Courtesy: Deeksha Rao
India is amongst a few democratic countries where ‘death penalty’ exists as a form of punishment. However, the punishment can only be imposed if it meets the following requisite i.e. imposition only in the rarest of the rare cases. At first glance, it might look like a violation of our fundamental rights like Article 21 but in reality, it is not. Whether such punishment is even legal was answered by the Apex Court in “Jagmohan Singh vs. State of Uttar Pradesh”, and the court affirmed its maintainability. In another case of Channu Lal Verma vs. State of Chhattisgarh, although the Death Sentence was commuted to Life Imprisonment by the Hon’ble Apex Court, it refrained from holding anything which would have the effect of nullifying the provision for “Death Penalty.” This article will explore the various aspects related to the ‘death penalty’, primarily, the Capital Cases before the Allahabad High Court, and the Court’s approach.
What are Capital Cases?
Cases that impose the liability of a death sentence on the defendant if he/she is convicted, are called Capital Cases. These cases are prolonged given the seriousness of the penalty that takes away the defendants’ life. Also known as capital punishment and formerly known as judicial homicide, it is the state-sanctioned killing of a person.
Death Penalty is a legitimate punishment under Section 53 of the Indian Penal Code 1860. It continues as a kind of punishment under Section 4 of Bhartiya Nyaya Sanhita 2023, which implies that the Union Legislature is willing and accepting the punishment of “Death Penalty”.
What sections under the IPC/BNS incorporate the ‘death sentence’ apart from the other forms of punishment for the convict?
Section 121/147: Waging, or attempting to wage war, or abetting waging of war, against the Government of India.
Section 132/160: Abetment of mutiny, if mutiny is committed in consequence thereof.
Section 194/230: Giving or fabricating false evidence with intent to procure conviction of capital offense.
Section 302/103: Punishment for murder.
Section 305/107: Abetment of suicide of child or insane person
Section 364A/140(2): Kidnapping for ransom, etc.
Section 376A/66: Punishment for causing death or resulting in persistent vegetative state of victim.
Section 376E/71: Punishment for repeat offenders.
Section 396/310(3): Dacoity with murder.
This list is not an exhaustive list as there are other provisions of other legislations apart from IPC/ BNS passed by the Legislatures which also contain offences punishable with death penalty.
Whether death sentences can be commuted in India? Who has the power to grant this remedy?
Yes, death sentences can be commuted in India. Commutation denotes the substitution of one form of punishment with a lighter form of punishment. For example, a death sentence may be commuted to rigorous imprisonment.
In India, the power to reduce the death sentence to a less strict form of punishment is held by:
- Firstly, the High Courts and the Supreme Courts have the power to commute the death sentence if they believe there are other supervening circumstances.
- Secondly, according to section 5 of BNS, the appropriate government can commute a death sentence to another punishment without the consent of the offender.
- Thirdly, Article 72 empowers the President with 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.’
In a recent judgement by the Allahabad High Court in Zulfiqar Abbasi vs. State of U.P, the death penalty was commuted to life imprisonment. Consideration was given to the facts and circumstances of the case and the imposition of the death penalty was not considered within the ambit of ‘rarest of the rare’, which is a requisite in such punishments.
What are the mitigating circumstances to ensure the commutation of a death sentence? Or, Are there any parameters set by the courts to consider while considering a plea for commutation?
Recently, in Asif Thakur And 3 Others vs. State of U.P., the Allahabad High Court reiterated the Supreme Court’s judgement in Chhannu Lal Verma vs. State of Chhattisgarh stating the various mitigating circumstances. These include,
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
What are the aggravating circumstances under which the court may decline any plea of commutation?
The Bombay High Court in The State of Maharashtra vs. Sunil Rama Kuchkoravi confirmed the death sentence of a man convicted for killing his mother and thereby indulging in cannibalism. This case highlights the grave nature of a crime that attracts a stringent punishment.
The Allahabad High Court in Asif Thakur and 3 others vs. State of U.P. reiterated the aggravating circumstances stated by the Supreme Court. The same has also been followed by the Bombay High Court. These include:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed—
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.
What are the categories of offenders exempted from Capital Cases, i.e., cannot be punished with capital punishment?
- Minors: With a view that unless and until someone has reached adulthood, there is room for reformation, lawmakers have exempted minors from such a punishment.
- Pregnant Women: Imposing a death sentence on a pregnant woman would mean punishing the unborn child with the same. This forms the reasoning behind the exemption of pregnant women.
- Intellectually disabled: If the offender is unable to comprehend the nature and gravity of the offence due to his incapacity to do so, he is exempted from a death sentence.
What are the relevant provisions of the Criminal Procedure Code/ Bhartiya Nagarik Suraksha Sanhita pertaining to Capital Cases?
Under Section 366/407 of the CrPC/BNSS, any death sentence declared by the Sessions Court has to be confirmed by the High Court. The sentence cannot be executed unless the High Court has confirmed it. This affirmation has to be premised on the High Court’s review of the entire case- analyzing the evidence, facts and the session court’s judgement.
Another power exercised by the High Court is its jurisdiction, as mentioned in Section 374(2)/415(2) of CrPC/BNSS, to hear ‘appeals’ by convicts who have been sentenced to a term of more than seven years, conferred-
- In a trial held by a Sessions Judge or an Additional Sessions Judge (major cases triable by Sessions Court, including those of Offences of Murder, Rape etc.)
- In a trial held by any other court, a sentence of imprisonment for more than seven years has been passed. (which includes “Death Sentence”)
While considering such an appeal, the High Court is bound to review and verify the entire evidence and conclude based on its findings and justifications.
What is the result of confirmation or rejection of the death penalty by the High Court imposed by the trial court?
In case the High Court finds that all the requisites to qualify for a death sentence, as decided by the Sessions Court, are apt in a suit, the sentence is confirmed. However, the convict has a right to appeal to the Supreme Court. If the appeal is rejected by the Supreme Court, then a mercy petition can be filed before the President.
However, if the High Court rejects the death penalty imposed by the Sessions Court, the punishment is said to be commuted where a lesser form of punishment is imposed.
Conclusion:
Various recommendations have been made to remove the death penalty as a form of punishment in India. However, it still exists and is recognized for its deterrence value. Today, while imposing such a punishment, the Courts keep a balance between imposing death punishment and not infringing the rights of an individual.
Before the Allahabad High Court, mitigating circumstances play a crucial role in Capital Cases. “Rarest of the Rare Cases” is explored by the Allahabad High Court whenever it encounters a Capital Case, and weighs the Mitigating Circumstances and Aggravating Circumstances. Moreover, the principle of proof beyond reasonable doubt is also kept in mind while deciding such cases.