Capital punishment in India

The Constitution Bench judgment of Supreme Court of India in Bachan Singh vs. State of Punjab (1980) (2 SCC 684) made it very clear that Capital punishment in India can be given only in rarest of rare cases.[3][19] This judgement was in line with the previous verdicts in Jagmohan Singh vs. State of Uttar Pradesh (1973), and then in Rajendra Prasad vs. State of Uttar Pradesh (1979).[20][21][22] The Supreme Court of India ruled that the death penalty should be imposed only in "the rarest of rare cases."[1] While stating that honour killings fall within the "rarest of the rare" category, Court has recommended the death penalty be extended to those found guilty of committing "honour killings", which deserve to be a capital crime.[23] The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings.[24]

An appeal filed in 2013 by Vikram Singh and another person facing the penalty of the death sentence questioned the constitutional validity of Section 364A of the Indian Penal Code.[25]

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 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.[26]

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, 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.[27] In 1989, the Narcotic Drugs and Psychotropic Substances Act, 1985 was passed which applied a mandatory death penalty for a second offence of "large scale narcotics trafficking".

In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities.[1] On 3 February 2013, in response to public outcry over a gang rape and murder 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".[28][29] The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.

In January 2014, a three-judge panel headed by Chief Justice of India Palanisamy Sathasivam commuted sentences of 15 death row convicts, ruling that the "inordinate and inexplicable delay is a ground for commuting death penalty to life sentence".[30][31] Supreme Court of India ruled that delays ranging from seven to 11 years in the disposal of mercy pleas are grounds for clemency.[32] The same panel also passed a set of guidelines for the execution of a death row convict, which includes a 14-day gap from the receipt of communication of the rejection of the mercy petition[33] to the scheduled execution date, after going through the Shatrughan Chauhan vs. Union of India case.[34][35][36] Subsequently, in February 2014, Supreme Court commuted death sentence of Rajiv Gandhi's killers on the basis of 11-year delay in deciding on mercy plea.[37][38] It was subsequently commuted to life imprisonment.[39] In March 2014, Supreme Court of India commuted death sentence of Devinder Pal Singh Bhullar, convicted in a 1993 Delhi bombings case, to life imprisonment, both on the ground of unexplained/inordinate delay of eight years in disposal of mercy petition and on the ground of insanity/mental illness/schizophrenia.[40][41][42]

The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) where the question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.[43] The Supreme Court in the said case held that to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.[44]

The present day constitutional clemency powers of the President and Governors originate from the Government of India Act 1935 but, unlike the Governor General of India, the President and Governors in independent India do not have any prerogative clemency powers.

In V. Sriharan and Murugan v. Union of India, (2014) 4 SCC 242 the Supreme Court reiterated that the clemency procedure under Article 72/161 provides a ray of hope to the condemned prisoners and his family members for commutation of death sentence into life imprisonment and, therefore, the executive should step up and exercise its time honoured tradition of clemency power of guaranteed in the constitution one way or the other within a reasonable time. Profuse deliberation on the nature of power under Article 72/161 of the Constitution has already been said in Shatrughan Chauhan.[49]

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.

The Code of Criminal Procedure (1898) called for the method of execution to be hanging. The same method was adopted in the Code of Criminal Procedure (1973).[50] Section 354(5) of the above procedure reads as "When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead." The hanging method is long drop, the method devised by William Marwood in Britain. The person has their neck snapped as they fall through the trapdoor and is left hanging until they are dead.

As of 2011, only two people had been hanged over the previous 15 years and there was no longer a professional hangman to be found.[51] 8 men have been hanged so far in the 21st century, most recently in 2020. The convicts of the Nirbhaya case were hanged till death at 5:30 am IST on 20 March 2020.[52]

The Army Act, The Navy Act and The Air Force Act also provide for the execution of the death sentence.[53] 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.

Seema Gavit and Renuka Shinde are the only two women in India on death row, whose mercy pleas were rejected by the President after the Supreme Court of India confirmed their death sentence.[57]

As of July 2015, President Pranab Mukherjee had rejected 24 mercy pleas including that of Yakub Memon, Ajmal Kasab, Afzal Guru.[58][59]

On 27 April 1995, Auto Shankar was hanged in Salem Central Jail at Salem, Tamil Nadu. On 14 August 2004, Dhananjoy Chatterjee was hanged for the murder (following a rape) of 14-year-old Hetal Parekh[60] at her apartment residence in Bhowanipore, West Bengal on 5 March 1990.[61][62] Chatterjee, whose mercy plea was rejected on 4 August 2004, was kept at Alipore Central Jail in Kolkata, West Bengal for nearly 14 years.[63]

In 1997, Mahendra Nath Das was sentenced to death. He was infamous for having surrendered to police while holding a sword and the severed head of his murder victim.[64] In 2013, the Supreme Court commuted his sentence to life in prison.[65]

On 3 May 2010, a Mumbai Special Court convicted Ajmal Kasab of murder, waging war against India, possessing explosives and other charges.[66] 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 other Pakistani terrorists. He was found guilty of 80 offences, including waging war against the nation, which is punishable by death.[67] Kasab's death sentence was upheld by the Bombay High Court on 21 February 2011.[68] and by the Supreme Court on 29 August 2012.[69] 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, Maharashtra.

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. He was hanged on 9 February 2013 at Delhi's Tihar Central Jail.[70][71]

Yakub Memon, convicted of 1993 Bombay bombings, was executed by hanging in Nagpur Central Jail at Nagpur, Maharashtra at around 6:30 am IST on 30 July 2015.[72][73] On 21 March 2013 the Supreme Court confirmed Memon's conviction and death sentence for conspiracy through financing the attacks. On 30 July 2013 the Supreme Court bench headed by Chief Justice P. Sathasivam, Justice B. S. Chauhan and Justice Prafulla Chandra Pant rejected Memon's application for an oral hearing and dismissed his review petition by circulation. Indian President Pranab Mukherjee rejected Memon's petition for clemency on 11 April 2014. Memon then filed a curative petition to the Supreme Court, which was rejected on 21 July 2015. He became the first convict in 31 years to be hanged in Nagpur Central Jail and the fourth in India since 2004.[74]

On 5 March 2012 a sessions court in Chandigarh ordered the execution of Balwant Singh Rajoana, a convicted terrorist from Babbar Khalsa, for his involvement in the assassination of Chief Minister of Punjab Beant Singh.[75] The sentence was to be carried out on 31 March 2012 in Patiala Central Jail,[76] 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.[77]

The four adult perpetrators Akshay Thakur, Vinay Sharma, Pawan Gupta and Mukesh Singh of the infamous 2012 Delhi gang rape and murder who survived to trial were sentenced to death by hanging on 13 September 2013.[78] They were executed at 5:30 a.m. on 20 March 2020, after a lengthy legal battle.[79]