The Indian Penal Code, 1860 has enabling provisions where capital punishment can be imposed under Sections 120 B, 121, 132,194, 302, 303, 305, 364 A, 396 and 376 A ; ofcourse each under different circumstances to decide on merits of each case.
The Supreme Court held in 1983, that death penalty shall be imposed only in “rarest of the rare case”. This makes it clear that there could be no invariable application and imposition of sentence to death, though the relevant section under which the respective accused remains charged empowers the courts to impose capital punishment.
But in case of rape charges, the courts have held that they cannot refuse framing charge under Section 376 (Rape) of the Indian Penal Code, 1860; just because the complainant (the victim) had admitted that she consented for sexual intercourse since the accused promised to marry her and frame charges under Section 417 (Cheating) treating such action amounts to cheating by giving fake promises.
Though Section 375 (Rape) states that the offence of rape would be made out if it was committed against the will of the victim/without her consent. But the question of consent need to be examined not in sole light of what is defined under Section 375. Infact “consent” has to be viewed, examined and understood read Section 90 which states that a consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury or under misconception of fact. Giving consent on fake promises of marriage amounts to misconception. While Section 417 carries a maximum of 1 year of imprisonment with or without fine; it is 7 years of rigorous imprisonment for an offence under Section 376 and the maximum punishment can go to life imprisonment.
Reckoning and considering the past cases of rape which were culpable homicide either not amounting to murder or amounting to murder, especially the gruesome gang rape case in Delhi, The Government of India thought it fit to go for deterrent punishment and promulgated an ordinance in 2013 empowering the appropriate courts to impose death penalty in such cases.
The Criminal Law (Amendment) Act, 2013 provides for imposing death penalty on repeat rape offenders duly considering the criminality in such cases.
Death penalty cases – Precedents
In 2012, The President Prathibha Patel commuted the death sentence into life imprisonment as many as 35 convicts.
As of 2013, there were over 470 convicts facing death sentence in India; of which about 170 in UP, over 60 in Karnataka and 50 in Maharashtra.
The Criminal Procedure Code, 1898 provides the mode of executing the death penalty for hanging the convict by neck until death as adopted by CRPC 1973. Section 354 (5) reading as:
“When any person is sentenced to death, the sentence shall direct that he be hanged by neck until he is dead”.
Section 163 of The Army Act and Air force Act, 1950 reads as:
“In awarding sentence to death, a court shall in its discretion, direct that the offender shall suffer death by being hanged by the neck until to be dead or shall suffer death by being shot to death”.
In so far as filing of mercy petition by death, row prisoner, after the completion of judicial process, the convict has constitutional right under Article 72 (The President) / Article 161 (The Governor) to file mercy petition praying for pardon or remission or commutation of death sentence into life imprisonment. The Indian Constitution under Article 72/161 rests power to the President/Governor to grant pardon, reprieve, respite, remission of the punishment or to suspend or commute the sentence.
As and when any such mercy petition is received or communicated by the State Government after rejection by the Governor, the connected police records, the judgment of the Trial Court, the High Court, the Supreme Court and all connected documents are called for and made available to the Ministry of Home Affairs, Government of India. It is for the President/Ministry of Home Affairs to examine each case in all aspects and pass appropriate orders on such mercy petitions.
The constitutional framers did not stipulate any outer line limit for disposing the mercy petitions under the said Articles. This means that the mercy petitions should be decided within reasonable time.
In the recent case where the Supreme Court ordered commuting 15 death sentence to life term including the four sandalwood smuggler Veerappan aids, the court concluded that inordinate delay in the rejection of the mercy petitions of death row convicts amounted to torture and that it is a sufficient basis in and of itself to commute the sentence of death to life imprisonment.
In the said case resulting in such verdict (Law Made Judgment) all the 15 prisoners whose mercy petitions were rejected by the President had returned to the Supreme Court seeking enforcement of their right to life on the ground that their sufferings on death row due to the inordinate delay of the executive ranging from 11 to 15 years and they are entitled to commutation of death sentence.
While making such a landmark judgment, the Supreme Court has clarified the legal position and passed certain directions for adherence in such future cases:
The Supreme Court in the instant case deprecated keeping death row convicts in solitary confinement and such a practice prior to the rejection of the mercy petition by the President is unconstitutional. It is held that every constitutional duty must be fulfilled with due care and diligence; otherwise judicial interference is the command of the Constitution for upholding its values.
In conclusion, the Supreme Court made it clear that if the law were to stand, there was no constitutional infirmity. There is a palpable reluctance to meaning fully scrutinize a law on a divisive issue where the political class has made a choice. Here the Supreme Court squarely addresses the warning that the court might be overstepping its jurisdiction because the President had already rejected the mercy petition of all the 15 prisoners.
The court is clear that it is not questioning the powers of the president to reject the mercy petition, but is rather interested and competent to go into the issue of whether the executive has violated the rights of the death row convicts due to the inordinate delay.
In this case, the Supreme Court has taken the position that it cannot be expected to abandon its role of being the guardian of the fundamental rights of all persons whoever they might be.
In the instant matter and the landmark judgment of the Supreme Court, it would be befitting to note that the former Supreme Court judge V.R. Krishna Iyer has commended the Supreme Court’s January 21 judgment that held that inordinate delay on the part of the President in taking a decision on a clemency petition submitted by a convict sentenced to death would entitle the victim to commutation of the death sentence to life term. He appreciated that the human concern i.e. their suffered torture and agony with a pending death sentence for prolonged years showed by the Bench for their suffering realizing their distress.
He adds that for the first time the suffering of the convicts facing death sentences moved the heart of the court and it found these years of delay as an agony sufficient to commute the death sentence into life imprisonment.
He said the “stock of mercy” was a rare expression of clemency jurisdiction.
References:
The Indian Penal Code, 1860 - Ratanlal & Dhirajlal
The Code of Criminal Procedure, 1973 - Ratanlal & Dhirajlal
The Indian Constitutional Law – MP Jain
The Army Act, 1950 – G. Mittal
Model Prison Manual For The Superintendence And Management Of Prisons In India - Bureau of Police Research and Development, Ministry of Home Affairs, Government of India New Delhi , 2003
The Air Force Act, 1950
The Criminal Law (Amendment) Act, 2013
Supreme Court of India - The Judgment Information System
United Nation’s International Convention – The International Law
Wikipedia
Indian kanoon
Times of India
The Hindu
Ananda Vikatan - Tamil News Magazine
The Supreme Court held in 1983, that death penalty shall be imposed only in “rarest of the rare case”. This makes it clear that there could be no invariable application and imposition of sentence to death, though the relevant section under which the respective accused remains charged empowers the courts to impose capital punishment.
But in case of rape charges, the courts have held that they cannot refuse framing charge under Section 376 (Rape) of the Indian Penal Code, 1860; just because the complainant (the victim) had admitted that she consented for sexual intercourse since the accused promised to marry her and frame charges under Section 417 (Cheating) treating such action amounts to cheating by giving fake promises.
Though Section 375 (Rape) states that the offence of rape would be made out if it was committed against the will of the victim/without her consent. But the question of consent need to be examined not in sole light of what is defined under Section 375. Infact “consent” has to be viewed, examined and understood read Section 90 which states that a consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury or under misconception of fact. Giving consent on fake promises of marriage amounts to misconception. While Section 417 carries a maximum of 1 year of imprisonment with or without fine; it is 7 years of rigorous imprisonment for an offence under Section 376 and the maximum punishment can go to life imprisonment.
Reckoning and considering the past cases of rape which were culpable homicide either not amounting to murder or amounting to murder, especially the gruesome gang rape case in Delhi, The Government of India thought it fit to go for deterrent punishment and promulgated an ordinance in 2013 empowering the appropriate courts to impose death penalty in such cases.
The Criminal Law (Amendment) Act, 2013 provides for imposing death penalty on repeat rape offenders duly considering the criminality in such cases.
Death penalty cases – Precedents
- The Mumbai Special Court in 2010 convicted Ajmal Kesab on charges of possessing explosives waging a war on India and sentenced him to death for killing 166 people attacking Mumbai in 2008. He was found guilty of 80 offences which he committed along with Pakistan Terrorists. His mercy petition was rejected by The President and it was executed in Yerwada Central jail in Pune.
- 22 years old Nikha Singh was sentenced in 2012 to death by the Haryana Court for having raped a 75 years old woman i.e. who was his grandmother’s age, taking with due cognizance that he murdered her by gagging her mouth with a shawl and strangled her neck after rape in 2011. In this case it was held that Nikha Singh’s existence on earth would amount to a grave danger to the society and further held that “imposition of death sentence was the most appropriate punishment as it was a cold-blooded murder and where the innocent and hapless old woman raped and murdered”.
In 2012, The President Prathibha Patel commuted the death sentence into life imprisonment as many as 35 convicts.
As of 2013, there were over 470 convicts facing death sentence in India; of which about 170 in UP, over 60 in Karnataka and 50 in Maharashtra.
The Criminal Procedure Code, 1898 provides the mode of executing the death penalty for hanging the convict by neck until death as adopted by CRPC 1973. Section 354 (5) reading as:
“When any person is sentenced to death, the sentence shall direct that he be hanged by neck until he is dead”.
Section 163 of The Army Act and Air force Act, 1950 reads as:
“In awarding sentence to death, a court shall in its discretion, direct that the offender shall suffer death by being hanged by the neck until to be dead or shall suffer death by being shot to death”.
In so far as filing of mercy petition by death, row prisoner, after the completion of judicial process, the convict has constitutional right under Article 72 (The President) / Article 161 (The Governor) to file mercy petition praying for pardon or remission or commutation of death sentence into life imprisonment. The Indian Constitution under Article 72/161 rests power to the President/Governor to grant pardon, reprieve, respite, remission of the punishment or to suspend or commute the sentence.
As and when any such mercy petition is received or communicated by the State Government after rejection by the Governor, the connected police records, the judgment of the Trial Court, the High Court, the Supreme Court and all connected documents are called for and made available to the Ministry of Home Affairs, Government of India. It is for the President/Ministry of Home Affairs to examine each case in all aspects and pass appropriate orders on such mercy petitions.
The constitutional framers did not stipulate any outer line limit for disposing the mercy petitions under the said Articles. This means that the mercy petitions should be decided within reasonable time.
In the recent case where the Supreme Court ordered commuting 15 death sentence to life term including the four sandalwood smuggler Veerappan aids, the court concluded that inordinate delay in the rejection of the mercy petitions of death row convicts amounted to torture and that it is a sufficient basis in and of itself to commute the sentence of death to life imprisonment.
In the said case resulting in such verdict (Law Made Judgment) all the 15 prisoners whose mercy petitions were rejected by the President had returned to the Supreme Court seeking enforcement of their right to life on the ground that their sufferings on death row due to the inordinate delay of the executive ranging from 11 to 15 years and they are entitled to commutation of death sentence.
While making such a landmark judgment, the Supreme Court has clarified the legal position and passed certain directions for adherence in such future cases:
- Right to seek mercy under Article 72/161 is a constitutional right and not at the discretion or whims of the executives.
- If the convict files a mercy petition to the President/Governor, it is incumbent on the authorities to dispose the same expeditiously. Though no time limit can be fixed for the President and the Governor, it is the duty of the executive to expedite the matter at every stage.
- There is no provision in any of the Prison Manuals for providing legal aid for preparing appeals or mercy petitions or for accessing judicial remedies after the mercy petition has been rejected.
- Article 21 rights inhere in a convict till his lost breath, even after rejection of the mercy petition by the President, the convict can approach a writ court for commutation of death sentence on the ground of supervening events, if available, and challenge the rejection of the mercy petition. Legal aid should be provided to the convicts at all stages. Accordingly, superintendants of jails are directed to intimate the rejection of mercy petition to the nearest legal aid centre, apart from intimating the convicts.
- No Prison Manual has any provision for informing the prisoner and his family of the rejection of the mercy.
- The convict is entitled to be informed in writing of the decision on his mercy petition and his family members in writing or through some other mode of communication.
- It is directed that the convict should be given 14 days notice for execution, allowing the prisoner to prepare himself mentally for execution, to make his peace with the God, prepare his will and settle the other earthly affairs. The prisoner should be allowed to have last and final meeting with his family.
- Further, it is stated that without sufficient notice of the scheduled date of execution, the prisoner’s right to avail himself of the judicial remedies will be thwarted and will be prevented from he having a meeting with his family members. It is the duty of the superintendants of jails to see that the family members of the death row convict receive the message of communication of rejection of the mercy petition.
- It draws attention to the directions of the United Nation’s International Convention of which India is a party clearly shows that insanity/mental illness is a crucial supervening circumstance which should be considered by the court in deciding whether the facts and circumstances of the case, death sentence could be commuted to life imprisonment.
- As such, there must be regular mental health evaluation of the prisoners as in some cases death row prisoners loose mental balance on account of prolonged anxiety and sufferings experienced on death row. Therefore appropriate medical care should be given to those in need. If the superintendant is of the opinion that the prisoner is not fit, he should forthwith stop the execution and produce the prisoner before a Medical Board for a comprehensive evaluation and shall forward his report of the same to the State Government for further action.
The Supreme Court in the instant case deprecated keeping death row convicts in solitary confinement and such a practice prior to the rejection of the mercy petition by the President is unconstitutional. It is held that every constitutional duty must be fulfilled with due care and diligence; otherwise judicial interference is the command of the Constitution for upholding its values.
In conclusion, the Supreme Court made it clear that if the law were to stand, there was no constitutional infirmity. There is a palpable reluctance to meaning fully scrutinize a law on a divisive issue where the political class has made a choice. Here the Supreme Court squarely addresses the warning that the court might be overstepping its jurisdiction because the President had already rejected the mercy petition of all the 15 prisoners.
The court is clear that it is not questioning the powers of the president to reject the mercy petition, but is rather interested and competent to go into the issue of whether the executive has violated the rights of the death row convicts due to the inordinate delay.
In this case, the Supreme Court has taken the position that it cannot be expected to abandon its role of being the guardian of the fundamental rights of all persons whoever they might be.
In the instant matter and the landmark judgment of the Supreme Court, it would be befitting to note that the former Supreme Court judge V.R. Krishna Iyer has commended the Supreme Court’s January 21 judgment that held that inordinate delay on the part of the President in taking a decision on a clemency petition submitted by a convict sentenced to death would entitle the victim to commutation of the death sentence to life term. He appreciated that the human concern i.e. their suffered torture and agony with a pending death sentence for prolonged years showed by the Bench for their suffering realizing their distress.
He adds that for the first time the suffering of the convicts facing death sentences moved the heart of the court and it found these years of delay as an agony sufficient to commute the death sentence into life imprisonment.
He said the “stock of mercy” was a rare expression of clemency jurisdiction.
References:
The Indian Penal Code, 1860 - Ratanlal & Dhirajlal
The Code of Criminal Procedure, 1973 - Ratanlal & Dhirajlal
The Indian Constitutional Law – MP Jain
The Army Act, 1950 – G. Mittal
Model Prison Manual For The Superintendence And Management Of Prisons In India - Bureau of Police Research and Development, Ministry of Home Affairs, Government of India New Delhi , 2003
The Air Force Act, 1950
The Criminal Law (Amendment) Act, 2013
Supreme Court of India - The Judgment Information System
United Nation’s International Convention – The International Law
Wikipedia
Indian kanoon
Times of India
The Hindu
Ananda Vikatan - Tamil News Magazine
