Capital punishment in India
Capital punishment in India is a legal penalty for some crimes under the country's main substantive penal legislation, the Indian Penal Code, as well as other laws. Executions are carried out by hanging as the primary method of execution per Section 354(5) of the Criminal Code of Procedure, 1973 is "Hanging by the neck until dead", and is imposed only in the 'rarest of cases'.[1][2]
Death penalty in India
Currently, there are around 539 [3] prisoners on death row in India. The most recent executions in India took place in March 2020, when four of the 2012 Delhi gang rape and murder perpetrators were executed at the Tihar Jail in Delhi.[4]
History[edit]
In the Code of Criminal Procedure (CrPC), 1898 death was the default punishment for murder and required the concerned judges to give reasons in their judgment if they wanted to give life imprisonment instead.[5] By an amendment to the CrPC in 1955, the requirement of written reasons for not imposing the death penalty was removed, reflecting no legislative preference between the two punishments. In 1973, when the CrPC was amended further, life imprisonment became the norm and the death penalty was to be imposed only in exceptional cases, particularly if a heinous crime committed deems the perpetrator too dangerous to even be 'considered' for paroled release into society after 20 years (life imprisonment without parole does not exist in India since it is too expensive to freely feed and house dangerous criminals all their lives, and eliminating the possibility of parole after a life sentence removes the positive and rehabilitative incentive to improve behaviour; all criminals sentenced to life imprisonment in India are automatically eligible for parole after serving 20 years, as per IPC 57), and required 'special reasons'.[2] This significant change indicated a desire to limit the imposition of the death penalty in India. The CrPC, 1973 also bifurcated a criminal trial into two stages with separate hearings, one for conviction and the other for sentencing.[6]
Methods of execution[edit]
Execution by hanging[edit]
Hanging is an ancient method of execution which was a part of the Roman law, Anglo-Saxon law, English law, French law, and German law. Hanging as a punishment was a prevalent and standard mode of execution until the abolition of capital punishment in the United Kingdom in 1965. This traditional method of execution may involve suspending the convict from a gallows or crossbeam until death occurs from asphyxia, or it may be that the condemned person stands on a trapdoor and when the trap is released he falls a couple of metres until stopped by the rope tied around his neck or a knot in the noose helps jerk back the victim's head sharply enough to break the neck. This mode of execution is widely debated and the Law Commission in its report in 2015 stated that the shift from hanging to more advanced methods execution must be made in India.[64]
In the case of Deena v Union of India, September 1983 the constitutional validity of execution by hanging was challenged on grounds that hanging as contemplated under Section 354(5) Cr.P.C was barbarous and inhuman and thereby infringed on the right to life of the person.[81] The court discussed various historical influences as well as the reports of the law commission and held that execution by hanging was a fair, just and reasonable procedure within the meaning of Article 21 and hence is constitutional.
In the case of Rishi Malhotra v. Union of India, October 2017, hanging as a method of execution was challenged in a writ petition and it was argued that Section 354(5) CrPC was not only barbaric, inhuman and cruel but also against the resolutions adopted by the United Nations Economic & Social Council (ECOSOC).[82] This case brought out the discussion around the shift from hanging to other advanced methods of execution in various developed countries. It was also discussed that as per international standard, execution should be as quick and as simple as possible and should produce immediate unconsciousness passing quickly into death.[83]
Execution by shooting[edit]
Apart from hanging, the other method of execution allowed under the Indian law is shooting, which is provided for under the Army Act, Navy Act, and Air Force Act.[84][85] Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in Section 34 (a) to (o) of The Air Force Act, 1950.[86] It is at the discretion of the court martial whether the method is by hanging or shooting. The Army and Navy Acts have similar provisions. Section 163 of the act provides for the form of the sentence of death as;[87]
Role of public opinion[edit]
The role of public opinion first gained prominence in the capital sentencing framework through the case of Machhi Singh v. State of Punjab, July 1983, which allowed imposition of the death penalty in case of anti-social or socially abhorrent nature of the crime.[92]
Subsequently, in the case of Dhananjoy Chatterjee v. State of West Bengal, January 1994, the Supreme Court held that the punishment must befit the crime so that courts reflect public abhorrence of the crime.[100] It held that courts must consider not only the rights of the criminal, but also the rights of the victim and society at large while considering the question of appropriate sentence.
Recently, in MA Antony v. State of Kerala, December 2018, the Supreme Court commuted the death sentence into life imprisonment and noted that the trial court committed an error by taking into account the disturbance caused by the crime to the collective conscience of the society.[46] It was held that reference to public opinion and what is perceived by the judges to be the collective conscience of the society must be avoided while sentencing a convict guilty of a brutal crime.
However, public opinion and collective conscience have played a major role in imposition of the death penalty in several cases in India, including Mukesh v. State of NCT Delhi, May 2017, which resulted in the execution in March 2020 of four persons convicted of gang rape and murder of a young woman in Delhi.[91]
Residual doubt[edit]
In Ashok Debbarma v. State of Tripura, March 2014, the Supreme Court commuted the death sentence to life imprisonment with a minimum of twenty years.[101] It introduced the concept of 'residual doubt' as a mitigating circumstance in Indian sentencing jurisprudence. The court stated that there could be a state of lingering uncertainty that exists, beyond 'reasonable doubt' but below 'absolute certainty'.
In 2019, the Supreme Court reiterated the 'residual doubt principle' of Ashok Debbarma in Ravishankar v. State of Madhya Pradesh, October 2019 and held that it creates a higher standard of proof over and above the 'beyond reasonable doubt' threshold in order to sentence someone to death.[102]
Life imprisonment without remission or parole[edit]
Union of India v. V. Sriharan Murugan, December 2015[edit]
One of the questions involved the validity of the special category of sentence as created by Swamy Shraddhanada @ Murli Manohar Mishra v. State of Karnataka, July 2008.[103] The court held that the special category of sentence created by Swamy Shraddhanada @ Murli Manohar Mishra v. State of Karnataka, July 2008 was valid in law.[104] It further added that such a sentence could only be imposed by the high courts or the Supreme Court. However, the constitutional powers of remission under Articles 72 and 161 would be unaffected by such a sentence. The dissenting judges, Lalit and Sapre, speaking through Lalit held that such a sentence was not valid in law as it would amount to legislating a new sentence, and it was also trenching into the domain of the executive.[105]
Mental illness and death penalty[edit]
The law provided for certain persons to be exceptions to the liabilities imposed by Criminal law. The law assumes persons such as children below the age of 7 and insane persons to be incapable of understanding the consequences of their act and therefore does not hold them accountable for any of the offences. The rule further extends to death penalty as well, i.e. persons who are insane and declared so by a competent court, cannot be given death penalty. The legality of the death sentence and its relation with the mental illness of the accused was discussed in various cases by the Indian Judiciary.[106]
In the case of Devender Pal Singh Bhullar (Navneet Kaur v. NCT of Delhi, March 2014), the Court commuted the death sentence of the convict on the ground of inordinate delay in the execution of sentence and mental health problems faced by the petitioner.[107]
In the case of Shatrughan Chauhan v. Union of India, January 2014, while discussing various other supervening circumstances which would lead to the sentence of death being commuted, it was held that mental illness of the prisoner would be a factor which would lead to a commutation and that no mentally ill person may be executed.[54]
In Accused X v. State of Maharashtra, April 2019, the Supreme Court in this case recognized post conviction mental illness as a mitigating factor to convert death penalty to life imprisonment.[108] The SC noting that there appear to be no set disorders or disabilities for evaluating the 'severe mental illness' laid down 'test of severity' as a guiding factor for recognizing those mental illnesses which qualify for an exemption. The court noted that these disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders with schizophrenia. Therefore, the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. The notion of death penalty and the sufferance it brings along causes incapacitation and is idealised to invoke a sense of deterrence. If the accused is not able to understand the impact and purpose of his execution because of his disability, the purpose for the execution itself collapses.[109]
Sexual violence and calls for the death penalty[edit]
Nirbhaya and Justice Verma Committee Report[edit]
The infamous and brutal gang rape case also known as the Nirbhaya rape case brought the issue of sexual violence into the notice of public, media and the Government of India. Responding to the protests and campaigns the government formed a committee headed by former Chief Justice of India, Justice J.S. Verma, Justice Leila Seth, and Mr Gopal Subramanium, former Solicitor General of India.[110] The Committee submitted its report on 23 January 2013. It made recommendations on laws related to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims, police, electoral and educational reforms.[111] The committee did not recommend the death sentence for sexual offences. The committee proposed "life imprisonment for the remainder of the convict's natural life" as the punishment for repeat offenders. In its conclusion on capital punishment for sexual offences, the committee held:
Debate in India[edit]
India's history voting against moratorium[edit]
The abolition of the death penalty has been a debatable question all across and has been called upon for discussion in various international forums. According to the International Covenant on Civil and Political Rights (ICCPR) capital punishment has been regulated as one part of right to life in the international human rights treaty.[129] The covenant does not abolish death penalty but under Article 6 it states that death sentence may be imposed only for most serious crimes in accordance with the law and other provisions in the covenant.[129] Further the convict sentenced with death shall have right to seek pardon or commutation of sentence and death sentence cannot be imposed on a person below 18 years of age or pregnant woman. The Convention on the Rights of the Child (CRC) also lays down provisions on similar lines stating that no child (person below eighteen years of age) can be subjected to torture or other cruel treatment such as life imprisonment without possibility of release.[130] The Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment or the Torture Convention itself does not declare death penalty as torture or cruel, inhuman or degrading treatment or punishment but addresses the methods of execution and the process of death row.[131][64][132] Among the above-mentioned treaties and conventions India has ratified the ICCPR and CRC and is only a signatory of the Torture Convention. But according to Article 18 of the Vienna Convention on the Laws of Treaties the state is bound to refrain from acts which would defeat the purpose of a treaty.[133] Under the domestic laws, The Protection of Human Rights Act, 1994 in Section 2(1)(d) states that, "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.[134][135] Additionally Section 2(1)(f) states that, "International Covenants" means the ICCPR.[136] Reading together Sections 2(1)(d) and 2(1)(f) it can be said the ICCPR has been incorporated into the given statute protecting human rights.[64]
UN General Assembly has called for a moratorium on the use death penalty through several resolutions. In 2007, the General Assembly called for taking a progressive step by restricting the use of the death penalty, minimizing the number of offences imposing death penalty and imposing a moratorium on the executions to respect for the human dignity and enhance the development of the human rights.[137] These resolutions for moratorium were reaffirmed by the general assembly again in the subsequent years of 2008, 2010, 2012, 2014. India has voted against these resolutions stating that it shall go against the statutory law of the land which states that death sentences can be imposed in rarest of the rare cases.[138][139][140][141][64][132]
Law Commission reports[edit]
35th report (1967)[edit]
The first report of the Law Commission considering the issue of abolition of capital punishment was released in 1967. The commission recommended the retention of capital punishment.[142] The factors considered for arriving at the conclusion were based mainly on general elements of cultural and social life as it existed then.[143] The Law Commission observed that the subjective discretion of the court in deciding the matters satisfactorily practised and was within the purview of judicial principles. The report observed that the exercise of discretion may depend on local conditions, future developments, and evolution of the moral sense of the community, state of crime at a particular time or place and many other unforeseeable features. Furthermore, the report of the law commission does not discuss in detail the apprehensions regarding the arbitrary use of the Court's discretion in capital sentencing.[110] The report also suggested retention of Section 303 of the Indian Penal Code, which provides for mandatory death penalty which was further upheld unconstitutional by the Supreme Court in the case of Mithu v. State of Punjab, April 1983.[78][77]
On the matters of irrevocability of capital punishment and erroneous convictions, the report observed that the constitutional and statutory safeguards such as the mercy, the power of appeal and review as well as legal assistance shall ensure that chances of error are kept to the minimum.[110] The conclusions arrived by the commission are predated to the landmark judgment of Bachan Singh v. State of Punjab, May 1980 and also to the various amendments made in 1973 to the Code of Criminal Procedure.[70]
187th report (2003)[edit]
In its 187th report, the Law Commission dealt with the matter on capital punishment under but under the theme "Mode of Execution of Death Sentence and Incidental Matters".[83] The issue was taken suo moto by the commission examining "technological advances in the field of science, technology, medicine, anaesthetics" and thus did not answer or present views on the debate of abolishing capital punishment.
262nd report (2015)[edit]
The Law Commission of India submitted its 262nd report in 2015 on the issue of the death penalty in India.[64] The issue came up to the Law Commission chaired by Justice A.P Shah in the case of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, April 2009 and Shankar Kisanrao Khade v. State of Maharashtra, April 2013.[144][94][97] The commission extensively studied various aspects of death penalty such as a role of deterrence, uniform applicability of guidelines, victim justice and concluded that the punishment should be abolished except for in the matters of terrorism. The Commission concluded after studying the issue extensively that the death penalty does not serve the penological goal of deterrence any more than life imprisonment. It was opined that it fails to achieve any constitutionally valid penological goals. The Law Commission also concluded that in focusing on the death penalty as the ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost sight of.[18] The discretionary power of judges and uneven application of Bachan Singh v. State of Punjab, May 1980 in these cases goes against the constitutional principles and principle of equality making the whole process arbitrary and subjective to whims of the judges. The commission also identified some systematic impediments such as lack of resources, outdated modes of investigation, over-stretched police force, ineffective prosecution, and poor legal aid making the administration of the death penalty vulnerable to errors. The commission also concluded that constitutional and statutory safeguards such as Article 72 and Article 161 have also failed to safeguard the rights from these impediments.[145][51][144] With relation to supporting death for those convicted in terror cases and for waging war against the country, the Report admitted that there is no valid penological justification for treating terrorism differently from other crimes, but the concern of the times seems to be that removing of the death penalty for these offences will affect national security.
Divergent views[edit]
There are divergent views on which the death penalty in being currently debated over in India. It has been argued by many academicians and many research groups that the presence of such inhumane punishment serves no purpose in the current times. India certainly does not need it as it serves no purpose. It is argued that no study has shown that the death penalty deters murder more than life imprisonment and that evidence is to the contrary.[146] For deterrence to work, the severity of the punishment has to coexist with the certainty and swiftness of the punishment.[19] It has been argued that the death penalty targets the poor and marginalised who do not have support from the society or power of money.[147] The death penalty is subjective in nature and is near to impossible deciding each case fairly or rationally. The Courts have in various cases worked on their fancies and arbitrarily imposed this most extreme punishment. It is also argued that the concept works in contrast to the rehabilitation criminal justice system adopted by India [19]. Further, it has also been argued that it is per se cruel, irrespective of its utility or its deterrent effect.[148]
On the other hand, it has been argued that state-sanctioned death penalty acts as a catalyst to promote the law and the fear of law which acts as a deterrent to future offenders. There is also a push to help the victims and to follow the retribution model of punishment.[149]
Systemic issues[edit]
The concept of the death penalty as understood by a layman is sentencing and execution. By what goes unnoticed is the wide gap between the provisions of law and the realities of its enforcement. The whole process is vulnerable to a large number of systematic and structural impediments. The flagrant violations of even the most basic protections like those against torture and self-incrimination, along with the systemic inability to provide for competent representation or to undertake effective sentencing procedures in capital cases make it extremely clear that the crisis in our criminal justice system has translated.[150] The quality of legal representation has emerged as an extremely serious concern.[150] The absence of any real communication with their lawyers, courtroom proceedings that they do not understand, and no real knowledge of progress in their case at the appellate stages increase the suffering of prisoners on death row.[151]
Research on the death penalty in India[edit]
Lethal Lottery: Death Penalty in India[edit]
Lethal Lottery: Death Penalty in India is a report submitted by Amnesty International with contribution of The People's Union for Civil Liberties.[5] The report puts forth the view that India's Death Penalty System works under fatal flaws and should be abolished.[159] As indicated by the name the report after analysing 700 Supreme Court judgements on death penalty of over 50 years (1950–2006) suggest that the fate of the death row prisoners depends upon the lottery as the Indian judicial system over the years has failed to meet its own uniform standards and the other internationally accepted standards. The golden rule in respect to death penalty "rarest of rare cases" has not been adhered to in the cases. Various administrative flaws such as errors in consideration of evidence, inadequate legal representation, and arbitrariness in sentencing indicate that the punishment of death penalty has been arbitrary, imprecise and abusive means of punishing convicts which goes against the spirit of the constitution.
Prisoner Voices from Death Row[edit]
Prisoner Voices from Death Row by Reena Mary George discusses the demographic profile of the prisoners and the duration spent on death row.[160] It also notes the process of the individual cases, from arrest to conviction and finally being sentenced to death. It also documents in detail the impact of the death penalty on families of prisoners on death row. The study finds that poverty, marginalization and exclusion are antecedent to the death penalty.
Death Penalty India Report[edit]
The Death Penalty India Report (DPIR) by Project 39A at National Law University, Delhi which was released in May, 2016 contains the findings of the Death Penalty Research Project (DPRP).[161] The DPIR contains quantitative information regarding the number of prisoners sentenced to death in India, the average duration they spend on death row, the nature of crimes, their socio-economic background and details of their legal representation, narratives of the prisoners on their experiences in police custody, through the trial and appeal process, incarceration on death row and impact on their families.[161] 373 out of the 385 prisoners who were on the death row at the time and their families were interviewed. The project also documented accounts of prisoner experiences with the police investigation, access to legal representation, experience at the trial courts, life on death row, relationships with family through the years in prison, and other associated aspects. It found that 74.01% of the prisoners interviewed were economically vulnerable. It also found that a high percentage of prisoners sentenced to death had not completed their secondary education. Another major finding was that 76% of the prisoners belonged to a backward community.[161] The Report also found that of over 1700 prisoners who were sentenced to death by trial courts in the period 2000–2015, the appellate courts ultimately confirmed only 4.5% of the sentences. Nearly 30% of the prisoners went from being sentenced to death to being acquitted of all charges while nearly 65% of the death sentences were commuted to life sentences.
Matters of Judgment[edit]
Matters of Judgment is an opinion study on the criminal justice system and the death penalty with 60 former judges of the Supreme Court of India.[162] The study was conducted by Project 39A at the National law University, Delhi and was published in November 2017. The 60 former judges adjudicated 208 death penalty cases between them at different points during the period 1975–2016. The study was an attempt to understand judicial thought and adjudicatory processes that govern the administration of the death penalty within India's criminal justice system.Former judges were interviewed on main broad themes which included, investigation and trial processes, sentencing in death penalty cases, and judicial attitudes towards the death penalty. It was clear from the study that there is no uniform understanding of the requirements of the 'rarest of rare' doctrine which has led to the systemic issue of judge-centric sentencing.
Death Penalty Sentencing in Trial Courts[edit]
This study by Project 39A, National Law University, Delhi contains findings from a study of all capital cases decided by trial courts of Delhi, Madhya Pradesh and Maharashtra between 2000 and 2015.[163] Analysing 215 judgments (43 from Delhi, 82 from Madhya Pradesh, and 90 from Maharashtra), the study demonstrates the normative and procedural gaps in death penalty sentencing framework that have been the legacy of the Bachan Singh v. State of Punjab, May 1980 judgment.
Death Penalty Annual Statistics Report[edit]
Since 2016, Project 39A at the National Law University Delhi annually releases a death penalty statistics report.[164] The report covers movements in the death row population in India as well as political and legal developments in the administration of the death penalty and the criminal justice system. The 162 death sentences imposed by trial courts in 2018 is the highest in a calendar year since 2000. The number dropped to 102 in 2019.