4th Year, The School of Law and Legal Studies
of Guru Gobind Singh Indraprastha University , Delhi.
Death penalty has been a mode of punishment since time immemorial. The arguments for and against has not changed much over the years. Crime as well as the mode of punishment correlate to the culture and form of civilization from which they emerge.At this point of time when the issue [whether capital punishment must be abolished or not] is still raging, it will be appropriate to remind ourselves as to how the legislatures and the apex Court have dealt with this issue every time it has come up before them . Another issue is regarding the extent of judicial discretion.
Beginning of Death Sentence
The Indian penal code was drafted by the 1st law commission of India and it goes without saying that it is one of the most wonderfully drafted laws in India. This is what the authors of the Code had to say about death as a punishment :-
" We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the state has been committed. "
It may be pertinent to mention here that the Indian Criminal jurisprudence is based on a combination of deterrent and reformative theories of punishment. While the punishments are to be imposed to create deter amongst the offenders, the offenders are also to be given opportunity for reformation. Keeping these theories in mind, the legislatures drafted Sec.354 (3) of the Cr.P.C. This subsection basically lays down that special reasons are to be recorded by the Court for imposing death punishment in capital offences. Thus, the position of law after Cr.P.C. 1973 became that the general rule was life imprisonment while the death sentence was to be imposed only in special cases.
Death Sentence Under Different Statutes
Capital Punishment is laid down as a penalty in several legislative Acts, such as the Indian Penal Code, 1860, (IPC) and the penalty provisions of national security and anti-narcotics legislation. Under the IPC eleven offences are punishable by death. A death sentence may also be imposed for a number of offences committed by members of the armed forces under the Army Act, 1950, the Air Force Act, 1950 and the Navy Act 1956.
Several legislative attempts to abolish the death penalty in India have failed. Before Independence a private Bill was introduced in the 1931 Legislative Assembly to abolish the death penalty for penal code offences. The British Home Secretary at the time however rejected the motion. The Government of independent India also rejected a similar Bill introduced in the first Lok Sabha (lower house of the Indian Parliament). Resolutions introduced in the Rajya Sabha (upper house) in 1958 and 1962 met with a similar fate; but the Government agreed to forward copies of the 1962 house debates of the Law Commission which was at the time reviewing the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1908. The Law Commission in its Report presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death penalty should be retained and that the executive (President) should continue to possess powers of mercy.
National discussion about the death penalty has resurfaced from time to time.The Lok Sabha specifically discussed abolition of the death penalty in 1983. While the Prime Minister at the time publicly favoured abolition, her Minister in Home Affairs denied that the Government was considering any specific proposals to abolish the death penalty. More recently the debate over death penalty was reinvigorated when all 26 defendants in the Rajiv Gandhi assassination case were sentenced to death.
In fact in recent years the Indian Parliament (Lok Sabha and Rajya Sabha) has dramatically extended the scope of the penalty. The Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) which was extended in 1987 empowered special courts to impose the death penalty for certain broadly defined 'terrorist' acts. Although the Parliament decided to let this hugely unpopular and controversial Act lapse in 1995 it is now considering new legislation, in the form of the Prevention of Terrorism Bill which would reintroduce many aspects of TADA.
Use of the death penalty has also been extended through other legislation. The Commission of Sati (Prevention) Act, 1987, which prescribes punishment by death for any person who either directly or indirectly abets the commission of 'sati' (immolation of a widow). The Narcotics, Drugs and Psychotopic Substances (Amendment) Act, 1988, introduced the death penalty as a punishment for financing, or engaging in the production, manufacture or sale of narcotics or psychotopic substance of specified quantities (e.g. opium 10 kgs, cocaine 500 gms) after previous convictions. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, introduced the death penalty for fabricating of providing false evidence that results in the conviction and execution of an 'innocent' member of a scheduled caste or scheduled tribe. In April 2000 the Government announced it would consider imposing the death penalty for individuals convicted of rape (Hindustan Times 19 April 2000). It is questionable whether any government would be able to obtain sufficient political support for such further legislative enactments now.
Mode Of Execution
The execution of death sentence in India is carried out by two modes namely hanging by neck till death and being shot to death. The jail manuals of various States provide for the method of execution of death sentence in India. Once death sentence is awarded and is confirmed after exhausting all the possible available remedies the execution is carried out in accordance with section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death. It is also provided under The Air Force Act, 1950, The Army Act 1950 and The Navy Act 19572 that the execution has to be carried out either by hanging by neck till death or by being shot to death.
RELATED PROVISIONS OF Cr.P.C.
Section -354(3),(5) -requires that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall the state reasons for such sentence. Further, when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
Section-366-When the court of session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. The court passing the sentence shall then commit the convicted person to jail custody under a warrant.
Section-367-When such proceeding are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon, any point bearing upon the guilty or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the court of session. The inquiry contemplated under s.367 would take in the examination of the accused under S.313(1)(a).When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such court. Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken.
Section-368-No order for confirmation shall be made until the period allowed for preferring an appeal has expired, or if any appeal is presented within such period, until such appeal is diposed of.
Section-369-It provides that in every case so submitted, the confirmation of the sentence, or any new sentence or order passed by the High Court, shall when such court consists of two or more judges , be made, passed and signed by at least two of them.
Section-370-Where any such case is heard before a bench of judges and such judges are equally divided in opinion, the case shall be decided in the manner provided by S.392.
Section-371-In cases submitted by the court of session to the High Court for the confirmation of a sentence of death, the proper officer of the High Court shall ,without delay, after the order of confirmation or other order has been made by the High Court, send a copy of the order under the seal of the High Court and attested with his official signature, to the court of session.
Execution of Death Sentence
Section-413-When in a case submitted to the High Court for the confirmation of a sentence of death, the court of session receives the order of confirmation or other order of the High Court thereon, it shall cause such order to be carried into effect by issuing a warrant or taking such other steps as may be necessary.
Section -414-When a sentence of death is passed by the High Court in appeal or in revision, the court of session shall, on receiving the order of the court, the court of session shall, on receiving the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.
Section-415-(1)Where a person is sentenced to death by the High Court and an appeal from its judgment lies to the supreme court under sub cl. (a) or sub-cl (b) of cl.(1) of Article 134 of the constitution, the High Court shall order the execution of the sentence to be postponed until the period allowed for preferring such appeal has expired, or if an appeal is preferred within that period, until such appeal is disposed of.
(2)Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes an application to the High Court, and the person sentenced makes an application to the High Court for the grant of a certificate under Art. 132 or under sub-cl.(c) of cl. (1) of Article134 of the constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High Court , or if a certificate is granted on such application, until the period for preferring an appeal to the Supreme Court on such certificate has expired.
(3)When a sentence of death is passed or confirmed by the High Court, and High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to appeal under Articles 136 of the Constitution, the High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition.
Section-416-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.
Legality of Death Sentence
In the case of Jagmohan V/s State of U.P the question of constitutional validity of Sec. 302, I.P.C. was discussed in detail by the SC. Apart from the constitutional validity, the SC also discussed position in other countries, the structure of Indian Criminal law, various policies and bills proposed in the parliament , the extent of Judicial discretion etc. On the question of constitutional validity the Court observed:-
" The Cr.P.C. requires that the accused must be questioned with regard to the circumstances appearing against him in the evidence . He is also questioned generally on the case and there is an opportunity for him to say whether he wants to say ....... In important cases like murder, the Court always gives a chance to the accused to address the Court on the question of Sentence. Under the Cr.P.C. after convicting the accused, the Court has to pronounce the sentence according to law.........."
On all these grounds the SC rejected the argument that under Sec. 302, I.P.C., life of convict is taken without any procedure established by law & therefore, it violates Art. 21 of the constitution. Thus , the SC settled this controversy long back in 1973. However even after Jagmohan's case this question came up again and again.
The SC reviewed Jagomhan's Case in the case of Bachan Singh Vs. State of Punjab because after Cr. P.C. 1973 , death sentence ceased to be the normal penalty for murder [ 354 (3)]. Another reason was that Maneka Gandhi's case gave a new interpretation to Art. 14,19 and 21 and their interrelationship . Main issues before the SC were constitutional validity of Sec. 302 of the I.P.C . as well as constitutional validity of Sec. 354 (3) of Cr.P.C..
Reasonableness of Death Sentence
The SC in the case of Bachan Singh Vs. State of Punjab observed- ".......if not withstanding the view of the abolitionists to the contrary , a very large segment of people, the world over, including sociologists , legislature , Jurists , judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion canalized through the peoples representatives in parliament, has repeatedly including the one made recently to abolish or specifically restrict the area of death penalty, if death penalty is still a recognized legal sanction for murder or some types of murder in most of the civilized countries in the world , if the farmers of the Indian constitution were fully aware of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th report and subsequent reports of law commission suggesting retention of death penalty, and recommending revision of the Cr.P.C. and the insertion of the new sections 235 (2) and 354 (3) were before the Parliament when it took up revision of the Cr.P.C., it is not possible to held that the provision of death penalty as an alternative punishment for murder, in sec. 302, Penal Code is unreasonable and not in the public interest. The impugned provision in Sec. 302 , violates neither the letter nor the ethos of Article 19" . [ Para 132]
Whether death Penalty serves any penological purpose?
The SC in the case of Bachan Singh Vs. State of Punjab considered a no. of opinions from all over the world . Out of them, the opinion of Sir James Fitziames Stephen, the great Jurist, who was concerned with the drafting of I.P.C. is very important to mention-
" No other punishment deters man so effectually from committing crimes as the punishment of death . This is one of those propositions which is difficult to prove simply because they are in themselves more obvious than any proof can make them.
In any secondary punishment, however terrible, there is hope, but death is death, it's terrors cannot be described more forcibly. " These views are very strong answers to the people who oppose death punishment with the arguments that it does not serve penological purpose.
When can Death Sentence be granted
As have been stated earlier, after Cr.P.C. , 1973, death sentence is the exception while life imprisonment is the rule. Therefore, by virtue of section 354(3) of CR.P.C., it can be said that death sentence be inflicted in special cases only. The apex court modified this terminology in Bachan Singh's Case and observed-
" A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.."
Rarest of rare cases
To decide whether a case falls under the category of rarest of rare case or not was completely left upon the court's discretion. However the apex court laid down a few principles which were to be kept in mind while deciding the question of sentence. One of the very important principles is regarding aggravating and mitigating circumstances. It has been the view of the court that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn. Full weightage should be given to the mitigating circumstances and even after that if the court feels that justice will not be done if any punishment less than the death sentence is awarded, then and then only death sentence should be imposed.
Again in Machhi singh vs. State of Punjab the court laid down:-
" In order to apply these guidelines inter alia the following questions may be asked and answered: -
(a). Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favor of the offenders?"
The principles laid down by the apex court were reiterated in it's latest judgment in Sushil Murmu Vs. State of Jharkhand :-
"In rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded."
The SC has also discussed such circumstance in various cases. These
circumstances include: -
# Murder committed in an extremely brutal , grotesque, diabolical , revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
# Murder- for a motive which evinces total depravity and meanness.
# Murder of a Scheduled cast or Scheduled tribe- arousing social wrath ( npt for personal reasons). Bride burning/ Dowry death.
# Murderer in a dominating position , position of trust or in course of betrayal of the motherland.
# Where it is enormous in proportion.
# Victim- innocent child, helpless woman, old/infirm person, public figure generally loved and respected by the community.
If upon taking an overall view of all the circumstances and taking in to account the answers to the question posed by way of the test of rarest of rare cases, the circumstances of the case are such that death penalty is warranted, the court would proceed to do so.
For all the offences, in which death sentence is the punishment, it may be noted that it is not the only punishment, it is the extreme penalty. Thus, these sections, by virtue of their very wordings itself, provide for a discretion which is to be vested in the courts to decide the quantum of punishment. So the ultimate judicial discretion to decide whether death sentence is to be imposed or not , have been vested in courts right from the inception of Penal Code in 1860. However the manner of exercising this discretion has undergone various changes with the changing time and evolution of new principles. There is also a debate going on, about the extent of this judicial discretion.
In Jagmohan's Case the SC held :-
" The structure of our criminal law which is principally contained in the IPC and the CR.P.C. undertakes the policy that when the legislatures have defined an offence with clarity and prescribed the maximum punishment, therefore a wide discretion in the matter of fixing the degree of punishment should be allowed to judges."
Thus the SC was in favour of wide discretion to be given to judges for deciding the degree of punishment.
However, this vide direction was restricted by section 354(3) of Cr.P.C. 1973 which laid down the law that for death sentence special reasons are to be recorded , meaning thereby , that death sentence is to be imposed in special cases only.
In a case the court observed :-
" The discretion to impose the sentence of death or life imprisonment is not so vide after all section 354 (3) has narrowed the discretion . Death sentence is ordinarily ruled out and can only be imposed for special reasons Judges are left with the task of discovering ' Special reasons'.
In the case of Dalbir Singh V/s State of Punjab the court expressing its concern for the way in which this discretion was being used .
" Notwithstanding the catalogue of grounds warranting death sentence as an exceptional measure, 'life' being the rule , the judicial decisions have been differing (and dithering) at various levels with the result the need for a through re-examination has been forced on courts by counsel on both sides" . .
In Bachan Singh's case this problem was solved by the apex court itself to a very large extent.The court observed:
" It is imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along with high road of legislative policy outlined in Sec. 354(3)....."
Need For Guidelines
A brief analysis of the cases decided by the SC. Regarding the question of death sentence over last 25 years, will reveal how differing/dithering the judgments have been.
In Kurami alias Mutha vs. State of Tamil Nadu , the accused was a poor agriculturist and had a wife and five children to support, but considering the murder of two persons as brutal the death sentence was confirmed but this case was before Bachan Singh's case, and till that time the principle of aggravating and initiating circumstances was not laid down.
While, in a brutal and dear case of bride burning the S.C. observed :-
" From the judgment of the High Court, it is apparent that death sentence is awarded more out of anger than on reasons.... Judicial discretion should not be allowed to be swayed by emotion and indignation. Ultimately the death sentence was commuted to life imprisonment."
In 1994, while deciding the case of Anshad Vs. State of Karnataka , the SC Commuted death sentence to life imprisonment while the accused was convict of a brutal, diabolical murder. The sentence was commuted because the SC felt that there are chances of reformation of accused. With due respect to the court's view, it is submitted that there still remains a question creating doubts on such judgments as to how to judge the chances of reformation of an accused in a particular case. However, it can be done on the line of SC's judgment in Javed Ahmed Abdul Hamid passawa VS. State of Maharastra on this case. The death sentence of accused was affirmed in 1983, but later, on the basis of serious atonement., the SC commuted the sentence to life imprisonment .
Then comes the very important case of Mohd. Chaman Vs. State (N.C.T.) of Delhi . In this case a one and half year old girl was raped by the accused, and because of the henious act, she sustained serious injuries and died. H.C. confirmed the death sentence awarded by the sessions Court. But the Hon'ble SC commuted the death sentence into life imprisonment, observing :- "The crime committed is undoubtedly serious and heinous and the conduct of the appellant is reprehensible . It reveals a dirty and prevented mind of a human being who has no control own his carnal desires.... We are not persuaded to accept that the case can be called one of the ' rarest of rare cases' deserving death penalty. We find it difficult to hold that the appellant is such a dangerous person that to spare his life will endanger the community. It is our considered view that the case is one in which a humanist approach should be taken in the matter of awarding punishment "
Can it be said that justice was done ? In order to avoid controversies and to put forward their liberal approach, Judges often change the degree of offence avoiding the guidelines laid down by the apex court itself. This should not happen.It is the basic duty of a judge to render justice in-toto and while doing so he shall not get affected by any surrounding circumstances or controversies which may arise in future . But this is an idealistic approach and cannot be followed completely . Indian legal system is no different and it seems that the judges also get prejudiced with their surroundings and social circumstances ,. This could be the only reason that we see such different approaches being taken by different judges in offences of similar nature.
In the case of Mohd. Chaman, on the question of extent of judicial discretion, the court observed :-
" Such standardization is well nigh impossible . Firstly degree of culpability cannot be measured in any case. Secondly criminal cases canno tbe categorized there being infinite , unpredictable and unforeseeable variations . Thirdly in such categorization, the sentencing procedure will cease to be judicial . And fourthly , such standardization or sentencing discretion is policy matter belonging to the legislature beyond the courts functions" .
Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be said that such wide discretion has resulted into enormously varying judgments, which does not portray a good picture of the justice delivery system. What is needed to be done ; therefore ; is to revise and review the guidelines and principles laid down in cases like Bachan Singh or Machhi Singh, or if it is felt that these guidelines still stand firm and fit perfectly in the present social scenario, then these guidelines have to be strictly complied with, so that the persons convicted for offence of similar nature are awarded punishments of identical degree.
The Indian Supreme Court had another opportunity to rectify its position, when the case of V. Mohini Giri v. Union of India (2002 AIR SCW 5306) was argued before it in 2002. In this case the petitioner had sought "the issuance of a guideline as to what should be the appropriate approach in the cases where one of the judges in the Bench of this Court while hearing an appeal against death sentence, acquits the accused person". The Apex Court declined issuing such a guideline arguing that it would curtail the judicial discretion of the bench.
Death Sentence For The Offence Of Rape
In April 2000 the Government announced it would consider imposing the death penalty for individuals convicted of rape (Hindustan Times 19 April 2000)
Stressing that leniency in punishing grave crimes would have serious consequences the supreme court has awarded the death penality to a man for the rape and murder of a six year old girl.[State Of Uttar Pradesh Vs.Satish 08.2.2005]
The court in its discretion, may take into consideration, the following circumstances as mitigating, on the basis of which the lesser punishment can be imposed:
1. That the offence was committed under the influence of extreme mental or emotional distribution;
2. If the accused is young or old, he shall not be sentenced to death;
3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
4. The probability that the accused can be reformed and rehabilitated ;
The state shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above;
5. That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
6. That the accused acted under the duress of domination of another person;
7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
Mitigating circumstances indicated above are undoubtedly relevant circumstances and must be given great weight in the determination of sentence.
Conviction of a minor
The ordinary sentencing applicable to adults will no longer be applicable in the case of juveniles. The Juvenile Justice Act defines the term "juvenile" as a boy who has not attained the age of 16 years, or a girl who has not attained the age of 18 years. As per sec. 22 of the said Act, no delinquent juvenile shall be sentenced to death or imprisonment or committed to prison in default of payment of fine or in default of furnishing security.
In State of UP Vs Samman Das where the accused were persons below the age of 18, the Supreme court on account of the youth of the accused, imposed the lesser punishment of life imprisonment on them.
Conviction Of A Pregnant woman
Section-416 of Cr.pc. provides "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." This provision is necessitated by the fact that if a pregnant woman is sentenced to death, it would result in the killing of the foetus also. After the child is delivered, if the mother is executed, it will orphan the child and the child will be punished for no fault of hers.
Lesser Sentence To Co- Accused
In cases where there are more than one accused, and murder has been committed by several persons, under section 34 of IPC, the act done by one will be considered to be acts done by all. So if a lesser sentence of life imprisonment is awarded to one accused, then the co-accused should also generally be given the same sentence, unless it can be established that the role of any one of them in the commission of the crime is more that of others.
In Wazir Singh Vs State Of Punjab the Supreme Court held that the distinction made in the matter of sentence between the two accused was not justified. The death sentence of the other accused was also reduced to one transportation of life.
Delay in execution of the death sentence
Delay in execution of death sentence is a factor which may be taken into consideration for commuting the sentence of death to life imprisonment.
In the case of Smt Triveniben Vs. State of Gujarat the Supreme Court held that "....undue long delay in execution of the death sentence will entitle the condemned person to approach this court will under Art 32, but this court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process…..No fixed period of delay could be held to make the sentence of death in executable.
Dhananjoy Chatterjee alias Dhana vs State of West Bengal & Ors..
The appellant, Dhananjoy Chatterjee was found guilty of offences punishable under Sections 376, 302 and 380 of the Indian Penal Code by judgment and was awarded death sentence by the session judge, confirmed by the High Court .A special leave petition was filed by the appellant .Leave was granted but the appeal was dismissed by the supreme court.
Sushil Murmu Vs. State of Jharkhand
A young child of 9 years was sacrificed before Goddess Kali by the appellant for his own prosperity is what the prosecution alleges.The supreme court awarded death penality to the accused.
State of U.P. Vs. Satish
Stressing that leniency in punishing grave crimes would have serious consequences the supreme court has awarded the death penality to a man for the rape and murder of a six year old girl.
Consensus towards abolition
As of June 2004, a total of 118 countries (including Canada, Mexico, Australia, Russia, South American nations and most European nations) have abolished the death penalty in law or practice. Of these, 80 countries and territories have abolished the death penalty for all crimes, fifteen countries have abolished the death penalty for all but exceptional crimes (such as wartime crimes) and 23 countries can be considered abolitionist in practice, i.e., they retain the death penalty in law but have not carried out any executions for the past ten years or more and are believed to have a policy or established practice of not carrying out executions.
Though 78 countries retain and use the death penalty, the number of countries which actually execute prisoners in any one-year is much smaller.
One hundred twenty nations decided to establish a permanent International Criminal Court (which came into force in July 2002) to try individuals for the most serious offences of global concern, such as genocide, war crimes and crimes against humanity. Consistent with international human rights standards, the International Criminal Court cannot impose a death penalty but instead can award lengthy terms of imprisonment of up to thirty years or life when so justified by the gravity of the case.
Non-unanimous death sentence verdicts may thus flout the obligation of nations to ensure the most rigorous standards for fair trials in capital cases.
Unanimity of Verdict: The Global Position
Given the abolition of the death penalty in Europe and a number of other nations including Canada, Australia and Mexico, the question of unanimity has been rendered superfluous in these states. A number of other states which continue to award the death sentence require a unanimous verdict by all judges. Even in countries of the Commonwealth that retain the jury system - Malta, Ghana, Anguillas, Guyana and the Bahamas - a unanimous verdict is essential for a death sentence. Indeed common law follows a strong tradition of commuting a death sentence to life in the case of a non-unanimous verdict.
Though the death penalty is imposed frequently in the United States of America, (more than 900 people have been executed since 1976 and 3500 more await a similar fate), the law is clearly in favour of unanimity. Criminal cases are tried by a twelve member jury and after the landmark judgment in Ring v. Arizona (536 US 584 (2002)), the jurors reserve the power to decide the sentence. No person may be awarded the death sentence except by the unanimous verdict of a twelve member jury (Ch.228, S.3593(e)3 Title 18, Part II US Code). This is the law - in criminal as well as federal cases - in all 38 states that have retained the death penalty.
In US Martial and Military Tribunal Courts, the Uniform Code of Military Justice notes that a death sentence can only be handed out with unanimity of opinion of a five member panel that tries the case. The panel must agree that no other sentence is more appropriate than death. In addition to such safeguards, the convening authority has the power to reduce - but not increase - the sentence and set aside a finding of guilt.
The Law Council of Australia has reported that even the Military Commissions set up to try Guantánamo Bay detainees will follow the same procedure and therefore can only unanimously impose the death penalty. Previously, even the Nuremberg and Tokyo war crimes tribunals set up after the Second World War have required unanimity. (See Law Council of Australia)
In South Asia - Nepal, Bhutan, Sri Lanka and the Maldives have abolished the death penalty either in law or practice. However Pakistan and Bangladesh retain the death penalty and follow the majority rule in awarding death sentences. In the Zulfiqar Ali Bhutto case in the Supreme Court of Pakistan in 1977, the seven-judge bench sentenced the former Prime Minister and former President, Mr. Bhutto to death by a majority verdict with four judges in favour of the death sentence.
With growing international consensus towards abolition of the death penalty, India's continuation of award of non-unanimous death sentences is equivalent to taking steps backward. Fair and reasonable procedure is a vital safeguard for the enjoyment of human rights - more so where people are charged with crimes punishable by death. Under international human rights standards, such accused are entitled to the strictest observance of all fair trial guarantees and to certain additional safeguards. The requirement of unanimity of judges in imposing death sentences could act as an additional safeguard.