DEATH PENALTY IN INDIA: A CRITICAL ANALYSIS

CONTENTS

DECLARATION ............................................................................................................. II
ACKNOWLEDGEMENT ..............................................................................................III .....
INTRODUCTION .................................................................................................................... 1
RESEARCH PROBLEM ......................................................................................................... 2
WHAT DO YOU MEAN BY DEATH PENALTY IN INDIA ............................................. 2
SCOPE & OBJECTIVE........................................................................................................... 2
NATURE OF STUDY .............................................................................................................. 2
NEED FOR RE-EXAMINING THE 35TH REPORT............................................................ 3
(i)Development in India .......................................................................................................... 3
(ii) The new Code of Criminal Procedure in 1973 ................................................................. 3
(iii) The emergence of constitutional due-process standards ................................................. 4
(iv) Judicial developments on the arbitrary and subjective application of the death penalty . 4
(v) Recent Political Developments ......................................................................................... 4
(vi) International Developments ............................................................................................. 5
CONSTITUTIONALITY OF THE DEATH PENALTY IN INDIA ................................... 5
Mandatory Death Sentences ................................................................................................... 6
Delay and the death penalty .................................................................................................... 7
Recent expansions of the scope of the death penalty ............................................................. 7
CLEMENCY POWERS AND DUE PROCESS ISSUES PERTAINING TO THE .......... 7
EXECUTION OF DEATH SENTENCE ................................................................................ 7
CONCLUSION ......................................................................................................................... 8
BIBLIOGRAPHY ..................................................................................................................... 9
 INTRODUCTION

In Shankar Kisanrao Khade v. State of Maharashtra1 the Supreme Court of India, while
dealing with an appeal on the issue of death sentence, expressed its concern with the lack of a
coherent and consistent purpose and basis for awarding death and granting clemency.

In Santosh Kumar Satish bhushan Bariyar v. State of Maharashtra 2 lamenting the lack of
empirical research on this issue, the Court observed:

“We are also aware that on 18-12-2007, the United Nations General Assembly adopted
Resolution 62/149 calling upon countries that retain the death penalty to establish a worldwide
moratorium on executions with a view to abolishing the death penalty. India is, however, one
of the 59 nations that retain the death penalty. Credible research, perhaps by the Law
Commission of India or the National Human Rights Commission may allow for an up-to-date
and informed discussion and debate on the subject…”

The 35th Report on Capital Punishment (1967)

“It is difficult to rule out the validity of, or the strength behind, many of the arguments for
abolition. 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 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…”

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1 Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.
2 Santosh Kumar Satish bhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

Research Problem

What do you mean by death penalty in India

Scope & Objective

The research note aims to analyse and understand the concept of death penalty in India.

Nature of study

This project has been made by employing Doctrinal and Scholastic method of Research & by
using primary & secondary sources of information.

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 NEED FOR RE-EXAMINING THE 35TH REPORT

The Commission’s conclusion in the 35th Report were clearly dependent on, and qualified by,
the conditions that prevailed in India at that point in time. A great deal has changed in India so
much so that a fresh look at the issue in the contemporary context has become desirable. Six
factors require special mention.

(i)Development in India
The Commission’s conclusions in the 35th Report were linked to the conditions in India at that
time. Nevertheless, education, general well-being, and social and economic conditions are
vastly different today from those prevailing at the time of writing the 35th Report. To take an
example adult literacy was 24.02% in 1961 and 74.0% in 2011. The state of the country and
its inhabitants has thus changed significantly.

The 35th Report justified its hesitation on the prevailing (high) crime rate. However, according
to the Crime in India reports, published by the National Crime Records Bureau, the murder rate
has been in continuous and uninterrupted decline since 1992, when it was 4.6 per lakh of
population. As per the latest figures for 2013, the murder rate is 2.7 per lakh of population,
after having fallen further from 2012, when it was 2.8.

This decline in the murder rate has coincided with a corresponding decline in the rate of
executions, thus raising questions about whether the death penalty has any greater deterrent
effect than life imprisonment.

(ii) The new Code of Criminal Procedure in 1973

The Commission’s recommendations in the 35th Report predate the current Code of Criminal
Procedure. This resulted in an amendment to Section 354(3), requiring “special reasons” to
be given when the death sentence was imposed for an offence where the punishment could be
life imprisonment or death. The Supreme Court, in Bachan Singh v. State of Punjab3, has
interpreted this to mean that the normal sentence for murder should be imprisonment for life,
and that only in the rarest of rare cases should the death penalty be imposed.

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3 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
(iii) The emergence of constitutional due-process standards
Post-1967, India has witnessed an expansion of the interpretation of Article 21 of the
Constitution of India, reading into the right to dignity and substantive and due process. Most
famously, Maneka Gandhi v Union of India1, held that the procedure prescribed by law has
to be “fair, just and reasonable, not fanciful, oppressive or arbitrary.”

Subsequently, in Bachan Singh, the Court observed

“…it cannot be overemphasised that the scope and concept of mitigating factors in the area of
death penalty must receive a liberal and expansive construction by the courts in accord with
the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty…” it is
important to consider the NCRB data on the number of death sentences awarded annually. On
average, NCRB records that 129 persons are sentenced to death row every year, or roughly one
person every third day. In Khade, the Supreme Court, took note of these figures and stated that
this number was “rather high” and appeared to suggest that the death penalty is being applied
much more widely than was envisaged by Bachan Singh. In fact, the Supreme Court itself has
come to doubt the possibility of a principled and consistent implementation of the ‘rarest of
rare’ test.

(iv) Judicial developments on the arbitrary and subjective application of the death penalty
Despite the Court’s optimism in Bachan Singh that its guidelines will minimise the risk of
arbitrary imposition of the death penalty, there remain concerns that capital punishment is
“arbitrarily or freakishly imposed”. Such concerns have been reiterated on multiple occasions,
where the Court has pointed that the rarest of rare dictum propounded in Bachan Singh has
been inconsistently applied. Notably, the Supreme Court has itself admitted errors in the
application of the death penalty in various cases.

(v) Recent Political Developments

Some recent developments indicate an increase in political opinion in favour of abolition. Most
recently, in August 2015, the Tripura Assembly voted in favour of a resolution seeking the
abolition of the death penalty.

1 Maneka Gandhi v Union of India, (1978) 1 SCC 248.

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(vi) International Developments
In 1967, when the 35th Report was presented, only 12 countries had abolished capital
punishment for all crimes in all circumstances. Today, 140 countries have abolished the death

penalty in law or in practice. A category of countries have also abolished death penalty for
ordinary crimes such as murder and retained it for exceptional crimes such as crimes under
military law or under exceptional circumstances.

CONSTITUTIONALITY OF THE DEATH PENALTY IN INDIA

The first challenge to the constitutionality of the death penalty in India came in the 1973 case
of Jagmohan Singh v. State of U. P.5 The petitioners argued that the death penalty violated
Articles 14, 19 and 21 of the Constitution of India. This case was decided before the CrPC was
re-enacted in 1973, making the death penalty an exceptional sentence. In Jagmohan, the
Supreme Court found that the death penalty was a permissible punishment, and did not violate
the Constitution.

In 1979, the case of Rajendra Prasad v. State of Uttar Pradesh6 discussed what the “special
reasons” in imposing the death sentence could be. The Court said, “special reasons necessary
for imposing death penalty must relate, not to the crime as such but to the criminal.” They drew
the focus in sentencing to reformation, even as they held that it was not the nature of the crime
alone that would be relevant in deciding the sentence. The Court said, “the retributive theory
has had its day and is no longer valid. Deterrence and reformation are the primary social goals
which make deprivation of life and liberty reasonable as penal panacea.”

The challenge to the death penalty in Bachan Singh was premised, among other things, on
irreversibility, fallibility, and that the punishment is necessarily cruel, inhuman and degrading.
It was also contended that the penological purpose of deterrence remained unproven,
retribution was not an acceptable basis of punishment, and that it was reformation and
rehabilitation which were the purposes of punishment. Four of the five judges hearing this case
did not accept the contention that the death penalty was unconstitutional. They overruled
Rajendra Prasad, and affirmed Jagmohan, when they held that the death penalty could not be

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restricted to cases where the security of the state and society, public order and the interests of
the general public were threatened.

5 Jagmohan Singh v. State of U. P., (1973) 1 SCC 20.

6 Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646.
In Bachan Singh, the Court adopted the ‘rarest of rare’ guideline for the imposition of the death
penalty, saying that reasons to impose or not impose the death penalty must include the
circumstances of the crime and the criminal. This was also the case where the court made a
definitive shift in its approach to sentencing. The Court held:

“The expression ‘special reasons’ in the context of this provision, obviously means
’exceptional reasons’ founded on the exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal.”

Justice Bhagwati in his dissenting opinion found the death penalty necessarily arbitrary,
discriminatory and capricious.

In the past few years, attention has also been drawn to the arbitrary application of the Bachan
Singh framework by courts as also to the possibility of judicial error in cases where the death
sentence has been imposed. The Supreme Court in Aloke Nath Dutta v. State of West Bengal,2
Swamy Shraddhananda v. State of Karnataka, 3 and Farooq Abdul Gafur v. State of
Maharashtra,4 amongst other cases, has noticed that sentencing in capital cases has become
arbitrary and that the sentencing law of Bachan Singh has been interpreted in varied ways by
different Benches of the Court.

Mandatory Death Sentences

In the case of Mithu v. State of Punjab5, the Supreme Court was confronted with the mandatory
sentence of death enacted in Section 303 of the IPC. The Court held that the mandatory death
sentence was unconstitutional, stating: A standardized mandatory sentence, and that too in the
form of a sentence of death, fails to take into account the facts and circumstances of each

2 Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230.

3
Swamy Shraddhananda v. State of Karnataka, 4 (2008) 13 SCC 767.
4 Farooq Abdul Gafur v. State of Maharashtra, (2010) 14 SCC 641.
5 Mithu v. State of Punjab, (1983) 2 SCC 277.

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particular case. It is those facts and circumstances which constitute a safe guideline for
determining the question of sentence in each individual case.

Delay and the death penalty

Delay has been a matter of concern in the criminal justice system, with the adage ‘justice
delayed is justice denied’ being attributed to the plight of both victims of crime as well as the
accused. Long terms of incarceration, periods of which are on death row and in solitary
confinement, have been the concerns of courts through the years. In the case of T.V.

Vatheeswaran v. State of Tamil Nadu11 the Court held that a delay in execution of sentence
that exceeded two years would be a violation of procedure guaranteed by Article 21. However,
in Sher Singh v. State of Punjab12, it was held that delay could be a ground for invoking Article
21, but that no hard and fast rule could be laid down that delay would entitle a prisoner to
quashing the sentence of death.

Recent expansions of the scope of the death penalty

Several of these enactments have been passed relatively recently. For example, passed in 2013,
the Criminal Law (Amendment) Act introduced several new provisions into the IPC, including
Section 376A, which allowed for the death penalty to be imposed in cases where rape led to
the death of the victim, or left her in a persistent vegetative state; and 376E which allowed for
the imposition of the death penalty for certain repeat offenders. These amendments were passed
in the wake of the recommendations of the Verma Committee. Pertinently, while the Verma
Committee was in favour of enhanced punishment for certain forms of sexual assault and rape,
it noted that “in the larger interests of society, and having regard to the current thinking in
favour of abolition of the death penalty, and also to avoid the argument of any sentencing
arbitrariness, we are not inclined to recommend the death penalty.” The Criminal Law
(Amendment) Act, 2013, nevertheless expanded the scope of the death penalty.

CLEMENCY POWERS AND DUE PROCESS ISSUES PERTAINING

TO
THE EXECUTION OF DEATH SENTENCE

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The Supreme Court in Shankar Kisanrao Khade v. State of Maharashtra13 also referred the
administration of clemency powers by the executive under Articles 72 and 161 of the
Constitution of India in death cases to the Commission for its consideration.

The State and Central Governments have powers to commute death sentences after their final
judicial confirmation. This power, unlike judicial power, is of the widest amplitude and not
circumscribed, except that its exercise must be bona fide.

11 T.V.Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68.

12 SherSingh v. State of Punjab, (1983) 2 SCC 344
13 Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546.

Clemency powers usually come into play after a judicial conviction and sentencing of an
offender. In exercise of these clemency powers, the President and Governor are empowered to
scrutinize the record of the case and differ with the judicial verdict on the point of guilt or
sentence. Even when they do not so differ, they are empowered to exercise their clemency
powers to ameliorate hardship, correct error, or to do complete justice in a case by taking into
account factors that are outside and beyond the judicial ken.

CONCLUSION

The death penalty does not serve the penological goal of deterrence any more than life
imprisonment. Further, life imprisonment under Indian law means imprisonment for the whole
of life subject to just remissions which, in many states in cases of serious crimes, are granted
only after many years of imprisonment which range from 30-60 years.

Retribution has an important role to play in punishment. However, it cannot be reduced to

vengeance. The notion of “an eye for an eye, tooth for a tooth” has no place in our
constitutionally mediated criminal justice system. Capital punishment fails to achieve any
constitutionally valid penological goals.

In focusing on death penalty as the ultimate measure of justice to victims, the restorative and
rehabilitative aspects of justice are lost sight of. Reliance on the death penalty diverts attention

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from other problems ailing the criminal justice system such as poor investigation, crime
prevention and rights of victims of crime. It is essential that the State establish effective victim
compensation schemes to rehabilitate victims of crime. At the same time, it is also essential
that courts use the power granted to them under the Code of Criminal Procedure, 1973 to grant
appropriate compensation to victims in suitable cases. The voices of victims and witnesses are
often silenced by threats and other coercive techniques employed by powerful accused persons.
Hence it is essential that a witness protection scheme also be established. The need for police
reforms for better and more effective investigation and prosecution has also been universally
felt for some time now and measures regarding the same need to be taken on a priority basis.

In the last decade, the Supreme Court has on numerous occasions expressed concern about
arbitrary sentencing in death penalty cases. The Court has noted that it is difficult to distinguish
cases where death penalty has been imposed from those where the alternative of life
imprisonment has been applied. In the Court's own words "extremely uneven application of
Bachan Singh has given rise to a state of uncertainty in capital sentencing law which clearly
falls foul of constitutional due process and equality principle". The Court has also
acknowledged erroneous imposition of the death sentence in contravention of Bachan Singh
guidelines. Therefore, the constitutional regulation of capital punishment attempted in Bachan
Singh has failed to prevent death sentences from being "arbitrarily and freakishly imposed".

BIBLIOGRAPHY

• SCC online Web Edition.

• EBC Reader.
• Law Commission Reports