This Article is written by Ahaana Chowdhry, a Third-Year Law Student of Indian Institute of Management, Rohtak

Capital Punishment in India

Capital punishment dates back to history. The absence of capital punishment in any nation worldwide is unfeasible; countries that do not employ the death penalty may still have legislation regarding the same. In 1931, Shri Gaya Prasad Singh made a notable attempt to introduce a bill aimed at abolishing capital punishment for offenses under the Indian Penal Code. However, the proposal lacked the necessary support. Despite such early efforts, India continues to impose the death penalty for the most heinous crimes. Article 21 of the Indian Constitution guarantees the "protection of life and personal liberty," asserting that no person shall be deprived of life or personal liberty except by established legal procedures. This constitutional provision safeguards the right to life for every Indian citizen.[1]

A significant legal development occurred in the case of "Mithu vs the State of Punjab.[2]," where the Supreme Court struck down Section 303 of the Indian Penal Code, which mandated a death sentence for offenders. The constitutional bench held the view that Section 303 violated the principles of Article 14[3] and Article 21[4] In the Indian Constitution.

Despite global movements advocating for the abolition of the death penalty, India has consistently voted against United Nations General Assembly resolutions calling for its prohibition. The Indian government justifies retaining the death penalty as a deterrent for individuals deemed threats to society. The Supreme Court, in landmark cases such as "Jagmohan Singh vs State of Uttar Pradesh[5]", "Rajendra Prasad vs State of Uttar Pradesh[6]", and "Bachan Singh vs State of Punjab[7]", has upheld its constitutional validity.

Rarest of Rare Cases

When Bachan Singh v. State of Punjab[8] was decided, it was a landmark decision that established the standards for what would be considered a "rarest of rare", case. The SC thought that the administration of the death penalty should be reserved for situations in which the possibility of imposing a sentence of imprisonment for life is "unquestionably foreclosed." How this decision was arrived at was entirely up to the discretion of the court. To determine whether or not justice will be served if a sentence that is less severe than the death penalty is handed down, it is necessary to create a balance sheet that considers both the mitigating and aggravating circumstances of the specific case. To begin, two essential questions need to be answered. The first question is whether or not there is something about the crime that is not typical, which would make the sentence of life imprisonment in prison insufficient and would make the use of the death penalty necessary. To the second question, does the crime involve circumstances that are so severe that, there is no other option but to, implement capital punishment, after giving maximum weight to mitigating factors that favour the perpetrators engaged in a particular case?

Process of Awarding Death Penalty in India

The imposition and execution of the death penalty in India encompass a series of legal phases that guarantee compliance with procedural and constitutional safeguards.

The judge renders the judgment after the conclusion of criminal proceedings as stipulated in the Code of Criminal Procedure. If the accused is found guilty, a compulsory pre-sentencing hearing is conducted by Section 235. In addition to mandating special circumstances for capital punishment, the Code emphasizes that life in prison is the norm and the death penalty is the extreme circumstance.

The confirmation of the death sentence by the High Court after the decision and sentencing by the Court of Sessions is a prerequisite for its validity. The High Court has the authority to vacate the conviction, overturn the death sentence, annul the sentence, or mandate a new trial. In addition, the court has the authority to increase the sentence to capital punishment depending on particular provisions. An opportunity is afforded to the accused to provide justifications for the aforementioned enhancement.

Under Article 136, an appeal may be lodged with the SC via SLP if the High Court confirms a death sentence. Considering the issues at hand, the Supreme Court exercises discretion in determining whether to grant special leave. Instead of summarily dismissing SLPs involving death sentences, the court has placed greater emphasis on the requirement that justifications be provided.

Within thirty days of the SC confirming the death sentence, an individual may submit a petition for re-examination. By its inherent authority, the Supreme Court may grant a curative petition in cases involving accusations of partiality or violations of natural justice. Unless otherwise ordered, the curative petition is heard by the same bench or the three senior-most justices without oral arguments.

The President and Governor are endowed with the constitutional authority to grant pardons, as stated in Article 72[9] And 161. Clemency proceedings offer a glimmer of optimism regarding the possibility of commuted execution. Legal matters about petitions for clemency frequently entail protracted proceedings, wherein the Supreme Court evaluates excessive delays as a mitigating circumstance in commutation requests. When mercy petitions are filed, the courts take into account intervening circumstances including solitary confinement, mental illness, and trauma.

When the death penalty is in effect, a death warrant, also known as a "black warrant," is issued. This warrant's format is specified in Form No. 42 of the CrPC. The death warrant is submitted to the court for certifying the execution after being addressed to the penitentiary superintendent. The issuance of a death warrant before the depletion of legal remedies is considered a grave breach of the law, per the ruling of the Supreme Court.

A bifurcated trial system is established by Section 235(2) of the Code of Criminal Procedure (CrPC), which differentiates between the sentencing and conviction proceedings. In numerous decisions, the Supreme Court has underscored the significance of adopting a comprehensive approach when determining sentences.

The Court's interpretation of Section 235(2) in the August 1976 case of Santa Singh v. State of Punjab[10] mandated that the accused be granted an opportunity to present circumstances about the sentence, which went beyond mere oral proceedings. Infractions of this provision constituted a significant irregularity, which was regarded as incurable under Section 465 of the CrPC. A remand was granted to provide the accused with the opportunity to present any arguments they had concerning the sentence.

In April 1977, the case of Dagdu v. State of Maharashtra[11] Established that the absence of a "hearing" regarding the accused's sentencing does not automatically result in remand to the trial court. The superior court may rectify the violation if the trial court fails to hear the defendant by conducting an authentic and impactful hearing regarding the sentence. To provide the defendant with ample opportunity to present all pertinent information regarding the sentence, the court may adjourn to do so.

The Court, in Mukesh v. State of NCT of Delhi[12], deliberated on the defendant's contention that the trial judge neglected to consider mitigating and aggravating situations about each defendant individually. In light of prior precedents, the Court delineated two approaches to address deficiencies in sentencing: remanding the case or ordering the defendants to provide essential documentation and present arguments regarding the sentence. By selecting the second course of action, the court granted the defendant an opportunity to present affidavits and documents that detailed mitigating circumstances. This methodology facilitated an exhaustive evaluation of sentencing elements, thereby guaranteeing a just and all-encompassing sentencing procedure.

Analyzing the Ajmal Kasab Case

Ajmal Kasab, who was rescued alive during the 2008 Mumbai attacks, initially pretended to be deceased but subsequently transformed into an adept informant. The individual revealed the complex strategies employed in the attacks, which encompassed the deliberate targeting of Israelis at Nariman House and a disconcerting intention to duplicate the events of September 11 at the Taj Hotel. He claimed that promised rewards and poverty motivated his actions. At first, Pakistan explicitly rejected his nationality; however, they ultimately accepted in the face of corroborating evidence and Kasab's confession, which were gathered by Indian police. The police then traced his way and verified his assertions through recovered items and village visits. It was difficult to obtain legal representation due to ethical concerns and intimidation from organizations such as the Shiv Sena, which effectively silenced many attorneys. Nevertheless, in adherence to the principles of an impartial trial, the Chief Justice of India emphasized the importance of legal counsel[13]. Amidst resistance, Anjali Waghmare assumed the role of Kasab's advocate, ensuring that the legal proceedings proceeded despite the seriousness of his offenses.

The trial of Ajmal Kasab was a protracted and intricate procedure. Initially submitting a not-guilty plea, he subsequently submitted a guilty plea before retracting both accusations with contradictory accounts. Although accounts of eyewitnesses and CCTV footage contradicted shifting narratives, substantial evidence confirmed his involvement. He was indicted on charges of murder, conspiracy, and instigating war against India. Following the denial of all appeals, both the lower tribunal and the SC imposed the death penalty. After the President denied Kasab's plea for clemency, he was notified of his impending execution on November 12th. On November 19th, he was transferred to Yeravda Jail in Pune via a covert operation. He was hanged at 7:30 AM on November 21st, after delivering prayers during his last moments.[14]. Following preliminary deliberations regarding maritime burial, Kasab was ultimately placed in Yeravda Jail.

Despite the restrained official comments, a LeT commander praised Kasab as a martyr and influential figure, raising concerns about potential future attacks. The Taliban escalated tensions by issuing threats of retaliation and insisting on the return of Kasab's body. The Home Minister of Maharashtra, on the other hand, responded to these threats with a strong position against any potential violation of Indian territory[15]. This comprehensive response highlighted the intricate emotions surrounding Kasab's execution and the ongoing security concerns it generated for all parties involved. A complex debate was sparked by the death penalty imposed on Ajmal Kasab. Justification for victims, potential deterrence against future assaults, and societal closure are emphasized in its support. Conversely, proponents of the punishment emphasize its inherently inhumane nature, ineffectiveness as a deterrent, the possibility of executing an innocent person, and the state's inadequate jurisdiction to terminate life. Furthermore, the concealment surrounding the execution gives rise to ethical concerns, as transparency is regarded as vital for fostering trust and accountability in the justice system.

The execution of Ajmal Kasab was surrounded by a veil of secrecy, leading to a wide range of discussions and debates. Authorities cited security concerns, preventing glorification, and avoiding media frenzy as reasons for their actions. In the end, this case brings up significant concerns regarding the ethical consequences of keeping high-profile executions confidential. It highlights the importance of open dialogue to guarantee that future procedures maintain transparency and public confidence.

Is Imposition of Death Penalty in Violation of Human Rights Standards?

Arguments revolve around the concept that the death penalty is a severe and violent type of punishment that violates fundamental human rights. Regarding the application of the death penalty to members of marginalized groups, such as the underprivileged and members of minority groups, as well as the likelihood of false convictions and executions, concerns have been expressed in the research on human rights. The material that has been revealed also brings to light questions regarding how inmates on death row are treated and the nature of the institutions in which they are housed.[16]

As stated in Article 5 of the UDHR, 1948 " No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment."[17] The General Assembly of the UN thought that every nation that has implemented the death penalty should adhere to stricter procedural assurance standards and that the approach should be rational, sensible, and fair.

The thirteenth “European Convention for the Protection of Fundamental Rights and Human Rights” was made available for a substantial number of individuals to sign to revoke the practice of capital punishment. This discipline is widely regarded as one of the most despicable, cruel, and inhumane, as it violates the human rights of transgressors as outlined in Article 3 of the European Convention on Human Rights.

According to UDHR Article 3, "every individual has a lawful right of liberty, securing themselves and living their respective lives."[18] The penalty imposed on lawbreakers varies by state. The fundamental tenet of discipline is the prevention of crimes in the eyes of the masses.

Disciplines encompass a multitude of theories, including preventive theory, deterrent theory, retributive theory, and reformative theory.

Rules were established by the Economic and Social Council of the UN about the imposition of capital punishment, which are outlined as follows:

1. The imposition of capital punishment should never be motivated by malice.

2. The imposition of capital punishment should only be necessary for grievous offenses; therefore, India adheres to the guidelines of the UN by imposing the death penalty exclusively for heinous crimes.

3. Individuals who are of unsound mind or are pregnant will not be subject to the death penalty.

4. A person under the age of sixteen shall not be subject to capital punishment.

5. The capacity to request in the upper court must be obtained.

6. Article 14 of the International Covenant on Civil and Political Rights states that the death penalty may only be imposed following a reasonable and just procedure.

7. A review of the effects of the death penalty will not be planned.[19]

The Indian judiciary applies all UNECOSOC[20] rules when imposing capital punishment in exceptionally rare cases to avoid negatively influencing the general population worldwide, ensuring compliance with UNECOSOC[21] regulations. Article 21[22] of the Indian Constitution guarantees the fundamental right to life but is subject to lawful procedures. Thus, if an individual receives the death penalty under the established legal framework, it is deemed fair and just.

While international perspectives consider capital punishment a violation of human rights, it aligns with the legality of Article 21[23] In the Indian Constitution and is not deemed unjust. In the Indian context, public opinion suggests that if an individual repeatedly poses a threat to society due to criminal activities, taking their life may be deemed reasonable by constitutional authorities. This perspective not only considers the potential violation of the accused's human rights but also reflects on the rights of the victim.

Addressing the need for retribution, strict laws are necessary to prevent societal turmoil and uphold order. Capital punishment, viewed as beneficial for society, serves as a deterrent against heinous crimes. Striking a balance between individual rights and societal welfare, stringent measures are essential to prevent actions that could disrupt social harmony and lead to the breakdown of the legal system. Therefore, the imposition of capital punishment is perceived as a necessary and effective means of maintaining social order and preventing potential chaos arising from criminal activities.

Conclusion

In the pursuit of promoting justice and safeguarding human rights, the continuous dialogue surrounding capital punishment necessitates a meticulous examination of its ramifications on the individual as well as the more extensive ideals of justice and human dignity. In the end, societies across the globe continue to face the critical challenge of striking a balance that addresses the intricacies of crime and punishment while upholding the sanctity of human life.

After conducting an extensive analysis of this controversial matter, I am compelled to argue that the death penalty ought to be a recognized component of legal discourse and a viable alternative, as delineated in the Indian Penal Code, to be imposed in the rarest of rare circumstances.

Would it have been equitable to re-inmate the six individuals responsible for the abhorrent crime of Nirbhaya?[24] For years in life imprisonment, funded by taxpayers' hard-earned money, while also affording them legal representation and covering their legal fees?

The Government of India's vehement opposition to anti-death penalty resolutions at the United Nations demonstrates that the death penalty is an essential legal sanction that should only be applied in exceptional circumstances, to protect the general public and uphold fundamental values of civil society.

References

[1]Ms. Ravi, Death Penalty in India: A critical Study, 10, IJCRT, c797, c798, (2022).

[2]Mithu v. State of Punjab, AIR 1983 SC 473 : 1983 Cri LJ 811.

[3]INDIA CONST. art. 14.

[4]INDIA CONST. art. 21.

[5]Jagmohan Singh v. State of U.P.,[1973] 1 SCC 20.

[6]Rajendra Prasad v. State of Uttar Pradesh, [1979] 3. S.C.R. 78.

[7]Bachan Singh vs State of Punjab, 1980 2 SCC 684(10), AIR 1980 SC 898.

[8]Bachan Singh vs State of Punjab, 1980 2 SCC 684(10), AIR 1980 SC 898.

[9]INDIA CONST. art. 72.

[10]Santa Singh v State of Punjab, AIR 1976 SC 2386.

[11]Dagdu v. State of Maharashtra ,1981 AIR 1218, 1981 SCR (3) 288.

[12]Mukesh v. State of NCT of Delhi, (2017) 6 SCC 1.

[13]LSE Research Online, https://eprints.lse.ac.uk/54914/1/Thambisetty_Mercy%2C%20Fairness_India%20at%20LSE.pdf (last visited Jan. 31, 2024).

[14]Federico Mayor, International Commission against the Death Penalty Opinion piece: India, ICOMDP, https://icomdp.org/wp-content/uploads/2020/10/ICDP-India-Open-Letter-07.12.2012.pdf.”

[15]UNHCR, https://webarchive.archive.unhcr.org/20230530011136/https://www.refworld.org/docid/512729862.html (last visited Feb. 6, 2024).

[16]Aarushi Dhiryan, Death Penalty: A Necessary Evil or a Violation of Human Rights?, Volume 11 ~ Issue 6, Journal of Research in Humanities and Social Science, 3 (2023), https://www.questjournals.org/jrhss/papers/vol11-issue6/11060110.pdf.

[17]UNIVERSAL DECLARATION OF HUMAN RIGHTS, https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited Jan. 23, 2023).

[18]UNIVERSAL DECLARATION OF HUMAN RIGHTS, https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited Jan. 23, 2023).

[19]Saiba Meher Rajpal, A Study on Execution of Death Penalty, 7 Issue-3 2021, IJARIIE, 518 (2021), http://ijariie.com/AdminUploadPdf/A_Study_on_Execution_of_Death_Penalty_ijariie14218.pdf.

[20]United Nations Economic and Social Council.

[21]United Nations Economic and Social Council.

[22]INDIA CONST. art. 21.

[23]INDIA CONST. art. 21.

[24]Mukesh v. State of NCT of Delhi, (2017) 6 SCC 1.