Surya Rajappan
Advocate, High court of Delhi

“The death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, Do we deserve to kill?”
― Bryan Stevenson, Just Mercy: A Story of Justice and Redemption

The death penalty, or capital punishment, as a form of punishment in the criminal justice system has long been debated, both on efficacy and morality. Yet, the death penalty continues to be an intrinsic part of the Indian criminal justice system, with increasing calls for its implementation to more crimes, especially those involving sexual offences.

The death penalty in India is awarded under the Indian Penal Code, 1860, as well as other specialised legislations, for offences such as murder, kidnapping for ransom, rape of woman below 12 years of age, etc. However, judicial precedents have laid down the rule of ‘rarest of the rare’ in awarding the death sentence, meaning that life imprisonment is the rule and death penalty is the exception.

Forms of Punishment

There are mainly five forms of punishment in a criminal justice system, namely:

1. Retributive: Punishment as an appropriate response to the crime with the quantum of punishment being proportionate to the crime. This theory is based on the idea of vengeance or ‘eye for an eye’.
2. Deterrence: Deterrence aims to prevent future crime. This can be both specific (where the individual is deterred from committing a future crime for fear of similar or worse punishment) or general (where members of the public are deterred from committing a crime upon learning of punishment inflicted on someone else).
3. Rehabilitative: Rehabilitation seeks to prevent future crime by altering a criminal’s behavior, which may involve individual case-work, therapy, counselling, education, intervention in the family, etc. The goal is to lower the rate of recidivism, or people committing another crime after getting released from prison.
4. Incapacitative: Incapacitative punishment means identifying those who could cause serious harm and simply removing them from society. This includes incarceration in prison, house arrest and, in its more dire form, execution.
5. Restorative/Reparative: These are not so much forms of punishment as a move aimed at restoring the harm done and calculated accordingly. Restorative theories are therefore victim-centered and calls on the offender to make direct amends to the victim of their crime, as well as the community where the crime occurred.

Death Penalty around the World

Today, India is one of only 55 countries in the world to retain the death penalty. At the end of 2020¹, 108 countries (a majority of the world’s states) had abolished the death penalty in law for all crimes and 144 countries had abolished the death penalty in law or practice². Excluding China³

88% of all recorded executions in 2020 took place in just four countries – Iran, Egypt, Iraq and Saudi Arabia.

Some of the main reasons cited for abolishing the death penalty across the world are as follows:

1. Death Penalty is irreversible: In any judicial system, human errors, besides systemic prejudices, are bound to occur. The imposition of the death penalty in such a situation may lead to a person being punished irreversibly for a crime he did not commit.
2. Death Penalty does not deter criminals: Contrary to the popular notion that the death penalty acts as a deterrant to future criminals, there have been no conclusive studies to prove the deterrence effect of death penalty over that of a prison term (such as life imprisonment). On the contrary, it may be noted that, Canada’s murder rate has steadily declined since the abolishment of the death penalty in 1976 and was at its lowest in 2016 since 1966.
3. There is no “humane” way of execution: The most popular methods of execution around the world are hanging, shooting and lethal injections. However, there is no proof that any of these methods is “better” or more “humane” than the others and these violent methods serve to perpetuate the cycle of violence.

Death Penalty in India

In India, the shift in favour of life imprisonment over death penalty, in keeping with evolving criminological thought and the movement from deterrence to reformation, is evident from legislative amendments made to the Code of Criminal Procedure, 1898 (hereinafter ‘old Code’). Prior to the amendment of the old Code by the Criminal Procedure Code (Amendment) Act, 1955, on a conviction for an offence punishable with death, if the court sentenced the accused to any punishment other than death, the reason for not awarding the sentence of death had to be stated in the judgment. Thus, death penalty was the rule, and life imprisonment the exception for which reasons had to be separately recorded.

After the 1955 amendment, the imposition of sentence was left to the discretion of the court. However, the court had to take into account all the circumstances, and state its reasons for whichever of the two sentences it imposed in its discretion. The formal rule that the normal punishment for murder was death no longer held good and it was now within the discretion of the court to award either of the two sentences envisaged in Section 302, IPC (Punishment for murder). It is important to note that this amendment was related to procedure only. The courts were no longer required now to elaborate the reasons for not awarding the death penalty.

Further changes in favour of reformation were also seen in the Code of Criminal Procedure, 1973 (hereinafter “new Code”), wherein death sentence is ordinarily ruled out and can only be imposed for special reasons as provided in Section 354(3) of the new Code. Therefore, while considering the question of sentence to be awarded to a convict in an offence punishable by the death penalty, the personality of the offender as revealed by his age, character, antecedents and other relevant circumstances as well as the possibility of reformation of the offender must necessarily play the most prominent role.

Death Penalty Statistics in India

According to a study published by researchers at National Law University, Delhi (NLU Delhi), there were 404 prisoners on death row across the country as of 31st December, 2020.⁴

77 death sentences were imposed by the trial courts in 2020 alone. Of these, 65% (50 out of 77) were in cases relating to sexual offences. In comparison, this proportion was around 17% in 2016, 37% in 2017, 41% in 2018 and 53% in 2019. It would thus appear that sexual violence is increasingly defining the enforcement of the death penalty in India.

The last year was also significant in that 2020 saw the first executions of death row convicts in the country since 2015. The four convicts in the 2012 Delhi gangrape and murder case were executed on 20th March 2020. This was also the first time that more than one convict was executed together. The last execution prior to this was the execution of Yakub Memon in July 2015.

In the first report on death penalty published by the team at NLU Delhi in 2016,⁵

the researchers found that trial courts sentenced 1,810 people to death between 2000 and 2014. But as these cases made their way through appeals before the higher judiciary, more than 95% of them were taken off death row.

• About a quarter of those sentenced to death by trial courts — 443 — were later acquitted by one of the appellate courts: the High Courts or the Supreme Court.
• 975 prisoners — more than half of those sentenced to death between 2000 and 2014 — had their death sentences commuted to life imprisonment on appeal.
• The Supreme Court eventually upheld the sentences of 73 prisoners. All of them challenged the court’s order or petitioned the state for mercy.
• The remaining were waiting for their appeals to be heard, were being retried, were on the run or died in prison.
• Of the 73 prisoners whose death sentence was upheld, only 3 were executed – Ajmal Kasab in 2012, Afzal Guru in 2013 and Yakub Memon in 2015.

Many prisoners spent years on death row, which can involve being kept in solitary confinement or otherwise separated from the general prison population, before being acquitted.

In some of the cases where the death sentence was commuted to life imprisonment, the appellate courts found that trial court judges had failed to consider “mitigating factors,” such as a prisoner’s age or potential to reform. Judges are supposed to consider such factors before deciding whether a prisoner, even one found guilty of a horrific crime, deserves a death sentence.

Pertinently, the report also found that most of those on death row — nearly three-fourths — were unemployed or low-wage workers who owned no or very little land. This, in turn, affected their fate in the criminal justice system. Poorer families, for instance, are less likely to spend on bail, expert witnesses or even lawyers.

Given the harsh conditions of confinement and the uncertainty associated with the death sentence, it becomes essential to consider the time spent by these prisoners under the death sentence. The study examined the period of incarceration of death row convicts and found that, on average, a death row convict spends almost 17 years in prison, with the longest duration being 25 years.

Not surprisingly, 80% of the prisoners who spoke about their experience in police custody admitted to having suffered custodial torture – where the methods employed by the police while inflicting torture were inhuman, degrading and inflicted extreme forms of physical and mental suffering.

Rarest of the Rare

The Hon’ble Supreme Court has repeatedly laid down in a catena of judgments that the death sentence is the exception and should be awarded only in the ‘rarest of the rare’ cases. While there can be no clear demarcation of what constitutes ‘rarest of the rare’, which by its very nature is highly subjective, it has broadly been defined as a crime which shocks the conscience of society and for which a punishment of life imprisonment has unquestionably been foreclosed.⁶

In Bishnu Deo Shaw v. State of West Bengal [AIR 1979 SC 964], Justice Chinnappa Reddy examined capital punishment against the theories of punishment and found that there was no positive indication that the death penalty has been a deterrent. He further found that death penalty as a retribution for the crime, and not for preventing harm or suffering or repetition of offence, is uncomfortably close to human sacrifice as an expression of righteousness. While considering the ‘special reasons’ for imposing the death sentence under Section 354(3) of the new Code, Justice Reddy noted as follows:

“27. …A Judge has to balance the personality of the offender with the circumstance, the situations and the reactions and choose the appropriate sentence to be imposed. A judge must try to answer a myriad questions such as was the offence committed without premeditation or was it after due deliberation? What was the motive for the crime? Was it for gain? …What is the background of the offender? What is his social and economic status? What is the level of his education or intelligence? …Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society? Or is he a person who is patently amenable to reform?…”

In Machhi Singh v. State of Punjab [AIR 1983 SC 957], the Hon’ble Supreme Court identified and propounded the guidelines laid down in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] to be applied to the facts of each individual case where the question of imposing death sentence arises. These are as follows:

1. The extreme penalty of death is to be awarded only in the gravest cases of extreme culpability.
2. The circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.
3. Life imprisonment is the rule and death sentence is the exception. Thus, death sentence is to be imposed only when life imprisonment appears to be altogether inadequate punishment and cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all other relevant circumstances.
4. A balance sheet of aggravating and mitigating circumstances have to be drawn up and in doing so, mitigating circumstances have to be given full weightage and a just balance has to be struck between the circumstances before the option is exercised.

Further, the following questions may be asked to determine whether a case falls under the purview of ‘rarest of the rare’:

• Is there something uncommon about the crime which renders life imprisonment inadequate and calls for a death sentence?
• Are the circumstances of the crime such that there is no alternative but to impose death sentence even after giving maximum weightage to the mitigating circumstances in favour of the offender?

State of Kerala v. Suraj Kumar [Sessions Case No. 820 of 2020]

In the judgment dated 13th October 2021 passed by Addl. District & Sessions Judge, Kollam in the above case, also dubbed as the Uthra Murder case by local media, the ADSJ found the accused guilty of all the offences for which he was charged, including murder (Section 302, IPC) and attempt to murder (Section 307, IPC). He was also found guilty of causing hurt by means of poison with intent to commit an offence (Section 328, IPC) and destruction of evidence (Section 201, IPC).

The accused was sentenced to maximum imprisonment terms of 10 years rigorous imprisonment and fine under Section 328, IPC and 7 years rigorous imprisonment and fine under Section 201, IPC. For the offences under Sections 302 and 307, IPC, he was sentenced to double life imprisonment. Further, the life imprisonment sentences, to run concurrently, will only commence after the term imprisonments running consecutively have been completed. In effect, the accused will first have to serve 17 (10+7) years in prison before the life imprisonment commences.

It is pertinent to note that the judgment unequivocally holds that the murder committed by the accused is diabolic, brutal, cruel, heinous, and dastardly. However, on the aspect of sentencing, the ADSJ has correctly noted the guidelines laid down in Bachan Singh (supra) and Machhi Singh (supra), and considered the mitigating circumstances in favour of the accused. The ADSJ has considered the young age and lack of criminal antecedents of the accused to hold that the chances of reformation of the accused are not foreclosed. Thus, this was not a case fit for death penalty.

Conclusion

The criminal justice system in India leaves the imposition of the death penalty to the discretion of the presiding judge, along with some guidelines to ensure that such discretion is exercised judiciously and within the parameters set out by the Constitution of India as well as judicial precedents. It has time and again been reiterated that the death penalty is the exception and life imprisonment is the rule. This is also evident from the statistics quoted above where only 3 out 1810 death sentences awarded between 2000-2014 resulted in executions. More than three quarters of all the death row convicts were either acquitted or had their sentence commuted to life imprisonment in appeal. This clearly indicates the trigger happy nature of the trial courts in awarding death sentences in cases which do not meet the conditions of ‘rarest of the rare’.

At the cost of repetition, in cases involving the penalty of death sentence, it is not merely the circumstances of the crime, however brutal or heinous they may be, that need to be considered. The law of the land clearly states that all mitigating circumstances in favour of the accused need to be considered and given the utmost weightage.

In the Uthra murder case, the ADSJ has passed a well reasoned and comprehensive judgment, not only on the guilt of the accused but also on the sentencing. The ADSJ has followed the guidelines laid down by the Hon’ble Supreme Court and has considered the double life imprisonment terms to be sufficient for serving the interests of justice.

As far as deterring future criminals is concerned, it is reiterated that despite years of debate surrounding the efficacy and morality of capital punishment, there has been no evidence to prove that the fear of death penalty has any effect of criminal tendencies.

In the circumstances of the case, it is understandable for the family of the victim to want the harshest punishment for the accused. However, the ends of our criminal justice system cannot be, and have never been, vengeance or retribution.

…

1. Death penalty in 2020: Facts and figures, dated 21st April 2021, by Amnesty International, accessible at: https://www.amnesty.org/en/latest/press-release/2021/04/death-penalty-in-2020-facts-and-figures/.
2.  “In practice” would mean those countries which have retained the death penalty on paper but have not executed anyone under the law in the last ten years.
3.  Data for executions in China is unavailable since it is classified as a state secret.
4. Death Penalty in India: Annual Statistics Report, 2020 by Project 39A, accessible at: here
5. Death Penalty India Report: Volume 2 by Proejct 39A, accessible at: https://www.project39a.com/dpir#
6.  Bachan Singh v. State of Punjab [(1980) 2 SCC 684]