E-Paper
India Hangs On
The Constitution of India envisages use of capital punishment as a legitimate penalty in criminal cases. Here's a look at what the death penalty means in the country's penal system.
Under the Indian Penal Code, the death penalty can be imposed for a wide variety of offences, including
i. Murder
ii. Attempted murder by a person serving life imprisonment if 'hurt is caused'
iii. For gang robbery with murder
iv. For abetting the suicide of a child or insane person
v. For waging war against the government
vi. For abetting mutiny by a member of the armed forces
vii. For fabricating false evidence with intent to secure the conviction of another person for a capital offence when conviction ensues
viii. Death sentences may also be imposed for a number of offences committed by members of the armed forces under the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1956.
The scope of capital punishment in India has been extended by other acts of Parliament.
ix. The Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), extended in 1987, empowered special courts to impose the death penalty for certain broadly defined 'terrorist' acts. After TADA was allowed to lapse, most of its provisions were carried over under POTA (Prevention of Terrorism Act).
x. The Commission of Sati (Prevention) Act, 1987, which prescribes punishment by death for any person who either directly or indirectly abets the commission of 'sati' (immolation of a widow).
xi. The Narcotics, Drugs and Psychotropic Substances (Amendment) Act, 1988, introduced the death penalty as a punishment for financing, or engaging in the production, manufacture or sale of narcotics or psychotropic substance of specified quantities (e.g. opium 10 kgs, cocaine 500 gms) after previous convictions.
xii. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, introduced the death penalty for fabricating of providing false evidence that results in the conviction and execution of an 'innocent' member of a scheduled caste or scheduled tribe.
THE RIGHT TO APPEAL
Once sentenced, a defendant in India has the right to appeal against the sentence as well as the conviction.
The appeal will be heard by a higher court and can go all the way up to the Supreme Court, a process that can take two to three years.
If all fails, Article 72 empowers the President of India to grant pardons 'in all cases where the sentence is a sentence of death'. The
president can grant clemency after seeking the advice of the Union cabinet.
LANDMARK JUDGEMENTS
According to the Supreme Court of India, the Constitution of India envisages use of capital punishment as a legitimate penalty in criminal cases. Article 21 ('protection of life and personal liberty') states:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Jagmohan Singh v State of Uttar Pradesh (AIR 1973 SC 947): For the first time the Supreme Court addressed the question of constitutionality of the death penalty. The facts established premeditated murder motivated by ill-feeling nurtured for years - and the death sentence was held proper.
Rajendra Prasad v State of UP (1979 3SCC 646): The Court decided that the special reasons necessary for imposing a death
penalty required a searching case by case evaluation. The law could no longer prescribe the death penalty for all persons committing certain crimes; instead the circumstances surrounding the commission of each offence would have to be considered in every individual case. In other words, there had to be a subjective analysis and evaluation.
Bachan Singh v State of Punjab (AIR 1980 SC 898): The death penalty was challenged on the grounds (inter alia) that
1. It was irreversible and could, given the fallibility of the process of legal mechanisms, result in the execution of innocent people;
2. No convincing evidence existed to prove that death penalty served a legitimate penological interest and
3. Execution regardless of the means chosen or the offence involved constituted a cruel inhuman and degrading punishment.
The Court by a majority of 4:1 including the then Chief Justice while rejecting these arguments set out important limitations on awarding the sentence of death. In its most significant departure from earlier jurisprudence on the subject it stated:
A real and abiding concern for the dignity of human life postulates resistance to taking life through law's instrumentality. That ought not to be done save in the rarest of rare cases, when the alternative option is unquestionably foreclosed.
Macchi Singh vs State of Punjab (AIR 1983 SC957): The court summarised the propositions set out in Bachan Singh and explained the task of a sentencing judge:
A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weight and a just balance has to be struck between the aggravating and mitigating circumstances before the option (to award the death penalty) is exercised.
DEFINITION OF 'RAREST OF RARE'
The Supreme Court has listed various factors to be considered in determining whether a case should be considered one of the 'rarest of rare'.
1. Manner of commission of murder - whether death of victim caused by torture or other cruelty;
2. Motive for murder - whether crime involved total depravity and meanness;
3. Anti-social or socially abhorrent nature of the crime - murder of a member of schedule caste or minority community arousing social wrath or involving 'bride burning' or 'dowry death';
4. Magnitude of the crime - multiple murders of members of a family or particular caste, community or locality and
5. Personality of the victim of murder - an innocent child, helpless old of infirm or a public figure murdered for political rather then personal reasons.
(Source: Vijay S.T. Shankardass, Barrister, Senior Counsel, Supreme Court of India)
