Capital punishment in India

India retains capital punishment for a number of serious offences. The Supreme Court of India has allowed the death penalty to be carried out in five instances since 1995, while a total of 26 executions have taken place in India since 1991.

The Supreme Court in Mithu vs State of Punjab struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence for offenders serving a life sentence. The number of people executed in India since independence in 1947 is a matter of dispute; official government statistics claim that only 52 people had been executed since independence. However, research by the People's Union for Civil Liberties indicates that the actual number of executions is in fact much higher, as they located records of 1,422 executions in the decade from 1953 to 1963 alone. A research by National Law University, Delhi on death row convicts since 2000 has found that of the 1,617 prisoners sentenced to death by trial courts in India, the capital punishment was confirmed in only 71 cases. NLU Delhi confirmed 755 executions in India since 1947.National Law University, Delhi examined 1,414 prisoners who were executed, in the available list of convicts hanged in post-Independence since 1947. According to a report of the Law Commission of India (1967), the total number of cases in which the sentence of death in India was executed from 1953 to 1963 was 1,410. In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban death penalty.

In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 (IPC), which listed a number of capital crimes. It remained in effect after independence in 1947. The first hanging in Independent India was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15 November 1949.

Under Article 21 of the Constitution of India, no person can be deprived of his life except according to procedure established by law.

Bachan Singh vs State Of Punjab, 1980

The Constitution Bench judgment of Supreme Court of India in Bachan Singh vs State of Punjab (1980) (2 SCC 684) made it very clear that Capital punishment in India can be given only in rarest of rare cases. This judgement was in line with the previous verdicts in Jagmohan Singh vs State of UP (1973), and then in Rajendra Prasad vs State of UP (1979). The Supreme Court of India ruled that the death penalty should be imposed only in "the rarest of rare cases." While stating that honour killings fall within the "rarest of the rare" category, Supreme Court has recommended the death penalty be extended to those found guilty of committing "honour killings", which deserve to be a capital crime. The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings.

An appeal filed in 2013 by Vikram Singh and another person facing the death sentence questioned the constitutional validity of Section 364A of the Indian Penal Code.

Other legislation

In addition to the Indian Penal Code, a series of legislation enacted by the Parliament of India have provisions for the death penalty.

Sati is an inhumane practice involving the burning or burying alive of any widow or woman along with the body of her deceased husband or any other relative or with any article, object or thing associated with the husband or such relative. Under the Commission of Sati (Prevention) Act, 1987 Part. II, Section 4(1), if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes. Under Section 3(2)(i) of the Act, bearing false witness in a capital case against a member of a scheduled caste or tribe, resulting in that person's conviction and execution, carries the death penalty In 1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed which applied a mandatory death penalty for a second offence of "large scale narcotics trafficking".

In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities. On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi, the Indian Government passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a "persistent vegetative state". The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.

In January 2014, a three-judge panel headed by Chief Justice of India Palanisamy Sathasivam commuted sentences of 15 death row convicts, ruling that the "inordinate and inexplicable delay is a ground for commuting death penalty to life sentence". Supreme Court of India ruled that delays ranging from seven to 11 years in the disposal of mercy pleas are grounds for clemency. The same panel also passed a set of guidelines for the execution of a death row convict, which includes a 14-day gap from the receipt of communication of the rejection of the mercy petition to the scheduled execution date, after going through the Shatrughan Chouhan vs Union of India case. Subsequently, in February 2014 , Supreme Court commuted death sentence of Rajiv Gandhi killers on the basis of 11-year delay in deciding on mercy plea.It was subsequently commuted to life imprisonment. In March 2014, Supreme Court of India commuted death sentence of Devinder Pal Singh Bhullar, convict in 1993 Delhi bomb blast case to life imprisonment, both on the ground of unexplained/inordinate delay of 8 years in disposal of mercy petition and on the ground of insanity/mental illness/schizophrenia

120B of IPC Being a party to a criminal conspiracy to commit a capital offense

121 of IPC Waging, or attempting to wage war, or abetting waging of war, against the Government of India

132 of IPC Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny

194 of IPC Giving or fabricating false evidence with intent to procure a conviction of a capital offense

302, 303 of IPC Murder

305 of IPC Abetting the suicide of a minor, mentally ill person, or intoxicated person

Part II Section 4 of Prevention of Sati Act Aiding or abetting an act of Sati

364A of IPC Kidnapping, in the course of which the victim was held for ransom or other coercive purposes.

31A of the Narcotic Drugs and Psychotropic Substances Act Drug trafficking in cases of repeat offenses

396 of IPC Banditry with murder - in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.

376A of IPC and Criminal Law (Amendment) Act, 2013 Rape if the perpetrator inflicts injuries that result in the victim's death or incapacitation in a persistent vegetative state, or is a repeat offender.

Bombay Prohibition (Gujarat Amendment) Bill, 2009 In Gujarat only - Manufacture and sale of poisoned alcohol which results in death(s)

After the award of the death sentence by a sessions (trial) court,the sentence must be confirmed by a High Court to make it final. Once confirmed, the condemned convict has the option of appealing to the Supreme Court. If this is not possible, or if the Supreme Court turns down the appeal or refuses to hear the petition, the condemned person can submit a ‘mercy petition’ to the President of India and the Governor of the State.

Power of the President

The present day constitutional clemency powers of the President and Governors originate from the Government of India Act 1935 but, unlike the Governor-General, the President and Governors in independent India do not have any prerogative clemency powers.

Constitutional power

Article 72(1) of the Constitution of India states:

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.

The execution of death sentence in India is carried out by hanging by the neck till death, i.e. short drop.

Hanging

The Code of Criminal Procedure (1898) called for the method of execution to be hanging. The same method was adopted in the Code of Criminal Procedure (1973). Section 354(5) of the above procedure reads as "When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead."

Shooting

The Army Act and Air Force Act also provide for the execution of the death sentence. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as:-

"In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death".

This provides for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death. The Army Act, 1950, and the Navy Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950.

At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not executed), according to Amnesty International figures. No official statistics of those sentenced to death have been released.

About 26 mercy petitions are pending before the president, some of them from 1992. These include those of Khalistan Liberation Force terrorist Davinder Singh Bhullar, the cases of slain forest brigand Veerappan's four associates—Simon, Gnanprakasham, Meesekar Madaiah and Bilvendran—for killing 21 policemen in 1993; and one Praveen Kumar for killing four members of his family in Mangalore in 1994.

Seema Gavit and Renuka Shinde are the only two women in India on death row, whose mercy pleas were rejected by President after Supreme Court of India confirmed their death sentence.

As of July 2015, President Pranab Mukherjee has rejected 24 mercy pleas including that of Yakub Memon, Ajmal Kasab, Afzal Guru.  On 27 April 1995, Auto Shankar was hanged in Salem, Tamil Nadu.

On 14 August 2004, Dhananjoy Chatterjee was hanged for the murder (following a rape) of 18-year-old Hetal Parekh at her apartment residence in Bhowanipur on 5 March 1990. Chatterjee, whose mercy plea was rejected on 4 August 2004, was kept at Alipore for nearly 14 years.

On 3 May 2010, a Mumbai Special Court convicted Ajmal Kasab of murder, waging war on India, possessing explosives, and other charges. On 6 May 2010, the same trial court sentenced him to death on four counts and to a life sentence on five other counts. Kasab was sentenced to death for attacking Mumbai and killing 166 people on 26 November 2008 along with nine Pakistani terrorists. He was found guilty of 80 offences, including waging war against the nation, which is punishable by the death penalty. Kasab's death sentence was upheld by the Bombay High Court on 21 February 2011. and by the Supreme Court on 29 August 2012. His mercy plea was rejected by the president on 5 November and the same was communicated to him on 12 November. On 21 November 2012, Kasab was hanged in the Yerwada Central Jail in Pune.

Afzal Guru was convicted of conspiracy in connection with the 2001 Indian Parliament attack and was sentenced to death. The Supreme Court of India upheld the sentence, ruling that the attack "shocked the conscience of the society at large." Afzal was scheduled to be executed on 20 October 2006, but the sentence was stayed. Guru was hanged on 9 February 2013 at Delhi's Tihar Jail.

Yakub Memon, convicted of 1993 Bombay bombings , was executed by hanging in Nagpur Central Jail at around 6:30 AM IST on 30 July 2015. On 21 March 2013, the Supreme Court confirmed Memon's conviction and death sentence for conspiracy through financing the attacks. On 30 July 2013, Supreme Court bench headed by Chief Justice P Sathasivam and Justice BS Chauhan rejected Memon's application for oral hearing and dismissed his review petition by circulation.Indian President Pranab Mukherjee rejected Memon's petition for clemency on 11 April 2014. Memon then filed a curative petition to the Supreme Court, which was rejected on 21 July 2015. Yakub Memon became the first convict in 31 years to be hanged to death in Nagpur jail and the fourth in India since 2004.

On 5 March 2012, a sessions court in Chandigarh ordered the execution of Balwant Singh Rajoana, a terrorist from Babbar Khalsa, convicted for his involvement in the assassination of Punjab Chief Minister Beant Singh.[64] The sentence was to be carried out on 31 March 2012 in Patiala Central Jail,but the Centre stayed the execution on 28 March due to worldwide protests by Sikhs that the execution was unfair and amounted to a human rights violation.

On 13 March 2012, a court in Sirsa, Haryana, condemned to death the 22-year-old Nikka Singh for raping and strangling to death a 75-year-old woman on 11 February 2011. "The imposition of the death sentence was most appropriate in this case. The court has held that it was a cold-blooded murder and where rape was committed on an innocent and hapless old woman," said Neelima Shangla, the Sirsa additional district and sessions judge."The rape and cold-blooded murder of a woman, who was of grandmother’s age of the accused, falls in the rarest of the rare case." The court held that Nikka Singh was a "savage" whose "existence on earth was a grave danger to society" as he had also attempted to rape two other village women.

A special mention here is to the 650-page written judgment in the 1984 assassination of Indira Gandhi, in which the Delhi High Court panel said, "No excuse or circumstance can . . . mitigate such a treacherous and cowardly act where a defenseless woman was cruelly slaughtered by the 'guardians' of her safety."

The judgment condemned "the most inhuman mode of killing" and said, "Two persons crowding in before an elderly woman and mercilessly pumping into her not one or two but as many as 30 bullets is the ghastly scene to be conjured in the mind's eye."

Kehar Singh, was hanged on 6 January 1989, for conspiracy in the plot of the Indira Gandhi assassination, carried out by Satwant Singh and Beant Singh.

In June 2012, it became known that Indian president Pratibha Patil near the end of her five-year term as president commuted the death sentence of as many as 35 convicts to life, including four on the same day (2 June), which created a storm of protest. This caused further embarrassment to the government when it came to light that one of these convicts, Bandu Baburao Tidke—convicted for the rape and murder of a 16-year-old girl—had already died five years previously from HIV.

There have been calls for the introduction of the death penalty for rapists and molesters, especially since 2012 Delhi gang rape case and later crimes.