‘Rarest of rare’ — history of death penalty in India and crimes that call for hanging

Four convicts in 2012 Delhi gang rape and murder case are to be hanged at 5.30 am Friday. This is the first time that four convicts will be hanged together on the same platform.

Image for representational purpose | Pixabay

New Delhi: The four convicts in the 2012 Delhi gang rape and murder case are set to be hanged together at 5.30 am Friday, more than seven years after the gruesome incident stunned the country and provoked street protests demanding justice.

This is the first time that four convicts will be hanged together on the same platform.

The last death sentence executed by the justice system in India was the 30 July 2015 hanging of terrorist Yakub Memon, who was convicted in the 1993 Mumbai blasts.

Of the six men convicted in the Delhi gang rape and murder case, Ram Singh allegedly committed suicide on 11 March 2013 in Tihar jail. Another convict, a minor at the time the crime was committed, was released after three years at a reform home.

The remaining four — Mukesh Singh, Vinay Sharma, Pawan Gupta and Akshay Kumar Singh — are scheduled to be hanged in Tihar jail Friday.

Here is a look at the history of capital punishments in India and what are the crimes that call for death penalty in the country.

Death penalty in India

Hanging and shooting are the two methods of death penalty in India. According to the Criminal Procedure Code, hanging is the method of execution in the civilian court system. The Army Act, 1950, however, lists both hanging and shooting as official methods of execution in the military court-martial system.

According to a study by National Law University in Delhi, 755 people have been hanged in independent India until now.

Prior to the hanging of Memon in 2015, Muhammad Afzal — who was convicted of plotting the 2001 attack on Parliament — was hanged on 8 February 2013.

Mohammad Ajmal Amir Qasab — convicted in the 2008 Mumbai terror attack — was hanged on 21 November 2012, and Dhananjoy Chatterjee — charged and convicted with the murder and rape of a 14-year-old girl — was hanged in 2004.

Among the most talked about death sentences before this was that of Auto Shankar, aka Gowri Shankar, a serial killer hanged in 1995.

Data for death penalties in India varies from one source to another. According to a 1967 law commission report, at least 1,400 prisoners were executed in just 10 years, between 1954 and 1963. After Dhananjoy Chatterjee’s death sentence, however, there were reports citing government data that he was only the 55th person to be hanged since 1947.

A 2016 study conducted by the National Law University (NLU) in Delhi put this number at 755.

The discrepancy in the figures arises mainly due to lack of official figures and very little data available in public domain on the death sentences carried out in India.

Crimes punishable by death

Crimes punishable by death in India include aggravated murder, other offences resulting in death, terrorism-related crimes resulting in death, terrorism-related cases not resulting in death, rape not resulting in death, kidnapping not resulting in death, drug trafficking not resulting in death, treason, espionage and military offenses not resulting in death.

The judgments in the Bachan Singh vs State of Punjab play a crucial role in deciding whether any crime deserves death penalty or not.

For example, under the Indian Arms Act, 1959, using, carrying, manufacturing, selling, transferring, or testing prohibited arms or ammunition had a mandatory death sentence in case of casualty.

But a Supreme Court order in February 2012 had ruled this provision “unconstitutional in light of the judgments in Bachan Singh v. State of Punjab and Mithu v. State of Punjab”.

This suggests that offences resulting in death are punishable by death only when they meet the “rarest of rare” standard laid out in the Bachan Singh case.

Following the 2012 gang rape and murder, the Supreme Court amended the law in April 2013 to make it more stringent by adding new categories of offences regarding violence against women and minor girls.

“Such legislation has come to India for the first time and the Parliament has given its approval,” then home minister Sushilkumar Shinde had said.

Is death penalty constitutional?

The Mithu vs State of Punjab judgment states that death penalty is not a mandatory punishment for the above listed crimes. The Supreme Court had also ruled that mandatory death penalty is unconstitutional.

Section 416 of the CrPC says if a woman sentenced to death is found to be pregnant, the high court shall order the execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to imprisonment for life.

The Supreme Court has also held that mental illness is a “mitigating factor” sparing those with such disorders from the gallows.

Mercy petition process

For a convict to file a mercy petition, his/her death sentence must be confirmed by a high court first.

The law says: “The death sentence convict has an option to appeal to the Supreme Court. If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relatives can submit a mercy petition to the President of India (Articles 72) or the Governor of the State (161).”

Grounds to seek mercy appeal range from physical fitness, age, law was too harsh, or the convict is the sole breadwinner of the family.

According to Article 72 of the Constitution, the power to pardon — philosophy of which is “every civilised country recognises and provides for the pardoning power as an act of grace and humanity in course of law” — lies with the President.

The Article also states that he/she can grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the convict.

The mercy petition is reviewed by the Ministry of Home Affairs, which consults the state involved, before going to the President.

While former President Pranab Mukherjee had rejected 24 mercy pleas, his predecessor, Pratibha Patil, granted a record 30 pardons, some of which were cases of brutal crimes.

President Ram Nath Kovind, who came to power in July 2017, has rejected at least two mercy petitions — that of Jagat Rai, who burnt alive seven people, five of them children, and the most recent being 2012 gang-rape convict Akshay.

The powers of the governor of state are very similar to that of the President. According to Article 161, the governor can “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”.

This report has been updated to accurately reflect that Dhananjoy Chatterjee (2004) was not the first convict to be hanged after Auto Shankar (1995). According to NLU Delhi’s Project 39A, there have been a few more hangings between 1995 and 2004.