Confirmation And Execution Of Death Sentence

Coverage of this Article

Key Takeaways

-Various offenses that are subjected to the provision of the death penalty in India under IPC, CrPC, UAPA, etc.

Introduction

-Chapter XXVIII of the Code of Criminal Procedure, 1973 (CrPC) deals with the confirmation of the death sentence and Chapter XXXII of the CrPC deals with the execution of the death sentence. 

What Are The Offences That Are Subjected To Death Penalty In India?

-Capital Punishment is a kind of punishment in which a person is executed and deprived of his life by the law because of the commission of a certain crime, after a proper trial before the concerned court. 

The Provisions For The Confirmation and Execution of Death Under CrPC

Sentence of death to be submitted by Court of Session for confirmation

-Section 366 of CrPC says that, whenever a sentence of death is passed by the Court of Session, the same cannot be executed unless it is confirmed by the Hon’ble High Court. In order to get the confirmation, the proceedings of the case need to be submitted to the Hon’ble High Court. 

Power to direct further inquiry to be made or additional evidence to be taken

-Section 367 provides that, if the Hon’ble High Court deems it fit to carry-on further inquiry or seeks additional evidence regarding the case concerned, 

Power of High Court to confirm sentence or annul the conviction

-Section 368 of CrPC talks about the powers of the Hon’ble High Court to confirm the sentence provided to the convicted person or acquit him, depending upon the submission made before it by the Court of Session. 

Confirmation or new sentence to be signed by two Judges

-Section 369 of CrPCrequires the Hon’ble High Court to get the confirmation or any new sentence if passed by it in furtherance of the submission made to it, signed by at least two judges if such a Court consists of two or more judges.

Procedure in case of difference of opinion

-Section 370 of CrPC provides that if the opinions of the Judges of Hon’ble High Court in deciding a matter submitted to it become contradictory and the number of Judges deciding on either side are equal, then the fate of the case is decided in a manner subject to the provisions of Section 392 of CrPC.

Procedure in cases submitted to High Court for confirmation

-Section 371 of CrPC says that, as soon as the confirmation of the death sentence or any other order has been passed by the Hon’ble High Court regarding the case submitted to it by the Court of Session, the proper officer of the High Court send the copy of such order under the seal of the High Court and his official signature, to the Court of Session.

Execution of order passed under Section 368

-Section 413 says that, when the Court of Session receives the final judgment of the Hon’ble High Court for the confirmation of death sentence or any other judgment so passed, it must thence, by issuing a warrant or taking any required step, bring such order into effect.

Execution of sentence of death passed by High Court

-Section 414 of CrPC says that the death sentence if passed by the Hon’ble High Court needs to be executed by the Court of Session by issuing a warrant for the same.

Controversy Regarding The Constitutional Validity of Capital Punishment

-Whenever there is a commission of any heinous crime in India, people demand capital punishment. 

The Doctrine of Rarest of the Rare

-One of the first cases in which the issue of the constitutional validity of the death penalty got raised was Jagmohan Singh v. State of Uttar Pradesh (AIR 1973 1 SCC 20). 

MACCHI SINGH V. STATE OF PUNJAB [AIR 1983 SCC 470]

-In this case, the Hon’ble Supreme Court of India laid down the criteria for the rare of the rarest cases.

Conclusion

-The execution of the death penalty in India is being practiced for ages. However, today when people are gaining awareness about their legal and fundamental rights, the validity of the death penalty isbeing questioned.

Key Takeaways

• Various offenses that are subjected to the provision of the death penalty in India under IPC, CrPC, UAPA, etc.
• The detailed explanation of the provisions of CrPC, that deal with the confirmation and execution of the death sentence in India.
• The doctrine of “rarest of the rare” and the controversy on the constitutional validity of capital punishment as against the Fundamental Rights of the citizens.

Introduction

Chapter XXVIII of the Code of Criminal Procedure, 1973 (CrPC) deals with the confirmation of the death sentence and Chapter XXXII of the CrPC deals with the execution of the death sentence. Our Indian criminal laws are framed in a manner to avoid or minimize errors and facilitate the smooth functioning of the criminal law system. According to the report of Project 39A on the death penalty, released by National Law University, Delhi, around 1,810 people were sentenced to death by the trial courts between 2000 and 2014. More than half of them were commuted to life imprisonment and around a quarter of them, were acquitted by the Hon’ble Supreme Court and High courts of India.In the year 2018, India was among the top 7countries to award the death penalty to convicts. The lower courts awarded the death sentence to 162 convicts as per the report. Also, the Apex Court upheld the death sentence of 73 prisoners, out of which many have spent a decade on death row already. The Apex Court commuted 11 death sentences to life imprisonment in the year 2018.

What Are The Offences That Are Subjected To Death Penalty In India?

Capital Punishment is a kind of punishment in which a person is executed and deprived of his life by the law because of the commission of a certain crime, after a proper trial before the concerned court. There are certain offenses that are subjected to the sentence of death under the Indian Criminal Laws. Such offenses include Waging war against the State (Section 121 of IPC, 1860), Terrorism (Section 16 of UAPA, 1967), Aiding or abetting Sati (Section 4 of Commission of Sati (Prevention) Act, 1987), Falsely implicating an SC/ST person in a capital case (Section 3(2)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989),Murder (Section 302, 303 of IPC), Rape/ gang rape and murder (Section 376 IPC), Rape/ gang rape of minor below 12 (Section 376 DB of IPC).

The Provisions For The Confirmation and Execution of Death Under CrPC

Sentence of death to be submitted by Court of Session for confirmation

Section 366 of CrPC says that, whenever a sentence of death is passed by the Court of Session, the same cannot be executed unless it is confirmed by the Hon’ble High Court. In order to get the confirmation, the proceedings of the case need to be submitted to the Hon’ble High Court. Meanwhile, the Court that passes the death sentence is required to keep the convicted person safe in jail custody under a warrant.

Power to direct further inquiry to be made or additional evidence to be taken

Section 367 provides that, if the Hon’ble High Court deems it fit to carry-on further inquiry or seeks additional evidence regarding the case concerned, then it may do so either itself or direct the Court of Session to do the same. Further, if such an inquiry is made by the Hon’ble High Court then the convicted person’s presence may be eliminated during the process. And in case no such inquiry is made by the High Court, then the Court of Session is to be certified with the result of the inquiry conducted or evidence taken up by it.

Power of High Court to confirm sentence or annul the conviction

Section 368 of CrPC talks about the powers of the Hon’ble High Court to confirm the sentence provided to the convicted person or acquit him, depending upon the submission made before it by the Court of Session. The Hon’ble Court may even pass any other order or sentence, authorized by the law or order a whole new trial or make the desired amendments to the concerned case.

Confirmation or new sentence to be signed by two Judges

Section 369 of CrPCrequires the Hon’ble High Court to get the confirmation or any new sentence if passed by it in furtherance of the submission made to it, signed by at least two judges if such a Court consists of two or more judges.

Procedure in case of difference of opinion

Section 370 of CrPC provides that if the opinions of the Judges of Hon’ble High Court in deciding a matter submitted to it become contradictory and the number of Judges deciding on either side are equal, then the fate of the case is decided in a manner subject to the provisions of Section 392 of CrPC.

Therefore, in the above-mentioned situation of equally divided opinions of the Judges in an appeal, then such an appeal is laid before the other Judge of that High Court. That judge then gives his opinion regarding the case followed by the final judgment. Also, if one of the Judges of such a Bench or such Court where the appeal is made to another Judge, deems fit, may even ask for the re-hearing of the case by a larger Bench of Judges.

Procedure in cases submitted to High Court for confirmation

Section 371 of CrPC says that, as soon as the confirmation of the death sentence or any other order has been passed by the Hon’ble High Court regarding the case submitted to it by the Court of Session, the proper officer of the High Court send the copy of such order under the seal of the High Court and his official signature, to the Court of Session.

Now the below-mentioned Sections talk about the execution of the death sentence:

Execution of order passed under Section 368

Section 413 says that, when the Court of Session receives the final judgment of the Hon’ble High Court for the confirmation of death sentence or any other judgment so passed, it must thence, by issuing a warrant or taking any required step, bring such order into effect.

Execution of sentence of death passed by High Court

Section 414 of CrPC says that the death sentence if passed by the Hon’ble High Court needs to be executed by the Court of Session by issuing a warrant for the same.

Controversy Regarding The Constitutional Validity of Capital Punishment

Whenever there is a commission of any heinous crime in India, people demand capital punishment. The offenses like terrorism, rapes, murders, etc though attract the death penalty under certain circumstances; still, it is believed that capital punishments are against human rights. Avinash Kumar, Executive Director of Amnesty International India has said that “The death penalty is never the solution and today’s resumption of executions adds another dark stain to India’s human rights record. Indian courts have repeatedly found it to be applied arbitrarily and inconsistently”. It is a matter of debate whether the death sentences are a must to deliver justice to the victims of the horrible crimes or are they against the human rights provided by the Constitution of India. Since, the Right to Life and Personal Liberty, guaranteed by the Constitution of India cannot be taken away under any circumstances, is it legally and morally valid to deprive the convicts of such rights that they were born with; is a big question. The question that arises is that, whether capital punishment reduces the commission of heinous crimes? The answer to this is no because every year, the crime rate is increasing in India. So what is the rationale behind capital punishment? All of these questions arise whenever there is a matter before the Indian Courts that involves the death penalty. The Hon’ble Supreme Court, therefore, provided for the doctrine of “rarest of the rare” doctrine in the case of Bacchan Singh v. State of Punjab (AIR 1980 SC 898).

The Doctrine of Rarest of the Rare

One of the first cases in which the issue of the constitutional validity of the death penalty got raised was Jagmohan Singh v. State of Uttar Pradesh (AIR 1973 1 SCC 20). The counsel on behalf of the appellant argued that Section 302 of the IPC violates Articles 14, 19, and 21 of the Indian Constitution. The five-judge however, rejected all the contentions and ruled that the death penalty is constitutionally valid. It ruled that a citizen cannot be deprived of his rights by any law under Article 19 of the Indian Constitution unless such deprivation is both reasonable and in the public interest. Also, since the legislature has not yet declared the death penalty to be unreasonable, the same cannot be considered unreasonable.

Later several cases popped up before the High Courts and Apex Court of India that involved the issue of the constitutional validity of capital punishment. Bacchan Singh’s case is one of those.In the mentioned case, the constitutionality of the death penalty was upheld by the Hon’ble Supreme Court by the majority of 4:1. The Hon’ble Court provided that the death penalty, which is the highest penalty that could be granted must be given only in the cases that come under the ambit of the “rarest of the rare” category. The scope of the doctrine was however left undefined in the Bacchan Singh case, which was later defined in the case of Macchi Singh v. State of Punjab.

MACCHI SINGH V. STATE OF PUNJAB [AIR 1983 SCC 470]

In this case, the Hon’ble Supreme Court of India laid down the criteria for the rare of the rarest cases. The criteria so provided are:

1. Manner of murder – If a murder is committed in such a brutal, ridiculous, diabolical, revolting, or reprehensible manner and it arouses intense and extreme indignation in the community, like:

• Setting up the victim’s house on fire with the aim to burn him/her alive.
• Torturing the victim withinhuman acts so as to bring about his/her death.
• Cutting down the body of the victim into pieces in a vicious manner.

2. Motive for murder– If total immorality and cruelty are the major driving forces behind a murder, for example:

• A killeris hired for executing the murder for the sake of a financial reward.
• A cold-blooded murder,designed in a careful manner to get control over property or for any other selfish gains.

3. Socially heinous nature of the crime – If the murder of a person from one of the backward classes is committed, which includes the cases of burning of brides, also known as dowry deaths, it comes under this ambit.

4. Magnitude of the crime – If the intensity of the crime is extreme, such as inthe cases of multiple murders.

5. The victim’s personality –If the victim of the murder is an innocent child, a helpless woman or man (due to old age or infirmity), a public figure, etc.

Conclusion

The execution of the death penalty in India is being practiced for ages. However, today when people are gaining awareness about their legal and fundamental rights, the validity of the death penalty isbeing questioned. The Hon’ble Supreme Court has,over the period of years and ina number of cases, tried to minimize the award of the death penalty to the convicts. Around 104 countries across the globe have completely abolished capital punishment and many of them have not awarded the death sentence to their convicts in the past 10 years, which implies that they too are de-facto trying to abolish such provision from their criminal law system. In India however, it is subjected to the condition of “rarest of the rare” cases. The issue continues to persist and hopefully, the upcoming cases and judgments will decide the constitutional validity of capital punishments in India.