Death Penalty In India: A Constitutional Dilemma

The death penalty is a highly controversial topic in India, with several legislative attempts to abolish it failing. The Law Commission of India has argued for its retention, citing the need to maintain law and order in a diverse population. The Indian Constitution, under Articles 72 and 160, grants the President and Governor the power to pardon death sentences. The Supreme Court has also upheld the death penalty's constitutionality in landmark cases, such as Jagmohan Singh vs. State of Uttar Pradesh, while also limiting its use to the 'rarest of rare' cases. However, human rights groups have raised concerns about the vigor of clemency plea rejections. The death penalty's constitutionality continues to be challenged, with arguments centering on human rights and the right to life.

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The 'rarest of rare' doctrine

The death penalty is regarded as constitutional in India, despite legislative attempts to abolish it. The Indian Constitution does not expressly hold capital punishment as unconstitutional. The Supreme Court of India has upheld the constitutionality of the death penalty in several cases, including Jagmohan Singh vs. State of Uttar Pradesh, Bachan Singh vs. State of Punjab, and Sher Singh vs. State of Punjab.

Despite the 'rarest of rare' doctrine, there have been concerns that the manner in which the death penalty is being imposed in a large number of cases raises questions about whether trial courts are adhering to it. According to the Asian Centre for Human Rights (ACHR) report, "The State of Death Penalty in India 2013", a high number of death sentences were pronounced, with Uttar Pradesh topping the list with 370 death sentences, followed by Bihar with 132. However, it is important to note that during this period, sentences for 4,321 convicts were commuted from death penalties to life imprisonment.

Critics argue that the 'rarest of rare' doctrine has been eroded and that the death penalty has become routine in Indian courts. They advocate for the abolition of the death penalty in India, joining other nations that have eliminated this form of punishment. However, supporters of the death penalty in India argue that it acts as a deterrent, ensures justice for victims, and is necessary for maintaining law and order.

Clemency and mercy petitions

The power to pardon is intended to correct potential judicial errors, recognising that no human system of justice is infallible. Delay in the execution of a death sentence has been highlighted as a concerning issue, with the Supreme Court acknowledging that excessive delay can cause mental agony to the accused and be a mitigating factor in pleas for commutation. In Shatrughan Chauhan v. Union of India (2014), the Supreme Court held that excessive delay in carrying out the death sentence was a crucial factor in considering commutation.

The Law Commission of India has argued for retaining the death penalty, citing the country's diverse population, varying levels of education and morality, and the need for maintaining law and order. However, non-governmental organisations in India have been advocating against cruel and degrading punishment, pushing for the protection of human rights. The jurisprudence surrounding capital punishment has evolved through landmark judgments of the Supreme Court, such as the 'rarest of rare' doctrine established in Bachan Singh v. State of Punjab (1980).

Mercy petitions have had varying outcomes depending on the President in power. During the tenure of Smt. Pratibha Patil, the first woman President of India (2007-2012), out of 39 mercy pleas, she commuted 34 and rejected only five. In contrast, her successor, Pranab Mukherjee (2012-2017), rejected 31 of the 33 mercy pleas he decided. The current President, Ram Nath Kovind, recently rejected a mercy petition filed by Jagat Rai of Bihar, who was sentenced to death for killing six family members over a buffalo theft.

The right to life

The death penalty, as a legal concept, is the highest punishment given in law. It gives the state a right over one's life. The execution methods can include beheading, electrocution, hanging, lethal injection, and shooting. In India, the death penalty is regarded as constitutional, and it is awarded in the 'rarest of rare' cases. The Indian Penal Code of 1860 lists various capital offences that can result in a death sentence, such as criminal conspiracy, murder, waging war against the government, and abetment of mutiny.

The constitutional validity of the death penalty in India has been challenged multiple times. In the case of Jagmohan Singh vs. State of Uttar Pradesh, the Supreme Court upheld the constitutional validity of the death penalty, stating that it did not violate Articles 14, 19, and 21 of the Constitution. The court asserted that capital punishment was not anti-thesis to one's right to life. However, in the same case, Bhagwati J. dissented, observing that the death penalty is not only unconstitutional, violating Articles 14 and 21, but also undesirable from several points of view.

The 'rarest of rare' doctrine, first stated in the Bachan Singh vs. State of Punjab case, requires judges to balance aggravating and mitigating circumstances to determine if a death sentence is appropriate. This doctrine has been elaborated on in subsequent cases, such as Machhi Singh vs. State of Punjab, and it has been emphasised that the death penalty must be imposed only in exceptional and aggravating circumstances.

Despite the constitutionality of the death penalty in India, there is ongoing debate and concern regarding the moral and social aspects of this form of punishment. Human rights groups have expressed alarm at the vigor with which clemency pleas have been rejected, and there have been legislative attempts to abolish the death penalty. The number of executions in India has drastically reduced in the last 20 years, and the Supreme Court has also tried to limit the awarding of the death penalty and protect the rights of those sentenced to death.

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Methods of execution

Capital punishment in India involves the legal killing of a person who has committed a crime punishable by death, such as murder, treason, terrorism, or drug trafficking. The methods of execution used in India include hanging and shooting. Hanging is an ancient method of execution that has been a part of Roman law, Anglo-Saxon law, English law, French law, and German law. In India, hanging has been deemed a fair, just, and reasonable procedure within the meaning of Article 21 of the Constitution, which guarantees the fundamental right to life and personal liberty. However, it has also been criticised as being barbaric, inhumane, and cruel.

The Army Act of 1950 recognises both hanging and shooting as legitimate methods of execution. The Army, Air Force, and Navy are the only organisations capable of executing the death penalty by shooting.

In recent years, there have been discussions about switching to more advanced execution modes, such as lethal injection, which has been recommended by the Law Commission of India as a less cruel method. However, the constitutional validity of capital punishment in India has been challenged multiple times, with some arguing that it violates Articles 14, 19, and 21 of the Constitution, which guarantee equality, public order, and the right to life and personal liberty. Despite these challenges, capital punishment is still regarded as constitutional in India, with the Supreme Court upholding its validity in several cases.

Legislative attempts to abolish the death penalty

Despite several legislative attempts to abolish the death penalty in India, it is still prevalent in the country. In 2018, the Indian Home Ministry asked various state governments to respond to a proposal to abolish capital punishment. Out of the 14 states that responded, only two supported ending the death penalty, while the remaining 12 argued that it was necessary to deter people from committing serious and violent crimes.

Rights groups and activists have disputed this, stating that evidence from around the world shows that capital punishment does not have a unique deterrent effect on crime. Amnesty International's report, 'Lethal Lottery: Death Penalty in India', also calls for the abolition of the death penalty in India, arguing that the country's judicial system has failed to meet its own uniform standards and other internationally accepted standards. The report analysed 700 Supreme Court judgements on the death penalty over 50 years (from 1950 to 2006) and found that the fate of death row prisoners was arbitrary, indicating that the punishment has been used as an abusive means of punishing convicts.

In addition to Amnesty International, other non-governmental organisations in India are fighting against cruel and degrading punishment and advocating for the protection of human rights. Despite these efforts, India voted against a moratorium on the death penalty at the UN General Assembly in December 2022, with 125 countries voting in favour. Similarly, in 2021, India opposed a draft resolution calling for a moratorium on capital punishment at the UN Human Rights Council.

Although the actual number of executions in India is comparatively low, and the country's execution rates have drastically decreased over the last 20 years, the death penalty continues to be implemented. The most recent executions in India took place in March 2020, when four of the 2012 Delhi gang rape and murder perpetrators were executed at Tihar Jail in Delhi.

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