Capital punishment in India
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The Supreme Court in Mithu vs State of Punjab struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence for offenders serving a life sentence. The imposition of capital punishment is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment. The number of people executed in India since independence in 1947 is a matter of dispute; official government statistics claim that only 52 people had been executed since independence. However, the People's Union for Civil Liberties cited information from Appendix 34 of the 1967 Law Commission of India report showing that 1,422 executions took place in 16 Indian states from 1953 to 1963, and has suggested that the total number of executions since independence may be as high as 3,000 to 4,300. In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban death penalty.
- 1 Crimes punishable by death
- 2 Clemency in the Indian Constitution
- 3 Execution of death sentence
- 4 History
- 5 References
- 6 External links
Crimes punishable by death
Indian Penal Code, 1860
In colonial India, death was prescribed as one of the punishments in the Indian Penal Code,1860 (IPC), and the same was retained after independence.
|Section under IPC||Nature of crime|
|120B||Punishment of criminal conspiracy|
|121||Waging, or attempting to wage war, or abetting waging of war, against
the Government of India
|132||Abetment of mutiny|
|194||If an innocent person be convicted and executed in consequence of such false
evidence to procure conviction of capital offence
|305||Abetment of suicide of child or insane person|
|364A||Kidnapping for ransom|
|396||Dacoity with murder
If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished
|376A||Rape/Sexual Assault An amendment in the year 2013 provided for death penalty in case he inflicts an injury upon woman during rape which causes her death or to be in persistent vegetative state.|
The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in "the rarest of rare cases." While stating that honour killings fall within the "rarest of the rare" category, Supreme Court has recommended the death penalty be extended to those found guilty of committing "honour killings", which deserve to be a capital crime. The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings.
In an appeal filed by Vikram Singh and another person, facing the death sentence, the constitutional validity of Section 364A of the Indian Penal Code has been questioned.
In addition to the Indian Penal Code, a series of legislation enacted by the Parliament of India have provisions for the death penalty.
Sati is an inhumane practice involving the burning or burying alive of any widow or woman along with the body of her deceased husband or any other relative or with any article, object or thing associated with the husband or such relative. Under the Commission of Sati (Prevention) Act, 1987 Part. II, Section 4(1), if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death.
The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes. Under Section 3(2)(i) of the Act, bearing false witness in a capital case against a member of a scheduled caste or tribe, resulting in that person's conviction and execution, carries the death penalty In 1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed which applied a mandatory death penalty for a second offence of "large scale narcotics trafficking". On 16 June 2011, the Bombay High Court ruled that Section 31A of the NDPS Act, which imposed the mandatory sentence, violated Article 21 (Right to Life) of the Constitution and that a second conviction need not be a death penalty, giving judges discretion to decide about awarding capital punishment.
In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities. On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi, 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". The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.
Clemency in the Indian Constitution
After the award of the death sentence by a sessions (trial) court,the sentence must be confirmed by a High Court to make it final. Once confirmed, the condemned convict has the option of appealing to the Supreme Court. Where the condemned prisoner is unable to appeal to the Supreme Court; or where the court either refuses to hear the appeal or upholds the death sentence, the prisoner also has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State. Detailed instructions regarding procedure to be observed by the states for dealing with petitions for mercy from or on behalf of convicts under sentence of death and with appeals to the Supreme Court and applications for special leave to appeal to that court by such convicts are laid down by the Ministry of Home Affairs. The Ministry of Home Affairs is neither required by law to publish a list of pending and processed mercy petitions, nor does it have to disclose the reasons tendered by the President. The Central Information Commission in July 2013 rejected a request by A. G. Perarivalan convicted in the Rajiv Gandhi assassination case for those details. In February 2013, the office of the President took off the 'mercy petition' section from its official website and it said matters relating to the subject for public information will henceforth be dealt by the Union Home Ministry. On January 21, 2014 the Supreme Court of India, bench of Chief Justice P. Sathasivam and Justice R. Gogoi and Justice Shiva Kirti Singh held that inordinate delay in deciding a petition of a convict sentenced to death by the President can be torture and inhumane punishment to the convict. In such circumstances, if the convict approaches the Court, the Court will hold that his fundamental right to protection of life and personal liberty under Article 21 of the Constitution is violated and the Court will commute his sentence to life imprisonment.
Power of the President
The present day constitutional clemency powers of the President and Governors originate from the Government of India Act 1935 but, unlike the Governor-General, the President and Governors in independent India do not have any prerogative clemency powers.
Article 72(1) of the Constitution of India states:
The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
Supremacy of the legislature
Subsequent to Supreme Court judgement in Samsher Singh v. Union of India case and 42nd Amendment of the Constitution, 1976 Article 74(1) reads as "[t]here shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice." Despite the language of the constitutional provisions, clemency is exercised not by the President but by the government. For all practical purposes, the decision on a mercy petition is arrived at within the MHA[clarification needed] as the subject has been allocated to the Department of Home, MHA vide the second schedule of the Government of India (Allocation of Business) Rules 1961. A memorandum on the case is prepared by a junior official in the Ministry and on the basis of the same, a Joint Secretary or an Additional Secretary ‘recommends’ a decision to commute the death sentence or reject the mercy petition. This ‘recommendation’ is considered by the Minister of Home Affairs who makes the final ‘recommendation’, on behalf of the Cabinet of Ministers, to the President. The proviso to Article 74(1) provides the President with only one opportunity to return the ‘recommendation’ for the decision to be reviewed. If no change is made, the President has to sign his assent.
Execution of death sentence
The execution of death sentence in India is carried out by two modes, namely hanging by the neck till death and being shot to death.
Colonial era legislation, the Code of Criminal Procedure, 1898, provided for hanging by the neck until death. This has been adopted by the Code of Criminal Procedure, 1973. Section 354(5) of the above procedure reads as:
"When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead."
The execution is carried out in accordance with the section and Jail Manuals of the respective states. An attempt to challenge this method of execution failed in the Supreme Court, which stated in its 1983 judgment that hanging did not involve torture, barbarity, humiliation or degradation.
The Army Act and Air Force Act also provide for the execution of the death sentence. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as:-
"In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death”.
This provides for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death. The Army Act, 1950, and the Navy Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950.
About 26 mercy petitions are pending before the president, some of them from 1992. These include those of Khalistan Liberation Force terrorist Davinder Singh Bhullar, the cases of slain forest brigand Veerappan's four associates—Simon, Gnanprakasham, Meesekar Madaiah and Bilvendran—for killing 21 policemen in 1993; and one Praveen Kumar for killing four members of his family in Mangalore in 1994. On 27 April 1995, Auto Shankar was hanged in Salem, Tamil Nadu.
At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not executed), according to Amnesty International figures. No official statistics of those sentenced to death have been released.
Afzal Guru was convicted of conspiracy in connection with the 2001 Indian Parliament attack and was sentenced to death. The Supreme Court of India upheld the sentence, ruling that the attack "shocked the conscience of the society at large." Afzal was scheduled to be executed on 20 October 2006, but the sentence was stayed. Guru was hanged on 9 February 2013 at Delhi's Tihar Jail.
On 3 May 2010, a Mumbai Special Court convicted Ajmal Kasab of murder, waging war on India, possessing explosives, and other charges. On 6 May 2010, the same trial court sentenced him to death on four counts and to a life sentence on five other counts. Kasab was sentenced to death for attacking Mumbai and killing 166 people on 26 November 2008 along with nine Pakistani terrorists. He was found guilty of 80 offences, including waging war against the nation, which is punishable by the death penalty. Kasab's death sentence was upheld by the Bombay High Court on 21 February 2011. and by the Supreme Court on 29 August 2012. His mercy plea was rejected by the president on 5 November and the same was communicated to him on 12 November. On 21 November 2012, Kasab was hanged in the Yerwada Central Jail in Pune.
On 5 March 2012, a sessions court in Chandigarh ordered the execution of Balwant Singh Rajoana, a terrorist from Babbar Khalsa, convicted for his involvement in the assassination of Punjab Chief Minister Beant Singh. The sentence was to be carried out on 31 March 2012 in Patiala Central Jail, but the Centre stayed the execution on 28 March due to worldwide protests by Sikhs that the execution was unfair and amounted to a human rights violation.
On 13 March 2012, a court in Sirsa, Haryana, condemned to death the 22-year-old Nikka Singh for raping a 75-year-old woman and later murdering her by gagging her mouth with a shawl and strangling her neck with her salwar on 11 February 2011. "The imposition of the death sentence was most appropriate in this case. The court has held that it was a cold-blooded murder and where rape was committed on an innocent and hapless old woman," said Neelima Shangla, the Sirsa additional district and sessions judge. "The rape and cold-blooded murder of a woman, who was of grandmother’s age of the accused, falls in the rarest of the rare case." The court held that Nikka Singh was a "savage" whose "existence on earth was a grave danger to society" as he had also attempted to rape two other village women.
In June 2012, it became known that Indian president Pratibha Patil near the end of her five-year term as president commuted the death sentence of as many as 35 convicts to life, including four on the same day (2 June), which created a storm of protest. This caused further embarrassment to the government when it came to light that one of these convicts, Bandu Baburao Tidke—convicted for the rape and murder of a 16-year-old girl—had already died five years previously from HIV.
As of 11 February 2013, there are 476 convicts on death row in India. States with the maximum number of prisoners on death row are Uttar Pradesh (174), Karnataka (61), Maharashtra (50) and Bihar (37).
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