Capital punishment is the State practice of putting someone to death through execution, as punishment for a specific crime after a proper legal trial. While the nature of crimes punishable by death penalty varies across the world, they are generally of a serious nature including murder, treason, espionage, war crimes, crimes against humanity and genocide. At the international level, capital punishment is most often carried out using lethal injections. Other methods include hanging, gas chambers, electrocution, firing squads and beheadings. Capital punishment in India is mostly carried out through hanging in accordance with the Criminal Procedure Code (CrPC). The Army Act, 1950 however also includes shooting as an official method of execution.
The latest instance of capital punishment in India was the hanging of the four 2012-Delhi Gang rape and murder convicts (Pawan Gupta (25), Vinay Sharma (26), Akshay Kumar (31), and Mukesh Kumar (32)) on March 20th, 2020. This came after a five year hiatus in state execution, when Yakub Memon was hanged in July 2015 on convicted charges of terrorism. Since independence, 724 prisoners have been executed in the country, half of which are from the state of Uttar Pradesh, followed by Haryana (90) and Madhya Pradesh (73). The year 2018 saw the highest number of death sentences (162) imposed by trial courts in the country in nearly two decades. The Apex court however, commuted 11 out 12 death penalty cases to life imprisonment. In 2019, the Supreme Court pronounced 27 decisions in capital cases including 6 confirmations, 17 commutations, 3 acquittals and 2 remands for fresh trial. As of 31st December 2019, 378 prisoners were on death row in India.
Capital punishment as a concept is as old as it is contested. Not only is there evidence for its usage by ancient civilizations in Greece and Rome, it has also found sanction on occasion by the world’s major religions. Under the British Empire in India, the issue was first raised in 1931 when a member from Bihar, Shri Gaya Prasad Singh sought to unsuccessfully introduce a Bill in the Assembly to abolish the punishment of death for the offences under the Indian Penal Code.
Capital Punishment: Assessment
The most common argument in support of capital punishment is that of retribution wherein all guilty people deserve to be punished in proportion to the severity of their crime. The idea that death penalty as a practice works to deterrent prospective crimes and criminals is also used as a justification. The less controversial arguments in favor of capital punishment include prevention of re-offending, and closure and vindication for the victims’ families.
The logic of retribution is laced with moral objections along with varied understanding of capital punishment more as vengeance than retribution. Similarly, the logic of deterrence does not always work, especially in cases where punishment is delayed and long drawn. In such cases, while the prisoner undergoes anticipatory suffering, the message of deterrence may be lost over time. More pertinent objections to death penalty include the loss of human life, violations of the right to live, the irreversible nature of the punishment with concerns over execution of innocent citizens. Additionally, another argument suggests that life imprisonment without possibility of parole causes much more suffering to the offender than a painless death after a short period of imprisonment.
The International Scenario
As of December 2017, 142 countries in the world had abolished capital punishment. While 29 of these retained the punishment in law, no one had been executed in the last 10 years; only 56 countries continue to retain and impose death penalty. Majority of the retentionist nations lie in the twin continents of Asia and Africa.
The highest number of prisoners on death row in the world is in Pakistan (4864 cases in 2018), followed Bangladesh at 1500 death sentences. In terms of execution, Iran, Saudi Arabia, Vietnam and Iraq accounted for over 80 percent of total executions (690) in 2018.
Institutional Recommendations on Capital Punishment
The Office of the High Commissioner for Human Rights, UNHRC with its mandate to promote and protect all human rights, advocates for the universal abolition of the death penalty. The UN Human Rights Office argues this position notably in light of the fundamental nature of the right to life; the unacceptable risk of executing innocent people; and the absence of proof that the death penalty serves as a deterrent to crime.
Amnesty International holds that the death penalty breaches human rights, in particular the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment. Both these rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948. The organization therefore opposes capital punishment in all cases without exception. It recommends an immediate moratorium on executions pending abolition of the death penalty.
Other recommendations of the organization include abolition of all provisions in legislation which provide for mandatory death sentences, ensuring openness, transparency and informed debate on the issue, providing compensation and care to those found to have been the victims of miscarriages of justice in capital cases, and an independent study on the extent to which standards for fair trial have been complied with in capital cases by countries in the last two decades.
Death Penalty in India
The IPC prescribes death penalty for offences like waging war against Government of India (Sec. 121); abetting mutiny actually committed (Sec. 132); giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194); and murder (Sec. 302). It is also applicable for crimes under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, Unlawful Activities (Prevention) Act 1967, Maharashtra Control of Organised Crime Act (MCOCA) 1999, and the controversial Narcotic Drugs and Psychotropic Substances (NDPS) 1985, among others. In all, there are 18 central legislations which include offences punishable by death.
The Parliament expanded the scope of death penalty in August 2019 by introducing it in cases of rape of girls below 12 years under Protection of Children from Sexual Offences (POCSO) Act. Since 2016, the proportion of death sentences for sexual offences by sessions courts has been steadily increasing. Lower courts in India have tended to dole out the death penalty with increasing frequency in the recent past.
Recourse for Prisoners on Death Row
Increased number of penalties in effect leads to higher number of appeals and pardon petitions. After conclusion of the judicial process, a request for pardon can be filed either with the Governor (Art 72) of the concerned state or with the President (Art 161) in case of Union territories (via the Lieutenant-Governor/Chief Commissioner/Administrator). The clemency powers are subject to limited judicial review. Also, in case of rejection of pardon request, a writ petition to review the decision may be filed in the Supreme Court.
In case of rejection of state petitions, the same is forwarded to the President, who is always bound by the advice rendered by the Ministry of Home Affairs on matters of pardoning prisoners on death penalty. The requisite authority is not obliged to provide an explanation for acceptance or rejection of a petition. There is however no upper limit on the number of pardon petitions that may be filed, provided a new and substantial ground is presented in each. In the last nine years, the President commuted at least 20 death sentences to life imprisonment, based on the recommendations of the Ministry of Home Affairs (MHA).
Evolution of Legal Procedures on Capital Punishment
Over the years, new insights and perspectives on capital punishment have emerged from judgments of the Supreme Court which have led to the consolidation of the current laws on the punishment.
In Jagmohan Singh v. State of Uttar Pradesh, 1973, the Supreme Court held that according to Article 21 deprivation of life is constitutionally permissible if it is done according to the procedure established by law.
In the 1979 case of Rajendra Prasad v. State of Uttar Pradesh, the SC held that, if the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated. It also pointed out that the special reasons for giving the death sentence cannot pertain only to the crime but must account for human rights and the fundamental freedoms given in the Constitution.
The Bachan Singh v. the State of Punjab case in 1980 involving a batch of writ petitions challenging the constitutional validity of the death penalty as an alternative punishment for murder under Section 302, IPC led to the judgment that death penalty was constitutional only when applied as an exceptional penalty in “the rarest of the rare” cases. Social normative outrage leading to collective social approval of capital punishment lies at the heart of the R-R-R test. Murders committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community may be considered as rarest of the rare.
The concept of “rarest of the rare” cases was elaborated on and certain considerations to determine whether a case came under the category of R-R test were listed by the SC in Machhi Singh v. State of Punjab 1983. The considerations included These were: the manner of commission of murder, motive of the murder, anti-social or abhorrent nature of the crime, magnitude of the crime, and personality of the victim. The courts before imposing capital punishment must answer whether the nature of crime rendered life imprisonment inadequate.
Deena v. Union of India, 1983 challenged the constitutional validity of Section 354 (5) of CrPC (execution of death sentence by hanging). The SC rejected this and cited that no particular method had been shown to have any distinct or demonstrable advantage over hanging. The primary consideration includes ensuring that the process of hanging does not become a punishment of its own due to any form of torture and loss of dignity.
T.V. Vatheeswaran v. State of Tamil Nadu, 1983 paved the way for commutation of death sentence in case of inordinate delay in executing a sentence of death as it violates Article 21 of the India Constitution. Delay in disposal of mercy petition, and
In Shatrughan Chauhan v. Union of India, 2014, the SC ruled that the execution of people suffering from mental illness would be unconstitutional. It also noted that keeping a convict in suspense while consideration of his mercy petition by the President for many years causes agony, it creates adverse physical conditions and psychological stresses on the convict under sentence of death.
National (Domestic) Institutional Recommendations on Capital Punishment
In the aftermath of independence the Constituent Assembly left the issue capital punishment to the Supreme Court and the Parliament inspite of Dr B R Ambedkar’s insistence on its abolition on moral grounds. The Law Commission in its 35th Report in 1967 rejected the abolition of death penalty.
In 2013, the Justice Verma Committee which was formed to look at crimes on women recommended enhanced punishment include imprisonment for remainder of one’s life. However, it was against the death penalty even in the rarest of the rare rape cases.
In its 262nd report in August 2015, the Law Commission recommended abolition of death penalty, except in terror cases citing that it does serve the penological goal of deterrence any more than life imprisonment. It also cited the abolition of capital punishment by 140 other nations, as well as its arbitrary and flawed application.
In 2016, in response to a Private Member’s Resolution in the Rajya Sabha, the government stated that while capital punishment is used only as an ‘unavoidable alternative’, prevailing situations in the country do not allow for its abolition.
Way Forward for India
Procedural safeguards based on recommendations of the Law Commission should also be put in place. An appeal to the SC in case death penalty is awarded (including by Military court) should be compulsory. Cases of death penalty should be heard by a Bench of five judges and the judgment should be based on unanimous decision.
In the best possible scenario, states should ensure creation of circumstances which prevent crime, and render capital punishment irrelevant. The punishment should be abolished in a phased manner, and be replaced by life imprisonment as the highest punishment. For the duration that it continues to exist, miscarriage of justice should be prevented and capital punishment and pardon petitions should not be used for political interests by the state.