Controversy characterises the execution of death sentence in the Yakub Memon case considering the legal community was divided over the penalty. The Supreme Court has acknowledged that its earlier decisions in 13 cases to award the death sentence were a grave error of judgment.
The absence of legal procedure to determine whether the death sentence or life imprisonment is appropriate affords judicial decision makers discretionary power over people’s lives. Therefore the lack of legal clarity gives scope for debate over death penalty.
In 2014, the Supreme Court commuted 15 convicts on death row into life imprisonment in the Shatrughan Chauhan case. It was held that the undue delay by the President to reject the mercy petition of a death row convict amounts to torture.
Further, it was lamented that such inordinate and unexplained delay by the President is sufficient in itself to entitle the convict to a commutation of death sentence. Here, the Apex Court had untenably stepped into the shoes of executive.
Similarly, in other cases, most death sentences have been pardoned either by the President or Governors/ Lt Governors of the states. Former president Pratibha Patil had granted a record 30 pardons in 28 months, of which 22 related to brutal crimes. In 13 cases, the Supreme Court has held the death sentence to criminals have been awarded wrongly.
Invariably, terrorists and brutal killers are awarded the death penalty in the country. Other th-an the 1860 Indian Penal Code, there are 25 offences across different statutes like the 1950 Ar-my Act/ Air Force Act/ 1956 Na-vy Act, 1987 Commission of Sati (Prevention) Act; besides the 1985 Narcotic and Psychotropic Substances Act which are punishable by death sentence.
The Apex Court states that if a murder is “diabolically conceived and cruelly executed”, it would justify the imposition of the death penalty on the murderer. The tools and manner
of their use, horrendous nature of the crime, helpless victim, steal the heart of law for a stern sentence.
If the murder was pre-meditated and involves extreme brutality or exceptional depravity, it merits death penalty. Therefore, punishment by death ought not to be given – except in the rarest of rare cases when an alternative option is unquestionably foreclosed.
Invariably, terrorists and brutal killers have been awarded the death penalty in the country. While the SC has formulated guidelines to commute death sentence into life imprisonment, it may or may not be done on political compulsions.
When the President or the Governor commute death sentence on the advice of the Central or state government, there is no transparency underlying the decision to do so. Interestingly, the Supreme Court itself has the power to revoke death penalty which is based on criterion like age of the accused, the possibility of repentance, compulsion of circumstances and lack of adequate evidence.
From 2001 to 2011, only four death convicts out of 1, 400 were hanged to death. Those were Auto Shankar , Dhananjoy Chatterjee , Ajmal Kasab  and Afzal Guru . Even the Rajiv Gandhi assassins who were on death row got their sentences commuted to life imprisonment. Both Priyanka and Rahul Gandhi advocated the need to pardon their father’s killers.
The UN General Assembly adopted a Resolution in December, 2007 to prohibit death penalty to promote humanism which speaks volumes about this barbaric practice. Similarly, Justice P N Bhagwati has opined against the award of death penalty in 1980 in the Bachan Singh case.
After the Bachan Singh case, the constitutional validity of the death sentence itself was never reviewed by a larger bench of SC judges. It is desirable that the constitutional validity of death penalty must be reviewed by a larger bench of the SC.
However, the Indian Penal Code retains death penalty because gruesome capital offences must be treated seriously and only execution deters potential offenders. The 1967 Law Commission of India report and the Apex Court judgements acknowledged that death penalty serves as a deterrent.
However, sometimes, offenders are able wriggle out of capital punishment through legal presumptions of innocence owing to the benefit of doubt in their favour. To that extent, there is no certainty of capital punishment given the ambiguity in procedural law.
Today District & Sessions judges decide whether death penalty should be awarded or not which is thereafter reviewed by High Court and may be contested at the SC. To that extent, the superior courts only interp-ret the law, while the critical job to obtain evidence related to the case is undertaken at the district level where the highest standards of professionalism may not necessarily be prevalent.
Therefore, the need to establish special courts headed by experienced High Court and Supreme Court judges post-retirement to decide on capital offences.
(The writer is Professor, School of Law, Christ University, Bengaluru)