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Death sentence

Death penalty has been a mode of punishment since time immemorial. The arguments for and against has not changed much over the years. At this point of time when the issue [whether capital punishment must be abolished or not] is still raging, it will be appropriate to remind ourselves as to how the legislatures and the apex Court have dealt with this issue every time it has come up before them.

Procedure When Death sentence is Imposed

Special Reasons

The court has to record special reasons for imposing death sentence.

Confirmation by High Court

Court of session after passing a death sentence shall submit the proceedings to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. The court passing the sentence shall then commit the convicted person to jail custody under a warrant.

Enquiry and Additional Evidence

The High Court while dealing with confirmation may order further inquiry be made into, or additional evidence taken upon, any point bearing upon, any point bearing upon the guilty or innocence of the convicted person.

No order for confirmation

No order for confirmation shall be made until the period allowed for preferring an appeal has expired, or if any appeal is presented within such period, until such appeal is disposed of.In every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall when such court consists of two or more judges , be made, passed and signed by at least two of them.

Copy of Order Sent to Court of Session

In cases submitted by the court of session to the High Court for the confirmation of a sentence of death, the proper officer of the High Court shall ,without delay, after the order of confirmation or other order has been made by the High Court, send a copy of the order under the seal of the High Court and attested with his official signature, to the court of session.

 

Where a person is sentenced to death and an appeal from its judgment lies the execution of the sentence will be postponed until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period, until such appeal is disposed of.

Postponement of Death Sentence on Pregnant Woman

If a woman sentenced to death is found to be pregnant, the High Court shall order the execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to imprisonment for life.

Mode Of Execution

The issue regarding the constitutionality of hanging as a mode of execution came up before the Supreme Court in Deena v. Union of India {[1993] 4 SCC 645} , though the court asserted that it was a judicial function to probe into the reasonableness of a mode of punishment ,it refused to hold the mode of hanging as being violative of Article 21 of the constitution.

This issue was once again raised in Shashi Nayar {1992 SCC [CRI] 24] the court held that since the issue had already been considered in Deena, there was no good reason to take a different view.

Another issue which deserves attention is public hanging as a mode of execution. The issue of public hanging came to the Supreme Court through a writ petition Attorney General v. Lachma Devi {1989 SCC [CRI] 413} in this petition the order of Rajasthan High Court regarding the execution of the petitioner by public hanging under the relevant rules of Jail manual. The S.C. held that public hanging even if permitted under the rules would violate Article 21 of the Costitution.

Legality of Death Sentence.

In the case of Jagmohan V/s State of U.P. {1973 SCC [CRI] 169}the question of constitutional validity of death punishment was challenged before the SC, it was argued that the right to live was basic to freedom guranteed under Article 19 of the constitution . The S.C. rejected the contention and held that death sentence cannot be regarded as unreasonable per se or not in the public interest and hence could not be said to be violative of Article 19 of the constitution.

When can Death Sentence be granted

As have been stated earlier, after Cr.P.C.,1973, death sentence is the exception while life imprisonment is the rule. Therefore, by virtue of section 354(3) of CR.P.C., it can be said that death sentence be inflicted in special cases only. The apex court modified this terminology in Bachan Singh v. State of Punjab {AIR 1980 SC 898 } and observed- " A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.."

Rarest of rare cases

To decide whether a case falls under the category of rarest of rare case or not was completely left upon the court's discretion. However the apex court laid down a few principles which were to be kept in mind while deciding the question of sentence. One of the very important principles is regarding aggravating and mitigating circumstances. It has been the view of the court that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn. Full weightage should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than the death sentence is awarded, then and then only death sentence should be imposed.

Again in Machhi singh vs. State of Punjab { [1983] 3 SCC 470 }the court laid down:-

" In order to apply these guidelines inter alia the following questions maybe asked and answered: -

(a). Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b). Are there circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offenders?"

The SC has also discussed such aggravating and mitigating circumstances in various cases. These circumstances include: 

Aggravating Circumstances

# Murder committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extremeindignation of the community.

# Murder- for a motive which evinces total depravity and meanness.

# Murder of a Scheduled cast or Scheduled tribe- arousing social wrath (npt for personal reasons).

# Bride burning/ Dowry death.

# Murderer in a dominating position, position of trust or in course of betrayal of the motherland.

# Where it is enormous in proportion.

# Victim- innocent child, helpless woman, old/infirm person, public figure generally loved and respected by the community.

Attempts to Abolish the Death Penalty.

Several legislative attempts to abolish the death penalty in India have failed. Before Independence a private Bill was introduced in the 1931 Legislative Assembly to abolish the death penalty for penal code offences. The British Home Secretary at the time however rejected the motion.

The Government of independent India rejected a similar Bill introduced in the first Lok Sabha . Efforts were also made in Rajya Sabha to move resolution for abolition of death sentence in 1958 and 1962 but were withdrawn after some debate.

The Law Commission in its Report presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death penalty should be retained and that the executive (President) should continue to possess powers of mercy

Delay in execution of the death sentence

Delay in execution of death sentence is a factor which may be taken into consideration for commuting the sentence of death to life imprisonment.

If upon taking an overall view of all the circumstances and taking in to account the answers to the question posed by way of the test of rarest of rare cases, the circumstances of the case are such that death penalty is warranted, the court would proceed to do so.

Judicial Discretion

The ultimate discretion to decide whether death sentence is to be imposed or not , have been vested in the court. There is a debate going on about the extent of this judicial discretion.

A brief analysis of the cases decided by the SC. Regarding the question of death sentence over last 25 years, will reveal how  differing/dithering the judgments have been.

In the case of Mohd. Chaman {2000 SOL CASE NO 705 } , on the question of extent of judicial discretion, the court observed :-

"Such standardization is well nigh impossible. Firstly degree of culpability cannot be measured in any case.Secondly criminal cases canno tbe categorized there being infinite,unpredictable and unforeseeable variations.Thirdly in such categorization, the sentencing procedure will cease to be judicial. And fourthly, such standardization or sentencing discretion is policy matter belonging to the legislature beyond the courts functions"

International Scenario

As of June 2004, a total of 118 countries (including Canada, Mexico, Australia, Russia, South American nations and most European nations) have abolished the death penalty in law or practice. Of these, 80 countries and territories have abolished the death penalty for all crimes, fifteen countries have abolished the death penalty for all but exceptional crimes (such as wartime crimes) and 23 countries can be considered abolitionist in practice, i.e., they retain the death penalty in law but have not carried out any executions for the past ten years or more and are believed to have a policy or established practice of not carrying out executions.

Kasab’s case

Delay kills the purpose of death penalty: Ujjwal Nikam

The delay in execution of death penalty frustrates its very purpose, said Ujjwal Nikam, special public prosecutor in the 26/11 Mumbai attacks case, pitching strongly for the process to be expedited by bypassing the regular procedure.

“The time has come for the government to make a distinction between a regular case and a special case like the 26/11 attacks,” Nikam said in an interaction at the DNA office.

He emphasised there was no law specifying that mercy petitions should be considered only on the basis of serial number. “In special cases, we should bypass the others in the queue,” he insisted. Nikam was referring to the 28 mercy petitions pending with president Pratibha Patil.

Such petitions are filed before the president after the Supreme Court confirms the death penalty.

The president seeks the opinion of the Union home ministry before making a decision. “We should have a procedure whereby if the president doesn’t decide the mercy petition within six months, it is deemed rejected,” Nikam said.

A supporter of capital punishment as a deterrent, Nikam said, “I am in favour of capital punishment if the execution of the sentence is immediate. The purpose of the death penalty is to send out a message to society.”

Citing the case of the murder of Kisangopal Meghraj Rathi in 1994, Nikam said the death penalty of his three killers was confirmed 11 years ago.

“In a mercy petition, one of the accused claimed he was a juvenile at the time of the incident. Mantralaya is still enquiring into it,” he said.

On his most famous case till date — the 26/11 terror attack trial — Nikam said he was proud to be part of one of the world’s ‘shortest terror trials’. “The 9/11 trial has still not even started,” he said, adding this was the first time the prosecution had tendered the evidence of so many formal witnesses through affidavits as opposed to bringing the witnesses physically to court.

“Most defences don’t admit formal witnesses and are interested in prolonging the duration of the trial. The delay in turn results in witnesses turning hostile. Iused a little known section in the Criminal Procedure Code and ensured that the time of the court is saved,” Nikam said.

About Kasab, Nikam said he had never met anyone as unusual as him“I have handled trials all over the state, from Bhandara to Mumbai. I have dealt with all kinds of dreaded criminals. But I have never met anyone like Mohammed Ajmal Amir Kasab,” Nikam said.

Afzal Guru’s case.

Mohammad Afzal, also known as Afzal Guru, was convicted of conspiracy in the December 2001 attack on the Indian Parliament and was sentenced to death by the Supreme Court of India in 2004. The sentence was scheduled to be carried out on 20 October 2006. Afzal was given a stay of execution and remains on death row.Contents

The case

Eighty witnesses were examined for the prosecution and ten were examined for defense. The judgment mentions:

"The incident, which resulted in heavy casualties, has shaken the entire nation and the collective conscience of the society will be satisfied if the capital punishment is awarded to the offender."

The prosecution's case

The attack was conducted jointly by the Lashkar-e-Toiba (LET) and the Jaish-e-Mohammad (JEM) Kashmiri militant separatist groups. Seven members of the security forces, including a female constable, were killed, as were the five still incompletely identified men who carried out the attack.

Afzal's cell phone number was found on each of the attackers, written on the backs of their unsealed paper IDs, in an identical hand, according to the Indian government's prosecutors in the case. There were also cell phones and SIM cards on the attackers, and it was Afzal's cell phone records.

The police case was based on evidence that the individuals who participated on the terrorist attack on Indian Parliament on 13 December 2001 had been in contact with Afzal in Srinagar just prior to the operation, and on an apparent confession made by the accused.

Pressure for clemency-There is an appeal to issue clemency to Afzal from various human rights groups including political groups in Kashmir, who believe that Afzal Guru did not receive a fair trial and was subject to a frame up of corrupt and inefficient police work. Human rights activists in various parts of India and the world have demanded reprieve as they believe that the trial was flawed. Arundhati Roy and Praful Bidwai castigated the trial and argued that Afzal has been denied natural justice.[2][3] Accusations of human rights violations have been made by many.

Former Jammu and Kashmir Chief Minister Ghulam Nabi Azad of the Indian National Congress, Communist and local political groups voiced their support of clemency for Afzal. It is alleged many have done so to appease Muslim voters in India.

Ram Jethmalani holds that it is completely within the President's power to commute the Death sentence and is not a mercy plea. He says, "It’s a misnomer to call it a mercy petition. It leads to total misunderstanding of the constitutional power. The constitutional power is that the President has the power to disagree with the Supreme Court both with its findings of fact and law."

But other are of the view that such a sweeping Constitutional power cannot be given to the President inasmuch as it would subvert the concept of justice enshrined in the Constitution.

The Jammu and Kashmir People's Democratic Party president and MP, Mehbooba Mufti commented that the Centre should pardon Afzal if Pakistan accepted the clemency appeal for Sarabjit Singh.

Ms. Mufti, said that if clemency appeals were made for Sarabjit citing his Indian nationality, voices should also be raised for Afzal for "he too is an Indian citizen. "Two citizens of India cannot be treated with different yardsticks" she had said.

However, the All India Anti-Terrorist Front Chairman M.S. Bitta has urged the President of India not to accept any clemency pleas on Afzal's behalf. He warned that his organisation would launch agitations if Afzal was pardoned. He also criticised statements of various political leaders and blamed them for "encouraging activities of militants in Jammu and Kashmir".

An India Today poll in late October showed that 78% of Indians supported the death penalty for Afzal

On 12 November 2006, the former Deputy Prime Minister of India, Mr. Lal Krishna Advani criticized the delay in carrying out the death sentence on Guru for the Parliament terror attack, saying, "I fail to understand the delay. They have increased my security. But what needs to be done immediately is to carry out the court's orders".

The Bharatiya Janata Party (BJP) has severely criticized Arundhati Roy. BJP spokespoerson Prakash Javadekar said:

"Those who are supporting Afzal by demanding that he should not be hanged are not only acting against public sentiment in the country but are giving a fillip to terrorist morale," [8]

On the 23nd of June 2010, the Ministry of Home Affairs has recommended the President's office to reject the mercy petition.

On the 7th of January 2011, a whisleblowing site indianleaks.in has leaked a document which states that the mercy petition file is not with President of India.[9] This was confirmed by Home Minister P. Chidambaram in New Delhi on 23 Feb 2011.[10]

In this case death sentence to afzal guru has been confirmed by everybody  and then also he has not being hanged till now.

Death penalty for 11 in India train burning case- After nine years.

By R.K. MISHRA | AP

Published: Mar 1, 2011 21:39 Updated: Mar 1, 2011 21:39

AHMADABAD: An Indian court sentenced 11 Muslims to death Tuesday after finding them guilty of setting fire to a train in which 60 Hindus were killed nine years ago, an act that triggered one of India’s worst outbursts of communal violence.

The 11 were among the 31 Muslims who were convicted last week of being part of a criminal conspiracy that led to the deaths of 60 people in the fire on the Sabarmati Express train coach packed with Hindu pilgrims in western Gujarat state in 2002.

Judge P.R. Patel sentenced the remaining 20 defendants to life in prison, Prosecutor J.M. Panchal said. Sixty-three others were acquitted, including Maulvi Umarji, a local politician who prosecutors said was the leader of the mob that set fire to the train.

The train deaths set off days of communal riots when Hindu mobs rampaged through Muslim neighborhoods, towns and villages in Gujarat from February to April 2002. Most of the dead were Muslims.

The violence was among India’s worst since its independence from Britain in 1947, and the case laid bare the animosity between the groups. Many insist that the fire was an accident, as determined by an independent probe in 2006. But others, including a 2008 commission set up by the state government, insist it was planned by Muslims.

The government, which is controlled by the Hindu extremist Bharatiya Janata Party, has been accused by the opposition and the media of not doing enough to stop the violence and of even stoking it. Chief Minister Narendra Modi, who was at the helm when the fire and rioting happened, remains in power, and his officials deny the charge.

Meanwhile, India’s Supreme Court has criticized the Modi government for its handling of cases against the Hindus rioters:

No one has been convicted in the Muslim deaths and half of the more than 4,000 cases registered after the riots have been dropped for lack of evidence.

Defense attorney I.M. Munshi said Tuesday that those convicted would appeal against the verdict in a higher court. They have 90 days to do so.

The trial began in 2009 with charges against 94 people accused of involvement in the train fire.

More than 250 witnesses gave evidence in the court, which ruled that the fire was a “pre-planned act.

India: Delay in hanging leads to reduced sentences

New Delhi: The government may be unwittingly entitling condemned prisoners - including Parliament attack convict Mohammad Afzal Guru - to a lesser life sentence by delaying decisions on their mercy pleas, Supreme Court rulings suggest.

The apex court has repeatedly held that excessive delay in executing the death penalty, leaving the condemned prisoner to suffer a "dehumanising effect" of "facing the agony of alternating between hope and despair" renders the capital punishment too inhuman to be inflicted, thus entitling the prisoner to the lesser sentence of life term.

The court rulings assume significance in view of the fact that Guru, who was sent to the gallows by a trial court in December 2002, recently moved the apex court seeking an early decision on his mercy plea.

"It seems to us that the extremely excessive delay in the disposal of the case of the appellant (a condemned prisoner) would by itself be sufficient for imposing a lesser sentence of imprisonment for life," ruled the apex court in 1971 on an appeal by West Bengal native Vivian Rodricks.

Rodricks was awarded capital punishment in 1964 for a murder committed in 1962.

"It is now January 1971, and the appellant has been for more than six years under the fear of the sentence of death. This must have caused him unimaginable mental agony," said the apex court.

"In our opinion, it would be inhuman to make him suffer till the government decides his mercy petition. We consider that this now is a fit case for awarding the sentence of imprisonment for life," the bench ruled.

In 1982, while hearing an appeal by the Uttar Pradesh government against an Allahabad High Court judgment acquitting a convict who had been awarded the death sentence by a trial court for killing three people in December 1972, the Supreme Court refused to impose the death penalty on him due to excessive delay.

"The occurrence took place some time in December 1972, and more than eight years have elapsed since. The present appeal has been pending for five years. We feel that although the murders committed by the convict were extremely gruesome, brutal and dastardly, yet the extreme penalty of death is not called for in the circumstances of this particular case," said the apex court, awarding life term to the convict identified as Sahai.Earlier, the apex court had virtually set a maximum limit of two to four years for executing the death penalty awarded to condemned prisoners. In case of a delay beyond this limit, the court converted the death penalty to life sentence.In 1983, the Supreme Court relaxed the two-year norm for executing death sentences. It, however, upheld the principle that excessive delay in executing the death sentence entitled the condemned prisoner to lesser sentence.

"The prolonged anguish of alternating hope and despair, the agony of uncertainty, the consequences of such suffering on the mental, emotional and physical integrity and health of the individual can render the decision to execute the sentence of death an inhuman and degrading punishment in the circumstances of a given case," the apex court said in the Sher Singh versus Punjab case.

"A prisoner who has experienced living death for years on end is entitled to invoke the jurisdiction of this court for examining if, after all the agony and torment he has been subjected to, it is just and fair to allow the sentence of death to be executed," the court said.

Last September, while deciding an appeal by a condemned prisoner who killed his wife and five children in 2006, the apex court said: "It would be open to a condemned prisoner, who has been under a sentence of death over a long period of time for reasons not attributable to him, to contend that the death sentence should be commuted to one of life (sentence)."

The court, in fact, in its September 2009 ruling even advised the government to stick to a "self-imposed rule" to decide on condemned prisoners' mercy petitions within three months.

"We must say with the greatest emphasis that human beings are not chattels and should not be used as pawns in furthering some larger political or government policy," said a bench of Justice H.S. Bedi and Justice J.M. Panchal last September.

The latest high profile case which has seen the death penalty being awarded is that of Ajmal Amir Kasab, the sole surviving terrorist in the 9/11 terror attacks. Already questions have been asked about when he will finally be hanged.

Conclusion

In India the present position regarding death sentence is quite a balanced one. But the wide judicial discretion given to the court has resulted into enormously varying judgment, which does not potray a good picture of the justice delivery system. What is needed to be done is that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly complied with, so that the person convicted for offence of similar nature are awarded punishment of identical degree.

My opinion

In my opinion there should not be death sentence ,the people who commit very massive offences should be given rigorous solitary  confinement for lifetime as after death the criminals will be at peace, everything will be over for them  and there will be no regression of their act by them.


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