Current Scenario On Death Penalty In Light Of Bharatiya Nagarik Suraksha Sanhita, 2023

Ajay Wilson B

14 Jan 2025 11:59 AM

  • Current Scenario On Death Penalty In Light Of Bharatiya Nagarik Suraksha Sanhita, 2023

    India has in the past voted against a draft resolution of the United Nations General Assembly on the abolition of the death penalty. The death penalty has long been a point of contention, with strong views from both abolitionists and retentionists shaping the discourse. The long prevailing battle between abolitionists and retentionists is also evolving based on modern democratic values and...

    India has in the past voted against a draft resolution of the United Nations General Assembly on the abolition of the death penalty. The death penalty has long been a point of contention, with strong views from both abolitionists and retentionists shaping the discourse. The long prevailing battle between abolitionists and retentionists is also evolving based on modern democratic values and the recurrence of crime in society.

    This article is mainly premised on analyzing the procedures governing the passing, implementation, and alteration of death sentences as outlined in the Bharatiya Nagarik Suraksha Sanhita and exploring the aspects where it differs from the Criminal Procedure Code.

    This article will also point out the trend differences between the trial courts and the top court in the imposition of the death penalty and various contemporary developments, including the 'rarest of rare doctrine', in relation to the death penalty. Finally, this article provides certain suggestions that may be incorporated within the death penalty jurisprudence in India.

    1. BHARATIYA NAGARIK SURAKSHA SANHITA 2023 & DEATH PENALTY

    The Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 provides for certain procedures to be followed in relation to the imposition, confirmation, and execution of the death penalty. It is to be noted that there is no progressive difference between the colonial legislation and the BNSS in this regard.

    1.1 PASSING OF DEATH SENTENCE

    The BNSS reflects the provisions of CrPC with respect to the authority of Courts to pass a sentence of death upon a convict. It specifies the Courts which have the power to pass a sentence of death and the conditions to be followed by it while doing so.

    As per Sec 22 of BNSS, a sentence of death may be passed by:

    1. A High Court
    2. A Sessions Judge or Additional Sessions Judge subject to the confirmation by the High Court.

    Additionally, Sec 23 BNSS makes it clear that a sentence of death cannot be passed by a Chief Judicial Magistrate or any other Magistrate subordinate to him for that matter. This demarcation of power is granted in order to ensure that no error or miscarriage of justice occurs while passing a sentence of death since the life of a convict once taken, cannot be compensated or given back.

    Consequently, Sec 393 BNSS which provides for the language and contents of a judgment also provides the specificities of a judgment passing a sentence of death. To be precise, Sec 393(3) provides that in case of a sentence of death, the judgment must state special reasons for ordering such a sentence. This measure ensures that a sentence depriving a person of his right to life guaranteed under Article 21 must not be arbitrary and should be backed by rationality. Further, Sec 393(5) states that such a judgment must also direct the mode of execution of the death penalty ie., hanged by the neck till death.

    Generally, a certified copy of a judgment will be given on an application made by the accused. But the proviso of Sec 404(2) provides that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applies for the same. This is based on the ideology that a person under a sentence of death must be fully informed of his situation so that he may seek all the possible recourse to save himself from capital punishment.

    Again based on this underlying ideology, Sec 404(4) provides that when a court sentences a person to death, and the person has the right to appeal the decision, the court must inform them of the time frame within which they need to file their appeal, should they wish to do so. This ensures that the condemned is fully cognizant of his or her right to challenge the death sentence and the extremely limited time frame the condemned has to act in doing so. Because capital punishment is the most severe consequence a human can face, this person must be given every chance to appeal the judgement and thus ensure that no miscarriage of justice takes place. The process of appeal is a checks and balances to review any legal mistakes from trial. The court then promotes the principles of fairness and due process by informing the accused of this right together with the time frame in which they can put it to use and this is for the service of justice, with full transparency and caution.

    1.2. CONFIRMATION OF DEATH SENTENCE

    Chapter XXX of BNSS deals with the 'Submission of Death Sentences for Confirmation'. It comprises Sections 407 – 412 which lays down the procedures to be followed when a death sentence is submitted to the High Court for confirmation.

    Section 407 addresses, in part, the question of who has the authority to finalize a death sentence. It states that if a Sessions Court hands down a death sentence, the verdict must first be reviewed and confirmed by the High Court before it can be carried out. The case proceedings must be submitted to the High Court, and the sentence cannot be executed until the High Court grants its approval. Only after this confirmation can the execution legally proceed. This provision also is a replica of Sec 366 CrPC. However, with reference to the case of State of Punjab vs Kala Ram @ Kala Singh, the Court has held that as per Section 366(2) of the CrPC, while awarding a sentence, the Court has to order that the convicted person be taken in jail custody under a warrant. This custody is not a punishment, but for "the safe keeping" of the person. The jailor only has a limited title (largely fiduciary in character) to such person for safekeeping. It's a burden given to the Superintendent, and is not viewed as incarceration in the typical sense.

    So, also Section 408(1), which governs the confirmation of death penalty cases by the High Court, allows the High Court to, on discovering of some aspect relevant to the guilt/innocence of the accused, either direct the Sessions Court to make further inquiry or deal with the aspect itself by taking further evidences. Such orders are generally issued by the High Court when it feels that some points or factors might have gone unaddressed by the Sessions Court. Sub-section (2) enables the High Court to exempt the convict from being present in person during such inquiries or the hearing of new evidence, unless the Court otherwise directs. Subsection (3) provides that where such application is made to the Sessions Court or any other authority who is competent under the law to entertain, hear and dispose of such application, such authority must certify its findings before submitting them to the High Court for consideration.

    Referring to the case of Balak Ram Etc vs The State of U.P[1]., the observation was made that the High Court has misjudged and misapprehended the evidence adduced by the prosecution witnesses. The Court observed that, whether it is in the case of a death penalty or different pieces of evidence, it is the duty of the High Court to consider all the evidence independently. The High Court must ensure that no stone is left unturned before forming an opinion on the matter. The amount of caution which the High Court has to exercise while dealing with evidences in a capital punishment trial is exceedingly high and consequently it is clear that such duty must be performed with utmost care.

    Section 409 of the Code of Criminal Procedure outlines the powers of the High Court when a case involving a death sentence is submitted for confirmation under Section 407. The High Court has several options:

    • It can confirm the death sentence passed by the Sessions Court, or impose a different sentence as long as it is legally justified.
    • It can overturn the conviction made by the Sessions Court and either convict the accused of a different offense or order a retrial, either on the same charge or an amended one.
    • It can also pass an order of acquittal

    It is also provided that an order of confirmation of the death sentence cannot be passed by the High Court unless the time limit for preferring an appeal has expired or while an appealing is pending.

    In the case of Kartarey and Ors. vs The State of Uttar Pradesh[2], the Sessions Court sentenced the accused to death which was modified by the High Court. Upon arrival to the Supreme Court, the High Court was determined to have grossly erred in its assessment of the evidence, including additional evidence. The top court held that it is for the High Court to reappraise the entire evidence and arrive at a conclusion on merits. The Court emphasized that the High Court should also not ignore the evidence on record led by the defense, and after considering the entire proceedings, was required to afford equal weightage to the defense evidence.

    Sec 410 BNSS, mandates that in cases where the High Court consists of two or more Judges, the confirmation of a sentence, or any new sentence or order, must be signed by at least two Judges.

    Also, Section 411 of the BNSS provides that in cases where the sitting judges of a case are equally divided in their opinions, Section 433 of the BNSS shall be followed automatically, without the need for requisition by any party. The court takes action on its own (suo motu) to apply this procedure.

    Section 433 provides for the steps to be taken when a bench of the High Court differs in their opinion. In such cases, the appeal, along with the differing opinions, is submitted to another judge of the same court who will deliver his own opinion after hearing the rationale of other judges. His opinion will determine the final judgment or order.

    It is also provided that if any of the judges believe that the appeal must be reheard or decided by a larger bench, then it shall be done.

    In several cases, the similar procedure in Sec 392 CrPC has been applied, including prominent the cases like Pankaj Kumar Gupta vs State Of U.P[3], State Of Gujarat vs Raghu @ Raghavbhai Vashrambhai And Ors[4] and Tanviben Pankajkumar Divetia vs State Of Gujarat[5] where there was a difference of opinions by the original two-judge bench which therefore was referred to another judge.

    In the event the Court of Session sends a sentence of death to the High Court for confirmation, the officer of the High Court who is designated must, as soon as practicable, send a copy of the confirmation or the order to the Court of Session, as per Sec 412 BNSS. That either on paper or digitally. This not only expedites the transmission of critical orders but also minimizes the probability of delay and is a step by the legal system towards modern technology by permitting the use of electronic communication. Yet, even after modernizing the process, the copy still has to be sealed by the High Court and signed by the officer to ensure legitimacy.

    1.3. EXECUTION OF DEATH SENTENCE

    Chapter XXXIV A of BNSS (Sec 453 – 456) deals with the execution procedures of death sentences after confirmation/order by the High Court. This chapter also provides for the suspension, remission, and commutations of sentences including the death sentence.

    Sec 453 provides for the execution of orders passed under Sec 409 BNSS. It states that when a case is submitted to the High Court for confirmation of a death sentence, and the Court of Session receives the High Court's order of confirmation or any other ruling on the matter, it is then the duty of the Court of Session to ensure that the order is carried out.

    Similarly, Sec 454 provides that when the High Court has passed a death sentence, either in appeal or revision, the duty to enforce it has been casted on the Court of Sessions. The Court of Session must do so by issuing a warrant to ensure the sentence is carried out accordingly.

    Importantly, Sec 455 BNSS lays down the law relating to the postponement of the death sentence where an appeal to the Supreme Court is pending. Sec 455(1) states that when death has been imposed on a person by the High Court and if such person has the right to appeal to the Supreme Court under Article 134(1)(a) or 134(1)(b) of the Constitution, the High Court must pass an order of postponement of such death sentence. This postponement remains in effect until the time allowed for filing the appeal has expired, or, if an appeal is filed within that period, until the appeal is resolved.

    Sub-section (2) provides that if the High Court passes or confirms a death sentence and the convicted person applies to the High Court for a certificate under Article 132 or sub-clause (c) of clause (1) of Article 134 of the Constitution, the execution of the sentence must be delayed. Such a delay may be in force unless and until the remedy to appeal to the Supreme Court based on such certificate has expired.

    Finally, Sub-section (3) gives a framework to enable the person on whom the death penalty is imposed, to approach the Supreme Court under Article 136 of the Constitution.

    In fact, Sec 456 BNSS provides that if a woman sentenced to death is found to be pregnant, this must be noted and the High Court is obliged to commute her sentence to one of imprisonment for life. As such, existing United States federal law and the law of most states elsewhere already provides for lesser charges during murder prosecution where pregnancy is involved.

    1.4. SUSPENSION, REMISSION AND COMMUTATION OF DEATH SENTENCE

    Sec 472 BNSS pertains to mercy petitions in death sentence cases. Sub-section (1) provides that a convict under a death sentence, or their legal heir or relative, may file a mercy petition before the President of India under Article 72 or the Governor of the State under Article 161 of the Constitution within thirty days of being informed by the Superintendent of the jail about the dismissal of their appeal, review, or special leave to appeal by the Supreme Court, or about the confirmation of the death sentence by the High Court after the allowed time for appeal has expired.

    Sub-section (2) states that the petition can initially be submitted to the Governor. If rejected or disposed of by the Governor, the convict may appeal to the President within sixty days from the rejection or disposal. Further, Sub-section (3) provides that the Superintendent of the jail must ensure that every convict in a case files their mercy petition within sixty days. If that doesn't happen, then the Superintendent has to do the same by providing the names, addresses, case records, and other essential details to the Centre or State Govt. along with the mercy petition.

    Further, Sub-Section (4) stipulates that on receiving mercy petition, the Central Government would call comments from State Government and consider it with case records and make a recommendation to the President as soon as possible and, in any case, within sixty days from the date of receipt of the comments of the State Government and records from jail. Also, Sub-section (5) says that the President can consider, decide and dispose of the mercy petitions, provided if there are more than one convicts in a case, their mercy petitions should be decided together in the interest of justice.

    After the President has passed an order regarding the mercy petition, the Central Government is required to communicate the order to the Home Department of the State Government and the Superintendent of the jail or officer in charge, as soon as possible, not beyond the time, the sub section (6) of the section states. Lastly it states none can appeal in other courts against the orders of the President or the Governor made per Article 72 or Article 161 of the Constitution. These decisions are final, and there is no court review over any question of how the President or Governor made his decision.

    Sec 474 deals with the power to commute sentences. It provides that an appropriate government may, without the consent of the accused sentenced, commute a sentence of death for only imprisonment of life. This is in stark contrast to the provision in CrPC which relates to the commutation of a death sentence.

    Sec 475 provides that regardless of the provisions outlined in Section 473, if a person is sentenced to life imprisonment for an offense for which the law prescribes death as a possible punishment, or if a death sentence has been commuted to life imprisonment under Section 474, that individual cannot be released from prison until they have served a minimum of fourteen years. This provision is put in place to make sure that an individual serves a sentence proportionate to the offence committed while also to ensure that he undergoes rehabilitation measures while being imprisoned.

    Section 476 BNSS provides for concurrent power of the Central Government in cases of death sentences. It says that the authorities granted to the State Government under Sections 473 and 474 regarding death sentences may also be exercised by the Central Government.

    2. CONTEMPORARY TRENDS ON DEATH PENALTY

    In Bachan Singh v. State of Punjab[6], the Supreme Court gave a 4:1 judgment and introduced the 'Rarest of the Rare' doctrine to limit the death penalty. The judges referred to earlier judgments in Jagmohan Singh v. State of Uttar Pradesh[7] and Rajendra Prasad v. State of Uttar Pradesh[8], where they had held that death sentence takes away the fundamental right to life of an individual. However they also held that when a person's actions pose a grave, deliberate and continuous threat to the society, the state can justifiably take away his constitutional rights. The Supreme Court held that death penalty is not unconstitutional but should be reserved for the rarest of the rare cases where no other punishment is possible.

    One prominent case that established principles that define the “Rarest of the Rare” doctrine is Machhi Singh & Ors. v. State of Punjab[9]. The SC stated that to pass a death sentence, the following considerations must be assumed:

    • The way the murder was committed;
    • The murder's motive;
    • The anti-social or socially repulsive aspect of the offense;
    • The scale of criminality; and
    • Characteristics of the Murderer.

    This doctrine remains a guiding light when it comes to the determination of a death sentence. But for a very long time, the top court has shown a hesitation towards granting the death penalty to an accused. This tendency prevails even now.

    India has a problem of inconsistent death penalty sentencing. While the Supreme Court has confirmed only 7 death sentences from 2007 to 2022, trial courts continue to pass many more, showing lack of uniformity across the judiciary[10]. A study by National Law University Delhi, as per the Annual Statistics Report 2022 published by Project 39A, showed that as of December 31, 2022, India had 539 prisoners on death row—the highest since 2016[11]. This is a huge increase in number of people facing death penalty in recent years. But in a strange trend, the Supreme Court of India acquitted nearly 55% of the death row prisoners (6 prisoners) in the cases it heard in 2023. This inconsistency has been acknowledge by the SC in Manoj vs State of Madhya Pradesh[12] where an initiative to convene a Constitution Bench to reform the death penalty sentencing in India has been taken. The judgment underscore systemic failures by the police, prosecution, and trial courts. The recent acquittals by the SC have been outcomes of fabricated evidence, manipulated first information reports, the possibility of tampered forensic evidence and dubious recoveries of incriminating evidence by the police. Even the failure of providing efficient legal aid to the accused due to public pressure, media trials and political interests, results in inefficient defense to the accused and subsequently leads to his capital punishment.

    Amidst all this, the BNS has increased the number of offences for which death penalty is a punishment. But the recommendations made by the Justice Verma Committee argued that the death sentence does not necessarily act as a deterrent against crimes such as sexual offences, including gang rapes[13]. All these conflict of opinions regarding death penalty and the trends of trial courts vis-à-vis the Supreme Court creates a complex spiral that only leads to ambiguity and arbitrariness which ultimately hinders the fair justice to both victims and death row convicts.

    3. CRITICAL ANALYSIS ON THE NEW CRIMINAL LAWS IN DEATH PENALTY CONTEXT

    Death penalty in BNS must be opposed. Capital punishment is based on retribution and not reformative justice. There is no empirical evidence that death penalty deters crime[14]. In a democratic society, death penalty has no justification as it gives the state the power to take the life of its citizens.

    With respect to the procedural implications of death sentence, the BNSS has not done a good work. In the BNSS, Section 474 titled 'Power to commute sentence' lays down the extent of the statutory power of the Government to commute sentences. A major change brought about by the BNSS is concerning the limit imposed on the commutation of a death sentence. Under Section 433(a) of CrPC, a sentence of death would be commuted to `any other punishment' provided under IPC. But BNSS 2023 places a restriction upon the discretionary power exercised by the government to commute the death sentence only to life imprisonment. However, the BNSS restricts the discretionary power of the government by limiting the scope of commutation of a death sentence to a sentence of life imprisonment alone. This purportedly intends to increase the deterrence of such offenses, for which the death penalty has been awarded. But in reality, while there is no proper framework to efficiently establish the defense of the accused in sensitive cases, this limitation further robs him of the privilege to undergo a lesser sentence proportionate to the crime.

    Though the BNSS purports to be modern legislation as opposed to the colonial CrPC, certain provisions of it explicitly have the colonial tint. Despite the acknowledgment and use of recent technological advancements like electronic evidence, recordings, etc in BNSS, when it comes to the mode of execution of the death penalty, the legislation still opted for the method used since the British rule. Under Sec 393(5), it states in the BNSS, that a judgment must also direct the mode of execution of the death penalty ie., hanged by the neck till death.

    It has been widely argued and occasionally heard that hanging is an instantly lethal means of execution, but this belief has been debunked due to the overwhelming evidence that suggests that this form of execution causes extreme suffering. A documentary exploring “instantaneous death” caused by the dislocation of the cervical vertebrae in executions carried out in the U.S. and the U.K. uncovers that individuals frequently experience severe distress before death. Rather than dying instantly, they undergo prolonged asphyxiation, which results in a slow and agonizing process.

    In addition, research has identified many documented instances of death by hanging going wrong through mechanical failure or human error. “Ropes have snapped, necks have slipped out of nooses, and partial and full decapitations have occurred,” said the report, while also noting the final torture of what is supposed at least to be a controlled procedure. Rather than receiving an instantaneous death by breaking of the neck, which would be a most merciful scenario, prisoners often die a slow strangulation, suffocating over a period of some time.

    Previously, even the Supreme Court has asked the Centre to provide data which may point to less painful, more dignified and socially acceptable methods of executing prisoners other than death by hanging[15]. Also, the Law Commission of India in 2003 recommended that Section 354(5) of the CrPC should be amended by providing an alternative mode of execution of the death sentence by “lethal injection until the accused is dead”. However, the BNSS 2023 has not fulfilled these humane aspirations in the execution of the death penalty in India.

    4. RECOMMENDATIONS AND CONCLUSION

    India too must establish guidelines similar to the 'Sentencing Councils' existing in the United Kingdom, furnishing a systematic framework for Sessions Courts and for High Courts to deal with situations in which the evidence presented by the prosecution seems overwhelming, while the defence remains terribly unprepared. These provisions would include scenario in which the influence of media taints the fairness of the trial, counsel representing the legal aid does not provide vigorous defence, biased courts, or where there's a refusal to represent the accused by defense attorneys.

    A significant move toward abolishing the death penalty would be to curb the practice of seeking early release for life convicts on political grounds. Life sentences with no possibility of remission should be used more often. In addition the definition of what the 'Rarest of the Rare' is also needs to be clear and objectively defined. It should leave no room for subjective bias or societal pressures. It must have a clear, transparent framework and mechanism in place to ensure the imposition of the death penalty is fair and uniform and intra vires the Constitution of India.

    Views Are Personal

    1. 1974 AIR 2165.

    2. AIR 1976 SC 76.

    3. 2017 (98) ACC 750.

    4. (2003)1GLR205.

    5. 1997 (7) SCC 156.

    6. AIR 1980 SC 898.

    7. AIR 1973 SC 947.

    8. 3 SCC 646.

    9. 1983 SCR (3) 413.

    10. Life over death: On death penalty abolition and parliamentary panel report, THE HINDU (OCT. 13, 2024. 5:00 PM), https://www.thehindu.com/opinion/editorial/life-over-death-the-hindu-editorial-on-death-penalty-abolition-and-parliamentary-panel-report/article67536304.ece.

    11. Vijaita Singh, Parliamentary panel on criminal law Bill leaves decision on death penalty to Centre, THE HINDU (OCT. 14, 2024, 9:10 AM), https://www.thehindu.com/news/national/proposed-criminal-law-increases-number-of-crimes-attracting-death-penalty-from-11-to-15/article67532323.ece.

    12. CRIMINAL APPEAL NOS. 248-250 OF 2015.

    13. Shailesh Kumar, The continuing distribution of the death penalty, THE HINDU (OCT. 12, 2024, 6:10 PM), https://www.thehindu.com/opinion/lead/the-continuing-distribution-of-the-death-penalty/article68652639.ece.

    14. Joseph Mathai et.al., Review Death Penalty Punishments in Bhartiya Nyaya Sanhita 2023, PEOPLE'S UNION FOR DEMOCRATIC RIGHTS, (OCT. 12, 2024, 5 PM), https://www.pudr.org/press-statements/review-death-penalty-punishments-in-bhartiya-nyaya-sanhita-2023/.

    15. Abdul, SC Bench seeks data on alternatives to hanging, FORUMIAS, (OCT. 12, 2024 6 PM), https://forumias.com/blog/sc-bench-seeks-data-on-alternatives-to-hanging/.

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