Death penalty Report, Essays (university) of Law

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GOVERNMENT OF INDIA

LAW COMMISSION OF INDIA

Report No.

The Death Penalty

August 2015

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Justice Ajit Prakash Shah Former Chief Justice of Delhi High court Chairman Law Commission of India Government of India 14 th^ Floor, Hindustan Times House Kasturba Gandhi Marg New Delhi – 110 001 D.O. No.6(3) 263 /2014-LC(LS) 31 August 2015 Dear Mr. Sadananda Gowda ji, The Law Commission of India received a reference from the Supreme Court in Santosh Kumar Satishbhushan Bariyar v. Maharashtra [(2009) 6 SCC 498] and Shankar Kisanrao Khade v. Maharashtra [(2013) 5 SCC 546], to study the issue of the death penalty in India to “allow for an up-to-date and informed discussion and debate on the subject.”

This is not the first time that the Commission has been asked to look into the death penalty – the 35 th^ Report (“Capital Punishment”, 1967), notably, is a key report in this regard. That Report recommended the retention of the death penalty in India. The Supreme Court has also, in Bachan Singh v. UOI [AIR 1980 SC 898], upheld the constitutionality of the death penalty, but confined its application to the ‘rarest of rare cases’, to reduce the arbitrariness of the penalty. However, the social, economic and cultural contexts of the country have changed drastically since the 35 th^ report. Further, arbitrariness has remained a major concern in the adjudication of death penalty cases in the 35 years since the foremost precedent on the issue was laid down.

Accordingly, and in recognition of the fact that the death penalty is an issue of a very sensitive nature, the Commission decided to undertake an extensive study on the issue. In May 2014, the Commission invited public comments on the subject by issuing a consultation paper. Towards the same goal, the Commission also held a one-day Consultation on “The Death Penalty in India” on 11 July 2015 in New Delhi. Thereafter, upon extensive deliberations, discussions and in-depth study, the Commission has given shape to the present Report. The recommendation of the Commission in the matter is sent herewith in the form of the Commission’s Report No.262 titled “The Death Penalty” , for consideration by the Government.

Certain concerns were raised by Part Time Member Prof (Dr) Yogesh Tyagi, which have been addressed to the best possible extent in the present Report; however, his signature could not be obtained as he was out of the country. Justice (retd.) Ms Usha Mehra, Member; Mr PK Malhotra, Law Secretary and Dr. Sanjay Singh, Secretary, Legislative Department, Ex-Officio Members, chose not to sign the Report and have submitted notes on the issue, which are attached to the Report as appendices.

With warm regards, Yours sincerely, Sd/- [Ajit Prakash Shah] Mr. D.V. Sadananda Gowda Hon’ble Minister for Law and Justice Government of India Shastri Bhawan New Delhi

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(i) From Jagmohan to Bachan Singh 22 (ii) Mandatory Death Sentences 27 (iii) Method of Execution 28 (iv) Delay and the death penalty 29 E Laws on the death penalty in India 31 (i) Recent expansions of the scope of the death penalty

(ii) The Death Penalty and Non-Homicide offences

(iii) Continued existence of the mandatory death penalty

(iv) Death penalty and anti-terror laws 35 (v) Bills proposing abolition of the death penalty

F Recent Executions in India 36 III International Trends 38 - 73 A Developments in the International Human Rights Law Framework

(i) Capital Punishment in International Human Rights Treaties

a. The International Covenant on Civil and Political Rights

b. The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty

c. The Convention on the Rights of the Child

d. The Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment

e. International Criminal Law 45 f. International Treaty Obligations in Indian Law

(ii) Safeguards regarding capital punishment in international law

a. The ECOSOC Safeguards 47

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b. Reports by the Special Rapporteur on extrajudicial, summary or arbitrary executions

c. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

(iii) Political Commitments regarding the Death Penalty globally

a. General Assembly Resolution 51 b. UN Human Rights Council 52 (iv) Death penalty and the law of extradition 53 B International Trends on the Death Penalty

(i) Regional Trends regarding the Death Penalty

a. The Americas 56 b. Europe 58 c. Africa 61 d. Asia and the Pacific 65

1. South Asia 68 C Conclusion 70 IV Penological Justifications for the Death Penalty

A Scope of Consideration 74 B Approach of the 35th Report of Law Commission

C Deterrence 76 (i) Empirical Evidence on Deterrent Value of the Death Penalty

(ii) Assumptions of Deterrence 82 a. Knowledge Fallacies 83 b. Rationality Fallacies 84 (iii) The Case of Terrorism 84 D Incapacitation 87 E Retribution 89 (i) Retribution as Revenge 89

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b. “Judge Centric” Death Penalty Jurisprudence

c. Geographical Variations 144 C Systemic and Structural Concerns with the Criminal Justice Process: Implications for the Death Penalty

(i) Assessing Capacity to Reform 145 (ii) Economic and Educational Vulnerability 149 D Fallibility of the Criminal Justice System and the Death Penalty

(i) Guilt Determination 156 (ii) Admitted Error in Imposing the Death Sentence

(iii) Variations in Application of the Rarest of Rare framework

VI Clemency Powers and Due Process Issues pertaining to the Execution of Death Sentence

A Introduction 174 B Nature, Purpose and Scope of Clemency Powers

C Standard of Judicial Review for Examining Exercise of Mercy Powers

D Duty of Writ Courts Carrying Out Judicial Review of Exercise of Mercy Powers

E Subjectivity in Exercise of Power under Article 72 by the President

F Judicial Review of Exercise of Mercy Powers

(i) Chronic Mental Illness Ignored: The Case of Sunder Singh

(ii) Cases involving Long delays in Investigation and Trial

a. (^) The Case of Gurmeet Singh 192 b. (^) The Cases of Simon and Others 193

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(iii) Partial and Incomplete Summary Prepared for President: The Case of Mahendra Nath Das

(iv) Non-Application of Mind 194 a. The Case of Dhananjoy Chatterjee 194 b. (^) The Case of Bandu Baburao Tidke 194 (v) Mercy Petition Rejected Without Access to Relevant Records of the Case: The Case of Praveen Kumar

(vi) Wrongful Executions and Failure of the Clemency Process

a. The Case of Jeeta Singh 195 b. (^) The Cases of Ravji Rao and Surja Ram 196 (vii) Cases of Other Prisoners Sentenced to Death under Judgments Subsequently Declared to be Per Incuriam

a. Cases which have placed reliance on the Per Incuriam Decision of Ravji

b. The Case of Saibanna 198 c. Decisions held to be Per Incuriam by Sangeet and Khade

G Constitutional Implications of Pain and Suffering Imposed on Convicts on Death Row in the Pre-Execution Phase

(i) Enduring Long Years on Death Row 202 a. Revised Standard of Delay in Pratt 204 b. Delayed Execution serves No Penological Purpose and is, therefore, Excessive

(ii) Illegal Solitary Conditions of Detention 209 H Conclusion 211 VII Conclusions and Recommendation 213 - 218 A Conclusions 213 B Recommendation 217

Annexures I List of Participants of One-day Consultation

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CHAPTER - I

INTRODUCTION

A. References from the Supreme Court

1.1.1 In Shankar Kisanrao Khade v. State of Maharashtra (‘ Khade ’),^1 the Supreme Court of India, while dealing with an appeal on the issue of death sentence, expressed its concern with the lack of a coherent and consistent purpose and basis for awarding death and granting clemency. The Court specifically called for the intervention of the Law Commission of India (‘the Commission’) on these two issues, noting that:

It seems to me that though the courts have been applying the rarest of rare principle, the executive has taken into consideration some factors not known to the courts for converting a death sentence to imprisonment for life. It is imperative, in this regard, since we are dealing with the lives of people (both the accused and the rape-murder victim) that the courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided. Death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance. Perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.^2 (Emphasis supplied)

It does prima facie appear that two important organs of the State, that is, the judiciary and the executive are treating the life of convicts convicted of an offence punishable with death with different

(^1) (2013) 5 SCC 546. (^2) Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at para 148.

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standards. While the standard applied by the judiciary is that of the rarest of rare principle (however subjective or Judge-centric it may be in its application), the standard applied by the executive in granting commutation is not known. Therefore, it could happen (and might well have happened) that in a given case the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the executive has taken a diametrically opposite opinion and has commuted the death penalty. This may also need to be considered by the Law Commission of India.^3 (Emphasis supplied)

1.1.2 Khade was not the first recent instance of the Supreme Court referring a question concerning the death penalty to the Commission. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (‘ Bariyar ’),^4 lamenting the lack of empirical research on this issue, the Court observed:

We are also aware that on 18- 12 - 2007, the United Nations General Assembly adopted Resolution 62/149 calling upon countries that retain the death penalty to establish a worldwide moratorium on executions with a view to abolishing the death penalty. India is, however, one of the 59 nations that retain the death penalty. Credible research, perhaps by the Law Commission of India or the National Human Rights Commission may allow for an up-to-date and informed discussion and debate on the subject.^5 (Emphasis supplied)

1.1.3 The present Report is thus largely driven by these references of the Supreme Court and the need for re-examination of the Commission’s own

(^3) Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, at para 149. (^4) (2009) 6 SCC 498. (^5) Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 112.

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risk the experiment of abolition of capital punishment.

Arguments which would be valid in respect of one area of the world may not hold good in respect of another area in this context. Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts.

On a consideration of all the issues involved, the Commission is of the opinion that capital punishment should be retained in the present state of the country.^7

(ii) The 187th^ Report on the Mode of Execution (2003)

1.2. 3 The Commission dealt with the issue of death penalty once more – in its 187th^ Report on the “ Mode of Execution of Death Sentence and Incidental Matters ” in 2003.^8 This was a suo motu issue taken up by the Commission “ technological advances in the field of science, technology, medicine, anaesthetics ”.^9 It was concerned only with a limited question on the mode of execution and did not engage with the substantial question of the constitutionality and desirability of death penalty as a punishment.

C. Need for re-examining the 35th^ Report

1.3.1 The Commission’s conclusion in the 35 th Report that “ at the present juncture, India cannot risk the experiment of abolition of capital punishment ,”^10 and its recommendation that “ capital punishment should be

(^7) Law Commission of India, 35th (^) Report, 1967, at para 1 (Summary of Main Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf (last viewed on 7.08.2015). (^8) Law Commission of India, 187 th (^) Report, 2003, available at lawcommissionofindia.nic.in/reports/187th report.pdf (last viewed on 25.08.2015). (^9) Law Commission of India, 187 th (^) Report, 2003, at page 5, available at http://lawcommissionofindia.nic.in/reports/187th%20report.pdf (last viewed at 26.08.2015). (^10) Law Commission of India, 35 th (^) Report, 1967, at para 1 (Summary of Main Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf (last viewed on 7.08.2015).

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retained in the present state of the country ,”^11 were clearly dependent on, and qualified by, the conditions that prevailed in India at that point in time. A great deal has changed in India, and indeed around the world, since December 1967, so much so that a fresh look at the issue in the contemporary context has become desirable. Six factors require special mention.

(i) Development in India

1.3.2 The Commission’s conclusions in the 35 th Report rejecting the abolition of capital punishment were linked 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 .”^12

1.3.3 Nevertheless, education, general well-being, and social and economic conditions are vastly different today from those prevailing at the time of writing the 35 th^ Report. For example, per capita Net National Income at constant prices, based on the 2004- series was Rs. 1838.5 in 2011 - 2012, while it was Rs. 191.9 in 1967-1968.^13 Similarly, adult literacy was 24.02% in 196114 and 74.0% in 2011,^15 and life expectancy (a product of nutrition, health care, etc.) was 47.1 years in 1965-1970^16 and 64.9 years in 2010-

(^11) Law Commission of India, 35 th (^) Report, 1967, at para 1 (Summary of Main Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf (last viewed on 7.08.2015). (^12) Law Commission of India, 35 th (^) Report, 1967, at para 1 (Summary of Main Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf (last viewed on 7.08.2015). (^13) See Table 1.1, The Statistical Appendix to the Economic Survey 2014-2015, available at: http://indiabudget.nic.in/es2014-15/estat1.pdf (last viewed on 6.08.2015). (^14) “ State of Literacy ”, Census of India, available at Census of India 1961, http://censusindia.gov.in/Data_Products/Library/Provisional_Population_Total_link/PD F_Links/chapter7.pdf (last viewed on 19.08.2015). (^15) “ Status of Literacy ”, Census of India 2011, available at http://censusindia.gov.in/2011-prov-results/data_files/mp/07Literacy.pdf (last viewed on 19.08.2015). (^16) Life Expectancy at Birth- Both Sexes Combined, 1965-70, UN Data, available at http://data.un.org/Data.aspx?q=india+life+expectancy+1965&d=PopDiv&f=variableID %3a68%3bcrID%3a356%3btimeID%3a103%2c104 (last viewed on 19.08.2015).

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Commission in formulating its conclusions in the 35th Report, have changed considerably since 1967.

(ii) The new Code of Criminal Procedure in 1973

1.3. 7 The Commission’s recommendations in the 35 th^ Report predate the current Code of Criminal Procedure (‘CrPC’), which was enacted in 1973. This resulted in an amendment to Section 354(3), requiring “special reasons” to be given when the death sentence was imposed for an offence where the punishment could be life imprisonment or death. The Supreme Court, in Bachan Singh v. State of Punjab^23 (‘ Bachan Singh ’) has interpreted this to mean that the normal sentence for murder should be imprisonment for life, and that only in the rarest of rare cases should the death penalty be imposed.

1.3. 8 Section 354(3) went contrary to the Recommendations of the 35th^ Report, which stated that, “ The Commission does not recommend any provision (a) that the normal sentence for murder should be imprisonment for life but in aggravating circumstances the court may award the sentence of death .”^24

1.3.9 Pertinently, the Report also recommended that Section 303 of the Indian Penal Code, remain unchanged^25 (subsequently held unconstitutional in Mithu v. State of Punjab ),^26 and that there was no requirement for a minimum interval between the death sentence and the actual execution^27 (subsequently made 14 days in Shatrughan Chauhan v. Union of

(^23) (1980) 2 SCC 684. (^24) Law Commission of India, 35 th (^) Report, 1967, at para 7 (Summary of Main Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf (last viewed on 7.08.2015). (^25) Law Commission of India, 35 th (^) Report, 1967, at para 4 (Summary of Main Conclusions and Recommendations), available at http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf (last viewed on 7.08.2015). (^26) (1983) 2 SCC 277. (^27) Law Commission of India, 35th (^) Report, 1967, at para 1161-1162, available at http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf (last viewed on 7.08.2015).

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India ).^28 Such developments emphasise the importance of relooking at the Report.

(iii) The emergence of constitutional due-process standards

1.3.10 Post-1967, India has witnessed an expansion of the interpretation of Article 21 of the Constitution of India, reading into the right to dignity and substantive and due process. Most famously, Maneka Gandhi v Union of India ,^29 held that the procedure prescribed by law has to be “ fair, just and reasonable, not fanciful, oppressive or arbitrary .” 30

1.3.1 1 Subsequently, in Bachan Singh , the Court observed that Section 354(3) of the CrPC, 1973, is part of the due process framework on the death penalty. In this regard, the Court held the following:

There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be over- emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and Figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency — a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative

(^28) (2014) 3 SCC 1. (^29) (1978) 1 SCC 248. (^30) Maneka Gandhi v. UOI, (1978) 1 SCC 248, at para 48.

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doubt the possibility of a principled and consistent implementation of the ‘rarest of rare’ test.

(iv) Judicial developments on the arbitrary and subjective application of the death penalty

1.3.1 4 Despite the Court’s optimism in Bachan Singh that its guidelines will minimise the risk of arbitrary imposition of the death penalty, there remain concerns that capital punishment is “arbitrarily or freakishly imposed”.^34 In Bariyar, the Court held that “ there is no uniformity of precedents, to say the least. In most cases, the death penalty has been affirmed or refused to be affirmed by us, without laying down any legal principle .”^35

1.3.1 5 Such concerns have been reiterated on multiple occasions, where the Court has pointed that the rarest of rare dictum propounded in Bachan Singh has been inconsistently applied. In this context, it is instructive to examine the observations of the Supreme Court in Aloke Nath Dutta v. State of West Bengal ,^36 Swamy Shraddhananda v. State of Karnataka (‘Swamy Shraddhananda’) ,^37 Farooq Abdul Gafur v. State of Maharashtra (‘Gafur’) ,^38 Sangeet v. State of Haryana (‘Sangeet’) ,^39 and Khade.^40 In these cases, the Court has acknowledged that the subjective and arbitrary application of the death penalty has led “principled sentencing” to become “judge-centric sentencing” ,^41 based on the “personal predilection of the judges constituting the Bench.”^42

(^34) Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 15. (^35) Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 104. (^36) (2007) 12 SCC 230. (^37) (2008) 13 SCC 767. (^38) (2010) 14 SCC 641. (^39) (2013) 2 SCC 452. (^40) (2013) 5 SCC 546. (^41) Sangeet v. State of Haryana, (2013) 2 SCC 452. (^42) Swamy Shraddhananda v. State of Karnataka, (2008) 13 SCC 767.

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1.3.16 Notably, the Supreme Court has itself admitted errors in the application of the death penalty in various cases.^43

(v) Recent Political Developments

1.3.17 Some recent developments indicate an increase in political opinion in favour of abolition. Most recently, in August 2015, the Tripura Assembly voted in favour of a resolution seeking the abolition of the death penalty.^44

1.3.18 Demands for the abolition of the death penalty have been made by the Communist Party of India (CPI), the Communist Party of India (Marxist) [CPI (M)], the Communist Party of India (Marxist – Leninist Liberation) [CPI (M-L)] the Viduthalai Chiruthaigal Katchi (VCK), the Manithaneya Makkal Katchi (MMK), the Gandhiya Makkal Iyakkam (GMI), the Marumalarchi Dravida Munnetra Kazhagam (MDMK), and the Dravida Munnetra Kazhagam (DMK).^45

1.3. 19 On 31 st^ July, 2015, D. Raja of the CPI introduced a Private Member’s Bill asking the Government to declare a moratorium on death sentences pending the abolition of the death penalty.^46 In August 2015, DMK Member of Parliament Kanimozhi introduced a private member’s bill in the Rajya Sabha seeking abolition of capital punishment.^47

(^43) See Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498 , Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546 and Sangeet v. State of Haryana, (2013) 2 SCC 452. (^44) Syed Sajjad Ali, Tripura passes Resolution against Death Penalty , The Hindu, 7 August 2015. (^45) See PTI, Left joint movement asks Centre to not hang Yakub Memon , Economic Times, 27 July, 2015; IANS, Death penalty: CPI leader D Raja moves private member's resolution , Economic Times, 31 July, 2015.; ET Bureau, Seeking end to death penalty, DMK's Kanimozhi set to move private member’s bill , Economic Times, 7 August, 2015; See also: Repeal Death Penalty , CPI M-L, 30 June, 2015, available at http://cpiml.in/cms/editorials/item/150-repeal-death-penalty (last viewed on 20.08.2015). (^46) IANS, Death penalty: CPI leader D Raja moves private member's resolution , Economic Times, 31 July, 2015. (^47) ET Bureau , Seeking end to death penalty, DMK's Kanimozhi set to move private member’s bill , Economic Times 7 August, 2015.