Death Penalty

Death penalty is the execution of a criminal who has been sentenced to death by a court of law for a serious felony. It is known as the most severe form of punishment. It serves as punishment for the most heinous, grievous, and abhorrent crimes against humanity.

Official Definitions

Article 6(2) of the International Covenant on Civil and Political Rights allows the use of death penalty as a mode of punishment. It says that in countries where the death penalty is still legal, it can only be applied for the most severe crimes, as defined by existing laws at the time of the offense. The use of the death penalty must not violate the principles outlined in international agreements like the Covenant and the Convention on Genocide. Furthermore, execution can only occur after a final verdict from a competent court.

The United Nations, in 1984, by the Economic and Social Council resolution 1984/50, adopted the Safeguards guaranteeing protection of the rights of those facing the death penalty.

However, there have been efforts to abolish death penalty. The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP2), aiming at the abolition of the death penalty is one such step taken. However, India has not ratified it.  In the latest resolution in 2018 by the United Nations regarding death penalty, it welcomed “the movement towards the abolition of the death penalty globally and the fact that many States are applying a moratorium, including long-standing moratoriums, either in law or in practice, on the use of the death penalty”.

Legal Provisions related to Death Penalty

In the Indian Penal Code, some offenses are punishable by the death penalty. Under Section 132 of the Code  whoever abets the committing of mutiny by an officer, soldier, sailor or airman in the Army,  Navy or Air Force, shall, if mutiny be committed in consequence of that abetment, be punished with death or with imprisonment and shall also be liable to fine. Section 194 of the Code prescribes a punishment with death or imprisonment if due to fabrication of false evidence, an innocent is convicted. Similarly, under 195A of the Code a person threatening another to give false evidence due to which an innocent gets convicted may get punished by death or imprisonment.  Under Section 302 of IPC, one of the punishments for whoever commits murder is death penalty.

Under Section 354(3) of the Criminal Procedure Code (CrPC), it is stated that when the judgment is for a sentence of death, it should lay down the special reasons for such sentence. Death penalty is constitutionalized by reading into Section 354(3) Cr. P.C., those 'special reasons' which validate the sentence as reasonably necessitous and non-arbitrary.  

Chapter XXVIII of CrPC lays down the provision for confirmation of the Death Sentence passed by the Sessions Court. According to Section 366, the sentence of death passed by the Session Court, is automatically suspended on a reference made to the High Court, until the same is confirmed by the High Court. Further, under section 367 High Court(s) can make an inquiry into or take evidence, itself or direct such an enquiry to be made or additional evidence taken by a Court of Session(s), where it, “thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person”. The order passed by the High Court shall be one of the options provided in Section 368 i.e. confirmation, annulment of the conviction, the acquittal of the accused among others. As per the provisions of Section 369 of the Code, the death reference(s) made by the Court of Session to the High Court are placed before, decided and signed by at least two of the Judges of the said High Court, “when such court consists of two or more Judges”. However, in the case of a conflict/difference of opinion between the Judges constituting such a Bench at the High Court, as per the provisions of Section 370 CrPC, the said case/conflict has to be decided in the manner as provided under Section 392 of the Code.

Under Article 72(1)(c) of the Constitution of India ,the President shall have the power to suspend, remit or commute the sentence of any person convicted of any offense  in all cases where the sentence is a sentence of death. Section 54 of the IPC provides for commutation of sentence of death for any other sentence by the appropriate Government without the consent of the offender. Under Section 432 of CrPC, the government can suspend or remit a person's sentence with or without conditions. The presiding judge's opinion is sought before granting suspension or remission. If conditions aren't met, the government can cancel suspension/remission. Rules specify conditions and presentation of petitions.

Case laws related to Death Penalty

In Jagmohan Singh vs the State of Uttar Pradesh, the Supreme Court held that deprivation of life is constitutionally lawful if done according to the procedure set by law. It observed that the death penalty is not unreasonable or against public interest as the legislature has not abolished it in spite of considerable debate and even the Law Commission has not weighed against abolition.

The Supreme Court in Bachan Singh vs the State of Punjab opined that Art. 19(1) upheld the validity of the death penalty. However, the court restricted the provision of the death penalty to the rarest of rare cases only. It also suggested that while deciding on the degree of punishment, courts should take into consideration the circumstances of the criminal.

In Rajendra Prasad v. State of U.P., the court laid down some guidelines for imposing capital punishment. It observed that the “nature of crime” is not a decisive test. The personal circumstances/background of the offender is also important. The personal circumstances/background of the offender is also important. Since the death penalty is constitutionalized by reading into Section 354(3) Cr. P.C., those 'special reasons' which validate the sentence, it  is permissible only if reformation is impossible. However, a second murder is not to be confused with the persistent potential for murderous attacks by the murderer. The brutal nature of crime will not suffice unless it shows chronic propensity or irreparable depravity. It is illegal to award capital sentence without considering the correctional possibilities inside prison’

In Kehar Singh v UOI, Court held that it is open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. He acts under a constitutional power, the nature of which is entirely different from the judicial power. President may go into the merits of the case.

International variations:

Since 1976, more than 85 nations have abolished the death penalty for all crimes, while others have abolished it for ordinary crimes. Countries like Brazil, Argentina, Poland, South Africa and some others have abolished it for ordinary crimes while countries like Portugal, Denmark, France, Australia, New Zealand and others have abolished it for all crimes. In 2022, the latest countries to abolish death penalty for all crimes are Papua New Guinea, Central African Republic, Equatorial Guinea and Zambia. However, India remains a retentionist.

China

China continued to be the top country in terms of carrying out executions, but the government kept execution and death sentence data classified as state secrets. The death penalty was still applicable for 46 different offenses, including some that didn't meet the criteria for "most serious crimes" according to international law and standards, even extending to non-lethal offenses. In 2007, the Supreme People's Court of China took on the responsibility of reviewing all death sentences issued by lower courts. Although the exact execution rate remains undisclosed, widespread rumors are suggesting that the number of executions has significantly decreased since this reform, potentially halving. Additionally, in February 2011, China eliminated the death penalty for 13 nonviolent crimes, reducing the total number of capital offenses from 68 to 55. Furthermore, capital punishment was prohibited for individuals aged 75 and above. In 2012, the Code of Criminal Procedure was amended accordingly, stipulating that the final appeal of all death penalty cases must be tried by the Supreme People’s Court.

Kazakhstan:

Kazakhstan has had a moratorium on executions since 2003. On September 23, 2020, Kazakhstan ratified the ICCPR-OP2, signaling its commitment to abolishing the death penalty. With the ICCPR-OP2 entering into on 24 June 2022, it becomes the 90th State Party to it. On December 23, 2021, the Senate, the upper chamber of Kazakhstan's Parliament, endorsed a bill titled 'On Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Abolition of the Death Penalty.' Subsequently, on December 29, 2021, President Kassym-Jomart Tokayev signed the bill into law, eliminating the death penalty for all crimes listed in the Criminal Code and substituting it with life imprisonment.

United States of America

The Eighth Amendment prohibits cruel and unusual punishments. In Furman v. Georgia (1972), the Supreme Court deemed existing death penalty laws unconstitutional, citing them as cruel and unusual punishment under the Eighth Amendment. However, in Gregg v. Georgia (1976), the Court declined to extend the ruling of Furman, asserting that the death penalty itself was not inherently unconstitutional. Instead, it argued that the death penalty could serve societal purposes such as retribution and deterrence. Additionally, in Coker v. Georgia (1977), the Court ruled that punishment must be proportionate to the crime to avoid violating the Eighth Amendment's prohibition against cruel and unusual punishment. However, intellectually or developmentally disabled individuals and juvenile offenders could not be subjected to the death penalty.

Official Database

The seventh edition of Project 39A's Death Penalty in India: Annual Statistics Report highlights a pivotal shift in capital sentencing following the Supreme Court's recognition for reform. Utilizing news sources and court platforms, the report tracks death sentences awarded by various courts. It also tracks the nature of sentencing information considered by the trial courts in light of the guidelines released by the Supreme Court.

Research related to Death Penalty

Lethal Lottery: The Death Penalty in India A study of Supreme Court judgments in death penalty cases 1950-2006 : Amnesty International India and People’s Union for Civil Liberties (Tamil Nadu & Puducherry) May 2008

In 1966 for the first time nations, of the world adopted an international Convention seeking to regulate the use of the death penalty via Article 6 of the International Covenant on Civil and Political Rights (ICCPR).That figure now stands at 90, with a further 11 countries having abolished the death penalty for “ordinary” crimes (but retaining it for offences such as treason or offences under military law).Thirty-two countries are considered by Amnesty International to be “abolitionist in practice” in that they retain the death penalty for ordinary crimes such as murder but have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions, meaning that a total of 135 of the world`s nations have turned their back on capital punishment in law or practice.

India remains balanced between the global trend away from the death penalty and those countries that continue to execute. Despite priding itself on a highly evolved `rule of law` system, India has steadfastly clung to the punishment even though it acceded to the ICCPR in 1979.

Continuously refusing to enter into any form of debate or discussion with national or international bodies over abolition, the Indian state has shown an apparent disdain for world opinion by retaining a `wall of silence`, signaling its intention by failing to respond to the quinquennial UN surveys on the death penalty and more worryingly passing new laws that provide for the death penalty. The government must resist any pressure to resume executions and take a regional lead by educating the public as to the futility of capital punishment and the importance of human rights protection. The Death Penalty in India Amnesty International AI Index: It is noteworthy that the Indian state has not only failed to sensitize the general public about the concerns of the world community over the arbitrariness and innate inhumanness of the death. This chapter traces the development of sentencing policy in capital cases, including both legislative amendments and jurisprudence.