NIRMA UNIVERSITY

INSTITUTE OF LAW B.Com., LL.B. (Hons.)Course ACADEMIC YEAR 2012-2013

ARTICLE FOR TERM ASSIGNMENT II CONSTITUTIONALITY OF DEATH SENTENCE IN INDIA

SUBMITTED BY:
ROHIT LALWANI (10BBL035) B.COM., LL.B. (HONS) V SEMESTER

SUBMITTED TO:
DR. TARKESH PATEL MR. RAVI BUNDELA CONSTITUTION LAW II

CONSTITUTIONALITY OF DEATH SENTENCE IN INDIA

ABSTRACT

Death Sentence has been seen as a last resort for the serious crimes against humanity. The courts today have taken the route of giving death sentences in only rarest of the rare cases but this instruction has been contradicted by the legislature increasing the number of offences punishable by death. The death penalty is mandatory under two of the relevant laws, including for drug-related offences. Death sentences have been imposed on people who may have been children at the time of the crime, and on people suffering from mental illness. There are grave concerns about arbitrariness and discrimination in the processes that lead to people being sentenced to death. Such factors would render India's use of the death penalty to be in violation of international laws and standards.

The debate over the death penalty has in the recent past acquired renewed vigor. The government of the day has been insisting on the increased use of death penalty for crimes other than murder, particularly rape. Certain womens groups have welcomed this. The judiciary too has been awarding the death penalty for violent crimes with increased regularity. When the designated court that tried the Rajiv Gandhi assassination case recommended death penalty to all the 26 accused arraigned before it, it was time for the abolitionists to once again hold a banner of protest. Despite being party to the International Covenant on Civil and Political Rights (ICCPR) that requires a progression towards abolition of death penalty, India appears to be heading the other way.

INTRODUCTION
Since the founding of the Indian Constitution five decades ago, public awareness of problems with the death penalty and prevailing international legal standards has evolved significantly. In dozens of countries, democratic governments in the course of conducting a major review of their national constitutions have decided to curtail, if not abolish, the death penalty. In national systems and as a matter of international law, it is increasingly recognised that the death penalty has no place in a democratic and civilised society.

After tracing the judicial decisions which upheld the constitutionality of the death penalty, and the evolution of the rarest of rare test in the landmark Bachan Singh case, I propose to examine how that test has been applied by the court in subsequent cases. The non-adherence to the mandatory procedural requirement of a pre-sentencing hearing, the real possibility of the wrong person being convicted, the uncertainty of executive clemency, the domination of the debate by retentionists since Bachan Singh are some of the contexts in which it is proposed to examine the justication for retention of death penalty as a form of punishment.

The need to revisit the contention that death penalty is a cruel punishment is inspired by two recent developments in the international sphere. First is the judgment in 1995 of the South African Constitutional Court, declaring death penalty to be a cruel and inhuman punishment and therefore unconstitutional. The second is the signing by 120 countries of the statute creating the International Criminal Court, which was rejected the death penalty as a punishment for genocide, crimes against humanity and war crimes.

DEATH SENTENCE CONSTITUTIONAL?

Death penalty has been a mode of punishment since time immemorial. The arguments for and against has not changed much over the years. At this point of time when the issue [whether capital punishment must be abolished or not] is still raging, it will be appropriate to remind ourselves as to how the legislatures and the apex Court have dealt with this issue every time it has come up before them.

The provision of death penalty as an alternative punishment for murder under s. 302, IPC 1 was challenged as constitutionally invalid being violate of Article 14,2 193 and 214 of the Constitution

Whoever commits murder shall be punished with death, or 1[imprisonment for life] and shall also be liable to fine. 2 Article 14 Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 3 Article 19 Protection of certain rights regarding freedom of speech, etc: (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (f) to practice any profession, or to carry on any occupation, trade or business. (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. (3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause. (5) Nothing in sub-clause (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Schedule Tribe.

in a series of cases. It was contended in Jagmohan Singh v. State of U.P.5 that the constitutional validity of death sentence has to be tested with reference to Article 14 and 19 besides Article 21 of the Constitution as the right to life is fundamental to the enjoyment of all these freedoms as contained in Article 19 of the Constitution.

It was further contended that the Code of Criminal Procedure prescribed the procedure of finding guilt of an accused but regarding the sentence to be awarded under s. 302, IPC the unguided and uncontrolled discretion has been left to the Judge to decide the sentence to be awarded. The Supreme Court held that the death sentence as an alternative punishment under s. 302, IPC is not unreasonable and it is in the public interest and the procedural safeguard provided to the accused under the Code of Criminal Procedure is not unreasonable leaving the discretion with the judge to sentence an accused, convicted for murder either to death or life imprisonment Death sentence as an alternative punishment for life was held valid.

Though the court did not accept the contention that the validity of the sentence to death has to be tested in the light of Article 14 and 10 of the Constitution, but in Rajendra Prasad v. State of U.P.6 the court accepted the proposition that the validity of the death sentence can be tested with reference to Article 14, 19 and 21 of the Constitution. The Supreme Court suggested that in exceptional circumstances death sentence should be imposed only when public interest, social defence and public order would warrant. Such extreme penalty should be imposed in extreme

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. 4 Article 21 Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law. 5 AIR 1973 SC 947. 6 AIR 1979 SC 917.

circumstances. The court in Barchan Singh v. State of Punjab7 upheld that constitutional validity of death sentence. The court reasoned that penal law does not attract Article 19(1) of the Constitution. If the impact of the law on nay of the rights under Article 19(1) is merely incidental, indirect, remote or collateral, Article 19 would not be available for testing its validity.

Accordingly, the court held that s. 302, IPC for its validity would not require to qualify the test of Article 19. The procedure provided in the Code of Criminal Procedure for imposing capital punishment for murder cannot be said to be unfair, unreasonable and unjust. But Justice Bhagwati in his dissenting judgment held that s. 302, IPC and s. 354(3), Cr PC violation of Article 14 and 21 as these provisions confers unguided power on the court which irrational and arbitrary.

Thus, death sentence should be imposed in the rarest of the rare case. The Supreme Court in Machhi Sing v State of Punjab8 laid down the broad outlines of the circumstances when death sentence should be imposed. It should be considered whether there is something uncommon about the crime and the compelling circumstances for imposing death sentence after giving maximum weight age of the mitigating circumstances which is favour of the accused.

Jumman Kahn was facing the gallows on being sentenced to death for having brutally raped and strangulated to death a six year old girl named Sakina. The convict challenged the death sentence and its constitutionality.9 It was argued that death penalty is not only outmoded, unreasonable, cruel and unusual punishment but also defies the dignity of the individual and the issue needs reconsideration which stands like sentinel over human misery, degradation and oppression. The Supreme Court while endorsing its earlier view as to the constitutionality of death sentence held that the failure to impose death sentence is such grave cases here it is a crime against the society, particularly in case of murders with extreme brutality will bring to naught the sentence of death penalty provided by s. 302 of IPC. The only punishment which the convict deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust is nothing but death as a measure of social necessity and also a means of deterring other potential
7 8

AIR 1980 SC 898. AIR 1983 SC 947. 9 Jumman Khan v State of UP AIR 1991 SC 345.

offenders. The Supreme Court in earlier case Banchan Singh v. State Punjab10 upheld the constitutional validity of imposition of death sentence as an alternative to life imprisonment and it was further that it is not violate of Articles 14 and 21 of the Constitution. Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher Singh v State of Punjab11 held that death sentence is constitutionally valid and permissible within the constrain of the rule in Bachan Singh (supra). This has to be accepted as the law of the land. The decisions rendered by this court after full debate has to be accepted without mental reservation until they are set aside.

The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v State of Gujarat12 and in Allauddins case13 and the Supreme Court asserted affirmatively that the Constitution does not prohibit the death penalty.

It is in the rare cases, the legislature in its wisdom, considered it necessary impose the extreme punishment of death to deter others and to protect the society. The choice of sentence is left with the rider that the judge may visit the convict with extreme punishment provided there exists special reasons for doing so. The provision of Article 302, IPC is consistent with the Constitutional Provision of Article 21 which enjoins that personal liberty or life of an individual shall not be taken except according to the procedure established by law. Whether death penalty is violative of Article 14, 19, and 21 of the Constitution came up for consideration before the Supreme Court in Bachan Singh v. State of Punjab14 and the court answered the contention in the negative.

In the face of the statutory provision in cl. (3) of s. 354 of the Cr. PC requiring giving of special
10 11

AIR 1982 SC 1325: (1982)3 SCC 24. AIR 1983 SC 465: (1983)2 SCC 344. 12 AIR 1989 SC 1335: (1989)1 SCC 678. 13 AIR 1989 SC 1456. 14 AIR 1980 SC 898: (1980)2 SCC 684

reason while imposing death penalty which is consistent with Article 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, the extreme plea of death in no case cannot be countenanced and death penalty cannot be said to be violate of Article 21 of the Constitution. Section 302, IPC casts a heavy duty on the court to choose between death sentence and imprisonment for life and court must show high degree of concern and sensitiveness in the choice of sentence. It was held in Allauddin Mian v. State of Bihar15 that special reason in s. 354, Cr. PC should be sufficient safe guard against arbitrary imposition of extreme penalty. Where a sentence of severity is imposed, it is imperative that the Judge should indicate the basis upon which he considered the sentence of that magnitude justified.

15

AIR 1989 SC 1457

CONCLUSION
Kent E.Gipson, an attorney representing death row inmates in their post-conviction appeals in Missouri, U.S.A. points out that: The death penalty in America is a `cruel lottery, because at each stage of the process from the prosecutions decision to seek the death penalty to the carrying out of the sentence, a defendants chance of being given the death penalty depend to an astonishing degree on arbitrary and capricious circumstances rather than on the defendants criminal and moral responsibility. This system, permeated with unfairness from beginning to end, is so awed as to be unjustiable.

These observations might as well apply to our country beset as it is with its endemic problems of an overburdened judicial system, an inadequate network of legal aid and assistance and poor prison conditions. Early on the Supreme Court had, in a series of far-reaching orders in public interest litigation cases, highlighted the harshness of both the criminal justice and penitentiary systems. Prisoners in our jails die a thousand deaths before they reach the gallows. There is a general misconception that incarceration for long terms is a less severe form of punishment when compared to the death penalty.

The system of legal aid developed thus far has not held out much promise for the poor, who constitute the largest percentage of the litigants within the criminal justice system. The Legal Services Authorities Act, 1987 does entitle a person in custody to avail of legal aid. However, this legislation was enforced by the government only in November, 1995 and its effectiveness remains to be seen. The Cr.PC131 provides that a sessions judge may request a lawyer to act for an unrepresented accused. The working of this system has been unsatisfactory since the litigant does not have the choice of a lawyer.

Can we measure up to the challenge posed? Are we prepared to ask the right questions and seek the kind of information we need? Surprisingly the general consensus on the reasons for the spiralling crime rate has not prompted a debate over its real causes. Law persons must show the lead in reviving the platform for an informed debate on the retention of death penalty. Given the fact that there is very little information made available on how many people are being sentenced

to death at any given point in time, how many await decisions on their mercy petitions, how many wait the hangmans noose to be tightened around their necks and where, there is much that needs to be done to facilitate research and analysis. Prison doors need to be knocked at and prisoners engaged in a dialogue. This task needs to be undertaken on a priority basis before mounting the next challenge to the constitutionality and justication for retaining the death penalty.