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CAPITAL PUNISHMENT IN INDIA BY: NARAYAN DNYANOBA SASTE
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CAPITAL PUNISHMENT IN INDIA
AUTHORED BY:
NARAYAN DNYANOBA SASTE
ROLL No.:01
CLASS:
LLM-II
ACADEMIC
YEAR: 2023-24
1.1 INTRODUCTION
:
All punishments are based on the same
proposition i.e. there must be a penalty for wrongdoing. There are two main
reasons for inflicting the punishment. One is the belief that it is both right
and just that a person who has done wrong should suffer for it; the other is
the belief that inflicting punishment on wrongdoers discourages other from
doing wrong. The capital punishment also rests on the same proposition as other
punishments.1
Capital punishment is an integral
part of the Indian criminal justice system. Increasing strength of the human
rights movement in India, the existence of capital punishment is questioned as
immoral. However this is an odd argument as keeping one person alive at the
cost of the lives of numerous members or potential victims in the society is
unbelievable and in fact, that is morally wrong.2
1.2 MEANING
OF CAPITAL PUNISHMENT:
Capital punishment, also called death penalty,
execution of an offender sentenced to death after conviction by a court of law
for a criminal offense. Capital punishment should be distinguished from
extrajudicial executions carried out without due process of law. The term death
penalty is sometimes used interchangeably with capital punishment, though
imposition of the penalty is not always followed by execution (even when it is
upheld on appeal), because of the possibility of commutation to life
imprisonment.3.
The term "Capital Punishment" stands
for most severe form of punishment. It is the punishment which is to be awarded
for the most heinous, grievous and detestable crimes against humanity. While
the definition and extent of such crimes vary from country to country, state to
state, age to age, the implication of capital punishment has always been the
death sentence. By
---------------------
common usage in jurisprudence,
criminology and penology, capital sentence means a sentence of death. 4
1.3 HISTORICAL BACKGROUND:
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. 5 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 (life imprisonment without parole does not exist in India since it is too
expensive to freely feed and house dangerous criminals all their lives, and
eliminating the possibility of parole after a life sentence removes the
positive and rehabilitative incentive to improve behaviour; all criminals
sentenced to life imprisonment in India are automatically eligible for parole
after serving 20 years, as per IPC 57), and required 'special reasons'.6 This
significant change indicated a desire to limit the imposition of the death
penalty in India. The CrPC, 1973 also bifurcated a criminal trial into two
stages with separate hearings, one for conviction and another for sentencing.7
2.0 CAPITAL
PUNISHMENT IN INDIA:
A careful scrutiny of the debates in
British India's Legislative Assembly reveals that no issue was raised about
capital punishment in the Assembly until 1931, when one of the Members
---------------------
4.Capital Punishment in India by Dr.
Subhash C. Gupta, 2000, p. 1
6. "Nirbhaya Rape
Case Hanging: Everything you need to know". Mumbai Mirror. 20 March 2020.
Retrieved 6 October 2020.
from Bihar, Shri Gaya Prasad Singh
sought to introduce a Bill to abolish the punishment of death for the offences
under the Indian Penal Code. However, the motion was negatived after the then
Home Minister replied to the motion.
The Government's policy on capital
punishment in British India prior to Independence was clearly stated twice in
1946 by the then Home Minister, Sir John Thorne, in the debates of the Legislative
Assembly. "The Government does not think it wise to abolish capital
punishment for any type of crime for which that punishment is now
provided". 8
At independence, India retained several laws
put in place by the British colonial government, which included the Code of
Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian Penal Code, 1860
(‘IPC’). The IPC prescribed six punishments that could be imposed under the
law, including death.
For offences where the death penalty was an
option, Section 367(5) of the CrPC 1898 required courts to record reasons where
the court decided not to impose a sentence of death:
If the accused is convicted of an
offence punishable with death, and the court sentences him to any punishment
other than death, the court shall in its judgment state the reason why sentence
of death was not passed.
In 1955, the Parliament repealed Section
367(5), CrPC 1898, significantly altering the position of the death sentence.
The death penalty was no longer the norm, and courts did not need special
reasons for why they were not imposing the death penalty in cases where it was
a prescribed punishment.
The Code of Criminal Procedure was re-enacted
in 1973 (‘CrPC’), and several changes were made, notably to Section 354(3):
When the conviction is for an offence
punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state the reasons for the
sentence awarded, and, in the case of sentence of death, the special reasons
for such sentence.
This was a significant modification from the
situation following the 1955 amendment (where terms of imprisonment and the
death penalty were equal possibilities in a capital case), and a reversal of
the position under the 1898 law (where death sentence was the norm and reasons
had to be recorded if any other punishment was imposed). Now, judges needed to
provide special reasons for why they imposed the death sentence.
These amendments also introduced the
possibility of a post-conviction hearing on sentence,
---------------------
8. Ibid. pp. 104-105.
including the death sentence, in
Section 235(2), which states:
If the accused is convicted, the Judge shall,
unless he proceeds in accordance with the provisions of section 360, hear the
accused on the question of sentence, and then pass sentence on him according to
law.9
Various laws under which death
penalty can be prescribed as a possible punishment in India are given at
Annexure-I
3.0 INTERNATIONAL
SCENARIO:
The international landscape regarding the
death penalty – both in terms of international law and state practice – has
evolved in the past decades. Internationally, countries are classified on their
death penalty status, based on the following categories:
· Abolitionist for all crimes
· Abolitionist for ordinary crimes
·
Abolitionist de facto
·
Retentionist
At the end of 2014, 98 countries were
abolitionist for all crimes, 7 countries were abolitionist for ordinary crimes
only, and 35 were abolitionist in practice, making 140 countries in the world
abolitionist in law or practice. 58 countries are regarded as retentionist, who
still have the death penalty on their statute book, and have used it in the
recent past.10 While only a minority of
countries retain and use the death penalty, this list includes some of the most
populous nations in the world, including India, China, Indonesia and the United
States, making a majority of population in the world potentially subject to
this punishment. Country wise list of these four categories is given at
Annexure-II.
---------------------
9. India. Law Commission of India, Report No.262 on Death
Penalty, August 2015, pp. 17-18.
10 India. Law Commission of India,
Report No.262 on Death Penalty, August 2015, pp.38-39
3.1 CAPITAL
PUNISHMENT IN INTERNATIONAL HUMAN RIGHTS TREATIES:
i) The International Covenant on Civil
and Political Rights (‘ICCPR’) is one of the key documents discussing the
imposition of death penalty in international human rights law. The ICCPR does
not abolish the use of the death penalty, but Article 6 contains guarantees
regarding the right to life, and contains important safeguards to be followed
by signatories who retain the death penalty.11
ii) The Second Optional Protocol to the
ICCPR, aiming at the abolition of the death penalty is the only treaty directly
concerned with abolishing the death penalty, which is open to signatures from
all countries in the world. It came into force in 1991, and has 81 states
parties and 3 signatories.12
iii) Similar to the ICCPR, Article 37(a)
of the Convention on the Rights of the Child (‘CRC’) explicitly prohibits the
use of the death penalty against persons under the age of 18. As of July 2015,
195 countries had ratified the CRC.13
iv) The Convention against Torture and
Cruel, Inhuman or Degrading Treatment or Punishment (‘the Torture Convention’)
and the UN Committee against Torture have been sources of jurisprudence for
limitations on the death penalty as well as necessary safeguards. The Torture
Convention does not regard the imposition of death penalty per se as a form of
torture or cruel, inhuman or degrading treatment or punishment (‘CIDT’).
However, some methods of execution and the phenomenon of death row have been
seen as forms of CIDT by UN bodies.14
v) In the evolution of international
criminal law, the death penalty was a permissible punishment in the Nuremberg
and Tokyo tribunals, both of which were established following World War II.
Since then, however, international criminal courts exclude the death penalty as
a permissible punishment.15
--------------------
11 Ibid. p.40-41
12 Ibid. p.43
13 Ibid. pp.43-44
14 India. Law Commission of India,
Report No.262 on Death Penalty, August 2015, pp.44-45
15 Ibid. pp.45-46
vi) Of the treaties mentioned above,
India has ratified the ICCPR and the CRC, and is signatory to the Torture
Convention but has not ratified it. Under international law, treaty obligations
are binding on states once they have ratified the treaty. Even where a treaty
has been signed but not ratified, the state is bound to “refrain from acts
which would defeat the object and purpose of a treaty”.16
4.0 POLITICAL
COMMITMENTS REGARDING CAPITAL PUNISHMENT GLOBALLY:
i) Several resolutions of the UN General
Assembly (UNGA) have called for a moratorium on the use of the death penalty.
In 2007, the UNGA called on states to “progressively restrict the use of the
death penalty, reduce the number of offences for which it may be imposed” and
“establish a moratorium on executions with a view to abolishing the death
penalty.” In 2008, the GA reaffirmed this resolution, which was reinforced in
subsequent resolutions in 2010, 2012, and 2014. Many of these resolutions noted
that, “a moratorium on the use of the death penalty contributes to respect for
human dignity and to the enhancement and progressive development of human
rights.” In 2014, 117 States had voted in favour of the most recent resolution.
India has not voted in favour of these resolutions.17
In a 2013 resolution, the UN Human
Rights Council acknowledged “the negative impact of a parent’s death sentence
and his or her execution on his or her children,” and urged “States to provide
those children with the protection and assistance they may require,” Human
Rights Council resolution, 2014 noted that “States with different legal
systems, traditions, cultures and religious backgrounds have abolished the
death penalty or are applying a moratorium on its use” and deplored the fact
that “the use of the death penalty leads to violations of the human rights of
those facing the death penalty and of other affected persons.” The Human Rights
Council urged states to ratify the Second Optional Protocol to the
International Covenant on Civil and Political Rights
--------------------
16
ibid.
p.46
17. ibid.
pp.51-52
ii) The law of extradition has been
another tool for countries pushing for the abolition of the death penalty.
Several abolitionist countries either require assurances that
retentionist-extraditing countries not impose the death penalty, or have
included such a clause in bilateral extradition treaties.18
5.0 CAPITAL PUNISHMENT : THE CURRENT STATUS :
5.1 Supreme Court on Validity of Capital Punishment
in India:
Article 21 of the Indian
Constitution ensures the Fundamental Right to life and liberty for all persons.
It adds no person shall be deprived of his life or personal liberty except
according to procedure established by law. This has been legally construed to
mean if there is a procedure, which is fair and valid, then the state by
framing a law can deprive a person of his life. While the central government
has consistently maintained it would keep the death penalty in the statute books
to act as a deterrent, and for those who are a threat to society, the Supreme
Court too has upheld the constitutional validity of capital punishment in
“rarest of rare” cases. In Jagmohan Singh vs State of Uttar Pradesh (1973),
then in Rajendra Prasad vs State of Uttar Pradesh (1979), and finally in Bachan
Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional
validity of the death penalty. It said that if capital punishment is provided
in the law and the procedure is a fair, just and reasonable one, the death
sentence can be awarded to a convict. This will, however, only be in the
“rarest of rare” cases, and the courts should render “special reasons” while
sending a person to the gallows.19
5.2 Criteria for Rarest of Rare:
The principles as to what
would constitute the “rarest of rare” has been laid down by the top Court in
the landmark judgment in Bachan Singh vs State of Punjab (1980).
Supreme Court formulated
certain broad illustrative guidelines and said it should be given only when the
option of awarding the sentence of life imprisonment is “unquestionably
foreclosed”. It was left completely upon the court’s discretion to reach this
conclusion. However, the apex
---------------------
18 India. Law Commission of India, Report
No.262 on Death Penalty, August 2015, pp.52-53.
19 Indian Express, New Delhi, dated
27.5.2015
court also laid down the
principle of weighing, aggravating and mitigating circumstances. A balance-sheet
of aggravating and mitigating circumstances in a particular case has to be
drawn to ascertain whether justice will not be done if any punishment less than
the death sentence is awarded. Two prime questions, the top court held, may be
asked and answered. First, is there something uncommon about the crime which
renders the sentence of imprisonment for life inadequate and calls for a death
sentence? Second, are there circumstances of the crime such that there is no
alternative but to impose the death sentence even after according maximum
weightage to the mitigating circumstances which speak in favour of the
offenders.20?
death. It needs to be
emphasised that the Court would take recourse to the expanded option primarily
because in the facts of the case, the sentence of 14 years' imprisonment would
amount to no punishment at all.
Further, the
formalisation of a special category of sentence, though for an extremely few
number of cases, shall have the great advantage of having the death penalty on
the statute book but to actually use it as little as possible, really in the
rarest of rare cases ......."
The observations in Swamy
Shraddhanand [2] case have been followed by the Court in a multitude of cases
such as Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v. Sanjay
Kumar , Sebastian v. State of Kerala, Gurvail Singh v. State of Punjab where
full life or sentence of determinate number of years has been awarded as
opposed to death penalty.21
5.3 CLEMENCY
POWERS:
If the Supreme Court turns down the
appeal against capital punishment, a condemned prisoner can submit a mercy
petition to the President of India and the Governor of the State. Under
Articles 72 and 161 of the Constitution, the President and Governors, respectively
---------------------
20 Indian Express, New Delhi, dated
27.5.2015
21 India. Law Commission of India.
Consultation Paper on Capital Punishment, May 2014, pp.26-27
have the power “to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute
the sentence of any person convicted of any offence”.22
Neither of these powers are personal to the
holders of the Office, but are to be exercised (under Articles 74 and 163,
respectively) on the aid and advice of the Council of Ministers.
Clemency powers, while exercisable
for a wide range of considerations and on protean occasions, also function as
the final safeguard against possibility of judicial error or miscarriage of
justice. This casts a heavy responsibility on those wielding this power and
necessitates a full application of mind, scrutiny of judicial records, and wide
ranging inquiries in adjudicating a clemency petition, especially one from a
prisoner under a judicially confirmed death sentence who is on the very verge
of execution.
The Ministry of Home Affairs,
Government of India, has drafted the “Procedure Regarding Petitions for Mercy
in Death Sentence Cases” to guide State Governments and the prison authorities
in dealing with mercy petitions submitted by death sentence prisoners.23
5.4 JUDICIAL
REVIEW OF EXERCISE OF MERCY POWERS:
The Supreme Court in Shatrughan
Chauhan case has recorded that the Home Ministry considers the following
factors while deciding mercy petitions:
a) Personality of the accused (such
as age, sex or mental deficiency) or circumstances of the case (such as
provocation or similar justification);
b) Cases in which the appellate Court
expressed doubt as to the reliability of evidence but has nevertheless decided
on conviction;
c) Cases where it is alleged that
fresh evidence is obtainable mainly with a view to see whether fresh enquiry is
justified;
---------------------
22 Indian Express, New Delhi, dated
27.5.2015
23 India. Law Commission of India,
Report No.262 on Death Penalty, August 2015, pp.176, 179
d) Where the High Court on appeal
reversed acquittal or on an appeal enhanced the sentence;
e) Is there any difference of opinion
in the Bench of High Court Judges necessitating reference to a larger Bench;
f) Consideration of evidence in
fixation of responsibility in gang murder case;
g) Long delays in investigation and
trial etc.
However, when the actual exercise of the
Ministry of Home Affairs (on whose recommendations mercy petitions are decided)
is analysed, it is seen that many times these guidelines have not been adhered
to. Writ Courts in numerous cases have examined the manner in which the
Executive has considered mercy petitions. In fact, the Supreme Court as part of
the batch matter Shatrughan Chauhan case heard 11 writ petitions challenging
the rejection of the mercy petition by the Executive.24 Supreme Court, last
year held that
judicial clemency could be granted on
the ground of inordinate delay even after a mercy petition is rejected.25
5.5 LAW
COMMISSION OF INDIA's REPORT ON DEATH PENALTY:
The Law Commission of India in its
262nd Report (August 2015) recommended that death penalty be abolished for all
crimes other than terrorism related offences and waging war. Complete
recommendations of the Report are as follows:
a)
The
Commission recommended that measures suggested that police reforms, witness
protection scheme and victim compensation scheme should be taken up
expeditiously by the government.
b)
The
march of our own jurisprudence -- from removing the requirement of giving
special reasons for imposing life imprisonment instead of death in 1955; to
requiring special reasons for imposing the death penalty in 1973; to 1980 when
the death penalty was
-----------------------
24 India. Law Commission of India,
Report no.262 on Death Penalty, August 2015, pp.190-191
25 Indian Express, New Delhi, dated
27.5.2015
c)
restricted
by the Supreme Court to the rarest of rare cases – shows the direction in which
we have to head. Informed also by the expanded and deepened contents and
horizons of the Right to life and strengthened due process requirements in the
interactions between the State and the individual, prevailing standards of
constitutional morality and human dignity, the Commission felt that time has
come for India to move towards abolition of the death penalty.
d)
Although
there is no valid penological justification for treating terrorism differently
from other crimes, concern is often raised that abolition of death penalty for
terrorism-related offences and waging war, will affect national security.
However, given the concerns raised by the law makers, the Commission did not
see any reason to wait any longer to take the first step towards abolition of
the death penalty for all offences other than terrorism related offences.
d) The Commission accordingly recommended that the death penalty
be abolished for all crimes other than terrorism related offences and waging
war.
e) Further, the Commission sincerely hopes that the movement
towards absolute abolition will be swift and irreversible.26
6.0 CAPITAL
PUNISHMENTS UNDER INDIAN PENAL CODE:
1.Section 121 - Treason, for waging
war against the Government of India
2. Section 132 - Abetment of mutiny
actually committed
3. Section 194 - Perjury resulting in the conviction and death
of an innocent person
4. Section 195A - Threatening or inducing any person to give
false evidence resulting in the conviction and death of an innocent person
5. Section 302 - Murder
6. Section 305 - Abetment of a
suicide by a minor, insane person or intoxicated person
--------------------
26 India. Law Commission of India,
Report no.262 on Death Penalty, August 2015, pp.217-218
7. Section 307 (2) - Attempted murder by a serving life convict
8. Section 364A - Kidnapping for
ransom
9. Section 376A - Rape and injury
which causes death or leaves the woman in a persistent vegetative state
10. Section 376E - Certain repeat
offenders in the context of rape
11. Section 396 - Dacoity with murder
6.1 CAPITAL
OFFENCES IN OTHER LAWS:
Sl. No. Section Number Description
1. Sections 34, 37, and 38(1) The Air
Force Act, 1950
2. Section 3(1)(i) The Andhra Pradesh
Control of Organised Crime Act, 2001
3. Section 27(3) The Arms Act, 1959
(repealed)
4. Sections 34, 37, and 38(1) The
Army Act, 1950
5. Sections 21, 24, 25(1)(a), and 55
The Assam Rifles Act, 2006
6. Section 65A(2) The Bombay
Prohibition (Gujarat Amendment) Act, 2009
7. Sections 14, 17, 18(1)(a), and 46
The Border Security Force Act, 1968
8. Sections 17 and 49 The Coast Guard
Act, 1978
9. Section 4(1) The Commission of
Sati (Prevention) Act, 1987
10. Section 5 The Defence of India
Act, 1971
11. Section 3 The Geneva Conventions
Act, 1960
12. Section 3 (b) The Explosive
Substances Act, 1908
13. Sections 16, 19, 20(1)(a), and 49
The Indo-Tibetan Border Police Force Act, 1992
14. Section 3(1)(i) The Karnataka
Control of Organised Crime Act, 2000
15. Section 3(1)(i) The Maharashtra
Control of Organised Crime Act, 1999
16. Section 31A(1) The Narcotics
Drugs and Psychotropic Substances Act, 1985
17. Sections 34, 35, 36, 37, 38, 39,
43, 44, 49(2)(a), 56(2), and 59 The Navy Act, 1957
18. Section 15(4) The Petroleum and
Minerals Pipelines (Acquisition of rights of user in land) Act, 1962
19. Sections 16, 19, 20(1)(a), and 49
The Sashastra Seema Bal Act, 2007
20. Section 3(2)(i) The Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
21. Section 3(1)(i) The Suppression
of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on
Continental Shelf Act, 2002;
22. Sections 10(b)(i) and Section
16(1)(a) The Unlawful Activities Prevention Act, 1967 Source: India. Law
Commission of India, Report no.262 on Death Penalty, August 2015, pp.31-32
7.0 Landmark Cases Related to Capital
Punishment In India:
7.1.1 Mithu Vs State of
Punjab (1983)
In this case, the Supreme Court
struck down Section 303 of the Indian Penal Code, which recommend for mandatory
capital punishment for offenders.
7.1.2 Bachan Singh
Vs State of Punjab (1980)
In this case, the Supreme Court says
that the capital punishment or death penalty was given only in the rarest
cases.
7.1.3 Jagmohan Vs
State of U.P. (1972)
This was the first case dealing with
the question of constitutional validity of capital punishment in India.
8.0 Conclusion:
Deterrence is most
effective when the punishment happens soon after the crime. The more the legal
process distances the punishment from the crime - either in time, or certainty
- the less effective a deterrent the punishment will probably be.
Article Information
CAPITAL PUNISHMENT IN INDIA BY: NARAYAN DNYANOBA SASTE
Authors: NARAYAN DNYANOBA SASTE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/17
- Issue 7
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International Journal for Legal Research and Analysis
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