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INTRODUCTION

Each society has its own way of social control for which it frames certain laws and also
mentions the sanctions with them. These sanctions are nothing but the punishments. ‘The first
thing to mention in relation to the definition of punishment is the ineffectiveness of
definitional barriers aimed to show that one or other of the proposed justifications of
punishments either logically include or logically excluded by definition.’ Punishment has the
following features:
# It involves the deprivation of certain normally recognized rights, or other measures
considered unpleasant
# It is consequence of an offence
# It is applied against the author of the offence
# It s applied by an organ of the system that made the act an offence.

The Indian Penal Code recognises capital punishment under eight sections (121, 132, 194,
302, 303, 305, 307, and 396) for different offences. Article 21 of the Indian Constitution
provides that “no person shall be deprived of his life and personal liberty except according to
the procedure established by law.”

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
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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 punishments.

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 wrong

HISTORICAL BACKGROUND

The first established death penalty laws date as far back as the Eighteenth Century B.C. in the
Code of King Hammaurabi of Babylon, which codified the death penalty for 25 different
crimes. The death penalty was also part of the Fourteenth Century B.C.'s Hittite Code; in the
Seventh Century B.C.'s Draconian Code of Athens, which made death the only punishment
for all crimes; and in the Fifth Century B.C.'s Roman Law of the Twelve Tablets. Death
sentences were carried out by such means as crucifixion, drowning, beating to death, burning
alive, and impalement.

In the Tenth Century A.D., hanging became the usual method of execution in Britain. In the
following century, William the Conqueror would not allow persons to be hanged or otherwise
executed for any crime, except in times of war. This trend would not last, for in the Sixteenth
Century, under the reign of Henry VIII, as many as 72,000 people are estimated to have been
executed. Some common methods of execution at that time were boiling, burning at the stake,
hanging, beheading, and drawing and quartering. Executions were carried out for such capital
offenses as marrying a Jew, not confessing to a crime, and treas

The number of capital crimes in Britain continued to rise throughout the next two centuries.
By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting
down a tree, and robbing a rabbit warren. Because of the severity of the death penalty, many
juries would not convict defendants if the offense was not serious. This lead to reforms of
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Britain's death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of
the 222 crimes punishable by death.

Nineteenth Century
In the early to mid-Nineteenth Century, the abolitionist movement gained momentum in the
northeast. In the early part of the century, many states reduced the number of their capital
crimes and built state penitentiaries. In 1834, Pennsylvania became the first state to move
executions away from the public eye and carrying them out in correctional facilities.

In 1846, Michigan became the first state to abolish the death penalty for all crimes except
treason. Later, Rhode Island and Wisconsin abolished the death penalty for all crimes. By the
end of the century, the world would see the countries of Venezuela, Portugal, Netherlands,
Costa Rica, Brazil and Ecuador follow suit.

although some U.S. states began abolishing the death penalty, most states held onto capital
punishment. Some states made more crimes capital offenses, especially for offenses
committed by slaves. In 1838, in an effort to make the death penalty more palatable to the
public, some states began passing laws against mandatory death sentencing instead enacting
discretionary death penalty statutes. The 1838 enactment of discretionary death penalty
statutes in Tennessee, and later in Alabama, were seen as a great reform. This introduction of
sentencing discretion in the capital process was perceived as a victory for abolitionists
because prior to the enactment of these statutes, all states mandated the death penalty for
anyone convicted of a capital crime, regardless of circumstances. With the exception of a
small number of rarely committed crimes in a few jurisdictions, all mandatory capital
punishment laws had been abolished by 1963.

During the Civil War, opposition to the death penalty waned, as more attention was given to
the anti-slavery movement. After the war, new developments in the means of executions
emerged. The electric chair was introduced at the end of the century. New York built the first
electric chair in 1888, and in 1890 executed William Kemmler. Soon, other states adopted
this execution method.

Early and Mid-Twentieth Century

Although some states abolished the death penalty in the mid-Nineteenth Century, it was
actually the first half of the Twentieth Century that marked the beginning of the "Progressive
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Period" of reform in the United States. From 1907 to 1917, six states completely outlawed the
death penalty and three limited it to the rarely committed crimes of treason and first degree
murder of a law enforcement official. However, this reform was short-lived. There was a
frenzied atmosphere in the U.S., as citizens began to panic about the threat of revolution in
the wake of the Russian Revolution. In addition, the U.S. had just entered World War I and
there were intense class conflicts as socialists mounted the first serious challenge to
capitalism. As a result, five of the six abolitionist states reinstated their death penalty by
1920.

In 1924, the use of cyanide gas was introduced, as Nevada sought a more humane way of
executing its inmates. Gee Jon was the first person executed by lethal gas. The state tried to
pump cyanide gas into Jon's cell while he slept, but this proved impossible, and the gas
chamber was constructed.

From the 1920s to the 1940s, there was a resurgence in the use of the death penalty. This was
due, in part, to the writings of criminologists, who argued that the death penalty was a
necessary social measure. In the United States, Americans were suffering through Prohibition
and the Great Depression. There were more executions in the 1930s than in any other decade
in American history, an average of 167 per year.

In the 1950s, public sentiment began to turn away from capital punishment. Many allied
nations either abolished or limited the death penalty, and in the U.S., the number of
executions dropped dramatically. Whereas there were 1,289 executions in the 1940s, there
were 715 in the 1950s, and the number fell even further, to only 191, from 1960 to 1976. In
1966, support for capital punishment reached an all-time low. A Gallup poll showed support
for the death penalty at only 42%.

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 punishment. 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
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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 republic

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".

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 imprisonment

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

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"
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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 law
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At present, capital punishment in India is given for seven crimes. These are: murder, dacoity
coupled with murder, war against the state, false evidence which results in capital punishment
to an innocent person, instigating a minor or an insane person to commit suicide, and leaking
out secrets to other countries.

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

CAPITAL PUNISHMENT IN VARIOUS LEGISLATION IN INDIA

Capital punishment is prescribed as one of the punishments in various of the Indian Penal
Code, 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic substance Act 1985,
and The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, The
Commission of Sati (Prevention) Act, 1987, The Air Force Act, 1950, The Army Act, 1950,
and The Navy Act, 1957. In the Prevention of Terrorism Act, 2002 also, there was a
provision for death penalty for causing death of persons using bombs, dynamite or other
explosive substances in order to threaten the unity and integrity of India or to strike terror in
the people. It is also interesting to note that under the Arms Act, NDPS Act and the
Scheduled Caste and Scheduled Tribe Act, Capital Punishment is the only punishment for the
offence covered by those sections, thus leaving no room for the judiciary to exercise its
discretion. It is doubtful whether these provisions can stand the test of the constitutional
validity in the light of the decision in Mithu v. State of Punjab Because in this Case section
303 of the Indian Penal Code was struck down as violation of Article 21 and 14 of the
Constitution of India, as the offence under the Section was punishable to exercise its direction
and thus resulted in an unfair, unjust and unreasonable procedure depriving a person of his
life

CONSTITUTIONAL VALIDITY

Article 21 of the Constitution of India provides Protection of Life and Personal Liberty to
every people. And the deprivation of life of anyone is unconstitutional under Article 21. It is
also said that No person shall be deprived of his life or personal liberty except according to
procedure established by law; it means, if there is a procedure than state can deprived a
person from his life

In many countries there has been accepted and death penalty has been abolished. In India, too
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there are many social workers including lawyers and Judges who have voiced this demand.
Prominent amongst them are Bhagwati J. and Krishna Iyer J. both former judges of Supreme
Court, Krishna Iyer J. Very recently while addressing a Human right organization strongly
expressed himself in favour of the abolition of deathpenalty.

Justice A.K. Ganguly of the Supreme Court has termed the award of death sentence as
“barbaric , anti-life, undemocratic and irresponsible” which is “legal” in the prevailing
judicial system. The doctrine of the crime falling in the ‘rarest of rare’ category in awarding
the death penalty was a “grey” area as its interpretation depended on individual judges. He
cautioned that before giving death penalty, a judge must be “extremely careful” and weigh
“mitigating and aggravating circumstances.”

So far as constitutionality is concerned it has to be considered in the light of the provision to

take away the life of a person through a procedure established by law. This means that
through there is a procedure establish by law, state can deprive a person of his life. Through
judicial pronouncements, this procedure is interpreted to mean, a fair, just and reasonable
one. Though the constitutional validity of the death punishment was challenged as violative
of Article 19 and 21 of the Constitution of India, because it didn’t provide any procedure to
the Court upheld the validity of death sentence. Since the procedure by which the life is taken
is fair, just and reasonable. The judge are given ample power to exercise their discretion to
award death penalty as against imprisonment for life.

the question of constitutional validity of death penalty has been raised before the Supreme
Court of India more than once. In case of Jagmohan Singh v. State of Uttar Pradesh, the
constitutional validity of death penalty was upheld by the Supreme Court by a unanimous
decision of the five judges composing the Bench.

In case of Rajender Prasad v. State of Uttar Pradesh, Krishna Iyer J. said that death penalty
directly affects the life of the people guaranteed under Article 21 of the Constitution. But it
has been provided by law and there is nothing like due law in Article 21. Therefore, it is
valid. He further said that to impose death penalty the two things must be required:

· The special reasons should be recorded for imposing death penalty in a case.
· The death penalty must be imposed only in extraordinary circumstances.
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The question was again considered by a five judges bench in case of Bachan Singh v. State of
Punjab, particularly in view of certain observations of Krishna Iyer J. In Bachan Singh case
judges considered the social, ethical and even spiritual aspect of death penalty while
upholding the constitutional validity thereof.

It is to be noted that, After the award of the death sentence by a sessions (trial) court,the
sentence must be confirmed by a High Court to make it final. Once confirmed, the
condemned convict has the option of appealing to the Supreme Court. If this is not possible,
or if the Supreme Court turns down the appeal or refuses to hear the petition, the condemned
person can submit a ‘mercy petition’ to the President of India and the Governor of the State.

POWER OF PRESIDENT

The present day constitutional clemency powers of the President and Governors originate
from the Government of India Act 1935 but, unlike the Governor-General, the President and
Governors in independent India do not have any prerogative clemency powers

CONSTITUTIONAL POWER

Article 72(1) of the Constitution of India states:

The President shall 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
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to
a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.

CAPITAL PUNISHMENT UNDER CRIMINAL LAW

Section 365 (5) of the Criminal Procedure Code, 1898, prior to its amendment in 1955,
required a court sentencing a person convicted of an offence punishable with death to a
punishment other than death to state the reasons why it was not awarding death sentence. The
amendment deleted this provision but there was no indication in either the Cr.P.C or the
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Indian Penal Code, 1860 (IPC) as to which cases called for life imprisonment and which the
alternative – death penalty. The Law Commission of India in 1967 undertook a study of death
penalty and submitted its 35th Report to the government. It justified its conclusion for
retention of death penalty thus:

Having regard….to the conditions in India, to the variety of 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 the 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.

CAPITAL OFFENCES

Sections Under IPC and other law

Being a party to a criminal conspiracy to commit a capital

120B of IPC
offense

Waging, or attempting to wage war, or abetting waging of

121 of IPC
war, against the Government of India

Abetting a mutiny in the armed forces (if a mutiny occurs

132 of IPC
as a result), engaging in mutiny

Giving or fabricating false evidence with intent to procure a

194 of IPC
conviction of a capital offense

302, 303 of IPC Murder

Abetting the suicide of a minor, mentally ill person, or

305 of IPC
intoxicated person

Part II Section 4 of Prevention

Aiding or abetting an act of Sati
of Sati Act

Kidnapping, in the course of which the victim was held for

364A of IPC
ransom or other coercive purposes.
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31A of the Narcotic Drugs and

Drug trafficking in cases of repeat offenses
Psychotropic Substances Act

Banditry with murder - in cases where a group of five or

more individuals commit banditry and one of them
396 of IPC
commits murder in the course of that crime, all members of
the group are liable for the death penalty.

Rape if the perpetrator inflicts injuries that result in the

376A of IPC and Criminal
victim's death or incapacitation in a persistent vegetative
Law (Amendment) Act, 2013
state, or is a repeat offender.

Bombay Prohibition (Gujarat In Gujarat only - Manufacture and sale of poisoned alcohol
Amendment) Bill, 2009 which results in death(s).

Capital Offences in other

laws Section Number Description
SR. No.

1. Sections 34, 37, and 38(1) The Air Force Act, 1950

2. Section 3(1)(i) The Andhra Pradesh Control of

Organised Crime Act, 2001

3. Section 27(3) The Arms Act, 1959 (repealed)

4. Sections 34, 37, and 38(1) The Army Act, 1950

5. Sections 21, 24, 25(1)(a), and 55 The Assam Rifles Act, 2006

6. Section 65A(2) The Bombay Prohibition (Gujarat

Amendment) Act, 2009
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7. Sections 14, 17, 18(1)(a), and 46 The Border Security Force Act,
1968

8. Sections 17 and 49 The Coast Guard Act, 1978

9. Section 4(1) The Commission of Sati

(Prevention) Act, 1987

10. Section 5 The Defence of India Act, 1971

11. Section 3 The Geneva Conventions Act,

1960

12. Section 3 (b) The Explosive Substances Act,

1908

13. Sections 16, 19, 20(1)(a), and 49 The Indo-Tibetan Border Police
Force Act, 1992

14. Section 3(1)(i) The Karnataka Control of

Organised Crime Act, 2000

15. Section 3(1)(i) The Maharashtra Control of

Organised Crime Act, 1999

16. Section 31A(1) The Narcotics Drugs and

Psychotropic Substances Act,
1985

17. Sections 34, 35, 36, 37, 38, 39, The Navy Act, 1957
43, 44, 49(2)(a), 56(2), and 59

18. Section 15(4) The Petroleum and Minerals

Pipelines (Acquisition of rights of
user in land) Act, 1962

19. Sections 16, 19, 20(1)(a), and 49 The Sashastra Seema Bal Act,
2007
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20. Section 3(2)(i) The Scheduled Castes and

Scheduled Tribes (Prevention of
Atrocities) Act, 1989

21. Section 3(1)(i) The Suppression of Unlawful Acts

against Safety of Maritime
Navigation and Fixed Platforms
on Continental Shelf Act, 2002;

22. Sections 10(b)(i) and Section The Unlawful Activities

16(1)(a) Prevention Act, 1967

EXECUTION OF DEATH SENTENCE

The execution of death sentence in India is carried out by two modes, namely hanging by the
neck till death and being executed by firing squad.
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a) Hanging
The Code of Criminal Procedure (1898) called for the method of execution to be hanging.
The same method was adopted in the Code of Criminal Procedure (1973). Section 354(5) of
the above procedure reads as "When any person is sentenced to death, the sentence shall
direct that the person be hanged by the neck till the person is dead."

b) Firing Squad
The Army Act and Air Force Act also provide for the execution of the death sentence.
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.
Section 163 of the Act provides for the form of the sentence of death as:-
"In awarding a sentence of death, a court-martial shall, in its discretion, direct that the
offender shall suffer death by being hanged by the neck until he be dead or shall suffer death
by being shot to death".
This provides for the discretion of the Court Martial to either provide for the execution of the
death sentence by hanging or by being shot to death. The Army Act, 1950, and the Navy Act,
1957 also provide for the similar provisions as in The Air Force Act, 1950.

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 penalty

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 signatories
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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 CRC.

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 bodies

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 punishment

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”.

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,
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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 resolutions.

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

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 treaties

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”
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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 gallows

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

Dhananjoy Chatterjee v. State of West Bengal & ors.

Date of execution: August 14, 2004 (Alipore Central Jail, Kolkata)

The appellant, Dhananjoy Chatterjee was found guilty of offences punishable under Section
376, 302 and 380 of the Indian Penal Code by judgment and was awarded death sentence by
the session judge, confirmed by the High Court. A special leave petition was filed by the
appellant. Leave was granted but the appeal was dismissed by the Supreme Court.

Bachan singh VS. State of Punjab

Date of execution : May 09,1980

Bachan Singh was tried and convicted and sentenced to death under Section 302, Indian
Penal Code for the murders of Desa Singh, Durga Bai and Veeran Bai by the Sessions Judge.
The High Court confirmed his death sentence and dismissed his appeal. Bachan Singh then
appealed to the SC by Special Leave, which came up for hearing before a Bench of the
Hon’ble Supreme Court (consisting of Sarkaria and Kailasam, JJ.). The question raised in the
appeal was, whether the facts found by the courts below would be "special reasons “for
awarding, the death sentence as required under Section 354(3) of the Code of Criminal
Procedure, 1973
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Mohammad Ajmal Amir Kasab:

Date of execution: November 21, 2012 (Yerwada Jail, Pune)

Ajmal Kasab was a part of the group that was responsible for the infamous 26/11 attacks in
Mumbai. This case was closely followed by the media of our country which was probably the
reason why case was expedited. An 11,000 page charge sheet was filed against Kasab which
made a strong case against him. He kept changing his statement from time to time and moved
up to the Supreme Court pleading for mercy. President Pranab Mukherjee upheld the
judgement of capital punishment on the November 5, 2012 and he was hanged to death on
November 21, 2012.

Afzal Guru:

Date of execution: February 9, 2013 (Tihar Jail, Delhi)

Afzal Guru was accused of being the master mind behind the attacks on the parliament on
December 13, 2001. Five armed terrorists attacked the Indian Parliament which led to the
death of 8 security personnel and a gardener. A media person was also shot amidst the attack
and succumbed to the injuries later. The case was handed to a special cell of Delhi Police,
which was able to track and arrest Afzal by December 15, 2001. He pleaded guilty in front of
the media but took back his statement later claiming that he did it due to the pressure induced
by the police. A special court was formed under the Prevention of Terrorism Act which
finally sentenced him to death on December 18, 2002. Due to various pleads and protests the
case went on till February 6, 2013, when his plea was rejected by the President Pranab
Mukherjee. His execution was a carried out as a secret mission on February 9, 2013.

Yakub Memon:

Date of execution: July 30, 2015 (Central Jail, Nagpur)

Yakub Memon was accused of taking part in sponsoring the 13 blasts that rocked Mumbai in
1993. A charted accountant by profession, it was claimed that he sponsored the bomb blasts
that were masterminded by his brother Tiger Memon and underworld mafia Dawood Ibrahim.
The blasts claimed the lives of 257 people. Yakub pleaded repeatedly before the apex court
claiming that his case was not dealt with in the correct manner. Two subsequent mercy
appeals were rejected which ended in an unprecedented all-night court hearing. The court
rejected the final appeal at 5a.m. in the morning. Yakub was woken up at 4:00 a.m. and was
 19

allowed to take a warm water bath. He read the Quran and offered his Namaz before being
hanged before 7am and was declared dead at 7:01 am.

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
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 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.
 20

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 penalty.

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”.

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. 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 prisoners

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;
 21

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 Executive. Supreme Court, last year 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.
 22

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 irreversible

NCRB Statistics

The National Crime Records Bureau (NCRB) is an Indian government agency, created in
1986, responsible for collecting and analysing crime data as defined by the Indian Penal Code
(IPC). The NCRB has documented death penalties and executions in India since 1995, as part
of its prison statistics. There are no collated figures available for executions before 1995.

According to the NCRB, 21 people have been executed in India since 1995. In the decade
between 2001 and 2011, 1,455 convicts or an average of 132.27 convicts per year were given
the death penalty. During the same period, sentences for 4,060 convicts were commuted from
death penalty to life imprisonment. The NCRB does not clarify whether these figures refer to
sentences passed by a trial court or those whose sentences have been upheld by a High Court
or the Supreme Court, or those whose mercy petitions are pending or have been rejected
 23

ABOLITIONIST AND RETENTIONIST COUNTRIES AS OF 31ST DECEMBER 2014

The first successful effort for abolishing capital punishment in India was made in Travancore
in 1944 but it was reintroduced in 1950. The number of persons awarded capital punishment
by the courts in Travancore was 159 in 1950,168 in 1951 and 170 in 1952.

In 1956, a bill was introduced in the Lok Sabha by one Agrawal for abolishing capital
punishment but it was rejected by Parliament in 1961. The then Deputy Minister for Home
Affairs (Mrs. Violet Alva) intervening in the debate on the resolution had said:

A correct assessment of the situation in the country rather than sentiment should guide our
approach to this question. Since the crime situation continues to be serious, the time was not
ripe to do away with capital punishment, though principles underlying the demand for its
abolition may be accepted (The Hindustan Times, September 10, 1961).

In 1963, the Law Commission was asked to look into the question of abolishing capital
punishment. It gave its recommendations in November 1971 and turned down the idea of
abolition. In 1980, five judges of the Supreme Court of India discussed its justification. Of
these, four were in favour of retaining it, while one was in favour of abolishing it.

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 past. 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.

The following are lists of countries in the four categories: abolitionist for all crimes,
abolitionist for ordinary crimes only, abolitionist in practice and retentionist.

1. ABOLITIONIST FOR ALL CRIMES :Countries whose laws do not provide for the death
penalty for any crime: Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria,
Azerbaijan, Belgium, Bhutan, Bolivia, Bosnia and Herzegovina, Bulgaria, Burundi,
Cambodia, Canada, Cabo Verde, Colombia, Cook Islands, Costa Rica, Côte d’Ivoire, Croatia,
Cyprus, Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Estonia,
 24

Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Haiti, Holy See,
Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Kyrgyzstan, Latvia, Liechtenstein,
Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia,
Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand,
Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania,
Rwanda, Samoa, San Marino, Sao Tome and Principe, Senegal, Serbia (including Kosovo),
Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland,
Timor-Leste, Togo, Turkey, Turkmenistan, Tuvalu, Ukraine, UK, Uruguay, Uzbekistan,
Vanuatu, Venezuela.

2. ABOLITIONIST FOR ORDINARY CRIMES ONLY :Countries whose laws provide for
the death penalty only for exceptional crimes such as crimes under military law or crimes
committed in exceptional circumstances: Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan,
Peru.

3. ABOLITIONIST IN PRACTICE :Countries which retain the death penalty for ordinary
crimes such as murder but can be considered abolitionist in practice in that they have not
executed anyone during the last 10 years and are believed to have a policy or established
practice of not carrying out executions: Algeria, Benin, Brunei Darussalam, Burkina Faso,
Cameroon, Central African Republic, Congo (Republic of), Eritrea, Ghana, Grenada, Kenya,
Laos, Liberia, Madagascar, Malawi, Maldives, Mali, Mauritania, Mongolia, Morocco,
Myanmar, Nauru, Niger, Papua New Guinea, Russian Federation, Sierra Leone, South Korea,
Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia.

4. RETENTIONIST :Countries that retain the death penalty for ordinary crimes:
Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus,
Belize, Botswana, Chad, China, Comoros, Democratic Republic of the Congo, Cuba,
Dominica, Egypt, Equatorial Guinea, Ethiopia, Gambia, Guatemala, Guinea, Guyana, India,
Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia,
Nigeria, North Korea, Oman, Pakistan, Palestine (State of), Qatar, Saint Kitts and Nevis,
Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Singapore, Somalia, South
Sudan, Sudan, Syria, Taiwan, Thailand, Trinidad and Tobago, Uganda, United Arab
Emirates, USA, Viet Nam, Yemen, Zimbabwe.
 25

Conclusion
Death as a penalty has plagued human mind perennially. Death sentence must fulfill the
conditions for protection of human rights in Criminal Justice Administration in India.

Execution of Dhananjay Chatterjee in 2004, after fourteen years in death cell and thereafter in
the year 2006 Md. Afzal’s instance of capital punishment again gave new impetus to the
debate between abolitionists and retentionists concerning speedy justice, fair trial, protection
of human rights of the persons under death sentence, their human dignity as well as the
victimological perspective to maintain law and order in society.

In the words of P.N. Bhagwati, J. in Bachan Singh v. state of Punjab “the judges have been
awarding death penalty according to their own scale of values and social philosophy and it is
not possible to discern any consistent approach to the problem in the judicial decisions”.
Therefore, whether the sentence will be for death or for life imprisonment depends, in a large
measure, on the court or composition of bench of the court. We have seen earlier about
execution and commutation of death sentences into life imprisonment, there are several
judgments which show that there are no fix principles to determine delay and other factors in
the similar cases. Is this not a violation of articles 14 and 21 of the Constitution which
enshrine fundamental and sacrosanct rights of human beings?

BIBLIOGRAPHY

Scribd

Slideshare.net

Indiankanoon.org

www.scu.edu>ethics

http://deathpenaltyinfo.org

Shodhganga@INFLIBNET
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