Capital punishment in India
Capital punishment in India is the highest legal penalty for crimes under the country's main substantive penal legislation, the Bharatiya Nyaya Sanhita, as well as other laws. Executions are carried out by hanging as the primary method of execution. The method of execution per Section 393 of Bharatiya Nagarik Suraksha Sanhita, 2023 is "Hanging by the neck until dead", and the penalty is imposed only in the 'rarest of cases'.
Currently, there are around 564 prisoners on death row in India. The most recent executions in India took place on 20 March 2020, when four of the 2012 Delhi gang rape and murder case perpetrators were executed at the Tihar Jail in Delhi.
History
In the Code of Criminal Procedure, 1898 death was the default punishment for murder and required the concerned judges to give reasons in their judgment if they wanted to give life imprisonment instead. By an amendment to the CrPC in 1955, the requirement of written reasons for not imposing the death penalty was removed, reflecting no legislative preference between the two punishments. In 1973, when the CrPC was amended further, life imprisonment became the norm and the death penalty was to be imposed only in exceptional cases, particularly if a heinous crime committed deems the perpetrator too dangerous to even be 'considered' for paroled release into society after 20 years and required 'special reasons'. This significant change indicated a desire to limit the imposition of the death penalty in India.Capital offences
Capital punishment in the [Bharatiya Nyaya Sanhita]
Capital punishment in non-BNS offences
List of capital offences challenged in the court
Categories of people exempted from capital punishment
Process
Trial court
After the completion of proceedings as prescribed by the Code of Criminal Procedure, the judge pronounces the judgment in a case under Section 235. In case of conviction of the accused, there shall be a mandatory pre-sentencing hearing as according to Section 235, Code of Criminal Procedure. The Code of Criminal Procedure, 1973, also contains a provision regarding special reason for death sentence. Section 354 of the Code provides that the court must record "Special reasons" justifying the sentence and state as to why an alternative sentence would not meet the ends of justice in the case, according to the principle 'Life imprisonment is the rule and death sentence is the exception'.Confirmation by High Court
After the decision and sentencing by the Court of Sessions, a high court needs to confirm it for the death sentence to be valid. The high court may confirm the death sentence awarded by the Court of Sessions, pass any other sentence warranted by law, annul the conviction, convict the person of any offence for which the Court of Sessions might have convicted them, order a new trial on the same or amended charge or acquit the accused person under Section 368, Code of Criminal Procedure. The High Court may also enhance the sentence awarded by the Court of Session to death sentence according to Section 386, CrPC. The High Court shall not enhance the sentence awarded to the accused without giving them a reasonable opportunity of showing cause against such enhancement and while showing such cause, the accused may even plead for acquittal or reduction of sentence awarded by the Court of Session. Additionally, the State Government or the Central Government under Section 377, CrPC may direct the public prosecutor to appeal to the High Court against the sentence granted by the Court of Session on grounds of inadequacy. Further, exercising of its suo-moto revisional powers under Section 397, CrPC read with Section 401, CrPC, the High Court may, even in the absence of an appeal enhance the sentence awarded by the Court of Session. The High Court may also in accordance with Section 367 of the Code conduct or direct further inquiry into or additional evidence to be taken on any point bearing upon the guilt or innocence of the convicted person. Unless directed by the High Court, the accused need not be present during this period of this inquiry or when additional evidence is taken. The High Court also has the power under Section 407 of the CrPC to withdraw a case pending before a subordinate court and conduct the trial, and may award the sentence of death.Special leave petition
After the death sentence is confirmed by the High Court, an appeal by Special Leave Petition under Article 136 of the Constitution may be filed. The Supreme Court may in its discretion after considering the issues grant special leave to appeal under Article 136 of the Constitution. Exercising its power under Article 136, the Supreme Court decides whether the special leave petition deserve to be heard as appeals. Correcting an earlier trend of dismissal of SLPs involving the death sentence in limine it was held in two cases of Babasaheb Maruti Kamble v. State of Maharashtra, November 2018 and Jitendra @ Jeetu v. State Of Madhya Pradesh & Others, July 2020 that special leave petition filed in those cases where death sentence is awarded by the courts below, should not be dismissed without giving reasons, at least qua death sentence. It was opined that in such cases a deeper scrutiny coupled with reasons in support of death penalty should be given by the Court.Review and reopening of a review
A petition seeking review of a judgment or order passed by the Supreme Court may be filed under Article 137 of the Constitution before the Supreme Court within thirty days from the date of such judgment or order. As per the Supreme Court in Mohd Arif @ Ashfaq v. The Registrar, Supreme Court of India & Ors, September 2014, review petitions for death sentence cases should be heard in open court, but there would be a time limit of 30 minutes for oral hearing. Such a procedure would be just and fair. The cases would be heard by a bench of three judges, and the special procedure would apply to all cases of death sentence where the review had been dismissed but the sentence was yet to be executed, including cases brought under Terrorist and Disruptive Activities Act. Various cases such as M. A. Antony @ Antappan v. State of Kerala, April 2009, Md. Mannan @ Abdul Mannan v. State Of Bihar, April 2011, Ambadas Laxman Shinde And Ors V. The State Of Maharashtra, October 2018 were reopened after being dismissed earlier to be heard in the open court after the above judgement, which resulted in commutations and an acquittal.Curative petition
As per the Supreme Court judgment in Rupa Ashok Hurrah v. Ashok Hurrah & Ors, April 2002 after the dismissal of the review petition, the Supreme Court may allow a curative petition to reconsider its judgment or order if it is established that there was a violation of principles of natural justice or apprehension of bias on part of a judge. The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers. The curative petition would be circulated before the same bench which decided the review petition, if available, or the three senior-most judges of the Supreme Court. The curative petition would be disposed of without oral arguments, unless ordered otherwise by the Supreme Court.Mercy
Articles 72 of the Constitution gives power to the President of India to grant pardons and to suspend, remit or commute sentences in certain cases. The president may consider the case of the convict and may pardon the death sentence. The Governor cannot pardon a death sentence. The Governor can only suspend, remit, or commute a death sentence under article 161 of the Constitution of India.Various legal issues surrounding mercy petition has arisen time and again, one of them being delay. In V. Sriharan @ Murugan v. Union of India, February 1947, the Supreme Court reiterated that the clemency procedure under Article 72/161 provides a ray of hope to the condemned prisoners and his family members for commutation of death sentence into life imprisonment and, therefore, the executive should step up and exercise its time honoured tradition of clemency power of guaranteed in the constitution one way or the other within a reasonable time. In the case of Shatrughan Chauhan v. Union of India, January 2014, a three-judge bench of the Supreme Court delivered a landmark judgment on the death penalty: holding, in particular, that an excessive delay in carrying out the death sentence was an essential mitigating factor in a plea for commutation. This was also held in a previous case Triveniben V. State of Gujarat & Ors, February 1989 stating that the Court may consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. Though the inordinate delay may be a significant factor, that by itself cannot render the execution unconstitutional. Further, the courts have also recognised some other supervening circumstances which should be considered during mercy petition such as mental illness/insanity, trauma, solitary confinement etc.