India

Death Penalty In Law

Does the country’s constitution make reference to capital punishment?

Yes. The Constitution states that no person can be deprived of his life except through a lawful procedure. [84] The Constitution also gives the President and the Governor of a State the right to suspend, pardon, or commute death sentences. [85] Moreover, the Constitution provides that if the High Court has reversed an order of acquittal of the accused on appeal and sentenced him to death, or if it withdrew for trial any case from a lower court in which it sentenced the accused to death, then these cases will be appealed to the Supreme Court. [86] Finally, the Constitution states that the Governor can confer authority over capital cases to the relevant District or Regional Council. [87] Thus, the law explicitly states that capital punishment may be constitutional.

Does the country’s constitution make reference to international law?

Yes. The Constitution provides that India should strive to respect international law and treaty obligations. [88] While this implies India should comply with its obligations under human rights treaties, the Constitution makes no explicit reference to international human rights obligations.

Have there been any significant changes in the application of the death penalty over the last several years?

After 8 years without executions, India carried out two executions in close succession in November 2012 and February 2013. Both prisoners had been convicted of taking part in terrorist attacks. [89] The executions were carried out after President Pranab Mukherjee swiftly rejected mercy petitions, in contrast to the slow pace of his predecessors. Mukherjee’s presidency could thus mark the beginning of an accelerated pace of executions in India. [90] Moreover, the last two executions were marked by unusual secrecy: neither the prisoner’s family nor the public were informed of the President’s decision to deny clemency until after the execution had been carried out. This runs counter to prior government practice and the Right to Information Act, which requires all public authorities to inform citizens of their important decisions, including upcoming executions. After mercy petitions are rejected by the President, the prisoner and the petitioners are supposed to be informed of the decision. Once an execution date has been set, the prisoner and his relatives are to be notified. Such policies ensure that the prisoner and relatives are able to utilize judicial remedies to further stay or commute a pending execution. According to reports, Qasab, who was executed in November 2012, only learned of the date of his upcoming execution the day before it took place. Reportedly, the Union Home Minister and Maharashtra Chief Minister said that the government’s actions concerning Qasab’s execution were kept secret because they wanted to prevent further efforts by human rights activists to prevent his execution. [91] There is even more controversy surrounding the February 2013 hanging of Afzal Guru, whose family was notified of his death by letter two days after the execution had taken place. [92]

The recent executions broke with a trend of gradual abandonment of the death penalty. According to statistics, India had approximately 140 executions per year between 1954 and 1963. Between 1996 and 2000, this rate was roughly 1 execution per year; between 1998 and 2007, there was only one execution. [93] Over the last 20 years, India has continued to reduce the number of executions it has carried out. [94] In recent years, very few people have been executed.

However, the scope of the death penalty according to the law has actually expanded over time. For instance, new anti-terrorist legislation since the 1990s has included the death penalty. [95]

In early 2013, the death penalty was expanded to certain instances of rape. Following the brutal gang rape and murder of a 23-year old woman in December 2012, a wave of protests erupted throughout the country calling for harsher and swifter punishments for rape, which had previously been punished with 7 to 10 years’ imprisonment. [96] The Verma Committee, formed by the government to study legislative reforms and headed by former Chief Justice Verma, recommended enhancing the maximum sentence for rape to “the remainder of natural life,” but rejected the death penalty as a possible punishment. [97] Nevertheless, on February 3, 2013, President Pranab Mukherjee approved an ordinance under which rape is punishable by death if it leads to death or if it leaves the victim in a “persistent vegetative state.” [98] Repeat perpetrators of aggravated rape also face capital punishment under this ordinance. [99] The ordinance was strongly criticized by human rights groups for its introduction of capital punishment, its inclusion of vague and discriminatory provisions, and its grant of effective legal immunity to state security forces accused of sexual violence. [100] Despite this, the ordinance was passed into law in April 2013 as the Criminal Law (Amendment) Act, 2013. [101] A parliamentary panel’s recommendations that persons convicted for rape and murder be denied access to clemency proceedings – in contravention of India’s obligations under the ICCPR – was not included in the final law. [102]

Also in response to the December 2012 Delhi rape, several state governments proposed to lower the age for juveniles’ eligibility for punishment if convicted to as low as 16 years of age. One of the six accused in the Delhi rape is a juvenile and will escape harsher criminal punishment because of the current laws that place the bar of adult status at 18 years of age. [103] The government confirmed that it would not reduce the age of juvenile offenders before trying him. [104] If the age of juveniles is legally changed, the heinousness of crimes rather than the age of the convicted could determine punishments rendered. Thus, those persons under 18 could face the death penalty rather than the maximum of three years in a reformatory center as stipulated by the Juvenile Justice Act. [105]

The government has been called on to review the death penalty provision under Clause 3 of the proposed 2012 Piracy Bill. [106] The Parliamentary Standing Committee is concerned that a death penalty provision would deter foreign governments from cooperating in order to extradite accused pirates. [107]

There is increasing concern about the incorrect application of capital punishment law. In August 2012, several former judges called on the President to commute the sentences of 13 death row inmates who they say were wrongly sentenced per incuriam, or “out of error or ignorance.” [108]

In January and February 2014, the Indian Supreme Court emphasized the importance of the clemency process for capital inmates and commuted a total of 22 death sentences. [109] The Supreme Court reasoned that undue, inordinate, and unreasonable delay in considering mercy petitions constitutes torture. [110] The Court stated that pursuant to Article 32 of the Constitution, the Supreme Court has the power to commute death sentences into life imprisonment upon undue delay in disposal of mercy petitions. [111] The court also denounced other practices, such as executing individuals with mental illnesses and the use of solitary confinement. [112] In addition, the court determined that the government must carry out post-mortem examinations of executed prisoners to provide the courts with data on the cause of death, which will allow for consideration of whether hanging constitutes cruel and inhuman punishment. [113] In late February 2014, the Supreme Court commuted the death sentences of four inmates because the Court determined that they were not beyond reformation. [114] The decisions came at an especially important time, shortly after India carried out its first execution in 8 years.

Is there currently an official moratorium on executions within the country?

No, there is no official moratorium. [115]

Have there been any significant published cases concerning the death penalty in national courts?

In Bachan Singh v. State of Punjab [116] , the Supreme Court of India upheld the constitutionality of the death penalty. However, the Supreme Court stated in its decision that the death penalty should only be used in the “rarest of rare” cases. [117] This case has significantly influenced subsequent jurisprudence, resulting in somewhat restricted application of the death penalty. [118] Subsequently, in Mithu v. State of Punjab, the Court determined that the mandatory death penalty is unconstitutional in India. [119] While later legislation for drug and atrocity offenses prescribes the mandatory death penalty, and the Supreme Court has not expressly struck down the language in such legislation as unconstitutional, Indian courts do not seem to apply the mandatory death penalty for these crimes. [120]

In Smt. Triveniben v. State of Gujarat (1989), the Court diminished condemned prisoners’ constitutional protections against cruel and unusual punishment due to extended stays on death row. The Court ruled that undue delay in execution of a sentence of death could be grounds for judicial commutation of the condemned’s sentence; however, delay would only be a single factor, and courts would only consider delays to which the condemned did not contribute (by filing an appeal or a petition). [121] This ruling has seriously limited the extent to which courts in India protect the rights of death sentenced prisoners to be protected from lengthy death row stays under severe or inhuman conditions, [122] although death-sentenced prisoners may technically have a right to contest their sentences if they are not executed within 5 years of sentencing. [123]

In a landmark decision, the Bombay High Court ruled on June 16, 2011 in the case India Harm Reduction Network v. Union of India that the mandatory death penalty for drug offences was “unconstitutional.” While the Court did not strike down Section 31-A of the Narcotic Drugs and Psychotropic Substances Act of 1985, it did state that the courts were no longer obligated to hand down the death penalty for repeat drug offenders under the Act. [124]

The Supreme Court ruled in Bhagwan Das Vs. State (2011) that the death penalty should be rendered as punishment in cases of “honor killings.” [125] The Court reasoned that doing so would send a clear and deterring message to those committing such crimes. “All persons who are planning to perpetuate honor killings should know that the gallows await them,” the Court said. [126] The Law Commission of India, however, disagreed with the recent uptick of death sentences handed down in honor killing cases throughout the country following the Supreme Court’s ruling. The Commission said that the death penalty should be used to punish the convicted “only in very exceptional and rare cases.” The Commission also gave recommendations of its own on how to better handle them in an August 2012 report, including a proposal of a new law that would prohibit caste assemblies that often condemn marriages that lead to honor killings. [127]

In February 2012, the Supreme Court ruled in State Of Punjab v. Dalbir Singh that the mandatory death penalty as punishment for crimes stipulated under article 27(3) of the Indian Arms Act of 1959 was unconstitutional in light of judicial review under the Constitution and the judgments in Bachan Singh v. State of Punjab and Mithu v. State of Punjab. Because the Court ruled against the law, that particular article under the Arms Act is null and void. The courts can now impose a lesser sentence. A bill to further amend the Arms Act article in question was introduced prior to the ruling in December 2011. [128] The bill is currently pending. [129]

In Shatrughan Chauhan & Another vs. Union of India & Others, the Supreme Court of India emphasized the importance of the clemency process for capital inmates. [130] The court criticized the executive for its unreasonable delay in considering mercy petitions of capital inmates on death row. The court observed that “undue, inordinate, and unreasonable delay” in carrying out death sentences causes psychological torture. [131] The court also denounced other practices, such as executing individuals with mental illnesses and the use of solitary confinement. [132] In total, the Supreme Court commuted 15 death sentences. [133] Just a month later, the Court reaffirmed the Shatrughan decision in V. Sriharan Murugan v. Union of India & Others. [134] There, the Court commuted the death sentences of three inmates because of the unreasonable delay in considering their mercy petitions, a delay of more than 11 years. It also rebuffed the argument that death row inmates had to prove actual harm occasioned by the delay in order to have their sentences commuted. [135]

Where can one locate or access judicial decisions regarding the death penalty?

The Judgment Information System of the Indian Supreme Court has an online archive of all decisions dating back to 1950. http://judis.nic.in/supremecourt/chejudis.asp. In addition, another Supreme Court Caselaw website provides access to Supreme Court decisions, but requires a subscription. http://supremecourtcaselaw.com/. Judicial opinions can also be located at http://www.indiankanoon.org/. Many court rulings are also published in law journals. [136] Bombay High Court decisions can be accessed at http://bombayhighcourt.nic.in/. Finally, Amnesty International’s 2008 report (Lethal Lottery: The Death Penalty in India, ASA/20/007/2008) delivers a comprehensive analysis of Indian Supreme Court jurisprudence on the death penalty up through its publication.

What is the clemency process?

Once the appeal process has been exhausted and the higher courts have confirmed the defendant’s death sentence, the defendant can submit petitions for mercy to the state or national executive. [137] According to the Indian Constitution, the State Governor and the President of India both have the power to suspend, pardon, or commute death sentences. [138] With the advice of their cabinets, these individuals can pardon those on death row. [139] In addition, the executive can commute the death sentence of any offender to any other punishment provided by the Penal Code without the consent of the offender. [140]

The Indian Supreme Court held in early 2014 that the executive had to consider mercy petitions within a reasonable time period. [141] The Court held that inordinate, undue, and unreasonable delay in considering mercy petitions constitutes torture in violation of Indian and international law. [142] It also went on to issue certain guidelines when considering mercy petitions. The Court stated that prisoners have a right to legal aid to prepare legal challenges to the clemency process and to be informed of the result of their mercy petition in writing. In addition, it stated that prison officials should ensure that prisoners receive regular mental health evaluations and be given “appropriate medical care.” [143]

Are jury trials provided for defendants charged with capital offenses?

No, jury trials were abolished in India following a 1962 Supreme Court ruling. [144]

Brief Description of Appellate Process

Those sentenced to death have the right to appeal both the sentence and the conviction. [145] If a case was originally tried before a Court of Session, the defendant can appeal to a High Court, and if a case was originally tried before a High Court, then the defendant can appeal to the Supreme Court. [146] The High Court is the first appellate court for capital cases, except for certain terrorism-related cases where the Indian Supreme Court is the first court of appeal. [147] In order to appeal to the Supreme Court, leave must first be obtained from the High Court or the Supreme Court. [148]

In the High Court, trials are presided over by a bench composed of at least two judges. The High Court can confirm a death sentence, commute the death sentence to another punishment, convict the defendant for another offense, order a new trial, or acquit the defendant. [149]

If a lower court does not impose a death sentence on an individual, the state can still appeal to the High Court to increase the penalty to a death sentence. There is no automatic right of appeal to the Supreme Court. [150] However, in cases where the High Court increases a defendant’s sentence to the death penalty after a lower trial court acquitted the defendant, the case may be appealed to the Supreme Court. [151] In these cases, the High Court or the Supreme Court must grant ‘special leave’ to file an appeal with the Supreme Court. [152]

In the military system, sentences passed by courts-martial under the Army, Navy, or Air Force cannot be appealed to a higher court. [153]