Crime and punishment-How a death sentence is awarded

This is the first post in the series titled “ Crime and Punishment”. It deals with real crimes and the punishment awarded by courts. Since capital punishment is in the news, we though it fit to start off the series with this article.

India is one of the countries which impose capital punishment or rather death sentence on persons convicted of brutal crimes. There is dichotomy here on the word brutal crime. All crimes are brutal but please remember we are not on semantics here but legalese-the language of the law.

The Supreme Court of India in several cases, such as Bachan Singh verses the State of Punjab, has laid down the law on what crimes come under this category and the guidelines for awarding death penalty.

The crimes that come under this genre are murder, gang robbery with murder, abetting the suicide of a child or  insane person, waging war against the nation, and abetting mutiny by a member of the Armed force.

Since 1989, the death penalty has also been legal for a second offense of  large scale trafficking of narcotics. Death penalty has been imposed for those convicted for terrorist activities.

When a Sessions court- in India only the Sessions court has the power to award a death punishment- says a person ought to be hanged till death, it also has to see whether the crimes committed comes under the “rarest of rare cases”.

This norm of “rarest of rare” is not an inflexible rule but a broad frame work for the lower courts to be able to understand the gravity of the crime and award punishment.

There are certain norms that has to be satisfied when capital punishment is awarded. The crime must be brutal and it must be premeditated. What this means is that a person should have thought about the crime and planned it knowing fully well what he is going to do. This means the person is fully in his senses and perfectly aware of the crime he is about to do or has done.

Generally speaking, crimes committed on the spur of a moment do not incur capital punishment. Here, the court taken into question the element of surprise or  momentary lapse that led to the crime. Thus, a husband killing his wife in a fit of momentary anger would not qualify for death sentence. However, if the husband has planned his revenge, plotted the death in the most inhuman manner, assaulted and brutalized his wife, the question of a harsher sentence, including capital punishment, comes in.

In India, the process of conviction and sentence is a fairly elaborate process. It starts from the lowest court and goes all the way up to the President of India. Since, we are discussing capital punishment, let us restrict the field to crimes coming under them.

When a Sessions court awards death sentence, the person who is convicted is given an opportunity for appeal. The next court of appeal is the High court of the State where his is accused of the crime.

Even if the convict (unlike what our politicians say on television, a person becomes a convict once the sentence is pronounced by a Sessions Court. This is the first court or original court of sentence. This is so as this court gives a finding based on facts. The rest of the courts, including High Court and Supreme Court, are courts of appeal), does not want to appeal, the court refers the matter to the High Court. This called reference.

When the reference comes up for hearing in the High Court, it is taken up along with the appeal of the convict of any and also of the State. (It is the State that appeals in such cases and not the State Government. For example it is an appeal by the State of Karnataka against XYZ and not the BJP or Congress Government against XYZ).

In the High Court, it is always a Division bench (comprising two judges) which hear death sentences. This Bench first clubs all the appeals-by the State, convict and also others, and issues notices to all the parties. Issuing of notices is the first step in the judicial process.

Once the notices reach the parties, they come to the court to argue the case. The entire case is then heard threadbare as it relates to the life and death of a person. In several cases, the convict is produced before the court and given an opportunity to explain his action and also express regret.

The State is generally represented by the State Public Prosecutor (SPP) who is in charge of  criminal cases in a State. If he is busy he may assign it to one of the senior prosecutors. If the convict does not have an advocate to defend himself, the High Court appoints an amicus curies to help him out. It also pays the advocate from the Legal Services Cell.  

The Bench then either confirms the Sessions Court order or reverses it-giving a much reduced punishment, including life imprisonment. Once the High Court verdict is out, it is left to the convict to either move the Supreme Court or not. Here too, the court examines the brutality of the crime before either agreeing with the High Court verdict or reversing it.

After the Supreme Court, the convict still has a chance. He can file a mercy petition before the President of India. Once he files a mercy petition, he cannot be hanged till his plea is disposed of.

If the President turns down the plea, the convict still can appeal against this as the President’s action is subject to judicial review.

In India, though death sentences have been awarded, they have been rarely carried out. After 1005 till 2004, there was not a single case of  hanging though courts in almost all states awarded the death penalty.

In 2004, Dhananjoy Chatterjee of Kolkata was hanged for brutally raping and murdering a girl. After that there was along gap till Ajmal Kasab was hanged at the Yerwada jail in Pune and Afzal Guru two days ago in Tihar Jail.

So far, India has hanged 310 convicts. Kasab was the 309^th convict and 52^nd after Independence. Afzal Guru was the 310th convict.

(Next article to feature the life of a convict on a death row)