Chanakya’s Danda-Niti emphasis on the death penalty for heinous crime which was followed by Gupta dynasty.It could very clearly be found in Akbar-nama where execution used to take place by elephant for theft, tax evaders and rebels.According to study of a great French writer Louis Rousselet in 1868, describe execution by elephant. Even during the British-Era death penalty for heinous crime was speedy in nature. India’s Post-Independence era saw a revolt of death penalty internationally. This is the sole reason in the situations when the Capital punishment has always been a controversial issue in India and other countries as well. Most countries have reduced the death penalty and even removed from their statues. 

  • Judicial Decision Which Broaden The Ambit Of Death Penalty-
  • Bachan Singh’s case was the landmark case in the criminal law. It broadened the ambit of death penalty by introducing the concept of- ‘Rarest Of The Rare’.
  • In Bachan Singh Vs State of Punjab 1982,  Hon’ble Supreme Court stated that capital punishment was to be given in only in the ‘rarest of rare’ cases.
  • Supreme Court upheld the constitutionality of death penalty in this case. The need for this doctrine was to reduce the ambiguity in the kind of cases in which death penalty was to be awarded. 
  • It was further held by the court that Death sentence ought not to be imposed except in “the rarest of rare” cases when the option of awarding life imprisonment is “unquestionably foreclosed”. 
  • Further the court held that For persons convicted of murder, life imprisonment is the rule and death sentence is the exception. The court also stated that –‘The Court must pay heed to the circumstances of the crime as well as the criminal’.
  1. Mitigating circumstances is more than Aggravating circumstances-
  • The Court must draw up a list of aggravating and mitigating circumstances.
  • The mitigating circumstances must be given a liberal and expansive interpretation in accordance with the sentencing policy writ enlarge in Section 354(3).
  • A ‘balance sheet’ of aggravating and mitigating circumstances should be drawn up.  the “crime test”, the “criminal test” and the “rarest of rare test”, according to these tests, aggravating circumstances must exist against the accused and no mitigating circumstance must exist in his favour.
  • Thereafter, if those two tests are satisfied, the court must consider whether   the case falls within the rarest of the rare category.
  1. Prolonged detention awaiting execution-Prolonged detention to awaiting the execution of a death sentence is an unjust, unfair and unreasonable procedure and the only way to correct the wrong was to cancel the death sentence and The dehumanising factor of prolonged delay in the execution of a sentence of death, in the view of the Supreme Court, has the constitutional implication of depriving a person of his liberty in an unjust, unfair and unreasonable way. The delay has been the inhuman suffering with mental torture which a condemned prisoner suffers waiting to be executed.
  1. Confirmation need to be given by high court-When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. The fast track courts/Sessions Court have the power to  pronounce death penalty but it needs to be confirmed by High Court before issuing death warrant. Any sentence of death passed by Sessions Judge shall be subject to confirmation by the High Court.This is not applicable to legislations which are not included in CrPC. Whenever such case laid before the High Court, it may-
  • Confirm the death sentence passed by the court of sessions,
  • Directs the Sessions Court/Fast track court to  further inquiry into the matter or order  for fresh trial.
  • If the court finds lack of evidence or unsatisfactory arguments it may order for acquittal of the accused.
  1. Appeal to supreme court– When the Death Sentence is confirmed by the High Court the convict has the option to appeal hon’ble Supreme under Article  132, 134 and 136(Special Leave Petition) of Indian Constitution.
  2. Review of supreme court– If the hon’ble Supreme Court upheld the decision of death penalty for the convict in Appeal the convict can file review petition under Article 137.
  3. Curative petition in supreme court– If the Hon’ble Supreme Court upheld the decision of death penalty for the convict in review petition under Article 137 of the constitution of India the convict can file  a curative petition in the Hon’ble Supreme court.
  • Mercy petition either to president or governor– 
  • Article 72 states that “Power of president to grant pardon, reprieves, respites or remissions commute sentences in the following cases:
  1. In every case where the punishment or sentence is by Court-martial,
  2. in every case where the punishment or sentence is for an offence against any law relating to the matter to which the executive power of Union extends,
  3. in all cases where the sentence is a sentence of death.
  • If we consider article 161 of Indian Constitution -Governor of a state has the powers to grant pardon, reprieves, respites or commute sentences of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. 
  • In case of the death sentence, only the President has the power to grant pardons. The governor of the state has no power to pardon. The power of the president to pardon is not absolute. It can only be exercised with “aid and advice” of the Council of Ministers. The pardoning power to the president can be exercised in by any mode. No particular mode has been prescribed for the same.  
  • In most of the cases it happens that the mercy petition is laying on the table of the president for years together and this leads to delay in execution petitions.
  • In the case of Afzal Guru’s(Parliament Attack Case)Mercy petition  laid to the table of the president for almost 7 year.
  • In the case of Holiram Bordoloi  Vs The Union of India the mercy petition was kept on the table of the president for 9 years and 3 months because of which Holiram Bordoloi’s death sentence was converted into life imprisonment.
  • Similarly happened in the infamous ‘Nithari Case’ where the delay of three years and a half month for disposing of the mercy petition led to the converting death sentence into life imprisonment of Koli’s (convict) by stating the time taken in disposing of mercy petition as ‘‘unnecessary and unreasonable’’. 
  • The government should take stringent steps to eliminate the flaws in  the criminal laws.
  • Challenging the decision of the President on mercy petition-
  • When the President of India rejects the mercy petition the Convict can approach the Hon’ble Supreme court to challenge the decision of the President. The Hon’ble Supreme Court is the last resort. 
  • When the Hon’ble Supreme Court rejects this last petition there is no other way out to protect the convict from the Gallows.  The supreme court will pronounce the date and time on which the execution need to take place.
  • The numbers 
  • Out of 2500 people awarded death sentence in India since 2000 to 2020 only 8 were executed.
  • Conclusion
  • ‘Justice delayed is Justice denied’ is a legal maxim which means that if  party who has suffered injuries is unable to exercise their legal remedy due to inordinate delays than this amounts to justice denied. 
  • The Indian constitution provides for a fair trial. The Indian criminal system is in no hurry to hang the convict. Enough time is given to the convict to prove his innocence.
  • From the Court of Sessions to the High Court, from the High Court to the four petitions in the Supreme Court and mercy petition with the president. The entire process is time taking and sometimes the convicts either dies due to his age or illness or the death penalty is converted in to life imprisonment, which does no justice to the victim.
  • The procedure concerning appeal, revision and mercy should be winded up in shortest of time so as to maintain the faith of people in justice. A system should be set up where such matter should be heard within a time limit so that there is no delay to the Gallows.

About the authors

(LEFT IMG)Shyamdhar Upadhyay, student of law at Thakur Ramnarayan College of Law. He has also completed a Certificate Course in Real Estate Laws. In this article he writes a practical guide about how an execution of death warrant takes place and what are the reasons as to why there is a delay in execution of a warrant and some suggestions as to how that delay can be avoided.

(RIGHT IMG)Darshana Mishra is a student of law at Thakur Ramnarayan College of Law.The author has completed Certificate courses in Constitution & Fundamental Rights and Contract Drafting Respectively.In this article she explains the factors contributing to the postponement of punishments and the delays that are caused in execution of Punishments. Alongside, she has also focused on how the procedural aspects become aggravating factors for such delays.

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