India's Stance
The Manner In Which Death Penalty Is Being Rewarded In A Huge Number Of Cases, Raises A Serious Question: Are Trial Courts Giving A Go By To The 'Rarest Of Rare' Doctrine?
A West Bengal court's decision awarding death penalty to 11 convicts, including a Trinamool Congress leader, for murder of a woman[1], raised questions over the 'rarest of rare' test advanced by the Supreme Court.

In India, death penalty is prescribed for murder, gang robbery with murder, rape, abetting the suicide of a child or insane person, waging war against the government and abetting mutiny by a member of the armed forces. Capital punishment is also awarded under some anti-terror laws for those convicted of terrorist activities.

Murder convicts get life imprisonment:

Generally, courts award life imprisonment to convicts in a murder case. Only in rarest of rare cases, murder convicts are given death penalty. Death sentence is imposed on the convict only when the court comes to the conclusion that life imprisonment is inadequate with respect to the facts and circumstances of the case.

Section 354(3) of the Criminal Procedure Code (CrPC), which was added to the Code in 1973, requires a judge to give special reasons for awarding death sentences. Capital punishment can be inflicted only in extreme cases of gravest culpability and in choosing the sentence the condition of the convict is also to be taken into account.

What is rarest of rare?
In 1980, in the Bachan Singh[2] case, the Supreme Court propounded the rarest of rare doctrine and since then, life sentence is the rule and the death sentence the exception.
There is no statutory definition of rarest of rare. It depends upon facts and circumstances of a particular case, brutality of the crime, conduct of the offender, previous history of his involvement in crimes, chances of reforming and integrating him into the society etc.

Test for rarest of rare
The generally applied test while sentencing a convict to death is whether the survival of an orderly society demands extinction of life of the person who has committed the offence and whether failure to impose death sentence on him would bring to naught the sentence of death provided under Section 302 of IPC.

Pre-planned, brutal, cold-blooded and sordid nature of a crime, without giving any chance to the victim, are generally taken into account to decide whether a particular case falls within the parameters of rarest of rare.

Death Penalty In India

The Nirbhaya case[3] 2012, which set an entire nation on its feet to stand up for justice, and it did indeed. The 23-year-old paramedic student, referred to as Nirbhaya, was gang raped and brutally assaulted on the intervening night of December 16-17, 2012 in a moving bus in south Delhi by six people before being thrown out on the road. She died on December 29, 2012 at Mount Elizabeth Hospital in Singapore. The friend with whom Nirbhaya boarded the bus was also beaten, gagged and knocked unconscious with an iron rod by the accused[4]. He suffered broken limbs but survived.

A sigh of justice came when the convicts were given the death penalty and sentenced hanged till death.

However, this gruesome journey till the actual execution of the convicts was not facile. The independent judiciary and large number of laws prevalent is India, believe that no one is above the law, as stated under Article 14 of the Constitution of India[5].

Under these laws of the constitution, an accused and even a convicted individual has numerous rights, no matter how heinous the crime committed. Article 20, 21 and 22[6] are specifically made for the accused and arrested persons respectively.

Delay In The Execution Of Death Penalty In India

Everyone has a right for a fair trial and to defend themselves in court, even when this creates systemic injustices to the victims. India primarily has an accused-centric approach while dealing with crimes. The laws and precedents believe in reforming the convicts and regulating them to release back into the society. However, some crimes are way extreme and death penalty seems like the accurate and sufficient punishment and justice to the aggrieved victims.

The lawyers or activists representing the convicts on their behalf, are obliged to file curative and mercy petitions in order to seize every opportunity to save their clients from the wrath of death. However, in the Delhi gangrape Nirbhaya case of 2012, the filing of petitions only caused irrelevant delays in death execution. The petitions are filed after the verdict of the court has been given. In this particular case, all legal remedies were simply exhausted by the convicts, only to delay the inevitable. It took 7 whole years for the death penalty to be finally executed on 20 March 2020, ending a horrific chapter in India's long history of sexual assault that had seared the nation's soul.

The present concern largely seems to have been caused by the multiple petitions from the convicts in the case and a consistent change in date of their execution. These delays are giving rise to public ire leading to demands of a time frame in the administration of justice.

On 22 January 2020, the Union Government moved to Supreme Court for fixing 7 Day deadline for the execution of death row convicts. In its plea the ministry sort a direction from the apex Court in fixing the deadline for filing of curative pleas after the rejection of their review petitions. The government wants the apex court to introduce 7 Day deadline for death row convicts to file mercy petitions if the convict of death sentence wants to file a mercy petition it would be mandatory for a convict of death sentence to do so in a period of 7 days from the date of receipt of death warrant issued by the apex court. The Government has also asked the Supreme Court to order all courts as well as the state governments to issue death warrants within 7 days of rejecting the mercy petitions and also to execute them within 7 days irrespective of the status of any petition that the convict may file.

It submitted that while taking care of the rights of the convicts it is also important and need of the hour to lay down guidelines on the interest of the victims, their families and in large the public interest.

End-Notes:

1. Aparna Bag Murder Case AIR 2014
2. Bachan Singh vs . State of Punjab Air 1980 Scc 898
3. Nirbhaya Delhi gangrape case 2012
4. The SCC ONLINE BLOG, https://www.scconline.com/
5. India Const. art 14
6. India Const. art 20, 21 ,22.

Written By:

1. Damini Chauhan (BALLB Student, MUJ)
2. Amanpreet Singh (BALLB Student, MUJ)