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DO WE ACTUALLY NEED TO DO AWAY WITH CAPITAL PUNISHMENT IN INDIA?
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DO WE ACTUALLY NEED TO DO AWAY WITH
CAPITAL PUNISHMENT IN INDIA?
AUTHORED BY
- VEDANT KALKHANDAY
BALLB (HONS)
1ST YEAR
FACULTY OF
LAW, JAMIA MILLA ISLAMIA
ABSTRACT
This essay aims to explain what a capital punishment is, along with the
historic background and international perspective. The purpose of this essay is
to reinforce the minds of the readers with all that information related to
capital punishment along with its pros, cons, international jurisprudence,
philosophical aspect of common law etc., along even my views [ :)
please don’t take my views as a clear judgement or reasoning, my aim is to make
you form a rational view on the topic and decide is it necessary to impose
death penalty on the convicts or a comparatively lenient punishment will be
apt]. I have referred and read plethora of statues, reports and research
publication in arriving on this legal piece.
INTRODUCTION
Every modern state has a law in force
in the boundaries of the sovereign territories of the state with the aim to
ensure proper governance and regulation of the human conduct, so that liberty
of each and every member of state is prevailed and maintained. Humans have a
inherent tendency to live in close knitted groups and associations. But not
every member association have same ideas and theories. This further lead to conflicts
and many a times the members acts in a way which not only affect the rights of
individual but on a broader extent affect the rights of the state as a whole.
The common sense propounds that these acts should be reproached and punishment
should be provided to deter other member of the society from committing these
acts. The foundation of all penalties is the same idea: that misconduct always
has to have a consequence.
The punishment is being meted out for
two key reasons which develop into two schools of thought: the first holds that
punishing those who have acted improperly is both morally and ethically
acceptable; and the second thought holds that doing so deters others from doing
improperly. The same premise that underpins other penalties also applies to the
death penalty or capital punishment. There are two thought of people one who
believe human rights are supreme and thus death penalty should not be accorded
at all; and other who argue against the former thought that keeping one person
alive at the cost of the lives of numerous members or potential victims in the
society is unbelievable and morally wrong.
Capital punishment, or “the death
penalty,” is an institutionalized practice designed to result in deliberately
executing persons in response to actual or supposed misconduct and following an
authorized, rule-governed process to conclude that the person is responsible
for violating norms that warrant execution1. It is the most severe
and deterrent form of punishment and is awarded for most heinous, grievous and
detestable crimes.
HISTORIC ASPECT
The first established death penalty
laws date as far back as the Eighteenth Century B.C. in the Code of King
Hammurabi of Babylon, which codified the death penalty for 25 different crimes.
The death penalty was also part of the Fourteenth Century B.C.’s Hittite Code;
in the Seventh Century B.C.’s Draconian Code of Athens, which made death the
only punishment for all crimes; and in the Fifth Century B.C.’s Roman Law of
the Twelve Tablets. Death sentences were carried out by such means as
crucifixion, drowning, beating to death, burning alive, and impalement. In the
Tenth Century A.D., hanging became the usual method of execution in Britain. It
was only during the reign of William the Conqueror who abolished death penalty
in all civil crimes and allowed it to exist only in cases of war crimes and battle
prisoners. Hanging was the most usual form of punishment during the early
British regime and it was only during Sixteenth Century, under the reign of
Henry VIII execution were made by methods such as boiling, burning at the
stake, hanging, beheading, and drawing and quartering.2
1Capital punishment, Internet Encyclopedia for Philosophy
available at https://iep.utm.edu/death-penalty-capital-punishment/ last seen 29/02/24
2Early History of the Death
Penalty, Death Penalty Information Center available
at https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-death-penalty last seen on 29/02/2024
Historically, the purpose of the
death penalty was twofold: to inflict physical and mental anguish on the
offender and to serve as a public spectacle that sent a moral message about the
gravity of sin and crime. Death penalty based on time it takes for the convict
to die is divided demarcated as instantaneous and gradual. There are various
methods of execution prevalent all over the world with the most commonly used
once are hanging, Lethal injection, Electrocution, Gas Chamber and Firing
squad. Recently a new method of execution called Nitrogen Hypoxia was used in
Alabama state of United States on 24th January, 20243.
CAPITAL PUNISHMENT IN INDIA
The first time a
bill was introduced in pre independence British India Legislative Assembly for
abolishing Capital Punishment was moved in 1931 by Shri Gaya Prasad Singh,
Member from Bihar but the same was rejected by the British Indian Authorities
on introduction. Until 1955 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.
The abolition of
Section 367(5) of the CrPC 1898 by the Parliament in 1955 brought about a
fundamental change in the status of the death penalty. The death sentence had
become the exception rather than the rule, and judges did not need to give
specific justifications for not applying the death penalty when it was the
recommended punishment. In 1973, the Code of Criminal Procedure (CrPC) was
re-enacted with a number of amendments, most notably to Section 354(3). This
marked a dramatic departure from the circumstances that prevailed after the
1955 amendment, which gave the death penalty and prison sentences equal
standing in capital cases, and a return to the pre-1898 legislation, which
established the death penalty as the default punishment and required
justifications for any other punishment meted out. Now, judges needed to
provide special reasons for why they imposed the death sentence.
There are 24 such
legislations for which capital punishment is proposed. Some of the most notable
ones are as prescribed in the table given in the annexure 1.
INTERNATIONAL ASPECT
This section will throw an glimpse on
various international authorities which oppose to the infliction of death
penalty and consider it an act against basic human rights of individual.
Amnesty International considers death penalty as against the human right to
life.
3RE: Kenneth Eugene Smith v. State of Alabama,
SC-2023-0934 (2023, Supreme court of the United States)
The organization oppose death penalty in all cases without
exception – regardless of who is accused, the nature or circumstances of
the crime, guilt or innocence or method of execution. The 2022 report of Death penalty
conducted by the organization show that in 2022 alone 2,016 Death Sentences
were awarded in 56 countries and 886 reported execution were conducted in mere
20 countries. Till now total 112 countries have abolished death penalty with 2
countries, Papua New Guinea5 and Central African Republic6
abolishing the same in year 2022, Ghana7 in 2023 and Zimbabwe4
abolishing death penalty as a form of punishment in year 2024.
On 8 March 2023, Azerba?an signed
Protocol No. 13 to the European Convention on Human Rights, on the abolition of
the death penalty in all circumstances. This makes the country the last Member
State of the Council of Europe to sign the Protocol. Azerba?an is yet to ratify
the Protocol
On 24 October 1990 the
Hungarian Constitutional Court declared that the death penalty violates the
"inherent right to life and human dignity" as provided under Article
54 of the country's constitution. The judgment had the effect of abolishing the
death penalty for all crimes in Hungary.
On 6 June 1995 the South
African Constitutional Court declared the death penalty for murder as provided
under the country’s laws to be incompatible with the prohibition of
"cruel, inhuman or degrading treatment or punishment" under the
country's interim constitution. In 1998 the South African parliament removed the death
penalty from the country's laws under the Criminal Law Amendment Act
The European Court of Human Rights
has held that "the manner in which [a death sentence] is imposed or
executed, the personal circumstances of the condemned person and a
disproportionality to the gravity of the crime committed, as well as the
conditions of detention awaiting execution, are examples of factors capable of
bringing the treatment or punishment received by the condemned person within
the proscription under Article 3 [of the European Convention for the Protection
of Human Rights and Fundamental Freedoms (European Convention on Human
Rights')]. Article 3 of the European Convention on Human Rights prohibits
torture and inhuman or degrading treatment or punishment.
4Zimbabwe cabinet scraps colonial-era death penalty law, www.reuters.com available at https://www.reuters.com/world/africa/zimbabwe-cabinet-scraps-colonial-era-death-penalty-law
2024-02-07 last seen on 3/3/2024
5Papua new guinea repeals death penalty 30 years after
reintroduction,www.theguardian.com available at https://www.theguardian.com/world/2022/jan/21/papua-new-guinea-repeals-death-penalty-30-years-after-reintroduction
last seen on 3/3/2024
6Central
African republic abolishes the death penalty, worldcoalition.org available at https://worldcoalition.org/2022/06/26/central-african-republic-abolishes-the-death-penalty/ last seen on 3/3/2024
7Jurist in Ghana parliament votes to end death penalty
available at https://deathpenaltyproject.org/jurist-ghana-parliament-votes-to-end-death-penalty/ last seen on 3/3/2024
The Second Optional Protocol to the
International Covenant on Civil and Political Rights, aiming at the abolition
of the death penalty, states in its preamble that "abolition of the death penalty
contributes to enhancement of human dignity and progressive development of
human rights" and that all measures of abolition of the death penalty should
be considered as progress in the enjoyment of the right to life
The Guidelines to EU [European Union]
Policy towards Third Countries on the Death Penalty, adopted by the Council of
the European Union in 1998, establish that it is an EU objective "to work
towards universal abolition of the death penalty as a strongly held policy”
Similarly, Under the Rome Statute of the International Criminal Court, the
death penalty is excluded from the punishments which that Court is authorized
to impose, even though the Court has jurisdiction over extremely grave crimes:
crimes against humanity, genocide and war crimes.
Article 6(2)
of the International Covenant on Civil and Political Rights states that a death
sentence may be imposed only "in accordance with the law in force at the
time of the commission of the crime"
Article 15(1) of the
International Covenant on Civil and Political Rights states that a heavier
penalty shall not be imposed than the one that was applicable at the time when
the criminal offence was committed, and that if, subsequent to the commission
of the offence, provision is made by law for the imposition of the lighter
penalty, the offender shall benefit thereby
The UN Human Rights Committee has
stated that the following offences cannot be characterized as the "most
serious crimes" under Article 6(2) of the International Covenant on Civil
and Political Rights and that the imposition of the death penalty for these
offences therefore violates that article: economic offences, including
embezzlement by officials; political offences, robbery, abduction not resulting
in death, and illicit sex, committing a third homosexual act, and apostasy.
Article 6(5) of the International
Covenant on Civil and Political Rights states: "Sentence of death shall
not be imposed for crimes committed by persons below eighteen years of age and
shall not be carried out on pregnant women."
Article 37(a) of the UN Convention on
the Rights of the Child; Article 5(3) of the African Charter on the Rights and
Welfare of the Child; Safeguard 3 of the Safeguards Guaranteeing Protection of
the Rights of Those Facing the Death Penalty, adopted by the UN Economic and
Social Council in 1984 all states, Persons below 18 years of age at the time of
the commission of the crime shall not be sentenced to death, nor shall the
death penalty be carried out on pregnant women, or on new mothers, or on
persons who have become insane.
The automatic and mandatory
imposition of the death penalty constitutes an arbitrary deprivation of life,
in violation of article 6 of the International Covenant on Civil and Political
Rights, in circumstances where the death penalty is imposed without any
possibility of taking into account the defendant's personal circumstances or
the circumstances of the particular offence.
Article 14 of the International
Covenant on Civil and Political Rights sets out standards for fair trial these
include
·
The
right of anyone facing a criminal charge to a fair and public hearing by a
competent, independent and impartial tribunal;
·
the right to be presumed innocent until proved
guilty;
·
the
right to be informed promptly and in detail in a language which he or she
understands of the nature and cause of the charges against him or her;
·
the
right to have adequate time and facilities for the preparation of a defence;
the right to communicate with counsel of the defendant's choosing;
·
the
right to free legal assistance for defendants unable to pay for it; the right
to examine witnesses for the prosecution and to present witnesses for the
defence;
·
the right to free assistance of an interpreter
if the defendant cannot understand or speak the language used in court;
·
the
right not to be compelled to testify against him or herself or to confess guilt
Article 6(4) of the International
Covenant on Civil and Political Rights states: "Anyone sentenced to death
shall have the right to seek pardon or commutation of the sentence. Amnesty,
pardon or commutation of the sentence of death may be granted in all cases
In resolution 1989/64, adopted on 24
May 1989, the UN Economic and Social Council called on UN member states in
which the death penalty may be carried out "to allow adequate time for the
preparation of appeals to a court of higher jurisdiction and for the completion
of appeal proceedings, as well as petitions for clemency
Safeguard 8 of the Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death Penalty,
adopted by the UN Economic and Social Council in 1984, states: "Capital
punishment shall not be carried out pending any appeal or other recourse
procedure or other proceeding relating to pardon or commutation of the sentence
Article
6(4) of Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II) states that the death
penalty shall not be pronounced on persons who were under the age of eighteen
years at the time of the offence and shall not be carried out on pregnant women
or mothers of young children
THE LEGAL IRONY
With the publishing of writings of
Quaker, E. Roy Calvert who gave the first scientific argument on abolition of
death penalty in his essay Capital Punishment in the 20th century in
1925, a modern campaign in favour of abolition of death penalty erupted. Later the
Royal Commission on Capital Punishment with a remit to examine all aspects of
the death penalty short of considering complete a abolition gave a huge blow to
the retentionist theory. Finally on December 4, 1964 Mr Silverman introduced
the draft Murder (Abolition of death penalty bill) which later on November 2,
1965 entered into the Common law statute as Murder (Abolition of death penalty)
Act, 1965. And since then not even a single execution have been made in British
regime. But the irony is that despite
our previous colonial masters have done away with such draconian law nearly 54
years ago, the Indian legal system is carrying the rope of the gift given to us
by Lord Macaulay till today. Now is the time to relieve our legal system with
such chain, and let it too smell liberty and dignity of human life in true
aspect.
L.J. Blom-Cooper Murder (Abolition of
Death Penalty) Act 1965 , Vol 29 Modern L.R., 184-186 (1966)
TORCH BEARERS OF JUSTICE: APPROACH AND IDEAS
This section aims to give a account
of measured evolved by the Supreme Court of India through its judgement in
order to ensure that no innocent is convicted and hanged. These measures in
modern day India are a guidelines to ensure that the draconian law introduced
in formal Indian Legal System (though historically adopted from the Macaulay
Penal code) is regulated and controlled.
Instead of Jumping directly on the
measures it would be apt to first discuss on what ground does the Supreme Court
declared death penalty as a constitutional act.
CONSTITUTIONAL VALIDITY OF DEATH
PENALTY
In the case of Bachan Singh v. State
of Punjab (1980) 2 SCC 684 the supreme court validated the constitutional
validity of Death Penalty and also affirmed with the decision in Jag Mohan
Singh vs State of Uttar Pradesh. The court said that as India is ratifying
party to International Covenant on Civil and Political Rights, which even does
not unconstitutionalize death penalty. The court further held that as right to
life of a person does not come under the domain of right to freedom as per
article 19 of the constitution of India, thus article 19 cannot be invoked
against death penalty as no freedom of a person is restricted by such act. The
founding fathers recognised the right of the State to deprive a person of his
life or personal liberty in accordance with fair, just and reasonable procedure
established by valid law. The Court enumerated several circumstances as indicators
of aggravating8 and mitigating9 circumstances relevant
for determining sentence (Given in
Annexure 2). Young age of the accused, the probability of reform and
rehabilitation, lack of recidivism, mental condition were some of the
mitigating factors illustrated by the Court. It was stated that the sentencing
policy enshrined in Section 354 (3), Code of Criminal Procedure, 1973, entailed
that the scope and concept of mitigating factors must be interpreted liberally
and expansively. The Court reiterated that life imprisonment is the rule and
the death sentence is an exception which, the Court held, should be imposed
only in the “rarest of rare” cases when
the alternative option of life imprisonment is unquestionably foreclosed.
8Aggravating circumstances are any relevant circumstances, supported by the evidence
presented during the trial that makes the harshest penalty appropriate, in the
judgment of the judge
9 Mitigating factors are any evidence presented regarding the
defendant's character or the circumstances of the crime, which would cause a juror
or judge to vote for a lesser sentence.
The Bombay High Court in Indian Harm
Reduction Network v. Union of India 2011 SCC OnLine Bom 715 held that the
Section 31 A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS
Act”) was violative of Article 21, Constitution of India, 1950. Section 31 A,
NDPS Act, leaves no option to the Court but to impose the death penalty.
Further, even though the sentence
provided under Section 31 A, NDPS Act is of death penalty, the Court is not
required to record special reasons, unlike the other crimes under the Indian
Penal Code, 1860 or for other offences under the provisions of the NDPS Act. It
makes the pre-sentence hearing under Section 235(2) Code of Criminal Procedure,
1973 irrelevant.
The Court stated that there is no
express provision in the NDPS Act to override the mandate of Sections 235(2)
and 354(3) of the Code of Criminal Procedure, 1973 Instead of declaring Section
31-A as unconstitutional, the Bombay High Court held that the provision should be
construed as being directory by reading down the expression "shall be
punishable with death" as "may be punishable with death".
In Mithu v. State of Punjab (1983) 2
SCC 277 The Supreme Court held that the mandate of Articles 14 and 21,
Constitution of India, 1950 is that every procedure established under law must
be fair, just and non-arbitrary. There is no rationale for drawing a
distinction between a person who commits murder and a person who commits murder
while serving a life sentence so as to make the death sentence mandatory for
the latter class. A standardized mandatory sentence of death deprives courts of
the exercise of its discretion and is, therefore, harsh, unjust and unfair
ROLE OF REFORMS AND PSYCHOTIC TESTS
In Chhannulal Verma v. State of
Chattisgarh (2019) 12 SCC 438 On the issue of the future of the death penalty
in India, Justice Kurian Joseph, in his dissent noticed that various benches
have over a period of time expressed concerns regarding the inconsistent
application of the principles laid down in Bachan Singh v. Union of India.
Having regard to the 262nd Report of the Law Commission of India which stated
that the constitutional regulation of capital punishment attempted in Bachan
Singh has failed to prevent death sentences from being “arbitrarily and
freakishly imposed” and that capital punishment has failed to achieve any
constitutionally valid penological goals, Justice Joseph stated that the time
had come to review the need for the death penalty as a punishment. The Court
also stressed the importance of a psychological/psychiatric assessment to be
done by the State to conclude that there is no possibility of reform
EVOLUTION OF GUIDELINES FOR JUDGES
WHICH NEED TO BE CARTERED WHILE AWARDING DEATH PENALTY
In Machhi Singh v. State of Punjab
(1983) 3 SCC 470 the Supreme Court laid down five categories where society
might mandate judges to impose the death sentence. These were the
1. manner of commission of murder,
When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting, or dastardly manner so as to arouse intense
and extreme indignation of the community. For instance, (i) When the house of
the victim is set aflame with the end in view to roast him alive in the house.
(ii) When the victim is subjected to inhuman acts of torture or cruelty in
order to bring about his or her death. (iii) When the body of the victim is cut
into pieces or his body is dismembered in a fiendish manner
2. motive of the murder,
When the murder is committed for a motive which evinces total depravity
and meanness. For instance when (a) a hired assassin commits murder for the
sake of money or reward (2) a cold-blooded murder is committed with a
deliberate design in order to inherit property or to gain control over property
of a ward or a person under the control of the murderer or vis-a-vis whom the
murderer is in a dominating position or in a position of trust, (c) a murder is
committed in the course for betrayal of the motherland
3. anti-social or abhorrent nature of
the crime,
(a) When murder of a Scheduled Caste or minority community etc., is
committed not for personal reasons but in circumstances which arouse social
wrath. For instance when such a crime is committed in order to terrorize such
persons and frighten them into fleeing from a place or in order to deprive them
of or make them with a view to reverse past injustices and in order to restore
the social balance
4. magnitude of the crime
When the crime is enormous in proportion. For instance, when multiple
murders say of all or almost all the members of a family or a large number of
persons of a particular caste, community, or locality, are committed.
5. Personality of the victim.
When the victim of murder is,
(a) an innocent child who could not have or has not provided even an
excuse, much less a provocation, for murder,
(b) a helpless woman or a person rendered helpless by old age or
infirmity
(c) a person vis-a-vis whom the
murderer is in a position of domination or trust
(d) a public figure generally loved and respected by the community for
the services rendered by him and the murder is committed for political or
similar reasons other than personal reasons.
In order to apply these guidelines
inter-alia the courts must answer whether the crime rendered life imprisonment
inadequate and whether the circumstances of the crime were such that there was
no alternative but to impose the death sentence. Courts may proceed with
imposing the death sentence if upon taking an overall global view of all the
circumstances, the circumstances of the case are such that the death sentence
is warranted.
CLEMENCY POWER AND
MENTAL HEALTH
In Shatrughan Chauhan v.
Union of India 2014 (3) SCC 1 The three judge bench held that supervening
circumstances like delay, solitary confinement, and insanity were relevant
considerations at the post- mercy stage. On delay, it was held that ‘undue,
unexplained and inordinate delay’ in execution due to pendency of mercy
petition, would on its own be a ground to commute the sentence of death.
Further, the Court laid down that the gravity and nature of the offence would
be irrelevant at this stage. The SC also noted that keeping a
convict in suspense while consideration of his mercy petition by the President
for many years causes agony, it creates adverse physical conditions and
psychological stresses on the convict under sentence of death. Indisputably,
this Court, while considering the rejection of the clemency petition by the
President, under Article 32 read with Article 21 of the Constitution, cannot
excuse the agonizing delay caused to the convict only on the basis of the
gravity of the crime.
PROCEDUCE OF ISSUE OF DEATH
WARRANT
In Shabnam v. Union of India
(2015) 6 SCC 702 The Court ruled that it was impermissible to issue a death
warrant when judicial and administrative remedies are still pending in a death
sentence case. In this case it held that the limitation period for filing a
review and thereafter reasonable time to file mercy petition had to be given to
the petitioners. The Supreme Court also gave its stamp of approval to the
guidelines given by the Allahabad High Court in the case of Peoples' Union for
Democratic Rights (PUDR) v. Union of India & Ors. (2015) SCC Online All 143
and made it mandatory in all cases:
- The
convict must be given notice of the warrant to be issued by the Sessions
Court so that she can arrange for a counsel to represent her.
- The
death warrant must specify the exact date and time of the execution.
- There
must be a reasonable period of time between the date of order on the
warrant and the date of execution so that the convict can pursue legal
recourse against the warrant and meet her family.
- A
copy of the warrant must be immediately supplied to the convict.
- Where
required the convict must be provided with legal aid.
REMISSION
In Laxman Naskar
v State of West Bengal (2000), the top Court laid down the following
guidelines for considering premature release:
1. Whether the
offence is an individual act of crime without affecting society at large;
2. Whether
there is any chance of future recurrence of committing a crime;
3. Whether the
convict has lost his potential to commit a crime;
4. Whether there
is any fruitful purpose of confining the convict any more;
5. Socio-economic
condition of the convict’s family
In Swamy
Shraddhananda v State of Karnataka (2008), a three-judge Bench of
the Court doubted whether a life sentence till the “last breath” would be
“carried out in actuality” by the executive.
In Sangeet & Anr vs State Of
Haryana There, the Court observed that there is a “misconception that a
prisoner serving a life sentence” has a right to release on completion of
fourteen years. It held that remission should be granted by the appropriate
government only on a “case-by-case basis and not in a wholesale manner.” In
February 2013, the Ministry of Home Affairs issued an advisory
prescribing that remission should not be granted in a “wholesale manner.”
In Union of
India v V. Sriharan (2015), a Constitution Bench deliberated
whether an offender can be convicted of life imprisonment till their “last
breath”, without the option of remission. This “special sentence” was endorsed
by a three-judge majority who viewed it as an “alternative punishment” to the
death penalty. Former Chief Justice U.U. Lalit,
one of the dissenters, argued that alienating the possibility of remission “is
not conducive to reformation.” Since the “special sentence” is not found in any
statute books, he felt it “would not be within the powers of the court” to
prescribe it.
STAGES OF
DEATH PENALTY LITIGATION IN INDIA
1.
Awarding of death penalty by
court of session: As per Section 366 of CrPC; When the Court of Session passes
a sentence of death, the proceedings shall forthwith be submitted to the High
Court, and the sentence shall not be executed unless it is confirmed by the
High Court.
2.
The High Court may confirm the
death sentence awarded by the Court of Session, pass any other sentence
warranted by law, annul the conviction, convict the person of any offence for
which the Court of Session might have convicted her, order a new trial on the
same or amended charge or acquit the accused person.
In exercise of its suo-moto revision powers, the High Court may,
even in the absence of an appeal from the State against the inadequacy of the
sentence, enhance the sentence awarded by the Court of Session.
The High Court shall not enhance the sentence awarded to the accused
without giving her 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.
High Court also has the power to withdraw a case pending before a
subordinate court and conduct the trial, and may award the sentence of death.
3.
Proceedings before Supreme
Court of India: As per Article 134 of Indian Constitution In cases where the
High Court reverses the order of acquittal on appeal and sentences the accused
to death, or where the High Court withdraws a case for trial before itself from
a subordinate court and in such a trial convicts the accused and sentences her
to death, an appeal shall lie with the Supreme Court.
Under article 134A High Court may grant a certificate for appeal to
the Supreme Court against its judgment, decree, final order or sentence, either
on its own or on an oral application made by the aggrieved party, immediately
after the passing or making of such judgment, decree, final order or sentence.
Under Article 136 of the Constitution The Supreme Court may in its
discretion grant a special leave to appeal under Article 136 of the
Constitution from any judgment, decree, determination, sentence or order passed
in any case, by any court or tribunal in India
4.
Review Petition: Under Article
137 of the Constitution a petition seeking review of a judgment or order passed
by the Supreme Court may be filed before the Supreme Court within thirty days
from the date of such judgment or order.\
5.
Curative Petition10:
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.
10Rupa Ashok Hurrah v. Ashok Hurrah
& Ors
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.
6.
Pardon request: The judicial
process for confirmation of a death sentence concludes either in the Supreme
Court or High Court. Thereafter, a person can file a request for pardon either
to the Governor in case of a State or the President of India in case of Union
Territories. [Art 72 and 161, Constitution]
In case of States, a request for pardon submitted by a person sentenced to death
shall at the first instance be sent to the State Government, seeking orders of
the Governor upon consideration, if the request for pardon is rejected by the
Governor, it shall be immediately forwarded to the Secretary of the Government
of India, Ministry of Home Affairs for consideration of the President of
India.; In case of Union Territories, the request for pardon submitted by a
person sentenced to death shall be sent to the Lieutenant-Governor/ Chief
Commissioner/Administrator who shall forward it to the Secretary to the
Government of India, Ministry of Home Affairs, for consideration of the
President of India.
The Ministry of Home Affairs tenders advice to the President on the
question of the requests for pardon submitted to him and the President is bound
to act in accordance with such advice.
The Supreme Court held that the courts may also review whether
relevant materials were examined by the Executive while exercising the power to
grant pardon. It also held that non-consideration of supervening circumstances
by a Governor or the President while rejecting the requests for pardon would be
in violation of Article 21 of the Constitution and would be a sufficient ground
for the Court to commute the death sentence to imprisonment for life. These
supervening circumstances would include delay in execution, insanity/mental
illness/ schizophrenia, solitary confinement, reliance on judgments declared
per incuriam and procedural lapses in the disposal of the request for pardon.11
11 Shatrughan Chauhan v. Union of India
2014 (3) SCC 1
7.
Death Warrant: In cases where
the death sentence is awarded, a death warrant 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.
ARGUMENTS IN
FAVOUR AND AGAINST DEATH PENALTY
This section is
designed to provide a sketch of arguments both for and against the death
sentence
Arguments in
Favour of Death Penalty
1. Deterrence:
Capital punishment or the death penalty for murder is a deterrent to murder and
other serious crimes even if there is no credible evidence about its effect on
potential killers, because it incapacitates culprits and thereby prevents them
from killing again and/or committing other capital crimes. Besides, life
imprisonment cannot prevent culprits who are also drug dealers or members of
gangs from orchestrating heinous crimes with colleagues who are not in prison.
At times there are various instances found where a person who is imprisoned for
life even commit a murder while being in jail. For ex in State of Wisconsin
Jeffrey Dahmer who was serving 15 life sentences for his “gruesome exploits of
murder, necrophilia and dismemberment” in Milwaukee city in the State of
Wisconsin, was, attacked and killed by Christopher J. Scarver, another inmate
who was convicted in 1992 and sentenced to life imprisonment12
2. Retribution: When someone takes a life, the balance of justice is
disturbed. Unless that balance is restored, society succumbs to a rule of
violence. Only the taking of the murderer’s life restores the balance and
allows society to show convincingly that murder is an intolerable crime which
will be punished in kind. Retribution has its basis in religious values, which
have historically maintained that it is proper to take an “eye for an eye” and
a life for a life. Although the victim and the victim’s family cannot be
restored to the status which preceded the murder, at least an execution brings
closure to the murderer’s crime (and closure to the ordeal for the victim’s
family) and ensures that the murderer will create no more victims
Arguments
Against Death Penalty
1. Irrevocable
sentence: The death penalty alone imposes an irrevocable sentence. Once an
inmate is executed, nothing can be done to make amends if a mistake has been
made. There is considerable evidence that many mistakes have been made in
sentencing people to death. Abdul
Kalam has been in the news saying he favours abolition of the death penalty.
Had he applied his mind to the file put before him 11 years ago in the case of
Dhananjay Chaterjee (who is as reported by many legal luminaries and journalist
as innocent), it would have helped save the life of a man who was in all
likelihood innocent.13
2. Arbitrary
and discriminatory: In practice, the death penalty does not single out the
worst offenders. Rather, it selects an arbitrary group based on irrational
factors. Almost all defendants facing the death penalty cannot afford their own
attorney. Hence, they are dependent on the quality of the lawyers assigned by
the state, many of whom lack experience in capital cases or are so underpaid
that they fail to investigate the case properly. A poorly represented defendant
is much more likely to be convicted and given a death sentence.
PERSONAL
OPINION
After
researching and writing this article no my soul feel relieved that I am
entitled to comment on the issue do India actually need to do away with Capital
Punishment. Over the history of India we have seen many invasion and rule by
many outside powers, they have in some way or other in order to deter the
people used execution as a means. But we are today a part of the largest
democracy in world and perhaps the largest civil society the earth has in
present in terms of population size. Over the period of time since independence
the supreme court judgements have also reflected a will of the legal luminaries
of India to move gradually towards abstinence in use of death penalty. In my
opinion taking life a person not only deprive him of his right to realize his
mistake and reinstate in society again as a better and more civilized citizen
it even deprive the right of a son/daughter of the love and care of their
father. Death Penalty is not a one shot execution and one stop solution to all
heinous crimes.
13https://scroll.in/article/741784/how-india-hanged-a-poor-watchman-whose-guilt-was-far-from-established
last seen on 8/3/2024.
It comes with a
cost, a cost of social exclusion, stigma and taboo for the innocent family
members and kins of the convict, a cost of a irrevocable decision, a cost of
lack of possibility of reformation in convict. Gandhi ji truly said an eye for
an eye will one day make the whole world blind. My take on the issue is that
India should legally adopt a middle path (which he is doing) a situation in
which the state abstains from giving death penalty but in a very extreme or
rare circumstance the law permits giving death penalty, and over a period of
time it should experimentally reduce the number of crimes with death penalty
prescribed. This will help the law makers and executive to observe changes in
the perception of people and even change in their criminal behaviour in general
with such gradual movement. With such long tern experimentation (as has been
observed in many abolitionist countries) I am confident that the overall crime
rate in the country in respect of heinous crimes punishable with death penalty
will reduce to a meagre negligible level, and the need to reintroduce death
penalty as a mode of punishment will not be felt.
ANNEXURE 1
Capital Offences in IPC
|
1. Section
121
|
Treason or 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
|
|
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
|
Capital offences in other legislations in India
|
1. The Air Force
Act, 1950
|
Sections 34, 37, and 38(1)
|
|
2. The Andhra
Pradesh Control of Organised Crime Act, 2001
|
Section 3(1)(i)
|
|
4. The Army
Act, 1950
|
Sections 34, 37, and 38(1)
|
|
5. The Assam
Rifles Act, 2006
|
Sections 21, 24, 25(1)(a), and 55
|
|
6. The Bombay
Prohibition (Gujarat Amendment) Act, 2009
|
Section 65A(2)
|
|
7. The Border
Security Force Act, 1968
|
Sections 14, 17, 18(1)(a), and 46
|
|
8. The Coast
Guard Act, 1978
|
Sections 17 and 49
|
|
9. The
Commission of Sati (Prevention) Act, 1987
|
Section 4(1)
|
|
10. The Defence
of India Act, 1971
|
Section 5
|
|
11. The
Geneva Conventions Act, 1960
|
Section 3
|
|
12. The
Explosive Substances Act, 1908
|
Section 3 (b)
|
|
13. The
Indo-Tibetan Border Police Force Act, 1992
|
Sections 16, 19, 20(1)(a), and 49
|
|
14. The
Karnataka Control of Organised Crime Act, 2000
|
Section 3(1)(i)
|
|
15. The
Maharashtra Control of Organised Crime Act, 1999
|
Section 3(1)(i)
|
|
16. The
Narcotics Drugs and Psychotropic Substances Act, 1985
|
Section 31A(1)
|
|
17. The Navy
Act, 1957
|
Sections 34, 35, 36, 37, 38, 39, 43, 44,
49(2)(a), 56(2), and 59
|
|
18. The
Petroleum and Minerals Pipelines (Acquisition of rights of user in land) Act,
1962
|
Section 15(4)
|
|
19. The
Sashastra Seema Bal Act, 2007
|
Sections 16, 19, 20(1)(a), and 49
|
|
20. The Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
|
Section 3(2)(i)
|
|
21. The
Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002
|
Section 3(1)(i)
|
|
22. The
Unlawful Activities Prevention Act, 1967
|
Sections 10(b)(i) and Section 16(1)(a)
|
ANNEXURE 2
Aggravating factors are any relevant circumstances,
supported by the evidence presented during the trial, that makes the harshest
penalty appropriate, in the judgment of the jurors or
judge
Mitigating factors are any evidence presented regarding
the defendant's character or the circumstances of the crime, which would cause
a juror or judge to vote for a lesser sentence.
The Supreme Court in the case took
the reference of American Supreme court Judgement of Furman v. Georgia.
After the decision in Furman v,
Georgia, the Georgian state Legislature amended its statutory scheme
introducing a list of aggravating circumstances decided in conscience of the
said judgement. The statutory aggravating circumstances, the existence of any
of which may justify the imposition of the extreme penalty of death, as
provided in that statute, are:
(1).
The offence of murder, rape, armed robbery, or kidnapping was committed by a
person with a prior record of conviction for a capital felony, (or the offence
of murder was committed by a person who has a substantial history of serious
assaultive criminal convictions),
(2).
The offence of murder, rape armed robbery, or kidnapping was committed while
the offender was engaged in the commission of another capital felony, or
aggravated battery, or the offense of murder was committed while the offender
was engaged in the commission of burglary or arson in the first degree,
(3).
The offender by his act of murder, armed robbery, or kidnapping knowingly
created a great risk of death to more than one person in a public place by
means of a weapon or device which would normally be hazardous to the lives of
more than one person.
(4).
The offender committed the offence of murder for himself or another, for the
purpose of receiving money or any other thing of monetary value.
(6).
The offender caused or directed another to commit murder or committed murder as
an agent or employee of another person.
(7).
The offence of murder, rape, armed robbery, or kidnapping was outrageously or
wantonly vile, horrible or inhuman in that it involved torture, depravity of
mind, or an aggravated battery to the victim.
(8).
The offence of murder was committed against any peace officer, corrections
employee or fireman while engaged in the performance of his official duties.
(9).
The offence of murder was committed by a person in, or who has escaped from,
the lawful confinement.
(10).
The murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or custody in a place of lawful confinement, of
himself or another.
The Supreme Court of United States
of America in Arnold v.
State (1976) 236 Ga 534, 540, 224 SE 2d
386, 391 held unconstitutional the portion (within brackets) of the first
circumstance encompassing persons who have a "substantial history of serious
assaultive criminal
. Drawing upon the penal statutes
of the State of Georgia framed after Furman v, Georgia, in general, and Clauses
2(a), (b), (c), and (d) of the Indian Penal Code (Amendment)
Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has
suggested these "aggravating circumstances":
Aggravating
circumstances : A Court may, however, in the following cases impose the penalty
of death in its discretion:
(a)
if the murder has been committed after previous planning and involves extreme
brutality; or
(b)
if the murder involves exceptional depravity; or
(c)
if. the murder is of a member of any of the armed forces of the Union or of a
member of any police force or of any public servant and was committed -
(i)
while such member or public servant was on duty; or
(ii)
in consequence of anything done or attempted to be done by such member or
public servant in the lawful discharge of his duty as such member or public
servant whether at the time of murder he was such member or public servant, as
the case may be, or had ceased to be such member or public servant; or
(d)
if the murder is of a person who had acted in the lawful discharge of his duty
under Section 43 of
the CrPC, 1973, or who had rendered assistance to a Magistrate or a police
officer demanding his aid or requiring his assistance under Section 37 and
Section 129 of the said Code.
in order
to qualify for inclusion in the category of "aggravating
circumstances" which may form the basis of 'special reasons' in Section
354(3), circumstance found on the facts of a particular case, must evidence
aggravation of an abnormal or special degree.
Dr.
Chitaley has suggested these mitigating factors:
Mitigating
circumstances:- In the exercise of its discretion in the above cases, the Court
shall take nto account the following circumstances:
(1)
That the offence was committed under the influence of extreme mental or
emotional disturbance.
(2)
The age of the accused. It the accused is young or old, he shall not be
sentenced to death.
(3)
The probability that the accused would not commit criminal acts of violence as
would constitute a continuing threat to society.
(4)
The probability that the accused can be reformed and rehabilitated. The State
shall by evidence prove that the accused does not satisfy the conditions 3 and
4 above.
(5)
That in the facts and circumstances of the case the accused believed that he
was morally justified in committing the offence.
(6)
That the accused acted under the duress or domination of another person.
(7)
That the condition of the accused showed that he was mentally defective and
that the said defect unpaired his capacity to appreciate the criminality of his
conduct.
References
1. U.N. Economic & Social
Council, Safeguards Guaranteeing Protection of the
Rights of Those Facing the Death Penalty, res. 50/1984, UN Document E/RES/1984/50,1
2. Indiana Journal of Global
Legal Studies, Vol. 6, No. 2 (Spring, 1999), pp. 721-756 (36
pages)
3. Economic and Political Weekly , Mar. 12-18,
2005, Vol. 40, No. 11 (Mar. 12-18,2005), pp. 1023-1026
7. https://www.cbsnews.com/news/kenneth-eugene-smith-executed-by-nitrogen-hypoxia-in-alabama/
Article Information
DO WE ACTUALLY NEED TO DO AWAY WITH CAPITAL PUNISHMENT IN INDIA?
Authors: VEDANT KALKHANDAY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
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