extraordinary criminal laws – the myLaw.net blog

Apart from the Indian Penal Code, 1860, there are 23 statutes that prescribe the death penalty as a form of punishment in India. The Anti-Hijacking Act, 2016 is the most recent addition to this list.

The movement towards making the death penalty an exceptional punishment began in 1955, after the repeal of Section 367(5) of the Code of Criminal Procedure, 1898, which required courts to record reasons when deciding not to impose the death penalty. Several important substantive and procedural safeguards were then introduced by the legislature and the judiciary to ensure the fair administration of the death penalty.

When safeguards in the CrPC are not available

The Code of Criminal Procedure, 1973 (“CrPC”) requires the court in Section 354(3) to record “special reasons” while awarding the death penalty. It also requires the obligatory confirmation of the death sentence by the High Court. There are however, quasi-judicial bodies with the power to award the death penalty, which are bound only by the procedures prescribed in their parent statutes and not the CrPC. Some of these statutes include the Air Force Act, 1950 (“Air Force Act”), the Assam Rifles Act, 2006, the Defence of India Act, 1971, and the Karnataka Control of Organised Crime Act, 1999. These statutes remain bound by the principles of natural justice (S.N. Mukherjee v. Union of India, 1990 AIR 1984).

An example of a quasi-judicial proceeding that does not follow the procedures contained in the CrPC is that of “court martial”, provided for in the Army Act, 1950, the Air Force Act, and the Navy Act, 1957. The rules of procedure to be followed during a court martial proceeding are prescribed in the respective statutes itself. These procedures do not provide for safeguards similar to those in the CrPC. For example, there is no statutory onus on the court to provide “special reasons” in a court martial proceeding.

In S.N. Mukherjee v. Union of India, among the other issues before a constitution bench of the Supreme Court, inter-alia, were whether reasons are required to be recorded at the stage of (i) recording of finding and sentence by the court-martial; (ii) confirmation of the findings and sentence of the court-martial; and (iii) consideration of post-confirmation petition.

With respect to the first issue, the Court noted that the court martial is not required to record reasons at the stage of recording of findings and sentence. Similar conclusions were reached regarding the second and third issues as well. While these observations were made in relation to the provisions of the Army Act, these observations would hold true for the other two statutes as well since the procedures for court martial are similar.

Relying on the SK Mukherjeee dicta, the Delhi High Court in Balwinder Singh v. Union of India, 64(1996) DLT 385, decided not to interfere with the findings of court martial on the ground of absence of any ‘special reasons’ but commuted the death sentence to imprisonment for life on other grounds.

The petitioner was charged under Section 69 of the Army Act for committing murder. The general court martial found the petitioner guilty and sentenced him to death. This was further confirmed by the Central Government. The petitioner had also exhausted the recourse available to him under Section 164(2) of the Act. Section 164(1) and (2) provide for a remedy against, inter alia, the sentence of a court martial. The aggrieved party can present a petition before the confirming authority, and after that, to the Central Government or the Chief of Army Staff.

The petitioner, therefore, filed a writ petition under Article 226 of the Constitution challenging the above orders, questioning among other things, the absence of “special reasons” in the order of the general court martial, as stipulated under Section 354(3) of the CrPC. The petitioner also raised an argument in the alternative that the requirement under Section 354(3) should be read as a part of natural justice requirements of Article 21 of the Constitution.

The court reiterated the position laid down in SN Mukherjee, and said that the general court martial did not commit any error by not recording any ‘special reasons’ in the case. Similarly, the Court interpreted Section 162 of the Army Act to excuse even the confirming authority from providing reasons while confirming the sentence of death. Regardless, the court observed that if there are any shortcomings in the findings of general court martial or the confirming authority, they could be challenged under Article 32 or Article 226 of the Constitution. The Court failed to make any observation on the argument regarding Article 21 of the Constitution; that giving “special reasons” is essential in a case where death sentence is to be awarded irrespective of the nature of the court or tribunal.

Similarly, Section 64 of the Border Security Force Act, 1968 provides for the establishment of special courts. The General Security Force Court is empowered to pass a sentence of death under Section 72. Chapter VII (Sections 82 to 106), which lays down the procedure for the courts under this Act, does not contain any special procedure (as contained in CrPC) with respect to death sentence. The only additional requirement for passing a death sentence is that it should be passed with a concurrence of at least two-third members of the court. Other decisions of the Court can be passed by an absolute majority. This kind of voting requirement is present in other statutes that stipulate for trial by court martial as well.

Most of the other non-IPC legislations that stipulate death penalty among its punishments follow the special procedures mentioned in the CrPC with respect to the death penalty. For example, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, there is a provision in Section 14 for establishing a special court for trying of offences committed under the Act. However, this court is also bound by the procedures prescribed in the CrPC.

The incorporation of special provisions with respect to the death penalty in the CrPC signifies the legislature’s intent to include additional safeguards that aim at ensuring maximum protection to a person sentenced to death. Considering the general legislative and judicial caution against the death penalty, it is important that a larger bench of the Supreme Court revisit the findings in S.N. Mukherjee. The requirements of giving ‘special reasons’ and obligatory confirmation by the High Court should be made imperative, regardless of the statute under which a person has been sentenced to death.

(Rahul Raman is a Project Associate at the Centre on the Death Penalty, National Law University, Delhi.)

The High Court as trial court in death penalty confirmation proceedings

Is a death sentence rendered by a sessions court final? Are there any checks on the powers of a sessions court over such an important decision? Can the High Court call new evidence in a death penalty proceeding? This note is an attempt for more clarity on these questions. The Code of Criminal Procedure, 1973 (“Code”) under Section 28(2), directs that a death sentence can be passed only by a sessions judge or an additional sessions judge. Further, the Code ensures that a sentence of death passed by a court of sessions (comprising either the Sessions or the Additional Sessions Judge) shall be subject to confirmation proceedings before the High Court exercising jurisdiction over it. Therefore, it is safe to conclude that the death sentence rendered by a sessions court is not final and is subject to the automatic supervision of the relevant High Court.

Sections 366 to 371 of the Code outline the confirmation proceedings before the High Court. In Bachan Singh (1980), the Apex Court noted that these provisions ensure that “the entire evidential material bearing on the innocence as[or] guilt of the accused and the question of sentence must be scrutinised with utmost caution and care by a superior court” considering that the outcome of the case would determine the life of an individual. It is interesting to note that similar confirmation provisions were also found in the old criminal procedure code of 1898 from Sections 374 to 380.

The confirmation process

Once the Sessions Court passes the death sentence, it is bound to refer the proceedings of the case to the High Court under Section 366(1) of the Code. Under Section 366(2) of the Code, a sentence of death cannot be executed unless it is confirmed by the High Court. As opposed to the 1898 Criminal Code, the 1973 Code includes a provision that authorises the Sessions Court to commit the convicted person to judicial custody (that is, jail). The Supreme Court has clarified in Sunil Batra (1979) that this custody cannot be considered equivalent to an imprisonment. The logic behind the provision is probably that the incentive to evade the legal process for a convicted person (sentenced to death by a sessions court) is very high and therefore the provisions seeks to address scenarios wherein the convict is not available for execution of the sentence.

It has been held in a catena of cases, including in State of Maharsahtra v. Sindhi and Jumman v. State of Punjab, that the confirmation proceedings are a continuation of the trial at the Sessions Court. Support for such an understanding can be derived from the fact that Section 366(1) states that the “proceedings” shall be submitted to the High Court unlike the appellate provisions where the factum of appeal lies in the conviction or acquittal or the enhancement of the sentence (Section 374 read with Section 386). There is however, a fundamental distinction between the confirmation proceedings at the High Court and a trial at the Sessions Court. While the Code, under Section 273, creates a general rule that all evidences taken in the course of the trial shall be taken in the presence of the accused, Section 367 states that the general rule in case of confirmation proceedings is that, unless the High Court feels otherwise, the presence of the convicted person is not required even when new evidence is taken. The Supreme Court has suggested that the presence or the absence of the accused does not make a difference at the confirmation stage since the High Court are duty bound to give the matters its utmost and undivided attention. Here, it is pertinent to mention that under the appellate jurisdiction, the Code in Section 391(3), grants the right to an accused (or his pleader) to be present when additional evidence is taken.

The Code also specifies that the confirmation proceedings should be conducted at least in front of a division bench of the High Court. Should there be any difference of opinion, the matter will be referred to a third judge whose decision will determine the final outcome of the case.

In death penalty cases, the normal practice is that the Sessions Court refers the matter for confirmation to the High Court and additionally, the convict files an appeal on his conviction under Section 374(2) of the Code. According to Section 368, the order of confirmation is not given until the appeal is disposed off by the high court. It is also clarified that there is no obligation on the convict that he must appeal his conviction to the High Court. Even if he does not, the constitutional court is duty bound to re-assess the death case.

Powers of the High Court

As discussed above, the power of a high court in confirmation proceedings is considered to be a continuation of trial. It is well settled that in a reference under the confirmation provision, the High Court has to consider the evidence afresh and arrive at its own independent findings with regard to the guilt of the accused, independent of the views of the Sessions Judge. At the same time, the Supreme Court has also cautioned that the conclusion arrived at by a sessions court cannot be completely overlooked.

Section 368 delineates the powers of a high court during a confirmation proceeding. The High Court can do the following: confirm the death sentence, pass any other sentence, annul the conviction but convict the accused of any other offence, order a new trial on the same or amended charge, and finally may also acquit the person. These powers look similar to the powers of the appellate court under Section 386. However, there are some essential differences between the confirmation and appellate proceedings.

Confirmation proceedings versus appellate proceedings

There are three major differences between the power of the High Court when it is seized of a confirmation proceeding and an appellate proceeding under the Code.

First, the reference to confirmation is automatic whereas appeal proceedings are only brought before the court if the distressed party files an appeal (and has a right to file one). A corollary of this situation is that in a criminal appeal, the court can dismiss the appeal if it decides that there is no ground for interference without examining the entire record. On the contrary, the High Court is duty bound to consider the entire evidence on record while confirming a death sentence.

Second, the confirmation court has a power to order further inquiry or take evidence (itself or by a lower court) without indicating any reason for doing so (under Section367(1)) whereas under Section 391(1), an appellate court has to provide written reasons to justify its act of taking new evidence (itself or by a lower court). Further, Section 391 does not empower the High Court sitting in the criminal appellate side to order further inquiry.

Finally, the appellate court has a certain leeway in not providing elaborate reasons should it agree with the findings of the trial court which is absent in confirmation cases. In confirmation proceedings, as written earlier, the High Court needs to come to an independent finding regarding the guilt of the accused and the sentence.

Special legislations and confirmation proceedings

Section 4(2) of the Code empowers the legislature to create separate trial proceedings for offences that are not part of the Indian Penal Code, 1860. There is therefore, a possibility that automatic confirmation proceedings available under the Code could be excluded. The (now repealed) Terrorist and Disruptive Activities (Prevention) Act, 1987 explicitly negated the role of the High Court and provided a direct right to appeal on both facts and law (not confirmation) to the Supreme Court under Section 19. Yakub Memon was hanged under this law and therefore, did not get the benefit of the confirmation proceedings at the High Court. Under the Prevention of Terrorism Act, 2002 (also repealed), the Parliament provided a right to appeal to the High Court both “on facts and on law” which was similar to the confirmation proceedings (but not the same). The same model was followed in the Unlawful Activities Prevention Act, 1967 through the National Investigation Agency Act, 2008 under Section 21. In POTA and UAPA, the cases are not automatically referred to the High Court, rather they must be appealed. The major difference lies in the fact that in the special laws, the appellate court only looks at the points raised by the appellant and does not examine the entire record, unlike a confirmation proceedings which operates independently of an appeal. At first glance, this situation is counter intuitive. One expects increased safeguards when special laws provide for prolonged period of police custody and the reversal of the burden of proof but the opposite situation prevails.

(Nishant Gokhale and Lubhyathi Rangarajan are Associates at the Death Penalty Litigation Clinic, National Law University, Delhi. Amrutanshu Dash is a student in his fifth year at the same law school. The Clinic was an intervenor in Yakub Memon’s case. The views expressed in this article are those of the authors alone.)