CHAPTER-1

INTROUCTION
Punishment’ is the coercion used to enforce the ‘law of land’ which acts as one
of the pillars of modern civilization. It is the duty of the State to punish the
criminals in order to maintain law and order in the society. In the past, there
wasn’t any specific law or order for such crimes and the quantum and extent of
punishment was largely dependent on the King. With time modern theories of
punishment were developed and voluntary submission of our rights and power
to maintain law and order was given to state. The most brutal or we can say the
highest punishment awarded in present time is ‘Capital Punishment’
Capital punishment is the punishment which involves legal killing of a person
who has committed a certain crime prohibited by the law.1
All punishments are based on the same proposition i.e. there must be a penalty
for wrongdoing. Most systems of religion or ethics teach that bad actions lead to
bad consequence. There are two main reasons for inflicting the punishment.
One is the belief that it is both right and just that a person who has done wrong
should suffer for it, the other is the belief that inflicting punishment on
wrongdoers discourages others from doing wrong. The death penalty also rests
on the same proposition as other punishments. Because of its drastic and
irrevocable nature, it is even more open to debate over its fairness,
appropriateness and effectiveness than other punishments. The proponents of
death penalty believe that it is an effective way to stop crime. They focus on the
death penalty as a deterrent or something that will stop or lesson crime. They
believe that the death penalty brings the most justice to the victim of a heinous
crime.
The capital punishment debate is the most generally relevant debate, keeping in
mind the situation that has been brought about by today. Capital punishment is
an integral part of the Indian criminal justice system. Increasing strength of the
human rights movement in India, the existence of capital punishment is
questioned as immoral. However this is an odd argument as keeping one person
alive at the cost of the lives of numerous members or potential victims in the
society is unbelievable and in fact, that is morally wrong.

1
Roger Hood, Capital Punishment, Encyclopaedia
Britannica, https://www.britannica.com/topic/capitalpunishment

1
1.1 Historical Considerations
Capital punishment for murder, treason, arson, and rape was widely employed
in ancient Greece under the laws of Draco (fl. 7th century BCE), though Plato
argued that it should be used only for the incorrigible. The Romans also used it
for a wide range of offenses, though citizens were exempted for a short time
during the republic. It also has been sanctioned at one time or another by most
of the world’s major religions. Followers of Judaism and Christianity, for
example, have claimed to find justification for capital punishment in the biblical
passage “Whosoever sheddeth man’s blood, by man shall his blood be shed”
(Genesis 9:6). Yet capital punishment has been prescribed for many crimes not
involving loss of life, including adultery and blasphemy. The ancient legal
principle Lex talionis (talion)—“an eye for an eye, a tooth for a tooth, a life for
a life”—which appears in the Babylonian Code of Hammurabi, was invoked in
some societies to ensure that capital punishment was not disproportionately
applied.
The prevalence of capital punishment in ancient times is difficult to ascertain
precisely, but it seems likely that it was often avoided, sometimes by the
alternative of banishment and sometimes by payment of compensation. For
example, it was customary during Japan’s peaceful Heian period (794–1185)
for the emperor to commute every death sentence and replace it with
deportation to a remote area, though executions were reinstated once civil war
broke out in the mid-11th century.
In Islamic law, as expressed in the Qurʾān, capital punishment is condoned.
Although the Qurʾān prescribes the death penalty for several ḥadd (fixed)
crimes—including robbery, adultery, and apostasy of Islam murder is not
among them. Instead, murder is treated as a civil crime and is covered by the
law of qiṣās (retaliation), whereby the relatives of the victim decide whether the
offender is punished with death by the authorities or made to pay diyah
(wergild) as compensation.
Death was formerly the penalty for a large number of offenses in England
during the 17th and 18th centuries, but it was never applied as widely as the
law provided. As in other countries, many offenders who committed capital
crimes escaped the death penalty, either because juries or courts would not
convict them or because they were pardoned, usually on condition that they
agreed to banishment; some were sentenced to the lesser punishment of
transportation to the then American colonies and later to Australia. Beginning in
the Middle Ages, it was possible for offenders guilty of capital offenses to
receive benefit of clergy, by which those who could prove that they were

2
ordained priests (clerks in Holy Orders) as well as secular clerks who assisted in
divine service (or, from 1547, a peer of the realm) were allowed to go free,
though it remained within the judge’s power to sentence them to prison for up to
a year, or from 1717 onward to transportation for seven years. Because during
medieval times the only proof of ordination was literacy, it became customary
between the 15th and 18th centuries to allow anyone convicted of a felony to
escape the death sentence by proving that he (the privilege was extended to
women in 1629) could read. Until 1705, all he had to do was read (or recite) the
first verse from Psalm 51 of the Bible—“Have mercy on me, O God, according
to your steadfast love; according to your abundant mercy blot out my
transgressions”—which came to be known as the “neck verse” (for its power to
save one’s neck). To ensure that an offender could escape death only once
through benefit of clergy, he was branded on the brawn of the thumb (M for
murder or T for theft). Branding was abolished in 1779, and benefit of clergy
ceased in 1827.
From ancient times until well into the 19th century, many societies administered
exceptionally cruel forms of capital punishment. In Rome the condemned were
hurled from the Tarpeian Rock ; for parricide they were drowned in a sealed bag
with a dog, cock, ape, and viper; and still others were executed by forced
gladiatorial combat or by crucifixion. Executions in ancient China were carried
out by many painful methods, such as sawing the condemned in half, flaying
him while still alive, and boiling. Cruel forms of execution in Europe included
“breaking” on the wheel, boiling in oil, burning at the stake, decapitation by the
guillotine or an axe, hanging, drawing and quartering, and drowning. Although
by the end of the 20th century many jurisdictions (e.g., nearly every U.S. state
that employs the death penalty, Guatemala, the Philippines, Taiwan, and some
Chinese provinces) had adopted lethal injection, offenders continued to be
beheaded in Saudi Arabia and occasionally stoned to death (for adultery) in
Iran and Sudan. Other methods of execution were electrocution, gassing, and
the firing squad.

1.2 Methods for providing capital punishment all over world

At present, the ancient methods have been abolished for providing capital
punishment and new techniques are being adopted in order to reduce the
physical pain experienced by the offender while dying. The new methods
adopted for providing capital punishment include:

 Hanging

3
  Beheading
 Stoning
 Lethal Injection
 Shooting by fire squad
 Shooting
 Electrocution
 Gas chamber
 Falling from an unknown height
The method of electrocution was first used as a method of Capital Punishment
at Auburn State Prison of New York on August 6, 1890, and this method is at
present used in various countries such as England, Russia and, Japan, etc.

During the II World War, a special machine called ‘Guillotine’ was used to kill
Nazis and it was used in France for the execution of capital punishment. This
machine was invented by Doctor Guillotine; it had a sharp blade with the help
of which a person was beheaded. Later this machine was also used by England
and Scotland for the execution of the death of the offenders.

The Shooting was used as a technique for providing death sentences in Russia
and in China also. In America and Germany, the gas chamber technique was
used as a method for the execution of the death penalty, in which the criminal is
left to suffocate in a vacuum gas chamber and henceforth die. In this technique,
the criminal dies immediately without any physical pain.

Hanging till death is popular in many countries but by considering India in this
context, it is illegal to hang a criminal at a public place.

A new method is known as the lethal injection method introduced for the
execution of capital punishment. For the first time, it was used at Yokohama in
America in 1977. The positive quality of this technique is that it kills the
criminal in a few seconds and it does not give any physical pain to the offender.
At present, it is used in Canada, England, and other countries.

4
 CHAPTER-2
HISTORY OF THE DEATH PENALTY IN INDIA
2.1 Pre-Constitutional History and Constituent Assembly Debates
An early attempt at abolition of the death penalty took place in pre-independent
India, when Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the
death penalty for IPC offences in 1931. However, this was defeated. 2 Around
the same time, in March 1931, following the execution of Bhagat Singh,
Sukhdev and Rajguru by the British government, the Congress moved a
resolution in its Karachi session, which included a demand for the abolition of
the death penalty.
India’s Constituent Assembly Debates between 1947 and 1949 also raised
questions around the judge-centric nature of the death penalty, arbitrariness in
imposition, its discriminatory impact on people living in poverty, and the
possibility of error.3
2.2 Legislative Backdrop
At independence, India retained several laws put in place by the British colonial
government, which included the Code of Criminal Procedure, 1898 (‘Cr.P.C.
1898’), and the Indian Penal Code, 1860 (‘IPC’). The IPC prescribed six
punishments that could be imposed under the law, including death.
For offences where the death penalty was an option, Section 367(5) of the
CrPC 1898 required courts to record reasons where the court decided not to
impose a sentence of death:
If the accused is convicted of an offence punishable with death, and the court
sentences him to any punishment other than death, the court shall in its
judgment state the reason why sentence of death was not passed.
In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly
altering the position of the death sentence. The death penalty was no longer the
norm, and courts did not need special reasons for why they were not imposing
the death penalty in cases where it was a prescribed punishment.

2
Law Commission of India, 35th Report, 1967, at para 12, available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 24.08.2015)
3
See Constituent Assembly Debates on 3 June, 1949, Part II available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm

5
The Code of Criminal Procedure was reenacted in 1973 (‘CrPC’), and several
changes were made, notably to Section 354(3):
When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence.
2.3 Previous Law Commission Reports
(i) The 35th Report of the Law Commission
The Law Commission released its 35th Report on “Capital Punishment” in
1967, recommending that the death penalty be retained. After considering the
arguments of the abolitionists and retentionists, the state of the death penalty in
various countries and objectives of capital punishment, the Commission 19
recommended that the death penalty be retained in India, saying:
Having regard, however, to the conditions in India, to the variety of the social
upbringing of its inhabitants, to the disparity in the level of morality and
education in the country, to the vastness of its area, to the diversity of its
population and to the paramount need for maintaining law and order in the
country at the present juncture, India cannot risk the experiment of abolition of
capital punishment.4
(ii) The 187th Report of the Law Commission
In 2003, the Commission released its 187th Report on the “Mode of Execution
of Death and Incidental Matters”. 5 The Commission had taken up this matter
suo motu because of the “technological advances in the field of science,
technology, medicine, anaesthetics”6 since its 35th Report. This Report did not
address the question of whether the death penalty was desirable. Instead, it
restricted itself to three issues: (a) the method of execution of death sentence,
(b) the process of eliminating differences in judicial opinions among Judges of
the apex Court in passing sentence of death penalty, and (c) the need to provide
a right of appeal to the accused to the Supreme Court in death sentence matters.
After soliciting public opinion and studying the practice on these issues in India
and in other countries, the Law Commission recommended that Section 354(5)
of the CrPC be amended to allow for the lethal injection as a method of
4
Law Commission of India, 35th Report, 1967, at para 293, available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf
5
Law Commission of India, 187th Report, 2003, available at
http://lawcommissionofindia.nic.in/reports/187th%20report.pdf
6
08.2015). 70 Law Commission of India, 187th Report, 2003, at page 5

6
execution, in addition to hanging. The Commission also recommended that
there should be a statutory right of appeal to the Supreme Court where a High
Court confirms a death sentence, or enhances the sentence to capital
punishment. Furthermore, it suggested that all death sentence cases be heard by
at least a 5-judge Bench of the Supreme Court.7
2.4 Constitutionality of the Death Penalty in India
2.4.1 Era of Jagmohan to Bachan Singh
The first challenge to the constitutionality of the death penalty in India came in
the 1973 case of Jagmohan Singh v. State of U. P. (‘Jagmohan’).8 The
petitioners argued that the death penalty violated Articles 14, 19 and 21 of the
Constitution of India. It was argued that since the death sentence extinguishes,
along with life, all the freedoms guaranteed under Article 19(1) (a) to (g), it was
an unreasonable denial of these freedoms and not in the interests of the public.
Further, the petitioners argued that the discretion vested in judges in deciding to
impose death sentence was uncontrolled and unguided and violated Article 14.
Finally, it was contended because the provisions of the law did not provide a
procedure for the consideration of circumstances crucial for making the choice
between capital punishment and imprisonment for life, it violated Article 21.
The decision of the US Supreme Court in Furman v. Georgia in which the death
penalty was declared to be unconstitutional as being cruel and unusual
punishment was also placed before the Constitution Bench.
The Court held that: The impossibility of laying down standards is at the very
core of the criminal law as administered in India, which invests the Judges with
a very wide discretion in the matter of fixing the degree of punishment. That
discretion in the matter sentences as already pointed out, is liable to be
corrected by superior courts… The exercise of judicial discretion on well-
recognised principles is, in the final analysis, the safest possible safeguard for
the accused.9
The Court also held that: If the law has given to the judge a wide discretion in
the matter of sentence to be exercised by him after balancing all the
aggravating and mitigating circumstances of the crime, it will be impossible to
say that there would be at all any discrimination, since facts and circumstances
of one case can hardly be the same as the facts and circumstances of another.10

7
Law Commission of India, 187th Report, 2003, at page 3, available at
http://lawcommissionofindia.nic.in/reports/187th%20report.pdf
8
(1973) 1 SCC 20
9
Jagmohan Singh v. State of U. P., (1973) 1 SCC 20, at para 26
10
Jagmohan Singh v. State of U. P., (1973) 1 SCC 20, at para 27.

7
In Bachan Singh, the Court adopted the ‘rarest of rare’ guideline for the
imposition of the death penalty, saying that reasons to impose or not impose the
death penalty must include the circumstances of the crime and the criminal.
This was also the case where the court made a definitive shift in its approach to
sentencing. The Court held: the court made a definitive shift in its approach to
sentencing.
The Court held: The expression ‘special reasons‘ in the context of this
provision, obviously means ’exceptional reasons‘ founded on the exceptionally
grave circumstances of the particular case relating to the crime as well as the
criminal.11
Justice Bhagwati in his dissenting opinion found the death penalty necessarily
arbitrary, discriminatory and capricious. He reasoned that “the death penalty in
its actual operation is discriminatory, for it strikes mostly against the poor and
deprived sections of the community and the rich and the affluent usually escape,
from its clutches. This circumstance also adds to the arbitrary and capricious
nature of the death penalty and renders it unconstitutional as being violative of
Articles 14 and 21.”12
2.4.2 Method of Execution
In 1983, the Supreme Court in Deena v. Union of India (‘Deena’), 13 rejecting a
constitutional challenge to execution by hanging, held that while a prisoner
cannot be subjected to barbarity, humiliation, torture or degradation before the
execution of the sentence, hanging did not involve these either directly or
indirectly. In Deena, too, there was an attempt to revisit the constitutionality of
the death sentence, but the court did not reopen the question.
In a later decision of Parmanand Katara v. Union of India,14 the Court
accepted that allowing the body to remain hanging beyond the point of death –
the Punjab Jail Manual instructing that the body be kept hanging for half an
hour after death – was a violation of the dignity of the person and hence
unconstitutional.

11
Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 161
12
Bachan Singh v. State of Punjab, 1982 3 SCC 24 (J. Bhagwati, dissenting), at para 81.
13
(1983) 4 SCC 645
14
(1995) 3 SCC 248

8
2.5 Laws on the death penalty in India
Under the IPC, the death sentence may be imposed for several offences,
including:
Tale no -1 Capital Offences in IPC
S. No Section Number Description

1 Section 120B Criminal conspiracy

2 Section 121 Treason, for waging war against the Government

of India Treason, for waging war against the
Government of India

3 Section 132 Abetment of mutiny actually committed

4 Section 194 Perjury resulting in the conviction and death of

an innocent person

5 Section 195A Threatening or inducing any person to give false

evidence resulting in the conviction and death of
an innocent person

6 Section 302 Murder

7 Section 305 Abetment of a suicide by a minor, insane person

or intoxicated person

8 Section 307 (2) Attempted murder by a serving life convict

9 Section 364A Kidnapping for ransom

10 Section 376A Rape and injury which causes death or leaves

the woman in a persistent vegetative state

11 Section 376E Certain repeat offenders in the context of rape

12 Section 396 Dacoity with murder

9
Besides the IPC, several laws prescribe the death penalty as a possible
punishment in India. These include:

Tale No-2 Capital Offences in other laws

S. No Section Number Act

1 Sections 34, 37, and 38(1) The Air Force Act, 1950

2 Section 3(1)(i) The Andhra Pradesh Control of

Organised Crime Act, 2001
3 Section 27(3) The Arms Act, 1959 (repealed)

4 Sections 34, 37, and 38(1) The Army Act, 1950

5 Sections 21, 24, 25(1)(a), and 55 The Assam Rifles Act, 2006

6 Section 65A(2) The Bombay Prohibition (Gujarat

Amendment) Act, 2009 Section 65A(2)
The Bombay Prohibition (Gujarat
Amendment) Act, 2009

7 Sections 14, 17, 18(1)(a), and 46 The Border Security Force Act, 1968

8 Sections 17 and 49 The Coast Guard Act, 1978

9 Section 4(1) The Commission of Sati (Prevention)

Act, 1987

10 Section 5 The Defence of India Act, 1971

11 Section 3 The Geneva Conventions Act, 1960

12 Section 3 (b) The Explosive Substances Act, 1908

13 Sections 16, 19, 20(1)(a), and 49 The Indo-Tibetan Border Police Force
Act, 1992

14 Section 3(1)(i) The Karnataka Control of Organised

Crime Act, 2000

10
 15 Section 3(1)(i) The Maharashtra Control of Organised
Crime Act, 1999

16 Section 31A(1) The Narcotics Drugs and Psychotropic

Substances Act, 1985
17 Sections 34, 35, 36, 37, 38, 39, 43, 44, The Navy Act, 1957
49(2)(a), 56(2), and 59
18 Section 15(4) The Petroleum and Minerals Pipelines
(Acquisition of rights of user in land)
Act, 1962
19 Sections 16, 19, 20(1)(a), and 49 The Sashastra Seema Bal Act, 2007

20 Section 3(2)(i) The Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act,
1989
21 Section 3(1)(i) The Suppression of Unlawful Acts
against Safety of Maritime Navigation
and Fixed Platforms on Continental
Shelf Act, 2002;
22 Sections 10(b)(i) and Section 16(1)(a) The Unlawful Activities Prevention Act,
1967

2.5.1 Methods of execution in India

In India, the two popular methods of providing capital punishment are hanging
and shooting.
2.5.1.1 Hanging
All executions in India are carried out by hanging the criminal till death. In
1949, the assassin of Mohandas Karamchand Gandhi i.e. Nathuram Godse was
the first person to be hanged till death in Independent India. The Supreme Court
of India suggested that the punishment of death sentence should be given in
those cases which come into the ambit of ‘rarest of rare’ cases.
2.5.1.2 Shooting
The Army Act, 1950 and the Air Force Act, 1950 also provides the provisions
and methods for awarding capital punishment. Section 34 of the Air Force Act,
1950 empowers the Court to impose the death penalty to the offences mentioned
in Section 34 (a) to (o) of the Act.

11
Section 163 of the Air Force Act, 1950 provides that:
“In awarding a death sentence, a court-martial shall, in its discretion, direct
that the offender shall suffer death by being hanged by the neck until he is dead
or shall suffer death by being shot to death.”
This provides discretionary power to the Court to provide for the execution of
the death sentence either by execution or by shooting. As the Air Force Act,
1950, the Army’s Act, 1950 and the Navy Act, 1957 also provide for similar
provisions.
2.6 Recent expansions of the scope of the death penalty
Several of these enactments have been passed relatively recently. For example,
passed in 2013, the Criminal Law (Amendment) Act introduced several new
provisions into the IPC, including Section 376A, which allowed for the death
penalty to be imposed in cases where rape led to the death of the victim, or left
her in a persistent vegetative state; and 376E which allowed for the imposition
of the death penalty for certain repeat offenders. These amendments were
passed in the wake of the recommendations of the Verma Committee.
Pertinently, while the Verma Committee was in favour of enhanced punishment
for certain forms of sexual assault and rape, it noted that “in the larger interests
of society, and having regard to the current thinking in favour of abolition of the
death penalty, and also to avoid the argument of any sentencing arbitrariness,
we are not inclined to recommend the death penalty.” The Criminal Law
(Amendment) Act, 2013, nevertheless expanded the scope of the death penalty.
2.7 Death penalty and anti-terror laws
Many laws under which the death penalty continues to be imposed have to do
with terrorist offences. For example, death sentences under the Terrorist and
Disruptive Activities Act, 1987 (‘TADA’), Prevention of Terrorism Act, 2002
(‘POTA’), and Unlawful Activities Prevention Act, 1967 (‘UAPA’), continue to
be imposed and upheld. For one thing, these death sentences are implemented
even when the underlying law in some of these cases has either been repealed
(TADA) or has lapsed (POTA). TADA in particular was repealed in the face of
criticism for not respecting fair trial guarantees and amidst widespread
allegations of abuse. Provisions in the TADA, POTA and now UAPA did not
provide for the full range of fair trial guarantees: they defined offences vaguely,
thus compromising the principle of legality; reversed the presumption of
innocence in certain instances; allowed for long periods of pre-charge detention;
made certain confessions to specific police officials admissible as evidence; and
limited the right to appeal by only allowing appeals to the Supreme Court.

12
2.8 Bills proposing abolition of the death penalty
Before independence, Shri Gaya Prasad Singh attempted to introduce a Bill
abolishing the death penalty for IPC offences in 1931, which was defeated. 15
Since independence, M.A. Cazmi’s Bill to amend Section 302 IPC in 1952 and
1954, Mukund Lal Agrawal’s Bill in 1956, Prithviraj Kapoor's resolution in the
Rajya Sabha in 1958 and Savitri Devi Nigam’s 1961 resolution had all sought to
abolish the death penalty.16 In 1962, Shri Raghunath Singh’s resolution for
abolition of the death penalty was discussed in the Lok Sabha, and following
this the matter was referred to the Law Commission, resulting in the 35th
Commission Report.17
At present, two bills moved by Rajya Sabha Members of Parliament are
relevant to the issue. Kanimozhi has moved a Private Member’s Bill demanding
the abolition of the death penalty, 18 and D. Raja has moved a Private Member’s
Bill asking the Government to declare a moratorium on death sentences pending
the abolition of the death penalty.19
2.9 Recent Executions in India
India has carried out at least 720 executions since Independence, nearly half of
them in Uttar Pradesh, according to data collated under a project of the National
Law University here. The actual number could be much higher, a project
official said, as there are no proper records maintained by the government.
According to the Project 39A data, 354 executions were carried out in Uttar Pradesh since
Independence, followed by 90 in Haryana, 73 in Madhya Pradesh, 57 in Maharashtra, 36 in
Karnataka, 30 in West Bengal, 27 in Andhra Pradesh, 24 in Delhi, and 10 in Punjab. Eight
deaths by execution were recorded in Rajasthan, five each in Odisha and Jammu
and Kashmir, and one in Goa, it added.20

Dhananjoy Chatterjee was executed in 2004, after a period of about 7 years

since the last execution. The previous recorded execution had been in
1997.After 2004, India had an unofficial moratorium in executions for eight
years, until Ajmal Kasab was executed in November 2012. Two executions

15
Law Commission of India, 35th Report, 1967, at para 12, available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf
16
See Law Commission of India, 35th Report, 1967, at para 15-18, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
17
See Law Commission of India, 35th Report, 1967, at para 1, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
18
Special Correspondent, Kanimozhi to move Bill to abolish death penalty, The Hindu, July 31 2015.
19
IANS, Death penalty: CPI leader D Raja moves private member's resolution, Economic Times, 31 July, 2015.
20
At least 720 executions in India since 1947 ,The Economic Times

13
have happened since: Afzal Guru was executed in February 2013, and Yakub
Memon was executed in July 2015.
Mukesh Singh (32), Pawan Gupta (25), Vinay Sharma (26) and Akshay Kumar
Singh (31), convicted for the 2012 gang rape and murder of the 23-year-old
physiotherapy intern, who later came to be known as 'Nirbhaya', were hanged.

14
 CHAPTER-3
INTERNATIONAL TREND
The international landscape regarding the death penalty – both in terms of
international law and state practice – has evolved in the past decades. As
compared to 1967, when the 35th Report of the Commission was issued, and
1980, when the Bachan Singh judgment was delivered, today a majority of the
countries in the world have abolished the death penalty in law or practice.
Even those who retain it, carry out far fewer executions than was the case
some decades ago.
Internationally, countries are classified on their death penalty status, based on
the following categories:21
 Abolitionist for all crimes
 Abolitionist for ordinary crimes22
 Abolitionist de facto23
21
This system is followed by the United Nations and by non-governmental organizations like Amnesty
International. See for example, “Capital punishment and implementation of the safeguards guaranteeing
protection of the rights of those facing the death penalty” Report of the Secretary-General, E/2015/49
[advance, unedited version] at page 4; See Annex II, Amnesty International, Death Sentences and Executions in
2014, ACT 50/001/2015. This system is followed by the United Nations and by non-governmental organizations
like Amnesty International. See for example, “Capital punishment and implementation of the safeguards
guaranteeing protection of the rights of those facing the death penalty” Report of the Secretary-General,
E/2015/49 [advance, unedited version] at page 4; See Annex II, Amnesty International, Death Sentences and
Executions in 2014, ACT 50/001/2015. This system is followed by the United Nations and by non-governmental
organizations like Amnesty International. See for example, “Capital punishment and
implementation of the safeguards guaranteeing protection of the rights of those facing
the death penalty” Report of the Secretary-General, E/2015/49 [advance, unedited
version] at page 4; See Annex II, Amnesty International, Death Sentences and
Executions in 2014, ACT 50/001/2015.
22
This means that “the death penalty has been abolished for all ordinary offences committed in peacetime,
such as those contained in the criminal code or those recognized in common law (for example, murder, rape
and robbery with violence). The death penalty is retained only for exceptional circumstances, such as military
offences in time of war, or crimes against the State, such as treason, terrorism or armed insurrection”- Capital
punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the
death penalty, Report of the SecretaryGeneral, E/2015/49 [advance, unedited version] at page 4.
23
This refers to states where “the death penalty remains lawful and where death
sentences may still be pronounced but where executions have not taken place for 10
years”, or states “that have carried out executions within the previous 10 years but that
have made an international commitment through the establishment of an official
moratorium”, Capital punishment and implementation of the safeguards guaranteeing
protection of the rights of those facing the death penalty, Report of the SecretaryGeneral, E/2015/49
[advance, unedited version] at page 4. Amnesty International
follows a slightly different definition: Countries which retain the death penalty for
ordinary crimes such as murder but can be considered abolitionist in practice in that
they have not executed anyone during the last 10 years and are believed to have a
policy or established practice of not carrying out executions. Annex II, Amnesty
International, Death Sentences and Executions in 2014, ACT 50/001/2015.

15
  Retentionis
At the end of 2014, 98 countries were abolitionist for all crimes, seven countries
were abolitionist for ordinary crimes only, and 35 were abolitionist in practice,
making 140 countries in the world abolitionist in law or practice. The list of 140
countries includes three that formally abolished the death penalty in 2015, i.e.,
Suriname, Madagascar and Fiji.24 58 countries are regarded as retentionist, who
still have the death penalty on their statute book, and have used it in the recent
past.
While only a minority of countries retain and use the death penalty, this list
includes some of the most populous nations in the world, including India,
China, Indonesia and the United States, making a majority of people in the
world potentially subject to this punishment.
3.1 Developments in the International Human Rights Law Framework
3.1.1 Capital Punishment in International Human Rights Treaties
Capital punishment has been regulated in international human rights treaties as
one aspect of the right to life, as contained in the International Covenant on
Civil and Political Rights (‘ICCPR’). With time, some aspects of the imposition
and implementation of capital punishment have also been found to violate the
prohibition against cruel, inhuman, and degrading treatment and punishment.
With the coming into force of the Second Optional Protocol to the ICCPR, the
international community saw the first global, international legal instrument that
aimed at abolishing the death penalty.
3.1.1.1 The International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (‘ICCPR’) is one of
the key documents discussing the imposition of death penalty in international
human rights law. The ICCPR does not abolish the use of the death penalty, but
Article 6 contains guarantees regarding the right to life, and contains important
safeguards to be followed by signatories who retain the death penalty.
Article 6(2) states:
In countries which have not abolished the death penalty, sentence of death may
be imposed only for the most serious crimes in accordance with the law in force
at the time of the commission of the crime and not contrary to the provisions of
the present Covenant and to the Convention on the Prevention and Punishment
24
See On the way out—with grisly exceptions, The Economist, 4 July 2015, available
at http://www.economist.com/news/international/21656666-few-countries-areapplying-death-penalty-more-
freely-global-trend-towards

16
 of the Crime of Genocide. This penalty can only be carried out pursuant to a
final judgment rendered by a competent court.
Article 6(4) requires states to ensure that “Anyone sentenced to death shall have
the right to seek pardon or commutation of the sentence. Amnesty, pardon or
commutation of the sentence of death may be granted in all cases”, and Article
6(5) mandates that a “Sentence of death shall not be imposed for crimes
committed by persons below eighteen years of age and shall not be carried out
on pregnant women.”
At present, 168 states, including India, are parties to the ICCPR. The Committee
reviewed India’s report in 1996 and recommended that India “abolish by law
the imposition of the death penalty on minors and limit the number of offences
carrying the death penalty to the most serious crimes, with a view to its ultimate
abolition.”25
3.1.1.2 The Convention on the Rights of the Child
Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the
Child (‘CRC’) explicitly prohibits the use of the death penalty against persons
under the age of 18. As of July 2015, 195 countries had ratified the CRC.
Article 37(a) states:
States Parties shall ensure that: (a) No child shall be subjected to torture or
other cruel, inhuman or degrading treatment or punishment. Neither capital
punishment nor life imprisonment without possibility of release shall be
imposed for offences committed by persons below eighteen years of age.
3.1.1.3 The Convention against Torture and Cruel, Inhuman or Degrading
Treatment or Punishment
Increasingly, there is an analysis of the death penalty as violating norms against
torture and cruel, inhuman, and degrading treatment or punishment. In this
context, the Convention against Torture and Cruel, Inhuman or Degrading
Treatment or Punishment (‘the Torture Convention’) and the UN Committee
against Torture have been sources of jurisprudence for limitations on the death
penalty as well as necessary safeguards. The Torture Convention does not
regard the imposition of death penalty per se as a form of torture or cruel,
inhuman or degrading treatment or punishment (‘CIDT’). However, some
methods of Execution and the phenomenon of death row have been seen as
forms of CIDT by UN bodies. While India has signed the Torture Convention, it
has yet not ratified it.
25
UN Human Rights Committee, Concluding observations of the Human Rights
Committee: India, 4 August 1997, CCPR/C/79/Add.81 at para 20.

17
 3.1.1.4 International Criminal Law
The international trend towards abolition of the death penalty is also visible in
the evolution of international criminal law. The death penalty was a permissible
punishment in the Nuremberg26 and Tokyo27 tribunals, both of which were
established following World War II. Since then, however, international criminal
courts - including the Statute of the International Criminal Tribunal for the
former Yugoslavia,28 the Statute of the International Criminal Tribunal for
Rwanda,29 the Statute of the Special Court for Sierra Leone and the Law on the
Establishment of the Extraordinary Chambers in the Courts of Cambodia –
exclude the death penalty as a permissible punishment. The same is true for the
Rome Statute of the International Criminal Court, where judges may only
impose terms of imprisonment. It must be noted that these tribunals do not use
the death penalty, despite routinely dealing with the most serious crimes under
international law, including genocide, war crimes, and crimes against humanity.
It is relevant to that India is not signatory to the Rome Statute
3.1.1.5 International Treaty Obligations in Indian Law
Of the treaties mentioned above, India has ratified the ICCPR and the CRC, and
is signatory to the Torture Convention but has not ratified it. Under international
law, treaty obligations are binding on states once they have ratified the treaty. 30
Even where a treaty has been signed but not ratified, the state is bound to
“refrain from acts which would defeat the object and purpose of a treaty”.31
Rights and the International Covenant on Economic, Social and Cultural rights
adopted by the General Assembly of the United Nations on the 16th December,
1966. Further, according to Article 51(c) of the Indian Constitution, the state
shall endeavor to “foster respect for international law and treaty obligations in
the dealings of organised peoples with one another.” While this does not make
all of India’s treaty obligations automatically binding on India, courts have
respected rules of international law where there is no contradictory legislation in
India.

26
United States Holocaust Memorial Museum, International Military Tribunal at Nuremberg, Last updated 18
August 2015, available at: http://www.ushmm.org/wlc/en/article.php?ModuleId=10007069
27
University of Virginia, The Tokyo War Crimes Trial: A digital exhibition, available at:
http://lib.law.virginia.edu/imtfe/tribunal
28
Statute of the International Criminal Tribunal for the former Yugoslavia, available at:
http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf
29
Statute of the International Criminal Tribunal for Rwanda, available at:
http://legal.un.org/avl/pdf/ha/ictr_EF.pdf
30
See Article 26, Vienna Convention on the Law of Treaties (VCLT): “Every treaty in force is binding upon the
parties to it and must be performed by them in good faith.”
31
Article 18, Vienna Convention on the Law of Treaties (VCLT)

18
3.2 International Trends on the Death Penalty
The status and use of the death penalty today suggests an unmistakable trend
towards abolition. When the UN was formed in 1945, only seven countries in
the world had abolished the death penalty. In contrast, as of 31 December 2014,
140 countries in the world had abolished the death penalty in law or practice.
The UN Secretary General publishes a periodic report on the status of the death
penalty globally; the latest of these reports surveyed the global situation
between 2009 and 2013. In this period, the number of fully abolitionist states
increased by six, and almost all retentionist countries reported reductions in the
number of executions and the number of crimes subject to the death penalty.
Amongst retentionist countries, only 32 carried out judicial executions. This
report confirmed “the continuation of a very marked trend towards abolition and
restriction of the use of capital punishment in most countries”.
The trend is also evident from the signatories to the ICCPR’s Second Optional
Protocol, aiming at abolishing the death penalty, to which 81 states have signed
or acceded.
3.2.1 Regional Trends regarding the Death Penalty
1. The Americas
The American Convention on Human Rights 1969 significantly restricts the
application of the death penalty. Article 4 of this convention states that it can
only be imposed for serious crimes following a fair trial, it cannot be inflicted
for political offences or related common crimes, it cannot be re-established in
states that have abolished it, and it cannot be imposed on persons under the age
of 18, over 70 or pregnant women. The Americas also have a specific
convention abolishing the death penalty. Under Article 1 of the Protocol to the
American Convention on Human Rights to Abolish the Death Penalty (ratified
by 13 countries), “The States Parties to this Protocol shall not apply the death
penalty in their territory to any person subject to their jurisdiction.”
For example, like many of its South American neighbours, Brazil abolished the
death penalty for ordinary crimes many decades ago, in 1882. The abolition
only applies to the death penalty for ordinary crimes, and the death penalty for
crimes in extraordinary times of war still remains. The Brazilian Constitution
provides that there shall be no punishment by death, except in the case of war
(Article 5.XLVII). The same Article also provides that there shall be no life
imprisonment, making Brazil one of the few countries in the world where both
capital punishment and life imprisonment do not exist. In the twentieth century,
in the face of political instability and military rule, Brazil reintroduced the death
19
penalty twice: in the years 1939- 45 (for politically motivated crimes of
violence) and 1969-79 (for political crimes against national security), but no
death penalties were imposed on any person during these years.
The United States is a notable exception in the Americas in terms of its
approach to the death penalty. In 2014, the United States was the only country
in its region to carry out executions. Even within the US, for a period of time
following the case of Furman v. Georgia, there was a de facto moratorium on
the death penalty for about four years, between 1972 and 1976. While the death
penalty has since been reinstated, court decisions have narrowed down its scope
and introduced safe guards. For example, in Roper v. Simmons, the Supreme
Court held it was unconstitutional to impose the death penalty for crimes
committed when the individual was below 18 years of age. Further, in Atkins v.
Virginia, 183 the Supreme Court held that executing persons with intellectual
disabilities amounted to cruel and unusual punishment, and was thus
unconstitutional. An increasing number of states in the US have been officially
or un-officially imposing moratoriums. Nineteen states in the US have
abolished it, the most recent among them have been Connecticut in 2012,
Maryland in 2013, and Nebraska in 2015. In 2014, 35 people were executed in
the US, which was the lowest number since 1995.
2. Europe
All European countries, with the exception of Belarus, have either formally
abolished the death penalty or maintain moratoriums The European Court of
Human Rights (‘ECHR’) has evolved rich jurisprudence for countries that have
not yet ratified the two optional protocols. On many occasions, the court has
held that extradition to a country that had the death penalty could violate the
right to life and prohibition against torture. In 2010, the ECHR noted the high
number of signatories of the European Convention who had abolished the death
penalty. It said “These figures, together with consistent State practice in
observing the moratorium on capital unishment, are strongly indicative that
Article 2 has been amended so as to prohibit the death penalty in all
circumstances.” It held that “the words ‘inhuman or degrading treatment or
punishment’ in Article 3 could include the death penalty.”
Like the rest of Europe, France abolished the death penalty despite public
opinion to the contrary. The death penalty in France was abolished on 9 October
1981, after a vote in the National Assembly decided in favour of abolition. It
marked the end of two centuries of debate in the National Assembly on the
issue, the first motion having been presented as far back as in 1791. The
abolition was incorporated into the French Constitution in 2007, Article 66-1 of

20
which reads that “no one shall be sentenced to death”. Public opinion supported
the death penalty for many years after it was abolished (a 2006 poll showed that
52% of the population were against it). Robert Badinter, the minister for Justice
in France in 1981, who led the legislative amendment, has suggested that “it
usually takes about 10 to 15 years following abolition for the public to stop
thinking of it as useful and to realise that it makes no difference to the level of
homicide”, which prediction has found support in many countries.
The history of capital punishment in the United Kingdom is also relevant to the
Indian context. The abolitionist-leaning Labour government that was elected in
post-war Britain considered the issue of capital punishment at least six times
before setting it aside when tabling its Criminal Justice Bill in 1947, deciding
that abolishing the death penalty was not its key priority; and by the 1950s,
however, a series of poorly handled cases and executions had led to the creation
of a strong public movement in favour of abolition. The last execution in the
United Kingdom took place in 1964.1 In 1965, the House of Commons in Great
Britain voted to impose a moratorium on and suspend the death penalty for
murder for a period of 5 years by law.
3. Africa
As of October 2014, 17 African countries had formally abolished the death
penalty, and 25 others had not conducted an execution in over ten years.
Countries continuing to impose the death penalty include Egypt, Equatorial
Guinea, Sudan, and Somalia. Several African countries (e.g., Angola, Namibia)
have abolished the death penalty through the Constitution, while in others,
notably South Africa, the courts have taken the lead.
For example, Kenya retains the death penalty for multiple offences, including
murder, armed robbery and treason. The last known execution in Kenya,
however, took place in 1987, and the country is regarded as abolitionist de
facto. In the case of Mutiso v. Republic (2010), the Court of Appeal at
Mombasa struck down the mandatory death penalty for murder, holding that the
penalty was in violation of the right to life, and amounts to inhuman treatment;
and that keeping a person on death row for more than three years would be
unconstitutional. It also suggested that its reasoning would apply to other
offences having a mandatory death sentence. However, in the case of Joseph
Njuguna Mwaura v Republic (2013), the Court of Appeal at Nairobi upheld the
death penalty for armed robbery. It said that the legislature had to decide
whether the mandatory death penalty should be retained or not. The conflict
between these two decisions is expected to be resolved by the Supreme Court.

21
In South Africa, the death penalty was abolished through a decision of the
Constitutional Court, shortly after the end of the apartheid regime. In an early
ruling in 1995, in State v. Makwanyane, , the South African Constitutional
Court held that the death penalty was unconstitutional. In doing so, the Court
said:
The rights to life and dignity are the most important of all human rights, and
the source of all other personal rights in Chapter Three. By committing
ourselves to a society founded on the recognition of human rights we are
required to value these two rights above all others. And this must be
demonstrated by the State in everything that it does, including the way it
punishes criminals. This is not achieved by objectifying murderers and putting
them to death to serve as an example to others in the expectation that they
might possibly be deterred thereby.
In Nigeria, the death penalty is mainly a state issue, as the country has a federal
system, where criminal laws vary across its 36 states. Each state specifies
crimes and punishments within its territory, and have laws based on both
Shariah and common law systems. A mandatory death penalty is prescribed for
a wide range of offences in various Nigerian states.
4. Asia and the Pacific
About 40% of the countries in the Asia-Pacific are retentionists, and maintain
and use the death penalty. China, Iran, Iraq and Saudi Arabia remain amongst
the highest executors globally, and the past few years have also seen Pakistan
and Indonesia breaking their de facto moratoriums to return to executions.
Indonesia, for example, is a retentionist country that uses the death penalty for
several crimes, ncluding drug-related offences. Earlier in 2015, Indonesia
executed eight people by firing squad, including foreign nationals, for drug-
related offences. Indonesian president Joko Widodo has defended the death
penalty, saying “We want to send a strong message to drug smugglers that
Indonesia is firm and serious in tackling the drug problem, and one of the
consequences is execution if the court sentences them to death”221 Indonesia
had a brief unofficial moratorium on executions between 2008 and 2012, but
has since resumed executions.
China is one of the largest executing countries in the world. There is very
limited information of even how many executions take place in China, as they
are all carried out in secret. However, estimates suggest that 90% of the world’s
executions occur in Asia, and most of them occur in China and that China
executes more people than all other countries combined. In 2010, 68 crimes

22
were punishable by the death penalty in China. A 2011 amendment reduced this
number to 55. Hong Kong and Macau, both Special Administrative Regions of
China, have abolished the death penalty. Similarly, Japan also retains the death
penalty, and conducts executions in secret. Families are usually notified after it
has taken place.
The Philippines was one of the first countries in Asia to abolish capital
punishment. Its 1987 Constitution, promulgated after President Marcos was
overthrown stated:
Article III, Section 19(1): Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua [emphasis supplied].
Saudi Arabia also retains the death penalty, using it against foreign nationals
and persons convicted for offences that do not meet the international law
threshold of “most serious crimes”. Recently there has been an increase in the
rate and number of executions, with over 102 persons being executed in 2015
alone.
Since its formation in 1948, Israel has been abolitionist for ordinary crimes.
The death penalty has only been imposed and implemented once, in 1962, when
Adolph Eichmann was executed. Currently, the following crimes can carry a
death sentence: genocide; murder of persecuted persons committed during the
Nazi regime; acts of treason under the military law and under the penal law
committed in time of hostilities and the illegal use and carrying of arms.
Further, Israeli law requires that the death penalty can only be imposed with
judicial consensus, not judicial majority. In 2015, there were attempts to
introduce a Bill that would make it easier to impose the death penalty on
terrorists, by requiring only a majority and not consensus amongst judges in
such cases. The Bill was rejected in its first reading.
In South Asia, India, Pakistan, and Bangladesh retain the death penalty. In
December 2014, Pakistan lifted its moratorium on executions, in response to a
terrorist attack on a school in Peshawar Since then, around 200 people have
been executed, and around 8000 people on death row remain at risk of
execution.
Maldives and Sri Lanka maintain the penalty in law, but are abolitionist in
practice. The last Sri Lankan execution was in 1976; and in the Maldives in the
1950s. Capital punishment was introduced in Sri Lanka during colonial times.

23
Sri Lanka still retains it in law, and sentences people to death. Death row is a
controversial phenomenon in Sri Lanka. In 2014 alone, Sri Lankan courts
sentenced over 61 people to death, including juveniles Sri Lanka also retains the
death penalty for drug-related crimes, which do not meet the threshold of “most
serious crimes” in international law. But Sri Lanka has not carried out an
execution since 1976, and is considered abolitionist in practice. Death sentences
are converted to terms of imprisonment. It is noteworthy that Sri Lanka’s
moratorium has remained in place despite insurgency and civil war between the
1980s and late 2000s.
Bhutan and Nepal have abolished the death penalty. Bhutan abolished it in
2004, and it is also prohibited in its 2008 Constitution. The last execution in
Nepal was in 1979. Nepal officially abolished the death penalty in 1990, with its
government saying “the punishment was considered inconsistent with its new
multi-party political system.” Since then, Nepal has seen a 10 year-long civil
war, lasting from 1996 to 2006. Both sides of the civil war committing a range
of human rights abuses, and accountability remains a central concern in Nepal
today.

24
 CHAPTER -4
CLEMENCY POWERS AND DUE PROCESS ISSUES
PERTAINING TO THE EXECUTION OF DEATH SENTENCE
The Supreme Court in Shankar Kisanrao Khade v. State of Maharashtra 32
(‘Khade’) also referred the administration of clemency powers by the executive
under Articles 72 and 161 of the Constitution of India in death cases to the
Commission for its consideration. This chapter delineates the nature, purpose
and scope of the power of the executive to commute a death sentence. This
chapter also analyses the application of the mercy jurisdiction in individual
cases besides examining decisions of courts where the outcome of the exercise
of these powers has been challenged in writ proceedings.
4.1 Nature, Purpose and Scope of Clemency Powers
The State and Central Governments have powers to commute death sentences
after their final judicial confirmation. This power, unlike judicial power, is of
the widest amplitude and not circumscribed, except that its exercise must be
bona fide. Issues often alien and irrelevant to legal adjudication – morality,
ethics, public good, and policy considerations – are intrinsically germane to the
exercise of clemency powers. These powers exist because in appropriate cases
the strict requirements of law need to be tempered and departed from to reach a
truly just outcome in its widest sense. The executive’s powers to commute a
death sentence, in other words, exist to remedy deficiencies in the strict
application of the law. Therefore, in jurisdictions retaining capital punishment,
the proper exercise of mercy powers is of the utmost importance given that
human lives depend on it. Every citizen has a right to petition the government to
commute any death sentence, since the state’s power to take life emanates from
the people, and executions are carried out in their name.
Clemency powers in India are enshrined in the Constitution. Article 72 vests
these powers in the President, and Article 161 vests similar powers in the
Governors of the States. Article 72 states:
32
Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at paras 147-
150

25
Article 72. Power of President to grant pardons, etc. and to suspend, remit or
commute sentences in certain cases – (1) The President shall have the power to
grant pardons, reprieves, respites or remissions of punishment or to suspend,
remit or commute the sentence of any person convicted of any offence –
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any
law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by
law on any officer of the Armed Forces of the Union to suspend, remit or
commute a sentence passed by a Court martial.
(3) Nothing in sub-clause of clause (1) shall affect the power to suspend, remit
or commute a sentence of death exercisable by the Governor of a State, under
any law for the time being in force.
Article 161 states:
Article 161. Power of Governor to grant pardons, etc. and to suspend, remit or
commute sentences in certain cases – The Governor of a State shall have the
power to grant pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted of any offence
against any law relating to a matter to which the executive power of the State
extends.
Neither of these powers are personal to the holders of the office, but are to be
exercised (under Articles 7433 and 16334, respectively) on the aid and advice of
the Council of Ministers.

33
Article74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the
President who shall, in the exercise of his functions, act in accordance with such advice: Provided that the
President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and
the President shall act in accordance with the advice tendered after such reconsideration. (2) The question
whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in
any court.
34
Article 163. (1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the
Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to
exercise his functions or any of them in his discretion. (2) If any question arises whether any matter is or is not
a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the
decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall
not be called in question on the ground that he ought or ought not to have acted in his discretion. (3) The
question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired
into in any court.

26
The Ministry of Home Affairs, Government of India, has drafted the “Procedure
Regarding Petitions for Mercy in Death Sentence Cases” to guide State
Governments and the prison authorities in dealing with mercy petitions
submitted by death sentence prisoners. These rules were summarized by the
Supreme Court in Shatrughan Chauhan v. Union of India 35 (‘Shatrughan
Chauhan’):
The Ministry of Home Affairs, Government of India has detailed procedure
regarding handling of petitions for mercy in death sentence cases:

 As per the said procedure, Rule I enables a convict under sentence of

death to submit a petition for mercy within seven days after and exclusive
of the day on which the Superintendent of Jail informs him of the
dismissal by the Supreme Court of his appeal or of his application for
special leave to appeal to the Supreme Court.
 Rule II prescribes procedure for submission of petitions. As per this Rule,
such petitions shall be addressed to, in the case of the States, to the
Governor of the State at the first instance and thereafter to the President
of India and in the case of the Union Territories directly to the President
of India. As soon as the mercy petition is received, the execution of
sentence shall in all cases be postponed pending receipt of orders on the
same.
 Rule III states that the petition shall in the first instance, in the case of
the States, be sent to the State concerned for consideration and orders of
the Governor. If after consideration it is rejected, it shall be forwarded to
the Secretary to the Government of India, Ministry of Home Affairs. If it
is decided to commute the sentence of death, the petition addressed to the
President of India shall be withheld and intimation to that effect shall be
sent to the petitioner.
 Rule V states that in all cases in which a petition for mercy from a
convict under sentence of death is to be forwarded to the Secretary to the
Government of India, Ministry of Home Affairs, the Lt. Governor/Chief
Commissioner/Administrator or the Government of the State concerned,
as the case may be, shall forward such petition, as expeditiously as
possible, along with the records of the case and his or its observations in
respect of any of the grounds urged in the petition.
 Rule VI mandates that upon receipt of the orders of the President, an
acknowledgment shall be sent to the Secretary to the Government of
35
(2014) 3 SCC 1

27
 India, Ministry of Home Affairs, immediately in the manner prescribed.
In the case of Assam and Andaman and Nicobar Islands, all orders will
be communicated by telegraph and the receipt thereof shall be
acknowledged by telegraph. In the case of other States and Union
Territories, if the petition is rejected, the orders will be communicated by
express letter and receipt thereof shall be acknowledged by express
letter. Orders commuting the death sentence will be communicated by
express letters, in the case of Delhi and by telegraph in all other cases
and receipt thereof shall be acknowledged by express letter or telegraph,
as the case may be.
 Rule VIII (a) enables the convict that if there is a change of circumstance
or if any new material is available in respect of rejection of his earlier
mercy petition, he is free to make fresh application to the President for
reconsideration of the earlier order.
Specific instructions relating to the duties of Superintendents of Jail in
connection with the petitions for mercy for or on behalf of the convicts under
sentence of death have been issued:

 Rule I mandates that immediately on receipt of warrant of execution,

consequent on the confirmation by the High Court of the sentence of
death, the Jail Superintendent shall inform the convict concerned that if
he wishes to appeal to the Supreme Court or to make an application for
special leave to appeal to the Supreme Court under any of the relevant
provisions of the Constitution of India, he/she should do so within the
period prescribed in the Supreme Court Rules.
 Rule II makes it clear that, on receipt of the intimation of the dismissal
by the Supreme Court of the appeal or the application for special leave to
appeal filed by or on behalf of the convict, in case the convict concerned
has made no previous petition for mercy, the Jail Superintendent shall
forthwith inform him that if he desires to submit a petition for mercy, it
should be submitted in writing within seven days of the date of such
intimation.
 Rule III says that if the convict submits a petition within the period of
seven days prescribed by Rule II, it should be addressed, in the case of
the States, to the Governor of the State at the first instance and,
thereafter, to the President of India and in the case of the Union
Territories, to the President of India. The Superintendent of Jail shall
forthwith dispatch it to the Secretary to the State Government in the
Department concerned or the Lt. Governor/Chief

28
 Commissioner/Administrator, as the case may be, together with a
covering letter reporting the date fixed for execution and shall certify
that the execution has been stayed pending receipt of the orders of the
Government on the petition.
 Rule IV mandates that if the convict submits petition after the period
prescribed by Rule II, the Superintendent of Jail shall, at once, forward it
to the State Government and at the same time telegraph the substance of
it requesting orders whether execution should be postponed stating that
pending reply sentence will not be carried out.
The above Rules make it clear that at every stage the matter has to be expedited
and there cannot be any delay at the instance of the officers, particularly, the
Superintendent of Jail, in view of the language used therein as “at once.
Apart from the above Rules regarding presentation of mercy petitions and
disposal thereof, necessary instructions have been issued for preparation of note
to be approved by the Home Minister and for passing appropriate orders by the
President of India.
The extracts from the Prison Manuals of various States applicable for the
disposal of mercy petitions have been placed before us. Every State has a
separate Prison Manual which speaks about detailed procedure, receipt placing
required materials for approval of the Home Minister and the President for
taking decision expeditiously. The Rules also provide steps to be taken by the
Superintendent of Jail after the receipt of mercy petition and subsequent action
after disposal of the same by the President of India. Almost all the Rules
prescribe how the death convicts are to be treated till final decision is taken by
the President of India.
The elaborate procedure clearly shows that even death convicts have to be
treated fairly in the light of Article 21 of the Constitution of India. Nevertheless,
it is the claim of all the petitioners herein that all these rules were not adhered to
strictly and that is the primary reason for the inordinate delay in disposal of
mercy petitions. For illustration, on receipt of mercy petition, the Department
concerned has to call for all the records/materials connected with the conviction.
Calling for piecemeal records instead of all the materials connected with the
conviction should be deprecated. When the matter is placed before the
President, it is incumbent on the part of the Home Ministry to place all the
materials such as judgment of the trial court, High Court and the final court viz.
Supreme Court as well as any other relevant material connected with the
conviction at once and not call for the documents in piecemeal.36
36
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at paras 98-103.

29
4.2 Standard of Judicial Review for Examining Exercise of Mercy Powers
The Supreme Court has characterized the nature of mercy provisions
(Articles”72 and 161) as constitutional duty rather than privilege or a matter of
grace. The Supreme Court observed the following in Shatrughan Chauhan:
In concise, the power vested in the President under Article 72 and the Governor
under Article 161 of the Constitution is a constitutional duty. As a result, it is
neither a matter of grace nor a matter of privilege but is an important
constitutional responsibility reposed by the People in the highest authority. The
power of pardon is essentially an executive action, which needs to be exercised
in the aid of justice and not in defiance of it. Further, it is well settled that the
power under Articles 72/161 of the Constitution of India is to be exercised on
the aid and advice of the Council of Ministers.37
The Supreme Court has further held in Epuru Sudhakar v. Govt. of A.P. 38 that
the exercise of power under Article 72 by the President and Article 161 by the
Governor is subject to limited form of judicial review. The Supreme Court has
also held that the mercy prerogative under Articles 72 and 161should be
discharged in line with the principle of rule of law, of which fairness and legal
certainty are essential elements. Further, various decisions of the Supreme Court
have provided the following grounds for a challenge to the exercise of these
clemency powers:39
(a)Power has been exercised by the Governor/President himself without being
advised by the Government,
(b)In the exercise of the power, the Governor/President has transgressed his
jurisdiction,
(c)If the order passed in pursuance to Articles 72 or 161 betrays non-application
of mind or mala fide basis (d)Power has been exercised on the basis of political
considerations
(e)That the order suffers from arbitrariness
(f) That the manner of exercise of power suffers from the following defects:
 extraneous or wholly irrelevant consideration have been taken into
account;
37
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 19
38
Epuru Sudhakar v. Govt. of A.P., (2006) 8 SCC 161
39
Maru Ram v. Union of India, (1981) 1 SCC 107, at paras 62-65; Epuru
Sudhakar v. Govt. of A.P., (2006) 8 SCC 161, at paras 34-38; Narayan Dutt v. State of
Punjab, (2011) 4 SCC 353, at para 24; Shatrughan Chauhan v. Union of India, (2014)
3 SCC 1, at paras 23-24.

30
  that relevant materials have been kept out of consideration

4.3 MERCY PETITION DECIDED BY THE PRESIDENT

While the President of India in considering a mercy petition is constitutionally
obligated to not deviate from the advice rendered by the Council of Ministers,
there have been occasions where the President has refrained from taking any
decision altogether on the said mercy petition, thus, keeping the matter pending.
In the table below, the record of mercy petitions disposed by various Presidents
till date is discussed:40
Table No 3

No. Name of the President Tenure Number of Number of TotaL

Mercy Mercy
Petitions Petitions
Accepted Rejected
1 Rajendra Prasad 26.1.1950 – 180 1 181
3.5.1962

2 SarvapalliRadhakrishnan 13.5.1962 - 57 0 57
13.5.1967
3 ZakirHussain 13.5.1967 - 22 0 22
3.5.1969

4 V.V. Giri 3.5.1969 – 3 0 3

20.7.1969;
24.8.1969 –
24.8.1974

5 Fakrudhin Ali Ahmed 24.8.1974 – NA NA 0

11.2.1977

6 N Sanjeeva Reddy 25.7.1977 – NA NA 0

5.7.1982

40
This table is based on archival research and RTI data collected by Bikram Jeet Batra
and others. Official figures of mercy petitions disposed of by the Presidents at serial
nos. 1-9 are not available, and the figures in the table are based on empirical
verification from the archives which may not be complete

31
 7 Zail Singh 25.7.1982 – 2 30 32
25.7.1987

8 R. Venkatraman 25.7.1987 – 5 45 50
25.7.1992
9 S.D. Sharma 25.7.1992 – 0 18 18
25.7.1997

10 K.R. Narayanan 25.7.1997 – 0 0 0

25.7.2002
11 A.P.J Kalam 25.7.2002 - 1 1 2
25.7.2007

12 PratibhaPatil 25.7.2007 – 34 5 39
25.7.2012

13 Pranab Mukherjee 25.7.2012 -- 2 31 33

Total 306 131 437

4.4 Judicial Review of Exercise of Mercy Powers

The Supreme Court in Shatrughan Chauhan has recorded that the Home
Ministry considers the following factors while deciding mercy petitions:
(a)Personality of the accused (such as age, sex or mental deficiency) or
circumstances of the case (such as provocation or similar justification);
(b)Cases in which the appellate Court expressed doubt as to the reliability of
evidence but has nevertheless decided on conviction;
(c) Cases where it is alleged that fresh evidence is obtainable mainly with a
view to see whether fresh enquiry is justified;
(d)Where the High Court on appeal reversed acquittal or on an appeal
enhanced the sentence;
(e) Is there any difference of opinion in the Bench of High Court Judges
necessitating reference to a larger Bench;
(f) Consideration of evidence in fixation of responsibility in gang murder case;
(g) Long delays in investigation and trial etc

32
However, when the actual exercise of the Ministry of Home Affairs (on whose
recommendations mercy petitions are decided) is analysed, it is seen that many
times these guidelines have not been adhered to. Writ Courts in numerous cases
have examined the manner in which the executive has considered mercy
petitions. In fact, the Supreme Court as part of the batch matter Shatrughan
Chauhan case heard 11 writ petitions challenging the rejection of the mercy
petition by the executive. Some of these decisions are analysed in the following
pages.
4.4.1Chronic Mental Illness Ignored: The Case of Sunder Singh41
Sunder Singh was sentenced to death for having burnt five of his relatives
alive. His mercy petition was dismissed by the Governor on 21.1.2011, and then
by the President on 31.3.2013, even though he had stated in his mercy petition
that he had committed the offences under the influence of mental illness. This
claim was corroborated by the jail records, which showed that due to his
abnormal behavior he had been presented before numerous medical boards
consisting of government psychiatrists who had opined that he was suffering
from chronic schizophrenia and required long term treatment. This information
had been periodically communicated to the State Government and the Ministry
of Home Affairs, Government of India, who nevertheless chose to reject his
mercy petitions. He was eventually found to be “not mentally fit to be awarded
the death penalty”by a team of psychiatrists appointed by the State Government
and his death sentence was commuted by the Supreme Court.
4.4.2 Cases involving Long delays in Investigation and Trial
4.4.2.1 The Case of Gurmeet Singh42
When a convict on death row has already spent a considerable period of time in
prison, before the mercy plea is decided by the President, it becomes a strong
factor in deciding whether or not such a prisoner still deserves the additional
punishment of execution. Gurmeet was arrested on 16.10.1986, convicted and
sentenced to death by the trial court on 20.7.1992. The High Court confirmed
his death sentence (per majority) on 8.3.1996, and the Supreme Court upheld
the conviction and death sentence on 28.9.2005. The convict’s mercy petition
was decided on 1.3.2013, by which time he had spent 27 years in custody, of
41
Sunder Singh's Writ [Writ Petition (Crl.) No. 192/2013] was considered in the batch
matter Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. See paras 79-87 for
Discussion on law, and paras 178-195 for the outcome in Writ Petition (Crl.) No.
192/2013.
42
Gurmeet Singh’s Writ [Writ Petition (Crl.) No. 193/2013] was considered in the batch
matter Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1. See paras 148-16 for
the outcome in Writ Petition (Crl.) No. 193/2013. See also Gurmeet Singh v. State of
U.P., (2005) 12 SCC 107

33
which about 21 years were under a death sentence. These factors were ignored
and his mercy petition was rejected. The Supreme Court in Shatrughan Chauhan
commuted the death sentence of Gurmeet Singh on account of inordinate time
taken by the executive in disposal of his mercy petition.

4.4.2.2 The Cases of Simon and Others43

Simon, Bilavendran, Gnanprakasam and Madiah were arrested on 14.7.1993,
and convicted by the trial court under the Terrorist and Disruptive Activities
(Prevention) Acton 29.9.2001. They were sentenced to life imprisonment. The
state appealed to the Supreme Court for enhancement of sentence, but its special
leave petition was dismissed due to delay. When the criminal appeal filed by the
convicts was being heard, the Supreme Court, suo motu, issued notice for
enhancement of sentence, and then sentenced the convicts to death on
29.1.2004. This was the first time the convicts had been sentenced to death, and
since it had been done by the Supreme Court there was no appeal possible after
this. When the convict’s mercy pleas were decided 9 years later, they had
already spent 19 years and 7 months in custody in prison. Simon, Bilavendran,
Gnanprakasam and Madiah were aged 50, 55, 60 and 64 years when their mercy
petitions were rejected by the President on 8.2.2013 after a delay of about 9
years. Their petitions were finally allowed by the Supreme Court.
4.4.3 Partial and Incomplete Summary Prepared for President: The Case
of Mahendra Nath Das44
When Mahendra Nath Das challenged the rejection of his mercy petition by the
President, the Supreme Court summoned the records relating to the mercy
petition and discovered that the recommendation for clemency made by a
former President in this very case was not put before or communicated to the
President Pratibha Patil when she was asked to reject the mercy petition. The
Supreme Court held it to be a very serious lapse, and, combined with the 11
years delay taken in the disposal of the mercy petition, was good enough reason
to quash the rejection of the mercy petition and commute the death sentence.

43
Writ preferred by Simon and others [(Writ Petition (Crl.) No. 34/2013] was
considered in the batch matter Shatrughan Chauhan v. Union of India, (2014) 3 SCC
1. See paras 120-137 for the outcome in the said Writ Petition (Crl.) No. 34/2013. See
also Simon v. State of Karnataka, (2004) 2 SCC 694.
44
2 Mahendra Nath Das v. Union of India, (2013) 6 SCC 253.

34
 CHAPTER-5
CONCLUSION
The death penalty does not serve the penological goal of deterrence any more
than life imprisonment. Further, life imprisonment under Indian law means
imprisonment for the whole of life subject to just remissions which, in many
states in cases of serious crimes, are granted only after many years of
imprisonment which range from 30-60 years. Retribution has an important role
to play in punishment. However, it cannot be reduced to vengeance. The notion
of “an eye for an eye, tooth for a tooth” has no place in our constitutionally
mediated criminal justice system. Capital punishment fails to achieve any
constitutionally valid penological goals. In focusing on death penalty as the
ultimate measure of justice to victims, the restorative and rehabilitative aspects
of justice are lost sight of. Reliance on the death penalty diverts attention from
other problems ailing the criminal justice system such as poor investigation,
crime prevention and rights of victims of crime. It is essential that the State
establish effective victim compensation schemes to rehabilitate victims of
crime. At the same time, it is also essential that courts use the power granted to
them under the Code of Criminal Procedure, 1973 to grant appropriate
compensation to victims in suitable cases. The voices of victims and witnesses
are often silenced by threats and other coercive techniques employed by
powerful accused persons. Hence it is essential that a witness protection scheme
also be established. The need for police reforms for better and more effective
investigation and prosecution has also been universally felt for some time now
and measures regarding the same need to be taken on a priority basis.
In the last decade, the Supreme Court has on numerous occasions expressed
concern about arbitrary sentencing in death penalty cases. The Court has noted
that it is difficult to distinguish cases where death penalty has been imposed
from those where the alternative of life imprisonment has been applied. In the
Court's own words "extremely uneven application of Bachan Singh has given
rise to a state of uncertainty in capital sentencing law which clearly falls foul of
constitutional due process and equality principle". The Court has also
acknowledged erroneous imposition of the death sentence in contravention of

35
Bachan Singh guidelines. Therefore, the constitutional regulation of capital
punishment attempted in Bachan Singh has failed to prevent death sentences
from being "arbitrarily and freakishly imposed".
There exists no principled method to remove such arbitrariness from capital
sentencing. A rigid, standardization or categorization of offences which does
not take into account the difference between cases is arbitrary in that it treats
different cases on the same footing. Anything less categorical, like the Bachan
Singh framework itself, has demonstrably and admittedly failed
Numerous committee reports as well as judgments of the Supreme Court have
recognized that the administration of criminal justice in the country is in deep
crisis. Lack of resources, outdated modes of investigation, over-stretched police
force, ineffective prosecution, and poor legal aid are some of the problems
besetting the system. Death penalty operates within this context and therefore
suffers from the same structural and systemic impediments. The administration
of capital punishment thus remains fallible and vulnerable to misapplication.
The vagaries of the system also operate disproportionately against the socially
and economically marginalized who may lack the resources to effectively
advocate their rights within an adversarial criminal justice system. Clemency
powers usually come into play after a judicial conviction and sentencing of an
offender. In exercise of these clemency powers, the President and Governor are
empowered to scrutinize the record of the case and differ with the judicial
verdict on the point of guilt or sentence. Even when they do not so differ, they
are empowered to exercise their clemency powers to ameliorate hardship,
correct error, or to do complete justice in a case by taking into account factors
that are outside and beyond the judicial ken. They are also empowered to look
at fresh evidence which was not placed before the courts.
Clemency powers, while exercisable for a wide range of considerations and on
protean occasions, also function as the final safeguard against possibility of
judicial error or miscarriage of justice. This casts a heavy responsibility on
those wielding this power and necessitates a full application of mind, scrutiny of
judicial records, and wide ranging inquiries in adjudicating a clemency petition,
especially one from a prisoner under a judicially confirmed death sentence who
is on the very verge of execution. Further, the Supreme Court in Shatrughan
Chauhan has recorded various relevant considerations which are gone into by
the Home Ministry while deciding mercy petitions.
In retaining and practicing the death penalty, India forms part of a small and
ever dwindling group of nations. That 140 countries are now abolitionist in law
or in practice, demonstrates that evolving standards of human dignity and

36
decency do not support the death penalty. The international trend towards
successful and sustained abolition also confirms that retaining the death penalty
is not a requirement for effectively responding to insurgency, terror or violent
crime.

BIBLIOGRAPHY
WEBSITE REFERENCE
 https://www.britannica.com/topic/capital-punishment/Arguments-for-
and-against-capital-punishment
 https://newindialaw.blogspot.com/2012/11/constitutional-validity-of-
capital.html
 https://amity.edu/UserFiles/aibs/3fc0Article-XII%20(Page%2088-92).pdf
 https://www.legalserviceindia.com/legal/article-2076-constitutionality-of-
execution-of-death-penalty-in-india.html#:~:text=The%20Indian
%20Penal%20Code%2C%201860,mutiny%20is%20committed%20in
%20consequence
REPORT REFERENCE

 The 35th Report (“Capital Punishment”, 1967)

 The 262th Report (“The Death Penalty”, 2015)
NEWS PAPER REFERENCE
 The Hindu 31st July 2015
 The Economic Times 31st July 2015

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