(Term paper towards fulfillment of the assessment in the subject of Constitutional Law I)

Death Penalty In India

Submitted To: Submitted By:

Faculty of Constitutional Law-I Rishabh Meena

2015064

B.A, LL.B HONS

Maharashtra National Law University, Mumbai

Summer session

July 2017 to November 2017

 Disclaimer

All views expressed in this paper, scholarly or otherwise and strictly the
opinion of the researcher. Any intended or unintended offense that it may
cause will be beyond the scope of the researchers liability. Reader
discretion is advised.

ii
 Table of Contents

1. Table of Cases
2. Introduction
3. Existing laws and Judicial Practices
4. Penological goal
5. Factors Affecting Constitutionality of Death Sentence
6. International Trends
7. Bibliography

iii
 TABLE OF CASES
S.No Case Citation Page
1. Bachhan Singh v. State of Punjab 1980 2 SCC 684 5
Number

2. Furman v. Georgia 408 U.S 238 1

3. Furman V. Georgia(Appeal) 408 U.S. 238 (A) 7

4. Jolly George Verghese & Anr vs The Bank Of 1980 AIR 470 16
Cochin

5. Macchi Singh v. State 1983 3 SCC 470 4

6. Maneka Gandhi v. Union of India 1978 AIR 597 1

7. Mulla v. State of U.P 2010 3 SCC 508 4

8. National Legal Services Authority v. Union of 2014 5 SCC 438 17

India

9. Saibana V. State of Karnataka Supreme Crl. 656 of 2004 12

Court of India

10. Santosh Kumar Satishbhushan Bariyar v. 2009 6 SCC 498 8

Maharashtra

11. Shankar Kisanrao Khade v. Maharashtra 2013 5 SCC 546 8

12. Shatrughan Chauhan v. Union of India, 2014 3 SCC 1 12

13. Sher Singh and Ors. vs. State of Punjab 1983 2 SCC 344 14

14. State v. Makwaygne 1995 6BCLR 665 16

iv
15. Sunil Batra Etc vs Delhi Administration 1979 SCR 1 392 5

16. T.V. Vatheeswaran vs. State of Tamil Nadu 1983 2 SCC 68 10

17. Triveniben vs State Of Gujarat 1988 4 SCC 574 3

18. Writ Petition (Criminal), Supreme Court of Cri. 132 Of 2013 9

India

19. Mithu V. State of Punjab 1983 2 SCC 277 15

v
 Introduction

The penalty of death differs from all other forms of criminal punishment, not in degree,
but in kind. It is unique in its total irrevocability. It is unique in its rejection of
rehabilitation of the convict as a basic purpose of criminal justice. And it is unique,
finally, in its absolute renunciation of all that is embodied in our concept of humanity1.

The debate around the abolition of death penalty in India has been predominantly deontic
and here lies the fundamental flaw. Scholars have often pandered to public opinion and
debated upon the notions of basic humanity and morality to justify their positions on the
death penalty without recognizing that there can be no constructive debate on such
hollow premises which remain subjective. In order to truly understand the debate, we
need to move beyond the deontic prejudicial stands into a direction of logical derivatives.
This allows us to objectively assess what our stand as a democratic government, which
claims to be the protector of inalienable fundamental rights, should be.

The current judicial position has to be looked at in the light of the constitution, which
states, No person shall be deprived of his life or personal liberty except according to
procedure established by law 2 . It is important to note that the phrase procedure
established by law as used in the above context has been interpreted by the courts to be
read as due process of law3 which is a pivotal distinction laid in the Maneka Gandhi
case4.

Research Question:

I: What does the Indian Jurisprudence comment on the validity of Death Sentence and
also the distinction for terror cases?

II: Should India adopt abolitionist de facto position on the Death Penalty as
recommended by UNHRC5?

III: Does death penalty meet the due process of law requirements under Article 216?

1
Justice Stewart in Furman v. Georgia 408 U.S 238
2
Article 21, Constitution of India
3
Fifth Amendment 1971, Constitution of The U.S.A
4
Maneka Gandhi v. Union of India 1978 AIR 597
5
United Nations Human Rights Commission

A
While examining the first two research questions the focus will be on the penological
goals that the death penalty supposedly serves. These questions will be looked upon in
the light of various landmark Supreme Court cases that have opined on these issues in
varied contexts.

India which boasts of being the largest democracy in the world has been seen as a
protector of fundamental rights and the hypocrisy lies in the execution process of India
described as a legal lottery . Legal lottery, fancy term which stands for legalized murder
if you were to concede to the arguments of the deontics, but before making such
allegations on the Judiciary I would like to take a more scholarly approach based on
research.

Certainly this has to be in contravention of Right to Life under Article 21,Does this not
seem logical? If practices like these are allowed to persist then constitutional guarantees
of inalienable rights seem to be really redundant. Hence this is another aspect that needs
to be looked upon in the light of the rarest of rare doctrine while dealing with the third
research question.

I would propound on each of the aspects of the death sentence and move beyond the
obvious arguments of deterrence, moral repugnance, hypocrisy, purpose and
administration of irrevocable justice.

6
Constitution of India, 1950

B
 Existing Law and Judicial Practice

For the purpose of research convenience and accessibility, I have summed up the
prevailing position of courts on Death Penalty and the corresponding judgments that have
distinctly cleared the stand of our judicial system which can be found in the attached
Appendices A and B.

In India about 400 prisoners are facing the death penalty7 and 361 of them are charged
with an offence under the Indian Penal Code. The number of people charged with an
offence under TADA are 13 and under all the other laws combined is less than 20.

As a review of the attached appendices will show, more than 30 legislations prescribe the
death penalty but The IPC is responsible for more than ninety five percent of
convictions8. The IPC is based on absolute English jurisprudential principles, which are
even abandoned by the English in the modern day. The laws like sedition and defamation
and punishments like death penalty have a colonial imprint and are widely criticized by
legal scholars. Adhering to the sentencing regime of a 156 year old code obviously has
certain fallacies that the courts soon realized.

The Supreme Court has taken cognizance of the number of people convicted under IPC
for offences punishable with either death or life imprisonment. However when the judge
at his or her discretion during sentencing chooses either death penalty or life
imprisonment, justice is delivered in seemingly contrasting ways. This process has been
considered arbitrary and violative of fundamental rights by defense lawyers arguing for
commutation of death sentence to life imprisonment. The Supreme Court has set up
certain guidelines in an attempt to make the distinction between life imprisonment and
death penalty clearer.

7
Registrar of National Law University, Delhi. The Death Penalty Project, Delhi 2016. Prisoners refers to
the people undergoing imprisonment after their death sentence is either reviewed or appealed.
8
Ibid

C
 The Penological Goals

Traditionally there have been scholars arguing for and against the death penalty on the
grounds broadly categorized hereunder:

I: Deterrence and Moral Repugnance:

Under our criminal justice system and the sense of reason and morality that we import
into it, taking someones life is considered to be morally repugnant and therefore has to
be punished severely. We believe that our criminal justice system cannot afford to be
complacent. Freedom is a privilege that a person voluntarily gives up on committing any
of the heinous crimes listed in the tables above9. It is therefore a right of the state and of
the society to impose the capital punishment because it shall prevent people from
committing this offence fearing the consequences. It is of utmost importance to prevent
the crimes by deterrence10. I believe that the deterrence argument has fallen flat when we
compare statistics of the last decade11. There is a considerable increase in the crime rates
especially terror related when the number of executions in India in the last decade have
been a fraction of what they used to be12.

II: Hypocrisy and Purpose:

Scholars argue that there are two sides two this argument, there can be no principle of
natural justice can be served by avenging the loss of life by further loss of life 13 .
Mahatma Gandhi has left us all with a thought that reverberates in the modern day court
room, An eye for an eye will make the whole world blind14. I make references to such
statements because I am fully aware that not all arguments in the court room are legal15

9
Ibid See Existing Law and Judicial Practice
10
Ujjwal Nikam - Defending The Death Penalty". YouTube. N.p., 2016. Web. 11 Aug. 2016
11
National Crime Records Bureau". Ncrb.gov.in. N.p., 2016. Web. 12 Aug. 2016.
12
Registrar of National Law University, Delhi. The Death Penalty Project, Delhi 2016
13
Turner, Ralph V. "The Meaning Of Magna Carta Since 1215". History Today 53.9 (2015): 29. Web. 8
Aug. 2015.
14
Suhrud, Tridip et al. An Autobiography, Or, The Story Of My Experiments With Truth. New Delhi:
Routledge, 2010.
15
Minute by AK Jain, Joint SecretaryHR J1, dated 29604 in mercy petition of Dhananjoy Chatterjee,
File no. 4/3/94MP, MHA

D
and therefore such arguments raised by Retentionist should be promptly dealt with and
countered.

III: Irrevocability

When the Supreme Court of the United States formally struck down the death penalty in
197216, Justice Marshall remarked as the obiter of the case, If the general public were
informed about the process and the procedure by which the death penalty is performed,
they would have no doubts about its immorality17. When the Supreme Court of a few
centuries old democracy18 can openly make such comments about the procedural flaws
then we, as a democratic republic should have no reservations in doing the same. The
entire penal system in India including the IPC19 and Cr.P.C20 have been drafted with the
fundamental principle at its heart that reads, A thousand guilty men may walk free to
keep one innocent man out of prison 21 . Death Penalty takes away the possibility of
restorative or reformative justice and is scarily irrevocable.

Legal Audit and Review

The 35th law commission in 1967 established to constitute the first formal review of the
capital punishment in India was of the view that India should retain capital punishment
and had submitted its report with the primary recommendation as summarized below:

Having regard, however, to the conditions in India, to the variety of the 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 punishment22.

About five decades have passed since this report was published and the Supreme Court of

16
Furman V. Georgia 408 U.S. 238
17
Death Sentence In India Is A Crime - Dr. Yug Mohit Chaudhry". YouTube. N.p., 2016. Web. 11 Aug.
2016
18
http://www.pbs.org/a-capitol-fourth/history/history-independence-day/
19
Indian Penal Code,1860
20
Code of Criminal Procedure, 1973
21
Volokh, Alexander (November 1997). "n Guilty Men". University of Pennsylvania Law Review. 146 (1):
173.
22
Law Commission of India, 35th Report, 1967, at para 293, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf

E
India wanted a fresh review of the death penalty given the amount of International
lobbying against the death penalty. The Law Commission of India received a reference
from the Supreme Court in Santosh Kumar 23 and Shankar Kisanrao Khade 24 cases, to
study the issue of the death penalty in India to allow for an up-to-date and informed
discussion and debate on the subject.

The 262nd report has focused on these primary issues:

I. Mandatory Death Sentences

II. Method of Execution
III. Delay in Execution
IV. Expansion of Death Penalty ( Non-Homicide Offences)
V. Terror Laws and Death penalty
VI. Bill Proposing Abolishment
VII. Recent Executions

This commission, with unprecedented and notable dissent, has officially recommended
the abolition of the death penalty except in cases of terror offences threatening national
security. However the commission fails to give a justification for retaining death penalty
for terror cases after endorsing a view to the contrary throughout the report. The
recommendations of a law commission need to be unequivocal and consistent for it to
have political leverage and be considered firmly by the Government. In my opinion the
dissenters of the recommendations have been really opinionated and fixated on their
prejudiced beliefs, they have factored in personal bias as a decisive factor opposed to
relevance and practicality. The Law Commission has given an exhaustive report that is
directly countering most of the contentions raised in attached notes, which form the basis
of dissent. In conclusion, Law Commission report with its dissenters is reiterating that
death penalty can never be objectively looked upon without prejudice and political
considerations of the state seep into all legal endorsements. Public participation and
dissent is welcomed in the law making process of a democracy but when it is redundant
and prejudiced, it only slows down the law making process.

23
Santosh Kumar Satishbhushan Bariyar v. Maharashtra (2009) 6 SCC 498
24
Shankar Kisanrao Khade v. Maharashtra [(2013) 5 SCC 546

F
 Factors Affecting Constitutionality of Death Sentence

The due process requirement imposed by Maneka Gandhi case landmark judicial
precedent will make it unconstitutional to execute any individual whether a citizen or not,
for any crime, whether terror or not, for any offence, whether foreign or domestic, if there
is any sort of procedural fallacy or inadequacy whether latent or apparent in the trial or
sentencing process. Such inadequacy may be as worrisome as fabricated evidence or as
trivial as poor legal aid but the impact they would have on constitutionality of the
punishment would be the same.

Another aspect of death penalty is the mandatory death sentence under Section 303 of
Indian Penal Code, which has been struck down as unconstitutional. It is because the
death sentence has been made mandatory by section 303 in regard to a particular class of
persons that, as a necessary consequence, they are deprived of the opportunity under
section 235(2) of the Criminal Procedure Code to show cause why they should not be
sentenced to death and the Court is relieved from its obligation under section 354(3) of
that Code to state the special reasons for imposing the sentence of death. The deprivation
of these rights and safeguards which is bound to result in injustice is harsh, arbitrary and
unjust25.

Saibana case is an important landmark judgment for this issue26, where the court in my
opinion erroneously concluded and shifted the charge from 303 to 302 stating that the
accuseds case had not been prejudiced by inappropriate sentencing by the lower courts.
This case raised important concerns about the procedural lapses and upholding
fundamental rights as the accused was sentenced by the lower courts for a section deemed
to be void and unconstitutional,

The 262nd Law Commission report has inter alia specified a host of specific factors that
invalidate the Death Penalty and stand in direct contravention of the Constitutional
guarantee of Part III of our Constitution. Shatrughan Chauhan and Anr V. Union of
India27 in the Supreme Court on January 21, 2014 has propounded in detail on a few of

25 Mithu v. State of Punjab 1983 2 SCC 277

26 Saibana V. State of Karnataka Supreme Court of India Crl 656 of 2004
27
Read with the the following writs;
Writ Petition (Criminal) No. 34 Of 2013, Writ Petition (Criminal) No. 56 Of 2013, Writ Petition (Criminal)
No. 136 Of 2013, Writ Petition (Criminal) No. 139 Of 2013, Writ Petition (Criminal) No. 141 Of 2013,
Writ Petition (Criminal) No. 132 Of 2013, Writ Petition (Criminal) No. 187 Of 2013, Writ Petition

G
these and forms the most recent reference for a scholar reading the Supreme Courts view
on the same.

Articles 62 and 17128

The fallibility of human judgment being undeniable even in the most trained mind, a
mind resourced by a harvest of experience, it has been considered appropriate that in the
matter of life and personal liberty, the protection should be extended by entrusting power
further to some high authority to scrutinize the validity of the threatened denial of life or
the threatened or continued denial of personal liberty 29 . The power so entrusted is a
power belonging to the people and reposed in the highest dignitary of the state

In concise, the power vested in the President under Article 72 and the Governor under
Article 161 of the Constitution is a Constitutional duty. As a result, it is neither a matter
of grace nor a matter of privilege but is an 14 important constitutional responsibility
reposed by the people in the highest authority

The discharge of this duty has to be done taking into account the supervening
circumstances between the rejection of appeal by the Court of last resort to the hanging
day30. The legal basis for taking supervening circumstances into account is that Article 21
inheres a right in every prisoner till his last breath and this Court will protect that right
even if the noose is being tied on the condemned prisoners neck.

The supervening circumstances that may affect the validity of the sentence are as follows:

I. Delay in Execution
II. Intervening Insanity of Convict31

(Criminal) No. 188 Of 2013, Writ Petition (Criminal) No. 190 Of 2013, Writ Petition (Criminal) No. 191
Of 2013, Writ Petition (Criminal) No. 192 Of 2013 and Writ Petition (Criminal) No. 193 Of 2013
28
Constitution of India, 1950
29
Bikram Jeet Batra, A study of constitutional Clemency for Capital Crimes in India. Working Paper
Series, Center for the study of Law and Governance, JNU Delhi. April 2009
30
Linda Ross Meyer,The meaning of death, last words, last meals, in Who Deserves to Die? Constructing
the Executable Subject, Austin Sarat and Karl Shoemaker, eds. (Amherst, University of Massachusetts
Press, 2011)
31
Convict refers to the accused whose sentence has been confirmed by one or more Court.

H
III. Solitary Confinement32
IV. Judgments declared per incuriam
V. Procedural Lapses

The present situation of rare executions, despite a consistent number of persons being
sentenced to death, is a result of mercy petitions not being rejected. The importance of
clemency to the broader debate on the death penalty thus cannot be overstated. Despite
this vital role, a comprehensive study on decision-making in clemency process is
unavailable33. Public and scholarly engagement has therefore remained restricted to a few
individual cases. Unfortunately the generality of public discussion and debate conducted
in the absence of verifiable information tends to obfuscate the nuances and subtleties of
clemency. Further, the obvious link with capital punishment, clemency jurisdiction also
provides for extensive interplay between the executive, the president and the courts.

The death penalty is a unique intersection of the Judiciary and Executive in a system of
government based on separation of power. Although established as a sovereign political
function of a democratically elected government. We are yet to evolve Jurisprudence on
principles of equity and Clemency remains to be a political tool at the disposal of the
ruling party for vote bank politics.

32
National Research Council, Deterrence and the Death Penalty (Washington, DC, National Academies
Press, 2012)
33
The existing literature on the subject is wholly inadequate e.g. Janak Raj Jai, Presidential Powers of
Pardon on Death Penalty, Regency Publications, New Delhi: 2006.There are a few quality works on the
issue but extremely specific in their focus, e.g. Upendra Baxi, Clemency, Erudition and Death: the judicial
discourse in Kehar Singh, Journal of the Indian Law Institute, Vol. 30(4), 1988, pp 501-506;
Balkrishana,Presidential Power of Pardon, Journal of the Indian Law Institute,Vol 13(1), 1971, pp 103-
120

I
 International Trends

Internationally, countries are classified on their death penalty status, based on the following
categories34

I. Abolitionist for all crimes

II. Abolitionist for ordinary crimes
III. Abolitionist de facto35
IV. Retentionist

At the end of 2015, 98 countries were abolitionist for all crimes, seven countries were
abolitionist for ordinary crimes only, and 35 were abolitionist in practice, making 140
countries in the world abolitionist in law or practice. 58 countries are regarded as
retentionist, who still have the death penalty on their statute book, and have used it in the
recent past36.

Capital punishment has been regulated in international human rights treaties as one
aspect of the right to life, as contained in the International Covenant on Civil and Political
Rights (ICCPR). With time, some aspects of the imposition and implementation of
capital punishment have also been found to violate the prohibition against cruel, inhuman,
and degrading treatment and punishment37. With the coming into force of the Second

34
This system is followed by the United Nations and by non-governmental organizations like Amnesty
International. See for example, Capital punishment and implementation of the safeguards guaranteeing
protection of the rights of those facing the death penalty Report of the Secretary-General, E/2015/49
[advance, unedited version] at page 4; See Annex II, Amnesty International, Death Sentences and
Executions in 2014, ACT 50/001/2015
35
This refers to states where the death penalty remains lawful and where death sentences may still be
pronounced but where executions have not taken place for 10 years, or states that have carried out
executions within the previous 10 years but that have made an international commitment through the
establishment of an official moratorium, Capital punishment and implementation of the safeguards
guaranteeing protection of the rights of those facing the death penalty, Report of the Secretary- General,
E/2015/49 [advance, unedited version] at page 4. Amnesty International follows a slightly different
definition: Countries which retain the death penalty for ordinary crimes such as murder but can be
considered abolitionist in practice in that they have not executed anyone during the last 10 years and are
believed to have a policy or established practice of not carrying out executions. Annex II, Amnesty
International, Death Sentences and Executions in 2014, ACT 50/001/2015

36
Annex II, Amnesty International, Death Sentences and Executions in 2015, ACT 50/001/2015.

37
UN Doc. E/CN.4/2006/53/Add.3

J
Optional Protocol to the ICCPR, the international community saw the first global,
international legal instrument that aimed at abolishing the death penalty38.

Since our constitution draws significant provisions from the South African Constitution, I
feel it necessary to note that South Africa has abolished death sentence39 and remarked:

The rights to life and dignity are the most important of all human rights, and the source
of all other personal rights in Chapter Three. By committing ourselves to a society
founded on the recognition of human rights we are required to value these two rights
above all others. And this must be demonstrated by the State in everything that it does,
including the way it punishes criminals. This is not achieved by objectifying murderers
and putting them to death to serve as an example to others in the expectation that they
might possibly be deterred thereby..

Apart from the persuasive arguments mentioned above, India has certain binding
obligations to conform to under International Law.

Of the treaties mentioned above, India has ratified the ICCPR and the CRC, and is
signatory to the Torture Convention but has not ratified it. Under international law, treaty
obligations are binding on states once they have ratified the treaty. Even where a treaty
has been signed but not ratified, the state is bound to refrain from acts which would
defeat the object and purpose of a treaty40

In India, domestic legislation is required to make international treaties enforceable in

Indian law41. The Protection of Human Rights Act, 1994, incorporates the ICCPR into
India law through section 2(d) and 2(f). Section 2 (d) states that, human rights means
the rights relating to life, liberty equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by courts in
India. Section 2(f) states that, International Covenants means the International
Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural rights adopted by the General Assembly of the United Nations on the

38
UN Doc. E/CN.4/1997/60, 24th December 1996
39
State v. Makwaygne 1995 6 BCLR 665
40
Article 18, Vienna Convention on the Law of Treaties 1969

41
Jolly George Verghese & Anr vs The Bank Of Cochin, 1980 AIR 470

K
16th December, 1966.

Further, according to Article 51(c) of the Indian Constitution, the state shall endeavor to
foster respect for international law and treaty obligations in the dealings of organised
peoples with one another. While this does not make all of Indias treaty obligations
automatically binding on India, courts have respected rules of international law where
there is no contradictory legislation in India42

In my opinion, it will not be long before death penaltys retention is in consonance with
accepted Human Rights practice even remotely. The Supreme Court has usually upheld
International Covenants and the government should take cognizance of this. India is
trying to become a permanent member of the Security Council and a part of the Nuclear
Supply Group (NSG). It is in Indias interest to be looked upon by the world as an iconic
protector of Human rights to further its bid to garner power and autonomy in the
International landscape. Countries who demonstrate adherence to International laws are
often supported in their bid to be part of International positions of authority.

42
In National Legal Services Authority v. Union of India, (2014) 5 SCC 438, for example, the Supreme
Court of India said: Any international convention not inconsistent with the fundamental rights and in
harmony with its spirit must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the
Constitution to enlarge the meaning and content thereof and to promote the object of constitutional
guarantee.

L
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ane Perlez, Court Decides to Sentence Bali Bomber to Death, N.Y. TIMES, Aug. 8, 2003

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M
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Springer, 2014)

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N
35th Law Commission Report

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"Justice Ajit Shah - Death Penalty Is Unconstitutional, Arbitrary And Is A Legal

Lottery".YouTube. N.p.,

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