Although the death penalty in India has similarities to the United States, the Indian Supreme Court and

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Although the death penalty in India has similarities to the United States, the Indian Supreme Court and the Presidents of India have successfully halted nearly all executions. How have the Supreme Court and the Presidents of India prevented most executions from occurring?

Introduction

The 'modern' era of the death penalty in India began with its inclusion in the Indian Penal Code (IPC) drafted in the mid-nineteenth century and enacted in 1860 by the British colonial government. It was retained in the law-books after Indian independence in 1947 and the new constitution of 1950. 4 Since then, the number of offences punishable by death in the IPC has steadily increased, including most recently in February 2013 in the context of sexual assaults. 5 In addition there are a number of special legislations (including anti-terrorist laws) and state-specific legislations that allow for capital punishment.6 In tem1s of procedure, the death sentence is ordinarily awarded by a single judge of the trial court. 7 The death sentence must however be confirmed by the High Court. 8 At this stage, the prisoner is deemed to be 'sentenced to death', but can appeal to the Supreme Court and/or apply for executive clemency/mercy to the Laws relating to the Armed Forces, for example the Air Force Act 1950, the Army Act I 950 and the Navy Act 1950 and the India-Tibetan Border Police Force Act 1992; Defence and Internal Security of India Act 1971; Defence of India Act 1971 (s.5); Commission of Sati (Prevention) Act I 987 (s.4(1)); narcotic Drugs and Psychotropic Substances (Prevention) Act, 1985, 1988 amendment (s.31 A); Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA) (s.3(2)(i)); Prevention of Terrorism Act 2002 (POTA) (s.3(2)(a); Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (s.3(2)(i)); Explosive Substances Act I 908, 2001 amendment (s.3(b )); Arms Act 1959, 1988 amendment (struck down by the Supreme Court), (s.27); Unlawful Activities Prevention Act 1967, 2004 amendment (s.16(1)). 7 There are no distinct capital trials such as there are in many countries. Instead the death sentence can be awarded in any conviction for murder in a hearing on sentencing which takes place after the conviction of the accused for the offence. Prosecutors invariably seek the maximum punishment. All persons accused of murder and other serious crimes can avail themselves of free legal assistance but the quality and adequacy of this legal aid raises serious concern.

The state authorities refer the matter to the High Court, irrespective of whether the accused/convict appeals the decision or not. At least two judges of the High Court hear the case and re-examine the evidence that was placed before the trial court. After determining whether the decision to award the death sentence made by the lower court was correct or not, they may confirm the death sentence, commute it to life imprisonment, alter the conviction and punishment to some other lower charge or even acquit the person.

Governor of the State. Once the Supreme Court has refused to admit the appeal, or dismisses the appeal and upholds the death sentence, the prison authorities forward a mercy petition to the Governor of the state. If dismissed or rejected, a second petition is sent to the President of india for a final decision. 9 No execution can take place until I the mercy petition is rejected by the President. 10 The debate on the death penalty in India generally takes place in fits and starts - invariably against the backdrop of a well reported crime or when an execution takes place. The retention of the death penalty and increase in capital-eligible offences in India can be attributed to the death penalty being used as a rhetorical and symbolic device by politicians across party divides and ideologies, as well as by the Government and judges of the Supreme Court. In the current context of terrorism, regular bomb blasts and constant fear of sexual violence and other violent crime, proposals for increased death sentences as a central pillar of a broader hard-line stance on crime appear to have broad public support. Importantly, this support comes not only from the elites and the growing middle class, but also from the poorest in society, who often bear the brunt of violent crime. With 34,305 murders in 2011, India's murder-rate of 2.8 per 100,000 persons remains a significant concern (NCRB 2011, 55). 11 On the other hand, despite many attempts, a death penalty abolitionist movement barely exists in India. Although most civil liberties groups and many human rights organizations oppose the death penalty, the opposition 'in principle' has rarely transformed itself into active mobilization or campaigns against the death penalty. Few political leaders have consistently taken strong positions against capital punishment and institutions such as the National Human Rights Commission have also remained largely ambivalent. The above suggests why capital punishment in India survives. It begins to explain why various Governments have constantly sought to expand the number of crimes punishable by the death penalty, and why judges continue to award death sentences. What it cannot explain is why, despite all of the above, only three executions have been carried out in India between mid-1997 and early 2013, and why there have been significant spells without any executions.

The Incremental Move Away from the Death Penalty

Executions were common in colonial India, particularly in the decades before independence. From 1926 to 1940 the British Indian government executed over 8,240 persons - an average of 550 executions a year (NAI 1946). This increased to 700 per year in the war years from 1941 to 1944 (NAI 1946). From the peak of nearly two executions a day in the early 1940s, the present situation, with hardly any executions since 1997 has not been a sudden phenomenon, but a gradual journey. Table I 0.1 illustrates the incremental reduction in executions in independent India.

Data from 1965-2004 is from the annexe in the reply by S. Regupathy, Minister of State in the Ministry of Home Affairs on 29 November 2006 to Raj ya Sabha Unstarred Question No. 815 by S.S. Ahluwalia. Information from 1948-64 was collated by the author from files of the Ministry of Home Affairs available at the National Archives of india and is available on file. Information from 2005-13 is based on replies from the Ministry of Home Affairs to various petitions under the Right to Information Act - on file with author. 13 The information in this column is a minimum figure- the actual number of persons executed is likely to be much higher, as many mercy petitions rejected would have included more than one person. Also note that although most rejected petitions led to executions being carried out, there are very rare instances where rejection by the President has not led to execution. 14 Note that the actual number of persons affected by these petitions was much higher - as many individuals were covered by a single mercy petition, for example, although seven petitions were rejected in this period, they covered the cases of 12 persons. 15 Although seven mercy petitions (involving 12 persons) have been rejected, only two executions have been carried out as of the time of writing. The remaining ten condemned prisoners have been successful in challenging the rejection of their petition in the Supreme Court. Executions can only be carried out after their legal claims are rejected.

To appreciate the causes of the decline in executions, it is essential to briefly study the various legislative and judicial factors that have influenced the capital punishment discourse in India. The first major reform of the death penalty laws came as part of a series of amendments to criminal law in 1955-56. Since it was first enacted in 1861, until 1956, the Criminal Procedure Code (CrPC) provided the death penalty as the ordinary punishment for murder. Special reasons, in writing, were required where the lesser punishment of life imprisonment ( or transportation for life, as was then possible) was imposed. This requirement was removed from the code in 1955-56 and either the death sentence or life imprisonment could now be imposed without any requirement to give reasons. 16 The impact of this change in the law appears to have been slow to be felt in the courts, as there does not appear to have been a dramatic decrease in death sentences from 1955 to 1964. 17 A study of mercy petitions of the period indicates that the removal of the 'default' death sentence in law did influence the executive's approach to clemency. This is also supported by a marginal increase in commuted petitions in this decade, resulting in a marginal decrease in annual executions from 1955-64 as compared to the previous post independence years. The late 1950s also saw attempts by a few parliamentarians to abolish the death penalty through the introduction of private members bills in both houses of Parliament. Four attempts were made from 1956 to 1962 and under pressure, the government agreed to seek the opinion of the Law Commission of India (an autonomous legal research body which makes recommendations on law reform, and is headed by a former Chief Justice of India). 18 Although the Law Commission's 1967 report rejected calls for abolition of the death penalty, the debate around the issue of abolition, along with the 1955-56 amendments, appears to have impacted the judiciary significantly and the number of death sentences imposed appears to have reduced dramatically in the decade from 1965 to 1974. 19.

In addition to the halving of death sentences imposed, this decade also saw a reversal in the approach of the executive to mercy petitions. 20 Of the mercy petitions disposed, a majority (52.51 per cent) led to commutations - this was much higher than the previous 28.85 per cent (1955-64) and 23.85 per cent ( 1948-54). The cumulative impact of reduced death sentences and increased commutations was the significant two-thirds reduction in the average execution rate in this decade. The average executions per year in 1965-74 had dropped to 49.1 from 148.2 executions in 1955-64. The abolitionist-parliamentarians may not have realized it, but their failed efforts to abolish the death penalty had set in motion a series of circumstances that ensured that the debate on the death penalty had completely changed.2 1 Although the Law Commission recommended that the death penalty be retained in India, it did however concede that improvements were required, including making the death penalty an exceptional punishment (Law Commission of india 1967). As a result, the new Cr PC of 1973 included a provision requiring 'special reasons' to be noted when a death sentence was imposed (Section 354(3)). This was a 180-degree change from the law that existed before 1956 - from being the default and ordinary punishment for murder, the death penalty had become an exceptional and extraordinary punishment in the code itself. In addition to the changes in the code, the Government had also introduced the Indian Penal Code (Amendment) Bill seeking to limit the imposition of the death penalty to a fixed category of cases. On the other hand, the Law Commission's report had also effectively ended any possibility of an early legislative end to the death penalty. The focus of the abolitionists thus moved to the Supreme Court where they found support from a few judges who had their own concerns about capital punishment (AI and PUCL 2008). Although the initial challenge to the constitutionality of the death penalty failed in 1973, the Supreme Court, in a series of judgments, restricted the scope of the application of the death penalty and often intervened to commute death sentences (AI and PUCL 2008). However, with the judges of the Supreme Court divided, eventually a special bench office judges heard the challenge to the constitutionality of the death penalty. The 1980 landmark judgment in Bachan Singh v. State of Punjab determined (by a 4-1 majority) that the death penalty in India was constitutional. It however concluded: 'A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably.

foreclosed'. Rejecting the argument that the death penalty was arbitrarily applied and influenced by the jurisprudence of the US courts, the Supreme Court suggested examples of aggravating and mitigating circumstances that should be taken into account in determining whether a case was 'the rarest of rare' and merited the death sentence. The new CrPC making the death penalty a truly exceptional punishment, and the various judgments of the Supreme Court restricting the imposition of the death penalty had a!Jeady diminished the application of the death penalty in the 1970s. With Bachan Singh having a great impact in the early 1980s, the number of death sentences imposed unsurprisingly dropped significantly for a second successive decade. Yet it is the scale of the decrease that is astonishing- the number of mercy petitions that were disposed in 1975-84 was a remarkable 83 per cent fewer than in the previous decade suggesting a huge reduction in death sentences imposed (average of 17.3 per year compared to 103.4 in the decade before). Inevitably executions too reduced by three-fourths: averaging 12.1 in 1975-84 as compared with 49.1 the decade before.

The Trickle Post-Bachan Singh

The anti-death penalty lobby in the Supreme Court followed up Bachan Singh with the ruling in Mithu v. State of Punjab (1983) where the mandatory death penalty for murder by a life convict was struck down as unconstitutional. However, with many judges of the Supreme Court supporting the death penalty, there was an attempt to backtrack with the decision in Machhi Singh v. State of Punjab (1983). Disguised as a detailed interpretation of the aggravating and mitigating circumstances in Bachan Singh, this judgment effectively sought to enlarge the scope for the imposition of the death penalty. It is arguable that the momentum of Bachan Singh could even have led to abolition, but political events, particularly the armed separatist violence in Punjab, ensured that support for capital punishment resurfaced in Parliament. As it was, both Bachan Singh and Mithu were ignored in 1985 by the enactment of the Terrorist and Disruptive Activities (Prevention) Act (TADA) which included a mandatory death penalty for certain terrorist offences. Although the mandatory death sentence was removed in the amended TADA of 1987, a series of other 'social' laws passed in the late 1980s provided for a mandatory death sentence. 22 The approach taken by Parliament may also have sent a message to the Supreme Court as the backlash beginning with Machhi Singh continued through the 1980s in a series of judgments in which judges of the Supreme Court advocated the death penalty to 'protect citizens from barbaric and brutal crime' in response to 'society's cry for justice' (see for instance, the judgment of the Court in Mahesh slo Ram Narain and ors. v. State of Madhya Pradesh l 987). notwithstanding all these attempts, the impact of Bachan Singh limiting the number of persons sentenced to death remains significant. The number of mercy petitions disposed from 1985 to 1994 fell to an average of 4.5 per year - another 75 per cent reduction from the previous decade - indicating that the number of persons sentenced to death by the judiciary was now very small. Although the percentage of commuted petitions fell, in sheer numbers the administration of the death penalty was now reduced to a very small number of cases. Executions had further reduced to an average of only four per year in the decade 1985-94. Parliament's interest in increasing the scope of the death penalty continued well into the 1990s, albeit not at the same rate as in the mid 1980s. 23 Yet executions continued to remain rarities, reducing even further. Only seven executions were carried out in the decade from 1995 to 2004, six of them in the three-year period 1995-1997, before they virtually came to a halt in mid 1997. One change from past decades to note in the periods 1985-94 and 1995-2004 was the trend of non-disposal of mercy petitions. Thus, unlike in the past; when the lower number of mercy petitions disposed (column 1 of Table 10.1) was reflective of the number of death sentences awarded by the judiciary, this is certainly not the case in 1995-2004. The number of persons sentenced to death in this decade is likely to have been similar to that in the previous decade (1985-94), however post-1997 there was a growing backlog of mercy petitions at the central level as no mercy petitions were finally disposed from 1998 to 2003, and only a few from then to 2009. What caused the non-disposal of mercy petitions which in effect stalled executions in India post-mid- I 997, or capital gridlock, as Johnson and Zimring (2009) put it? There was no government-declared moratorium on executions or even a policy decision to move away from the death penalty. What makes the situation more curious is that when the trickle of executions stopped completely, it was the largely pro-death penalty Hindu nationalist party (Bharatiya Janata Party) that was leading the coalition government. There was no execution in their five years of power. The execution in 2004 took place when the centrist Congress party was leading the government, and in a state ruled by the Communist Party of India (Marxist) which had in the past opposed the death penalty. The capital gridlock occurring in these years appears to be a freak occurrence resulting from a series of unconnected individual actions.

Capital Gridlock': The Role of the Presidents

To understand the Indian death penalty in contemporary times, particular attention needs to be paid to the role played by the incumbent President (Pranab Mukherjee) as well as his predecessors - Pratibha Patil, APJ Abdul Kalam and KR Narayanan. The power of the President with respect to mercy petitions is limited. Mercy petitions, although addressed to the President, are first examined in the Ministry of Home Affairs. The Home Minister makes a recommendation on the mercy petition file and sends it to the President for signing. The President must either accept the recommendation, or return the file once for reconsideration. If it is re-sent with the same recommendation, the President must approve the decision for the cabinet of ministers. Although limited by the law, many holding the highest office have used their moral standing effectively to persuade the decision-making Government to reconsider the particular decision made. The first President of India, Rajendra Prasad (1950---62) used his legal training to great effect and created a strong foundation for the President being more than just a formal signatory in the rejection of the mercy petition (Batra 2009). His successor Radhakrishnan ( 1962---67) was an avowed abolitionjst and also asserted his position regularly in decision-making on mercy petitions (Batra 2009). Much like Prasad, Radhakrishnan and others after him, President Narayanan (1997-2002) took his role in the mercy petition process extremely seriously and exercised his prerogative to seek reconsideration of mercy petitions. After the Biped government was formed in March 1998, Home Minister Advani submitted nine mercy petitions (including one resubmitted) with advice to reject. Probably unwi I ling to sign off on executions he was not convinced about, President Narayan took the unprecedented step of keeping eight petitions pending. 24 He was able to this as there was no time limit laid down within which he was required to accept the recommendation. This effectively allowed President Narayanan some room for manoeuvre and ensured that no executions took place. Despite this however, the virtual end to executions post-1997 cannot be attributed to President Narayanan, who did reject one mercy petition (Govindasami from Tamil Nadu). 25 Curiously, however, the execution did not take place as the Home Minister granted a stay of execution.

This raises an obvious question: Why did the pro-death penalty BJP-led government choose to stay the execution of Govindasami soon after recommending rejection of the petition? Undoubtedly this was an unusual case where the trial court had acquitted the accused, who was sentenced to death by the High Court on appeal. A civil liberties group stressed the fact that in the eight years between the trial court judgment and the high court death sentence, the accused had lived peacefully, remarried, created a family and was therefore not a threat to society. Active lobbying in Delhi was able to convince four ministers of the government to appeal to their colleague in the MHA. Although Home Minister Advani refused to commute the sentence, he granted a stay of execution and Govindasami remained on death row. 26 APJ Abdul Kalam was the next President of india (2002-2007) and he inherited the eight mercy petitions kept pending by President Narayanan. He received five more petitions with recommendations to reject, four of which were sent during the last days of the Government's term, in April and May 2004. President Kalam however appears to have continued where Narayanan left off. No action was taken on the 13 files pending with him till the Government's term was complete. Unwilling to execute Govindasami, and unable to execute in the other cases (kept pending by Narayanan and Kalam); the BJP-led coalition ended their stint in Government in May 2004 without having carried out a single execution. It is ironic that the first ruling party that completed a full tenure in government without executions was one that was pro-death penalty and that had rejected all the mercy petitions. When the Congress-led coalition formed the government in May 2004, nearly seven years had passed without an execution. Yet, almost immediately they were faced with the case of Dhananjoy Chatterjee, which had created a stir in the MHA when the prisoner had been on death row for over ten years due to official negligence. A mercy petition in this case bad been rejected in 1994, but the state government bad not executed Chatterjee and another round overlitigation and mercy petitions took place in 2004. Home Minister Shivraj Patil rejected the petition on 1 July 2004 and President Kalam also eventually rejected the mercy petitions on 3 August 2004. It was widely reported that President Kalam in principle opposed the death penalty, and that he also consulted the Attorney General to discuss the Chatterjee case to see if there was a way out. An inspection of the Chatterjee mercy petition file in the MHA however did not reveal any reference to President Kalam having returned the file to the MHA for reconsideration. Dhananjoy Chatterjee was hanged on 14 August 2004. 27 For seven years, including five during the pro-death penalty BJP-led government, there had been no execution, but they appeared to resume almost immediately after the centrist Congress party came to power in 2004. In a further irony, the left parties' coalition led by the Communist Party of India-Marxist (CPI-M) that formed the West Bengal government strongly supported the execution, despite the CPI-M being one of the few parties that claimed to oppose the death penalty. While the impact of the anti-death penalty initiatives around this case on later mercy petitions is unclear, Chatterjee's execution was not followed by others as had initially been feared. Following the norm of a new government providing fresh advice on pending appointments and other matters, the UPA Government resubmitted all the 13 petitions to President Kalam. The MHA also sent the fresh mercy petition of Govindasami and the petition in the Rajiv Gandhi assassination case, along with five more mercy petition files.

By end September 2005 there were 20 files pending with the President, all of which reportedly carried the recommendation for rejection. Instead of signing the petitions, Kalam publicly voiced his dissatisfaction with the existing system of death sentences and clemency on three occasions in October 2005.28 His views not appear to have had much influence in the MHA or the Government, as more rejected petitions continued to be sent to him (two in 2006 and one in 2007, taking the total to 23). All remained pending when President Kalam ended his tenure in July 2007. Apa1i from Chatterjee, the only petition signed by Kalam was a rare one where the government recommended commutation.29 Like his predecessor, Kalam rejected only one petition during his tenure. Unlike the case of President Narayanan however, this led to an execution. But like his predecessor, he too left a legacy of pending petitions for the next President. Only now, the list of pending petitions had grown from eight to 23 - the backlog had grown. President Pratibha Patil 's load was increased when the MHA forwarded four mercy petitions to reject in 2007-2008. President Patil initially appeared to be following in the footsteps of Narayanan and Kalam in being unwilling to sign rejections of petitions as a matter of course. In November 2007 she returned one of the mercy petitions to the MHA for reconsideration. 30 After 2009, when a new Home Minister announced that the government would re-submit all the pending files -one case a month- in an attempt to clear the backlog, the President disposed of nine more mercy petitions between November 2009 and March 2011 (involving 20 people) - all with directions to commute sentence. A further 15 persons bad their death sentences commuted after President Patil accepted another ten mercy petitions between July 2011 and June 2012. Pratibha Patil's commutations were subject to intense media scrutiny and criticism, forcing the President's Secretariat to officially clarify the limited role played by the President in the clemency process (Presidents Secretariat 2012). Although President Patil also accepted the recommendation of the Ministry of Home Affairs to reject two mercy petitions in May 2011, and a further third petition in August 2011, no executions took place during her presidency. The five prisoners facing execution challenged the rejection of their petition in the Supreme Court, on the grounds that the delay in deciding amounted to a violation of their constitutional rights -final judgments are awaited at the time of writing. Three Presidents - arayanan, Kalam and Patil - effectively ensured that there was only one execution in India for a period of 15 years from mid-1997 to mid-2012. The particular reasons for their decisions are not known, it is unclear whether they were imposing their personal views on the issue or following the diktats of the ruling party. Although some would disagree with their methods, the three Presidents have stretched, but not overstepped, the boundaries of their limited powers with respect to mercy petitions. Their acts, along with the role of the BJP Government in the freakish case of Govindasami ensured that capital gridlock was a dominant feature in the debate on capital punishment in India in the recent past.