CAPITAL PUNISHMENT IN INDIA

INTRODUCTION
All punishments are based on the same proposition i.e. there must be a penalty for
wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that
it is both right and just that a person who has done wrong should suffer for it; the other is
the belief that inflicting punishment on wrongdoers discourages other from doing wrong.
The capital punishment also rests on the same proposition as other punishments1.

The capital punishment debate is the most generally relevant debate, keeping in
mind the situation that has been brought about by today. Capital punishment is an integral
part of the Indian criminal justice system. Increasing strength of the human rights
movement in India, the existence of capital punishment is questioned as immoral. However
this is an odd argument as keeping one person alive at the cost of the lives of numerous
members or potential victims in the society is unbelievable and in fact, that is morally
wrong2.

MEANING OF CAPITAL PUNISHMENT

Capital punishment, also called death penalty, execution of an offender sentenced to
death after conviction by a court of law for a criminal offense. Capital punishment should be
distinguished from extrajudicial executions carried out without due process of law. The term
death penalty is sometimes used interchangeably with capital punishment, though
imposition of the penalty is not always followed by execution (even when it is upheld on
appeal), because of the possibility of commutation to life imprisonment3.

The term "Capital Punishment" stands for most severe form of punishment. It is the
punishment which is to be awarded for the most heinous, grievous and detestable crimes
against humanity. While the definition and extent of such crimes vary from country to
country, state to state, age to age, the implication of capital punishment has always been

1
http://newindialaw.blogspot.in/2012/11/constitutional-validity-of-capital.html
2
http://www.allsubjectjournal.com/archives/2015/vol2issue4/PartK/62.pdf
3
http://www.britannica.com/topic/capital-punishment
 2

the death sentence. By common usage in jurisprudence, criminology and penology, capital
sentence means a sentence of death4.

HISTORICAL BACKGROUND
Capital punishment is an ancient sanction. There is practically no country in the
world where the death penalty has never existed. History of human civilization reveals that
during no period of time capital punishment has been discarded as a mode of punishment5.
Capital punishment for murder, treason, arson, and rape was widely employed in ancient
Greece under the laws of Draco (fl. 7th century BCE), though Plato argued that it should be
used only for the incorrigible. The Romans also used it for a wide range of offenses, though
citizens were exempted for a short time during the republic6.

This finds support in the observation made by Sir Henry Marine who stated that
"Roman Republic did not abolish death sentence though its non-use was primarily directed
by the practice of punishment or exile and the procedure of questions"7.

CAPITAL PUNISHMENT IN INDIA

A careful scrutiny of the debates in British India's Legislative Assembly reveals that
no issue was raised about capital punishment in the Assembly until 1931, when one of the
Members from Bihar, Shri Gaya Prasad Singh sought to introduce a Bill to abolish the
punishment of death for the offences under the Indian Penal Code. However, the motion
was negatived after the then Home Minister replied to the motion.

The Government's policy on capital punishment in British India prior to

Independence was clearly stated twice in 1946 by the then Home Minister, Sir John
Thorne, in the debates of the Legislative Assembly. "The Government does not think it wise
to abolish capital punishment for any type of crime for which that punishment is now
provided"8.

4
Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
5
Op.cit. Capital Punishment by Dr. Subhash C. Gupta, 2000, p. 1
6
http://www.britannica.com/topic/capital-punishment
7
Op.cit. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
8
Ibid. pp. 104-105.
 3

At independence, India retained several laws put in place by the British colonial
government, which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and
the Indian Penal Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be
imposed under the law, including death.

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:

If the accused is convicted of an offence punishable with death, and the court
sentences him to any punishment other than death, the court shall in its
judgment state the reason why sentence of death was not passed.
In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly altering
the position of the death sentence. The death penalty was no longer the norm, and courts
did not need special reasons for why they were not imposing the death penalty in cases
where it was a prescribed punishment.

The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several
changes were made, notably to Section 354(3):

When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence awarded, and, in the case
of sentence of death, the special reasons for such sentence.
This was a significant modification from the situation following the 1955 amendment
(where terms of imprisonment and the death penalty were equal possibilities in a capital
case), and a reversal of the position under the 1898 law (where death sentence was the
norm and reasons had to be recorded if any other punishment was imposed). Now, judges
needed to provide special reasons for why they imposed the death sentence.

These amendments also introduced the possibility of a post-conviction hearing on

sentence, including the death sentence, in Section 235(2), which states:

If the accused is convicted, the Judge shall, unless he proceeds in

accordance with the provisions of section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law9.

9
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp. 17-18.
 4

Various laws under which death penalty can be prescribed as a possible punishment
in India are given at Annexure-I

INTERNATIONAL SCENARIO
The international landscape regarding the death penalty – both in terms of
international law and state practice – has evolved in the past decades. Internationally,
countries are classified on their death penalty status, based on the following categories:

 Abolitionist for all crimes

 Abolitionist for ordinary crimes
 Abolitionist de facto
 Retentionist
At the end of 2014, 98 countries were abolitionist for all crimes, 7 countries were
abolitionist for ordinary crimes only, and 35 were abolitionist in practice, making 140
countries in the world abolitionist in law or practice. 58 countries are regarded as
retentionist, who still have the death penalty on their statute book, and have used it in the
recent past10. While only a minority of countries retain and use the death penalty, this list
includes some of the most populous nations in the world, including India, China, Indonesia
and the United States, making a majority of population in the world potentially subject to
this punishment. Country wise list of these four categories is given at Annexure-II.

CAPITAL PUNISHMENT IN INTERNATIONAL HUMAN RIGHTS TREATIES

 The International Covenant on Civil and Political Rights (‘ICCPR’) is one of the key
documents discussing the imposition of death penalty in international human rights
law. The ICCPR does not abolish the use of the death penalty, but Article 6 contains
guarantees regarding the right to life, and contains important safeguards to be
followed by signatories who retain the death penalty11.

 The Second Optional Protocol to the ICCPR, aiming at the abolition of the death
penalty is the only treaty directly concerned with abolishing the death penalty, which
is open to signatures from all countries in the world. It came into force in 1991, and
has 81 states parties and 3 signatories12.

10
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.38-39
11
Ibid. p.40-41
12
Ibid. p.43
 5

 Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the Child
(‘CRC’) explicitly prohibits the use of the death penalty against persons under the
age of 18. As of July 2015, 195 countries had ratified the CRC13.

 The Convention against Torture and Cruel, Inhuman or Degrading Treatment or

Punishment (‘the Torture Convention’) and the UN Committee against Torture have
been sources of jurisprudence for limitations on the death penalty as well as
necessary safeguards. The Torture Convention does not regard the imposition of
death penalty per se as a form of torture or cruel, inhuman or degrading treatment or
punishment (‘CIDT’). However, some methods of execution and the phenomenon of
death row have been seen as forms of CIDT by UN bodies14.

 In the evolution of international criminal law, the death penalty was a permissible
punishment in the Nuremberg and Tokyo tribunals, both of which were established
following World War II. Since then, however, international criminal courts exclude the
death penalty as a permissible punishment15.

Of the treaties mentioned above, India has ratified the ICCPR and the CRC, and is
signatory to the Torture Convention but has not ratified it. Under international law, treaty
obligations are binding on states once they have ratified the treaty. Even where a treaty has
been signed but not ratified, the state is bound to “refrain from acts which would defeat the
object and purpose of a treaty”16.

POLITICAL COMMITMENTS REGARDING CAPITAL PUNISHMENT GLOBALLY

 Several resolutions of the UN General Assembly (UNGA) have called for a
moratorium on the use of the death penalty. In 2007, the UNGA called on states to
“progressively restrict the use of the death penalty, reduce the number of offences
for which it may be imposed” and “establish a moratorium on executions with a view
to abolishing the death penalty.” In 2008, the GA reaffirmed this resolution, which
was reinforced in subsequent resolutions in 2010, 2012, and 2014. Many of these
resolutions noted that, “a moratorium on the use of the death penalty contributes to
respect for human dignity and to the enhancement and progressive development of
human rights.” In 2014, 117 States had voted in favour of the most recent resolution.
India has not voted in favour of these resolutions17.

 In a 2013 resolution, the UN Human Rights Council acknowledged “the negative

impact of a parent’s death sentence and his or her execution on his or her children,”

13
Ibid. pp.43-44
14
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.44-45
15
Ibid. pp.45-46
16
Ibid. p.46
17
Ibid. pp.51-52
 6

and urged “States to provide those children with the protection and assistance they
may require,” Human Rights Council resolution, 2014 noted that “States with
different legal systems, traditions, cultures and religious backgrounds have
abolished the death penalty or are applying a moratorium on its use” and deplored
the fact that “the use of the death penalty leads to violations of the human rights of
those facing the death penalty and of other affected persons.” The Human Rights
Council urged states to ratify the Second Optional Protocol to the International
Covenant on Civil and Political Rights.

 The law of extradition has been another tool for countries pushing for the abolition of
the death penalty. Several abolitionist countries either require assurances that
retentionist-extraditing countries not impose the death penalty, or have included
such a clause in bilateral extradition treaties18.

CAPITAL PUNISHMENT : THE CURRENT STATUS

Supreme Court on Validity of Capital Punishment in India
Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty
for all persons. It adds no person shall be deprived of his life or personal liberty except
according to procedure established by law. This has been legally construed to mean if
there is a procedure, which is fair and valid, then the state by framing a law can deprive a
person of his life. While the central government has consistently maintained it would keep
the death penalty in the statute books to act as a deterrent, and for those who are a threat
to society, the Supreme Court too has upheld the constitutional validity of capital
punishment in “rarest of rare” cases. In Jagmohan Singh vs State of Uttar Pradesh (1973),
then in Rajendra Prasad vs State of Uttar Pradesh (1979), and finally in Bachan Singh vs
State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death
penalty. It said that if capital punishment is provided in the law and the procedure is a fair,
just and reasonable one, the death sentence can be awarded to a convict. This will,
however, only be in the “rarest of rare” cases, and the courts should render “special
reasons” while sending a person to the gallows19.

Criteria for Rarest of Rare

The principles as to what would constitute the “rarest of rare” has been laid down by
the top Court in the landmark judgment in Bachan Singh vs State of Punjab (1980).

18
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.52-53.
19
Indian Express, New Delhi, dated 27.5.2015
 7

Supreme Court formulated certain broad illustrative guidelines and said it should be given
only when the option of awarding the sentence of life imprisonment is “unquestionably
foreclosed”. It was left completely upon the court’s discretion to reach this conclusion.
However, the apex court also laid down the principle of weighing, aggravating and
mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a
particular case has to be drawn to ascertain whether justice will not be done if any
punishment less than the death sentence is awarded. Two prime questions, the top court
held, may be asked and answered. First, is there something uncommon about the crime
which renders the sentence of imprisonment for life inadequate and calls for a death
sentence? Second, are there circumstances of the crime such that there is no alternative
but to impose the death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offenders20?

EMERGENCE OF ALTERNATIVE PUNISHMENT TO CAPITAL PUNISHMENT

In the last few years, Supreme Court has entrenched the punishment of “full life” or
life sentence of determinate number of years as a response to challenges presented in
death cases. The Supreme Court speaking through a three-judge bench decision in Swamy
Shraddhanand [2] case laid the foundation of this emerging penal option in following terms:

“The matter may be looked at from a slightly different angle. The issue of
sentencing has two aspects. A sentence may be excessive and unduly
harsh or it may be highly disproportionately inadequate. When an appellant
comes to this Court carrying a death sentence awarded by the trial court and
confirmed by the High Court, this Court may find, as in the present appeal,
that the case just falls short of the rarest of the rare category and may feel
somewhat reluctant in endorsing the death sentence. But at the same time,
having regard to the nature of the crime, the Court may strongly feel that a
sentence of life imprisonment subject to remission normally works out to a
term of 14 years would be grossly disproportionate and inadequate. What
then should the Court do? If the Court's option is limited only to two
punishments, one a sentence of imprisonment, for all intents and purposes, of
not more than 14 years and the other death, the Court may feel tempted and
find itself nudged into endorsing the death penalty. Such a course would
indeed be disastrous. A far more just, reasonable and proper course would be
to expand the options and to take over what, as a matter of fact, lawfully
belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and

20
Indian Express, New Delhi, dated 27.5.2015
 8

death. It needs to be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case, the sentence of
14 years' imprisonment would amount to no punishment at all.

Further, the formalisation of a special category of sentence, though for an

extremely few number of cases, shall have the great advantage of having the
death penalty on the statute book but to actually use it as little as possible,
really in the rarest of rare cases ......."

The observations in Swamy Shraddhanand [2] case have been followed by the
Court in a multitude of cases such as Haru Ghosh v. State of West Bengal, State of Uttar
Pradesh v. Sanjay Kumar , Sebastian v. State of Kerala, Gurvail Singh v. State of Punjab
where full life or sentence of determinate number of years has been awarded as opposed
to death penalty21.

CLEMENCY POWERS
If the Supreme Court turns down the appeal against capital punishment, a
condemned prisoner can submit a mercy petition to the President of India and the Governor
of the State. Under Articles 72 and 161 of the Constitution, the President and Governors,
respectively have the power “to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence”22.

Neither of these powers are personal to the holders of the Office, but are to be
exercised (under Articles 74 and 163, respectively) on the aid and advice of the Council of
Ministers.

Clemency powers, while exercisable for a wide range of considerations and on

protean occasions, also function as the final safeguard against possibility of judicial error or
miscarriage of justice. This casts a heavy responsibility on those wielding this power and
necessitates a full application of mind, scrutiny of judicial records, and wide ranging
inquiries in adjudicating a clemency petition, especially one from a prisoner under a
judicially confirmed death sentence who is on the very verge of execution.

21
India. Law Commission of India. Consultation Paper on Capital Punishment, May 2014, pp.26-27
22
Indian Express, New Delhi, dated 27.5.2015
 9

The Ministry of Home Affairs, Government of India, has drafted the “Procedure
Regarding Petitions for Mercy in Death Sentence Cases” to guide State Governments and
the prison authorities in dealing with mercy petitions submitted by death sentence
prisoners23. Details of mercy petitions decided by the President in India are given at
Annexure-III.

JUDICIAL REVIEW OF EXERCISE OF MERCY POWERS

The Supreme Court in Shatrughan Chauhan case has recorded that the Home
Ministry considers the following factors while deciding mercy petitions:

a) Personality of the accused (such as age, sex or mental deficiency) or circumstances

of the case (such as provocation or similar justification);

b) Cases in which the appellate Court expressed doubt as to the reliability of evidence
but has nevertheless decided on conviction;

c) Cases where it is alleged that fresh evidence is obtainable mainly with a view to see
whether fresh enquiry is justified;

d) Where the High Court on appeal reversed acquittal or on an appeal enhanced the
sentence;

e) Is there any difference of opinion in the Bench of High Court Judges necessitating
reference to a larger Bench;

f) Consideration of evidence in fixation of responsibility in gang murder case;

g) Long delays in investigation and trial etc.

However, when the actual exercise of the Ministry of Home Affairs (on whose
recommendations mercy petitions are decided) is analysed, it is seen that many times
these guidelines have not been adhered to. Writ Courts in numerous cases have examined
the manner in which the Executive has considered mercy petitions. In fact, the Supreme
Court as part of the batch matter Shatrughan Chauhan case heard 11 writ petitions
challenging the rejection of the mercy petition by the Executive24. Supreme Court, last year

23
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.176, 179
24
India. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.190-191
 10

held that judicial clemency could be granted on the ground of inordinate delay even after a
mercy petition is rejected25.

LAW COMMISSION OF INDIA's REPORT ON DEATH PENALTY

The Law Commission of India in its 262nd Report (August 2015) recommended that
death penalty be abolished for all crimes other than terrorism related offences and waging
war. Complete recommendations of the Report are as follows:

 The Commission recommended that measures suggested that police reforms,

witness protection scheme and victim compensation scheme should be taken up
expeditiously by the government.

 The march of our own jurisprudence -- from removing the requirement of giving
special reasons for imposing life imprisonment instead of death in 1955; to requiring
special reasons for imposing the death penalty in 1973; to 1980 when the death
penalty was restricted by the Supreme Court to the rarest of rare cases – shows the
direction in which we have to head. Informed also by the expanded and deepened
contents and horizons of the Right to life and strengthened due process
requirements in the interactions between the State and the individual, prevailing
standards of constitutional morality and human dignity, the Commission felt that time
has come for India to move towards abolition of the death penalty.

 Although there is no valid penological justification for treating terrorism differently

from other crimes, concern is often raised that abolition of death penalty for
terrorism-related offences and waging war, will affect national security. However,
given the concerns raised by the law makers, the Commission did not see any
reason to wait any longer to take the first step towards abolition of the death penalty
for all offences other than terrorism related offences.

 The Commission accordingly recommended that the death penalty be abolished for
all crimes other than terrorism related offences and waging war.

 Further, the Commission sincerely hopes that the movement towards absolute
abolition will be swift and irreversible26.

25
Indian Express, New Delhi, dated 27.5.2015
26
India. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.217-218