absence of an appeal enhance the sentence awarded by the Court of Session. The High Court may also in accordance with Section 367 of the Code conduct or direct further inquiry into or additional evidence to be taken on any point bearing upon the guilt or innocence of the convicted person. Unless directed by the High Court, the accused need not be present during this period of this inquiry or when additional evidence is taken. The High Court also has the power under Section 407 of the CrPC to withdraw a case pending before a subordinate court and conduct the trial, and may award the sentence of death.
Special leave petition
After the death sentence is confirmed by the High Court, an appeal by Special Leave Petition (SLP) under Article 136 of the Constitution may be filed. The Supreme Court may in its discretion after considering the issues grant special leave to appeal under Article 136 of the Constitution. Exercising its power under Article 136, the Supreme Court decides whether the special leave petition deserve to be heard as appeals. Correcting an earlier trend of dismissal of SLPs involving the death sentence in limine (dismissal of Special Leave Petition at the threshold without giving any detailed reasons) it was held in two cases of Babasaheb Maruti Kamble v. State of Maharashtra, November 2018 and Jitendra @ Jeetu v. State Of Madhya Pradesh & Others, July 2020 that special leave petition filed in those cases where death sentence is awarded by the courts below, should not be dismissed without giving reasons, at least qua death sentence. It was opined that in such cases a deeper scrutiny coupled with reasons in support of death penalty should be given by the Court.
Review and reopening of a review
A petition seeking review of a judgment or order passed by the Supreme Court may be filed under Article 137 of the Constitution before the Supreme Court within thirty days from the date of such judgment or order. As per the Supreme Court in Mohd Arif @ Ashfaq v. The Registrar, Supreme Court of India & Ors, September 2014, review petitions for death sentence cases should be heard in open court, but there would be a time limit of 30 minutes for oral hearing. Such a procedure would be just and fair. The cases would be heard by a bench of three judges, and the special procedure would apply to all cases of death sentence where the review had been dismissed but the sentence was yet to be executed, including cases brought under Terrorist and Disruptive Activities (Prevention) Act. Various cases such as M. A. Antony @ Antappan v. State of Kerala, April 2009, Md. Mannan @ Abdul Mannan v. State Of Bihar, April 2011, Ambadas Laxman Shinde And Ors V. The State Of Maharashtra, October 2018 were reopened after being dismissed earlier to be heard in the open court after the above judgement, which resulted in commutations and an acquittal.
Curative petition
As per the Supreme Court judgment in Rupa Ashok Hurrah v. Ashok Hurrah & Ors, April 2002 after the dismissal of the review petition, the Supreme Court may allow a curative petition to reconsider its judgment or order if it is established that there was a violation of principles of natural justice or apprehension of bias on part of a judge. The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers. The curative petition would be circulated before the same bench which decided the review petition, if available, or the three senior-most judges of the Supreme Court. The curative petition would be disposed of without oral arguments, unless ordered otherwise by the Supreme Court. The president may consider the case of the convict and may pardon the death sentence. The Governor cannot pardon a death sentence. The Governor can only suspend, remit, or commute a death sentence under article 161 of the Constitution of India.
Various legal issues surrounding mercy petition has arisen time and again, one of them being delay. In V. Sriharan @ Murugan v. Union of India, February 1947, the Supreme Court reiterated that the clemency procedure under Article 72/161 provides a ray of hope to the condemned prisoners and his family members for commutation of death sentence into life imprisonment and, therefore, the executive should step up and exercise its time honoured tradition of clemency power of guaranteed in the constitution one way or the other within a reasonable time. In the case of Shatrughan Chauhan v. Union of India, January 2014, a three-judge bench of the Supreme Court delivered a landmark judgment on the death penalty: holding, in particular, that an excessive delay in carrying out the death sentence was an essential mitigating factor in a plea for commutation. This was also held in a previous case Triveniben V. State of Gujarat & Ors, February 1989 stating that the Court may consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. Though the inordinate delay may be a significant factor, that by itself cannot render the execution unconstitutional. Further, the courts have also recognised some other supervening circumstances which should be considered during mercy petition such as mental illness/insanity, trauma, solitary confinement etc. It is addressed to the superintendent of the relevant prison who is supposed to return the warrant to the court after certifying that the death sentence has been carried out. In Shabnam v. Union of India, the Supreme Court held that the principles of natural justice have to be read into death warrant proceedings. The convict should be allowed to exhaust all the legal remedies available such as appeal, review and mercy petitions. The guidelines given in the PUDR case are needed to be followed before issuing the death warrant.
Constitutionality of the death penalty
Prior to the examination of Supreme Court of India, the abolition of the death sentence in India was examined by the 35th Law Commission report in response to a resolution moved by Raghunath Singh, Member of Lok Sabha. The Law Commission of India stressed on the reasoning that the conditions in India demands the contrary position to the proposition of 'abolition of death penalty' and concluded the death penalty should be retained. It said that the variety of upbringing, the diversity of the population, the disparity in the levels of education and morality and the paramount need for maintaining law and order were fundamental factors and issues that impede India from taking a favourable position to abolish the capital punishment. However, the jurisprudence regarding the capital sentence inordinately changed throughout various landmark judgments pronounced by the Supreme Court of India.
Supreme Court of India on the constitutional validity of the death penalty
The first challenge to the capital punishment in India came during the 1973 case of Jagmohan Singh v. State of U.P, October 1972. The judgment came before the CrPC was re-enacted in 1973, whereby the death sentence constituted an exceptional sentence. It was argued that the death penalty violates to the right to life and equality and guaranteed by the Indian Constitution. Moreover, the uncontrolled and unguided arbitrary discretion in the judges to impose capital punishment violates Article 14 of the Indian Constitution and the petitioners contended that the procedure for consideration of circumstances in order to pronounce finding and reasoning to make judicial decision between capital punishment and life imprisonment is not available under CrPC, 1898, therefore it violated Article 21 of the Indian Constitution. However, the Supreme Court of India refused to accept the argument and held that the death sentence is pronounced after detailed recording and evaluation of the aggravating and mitigating circumstances, thus such procedure justifies the imposition of capital punishment and does not violate Article 21 of the Indian Constitution. Moreover, the criticism of judge-centric or wide discretion on the judges on the fixation of the punishment is subject to the scrutiny of the superior judges and premised on the well recognized judicial principles. The judgment also discussed the US Supreme Court Decision in Furman v. Georgia, October 1971 where the US Supreme Court struck down the death sentence scheme as it violated the Eighth Amendment of the US Constitution as being cruel and unusual punishment. But, the Supreme Court of India refused to accept the reasoning and stated that there is no rational basis for concluding the death sentence as unconstitutional because the Indian Constitution does not have an equivalent to the Eighth Amendment.
Landmark cases on constitutionality of the death penalty
Since the incorporation of Code of Criminal Procedure, 1898, while imposing the death sentence, the courts were obliged to provide 'special reasons' for not imposing the death sentence. The true departure from death sentence as a norm to an exception came after the introduction of Code of Criminal Procedure re-enacted in 1973. Also, the CrPC 1973 introduced the Section 235(2), which allowed the post-conviction hearing on sentencing which drastically changed the jurisprudence allowing a careful evaluation and analysis of circumstances revolving around the jurisprudence of death sentence.
Rajendra Prasad v. State of Uttar Pradesh, February 1979
Post the re-enactment of CrPC 1973, there was ambiguity in the jurisprudential understanding of 'special reasons' for imposing the death sentence. The Supreme Court in Rajendra Prasad v. State of Uttar Pradesh, February 1979 dealt with the legal policy on sentencing discretion and also comprehensively discussed the meaning of 'special reasons' for inflicting death sentence on exceptional grounds. The Court departed from retributive theory and emphasized on the deterrence and reformative theory as the social goals. Firstly, the re-enactment of CrPC 1973 had made the death penalty as an exception with regards to the rule of imposing life imprisonment for offences consist of choice between life imprisonment and death sentence. Secondly, the dictum of Rajendra Prasad v. State of Uttar Pradesh, February 1979, had interpreted the parameter on which 'death sentence' must be related to circumstance of the criminal and not the crime itself. The primary challenges to the death penalty in Bachan Singh v. State of Punjab, May 1980 was that the death punishment is unnecessary, cruel, inhumane and degrading treatment and the punishment of death sentence does not serve the purpose of deterrence. Furthermore, the constitutional validity of Section 302 of IPC and Section 366(2) of CrPC was challenged in this case on the ground that the imposition of death penalty is arbitrary and whimsical. However, the Supreme Court by a majority of 4:1 did not accept this contention and affirmed the constitutional validity of death sentence but propounded the doctrine of 'rarest of rare' as that the death sentence can only imposed 'in the rarest of rare cases when the alternative option is unquestionably foreclosed." Moreover, the Supreme Court ascertained that the "special reasons" in the context of inflicting death sentence must pay due regard to both the crime and criminal and the relative weight has to be given both aggravating and mitigating circumstance prior to the stating of special reasons for inflicting the death sentence. The Supreme Court recognized that the mitigating factors includes the mental condition, the age of the accused, the possibility of reforming or that the person committed the crime under the superior orders. two years after the majority's decision, he held the death penalty to be unconstitutional. He opined that the capital sentencing system, which required 'special reasons' without any guidance on its meaning, essentially left decision-making to the subjective assessment of individual judges, making it arbitrary.
Mithu v. State of Punjab, April 1983
In this case, the court discussed Section 303 of the IPC which provided for a mandatory death sentence for offenders serving a life sentence. This section was based on the logic that any criminal who has been convicted for life and still can kill someone is beyond reformation and so, the only suitable punishment left would be death. It was discussed that the original idea behind drafting of this section was to discourage assaults by life convicts on the prison staff, but the language chosen by the legislature had widely exceeded its intention. It was held that Section 303 violated right to equality and right to life and personal liberty as conferred under Articles 14 and 21 of the Constitution. While dissenting on the question of propriety of the death penalty, the remaining two judges on the bench emphasized on the duty of courts to be constitutionally correct, even if its views are counter-majoritarian. Public opinion is generally formed by emotionally charged narratives which need not necessarily be legally correct, properly informed. They may even be against the values of rule of law and constitutionalism that courts are bound by. The court reiterated the view in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra that in death penalty sentencing, public opinion is neither an objective circumstance relating to crime nor to the criminal. The death sentence was commuted to life imprisonment after taking into consideration the possibility of reform and rehabilitation of the appellant that was evidenced by his good conduct in prison.
Methods of execution
Execution by hanging
Hanging is an ancient method of execution which was a part of the Roman law, Anglo-Saxon law, English law, French law, and German law. Hanging as a punishment was a prevalent and standard mode of execution until the abolition of capital punishment in the United Kingdom in 1965. This traditional method of execution may involve suspending the convict from a gallows or crossbeam until death occurs from asphyxia, or it may be that the condemned person stands on a trapdoor and when the trap is released he falls a couple of metres until stopped by the rope tied around his neck or a knot in the noose helps jerk back the victim's head sharply enough to break the neck. This mode of execution is widely debated and the Law Commission in its report in 2015 stated that the shift from hanging to more advanced methods execution must be made in India. The court discussed various historical influences as well as the reports of the law commission and held that execution by hanging was a fair, just and reasonable procedure within the meaning of Article 21 and hence is constitutional.
In the case of Rishi Malhotra v. Union of India, October 2017, hanging as a method of execution was challenged in a writ petition and it was argued that Section 354(5) CrPC was not only barbaric, inhuman and cruel but also against the resolutions adopted by the United Nations Economic & Social Council (ECOSOC). This case brought out the discussion around the shift from hanging to other advanced methods of execution in various developed countries. It was also discussed that as per international standard, execution should be as quick and as simple as possible and should produce immediate unconsciousness passing quickly into death.
Execution by shooting
Apart from hanging, the other method of execution allowed under the Indian law is shooting, which is provided for under the Army Act, Navy Act, and Air Force Act. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in Section 34 (a) to (o) of The Air Force Act, 1950. It is at the discretion of the court martial whether the method is by hanging or shooting. The Army and Navy Acts have similar provisions. Section 163 of the act provides for the form of the sentence of death as;
Sentencing procedure and framework: Landmark cases
Sentencing procedure
Section 235(2) of the CrPC provides for a bifurcated trial, where the conviction and sentencing are meant to be separate proceedings. The matter was remanded to the Trial Court for giving an opportunity to the accused to make a representation regarding the sentence.
Dagdu v. State of Maharashtra, April 1977
The Supreme Court held that the decision in Santa Singh v. State of Punjab, August 1976 cannot be read to say that failure on the part of the court to 'hear' an accused on the question of sentence must necessarily entail a remand to the trial court. After convicting an accused, courts must unquestionably hear him on the question of sentence but if they omit to do so, it would be open to the higher court to remedy the breach by giving a real and effective hearing to the accused on the question of sentence. The accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The Court may adjourn the matter in order to give to the accused sufficient time to make submissions on sentence. Consequently, the Supreme Court granted liberty to the accused persons to produce materials on the question of sentence.
Mukesh v. State of NCT of Delhi, May 2017
It was argued by the accused persons that the Trial Judge had not considered the aggravating and mitigating circumstances in respect of each individual accused. The Court went through the law laid down by the Supreme Court in Santa Singh v. State of Punjab, August 1976 and Dagdu v. State of Maharashtra, April 1977, and held that there are two modes to cure sentencing defects- 1. to remand the matter; 2. to direct the accused persons to produce necessary data and advance the contention on the question of sentence. Following the second mode, the Court gave an opportunity to the accused persons to file affidavits along with documents stating the mitigating circumstances. The counsels for the accused were allowed daily visits to the prison in order to communicate with the accused persons and file the requisite affidavits and materials. The prosecution was also granted liberty to file affidavits in response to the ones filed by the accused. The final judgment in this case was delivered on 5 May 2017.
Sentencing framework
In Bachan Singh v. State of Punjab, May 1980, a five-judge bench of the Supreme Court of India while upholding the constitutionality of the death penalty in India, also laid down an elaborate sentencing framework, requiring sentencing judges to impose the punishment only in the 'rarest of rare' cases. The court reinstated and reemphasized the principles of sentencing policy propounded in the Bachan Singh case. Also, the Court listed the two question that needs to be answered prior to the imposition of death sentence on individual cases. Firstly, is the offence committed so exceptional that there is no scope for awarding any other sentence? Secondly, even when weightage is accorded to the mitigating circumstances does the circumstances still warrants death penalty? It was held that the judges must prepare a balance sheet of aggravating and mitigating circumstance of the crime and criminal and analyze the factors prior to making up choice between death sentence and life imprisonment. However, the Supreme Court held that the death penalty may imposed on the ground where the collective conscience of the society is shocked that expect the judicial authorities impose the death sentence. The two bench of Supreme Court held that the nature and gravity of the crime, not the criminal should be considered as an appropriate method, for opting between choice of life imprisonment and death penalty. Subsequently, the precedent in Ravji was relied on as authoritative precedent. These judgments confirmed the death sentence without considering any mitigating circumstances related to the criminal. This position was directly contradictory to Constitutional bench judgment of Bachan Singh v. State of Punjab, May 1980. Finally, the Ravji v. State of Rajasthan, December 1995 decision delivered by the Supreme Court of India was rendered as per incuriam by another bench of Supreme Court in Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra, May 2009.
Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra, May 2009
The Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra, May 2009 judgment holds an important position in the attempt of Supreme Court to principally regulate the judicial discretion and bring consistency in the sentencing discretion of the judiciary in regards to death penalty. The Supreme Court in Bariyar held that the exclusive focus on the crime provided in the Ravji v. State of Rajasthan, December 1995 precedent is per incuriam, as it breaches the principles revolving around doctrine of rarest of rare propounded in Bachan Singh v. State of Punjab, May 1980. The Bariyar judgment again reemphasized that the aggravating and mitigating circumstances related to the sentencing discretion must not only be limited to crime alone, but both the factor crime and criminal should be taken into account. It has interpreted the Bachan Singh dictum in a radical manner, specifically on the sentencing aspect of death penalty. The Court expressed concern that there is lack of consistency and coherence in the aspect of sentencing discretion in regards to death penalty. The first and foremost contribution of Bariyar judgment is that it undoubtedly rejected the strict channelling of discretion or classification of particular types of offences deserves death sentence. The court critiqued the process of drawing a balance sheet of aggravating and mitigating circumstances and stated that they cannot be compared with each other as each of the factors are two distinct and different constituents of the incident. The Court also envisaged a new triple test, while awarding the death sentence and it required 'crime test'. 'criminal test' and the 'rarest of rare test' and this test was not equivalent to 'balance test'. The Court stated that the death sentence can only be inflicted, once they satisfy the 'crime test 100%', 'criminal test 0%' (there must no mitigating circumstances favouring the accused) such as possibility of reform, young age of the accused, lack of intention to commit the crime, no antecedents of criminal record. Once the aggravating circumstances are the fullest extent and no mitigating circumstances, the court needs to be satisfied with the rarest of rare case. The rarest of rare must be depended on the 'society centric' instead of 'judge centric' as to whether society approve death sentence in the awarding of the death penalty.
Rajendra Prahladrao Wasnik v. State of Maharashtra, December 2018
In this case, the accused was convicted of the rape and murder of a three-year-old girl. In review, a three-judge bench commuted his sentence to life imprisonment. Invoking Bachan Singh, the Court observed that it was required to consider the probability of reform and rehabilitation and not its possibility or its impossibility... 'it is the obligation on the prosecution to prove to the court, through evidence, that the possibility is that the convict cannot be reformed or rehabilitated'. The Court also held that mere pendency of one or more criminal cases against a convict cannot be a factor for consideration while awarding sentence.
Manoharan v. State by Inspector of Police, August 2019
The Supreme Court, through the majority opinion of Justice Nariman, upheld the sentence of death imposed upon the appellant. Justice Sanjeev Khanna dissented on the question of sentence and chose the lesser sentence of life imprisonment without remission. In his dissenting opinion, Justice Khanna noted that the Court in Machhi Singh v. State of Punjab, July 1983 required two questions to be answered to determine if a case was rarest of rare. These were whether there was something uncommon about the crime which rendered life imprisonment inadequate and whether the circumstances of the crime were such that there was no alternative but to impose the death sentence. Justice Khanna opined that the five categories indicated by the court in Machhi Singh v. State of Punjab, July 1983 (manner of commission of murder, motive of the murder, anti-social or abhorrent nature of the crime, magnitude of the crime and personality of the victim) related to the first question. The second question also has to be answered which could be done by reference to mitigating circumstances. He reiterated that the death sentence could be imposed only when the sentence for life is unquestionably foreclosed. In the facts of the case, Justice Khanna noted that the appellant had confessed to the crime before a magistrate without compulsion and this, he stated, was the first step back into society and should be treated as a mitigating circumstance. He therefore opined that the appropriate punishment in this case would be life imprisonment without remission.
Role of public opinion
The role of public opinion first gained prominence in the capital sentencing framework through the case of Machhi Singh v. State of Punjab, July 1983, which allowed imposition of the death penalty in case of anti-social or socially abhorrent nature of the crime. It held that courts must consider not only the rights of the criminal, but also the rights of the victim and society at large while considering the question of appropriate sentence.
Recently, in MA Antony v. State of Kerala, December 2018, the Supreme Court commuted the death sentence into life imprisonment and noted that the trial court committed an error by taking into account the disturbance caused by the crime to the collective conscience of the society. It introduced the concept of 'residual doubt' as a mitigating circumstance in Indian sentencing jurisprudence. The court stated that there could be a state of lingering uncertainty that exists, beyond 'reasonable doubt' but below 'absolute certainty'.
In 2019, the Supreme Court reiterated the 'residual doubt principle' of Ashok Debbarma in Ravishankar v. State of Madhya Pradesh, October 2019 and held that it creates a higher standard of proof over and above the 'beyond reasonable doubt' threshold in order to sentence someone to death.
Life imprisonment without remission or parole
Union of India v. V. Sriharan Murugan, December 2015
One of the questions involved the validity of the special category of sentence as created by Swamy Shraddhanada @ Murli Manohar Mishra v. State of Karnataka, July 2008. The court held that the special category of sentence created by Swamy Shraddhanada @ Murli Manohar Mishra v. State of Karnataka, July 2008 was valid in law. It further added that such a sentence could only be imposed by the high courts or the Supreme Court. However, the constitutional powers of remission under Articles 72 and 161 would be unaffected by such a sentence. The dissenting judges, Lalit and Sapre, speaking through Lalit held that such a sentence was not valid in law as it would amount to legislating a new sentence, and it was also trenching into the domain of the executive.
Mental illness and death penalty
The law provided for certain persons to be exceptions to the liabilities imposed by Criminal law. The law assumes persons such as children below the age of 7 and insane persons to be incapable of understanding the consequences of their act and therefore does not hold them accountable for any of the offences. The rule further extends to death penalty as well, i.e. persons who are insane and declared so by a competent court, cannot be given death penalty. The legality of the death sentence and its relation with the mental illness of the accused was discussed in various cases by the Indian Judiciary.
In the case of Devender Pal Singh Bhullar (Navneet Kaur v. NCT of Delhi, March 2014), the Court commuted the death sentence of the convict on the ground of inordinate delay in the execution of sentence and mental health problems faced by the petitioner.
In the case of Shatrughan Chauhan v. Union of India, January 2014, while discussing various other supervening circumstances which would lead to the sentence of death being commuted, it was held that mental illness of the prisoner would be a factor which would lead to a commutation and that no mentally ill person may be executed. The SC noting that there appear to be no set disorders or disabilities for evaluating the 'severe mental illness' laid down 'test of severity' as a guiding factor for recognizing those mental illnesses which qualify for an exemption. The court noted that these disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia. Therefore, the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. The notion of death penalty and the sufferance it brings along causes incapacitation and is idealised to invoke a sense of deterrence. If the accused is not able to understand the impact and purpose of his execution because of his disability, the purpose for the execution itself collapses.
Sexual violence and calls for the death penalty
Nirbhaya and Justice Verma Committee Report
The infamous and brutal gang rape case also known as the Nirbhaya rape case brought the issue of sexual violence into the notice of public, media and the Government of India. Responding to the protests and campaigns the government formed a committee headed by former Chief Justice of India, Justice J.S. Verma, Justice Leila Seth, and Mr Gopal Subramanium, former Solicitor General of India. The Committee submitted its report on 23 January 2013. It made recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms. The committee did not recommend the death sentence for sexual offences. The committee proposed "life imprisonment for the remainder of the convict's natural life" as the punishment for repeat offenders. In its conclusion on capital punishment for sexual offences, the committee held:
Criminal Law (Amendment) Act 2013
In consonance with the recommendations made by the Justice Verma Committee, the Government of India enacted the amending Act on 02.04.2013. Amendments were introduced in the Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 through the Criminal Law (Amendment) Act, 2013.
The amendment has led to the insertion of four new sections and recognised certain acts as offences. New offences like acid attack, sexual harassment, voyeurism, and stalking were incorporated into the Indian Penal Code under Sections 326A, 326B, 354A, 354B, 354C and 354D. The amendment brought some significant changes to the sections governing rape laws in IPC by enlarging the meaning of rape under Section 375. Further Section 376A was added which states that if a person committing the offence of sexual assault, "inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean the remainder of that person's natural life, or with death." The amendment has also introduced the death penalty as a punishment in Section 376E for cases of repeat offences of rape.
Capital punishment for these specific offences was introduced through the Verma Committee categorically recommended against the punishment of death for the offence of rape. Later, Criminal Law (Amendment) Ordinance, 2018 was brought about in April, 2018. The bill was passed by both the Houses of Parliament by 6 August 2018 and received Presidential assent. During review, it was opposed by some of the MPs in the Rajya Sabha. The Criminal Law Amendment Act, 2018, amended the Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Protection of Children from Sexual Offences Act, 2012. The Act amends the IPC to allow for the death penalty as punishment for rape of girls below the age of 12 years. The deadline for the completion of trial in all rape cases will be two months. A six-month time limit for disposal of appeals in rape cases has also been prescribed. There will also be no provision for anticipatory bail for a person accused of rape or gang rape of a girl less than 16 years. In 2019, an amendment to the Protection of Children from Sexual Offences Act, 2013 (POCSO) sought to cover all children under this law.
Debate in India
India's history voting against moratorium
The abolition of the death penalty has been a debatable question all across and has been called upon for discussion in various international forums. According to the International Covenant on Civil and Political Rights (ICCPR) capital punishment has been regulated as one part of right to life in the international human rights treaty. The covenant does not abolish death penalty but under Article 6 it states that death sentence may be imposed only for most serious crimes in accordance with the law and other provisions in the covenant. The Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment or the Torture Convention itself does not declare death penalty as torture or cruel, inhuman or degrading treatment or punishment but addresses the methods of execution and the process of death row. Among the above-mentioned treaties and conventions India has ratified the ICCPR and CRC and is only a signatory of the Torture Convention. But according to Article 18 of the Vienna Convention on the Laws of Treaties the state is bound to refrain from acts which would defeat the purpose of a treaty. Under the domestic laws, The Protection of Human Rights Act, 1994 in Section 2(1)(d) states that, "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Additionally Section 2(1)(f) states that, "International Covenants" means the ICCPR. Reading together Sections 2(1)(d) and 2(1)(f) it can be said the ICCPR has been incorporated into the given statute protecting human rights. These resolutions for moratorium were reaffirmed by the general assembly again in the subsequent years of 2008, 2010, 2012, 2014. India has voted against these resolutions stating that it shall go against the statutory law of the land which states that death sentences can be imposed in rarest of the rare cases. The factors considered for arriving at the conclusion were based mainly on general elements of cultural and social life as it existed then. The Law Commission observed that the subjective discretion of the court in deciding the matters satisfactorily practised and was within the purview of judicial principles. The report observed that the exercise of discretion may depend on local conditions, future developments, and evolution of the moral sense of the community, state of crime at a particular time or place and many other unforeseeable features. Furthermore, the report of the law commission does not discuss in detail the apprehensions regarding the arbitrary use of the Court's discretion in capital sentencing. For deterrence to work, the severity of the punishment has to coexist with the certainty and swiftness of the punishment.[19] It has been argued that the death penalty targets the poor and marginalised who do not have support from the society or power of money. The death penalty is subjective in nature and is near to impossible deciding each case fairly or rationally. The Courts have in various cases worked on their fancies and arbitrarily imposed this most extreme punishment. It is also argued that the concept works in contrast to the rehabilitation criminal justice system adopted by India [19]. Further, it has also been argued that it is per se cruel, irrespective of its utility or its deterrent effect.
On the other hand, it has been argued that state-sanctioned death penalty acts as a catalyst to promote the law and the fear of law which acts as a deterrent to future offenders. There is also a push to help the victims and to follow the retribution model of punishment.
Systemic issues
The concept of the death penalty as understood by a layman is sentencing and execution. By what goes unnoticed is the wide gap between the provisions of law and the realities of its enforcement. The whole process is vulnerable to a large number of systematic and structural impediments. The flagrant violations of even the most basic protections like those against torture and self-incrimination, along with the systemic inability to provide for competent representation or to undertake effective sentencing procedures in capital cases make it extremely clear that the crisis in our criminal justice system has translated. The quality of legal representation has emerged as an extremely serious concern.
Issues in criminal justice system
Constitutional and legal protections such as The Constitution of India, The Code of Criminal Procedure, The Evidence Act protect an individual from arbitrary powers of the state. However, despite these the rights are unchecked and are repeatedly violated. Few forms of such violation are custodial torture, fabrication of evidence, abuse of Section 27 of the Evidence Act.
Legal representation
It has been acknowledged by the judges that the legal aid system has not satisfactory and expressed concerns about the disparate impact of the system on socio-economically marginalised persons. There exists a strong connection between poverty and the quality of legal representation. This deepens the crisis of the criminal justice system. The legal aid system developed by the justice system fails to achieve its objective and fails to fulfil its constitutional promises.
Wrongful convictions
The easy manipulation of agencies of the criminal justice system is rampant in India. The stages of investigation such as obtaining pieces of evidence testimony lead to wrongful conviction demonstrate significant crisis points in the criminal justice system. Use of torture, fabrication of evidence, poor legal representation puts a question mark on the criminal justice system and makes the reliance on evidence doubtful for hanging a person or to put him on death row. As indicated by the name the report after analysing 700 Supreme Court judgements on death penalty of over 50 years (1950–2006) suggest that the fate of the death row prisoners depends upon the lottery as the Indian judicial system over the years has failed to meet its own uniform standards and the other internationally accepted standards. The golden rule in respect to death penalty "rarest of rare cases" has not been adhered to in the cases. Various administrative flaws such as errors in consideration of evidence, inadequate legal representation, and arbitrariness in sentencing indicate that the punishment of death penalty has been arbitrary, imprecise and abusive means of punishing convicts which goes against the spirit of the constitution.
Prisoner Voices from Death Row
Prisoner Voices from Death Row by Reena Mary George discusses the demographic profile of the prisoners and the duration spent on death row. It also notes the process of the individual cases, from arrest to conviction and finally being sentenced to death. It also documents in detail the impact of the death penalty on families of prisoners on death row. The study finds that poverty, marginalization and exclusion are antecedent to the death penalty.
Death Penalty India Report
The Death Penalty India Report (DPIR) by Project 39A at National Law University, Delhi which was released in May, 2016 contains the findings of the Death Penalty Research Project (DPRP). The DPIR contains quantitative information regarding the number of prisoners sentenced to death in India, the average duration they spend on death row, the nature of crimes, their socio-economic background and details of their legal representation, narratives of the prisoners on their experiences in police custody, through the trial and appeal process, incarceration on death row and impact on their families. The study was conducted by Project 39A at the National law University, Delhi and was published in November 2017. The 60 former judges adjudicated 208 death penalty cases between them at different points during the period 1975–2016. The study was an attempt to understand judicial thought and adjudicatory processes that govern the administration of the death penalty within India's criminal justice system. Former judges were interviewed on main broad themes which included, investigation and trial processes, sentencing in death penalty cases, and judicial attitudes towards the death penalty. It was clear from the study that there is no uniform understanding of the requirements of the 'rarest of rare' doctrine which has led to the systemic issue of judge-centric sentencing.
Death Penalty Sentencing in Trial Courts
This study by Project 39A, National Law University, Delhi contains findings from a study of all capital cases decided by trial courts of Delhi, Madhya Pradesh and Maharashtra between 2000 and 2015. Analysing 215 judgments (43 from Delhi, 82 from Madhya Pradesh, and 90 from Maharashtra), the study demonstrates the normative and procedural gaps in death penalty sentencing framework that have been the legacy of the Bachan Singh v. State of Punjab, May 1980 judgment.
Death Penalty Annual Statistics Report
Since 2016, Project 39A at the National Law University Delhi annually releases a death penalty statistics report. The report covers movements in the death row population in India as well as political and legal developments in the administration of the death penalty and the criminal justice system. The 162 death sentences imposed by trial courts in 2018 is the highest in a calendar year since 2000. The number dropped to 102 in 2019.
Executions since Independence
Prisons and other government departments don't have accurate records of the number of persons executed in India. An absolute lack of coordination among different official sources has hindered the collection of accurate data on the subject. Despite these limitations, Project 39A has attempted to curate a list of people executed in India. This number is, however, significantly lower than the actual number of people executed, as per data from the Law Commission of India's 35th Report which states a number above 1000 between the years 1947 to 1967.
This fact highlights broader issues with data collection in India's criminal justice system, as the country lacks comprehensive records of individuals who have been sentenced to death.
On 27 April 1995, Auto Shankar was hanged in Salem Central Jail at Salem, Tamil Nadu for murder of 6 people.
On 27 May 1997, Kamta Pasad Tiwary was hanged in Jabalpur Central Jail for raping and murdering an 8-year-old girl in 1991.
On 14 August 2004 at Alipore Central Jail, Dhananjoy Chatterjee was hanged for the murder (following a rape) of 18-year-old Hetal Parekh at her apartment residence in Bhowanipore, West Bengal on 5 March 1990. While the mercy petition of Chatterjee was pending before President A. P. J. Abdul Kalam, support for the rejection of the mercy petition as well as his execution was drummed up in West Bengal by various political groups and organizations. The mercy plea was rejected on 4 August 2004.
Before the execution of Ajmal Kasab due to his role in 26/11 terrorist attacks, people from across the globe wrote to President Pranab Mukherjee to inform his family and the public of the rejection of the mercy petition and about any scheduled date of execution. Kasab was hanged in secret on 21 November 2012 in Yerawada Central Jail.
Afzal Guru was convicted of conspiracy in connection with the 2001 Indian Parliament attack and was hanged on 9 February 2013 at Delhi's Tihar Central Prison. The Supreme Court of India upheld the sentence on 4 August 2005, ruling that the attack "shocked the conscience of the society at large." Afzal was scheduled to be executed on 20 October 2006, but the sentence was stayed.
Yakub Memon, convicted of 1993 Bombay bombings, was hanged in Nagpur Central Jail at Nagpur on 30 July 2015. On 21 March 2013 the Supreme Court confirmed Memon's conviction and death sentence for conspiracy through financing the attacks. On 30 July 2013 the Supreme Court rejected Memon's application for an oral hearing and dismissed his review petition by circulation. President Pranab Mukherjee rejected Memon's petition for clemency on 11 April 2014. Memon then filed a curative petition to the Supreme Court, which was rejected on 21 July 2015.
The four adult perpetrators Mukesh Singh, Akshay Thakur, Vinay Sharma and Pawan Gupta of the 2012 Delhi gang rape and murder case who survived the trial were hanged at 5:30 a.m. on 20 March 2020 at Tihar Central Prison in Delhi, after a lengthy legal battle.
List of offenders executed in the 21st century
Since 2000, eight executions have been carried out in India, all executions have been carried out by hanging.
{|class="wikitable" style="font-size:95%; "
|-
!colspan="8" style="background-color:#e89a70"|5 executions (8 persons executed)
|-
!style="background-color:#e89a70" |Executed person(s)
!style="background-color:#e89a70" |Nationality
!style="background-color:#e89a70" |Age
!style="background-color:#e89a70" |Sex
!style="background-color:#e89a70" |Date of execution
!style="background-color:#e89a70" |Place of execution
!style="background-color:#e89a70" |Victim(s)
!style="background-color:#e89a70" |President
|-
| Dhananjoy Chatterjee || Indian || 39 || M || align=center|14 August 2004 || Alipore Central Jail, West Bengal || Hetal Parekh || A. P. J. Abdul Kalam
|-
| Ajmal Kasab || Pakistani || 25 || M || align=center|21 November 2012 || Yerawada Central Jail, Maharashtra || 2008 Mumbai terror attack victims || rowspan="3" | Pranab Mukherjee
|-
| Afzal Guru || Indian || 43 || M || align=center|9 February 2013 || Tihar Central Jail, Delhi || 2001 parliament attack victims
|-
| Yakub Memon || Indian || 53 || M || align=center|30 July 2015 || Nagpur Central Jail, Maharashtra || 1993 Bombay bombing victims
|-
| Mukesh Singh || Indian || 32 || M || align=center rowspan=4 |20 March 2020 || rowspan=4| Tihar Central Jail, Delhi || rowspan=4| Jyoti Singh || rowspan=4| Ram Nath Kovind
|-
| Akshay Thakur || Indian || 31 || M
|-
| Vinay Sharma || Indian || 26 || M
|-
| Pawan Gupta || Indian || 25 || M
|}
See also
- Review petition
- Curative petition
- Mercy petition
- Capital punishment by country
- List of most recent executions by jurisdiction
- List of people executed in India
- List of methods of capital punishment
- Assassination of Mahatma Gandhi
- Assassination of Indira Gandhi
- Assassination of Rajiv Gandhi
References
External links
- Model Prison Manual India