Author: Kirt Agarwal^[1]

India retains capital punishment for a number of serious offences. In December 2007 India was among the minority of countries who voted at the United Nations General Assembly against a moratorium on executions. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-diminished person and has more recently in 2013 come to include the offence of rape in certain circumstances. It is mandatory for second convictions for drug trafficking offences. India retains capital punishment for a number of serious offences under Indian Penal Code, 1860. Offences such as punishment of criminal conspiracy, waging of war against the Government of India, abetment of mutiny, murder, abetment of suicide of child or insane person, kidnapping for ransom, dacoity with murder under Indian Penal Code are punishable with death penalty. The Supreme Court in Mithu vs State of Punjab^[2] struck down Section 303 of the Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence. Death sentences are carried out by hanging, which the Supreme Court has upheld as constitutional.

After observing an unofficial moratorium of 8 years in India, the Indian Government has continued to carry out executions. In 2004 in the Dhananjoy Chatterjee^[3] case, the defendant was convicted of rape and murder and his sentence was carried out after he had spent 13 years in solitary confinement.  In 2012 in the Mumbai attack cases, the execution of Ajmal Kasab was carried out in secret. In February 2013, in response to public outcry over a brutal gang rape in Delhi,^[4] the Indian Government passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a “persistent vegetative state.” Death penalty can also be granted to repeat offenders in rape under Criminal Law (Amendment) Act, 2013.

Under Article 72^[5] of the Indian Constitution, the President has been given power to grant pardons and to suspend, remit or commute death sentences in certain cases. A similar power has been granted Governor of States under Article 161 of the constitution.^[6] Following this, several mercy petitions of death row convicts have been rejected. The fear of execution of such convicts is imminent. Bolstered by the Government’s unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate. There is very little information on the number of people sentenced to death in India.

Inherently there are serious flaws in capital sentencing. In certain situations, DNA evidence is not used, death sentences can be given by a majority rather than a unanimous bench and many convictions for death sentences are based entirely on circumstantial evidence. This coupled with a faulty criminal law enforcement system and admittedly high corruption levels in the police force investigating the crime, increases the chances of false convictions. In such a scenario, the correctness of conviction resulting in the ultimate sentence of capital punishment relies on a system of trial and error. Also, the handing over of the death penalty is dependent on various variable factors such as existing biases amongst law enforcers, social biases, media reports and public outcry, social and financial status of the accused, quality of legal representation and last but not the least, the bent of mind of the judges.

During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases.^[7] Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency. Paradoxically, whilst the “rarest of the rare” doctrine has been used to limit and restrict the use of the mandatory death penalty elsewhere in the world, it has often had the opposite effect in India. It has enabled judges to justify imposing sentences of death in an arbitrary manner, reinforcing the deeply flawed character of capital punishment in India today.

Recently in April 2013, in a petition filed by Devender Pal Singh Bhullar^[8] in the Supreme Court, delay in deciding his clemency plea was ruled out as a ground to commute his death sentence to life imprisonment. Devender Pal Singh Bhullar had approached the Supreme Court in 2011 after the President rejected his mercy petition after 8 years. This judgment may have a far reaching effect on similar cases where mercy petitions have remained pending with the President for inordinate periods of time.

In Santosh Kumar v. CBI,^[9] Priyadarshini Mattoo was a 25-year-old law student who was found raped and murdered at her house in New Delhi on January 23, 1996. On October 17, 2006, the Delhi High Court found Santosh Kumar Singh guilty on both counts of rape and murder and on October 30 of the same year sentenced him to death. On October 6, 2010, the Supreme Court of India commuted the death sentence to life imprisonment. Santosh Kumar Singh, the son of a Police Inspector-General, had earlier been acquitted by a trial court in 1999, and the High Court decision was widely perceived in India as a landmark reversal and a measure of the force of media pressure in a democratic setup. This decision went in favour because the facts were not presented correctly in the lower court.

From the above mentioned cases we can easily infer that there are no fixed criteria for awarding the sentence of death penalty. It is only determined by judicial framework and subjected to excessive corrupt practices. India is not in a favour of a complete rejection of the death penalty. The crime has been committed due to circumstantial wrongs and the criminal can be reformed if treated under special conditions. Hence, we follow a reformative theory of punishment.^[10]

In this modern and advanced scenario we cannot walk along with age old laws. Laws are required to be updated with time in order to make progress in the society. India must clear its stand on death penalty and must define set rules and guidelines for implementation of it. Depending solemnly on the mind set of judges and the category of “rarest of rare” is most vague and ambiguous procedure for awarding death sentence. We just cannot grant life imprisonment or death penalty because a judge thinks so. “Morality must be kept aside from the ambit of law.”^[11]

India should have provisions for death penalty for heinous crimes and hardened criminals. Either the legislature or judiciary must set some instructions or guidelines for the safeguard of such procedure and to protect the provision from the misuse by powerful players.  The death penalty is important because it could save the lives of thousands of potential victims who are at stake. Today, there are many pros and cons to this death penalty issues.  However, if people weigh the arguments properly, and have empathy for the victims, they will be more inclined to favour capital punishment.

[1] 4^th Yr. student, Amity Law School Delhi (GGSIPU)

[2] Mitu Singh vs. State of Punjab, A.I.R. 1983 S.C. 473

[3] Dhananjoy Chaterjee vs State Of W.B (1994) 2 SCC 220

[4] Delhi Gang Rape Case, Ram Singh v. N.C.T. of Delhi

[5] Dr. DD Basu, Introduction to Constitution of India, Part II, page 175-200

[6] Ibid

[7] Machhi Singh v. State of Punjab 1983 SCC (3) 470

[8] Devendra Pal Singh Bhullar v. State of N.C.T of delhi, WP(Cr.)No. 146 of 2011

[9] Santosh Kumar Singh v. State, (2010) 9 SCC 747

[10] Analysis of Criminal Law in India , Debashree Dutta, available at

http://www.legalserviceindia.com/articles/neew.htm (last accessed on 18.4.2014)

[11] Salmond