In this blogpost, Rajnandini, Student, Rajiv Gandhi National University of Law, Punjab writes on the position of capital punishment in India, doctrine of rarest of rare cases and the position in other countries.

Capital Punishment or death sentence is where the life of a person is taken away by the state as a punishment for the offence committed by him. In Indian legal system, death sentence is prescribed under various statutes such as The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act. Apart from this, there are many provisions in Indian Penal Code which prescribe for capital punishment such as waging war against the state, culpable homicide amounting to murder, etc. However the judiciary can grant the death sentence only in rarest of rare cases.

Doctrine of Rarest of the rare cases

The expression ‘rarest of the rare case’ was first used by the court in the case of Bachan Singh v State of Punjab,[1] In this case, the Supreme Court analysed in detail the question as to whether the capital punishment should be granted or not. The court laid down broad guidelines to determine what circumstances would constitute rarest of rare case. The court opined that the death sentence should only be awarded when the sentence of life imprisonment is “unquestionably foreclosed”. The Court also asserted that a balance needs to be struck between the aggravating and mitigating factors in order to reach the conclusion regarding the punishment that should be awarded. If there is no option but to award capital punishment even after taking into consideration all the mitigating factors, only then it should be awarded. The factor which makes the case so uncommon as to make a life imprisonment inadequate should also be reasoned out. In Prajeet Singh v State of Bihar[2] the court opined the rarest cases were those in which the “collective conscience of the community is so shocked that it will expect the holders of the judicial power to inflict death penalty.”

Constitutionality of Capital Punishment

Capital Punishment is a highly debated topic across the world. In India too, the constitutionality of Capital Punishment is challenged on the ground that it violates right to life and right to equality enshrined in the constitution in Article 14 and 21 respectively in various cases. In Mithu vs State of Punjab[3] the court struck down mandatory death sentence as a punishment when a person commits murder while serving life imprisonment for some other crime. In Jagmohan Singh v State[4] the Court rejected the argument that capital punishment is violative of Article 21.  In Triveniben v State of Gujarat[5] it has been held that a person sentenced to death is also entitled to procedural fairness till his last breath of life. Art. 21 demands that any procedure which takes away the life and liberty of such person must be reasonable, just and fair.

Arguments in favour and against death penalty

The question of capital punishment is debated over and over many times. The critics of death penalty include prominent legal personalities. Justice Krishna Iyer has emphasised the heinous nature of death penalty in a number of judgements. In Rajendra Prasad v. State of UP[6] he opined that Death penalty is violative of Article 14, 19 and 21. Justice Ganguly has termed death sentence as barbaric, anti-life, undemocratic and irresponsible. In Bachan Singh, Justice P.N. Bhagwati, in his dissenting opinion termed death penalty as unconstitutional and undesirable. The concept is often criticised on the grounds that it is irrevocable in nature and not fit for civilised society. Law Commission in its Report in 2015 has recommended the abolition of death penalty except in terror-related cases. The arguments that are forwarded against death penalty are:

• There is a risk of execution of an innocent person.
• There are no foolproof criteria to determine what constitutes a rarest of rare case.
• Usually, the poor and the less fortunate ones are at a greater risk of getting the death sentence because they don’t have enough means to defend themselves.
• There is no conclusive evidence of the deterrent value of the death penalty” (UNGA Resolution 65/206)

However, in India, death penalty is very much in practice and convicts are still awarded death penalty. A court of sessions can grant death sentence only with confirmation from the High Court. The president has the power under Article 72 to grant pardons, reprieves, respites or remissions in case the punishment is a death sentence. Former President Mrs. Pratibha Patil made over 35 pardons during her tenure.[7] While her successor, Mr. Pranab Mukherjee has rejected 22 mercy petitions out of 24 including that of Ajmal Amir Kasab and Yakub Menon. [8] The debate over the capital sentence came to light once again in the case of Yakub Menon where the Supreme Court confirmed his death penalty for his involvement in terror attacks in Mumbai. The Court further rejected a curative petition filed to prevent his execution. After that certain members of civil society also urged the President to accept his mercy petition and stay his execution. However his petition was rejected, and the death penalty was subsequently executed. The arguments in favour of death penalty are:

• Death penalty is the most effective way to remove unwanted, brutal and dangerous criminals from the society permanently.
• It acts as a deterrent and it ensures justice to the victims. [9]
• The constitution provides for ‘reasonable restrictions’ on freedoms under Article 19. Article 21 makes right to life and personal liberty conditional and not absolute. the condition is‘unless according to the procedure established by law.’
• The government doesn’t have to spend the taxpayer’s money in maintaining anti-social elements.[10]

Position in other Countries

The entire world is divided between those who support the death penalty and those who oppose it. While 98 countries including Norway, United Kingdom and Switzerland have abolished it for all crimes, in 58 countries including China, Saudi Arabia, Nigeria, Iraq and Iran it still exists and alarming number of executions are carried out[11]

The United Nations is against capital punishment. United Nations General Secretary Ban Ki Moon has remarked,” The death penalty has no place in the 21st century.”  In 1984, the UN Economic and Social Council adopted Safeguards guaranteeing protection of the rights of those facing the death penalty. In 2007, 2008, 2010, 2012 through a series of resolutions, the UN urged the states to restrict the use of death penalty and safeguard the rights of the person undergoing such a penalty. Although Article 6 of the International Covenant on Civil and Political Rights permits the use of death sentence in certain circumstances.[12]

[1] (1980) 2 SCC 684

[2] Appeal (crl.) 1621 of 2007

[3] (1978) 1 SCC 248

[4] 1973 AIR 947

[5] 1989 AIR 1335

[6] 1979 AIR 916

[7] http://articles.timesofindia.indiatimes.com/2012-06-22/india/32367604_1_pardons-mercy-petitions-molai-ram

[8] http://www.catchnews.com/national-news/the-maths-of-mercy-which-president-would-have-been-most-likely-to-grant-yakub-a-pardon-1438183159.html

[9] http://www.capitalpunishmentuk.org/thoughts.html

[10] http://www.capitalpunishmentuk.org/thoughts.html

[11] http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries?scid=30&did=140#all%20crimes

[12] http://www.ohchr.org/EN/Pages/Home.aspx