PROCEDURE AND REMEDIES AVAILABLE FOR DEATH-ROW-CONVICTS

8 min readMar 27, 2021

India is amongst those few countries which retained the death penalty and continue to practise the same. In 2007, India voted against the United Nations General Assembly Draft Resolution, calling for the general suspension of the Death Penalty throughout the world. The death penalty is the highest degree of punishment awarded in India. Section 354(5) CrPC,1973 provides for the mode of execution hanging by the neck until the person dies. In India, the death penalty is awarded under the IPC, Sati, NDPS, POCSO, etc.

Additional Sessions Judge Yogesh Khanna in the infamous Delhi gang-rape case-
“There should be exemplary punishment in view of the unparalleled brutality with which the victim was gang-raped and murdered, as the case falls under the rarest of rare category. All be given death.”

CrPC Section 28(1) empowers the High Court to award any sentence authorised by law. CrPC Section 28(2) empowers a Sessions Judge to pass any sentence authorised by law but, the death sentence is subject to confirmation by the High Court under Section 366 of the CrPC,1973.

In Maneka Gandhi V Union of India, 1978 — The procedure which takes away the sacrosanct life of a human being must be just, fair and reasonable.

Further, Under Section 368 of CrPC, the High Court-

Confirm the sentence of death
Annual the conviction or amend the charges or order a fresh trial
Acquit the accused person.

CrPC Section 369 states that in case of a confirmation or new trial to be signed by at least two judges. If the judges divided in opinion(Section 370), referred to other Judges of the same courts (Section 392 CrPC).

Section 371 of CrPC provides that the order is to be sent by the Sessions Court to the High Court for the confirmation of the death sentence.

According to CrPC Section 413, if the High Courts confirm the sentence, the session courts shall make necessary arrangements to execute the punishment.

Knocking at High Court Doors-

If the Sessions Judge does not award the death sentence in any case, the aggrieved party under Article 226 of the Constitution can move the High Court.

Section 407 of the Code of Criminal Procedure empowers the High Courts to transfer cases and appeals from the sessions court. After examining the case, the courts check whether the offence committed falls under the doctrine of Rarest of Rare.

When the High Courts award a death sentence appeal, the Sessions court shall execute the order (CrPC Section 414).

Knocking at Supreme Court Doors

If the High Court confirms the death sentence, the convicts can approach the Supreme court under Article 32, 134 and 136 of the Constitution but within 30 days of the judgement. The SC within its powers hears the matter and duly examines all the facts, evidence, circumstances, aspects of the case. After the hearing, The Supreme court followed the guidelines laid in the Bachan Singh case and principles of Machi Singh- Rarest of Rare, and the act caused a tsunami of shock in the mind of people, which shocked the collective conscience of society.

In Bachan Singh V State of Punjab, 1980, SC- Supreme Court emphasized on two question to be considered that before awarding the death sentence

Was there anything uncommon about the crime?

Circumstances of crime show its brutality to such an extent that accused must be penalized with death penalty.

In Macchi Singh and ors v. State of Punjab, 1983, SC- According to court the five category of murder through which the doctrine of ‘rarest of rare’ case shall be considered are:-

a) Motive;

b) Manner of commission;

c) The extent of crime;

d) Anti social or repugnant nature of crime;

e) Personality of victim.

Section 415 of the CrCP: Postponement of execution sentence of death in case of appeal to the Supreme Court against High court order.

Section 416 of CrPC Postponement of capital sentence on a pregnant woman- If a woman sentenced to death is found pregnant, execution shall be postponed or commuted to life imprisonment by the High Court.

Review Petition

The Supreme Court’s final order is subject to be reviewed. The convict can file the Review Petition in the Supreme Court. The provision of review is an exception to the principle of stare decisis as courts do not unsettle any decision.

The Supreme Court, under Article 137 and rules made under Article 145 can review its judgement.

Purpose of Review Petition

The Supreme Court of the country has the authority to review its rulings to correct a potent error and not minor mistakes of inconsequential importance. The review petition is an appeal in disguise, which means the Courts are allowed not to take fresh stock of the case but to correct grave errors that have resulted in the miscarriage of justice. According to the Supreme Court Rules, 1966 petitions to be submitted within 30 days of the pronouncement of judgement.

In certain circumstances, the courts can condone the delay in filing the review application if a petitioner can establish strong reasons that justify the delay.

Grounds for Review Petition

The Supreme Court does not need to entertain every review petition

The discovery of new and important matter or evidence, which, after the exercise of due diligence, was not within the knowledge of the petitioner or not be produced by him;
Mistake or error plain on the face of the record;

Review petitions are ordinarily entertained without oral arguments by lawyers. In exceptional cases, the courts also allow an oral hearing.

In Mohd Arif V Reg. Supreme Court of India, 2014, the Supreme Court held review petitions in all penalty deaths will be heard in open courts. Before this judgement, they were listened, inside the chambers.

In the infamous Nirbhaya case, Pawan Gupta, one of the four death-row- convicts, filed a review petition in the Supreme Court. In the petition, he asked the court to review his petition, which states that he was a juvenile at the commission of the crime, the apex court has dismissed the plea.

Curative Petition:

A curative petition is the last judicial corrective measure in the Supreme Court. A curative petition is a remedy after the Review Petition is rejected. It is rare rather than regular. The Curative Petition decided by Judges, in-chamber but open-court hearing is also allowed. There is no time limit for filing a curative petition. Article 137 of the Constitution supports the Curative Petition.

The concept of Curative Petition evolved in the landmark judgement of Rupa Ashok Hurra V Ashok Hurra and Anr, 2002, SC.

An aggrieved party is entitled to relief after the rejection of the Review Petition by the Supreme Court.

PURPOSE OF CURATIVE PETITION

The purpose is to prevent abuse of process to cure miscarriage of justice, to reconsider its judgments. So, they devised the term curative for this purpose.

Grounds to entertain Curative Petition:

There is a genuine violation of the principles of natural justice.
The appeal dismissed in circulation, and relevant grounds, are not considered.
The curative petition shall be certified by the senior advocate;
The curative petition is circulated to the three senior-most judges and to the judges who passed the impugned judgement,
The bench at any stage of consideration of the Curative Petition can consult the senior counsel to assist it as Amicus Curiae i.e. Friend of the Court,
If most judges agree to a hearing, sent to the same bench,
The courts can impose exemplary costs if the petition lacks merits.

In 2014, Nirbhaya case, Pawan Gupta, death-row-prisoners, filed the curative petition, against the dismissal of his juvenility claim. A six-judge bench headed by Justice NV Ramana dismissed the plea stating that no such case is made.

Mercy Petition

In the Indian Judicial System, Mercy Petition is the last resort for death-row convicts to avoid the death penalty. After the convicted person has exhausted all remedies available, they may file for the Mercy Petition. The Constitution has empowered President and Governor Article 72 and 161, respectively, to grant Pardons.

Pardoning Power of President and Governor-

Article 72 empowers the President to grant pardon, reprieves, respites, remissions or commute sentences in the following cases:

In every case where the sentence is by Court-martial,
Where the punishment for an offence against any law related to the matter executive power of the Union extends,
In all cases, where the death penalty is a punishment.

Article 161- Gives powers to the Governors of States to grant pardons, reprieves, respites or remission of punishment or suspend, remit or sentence of a convicted person of an offence against a law relating to which the executive powers of the State extend.

President Ram Nath Kovind rejected the Mercy Petitions of Mukesh Singh, Akshay, Pawan and Vinay Sharma, the death-row-convict of the Nirbhaya Case (Mukesh and Anr. V State for NCT Delhi and Ors, 2014)

Difference between the Pardoning Power of the President and Governor

The scope to grant pardoning power of the President(Article 72) is much broader than the Governor(Article 161). Powers differs in the following two ways:

The power to grant pardon extends in cases where the punishment is by a Court Martial but Article 161 does not provide any such right to the Governor.

The President can grant pardon in all cases where the death penalty is an award.

Purpose of the Mercy Petition

The philosophy underlying the pardon power is that every civilised country recognises and provides for pardon. The pardoning power is founded on the consideration of public good and on the grounds of public welfare, which is the legitimate objective of all punishments. The plea is for considering the mitigating circumstances, which the court failed to consider.

Grounds for Mercy Petition:

The person or anybody, including a foreign national, can send a Mercy Petition concerning the President’s Office or the Ministry of Home Affairs requesting for the grant of pardon. These grounds do not have any value in law, but they play a crucial role in exonerating the accused person from the offence.

The socio-economic circumstances of the person put to death,
The convicted person is the only bread earner of the family,
The physical and mental fitness of the death row inmate,
The age of the prisoner,
The Court, by chance, committed any mistake or error inadvertently,
The good conduct of convicted inside the jail,
Number of family dependants including ailing parents,
The probability of reformation not considered, leading to a gross miscarriage of justice

Grounds to entertain Judicial Review against the Mercy Petition.

In Epuru Sudhakar v. Government of Andhra Pradesh, the Supreme Court has held that the pardoning power of the President under Article 72 is subject to Judicial Review on the following grounds: -

(a) The order has been passed without the application of mind;

(b) The order is mala fide and biased.

(d) The relevant materials were unduly considered.

(e) The order suffers from arbitrariness and violates constitutional provisions.

In Vinay Sharma V Union of India, it was contended that the President did not apply his mind while considering the appeal and the decision was made in a Mala Fide manner.

The apex court held, when the highest constitutional authority has decided to reject the appeal, it cannot be contended that the highest authority has not applied its mind.

Other Provisions for the Pardon

Criminal Procedure Code,1973 :

Under section 432, 433, and 433A- An appropriate Government, at any time, suspend remit, commute the sentence.
In Balwant Singh & Anr. V State of Punjab- The Ministry of Home Affairs under CrPC,1973 Sections 432 and 433 commuted the death sentence of Balwant Singh to life imprisonment.
Section 435- The State Government, after the consultation with the Central Government, can commute and remit the death penalty.

The Indian Penal Code,1870

Section 54- The Appropriate Government may commute the death sentence.