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Death Penalty in India

Death penalty, also known as Capital punishment, is the sentencing of an accused (offenders) to death after he is convicted by the court of law in a criminal offence. It is awarded in the case where a heinous crime is committed. Death penalty is the highest penalty awardable to the accused in the Indian courts.

Shooting and hanging are generally the two methods of death penalty in India. Hanging is the method of execution in the civil court system carried out in accordance with section 354(5) of the Code of Criminal Procedure1973 whereas hanging as well as shooting are methods of execution provided under The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957.

The issue of the death penalty in India has been in controversy since independence, until Criminal procedure (amendment) act of 1955, came to force, capital punishment was the rule and life imprisonment was an exception. After the amendment of CrPc act in 1955, the power to decide the punishment between life imprisonment and death penalty was given to the courts.

In Jagmohan Singh vs State of UP 1973,The Honorable Supreme Court held that, according to article 21 deprivation of life is constitutionally permissible if that is done according to the procedure established by law, later on in 1979, in Randhir Prasad vs State of UP, it was held by the Honorable Supreme Court that if the Murderous operation of a criminal Jeopardies social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.

But the major case in regard with the death penalty was Bachan Singh v. the State of Punjab 1980 case where a constitutional bench of hon'ble supreme court propounded the dictum of rarest of rare cases according to which death penalty is not to be awarded except in the rarest of rare cases when the alternative option is unquestionably foreclosed.
Later in the year 1983, Machhi Singh v. State of Punjab 1983 case, certain considerations were given by the supreme court to determine whether a case falls under the ambit of rarest of rare or not. There is no statutory definition for the term rarest of rare, it depends upon facts and circumstances of a particular case, manner of commission of murder, motive, magnitude of the crime etc.

In Sher Singh v. State of Punjab and Triveniben v. State of Gujarat, it was held that the death sentence is constitutionally valid and is within the limitation of the rules given in Bachhan Singh Case, and supreme court contended affirmatively that constitution does not prohibit death penalty.

Mithu v. State of Punjab was another case where hon'ble supreme court said that death penalty is not a mandatory punishment and is unconstitutional. It was also held that Section 303 violated the Articles 14 and 21 of our Constitution and so it was deleted from the IPC.

Crimes where death penalty can be awarded
Aggravated murder:
It is punishable by death in accordance with Section 302 of the Indian Penal Code, 1860.

Other offences resulting in death- punishable to a person who commits murder during an armed robbery or abduct a victim for the money, is punishable with the death penalty if the victim is killed.

Terrorism-related offences not resulting in death:
The use of any special category of explosive to cause an explosion that could endanger life or cause serious damage to property is punishable by the death penalty.

Rape not resulting in death:
According to the 2018 Criminal Law Ordinance, a person who is liable for raping a girl who is below 12 years of age may be sentenced to death. The 2018 amendment also specifies the death penalty or life imprisonment for a girl's gang rape under the age of 12.

Kidnapping not resulting in death:
If any person detaining anybody and threatens to kill him or harm him during which the kidnapper's act actually resulted in the death of the victim, will be liable under Section 364A of Indian Penal Code, 1860, kidnapping not resulting in death is an offence punishable by death.

Military offences not resulting in death:
If a member of army, navy or air force found abetting a soldier from his duty, seduce him/her or doing other similar offences, he can be awarded death sentence.

If any person tries to wage a war or helps soldiers or officers in committing mutiny can be awarded death penalty.

In India, order of capital punishment can be passed by the hon'ble Supreme court, high courts and the courts of session. Section 28 of the Criminal Procedure Code 1973 grants the power to high courts and session courts to pass any sentence to the convict which is conferred by the law, whereas Section 28(2) states that a Session Judge or Additional Session Judge may pass any sentence authorized by law, but any sentence of death passed by any Judge shall be subject to confirmation by the High Court. The provision under section 354(5) of the Criminal Procedure Code 1973 states that the convict shall be "hanged till death".

A study was conducted by the national law university, Delhi which reported that, since independence of the country, 755 people have been handed till now and all of them were men. However, a woman named Ramshri was sentenced to death on April 6, 1998, but her sentence was later converted to life imprisonment at the last moment as she gave birth to a child before her execution in the jail itself. And now for the first time a woman named Shabnam is going to be hanged till death. She has been convicted for a brutal murder of a family of 7 members in Amoraha district (UP) in 2008.

After a death sentence is confirmed by the court, a last resort of pardon is still available with the accused that is to appeal for mercy petition. The constitution of India under article 72 and article 161 grants special power to the president of India and the governor respectively.

Article 72:
Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.

Article 161:
Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.

Though, the power of the president is not absolute, the decision is taken by consulting the council of ministers and there is no mechanism to check the legality of decision taken by president or governor in respect to mercy petition.

Remission, Commutation And Suspension Of Sentence

Remission means reducing the time period of a sentence without changing its nature, Commutation means reduction or substitution of a sentence with a less severe one (death sentence to life imprisonment) and Suspension means to withdraw a sentence for a short time i.e. temporary postponement of a sentence.

Remission and Suspension of a sentence
Section 432 of Code of Criminal Procedure Code,1973 states Power to suspend or remit sentence.

Remission if different from suspension in a great extent, in suspension means postponement of execution of the sentence for a short period whereas in remission nature of the sentence remains the same but the time period will be reduced.

Section 432 of code of criminal procedure deals with remission of a sentence granted by the appropriate government. The head of the state has powers to grant remission to the prisoners on the offenders request and there is also general remission the a specific category of prisoners which of given by the aid and advice of council ministers only on special occasion.

Example: A has murdered B and has been sentenced for imprisonment for 30 years, but his sentence was reduced to 15 years, this is remission of a sentence.

However, If there is a breach of condition of remission then, the remission will be cancelled and the offender will have to complete the term of his original sentence. The aim behind granting remission is the reformation of prisoner, it's intention is to ensure that a prisoner maintains good relation and conduct with the fellow prisoners, it also helps in improving the work culture. Remission Is generally granted on the basis of prisoners behaviour while he is in the prison, his cooperation in work etc.

Suspension on the other hand is dealt in the chapter 32 of the code of criminal procedure, 1973. It is postponement of the court order (judgement) for a small time period or indefinite time in certain cases.

Suspension can be conditional or unconditional, unconditional suspension means that there are no conditions attached with the suspension whereas conditional suspended sentences as the word describes, the offender has to complete certain conditions before/with his suspension.

Example: A has been convicted for murder and has been sentenced for 20 years imprisonment, after 15 years he has been granted unconditional suspension, which means he is free to do what so ever he likes, but if he has been granted conditional suspension with a condition that he have to stay crime-free for next 18 months, in that case if he commits a crime then the judge can impose his suspended sentence on him again.

The court is free to revoke the suspension of a sentence and impose any sentence which is available at the time of conviction, even after it has suspended the imposition. A judge can review the matter and decide whether or not to revoke the suspension and, if revoked, what sentence to impose.

Commutation of a sentence
Commutation means changing the nature of punishment, generally it is the reduction of punishment from a severe punishment to a less severe one.

Example: A has been sentenced to death can be commuted to a life imprisonment. There is no restriction in commutation of a sentence. Under section 433 of the code of criminal procedure, 1973, the concerned government has the power in an appropriate case to commute a sentence. Some sentences are under the ambit of commutation, mercy plea, commonly known as death sentence in one of them.

The main controversy behind the commutation is that it raises the issue of human rights of the offender and impact the society by the grave crimes.

Mostly death sentence is generally reduced to 14 years of life imprisonment in accordance with the code of criminal procedure.

Section 434 of the criminal procedure code also states that the powers of states government under section 432 and section 433 can also be exercised by the central government in case of death sentence.

In the Rajiv Gandhi assassination case, the Apex court commuted the death sentence of the accused. After which Tamil government proposed that the death sentence of all the seven convicts should be exonerated and this proposal was then challenged in the supreme court which observed that:
The Apex Court observed that life imprisonment could only mean imprisonment for the rest of the life of the convict. The right to claim commutation, remission etc. as provided under Article 72 or Article 161 of the Constitution of India would always be present.

The power which is conferred to the executive in our constitution is beyond the judicial power of the courts and thus they cannot be intervened with. Moreover, a special category of sentence was created that was either a life imprisonment or imprisonment for a term not longer than 14 years provided beyond application of remission or depending on the adjudication of the high court or the supreme court to substitute death penalty.

In last 10 years, president has commuted more than 20 death sentences to life imprisonment with the aid and advice and recommendation of the ministry of home affairs.

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