This article is written by Srishti Chawla, a 5th-year student at Amity Law School, Noida

Introduction

Through the passing centuries, we have seen the rise and fall of various dynasties but the only thing common between them was their use of death penalty as a means of administering justice.

If we look at the time of the Mauryan Dynasty, the principal followed to punish a person was an eye for an eye, a hand for a hand, etc. The later dynasties followed different types of punishments such as dragging the body by a horse, cutting of head or any body part, stamping by an elephant which was very brutal in nature. In the world perspective, the criminal laws regarding death penalty were first codified by King Hammurabi of Babylon. There were other forms of death penalty which were prevalent in the world such as guillotining in France, beheading in middle east countries, execution by electrocution in Russia, etc. But in the present era with codified laws and awakened conscience, is death penalty still really the best option of punishment? Despite many organizations protesting for the abolishment of a death sentence, it is still being carried out in different countries. The UN in its Charter of Rights has declared death penalty or capital punishment as a crime against humanity and had also asked its member countries to get abolish it. One of the member countries of the UN – India, has still not got rid of capital punishment even though the Constitution of India has stated that the government has no right to take the life of any person as per article 21. Consequently, India’s international stand on the Moratorium on death penalty both at the General Assembly and at the Human Rights Council has always been against the resolution saying, it goes against the statutory law of the country where an execution is carried out in the “rarest of rare” cases.

Definition Of a Death Sentence

A death sentence is a legal process where a person is put to death by the state as a punishment for a crime committed by him. The judicial decree that someone should be punished in this manner is called a death sentence, while the actual process of killing the person is called an execution. Crimes that can result in a death penalty are known as capital crimes or capital offenses. The term capital has a Latin origin from the term capitalist, literally “regarding the head”. It refers to a sentence that condemns a convicted defendant to death. It is also an affliction or a situation that is considered to be fatal; also a prognosis of death.

To know more about death penalty in India and related landmark judgements, please watch the video below:

In India, section 368 of the Criminal Procedure Code gives the power of confirmation of death sentence to the High Courts. A death sentence is normally given in case of murder, for waging war against the state and also in cases cited as Rarest of Rarest Cases.

Methods of Execution to Death

The various types of methods of execution are as follows:

1. Death by burning: This type of execution was seen in the famous situation of Joan of Arc who was sentenced to death by burning on the ground that she was a witch.
2. Wheel: The process can include rolling a wheel full of spikes on top of a person or attaching a person to a wheel and roll him down a hill.
3. Execution by firing: The most common form of execution during World War II whereby a firing squad is called and then the accused person is tied to a pole and then fired upon.
4. Headman’s Axe: This is the method by which the head is placed on a wooden platform and the executioner chops off the head of the convict by the use of an axe.
5. Guillotining: Another common form of execution seen in the French Revolution. Dr. Joseph Guillotine was the person who invented this method whereby the accused person’s head was placed in a round hole on a wooden block and a blade is dropped cutting the person’s head.
6. Gas chambers: The most common form of execution seen in Nazi Germany whereby the enemies of Adolf Hitler were sent to concentration camps. They were sent to chambers where toxic gas is to be released killing the people.

The Validity Of a Death Sentence

The constitutional validity of a death sentence was first challenged in the United States of America which took the step for the abolition of death sentence, Pennsylvania is the first state to abolish death penalty. Different jurists in the United States court have given different views regarding the unconstitutionality of death sentence. But even after such decisions were made, many countries have not fully abolished death penalty. For example, death penalty still exists in countries like Saudi Arabia, India, etc.

In India, death penalty is handed out by the method of hanging by the neck. This method has been in practice ever since the British times and has not been abolished till date. Section 53 of the Indian Penal Code 1860 provides for a death sentence and section 368 of the Code of Criminal Procedure provides power to High Courts to confirm death sentences. Death penalty is handed out in cases known as rarest of the rare cases i.e. those cases in which the collective conscience of the community is so shocked that it will expect the judiciary to deliver death penalty on the accused. The Indian Supreme Court has stated that cases in which a murder is committed in its extreme state can be put under the purview of rarest of rare cases.

In the case of Mithu v. State of Punjab(2001), the Supreme Court made the decision that mandatory death penalty is unconstitutional in nature. While. Although the consequent legislation for drug and criminal offenses prescribes a mandatory death penalty, the Supreme Court has not expressly struck down death penalty as unconstitutional. Also, Indian courts have not actually applied the mandatory death penalty for these crimes. Similarly, in Bachan Singh Vs State of Punjab(1980), The supreme court of India held that death penalty can only be said to be constitutional when it was applied as an exceptional penalty in the rarest of the rare cases.

Crimes Punishable by Death Penalty in India

1) Aggravated Murder

Under Article 302 of the Indian Penal Code, murder is a punishable offense. Similarly, in Bachan Singh Vs State of Punjab(1980), The supreme court of India held that death penalty can only be said to be constitutional when it was applied as an exceptional penalty in the rarest of the rare cases.

The instances of murder when a death penalty can be awarded are-

(i) A death penalty can be awarded to a group even if one of the members of the gang in the process of doing an armed robbery commits a murder(Section 396 of IPC,1860)

(ii) When a person is kidnapped for ransom and the kidnapped person gets killed, it is punishable by death penalty. (Section 364A of IPC,1860)

(iii) Membership of an association and using of guns or ammunition which results in the death of a person will be awarded a death penalty(Article 6 of The Unlawful Activities (Prevention) Amendment Ordinance,2004 )

(iv) Being engaged in any kind of organized crime activities which results in the death of a person shall be punished with death penalty (State Laws)

(v) The act of Committing or assisting someone in committing sati is an act punishable by death itself(Article 4(1) of The Commission of Sati (Prevention) Act)

2) Terrorism-Related Offenses

The usage of any explosive of a special category which is likely to endanger the lives of people or cause serious damage to property is an offense punishable by death (Section 3(b) of the Explosive Substances (Amendment) Act,2001)

3) Aggravated Rape

(i) A rapist who during the course of the crime causes the death of the victim or causes the victim to be left in a “persistent vegetative state” shall be punished by death under the Criminal Law (Amendment) Act, 2013.

(ii) Following the Nirbhaya Gang Rape case in 2012, repeated gang rapes were also held to be punishable by death under Section 9 of the Criminal Law (Amendment) Act 2013.

(iii) The rape of a 8 year old Kashmiri girl i.e Asifa Bano case caused the amendment in the Criminal Law (Amendment) Ordinance, 2018 which said that the death penalty may be imposed for the rape of girls under 12 years of age, and the minimum punishment is 20 years in prison, along with a fine.

4) Treason

The act of Waging or attempting to wage war against the government and assisting officers, soldiers, or members of the Navy, Army, or Air Forces in committing mutiny are punishable by the death penalty. (Article 121 and 136 of the Indian Penal Code,1860)

5) Kidnapping

The unlawful detaining or kidnapping of a person is an act punishable by death even if the kidnapper only threatens to harm the victim or actually does so. (Article 364 A of the Indian Penal Code)

However, whether (or when) these offenses are death-eligible must be considered in the light of the Indian Supreme Court’s decision in Bachan Singh Vs State of Punjab(1980).

To know more about the evolution of capital punishment in India and who all are excluded from capital punishment, please watch the video below:

Delay in Execution of Death Sentence

Delay in the execution of a death sentence should be a reasonable factor enough to be considered for reducing the sentence from death penalty to life imprisonment keeping in mind the mental agony inflicted on the accused during the tenure. The Supreme Court has repeatedly held that excessive delay in executing the death penalty, leaving the condemned prisoner to suffer a “dehumanizing effect” of “facing the agony of alternating between hope and despair” renders the capital punishment too inhuman to be inflicted, thus entitling the prisoner to the lesser sentence of a life term. According to the latest data, the delay in the trial of death row convicts makes the very punishment of death penalty ineffective and instead increases the torture inflicted on the convict and his family.

By the end of December 2017, there were said to be 371 convicts waiting on the death row in India with the oldest case from 1991 which is 27 ago according to the death penalty report published on January 2018. Still, only four of the convicts on death row were executed in the last thirteen years with one being a rapist of a minor child and the other three convicted of terrorism crimes. According to the law commission of India report of 2015 on death penalty, Death row prisoners still continue to face long delays in trials, appeals and thereafter in executive clemency

According to a study carried by the center on death penalty, the average time faced for trials by the 373 convicts facing death row was 5 years. Of 127 prisoners, the trial time faced was more than 5 years and of 54 convicts it continued for more than 10 years. The delay was extreme to such a limit that a convict in one case had spent 21 years on death row waiting for execution. On May 4, 2018, the Supreme Court upheld its verdict on awarding the death penalty to two of the four convicts accused in the Nirbhaya gangrape and murder case. The last time an execution was carried out was in the year 2015 when Yakub Memon was convicted after being found guilty of being involved in the Mumbai Terrorist in the year 1993 which had killed 257 people.

Causes For Delay In Execution of Death Sentence

Delay can be caused due to prolonged time for confirmation of death sentences. This is the prime reason for causing delay to prisoners awaiting death sentence. Other reasons include health of convicts awaiting death sentence (mental as well as physical) i.e. they should be physically as well as mentally fit when death sentence is carried out. Also, feasible Mental health of the awaiting prisoners is a questionable matter because of the extreme agony they face in the whole procedure of being convicted for a death sentence. As stated by the Supreme Court of India, Inordinate and unreasonable delay attribute to torture.

Due to such a long delay in the judgments of the judiciary, a  convicted person has to be given treatment because of the mental torture he undergoes since he starts to lose the hope to live. At times there have been situations where convicts on the death row, whose execution is being kept delayed on and on literally have to beg the officials to carry out their sentence so that their suffering can come to an end. As in the case of Devender Pal Singh Bhullar & Anr vs State Of NCT Of Delhi, a Khalistani terrorist who has been languishing in Tihar Jail for the last few years has been suffering from schizophrenia due to the mental torture because his execution kept on being delayed. As long as the execution is delayed, the will power of the prisoner who is sentenced to death will go down finally driving him to a state where he has to finally beg to the officials to carry out his execution. Due to the extreme delay faced by him in conviction on 31 March 2014, the Supreme Court commuted his death sentence to life Imprisonment on the grounds of inordinate delay in deciding his mercy petition and his suffering from schizophrenia.

International Views on Death Penalty

Death Penalty as a form of punishment has been criticized by many countries and organizations. The United Nations General Assembly stated that in the case of capital punishment, there is a need for a high standard of fair trial which should be followed by every country. The United Nations Economic and Social Council has asked its member countries to abolish the death sentence but stated that those member countries which wished to retain the death sentence must ensure speedy trial to the defendants. Most of the countries in the European Union has abolished the death sentence. On the 3rd of May 2002, the thirteenth protocol to the European Convention for the protection of Human Rights and Fundamental Freedoms was open for the signature of member countries for the abolition of death sentences in all circumstances.

Many international legislations were also in favour of abolishment of a death sentence. Article 5 of the Universal Declaration of Human Rights, 1948 &  Article 7 of the International Covenant on Civil and Political Rights 1966 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Capital Punishment has been recognized as a cruel, inhuman and degrading punishment which infringes on the basic human rights of the accused as expressed in article 3 of the European Convention of Human Rights. Article 3 of the Universal Declaration of Human Rights provides for the right to life, liberty, and security of human beings. In England, it was abolished by the Murder (Abolition of Death Penalty) Act, 1965 though at the end of the eighteenth century about two hundred offences were punishable by death.

India has time and again opposed the  UN resolution for a moratorium on the death penalty since every member state of the United Nations has the sovereign right to determine its own legal system and appropriate legal penalties. Also in India, the death penalty is exercised only in the rarest of the rare cases when the crime committed is so grave that it outrages the conscience of the whole society. The United Nations Secretary-General has repeatedly mentioned in his reports on the moratorium on the death penalty that the decisions taken by the Supreme Court Of India have also tried to limit the awarding of the death penalty in cases and also to protect the rights of those who have been sentenced to death.

Position of Death Penalty In India

Since the last 20 years, India’s execution rates have reduced drastically.

Article 21 of the Constitution of India guarantees to its citizens the right to life and personal liberty which includes the right to live with dignity. According to this article, no person shall be deprived of his life and personal liberty except according to the procedure established by law. This means that a person’s life and personal liberty can be disputed only if that person has committed a crime. Therefore the state may take away or abridge even right to life in the name of law and public order following the procedure established by law. But this procedure must be “due process” as held in Maneka Gandhi vs. Union of India(1978). The procedure which takes away the sacrosanct life of a human being must be just, fair and reasonable. In Mithu v. the State of Punjab(2001), the Supreme Court declared that section 303 is unconstitutional because it is not in tune with articles 14 and 21 of the constitution.

In India, non-governmental organizations are fighting against inhuman, degrading and cruel punishment and protection of human rights. Although judiciary has evolved the principle of “rarest of rare cases” and has indicated that it is with special reasons that death penalty must be imposed in cases of exceptional and aggravating circumstances where offenses are very grave in nature, the application of the principle itself, as evident from a plethora of cases, is in violation of Constitutional provisions. Justice V.R. Krishna Iyer, an eminent jurist and former judge of the Supreme Court of India was himself against death sentence. According to Justice Iyer, life is given by God and can be taken away by God himself. The state does not have the right to take away a person’s life. Execution by state amounts to inhumanity. He further stated that Gandhi’s country must set an example by abolishing death penalty. Even if supported by a judicial decision, the state must not hang a person.

The condition of people undergoing death sentence is quite horrendous when compared to the Indian Context. Various studies conducted by different organizations have found that the death convicts undergo both physical and mental torture while waiting for the news on what day they are to be executed. Taking the case of Devendra Pal Singh Bhullar, who was accused in the 1993 Delhi bomb blast case, was languishing in jail till his death sentence was commuted to life imprisonment in 2014. The prisoners themselves are “mentally dead” as they keep on waiting for the day of their execution which in fact keeps on getting delayed.

Case Laws

In the case of Bachan Singh vs State of Punjab(1980), Justice Bhagwati in his dissenting opinion stated that death penalty is necessarily arbitrary, discriminatory and capricious. He further stated that it was indeed the poor who are subjected to the gallows and the rich and the affluent usually escape from its clutches. This is indeed a gross violation of Articles 14 and 16 of the Constitution. In Shashi Nayar vs Union of India(1991), the death penalty was again challenged for the reliance placed in Bachan Singh case in the 35th Law Commission Report but the court turned it down stating that the time was not right for hearing such a plea. Also, the plea to consider hanging till death as barbaric and dehumanizing was rejected.

In the recent judgment in Shatrughan Chauhan Vs. Union of India(2014), the Supreme Court of India has laid down certain guidelines as to how death penalty can be converted into a life sentence. The same was implemented in the case of Union of India vs. Sriharan(2015), popularly known as the Rajiv Gandhi assassination case whereby the death sentence of the killers of Rajiv Gandhi was reduced to a life sentence by the Supreme Court of India.

Recommendations

Fully agreeing with the recommendation of the Law Commission in its 262nd Report. The Law Commission in its 262nd Report has called for the abolishment of the death penalty in all cases except for those relating to terror cases. This was in the wake of the hanging of Yakub Abdul Razak Memon who was hanged on the early morning hours of 30th July 2015 in spite of his advocates trying to stay the execution and convert it into a life sentence. Legislation enacted by the Tripura Assembly has also called for the abolishment of the death penalty in India. Also, certain guidelines have to be laid down as to the execution of death warrants within a specified time limit. In case there is an unconditional delay (except in cases of terror), then provisions must be made whereby the mental condition of the convict, his death sentence can be converted into life imprisonment. Execution to death must not be for political purposes as seen in the recent case of Yakub Memon. Above all only the supreme creator has the right to take the lives of the people on earth and not the state or any other organ of the state.

Conclusion

Therefore death penalty is itself an offense against humanity. God has given us life and no state has the right to take it. Thus the process of death sentence should be declared unconstitutional and as an offense against human rights. The government must take into consideration the negative aspects of sentencing to death and must take steps to delete such provisions relating to death sentence away from the law. The process of death sentence is long and therefore the convicted prisoners undergo both physical as well as mental torture. This causes them to literally beg for death. Such a situation must not be faced by any human being, be it a convict or not. Although actual executions of convicts punished with death penalty are decreasing in number, yet a lot has to be done to fasten the procedure for those waiting on death row and also comply with India’s international commitments.