DEATH SENTENCE IN INDIA LEGAL? SUPREME COURT GUIDELINES

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The death sentence, also known as capital punishment, involves the execution of a convicted individual as a result of a court’s judgment for committing a serious criminal offense. It is the harshest penalty that can be imposed on an accused person and is usually reserved for the most severe crimes, such as murder, rape, and treason. Critics consider it to be an inhumane practice, leading to widespread moral debates. Consequently, criminologists and human rights advocates across the globe have consistently called for its abolition.

NEW DELHI : Justice Krishna Iyer in the judgment of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 ,made the following observation ,

“Every saint has a past and every sinner a future, never write off the man wearing the criminal attire but remove the dangerous degeneracy in him, restore his retarded human potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the repressive, though hidden, injustice of the social order which is vicariously guilty of the criminal behavior of many innocent convicts. Law must rise with life and jurisprudence responds to humanism.”

WHAT IS CAPITAL PUNISHMENT?

Capital punishment, commonly known as the death penalty, refers to the execution of a convicted offender following a court’s judgment for committing a criminal offense. It represents the most severe punishment that can be imposed on an accused individual and is typically reserved for the gravest crimes, such as murder, rape, and treason.

Supporters argue that the death penalty serves as an appropriate punishment and an effective deterrent for the most heinous crimes. However, critics view it as an inhumane practice, sparking significant moral debate. As a result, criminologists and social activists worldwide have long advocated for its abolition.

DEATH PENALTY AS A PUNISHMENT IN INDIA

The death penalty has consistently been a topic of debate in India. Historically, it was the rule, with life imprisonment being an exception. However, after 1947, when India became a democratic state, the death penalty transitioned into an exception. It remains the highest form of punishment in the country and is administered by hanging.

Section 53 of the Indian Penal Code (IPC), 1860, ( Now , Section 4 of BNS, 2023) provides for the death penalty, while Section 368 of the Code of Criminal Procedure empowers High Courts to confirm such sentences ( Now, Section 409 of the BNSS,2023)

India is among 78 countries that have retained the death penalty. According to a study conducted by the National Law University in Delhi, 755 individuals have been executed in India so far.

The Indian Penal Code,1860 prescribes the death penalty for several offenses:

Section 121: Treason for waging war against the Government of India.
Section 132: Abetment of mutiny that is actually committed.
Section 194: Perjury leading to the conviction and execution of an innocent person.
Section 195A: Threatening or inducing someone to provide false evidence, resulting in the conviction and execution of an innocent person.
Section 302: Murder.
Section 305: Abetment of suicide by a minor, an insane person, or an intoxicated individual.
Section 307(2): Attempted murder by a person serving a life sentence.
Section 364A: Kidnapping for ransom.
Section 376A: Rape and injury causing death or leaving the victim in a persistent vegetative state.
Section 376E: Certain repeat offenders in cases of rape.
Section 396: Dacoity with murder

The Bhartiya Nyaya Sanhita,2023, on the other hand , provides for Death Penalty in the Following offences:

Section 101: Intentional causing of death (Murder).
Section 70(2): Gang rape of a woman under 18 years of age.
Section 101(2): Murder committed by a mob of five or more persons based on identity markers such as caste, language, or belief.
Section 109: Engaging in or committing serious offenses as part of an organized crime syndicate.
Section 111: Committing acts of terrorism that result in death or significant harm.
Section 110: Kidnapping for ransom, especially when it results in the victim’s death.
Section 106: Dacoity accompanied by murder.
Section 70(3): Certain repeat offenders in rape cases (those previously convicted who commit the offense again).

Some other criminal statutes that provide for the death penalty as a form of punishment:

• Direct or indirect abetment of sati is punishable with Death penalty under the Commission of Sati (Prevention) Act, 1987.
• Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
• Besides these, rape of a minor below 12 years of age is punishable with death under Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
• Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offences committed by members of the armed forces.

In addition to the legislative preference for a life sentence, the 1973 Code established the right for the accused to be heard regarding the sentence by introducing Section 235(2). This provision led to the division of a trial into two stages: the determination of guilt and the sentencing phase.

The Bharatiya Nagarik Suraksha Sanhita, which replaced the 1973 Code in 2024, maintains these provisions. In the Bachan Singh case, the majority opinion heavily relied on Sections 354(3) and 235(2) to conclude that the death penalty was protected from being arbitrary.

READ ALSO : Apex Court Establishes Guidelines To Expedite Mercy Petitions & Death Penalty Executions

CONSTITUTIONALITY AND LEGALITY OF DEATH PENALTY IN INDIA

The constitutionality of the death penalty was first challenged in 1973 in the case of Jagmohan Singh v. State of UP .

It was argued that the death sentence violated the freedoms guaranteed under Article 19(1)(a) to (g) and that the unfettered discretion given to judges was contrary to Article 14 of the Constitution. Additionally, the absence of a clear procedure in the Code of Criminal Procedure (CrPC) for determining whether life imprisonment or the death penalty should be imposed was seen as a violation of Article 21.

The Five-Judge Bench, however, dismissed these arguments and upheld the constitutional validity of the death penalty, ruling that the deprivation of life is constitutionally permissible.

The bench primarily relied on the 35th Law Commission Report (1967) and the fact that several bills or resolutions aimed at abolishing the death penalty had been rejected in Parliament. They concluded that due to factors like the disparity in education and morality levels, the vastness of the country, its diverse population, and the need to maintain law and order, India could not risk abolishing capital punishment at that time.

Although the Supreme Court resolved this controversy in 1973, the constitutionality of the death penalty continued to be contested in subsequent cases.

The case Ediga Anamma v. State of Andhra Pradesh is a significant judgment concerning the death penalty for female offenders. Justice Krishna Iyer reduced the death sentence to life imprisonment, considering factors such as gender, age, socio-economic background, and psychological pressures. The judgment emphasized that the crime alone should not be the sole criterion for imposing the death penalty; other factors should also be taken into account. Justice Krishna Iyer, in reviewing the history of capital punishment, observed that its evolution reflects the shift from violence to humanism, noting that the geography of the death penalty shows its gradual decline worldwide.

The constitutionality of the death penalty was once again challenged in the case of Bachan Singh due to three key developments. Firstly, the Code of Criminal Procedure (CrPC) was revised in 1973, and Section 354(3) was introduced, making the death sentence an exception rather than the default punishment for murder. Justice P.N. Bhagwati criticized the death penalty, deeming it unconstitutional and a violation of human rights.

Justice Bhagwati outlined three key reasons for considering the death penalty as a cruel, inhuman, and disproportionate punishment.

First, unlike other forms of punishment, it is irreversible. Given the flaws within the Indian criminal justice system—such as inadequate investigations, false or misleading testimonies, the risk of wrongful prosecution, and the lack of sufficient scientific methods—the possibility of executing an innocent person cannot be dismissed.

Second, the entire experience of being sentenced to death, awaiting execution, and the final act of execution causes immense mental and physical anguish, which he argued should not be constitutionally permitted.

Finally, Justice Bhagwati believed that the death penalty does not serve any legitimate “penological goal” and undermines the objective of reform. He pointed out that there is no reliable way to determine if a person is beyond reformation. He argued that using the death penalty as a form of “denunciation of wrongdoing” or retribution was merely a guise for revenge, which contradicts the principles of human dignity. Drawing from research across different legal systems, he firmly rejected the idea that the death penalty is a more effective deterrent than life imprisonment.

In the landmark case of Bachan Singh v. State of Punjab (1980), the Supreme Court introduced the renowned Doctrine of “Rarest of the Rare Case”, which holds that the death penalty should only be awarded in the rarest circumstances, considering the nature of the crime and the background of the accused. However, what precisely constitutes a “rarest of rare case” or “special reasons” was left undefined by the Supreme Court.

Even years later, the lack of clarity regarding “Aggravating and Mitigating Circumstances” remains a challenge. The case Mithu v. State of Punjab marked another important step in the evolution of death penalty jurisprudence. The Court declared Section 303 of the Indian Penal Code (IPC), which mandated the death penalty for certain offenses committed by life convicts, as unconstitutional. The Court ruled that Section 303 was arbitrary, as it presumed that life convicts were inherently more dangerous than others, thus violating the right to equality under Article 14.

Additionally, it contravened Article 21, which guarantees that no person shall be deprived of life or liberty except through a lawful procedure. The provision was struck down because it removed the court’s discretion in sentencing.

In Deena v. Union of India, the Court addressed the constitutional validity of hanging as a method of execution. It ruled that hanging was not a cruel method and did not violate Article 21 of the Constitution. However, in Attorney General of India v. Lachma Devi, the Court took a different stance and prohibited public hangings, declaring them unconstitutional. The Court emphasized that if any jail manual permitted public hangings, it would be deemed violative of Article 21.

In Allauddin Mian v. State of Bihar, the Court established that after convicting a defendant, the trial court should adjourn the case and allow both the prosecution and defense to present relevant material regarding sentencing. Justice Ahmadi further stated that if a judge cannot reasonably justify imposing the harsher of the two possible sentences, the lower sentence should be chosen.

ARGUMENTS IN FAVOUR OF DEATH PENALTY

Retribution:

• People should be punished in proportion to the severity of their crime.
• True justice involves wrongdoers suffering in a way that fits the seriousness of their actions.
• In cases of murder, the criminal is seen as deserving of the death penalty as a fitting consequence.

Deterrence:

• Capital punishment is justified by the belief that executing murderers will deter others from committing similar crimes.
• It is argued that the death penalty provides closure to the victims’ families.
• Some condemned individuals use their final moments to reflect, express remorse, and experience spiritual transformation.
• Thomas Aquinas believed that accepting the death penalty allowed offenders to atone for their sins and avoid punishment in the afterlife, suggesting that the death penalty can facilitate a form of rehabilitation.

ARGUMENTS- AGAINST DEATH PENALTY

• Deterrence Ineffectiveness:
  • Statistical evidence fails to confirm that the death penalty effectively deters crime.
  • Some individuals who are executed may not have been capable of being deterred due to mental illness or defects.
  • Certain capital crimes are committed impulsively, in such emotional states that the perpetrator does not consider the consequences.
  • Despite the introduction of the death penalty for rape cases (Sec. 376A of IPC) in 2013, rapes continue to occur, with increasing brutality, challenging the notion that the death penalty is an effective deterrent.
• Execution of the Innocent:
  • One of the strongest arguments against capital punishment is the potential for innocent people to be executed due to errors or flaws in the justice system.
  • Amnesty International states that as long as human justice remains fallible, the risk of executing an innocent person cannot be fully eliminated.
• Moral and Legal Opposition:
  • Opponents of the death penalty argue that retribution is immoral and amounts to a sanitized form of vengeance.
  • Most developed countries have abolished the death penalty as a form of punishment.
  • A report by the UN Secretary General to the Human Rights Council revealed that around 170 countries have either abolished or placed a moratorium on the death penalty, or have not carried out executions for over 10 years.
• Lack of Rehabilitation:
  • Capital punishment does not facilitate the rehabilitation of the prisoner or their reintegration into society.

READ ALSO: ‘Yes, Death Penalty Is Constitutional’: AI Lawyer Responds To CJI Chandrachud’s Question 

ALTERNATIVE PUNISHMENT TO DEATH PENALTY

While the death penalty remains legally sanctioned in India, there is an increasing discussion surrounding potential alternatives to capital punishment. The Supreme Court has acknowledged the importance of considering alternative sentences and has assessed various factors in determining the most appropriate punishment.

Rajesh Kumar v. State through Government of NCT of Delhi (2011)
In this case, the Supreme Court stressed the importance of considering life imprisonment as an alternative to the death penalty. The Court held that the death penalty should be imposed only in the rarest of rare instances, when no other punishment would be sufficient. The Court also emphasized the need for proportionality in sentencing, ensuring that the punishment aligns with the severity of the crime.

Rajendra Pralhadrao Wasnik v. State of Maharashtra (2019)
In this case, the Supreme Court reviewed the death sentence imposed for the rape and murder of a minor. The Court highlighted the significance of considering the offender’s individual circumstances and the potential for rehabilitation before imposing the death penalty. The Court recognized that, even if rehabilitation is not possible, a lengthy prison sentence could serve as an acceptable alternative.

These cases reflect the Supreme Court’s evolving approach to the death penalty, showing a growing consideration of alternatives that balance the severity of the crime with the possibility of reform and rehabilitation.

RECENT GUIDELINES TO EXPEDITE MERCY PETITIONS

The Supreme Court on 9th of December issued several directives to expedite the disposal of mercy petitions filed by convicts, mandating the creation of dedicated cells within the home or prison departments of state governments and Union Territories.

A bench comprising Justices Abhay S Oka, Ahsanuddin Amanullah, and Augustine George Masih in the case of State of Maharashtra vs Pradeep Yashwant Kokade (2024 INSC 947 ), emphasized that there must be dedicated cells to promptly process mercy petitions within the timelines set by the respective governments.

These directions were issued while the apex court upheld a Bombay High Court order commuting the death sentences of two convicts in the 2007 Pune BPO employee gang-rape and murder case to life imprisonment of 35 years, citing undue delay in their execution.

The Supreme Court directed that all prisons be informed about the officer-in-charge of the dedicated cell, along with their contact details. The court stated that upon receiving mercy petitions, prison authorities must promptly forward copies to the dedicated cell and request relevant details, such as criminal records and economic conditions, from the concerned police station or investigating agency.

Guidelines for State Governments and Union Territories

• Establishment of Dedicated Mercy Petition Cells: State Governments and Union Territories are directed to create specialized cells within their Home or Prison Departments to manage mercy petitions efficiently. These cells must ensure the petitions are processed within the stipulated timeline. An officer-in-charge will be designated for each cell, and their contact details will be shared with all prisons.
• Involvement of Judiciary Officials: An official from the Law, Judiciary, or Justice Department will be assigned to support the functioning of these cells.
• Information Sharing and Documentation: Prison authorities are required to promptly forward mercy petitions to the dedicated cell and gather information from police stations and investigative agencies. This includes the convict’s background, family details, economic status, incarceration history, and other relevant legal documents. Additionally, jail authorities must provide necessary documentation such as FIRs, arrest details, chargesheets, trial evidence, conduct reports, and court judgments (including English translations, if applicable) to both the cell officer-in-charge and the Home Department Secretary.
• Coordination with Governor and President’s Offices: Mercy petitions must be immediately sent to the Governor’s or President’s Secretariats for further action.
• Use of Electronic Communication: To enhance efficiency, electronic communication, particularly email, should be used wherever possible, except in cases requiring confidentiality.
• Issuance of Executive Orders and Reporting: State Governments must issue executive orders specifying procedures for processing mercy petitions and submit compliance reports to the Supreme Court within three months.

Responsibilities for Sessions Courts

• Monitoring and Record Maintenance: Sessions Courts must maintain detailed records of cases involving death sentences. Once a death sentence is confirmed by the High Court, these cases should be listed promptly in the cause list upon receiving relevant orders from the High Court or Supreme Court.

• Notification to Public Prosecutors: Supreme Court Issues Guidelines On Death Penalty Execution & Mercy Petitions To Avoid Delay In Process
• The courts must issue notices to State Public Prosecutors or investigation agencies to verify the status of any ongoing appeals, reviews, or mercy petitions.

This framework ensures a streamlined and timely process for handling mercy petitions at all levels.

READ THE JUDGEMENT:

Conclusively , deterrence is most effective when the punishment follows the crime promptly. The longer the legal process takes, whether in terms of time or certainty, the less impactful the punishment becomes as a deterrent.

In India, the delayed execution of the rapists in the Nirbhaya case has reduced the deterrent effect of the death penalty. This is why the Hyderabad police encounter in the Disha case received widespread public approval. To address this, there is a pressing need to accelerate investigations through a well-trained and well-equipped police force, supported by fast-track trials, in order to restore public confidence in our legal system.

It is legal to grant death penalty in India , but it depends upon the various mitigating and aggravating circumstances laid down in the case of, Bacchan Singh , Macchi Singh and also the recent guidelines.

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