This article is written by Puneet Chhabra.

Introduction

In India, death penalty often being awarded for committing heinous crimes like murder, gang robbery with murder, abetting suicide of a child or insane person, waging war against the government, and abetting mutiny by a member of the armed forces. Death penalty depends upon intensity and harshness of an act performed by the person. Presently, judges in India can only award the death sentence in the ‘rarest of rare’ cases.  In 2013, an amendment to the law permitted the death as a punishment in cases where the rape was lead to the death of the victim or left the victim in a persistent vegetative state, as well as for repeat offenders. The course of the trial of the death penalty was followed by the procedure provided in the Criminal Procedure code 1973. After the procedure, it is up to the discretion of the Session Judge to provide death sentence subject to certain power defined in the code.

What are the Inherent powers given to Session Judge?

“Section 28 of the Criminal Procedure Code 1973, gives the power to High Court and Session Court to pass sentence on any convict which includes any sentence which is conferred then by law.

Section 28(2) – A Session Judge or Additional Session Judge may pass any sentence authorized by law, but any sentence of death passed by any Judge shall be subject to confirmation by the High Court.

After the death sentence has been awarded by the Session Judge, it shall be subject to confirmation by the High Court and the same sentence was sent to High Court which is looked by the division bench.

What are the provisions given under Code of Criminal Procedure 1973 regarding death sentence?

1. Section 366 of the Criminal Procedure code 1973 states that “When the court of session passes a death sentence, the proceeding shall be submitted to the high court and it shall not be implemented unless it is approved by the high court.

It was held In Balak Ram case, that the High court needs to look both the facts and question of law involved in awarding the death sentence by the Session Court and after the High court properly investigated the matter awards death sentence to the person. (A.I.R. 1974 S.C.2165).

Subject to provision given in Section 367 of the Code “When the death sentence is submitted  to the high court subject to its confirmation, and if high court is in the opinion that the case requires further inquiry, it may do itself or directs Court of session to go to and the person to whom the death sentence has been awarded directs to be suspended unless the High court directs.

Whenever such case laid before the High Court, it may

1. Confirm the death sentence passed by a court of sessions,
2. Directs the Court of Sessions, to  further inquiries into the matter, or order  a fresh trial,
3. If the court finds irrelevant considerations, lack of evidence, it may acquit the accused.

Further,  Section 369 of the code provided in every such case of a death sentence shall be presided by division bench or more, and order should be signed by at least two judges of the bench.

Section 370 of the Code, When the bench presiding over the matter is equal in terms of ratio, then the matter should be laid before another judge of respective High court, who may after observing the circumstances of the case, passed the judgment.

After the confirmation of death sentence by High Court, the authorized officer of the High Court must, without any further delay, send an approved copy of an order, under the seal of High Court, and attested with his official signature, to the Sessions Court.

Whether an appeal lies to the Supreme Court, from the order of High court?

Section 413 of the Code of Criminal Procedure provides that if a case is submitted before the High Court, and after receiving approval of the death sentence by the High Court, the Court of Session shall make such arrangement so, as to give effect to the order confirmed by the High Court.

Further, Section 415 provides that if the order of death is confirmed by the high court, it shall be subjected to appeal in the Supreme Court under clause (a) or (b) of Article 134 (1) of the Constitution, the High Court must order the execution of death sentence to be postponed until the period of appeal has lapsed or such appeal is disposed of.

If a certificate is granted by the High Court under article 134 (1) of the Constitution, the High Court must order the execution of the sentence to be delayed until the period of appeal to Supreme Court on certificate made has expired.

If a sentence of death is approved by the High Court, and the High Court on finding relevant considerations in the case thinks fit that a special leave under article 136 lies to the Supreme Court, it must order the execution of sentence to be postponed for such period, so to enable a person to filed petition.

After, the end of the judicial process and rejection of petition under article 136 by the Supreme Court of India, the only alternative left with the accused is mercy petition to the President of India.

Last Resort: Pardoning powers of Governors /The President

After, confirmation of death sentence by the Supreme Court, the provision under section 354 (5) Cr.P.C.)  states that the convict shall be ‘hanged by the neck till is dead’. The last resort which is available to the accused is to appeal for mercy petition. The President of India and Governor under article 72 and 161 of Indian constitution respectively.

Article 72 states that “Power of president to grant pardon, reprieves, respites or remissions commute sentences in the following cases:

• In every case where the punishment or sentence is by Court-martial,
• in every case where the punishment or sentence is for an offence against any law relating to the matter to which the executive power of Union extends,
• in all cases where the sentence is a sentence of death.

Similarly, under article 161 of Indian Constitution Governor of a state has the powers to grant pardon, reprieves, respites or commute sentences of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Whose Power will prevail?

In case, of the death sentence, only the President has the power to grant pardons. No such power to grant the pardon in a death sentence has been given to the governor of the state. The pardoning power of the president is not absolute. It can only be exercised with “aid and advice” of the Council of Ministers. Further, no provision under the constitution has mentioned the mode of exercising the pardoning power of the President.

Thus, Article 161 gives powers to the Governors of States to grant pardons, reprieves, respites or remissions of punishment or suspend, remit or sentence of a convicted person of an offence against a law relating to which the executive powers of the State extends.

Pardoning power under Judicial review

There has been always a question before the Supreme Court of India whether the pardoning power of the executive should be subjected to judicial review. Supreme Court in numerous judgements answer this question 

• In Maru Ram v Union of India, the Constitutional Bench of Supreme Court held that power under article 72 is not absolute and the President only on the advice  of the Government can exercise such power.
• In Dhananjoy Chatterjee alias Dhana v State of West Bengal, the Supreme Court considers its judgment in Maru Ram v Union of India held that the power under article 72 and 161 of the Constitution cannot be exercised by the President or Governor on their own, they are bound with the advice of the Central and State Governments.
• In Ranga Billa case, same question was laid before the Supreme Court to decide whether powers under article 72 and article 161 subject to judicial review. In this case, the death sentence of appellants was confirmed by the Supreme Court and also his petition before the President was rejected. Then, the petitioner again filed a writ petition questioning the pardoning powers of the President under Article 72 of the Constitution . The Supreme Court dismissed the petition on the ground that the term “ pardon” itself states it is the entirely discretionary remedy and grant or rejection of it cannot be questioned.
• Similarly, In Kehar Singh v Union of India[3], of India applying its previous view that power under article 72 is not an absolute power, it can only exercise with the advice of the Central Government.
• In Swaran Singh v State of U.P., the Governor of U.P. while exercising his powers under article 161, had granted remission of life sentence awarded to The Minister of State Legislature of Assembly convicted for the offence of murder . The Supreme Court interfere with the matter and held the order of the Governor was arbitrary in nature.

• In the early case of K.M. Nanavati v State of Bombay[4] , Governor decision  under Article 161 which was held invalid  as it was in against with the Supreme Court rulings under Article 145
• In a landmark judgment Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors, Supreme court gave some glimpse that the pardoning power under article 161 and article 71 should be subjected to judicial review on the following grounds :

If the order has been  without application of mind.

The order is arbitrary and violates constitutional provisions.

The order has been passed taken wholly irrelevant materials.

Now, it is a well-established law  that pardoning powers of the President and Governor under Articles 72 and 161 respectively  is subject to judicial review.

Some of the Landmark cases dealing death penalty in India

• In the prominent case of Jagmohan Singh v State of U.P.[5], was the first case discussing the constitutional validity of death penalty and it was held the provisions provided by the procedural law is not sufficient and violative against the fundamental right given under article 21 of the Constitution and held to be unconstitutional by the Supreme Court.
• A similar opinion was laid down in case of Mithu v State of Punjab[6] and  was held that provision of section 303 of Indian penal code, which provides mandatory death sentence held violative of article 14 and 21 of the constitution.
• In the cases of T.V. Vatheeswaran v State of Tamil Nadu[7] and Sher Singh v State of Punjab[8], the same question regarding the validity of the death sentence was put before the Supreme Court.
• In the leading case of Machhi Singh v State of Punjab[9], it was held the death sentence could be awarded in “rarest of rare case”.

Conclusion

After throwing a light on  the various provisions provided  in the Indian legal system, it is clear that  even after the sentence of death was awarded to the accused  by the Court of Session, he still has various other alternatives to avoid the execution of order confirming sentence of death by the procedure of appeal to the High Court and even after it was confirmed by the High Court, the accused can knock the door of Supreme Court under its Appellate jurisdiction or by way of Special leave petition (article 136) . The final alternative the accused is left with is the Mercy petition( article 72) to the President of India.

Also, it can be drawn that Indian Constitution provides a fair trial i.e. given every possible chance to the accused to be heard properly and in fair manner.