Capital Punishment
Capital punishment, death penalty or execution is government sanctioned punishment by death. The sentence is referred to as a death sentence.
Crimes that can result in a death penalty are known as capital crimes or capital offences.
The United Nations General Assembly has adopted, in 2007, 2008, 2010, 2012 and 2014 non-binding resolutions calling for a global moratorium(delay) on executions, with a view to eventual abolition of capital Punishments. Although many nations have abolished capital punishment, over 60% of the world’s population live in countries where executions take place, such as China, India, the United States and Indonesia
India retains capital punishment for a number of serious offences. But imposition of the capital punishment is not always followed by execution because of several reasons.
There are various sections under Indian Penal code IPC (302, 376A etc) and other statutes which award capital punishment for the convict. However, on 31 August 2015, the Law Commission of India submitted a report to the government which recommended the abolition of capital punishment for all crimes in India, excepting the crime of waging war against the nation or for terrorism-related offences.
One must note that, Under Article 21 of the Constitution of India, no person can be deprived of his life except according to procedure established by law.
Capital Offences defined by Indian Constitution are
| Section under IPC or other law | Nature of crime |
| 120B of IPC | Being a party to a criminal conspiracy to commit a capital offence |
| 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 offence |
| 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 offences |
| 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 should be confirmed by a High Court to enact it. Once confirmed, the condemned convict has the option of appealing to the Supreme Court. If prisoner is not able to appeal to the Supreme court, or the court refuses to hear the plea or gives death sentence, Prisoner has an option to submit a mercy petition to President of India and Governor of State.
The present day constitutional clemency powers of the President and Governors originate from the Government of India Act 1935.
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.
Despite the language of the constitutional provisions, clemency is exercised not by the President but by the government. For all practical purposes, the decision on a mercy petition is arrived at within the MHA as the subject has been allocated to the Department of Home, MHA second schedule of the Government of India (Allocation of Business) Rules 1961.
A Joint Secretary or an Additional Secretary ‘recommends’ a decision to either commute the death sentence or reject the mercy petition. This ‘recommendation’ is considered by the Minister of Home Affairs who makes the final ‘recommendation’, on behalf of the Cabinet of Ministers, to the President. Article 74(1) provides the President with only one opportunity to return the ‘recommendation’ for the decision to be reviewed. If no change is made, the President has to sign his assent.
