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Theme: Capital Punishment
Part I. Introduction
On January 21, 2014, the Supreme Court in the case of Shatrughan Chauhan v. Union of India1, commuted death sentences of 15 death convicts to life sentence. These death row convicts approached the apex court as a final resort after their mercy petitions were dismissed by the President of India. The Court in this batch matter held that various supervening circumstances which had arisen since the death sentences were confirmed by the Supreme Court in the cases of these death row convicts had violated their Fundamental Rights to the extent of making the actual execution of their sentences unfair and excessive. Soon after this decision, the Supreme Court in V. Sriharan v. Union of India2, once again invoked this strand of death jurisprudence to commute the death sentences of all the three convicts in the Rajiv Gandhi Assassination case. Likewise, in the Devender Pal Singh Bhullar’s case3, the Court commuted the death sentence of the convict on the ground of inordinate delay in the execution of sentence and mental health problems faced by the petitioner.
These Supreme Court rulings have averted at least 19 imminent executions in all in the recent past. It is to be borne in mind that India before it executed Ajmal Kasab and Afzal Guru last year, had an execution free run for a period of 8 years. This de facto moratorium led many to believe and argue that India must consider the utility and desirability of retaining this most exceptional and absolute penalty. These commutations affected by the Supreme Court have once again energized the debate on death penalty. Once again, people have begun to speculate about the end goal of keeping a penalty such as death sentence on the statute book. The issue has also gathered considerable debate in the mainstream media. Editorials in major newspapers have been published asking for a re-look at death penalty4.
At this juncture, an exhaustive study on the subject would be a useful and salutary contribution to the cause of public debate on this issue. Such a study will also provide a definitive research backed orientation to the law makers and judges on this very contentious issue.
In the last decade death penalty has become a subject-matter of intense focus in the Supreme Court. The Apex Court on various occasions has wrestled with the disparate application of law on death penalty and constitutional fairness implications of the same (see Part IV for a detailed treatment of this theme). A systematic study which would address the queries and concerns of Courts and also presents an international perspective on the issue is much needed. The Court in some of these cases has specifically requested the Law Commission to undertake research in this behalf.
The Supreme Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra5has, in this regard, observed:
“112. 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.” (Emphasis supplied)
Similarly, the Court in Shankar Kisanrao Khade v. State of Maharashtra6 was also concerned with another dimension of the issue of death penalty and rued lack of research on the issue. The Court held:
“148. It seems to me that though the courts have been applying the rarest of rare principle, the executive has taken into consideration some factors not known to the courts for converting a death sentence to imprisonment for life. It is imperative, in this regard, since we are dealing with the lives of people (both the accused and the rape-murder victim) that the courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided. Death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance. Perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.
149. It does prima facie appear that two important organs of the State, that is, the judiciary and the executive are treating the life of convicts convicted of an offence punishable with death with different standards. While the standard applied by the judiciary is that of the rarest of rare principle (however subjective or Judge-centric it may be in its application), the standard applied by the executive in granting commutation is not known. Therefore, it could happen (and might well have happened) that in a given case the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the executive has taken a diametrically opposite opinion and has commuted the death penalty. This may also need to be considered by the Law Commission of India.”(Emphasis supplied)
Part II. Prior Position of the Law Commission on Death Penalty
35th Report (1967)
In 1962, the Law Commission undertook an extensive exercise to consider the issue of abolition of capital punishment from the statute books. A reference to this effect was made to the Law Commission when the third Lok Sabha debated on the resolution moved by Shri Raghunath Singh, Member, Lok Sabha for the abolition of capital punishment. The Law Commission released its 35th report in 1967 recommending retention of death penalty7.
Many of the conclusions arrived at by the Law Commission were based on deductions on general elements of cultural and social life as it existed then. Also, some of the indicators considered by the commission such as those on education, crime rates et al have drastically changed in the last half a century. The following much quoted view of the Law Commission, for instance, is distinctly rooted in the social-political environment of the day and to that extent is very limited in how it can be put to use in the current day context:
“Having regard, however, 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.”
The report also observed that the suggestion that capital punishment may be abolished for a fixed period of time as an experiment was fraught with the risk as between its abolition and reintroduction there could be an intervening era of violence and reintroduction of capital punishment may not have the desired effect of restoring law and order. It is to be noted that India underwent an execution free period of 8 years between 2004 and 2013. These years when India did not see any execution could be considered as a natural experiment which comes close to a de facto moratorium. During this period, crime data from National Crime Records Bureau does not convey any particular spurts in crime rate. But at the same time, we must bear in mind that during this period, death sentences continued to be awarded or upheld by the Courts at the normal rate. To that extent, this period, if at all, can only be considered as a moratorium of sorts only on the actual executions and not on the application of death penalty by Courts and effect thereof on crime rates may have to be considered as such.
The 35th report of the Law Commission observed that the discretion of the Court in the matter of sentence to be awarded in a capital case must be retained and such discretion was by and large being exercised satisfactorily and in accordance with judicial principles. The report observed that “(t)he considerations which weigh or should weigh with the court in awarding the lesser punishment of imprisonment of life (in respect of offences for which the prescribed punishment is death or imprisonment for life), cannot be codified. The circumstances which should or should not be taken into account, and the circumstances which should be taken into account along with other circumstances, as well as the circumstances which may, by themselves, be sufficient, in the exercise of the discretion regarding sentence cannot be exhaustively enumerated.” The report observed that the exercise of discretion may depend on local conditions, future developments, and evolution of moral sense of the community, state of crime at a particular time or place and many other unforeseeable features. It is pertinent to note that the report of the Law Commission predated the landmark judgment in Bachan Singh v. State of Punjab8 which laid down the "rarest of rare" doctrine and held that capital punishment should only be awarded in the “rarest of rare cases” when the alternative option is unquestionably foreclosed. The Court held that aggravating and mitigating circumstances relating to the crime and criminal must weigh in the mind of the Court while sentencing in capital offences.
Therefore, there is a need to examine afresh the guidelines on capital sentencing in light of the "rarest of rare" doctrine. Furthermore, the report of the law commission does not discuss in detail the apprehensions regarding the arbitrary use of the Court's discretion in capital sentencing. In recent years, the Supreme Court has admitted that the question of death penalty is not free from the subjective element and is sometimes unduly influenced by public opinion. In this context it is imperative that a deeper study be conducted to highlight whether the process of awarding capital sentence is fraught with subjectivity and caprice.
The Law Commission in its 35th Report also recommended retaining of section 303 of the Indian Penal Code, which provides for mandatory death penalty. The commission took the following view in this regard:
“Section 303, Indian Penal Code, under which the sentence of death is mandatory for an offence under the section, need not be amended by leaving the question of sentence to the discretion of the Court, or by confining the operation of the section to cases where the previous offence is an offence for which the offender could have been sentenced to death.”
It is to be noted that section 303 of the IPC was held to be unconstitutional by the Supreme Court in Mithu v. State of Punjab9. The court held:
“23. On a consideration of the various circumstances which we have mentioned in this judgment, we are of the opinion that Section 303 of the Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discourage assaults by life convicts on the prison staff, but the legislature chose language which far exceeded its intention.”
Relying upon Mithu, the Supreme Court in State of Punjab v. Dalbir Singh, the Supreme Court struck down section 27(3) of Arms Act, 1959 providing for mandatory death penalty.
The commission in its report also examined the aspect of irrevocability of capital punishment in the context of erroneous convictions and observed that the presence of constitutional and statutory safeguards such as the prerogative power of mercy, the power of appeal and review as well as legal assistance provided to capital convicts reflected the anxious concern of the law to ensure that chances of error are kept to the minimum. While analyzing proposed safeguards against erroneous convictions, the commission observed:
“We hope, however, that such cases have not been many. After passing through the sieve of judicial scrutiny under the provisions already set out, and the scrutiny applied in proceedings for the exercise of prerogative of mercy, it should be difficult - we do not say it would be impossible - for a case to retain elements of material falsehood. If, in spite of such scrutiny, such elements survive, that only shows the need for keeping the procedural and other provisions constantly under review. Elsewhere, in this Report, we ourselves have raised and discussed the question of improvements in the provisions relevant to safeguards against error. But, viewing the matter in its proper perspective, we are not in a position to say that the possibility of error is an argument which can totally displace the paramount need for a provision intended to protect society.”
This conclusion arrived at by commission pertains to pre-Bachan Singh era and even predates the amendments made to the Code of Criminal Procedure in the year 1973. The Constitution bench decision in Bachan Singh along with the new statutory regime makes the satisfaction recorded by the commission as regards the fitness of norms as existing in the earlier regime irrelevant. In contemporary judicial developments, with fairness norms more stringent than ever before, the Supreme Court has in the last 5 years repeatedly expressed anxiety about uneven application of death penalty as also miscarriages occasioned in death penalty cases.
In 2009, the Supreme Court declared per incurium the law laid down in Ravji alias Ram Chandra v. State of Rajasthan10 which held that only the characteristics relating to crime, to the exclusion of the characteristics relating to the criminal were relevant for sentencing in a criminal trial. In Bariyar, the Supreme Court held Ravji to be per-incuriam Bachan Singh dicta on the aforementioned proposition which laid down that circumstances relating to both the crime and criminal must be identified. By the time the judgment in Bariyar was rendered, Ravji had already been executed and the proposition laid down in the impugned judgment had been followed in several other cases. The aforesaid cases dispute the adequacy of the existing mechanism of appeals and power of review by Courts to safeguard against erroneous convictions. Two of the convicts sentenced to death placing reliance on the impugned judgment in Ravji could not escape the noose despite the provision of mercy power as noted in the earlier report (see Part IV. Judicial Comments on Present Day Administration of Death Penalty in India for more on the miscarriage of justice arising out of reliance on the flawed Ravji dicta)
Moreover, recently, the Supreme Court commuted the death sentence of fifteen convicts to life imprisonment in a batch matter of thirteen petitions on grounds of violation of their fundamental rights due to inordinate delay in exercise of mercy power in deciding their mercy petitions and laid down guidelines for exercise of mercy power11. Commutation of their sentences as a consequence of violation of their fundamental rights begs the question whether the existing power of mercy is an adequate safeguard against erroneous convictions. Against this backdrop, there is a need to review and ascertain the adequacy of existing safeguards against erroneous convictions.
Further, the commission made a reference to the then prevailing very conservative global scenario on abolition of death penalty. Since then, the abolitionist movement in the world has undergone real transformation. It is to be noted that worldwide, over 140 countries have abolished the death penalty and over 20 other countries though retentionists, have not executed capital sentences in ten years. Furthermore, there is also a category of countries that have 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.12 The international decline of death penalty as form of punishment began 1976 onwards much after the 35th report of the Law Commission of India on Capital Punishment. The issues relating to capital sentencing as well as the widespread abolition world over subsequent to the previous report on capital punishment require consideration and detailed examination. It is worth mentioning here that the death penalty was abolished in South Africa through a decision of the Constitutional Court in the case of S v Makwanyane and Another13.
Moreover, many of the conclusions arrived at by the Law Commission in relation to deterrence, retribution, profile of crime, systems of punishments, alternatives to death sentence etc. are dated. These themes have seen exhaustive and far more rigorous academic work since then and need fresh consideration (see Part V. State of Present Research on Death Penalty for a preliminary discussion on this theme).
187th Report (2003)
Though the Law Commission presented its 187th report on the limited issue of
“Mode of Execution of Death Sentence and Incidental Matters” in 200314, thesubstantial question of desirability of death penalty as a punishment was not part of the terms of this report and the Law Commission accordingly did not express any view on this matter. In the 35th report on capital punishment, the commission did not recommend changing the mode of execution from hanging and observed that “(p)rogress in the science of anesthetics and further study of the various methods, as well as the experience gathered in other countries and development and refinement of the existing methods, would perhaps, in future, furnish a firm basis for conclusion on this controversial subject.” This 187th report was taken up in 2003 suo motu by the commission keeping in mind the technological advances in the field of science, medicine and anesthetics. Keeping in mind the number of the years that have elapsed since the commission last took up the subject of capital punishment, it is imperative for the Law Commission to consider these fundamental questions relating to death penalty afresh and draw on the rich and still emerging scientific, academic and judicial opinion on many of these subjects
Against the abovementioned backdrop, it is evident that the issue of death penalty, its place in a modern criminal justice system, alternatives to the same and the socio-legal costs implicit in retaining the penalty need urgent examination. With this aim at mind, this consultation paper presents an overview of the developments in the field of death penalty.
Part III. Reach of Death Penalty Laws
The Indian Penal Code, 1860 prescribes death penalty for a number of crimes. Some of the offences punishable by sentence of death under the Indian Penal Code are treason (section 121), abetment of mutiny (section 132), perjury resulting in the conviction and death of an innocent person (section 194), threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person (section 195A), murder (section 302), kidnapping for ransom (section 364A) and dacoity with murder (section 396). Amongst these offences, death penalty continues to be used most commonly for section 302.
Additionally, many other special legislations such as the Air Force Act, 1950, the Army Act, 1950, the Navy Act, 1950, Commission of Sati (Prevention) Act, 1987 [section 4(1)], Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [section 3(2)(i)], Explosive Substances Act, 1908 [section 3(b)], Unlawful Activities Prevention Act, 1967 [section 16(1)] also provide for the death penalty.
In December 2012, brutal gang rape and fatal assault resulting in the death of a 23 year old medical student in the capital city brought the issue of rampant sexual violence faced by women under intense media spotlight and public gaze. The tragic gang rape case which came to be called as the Nirbhaya rape case, triggered spontaneous mass protests in the city. The issue of women’s safety received long overdue prominence in media reports and television debates. The Government of India responded to this high decibel protest and relentless media campaign by constituting a three member committee headed by former Chief Justice of India, Justice J.S. Verma. Justice Leila Seth and Mr. Gopal Subramanium, Senior Advocate were the other members of the committee. The mandate of the committee was to recommend amendments for quicker trial and enhanced punishment for criminals committing sexual assault of extreme nature against women.
The committee submitted its recommendations within a month of it being constituted.15 The committee has since received universal accolades for the broad scope of its recommendations, which were worked on the basis of wide ranging consultations with the civil society and other stake holders.
In respect of sentencing, the committee observed that punishments for sexual offences could be categorized into two categories - (i) term sentences and (ii) life imprisonment. While recommending the insertion of a separate provision with enhanced punishment for aggravated sexual assault, the committee 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 committee further noted that though rape was a heinous crime and an extreme violation of self, there were instances where the victim/survivor could lead a normal life with some support from society and overcome the trauma. The committee noted that “(i)n other words, we do not say that such a situation is less morally depraved, but the degree of injury to the person may be much less and does not warrant punishment with death.”
While taking into consideration the provisions of the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the Convention on the rights of child, Convention against torture and other cruel, inhuman and degrading treatment or punishment and other international Conventions, the committee noted that the abolition of death penalty and the reduction of number of offences in statute books which notify capital punishment are stated to be a part of international customary law. Observing that worldwide, over 150 countries have abolished death penalty or do not practice death penalty, the committee took note of the judgment of the United States Supreme Court in Coker v. Georgia16 where the US Supreme Court struck down the sentence of death for a convicted felon who had committed aggravated sexual assault holding that the sentence of death for rape was disproportionate, violative of the 8th and 14th Amendments to the US Constitution and was also “barbaric and excessive”. In its conclusion on capital punishment for sexual offences, the committee held:
“37.Thus, there is a strong case which is made out before us that in India in the context of international law as well as the law as explained in the American Courts, it would be a regressive step to introduce death penalty for rape even where such punishment is restricted to the rarest of rare cases. It is also stated that there is considerable evidence that the deterrent effect of death penalty on serious crimes is actually a myth. According to the Working Group on Human Rights, the murder rate has declined consistently in India over the last 20 years despite the slowdown in the execution of death sentences since 1980. Hence we do take note of the argument that introduction of death penalty for rape may not have a deterrent effect. However, we have enhanced the punishment to mean the remainder of life.”
It is also pertinent to note that the committee did not recommend death sentence for sexual offences. The committee proposed “life imprisonment for the remainder of the convict's natural life” as the punishment for repeat offenders.
Following the recommendations of the Verma Committee, the Government of India enacted the amending Act on 02.04.2013. Amongst other provisions, the amendment has led to the insertion of four new sections namely 354A, 354b, 354C and 354D to the already existing section 354 of IPC which deals with assault or criminal force on a woman with intent to outrage her modesty. The amendment has also enlarged the meaning of rape in section 375. Furthermore, the amendment has introduced death penalty as a punishment in section 376E for cases of repeat offences of rape. It is to be borne in mind that the Verma Committee categorically recommended against the punishment of death for the offence of rape.
It is noteworthy that section 376E has already been taken recourse to by the Trial Court to sentence three men to death in the Shakti Mills gang rape case in Mumbai.