INSIGHTS ON THE RAREST OF RARE PENALTY IN INDIA- BY D.MONISHA

INTRODUCTION

India, having a codified substantive and procedural criminal laws constituted in 80's and 90's have laid down certain range of punishments as per the range of offences. In those constituted range of punishments the one that tops the hierarchy but inflicted on much rare basis is the Death Penalty. In the era where it being debated internationally to ban death penalty, it is essential for us to know its implication in India. As to in which cases it is being imposed, if being inflicted then what remedies lies for the convict in the context of law of natural justice. Why it is debated to be banned. India's stand among those recommendations to ban. In how many cases so far the accused is sentenced? In what circumstances they are pardoned and receive condoned petition. why it takes decades for execution of capital punishment? and Is anyone subjected to mental trauma due to prolonged period of execution? All these questions which arised in our minds as very recently in Delhi gang rape case execution are set to be answered further.

DEATH PENALTY

Death penalty or Capital Punishment is the highest degree of punishment that can be awarded to an individual under any penal law in force in any part of the world. Capital punishment is the legal procedure of the state in which it exercises its power to take an individual’s life. It is judicial power of the state after following due process of law, as against extra-judicial killings.

SCENARIO IN INDIA

The Inception of death penalty dates back to British rule, when it was followed in a vulnerable way at the behest of the ruler. But after Independence the scenario was toppled by the promulgation of sovereign law "The Constitution of India, 1950" whereby it vested the citizens with fundamental and human rights for better survival. After 1947, India became a democratic state and the system of awarding death penalties too changed drastically. The Indian Penal Code in accordance with the provisions enshrined in the Constitution of India provided for awarding of capital punishment for certain specific offences like murder, offences resulting in death, offences related to women and minor girls, terrorism-related crimes resulting in death, terrorism-related cases not resulting in death, rape not resulting in death, kidnapping not resulting in death, drug trafficking not resulting in death, treason, espionage and military offenses not resulting in death. Several legislative attempts before and after independence were carried out to abolish the practice of death penalty for any penal provisions, but all resulted in vain. 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 President should continue to possess powers of mercy. In case of execution, hanging and shooting are the two methods of death penalty practiced in India. According to the Criminal Procedure Code, hanging is the method of execution in the civilian court system. The Army Act, 1950, however, lists both hanging and shooting as official methods of execution in the military court-martial system.

PROCEDURE FOR EXECUTION 

Death penalty can't be granted to a person on mere inference of commission of the above said offences. For that certain procedures and guidelines has to be followed for effective implementation of judgment. Firstly, before granting death penalty, it must be established that the offence is committed at such a degree to constitute it as a "rarest of rare case". As observed the Supreme court inBachan Singh v. State of Punjab (AIR 1980 SC 898)- " 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.." To determine the offence as an rarest of rare case both aggravating and mitigating circumstances has to be found and demarcated. In demarcation the mitigating circumstances must be given much weightage to term a case as "the rarest of rare". Then after prosecution in order to execute the sentence certain guidelines are bound to be followed as laid down by Supreme Court in Shatrughan Chauhan &Anr v. Union of India [(2014) 3 SCC 1]. The guidelines are:

1.  Legal aid has to be provided. Legal Aid such as aid for preparing appeals or mercy petitions or judicial remedies after the rejection of mercy petition is a fundamental right as provided under Article 21 of the Constitution. The accused must also be informed by the superintendent of jails of his right to file a mercy petition.

2. The convict should not be kept in solitary confinement before rejection of his/her mercy petition by the president.

3.    Necessary documents must be furnished by the police authorities to the convict for filing curative and mercy petition and thereby exercising his right and remedy.

4.    The convict can file a mercy petition to the Governor as per Article.161 of the constitution and the decision of rejection must be conveyed to the convict and his family members in writing or any mode as feasible. 

5.  If the petition filed under Article.161 is rejected he can further file a mercy petition to the President under Article.72 of the constitution. For this necessary documents pertaining to trial and investigation has to be submitted to the Ministry of Home Affairs who after proper scrutiny must send their recommendations or their views to the president in a reasonable and rational time. If the decision of the president is not conveyed within a reasonable time, it is responsibility of the Ministry of Home Affairs to send periodic remainders and any further documents required for taking timely decisions. ( Article. 72 and 161 - Pardoning Power of the President and Governor).

6.  It is right of the convicts to receive a copy of the rejected mercy petition in case of rejection from either of the Governor or the President.

7. Minimum time of 14 days must be provided from the date of rejection of mercy petition and the dispersal of the notice to the convict and his family for execution. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.

8.  Regular mental evaluation of convicts has to be carried out.

9. After the rejection of the mercy petition it is the obligation of the Superintendent of police to check the physical and mental reports of the convict. If he is found to be mentally and physically ill, the execution of death penalty can be stopped and it is the duty of superintendent to present the convict before the Medical Board and forward the report of the State Government.

10. The Prison Manuals provides for the family of the convicts to the meet with him/her prior to their execution and it is obligatory and compulsory to have a post mortem of the executed death convict.

In Machhi singh v. 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?"

In the case of Jagmohan v. 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 guaranteed 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. Considering all the guidelines and grounds mentioned above many death penalty cases were thwarted with commutation of sentences. Between 2000 and 2014 trial courts sentenced 1,810 people to death, more than half were commuted to life imprisonment and about a quarter were acquitted by the Supreme Court and high courts. The recent case were death penalty was executed is the Delhi Gang Rape Case in which the execution date got prolonged as a result of convicts exercising their rights individually rather than cumulatively. As a result of this delay certain recommendations were laid to curtail it, which is  under consideration.

RECENT RECOMMENDATIONS

 1. The rules currently in place call for death penalty to be carried out for all convicts at the same time. This, according to the government, allows convicts to move different petitions one after the other and delay the process.

·  2. The MHA, in its plea urged the court to fix a time limit within which the convict of death sentence should file curative petition.

·   3. The 14 day period for mercy plea should be reduced to 7 days.

·   4.If a mercy plea has already been rejected, a death warrant should be issued within the next 7 days and execution carried out a week thereafter.

. 5. The pendency of review or curative petitions of his co-convicts should be of no consequence for a man whose mercy plea has been rejected.

CONCLUSION

Eventhough International Human Rights Organizations regard death penalty as brutal and to be banned, it is still practiced by many countries like India to have a legal check and to prevent the brutal offences being commissioned. But its effect in India is failing in its prevention because of delayed execution and accused centric provisions. While debating from convicts side the unwanted delay is causing mental trauma not only to the accused but also to the family members of both convict and victim. All these delays, excessive rights should be addressed to keep a check on the growing rate of brutal offences.