This article is written by Sanket Das

Introduction

Death Penalty is a process which is provided as a lawful infliction of punishment to an individual if he or she commits an act which is forbidden by law. This also follows the due procedure of law. The validity of the death penalty has been discussed concerning the Indian Judiciary concept. The arrival of death as a punishment for different crimes as well as the presence of the death penalty in several other countries is discussed in detail. The main focus is on the Indian context and capital punishment laid as a penalty in the legislative acts. The death penalty is a punishment since time immemorial. It is authorized by the government and the expansion of the deterrence theory of punishments. There are various arguments for and against which has not changed and when an issue arises whether the death penalty should be abolished or not it is continuing and reminds ourselves how the Apex court deals with the situation when it has come up before them. 

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

Some movements have gained a good momentum to abolish the death penalty. This reminds us of Cesare Beccaria who was successful in convincing people that the death sentence is inhuman and it should be abolished. Michigan was the first state to ban the death sentence in 1846. The abolition movement was also supported by the United Nations during the drafting of the Universal Declaration of Human Rights (UDHRs) in 1948. The Human Rights Council has been against the Indian view stating, it goes against the statutory law where an execution is carried out in the “rarest of rare” cases. The formal expression of adjudication by the court (Judicial Decree) is a death sentence whereas the process of killing the individual is known as an execution.

The offences which result in the death penalty are also known as Capital crimes and heinous crimes.  In India, there is Section 368 of the Criminal Procedure Code which provides power to the High Courts regarding confirmation of the Death sentence which is given in case of murder, rape, terrorism, waging war, abetting the suicide of minor, acid attacks, drug trafficking and also in Rarest of Rare Cases.  The death sentence is present as a punishment in Section 53 of the Indian Penal Code 1860. This punishment is very rarely used in India. In the case of Bachan Singh vs. State of Punjab, the court had made it clear that capital punishment is given in rarest of rare cases. The precedents were used as an exasperating and mitigating factor before awarding any individual with a death sentence.

This shall be followed by a brief of some of the landmark cases relating to the subject matter decided by the Indian Courts. The Indian constitution guarantees that “the government has no right to take any individual’s life”. This punishment still exists and not abolished in India which is a matter of concern. Article 14 of the Indian constitution, states that “equality before the law and equal protection of the laws”, which means that no person shall be discriminated against unless the discrimination is required to achieve equality.  The punishment is scantily executed which is irreversible and if any error arises in awarding the death penalty, it cannot be undone as the individual is executed. An individual of different classes, castes, genders, social status is treated differently. It is also found that individuals who belong from a lower socio-economic background, cannot afford proper legal services and are at the receiving end of such punishment. 

Present scenario of death sentence in India

Article 21 of the Indian constitution states, “Protection of life and personal liberty” which means the government has no right to take any individual’s life. This guarantees Right to Life to each and every individual in India. This punishment still exists and not abolished in India which is a matter of concern.  According to Section 354 (3) of the Criminal Procedure Code 1973 an offence, “where the conviction is punishable with capital punishment, or an alternate, life imprisonment or imprisonment which may be for a term, judgment has to mention the reasons for awarded punishment.” 

In India, there is Section 368 of the Criminal Procedure Code 1973 which provides power to the High Courts regarding confirmation of the Death sentence. The death sentence is awarded as a punishment under the Indian Penal Code 1860 for various offenses like murder (S.302), rape (S.375), terrorism, waging war (S.121), abetting suicide of minor (S.309), acid attacks (S.326A), drug trafficking and also in Rarest of Rare Cases. 

In the case of Jagmohan Singh v. State of U.P, the court got a chance to discuss the validity of the death penalty for the first time in India. The first argument was related to the death penalty which violates the rights under Article 19(1) and Article 21 of the Indian Constitution.  The second argument was related to not following any policy and there were no guidelines when an individual was awarded the death penalty for a heinous crime. The last argument was related to improper care or discretion violating Article 14 of the Indian Constitution, which guarantees, “equality before the law”. This means everyone is equal before the law and if anyone feels his or her right is violated can appeal before the Judiciary system. In this case, it was found that if two accused committed murder, one was sentenced to death whereas others were sentenced to life imprisonment.

Article 72 of the Indian constitution has given special powers to the president if he/she thinks can provide mercy of the death penalty to an individual. Under this Article, the President of India has “the power to grant pardon, or commute or remit the death sentence in certain cases.” The constitution of India has also provided certain powers to the governor of the State for granting mercy to the convict who is sentenced to death by the courts and no other option is left. Under this article, if the governor wants “he or she can grant pardon, or commute or remit the death sentence”. This is present in Article 161 of the Indian Constitution. If the Sessions Judge Court has sentenced the death penalty to an individual then it should be confirmed by the High Court. If the High Court also sentences the death penalty then the accused can appeal to the Supreme Court of India. Then a review petition can be filed, followed by a “curative petition” and “mercy petition”.  If the Supreme Court rejects the appeal then he/she can file a “mercy petition” to the President of India. If the President rejects the “mercy petition” then he or she can file a petition under Article 32 of the Indian constitution for Judicial Review of the rejection of “mercy petition”.

In India, there are various NGOs who are fighting and gaining a good momentum to abolish capital punishment. The main purpose is to stop the inhuman as well as cruel punishment which violates Article 21 of the Indian Constitution.  Justice V.R. Krishna Iyer was himself against and supported movements to abolish Capital Punishment in India.  According to him, “if God has given life to an individual then no one has the right to take away from him or her”. God has the only right to take away from the individual. Execution leads to inhumanity. 

In the case of Bachan Singh vs. State of Punjab, the court had made it clear that capital punishment is given in rarest of rare cases. The precedents were used as an exasperating and mitigating factor before awarding any individual with a death sentence.  

In the case of Devender Pal Singh Bhullar vs. State of NCT of Delhi, Bhullar was convicted in a bomb blast case by TADA Court. The incident took place in New Delhi (1993). 9 people were killed in the cruel act by Bhullar. The convict was mentally tortured in prison till his death sentence was converted to life imprisonment in 2014. Some studies have found that death row accused are facing both physical as well as mental torture. Convicts undergo mental torture while waiting for the day they will be executed.

In India, there are also certain circumstances where less punishment can be given in case of death row convicts. There is also a Section in the Criminal Procedure Code which states that “if a woman who is awarded hang till death couldn’t be executed if she is pregnant”. The High Court has to order the postponement of the execution.  A minor is a person who has not attained the age of majority. In India, a person to be considered as a minor must be under 18 years. 

In 2015, after the Nirbhaya Rape case, the age of being a minor was changed to 16 years.  Then, if a minor is found guilty of a heinous crime must be sent to a juvenile or observation home. The main motive is to provide proper education as well as rehabilitation of minors who are in conflict with the law. If there is a case where more than one accused has committed a murder, all the accused should be given the same punishment under Section 34 of the Indian Penal Code 1860. The court should properly examine the matter and sentence the convicts for the act he or she has committed. Lesser sentences or punishment should be given to the Co-accused.       

According to a study, “755 people have been hanged to death in independent India until now”. In 2018, the High Court has sentenced death to 23 convicts whereas the lower court has sentenced death to 162 convicts. The previous highest record of court sentencing convicts to death was 154 in the year 2007. In 2019, the courts sentenced 378 prisoners in death row. The highest number of convicts executed was 354 which were found in Uttar Pradesh. Hanging is the only capital punishment given in India. 

In the last 20years, 8 convicts have been hanged to death. In 1995, a serial killer named Gouri Shankar was hanged to death for killing 6 people in India. Dhananjoy Chatterjee was accused of murder and rape of a 14 year’s old girl and he was the first man to be hanged to death in the 21st century in India. Ajmal Kasab was found guilty of 80 offences under the Indian Penal Code 1860 for murder (S.302), terrorism, waging war (S.121), etc. He was the only terrorist who was caught red-handed and hanged to death in 2012. Afzal Guru was convicted for his involvement in the 2001 parliament attack case and he didn’t get a lawyer to represent himself of his own choice. Afzal was hanged to death in 2013. In the year 2015, Yakub Menon was hanged to death for his involvement in the 1993 Mumbai blast case. 

Recently 4 convicts were hanged to death on 20th March, 2020. The convicts were accused of brutally raping a paramedical student.  The culprits inserted an iron rod into her vagina, abdomen and was thrown out of a bus on the winter nights. The court observed, “Question of awarding sentence is discretion and exercised on consideration of aggravate situation.” This court should not only keep or watch on the rights of criminals as well as the victim. The minor involved in the crime was sent for 3years to shelter home and was acquitted later on. 

Nowadays, life imprisonment is awarded to the accused of the heinous crime whereas the death penalty is an exception that is rarely used in India. The concept of Capital punishment is questioned as by executing the convict who has killed someone or involvement in a heinous crime like rape, waging war, terrorism, etc. the judicial system is not in alliance with theories it should follow. Keeping in mind everyone’s rights, the execution of the sentence awarded to the convict is quick and simple and after allowing them to employ all legal remedies.

Capital punishments present as a penalty in legislative acts

Army Act 1950, Air Force Act 1950 and Navy Act 1956

Section 34 of these Acts, states that “if an individual is found to be helping an enemy will be awarded with death penalty”.

• If anyone helps the enemy with money, ammunition, etc.
• When someone protects or saves the enemy from being a prisoner.
• Being intoxicated or sentry in the time of war.
• When an individual communicates or gives information about the army to intelligence as well as the enemy which is against the country.
• Treacherously sends a flag of armistice to the enemy.
• Use any false air signal and the false alarm just to support the enemy

Narcotic Drugs and P,sychotropic Substance Act, 1985

Section 31-A of the NDPS Act 1985, states that “if an individual is involved in production, manufacture, provide financial support and import drugs will be given punishment like death or life imprisonment”. All the offences are punishable under Section 27-A of the NDPS Act 1985.

Sati (Prevention) Act, 1987

Section 4 of the Sati Act 1987, states that “if an individual abets someone to practice Sati then he/she will be punishable with death or life imprisonment if found guilty”. 

The Scheduled Caste and Scheduled Tribe Act, 1989

Section 3(2) (i) of the Scheduled Caste and Scheduled Tribe Act 1989, states that “if an individual gives false evidence which leads to the execution of a member of SC/ST family will be given punishment like death or life imprisonment”. The main motive is to prevent atrocities. 

Prevention of Terrorism Act, 2002

Section 3 (1) of the Prevention of Terrorism Act 2002, defines a “Terrorist” as whoever threatens or causes harm to the sovereignty of India with the use of bombs, dynamites, explosion, poison, etc to cause the death of people. This also includes the individual who supports association which causes mass destruction that is declared unlawful by the government of India.     

Section 3(2) of the Prevention of Terrorism Act 2002, states that “if an individual is involve in a terrorist act which results in the death of a person will be awarded with the capital punishment”. For involvement in a terrorist act, the individual is given punishment with imprisonment for a term of 5 years which may extend to life term.

Procedures to be followed before, during and after the execution of convict

In India, some procedures should be followed when a death warrant is awarded to a convict by the Court. A black warrant or death warrant is a kind of notice which announces the time and date of execution of the convict. It is the Criminal Procedure Code form no 42. Before the hanging of convicts takes place, there must be an inspection of the gallows by the Jail officials. An executive engineer of Pwd is appointed to inspect gallows present in the jail. The inspection starts 4 days and the day before the execution takes place. It must be done in presence of the Jail Superintendent. The prisoner’s weight, neck size, jaw size, and height are measured from the drop shutter when fixed in position to the lower portion of the ring on the beam to which the rope will be affixed.  The Jail manual directs a medical officer to prepare a medical report on how deep the prisoner falls into the gallows. Most of the hanging takes place in the early morning. The time of execution is decided by the Court.

On the day of the hanging, the convict is woken up by the Jail Superintendent. Then, the convict is allowed to take a bath. Food is served to the convict of his/her choice. The convict is also given some time alone so that he/she can remember their family members. If the prisoner wants to read any religious book then he/she is provided. Now the medical officer examines the health condition of the convict. The Jail Superintendent checks that no formalities are left related to execution and ensure no communication from any competent authority pending. Then the Jail Superintendent, District Magistrate, Additional District Magistrate along with the Medical officer visits the convict.

Now, the Jail Superintendent asks the convict if he/she has any last wish before the execution takes place. Next, the convict’s hands are tied behind their back and taken to the gallows under the charge of Deputy Jail Superintendent and guarded by the Head warder. There must be the presence of warders who will hold the convict’s hand by their arms until rope tied.  The convict’s face is covered with a black cloth so he/she cannot see the gallows. The hangman ties the leg and adjusts rope around the convict’s neck. The Superintendent checks whether the rope is adjusted properly or not. Now, the Superintendent gives the final signal to the hangman for the execution to take place. When the hangman receives the signal he should pull the lever and hang the convict as soon as possible. The convict is hanged to death for half an hour or until the medical officer declares him/her dead.

When life is gone, the convict’s body is taken off gallows and now sent for post-mortem examination. All the expenses of funeral and transportation of the dead body of convict from Jail to funeral ground will be incurred by the Jail Superintendent. Then, the government gives the dead body of the convict to their respective family with an agreement of no public demonstration related to cremation. If the family of the convict denies taking away the dead body then, the government will do the funeral. This depends on the convict’s religion whether he will be cremated or buried.

Landmark cases

In the case of Shashi Nayar vs. Union of India, the petitioner’s husband was found guilty as he had killed his father and stepbrother. He was charged under Section 302(Murder) of the Indian Penal Code 1860. The Sessions Judge Court has sentenced the death penalty to Raj Gopal Nayar (convict) then it should be confirmed by the High Court. The High Court also sentences the death penalty then the accused appealed to the Supreme Court of India. Then a review petition can be filed, followed by a “curative petition” and “mercy petition”. The Supreme Court rejects the appeal then he/she can file a “mercy petition” to the President of India. The President rejected the “mercy petition” then he or she can file a petition under Article 32 of the Indian constitution for Judicial Review of the rejection of “mercy petition”. According to Section 354 (3) of the Criminal Procedure Code 1973 an offence, “where the conviction is punishable with capital punishment, or an alternate, life imprisonment or imprisonment which may be for a term, judgment has to mention the reasons for awarded punishment.” The constitutional validity of the death penalty was challenged for the persistence in Bachan Singh Case in the 35th law Commission Report. The court said that time was not right for hearing a plea and rejected it.  

In the case of Deena vs. Union of India, the Supreme Court examined the validity of the death penalty by hanging which is present under Section 354(5) of the Criminal Procedure Code 1973. The Apex Court found that “execution by hanging was not violating anyone’s right under Article 21”. This was done fairly and reasonably and it was held constitutional.

In the case of Mithu vs. State of Punjab, the first case where the validity of a Mandatory death sentence for an individual who was serving life imprisonment was questioned. The mandatory death sentence was present under Section 303 of the Indian Penal Code 860. This was held unconstitutional as it violated the rights under Article 14 and 21.

 In the case of Rajendra Prasad vs. State of U.P, the Supreme Court said that “whether the death penalty or capital punishment should be banned or abolished is the matter of legislature”. The court shouldn’t decide whether it should be abolished or not.

In the case of Machchi Singh vs. State of Punjab, the court had made it clear that capital punishment is given in rarest of rare cases. This is scantily in nature. The Supreme Court gave some guidelines which should be followed before sentencing any convict with the death penalty. The guidelines were Manner of Commission of Murder, Motive for Commission of murder, Socially Abhorrent Nature of Crime, Magnitude of the Crime and Victim of the crime.

In the case of Shatrughan Chauhan vs. Union of India, the Apex Court had laid down guidelines on how to convert capital punishment into life imprisonment.

In the case of Kehar Singh vs. Union of India, Indira Gandhi was the Prime minister of India in 1984. She was shot dead by her bodyguards Satwant Singh and Beant Singh. Kehar Singh was the conspirator who planned the murder. His son filed a “mercy petition” before the President of India. The petition was rejected by the president. The court stated that this matter lies in the Rarest of rare cases. Kehar was hanged to death in the year 1989.

In the case of Union of India vs. Sriharan, convicts who killed Prime Minister Rajiv Gandhi were awarded life imprisonment instead of capital punishment.

In the case of Ediga Anamma vs. State of Andhra Pradesh, Justice V.R. Krishna Iyer was himself against and supported movements to abolish the Capital Punishment in India.  According to him, “if God has given life to an individual then no one has the right to take away from him or her”. God has the only right to take away from the individual. Execution leads to inhumanity. The court said that it should look into the condition of the convict rather than looking into the circumstances of the crime. This led to the addition of a clause to Section 354. Section 354(3) was added to the Criminal Procedure Code 1973. This Section stated that if a convict is awarded a hang till death then the court should give a reason for it.

In the case of Santosh Kumar Bariyar vs. State of Maharashtra, the convict along with 3 others abducted a person and demanded 10 lacs from the person’s family. When demands were not fulfilled the convicts chopped the person’s body into pieces and disposed of it. This was the case where various important steps were taken to ban or abolish the Death Penalty.  Justice S.B Sinha and Justice Cyriac Joseph gave an opinion that the last 13 cases related to the death sentence were exhibited in ignorance of the law (per incuriam). According to Section 354(3) of the Criminal Procedure Code 1973 an offence, “where the conviction is punishable with capital punishment, or an alternate, life imprisonment or imprisonment which may be for a term, judgment has to mention the reasons for awarded punishment.” This Section stated that if a convict is awarded a hang till death then the court should give a reason for it. The reason for reducing the death sentence to life imprisonment was that the convicts were not professional murderers and they committed the heinous act just to collect money from the victim’s family.  The court said that it should look into the condition of the convict rather than looking into the circumstances of the crime.

In the case of Allauddin vs. State of Bihar, the Court stated that if “it doesn’t give a reason why the convict would be hanged till death then the death punishment should be reduced to life imprisonment”.

International Scenario

As we know that the death penalty is a serious issue but it’s not only found in India as well as around the globe. Earlier, we got to know that there are organizations which continue their fight to abolish inhuman practice. The abolition movement was also supported by the United Nations during the drafting of the Universal Declaration of Human Rights (UDHRs) in 1948. This is present in Article 3 of the Universal Declaration of Human Rights. The Human Rights Council has been against the Indian view stating, it goes against the statutory law where an execution is carried out in the “rarest of rare” cases.

 In these recent years, 90% of the death penalty is found in Iraq, Iran, Saudi Arabia, and Pakistan. This inhuman or cruel act is practiced in 60 countries which include Japan, USA, Singapore, etc in 2018. The USA has executed 25 prisoners in the year 2018. This was the lowest number of prisoners executed within 25 years in the USA. Hang to death was banned or abolished by the Murder Act 1965 in England. 

Russia has capital punishment in its law but not used the execution process since 1996. Turkey has also amended its law and is on the verge of abolishing the death penalty. Poland has also banned or abolished the death penalty in 2013. Among the European countries, Portugal and the Netherlands were the first countries to abolish the death penalty. Belarus is the only country to practice capital punishment in the European region.

Kazakhstan was the first country to abolish capital punishment. In 2017, it was found that 142 countries have abolished the death penalty and reducing the punishment to life Imprisonment. Malaysia is the recent country that has abolished or scrapped the death penalty in 2018. Now, China is the top executioner which has hanged 1032 convicts to death in 2019. But the major concern is that the number of people executed is unknown in China and North Korea. It is found that the number of hanging convicts is more in communist countries than in democratic countries.

Conclusion

We got to know that the death sentence is a process which is provided as a lawful infliction of punishment to an individual if he or she commits an act which is forbidden by law. This also follows the due procedure of law. The court had made it clear that capital punishment is given in rarest of rare cases in the Bachan Singh case. Then, we got to know about how Section 354 of the Criminal Procedure Code violated the individual’s rights under Article 14, 19 and 21. We also got some idea about Article 72 and Article 161 of the Indian Constitution which provide special powers to the President and Governor. In India, there are also certain circumstances where less punishment can be given in case of death row convicts. This is in case of Minor, Pregnant women and co-accused. Then, we got some idea about how many people are hanged to death in India. In the last 20years, 8 convicts have been hanged to death in India.

But the major concern is that the number of people executed is unknown in China and North Korea. It is found that the number of hanging convicts is more in communist countries than in democratic countries. Then we got to know about the capital punishment present as a penalty in various legislative acts like Army act 1950, air force act 1950, navy act 1956, Narcotic drugs and psychotropic substance act 1985, Sati (prevention) act 1987, the scheduled caste and scheduled tribe act 1989 and Prevention of terrorism act (POTA) 2002.

In India, some procedures should be followed when a death warrant is awarded to a convict by the Court. The procedures to be followed before, during and after execution of convicts gave also good knowledge about the Indian Judiciary System. Nowadays; life imprisonment is awarded to the accused of the heinous crime whereas the death penalty is an exception that is rarely used in India. The concept of Capital punishment is questioned as by executing the convict who has killed someone or involvement in a heinous crime like rape, waging war, terrorism, etc. the judicial system is not in alliance with theories it should follow. Keeping in mind everyone’s rights, the execution of the sentence awarded to the convict is quick and simple and after allowing them to employ all legal remedies. 

If God has given life to an individual then no one has the right to take away from him or her. God has the only right to take away from the individual. Execution leads to inhumanity.

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