India Stands by Its Beliefs and Against International Trend of Abolishing the Death Penalty

Death Penalty can be defined as the lawful infliction of death as a punishment for a wrongful act. The scope and validity of death penalty in the context of the Indian judiciary is discussed in this project. This shall be followed by a brief of some of the most famous and important cases relating to the subject matter decided by the Indian Courts.

The death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone be punished in this manner is a death sentence, while the actual process of killing the person is an execution. There has been a global trend towards the abolition of capital punishment; however, India has not adopted this position. What makes this form of punishment different from the others is the obvious element of irreversibility attached to it. A man once executed for a crime can never be brought back to life. So if any error has crept in while deciding on a matter, this error cannot be rectified at a later stage.

As a goal for civilized nations, abolition of death penalty was promoted during the drafting of the Universal Declaration of Human Rights in 1948. Capital Punishment is currently practiced in 58 countries, including USA, Japan, Belarus, Cuba, and Singapore. In Europe however it is now a virtually extinct phenomenon with the exception of the Republic of Belarus. According to a study about two-thirds of the countries have either abolished capital punishment outright or have not actually executed any death sentences in the last ten years.

POSITION IN INDIA

In India Article 21 of the Constitution titled ‘Protection of life and personal liberty’ says:

No person shall be deprived of his life or personal liberty except as according to procedure established by law.

This article of the Constitution enshrines the Right to Life guaranteed to every individual in India. The constitutional validity of capital punishment has been called into question several times in the India judiciary and in this project I shall try to examine those several occasions.

The Indian Penal Code, 1860 awards death sentence as a punishment for various offences. Some of these capital offences under the IPC are punishment for criminal conspiracy (s. 120B), murder (s. 302), waging or attempting to wage war against the Government of India (s. 121), abetment of mutiny (s.132), dacoity with murder (s. 396) and others. Apart from this there are provisions for death penalty in various legislations like the NDPS Act, anti – terrorism laws etc-.

The Indian Constitution has provision for clemency of capital punishment by the President. Once the Sessions Court has awarded death sentence to a convict in a case, it must be confirmed by the High Court. Even after that the convict may prefer an appeal to the Supreme Court. If this also fails, the accused has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State. Detailed instructions regarding procedure to be observed by the states for dealing with petitions for mercy from or on behalf of convicts under sentence of death and with appeals to the Supreme Court and applications for special leave to appeal to that court by such convicts are laid down by the Ministry of Home Affairs.

Article 72 of the Constitution of India deals with pardoning powers of the President of India. Similarly, the pardoning powers of the Governor of a State are mentioned in Article 161. These provisions ensure that the accused is sentenced to death only after there is no room for error left. The culprit gets multiple avenues to appeal and now life imprisonment has become the rule while death sentence is the exception.

LAW COMMISSION REPORT

No discussion on the validity of capital punishment in India can be complete without going through the fine details of the Law Commission Report, which was relied upon by the judges in Jagmohan Singh’s case. The Law Commission of India, after making an intensive and extensive study of the subject of death penalty in India, published and submitted its 36th Report in 1967 to the Government of India. After examining, a wealth of evidential material and considering the arguments for and against its retention, that high-powered body summed up its conclusions at page 354 of its Report, as follows:

The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind.

It is difficult to rule out the validity of the strength behind many of the arguments for abolition nor does the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values.

Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.

LANDMARK CASES DEALING WITH DEATH PENALTY IN INDIA

The constitutional validity of death sentence under s. 302, IPC was canvassed before the Supreme Court in 1973 in Jagmohan Singh v. State of Uttar Pradesh as being contrary to Articles 4, 19 and 21 of the Constitution of India.

Upholding the sentence of death, the court held that even assuming that ‘the right to life’ was basic to the freedom mentioned in Article 19 of the Constitution and that no law could deprive the life of a citizen unless it was reasonable and in public interest. It has evoked strong divergent views. In that state of affairs, if the legislature decided to retain capital punishment for murder, the court said, in the absence of objective evidence regarding its unreasonableness, it cannot, therefore, be said that that capital punishment as such, is either unreasonable, or not in the public interest, offending Article 19 of the Constitution.

Equally untenable is the contention that s 302, IPC confers uncontrolled and unguided discretion to judges and that therefore, is hit by Article 14 of the Constitution. If the law has given to a judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there wold be any discrimination since the facts and circumstances of one case can hardly be the same as the facts and circumstances of another. Article 14 can hardly be invoked in matters of judicial discretion.

The court, further held that s 302 did not contravene Article 21 of the Constitution in so far as the trial and punishment of the accused is determined by the judge as per the provisions of the Indian Evidence 1872 and the Code of Criminal Procedure 1973, which are undoubtedly part of the procedure established by law.

In the case of Ediga Anamma v. State of Andhra Pradesh, Justice Krishna Iyer commuted the death sentence to life imprisonment by citing factors like age, gender, socio-economic background and psychic compulsions of the accused. It was laid out in this case that apart from looking into the details of the crime and deciding based on the extent of violence committed, the judges should also look into the criminal and his condition or haplessness while committing the crime. Justice Krishna Iyer while preferring life imprisonment over capital punishment said thus:

“A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”

These cases were followed by three important developments. Section 354 (3) was added to the Code of Criminal Procedure, 1973 which clearly laid down that in conviction for cases which are punishable either with death or life imprisonment, the court has to give special reasons in writing for awarding the death sentence and if no reasons are recorded, the appellate court will commute the sentence of death to a sentence of life imprisonment. This has made death sentence an exception and life imprisonment a normal punishment for murder, reversing the pre- 1955 position. Also in 1979 India ratified the International Covenant on Civil and Political Rights (ICCPR).

Article 6(2) of the ICCPR says: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.”

Sub-section 5 of the same Article says that no sentence of death shall be imposed on anyone under the age of 18 years and none can be carried out on pregnant women. Thus, India was now committed to progressive abolition of death penalty. Another major development was the Maneka Gandhi case which held that every law of punitive detention must pass the reasonability test obtained from the collective reading of the “Golden Triangle” i.e. Articles 14, 19 and 21.

Justice Krishna Iyer reiterated a similar opinion in the case of Rajendra Prasad v State of Uttar Pradesh. However Justice Sen in his dissenting judgement cited his concern over the wide scope for interpretation of the Section 302 of the IPC and Section 354 of the CrPC left to the judiciary.

He said in this case “It is not necessary for this Court to attempt to analyse the substantive merits of the cases for and against the death penalty for murder. It is in my view, essentially, a question for the Parliament to resolve and not for this Court to decide.”

The case of Bachan Singh v State of Punjab again brought up the question of validity of capital punishment. This was the case that gave birth to the “rarest of the rare cases” doctrine and still remains one of the most important cases in this subject. The 5 judge bench said thus:

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law instrumentality. That ought not to be done except in rarest of rare cases where the alternative opinion is unquestionably foreclosed.”

In this case not only the constitutional validity of death penalty but also the validity of Section 354(3) on the grounds that it gives unguided discretion to the Court and allows death sentence to be arbitrarily awarded was questioned. The majority were of the view that neither Article 19 nor 21 is violated by capital punishment. The fact that our Constitution makers were fully cognizant of the fact that death sentence may be given in certain extreme crimes is proven by the existence of provisions for appeal (Article 134) and Pardoning power of the President (Article 72). It was also laid down that for ascertaining the existence or absence of “special reasons” in a case, the Court must pay due regard to both the criminal and the crime equally. The aggravating or mitigating factors need to be looked into. Things like age, mental condition, age of the accused and if the act was done under the command of a superior must be taken into consideration while deciding the punishment.

Justice PN Bhagwati, however did not agree with the majority in Bachan Singh’s case and gave a dissenting judgement holding that s. 302 in so far as it provides for the invocation of death penalty as an alternative to life sentence is ultra vires and void as being violative of Articles 14 and 21 of the Constitution, since it does not provide any legislative guidelines as to when life should be permitted to be extinguished by the imposition of death sentence.

Mithu v. State of Punjab was another case where the mandatory death sentence under Section 303 was declared unconstitutional and hence invalid. The section was based on the logic that any criminal who has been convicted for life and still can kill someone is too cold blooded and beyond reformation, to be allowed to live. The judges in Mithu’s case held that Section 303 violated the Articles 14 and 21 of our Constitution and so it was deleted from the IPC.

In the subsequent cases of T.V Vatheeswaram v. State of Tamil Nadu and Sher Singh v. State of Punjab the Supreme Court was faced with the question of delay in execution of the death sentence and whether a prolonged delay was reason enough to commute the death sentence to life imprisonment. While the first case laid down that such a situation gave reason enough for the convict to invoke section 21 and get the lesser punishment, the majority in the latter case differed on this point.

In the case of Macchi Singh v. State of Punjab in order to further elucidate the “rarest of the rare rule”, situations where the application of death sentence could be justified, Justice M.P Thakkar gave the following illustrations:

Manner of Commission of Murder

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

Motive for Commission of murder

When the murder is committed for a motive which evinces total depravity and meanness. For instance, when (a) a hired assassin commits murder for the sake of money or reward (2) a cold blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust, (c) a murder is committed in the course for betrayal of the motherland.

Anti Social or Socially abhorrent nature of the crime

When murder of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath. For instance, when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them with a view to reverse past injustices and in order to restore the social balance.

In cases of ‘bride burning’ and what are known as ‘dowry-deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

Magnitude of Crime

When the crime is enormous in proportion. For instance, when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

Personality of Victim of murder

When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder, (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

In Allauddin v. State of Bihar , Justice Ahmadi said that “Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considers a sentence of that magnitude justified. Unless there are special reasons, special to the facts of the particular case, which can be catalogued as justifying a severe punishment the Judge would not award the death sentence. It may be stated that if a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences his choice should fall on the lower sentence.”

Kehar Singh v. Union of India is the famous case where the assassins of Indira Gandhi were sentenced to death. Kehar Singh was part of the conspirators who planned the murder and did not actually commit the act. The court held that even this was enough to fall in the rarest case criteria. This was a widely controversial decision. Later in State of Maharashtra v. Sukhdeo Singh the judges awarded death sentence to the two persons accused for the murder of General Vaidya.

In Swamy Shraddhananda @ Murali Manohar Mishra v. State of Karnataka the court for the first time identified the dilemma judges face because the term for life sentence after remission usually was cut down to 14 years. This was in some cases considered to be grossly inadequate and so the Court held that in some such cases it can order that the convict shall not be released for the rest of his life. So it was held that executive clemency doesn’t mean that the Court cannot award imprisonment beyond 14 years.

One of the most recent cases which many abolitionists in India consider to be a major step towards the possible abolition of death penalties in India is that of Santosh Kumar Bariyar v. State of Maharashtra . The bench comprising Justices S.B. Sinha and Cyriac Joseph ruled that previous judgments of the Court, in which 13 death sentences were validated, were rendered per incuriam, or in other words were rendered in ignorance of the law laid down in Bachan Singh’s case. In this case the accused along with three others kidnapped a person and demanded a ransom of Rupees 10 lakhs. Eventually they killed him and cut his body into pieces and disposed them in different places. In spite of the brutal execution of the murder the judges were convinced that the ‘mitigating circumstances’ in this case were sufficient to exclude it from the bracket of “rarest of rare” cases. The Court observed that the accused were not professional criminals with a long past criminal record, that they did what they did with the sole motive of collecting money. So the Court held that there is a chance of reform and rehabilitation of the accused and for the sake of that possibility granted them the lesser sentence of life imprisonment.

These are in brief some of the landmark cases which grappled with the question of death penalty and other issues stemming from it. India in the recent years has seen a number of high profile cases with death penalties being carried. In 2012 Indian courts suffered from two noteworthy embarrassments. Fourteen retired Judges asked for thirteen cases of the death penalty to be commuted after admitting the original sentence was handed down per incuriam (out of error or ignorance). In the same year it was revealed that president Pratibha Patil had, during the course of her five-year term, commuted the sentence of a rapist who had died five years previously. Events like these are a severe jolt to the judiciary. It was after incidents like these that the protest against capital punishment gained more momentum. The taking away of someone’s life due to the error of judgement of the judiciary is injustice of the most grotesque kind.

An unofficial eight-year tussle came to an end last year when the first of two executions took place. Mohammad Ajmal Amir Kasab, convicted of involvement in the 2008 Mumbai gun attack was hung on 21st November 2012. Then in February 2013, Muhammad Afzal – convicted of plotting the 2001 attack on India’s Parliament was executed. The quick succession of the two executions, coupled with the Supreme Court’s ruling in regards to capital punishment earlier this year, has raised the awareness of controversy surrounding India’s penal system. The verdict of the Delhi rape case was announced recently. The judges awarded death sentence to the four accused and a 3-year imprisonment to the juvenile. This decision has reignited the debate on death penalty. The Indian Government had passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a “persistent vegetative state” on 3 February 2013, in response to public outcry over the Delhi gang-rape. A lot of legal scholars believe that hanging of the culprits in this case is not going to make the country any safer for women or reduce the number of sexual crimes on women. Additional Sessions Judge Yogesh Khanna while delivering the judgement said that the incident had evoked nationwide rage and the brutality with which the offence was committed cannot be ignored.

CONCLUSION

In view of the above discussions we can see that India’s thinking on the capital punishment is still quite muddled up. It is not just a debate of legality and constitutionality of the death penalty but also the moral and social aspects that are related to this controversial topic that have lead to extensive confusion in this respect. Keeping away the question of law, the question of death penalty has to take into considerations factors such as public sentiments on one hand and tussle with the moral issue of the “eye for an eye” principle on the other.