Death Warrant

WARENTO NESCIUNT MORTEM
DEATH WARRANT/BLACKWARRENT
23-04-2020
M/S.GIRIDHAR & SAI
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ADVOCATE:- BHERU SINGH

DEATH PENALTY
Death penalty is a process where a crime is so grievous has been committed that the
state condemns the act by sentencing the convicted to death. It is only applied in cases
where the crime is of such nature that it cannot be vitiated without a penalty of death. It has existed
since time immemorial, the first recorded instance being that of Hammurabi in the 18 Century
B.C. In the recent past, however, many western cultures have abolished this practice, considering it
grossly inconsistent with human rights requirements. The U.K. and France have both completely
abolished the system, after various succeeding abolitionist movements. The US, however, due to a
fragmented judiciary, has differing opinions on the issue, varying state-by-state. The Federal US
government, however, does use the death penalty, although only in extraordinary cases. In India, the
Bachan Singh case laid down the “extraordinary circumstances” which define whether or not
death sentence was required in the said case. The grievousness of the cause of murder in itself is
not a sufficient grounds to pass capital punishment.
23-04-2020M/S.GIRIDHAR & SAI
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What is the Death Penalty?
The death penalty is a legal process whereby a person is put to death by the state as a
punishment for a crime. The judicial decree that someone is punished in this manner is a
death sentence, while the actual process of killing the person is an execution. A man once
executed for a crime can never be brought back to life. So if any error has crept in while
deciding on a matter, this error cannot be rectified at a later stage.
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HISTORICAL BACKGROUND AND GREAT POLITICAL THINERS
The death penalty may have its origins in human sacrifices. Capital punishment can be traced back
as early as 1750 B.C, in the Lex talionis of the Code of Hammurabi. The Bible too set death as
punishment for crimes such as magic, violation of the Sabbath, blasphemy, adultery, homosexuality,
bestiality, incest and rape. Plato too discussed the scope of the death penalty at length in his laws.
During the middle ages, the death penalty was characterized by particular brutality. Famous thinkers like
Grotius, Thomas Hobbes, and John Locke were also supporters of this form of punishment. The trials by fire,
water etc followed during the 1600s can be said to be a form of capital punishment. In the 19 century, the
abolitionist movement grew with eminent jurists like Bentham and Romilly supporting such ideas.
Michigan in 1846 became the first state to abolish capital punishment followed by Venezuela and Portugal
in 1867. As a goal for civilized nations, abolition of the death penalty was promoted during the drafting of
the UNIVERSAL DECLARATION OF HUMAN RIGHTS IN 1948.
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Position in the United States
Capital punishment was suspended in the United States from 1972 through 1976
primarily as a result of the Supreme Court’s decision in Furman v.Georgia. In this case,
the court found that the death penalty was being imposed in an unconstitutional manner,
on the grounds of cruel and unusual punishment in violation of the Eighth Amendment to
the United States Constitution. The Supreme Court has never ruled the death penalty to be
per se unconstitutional. In Gregg Vs Georgia , however,the court took the view
decides the defendant’s guilt; if the defendant is innocent or otherwise not convicted of first-degree
murder, the death penalty will not be imposed. At the second hearing, the jury determines whether
certain statutory aggravating factors exist and whether any mitigating factors exist, and, in many
jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate penalty –
either death or life in prison, either with or without parole
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Position in the United Kingdom
Around the 17 century, Death penalties were one of the most commonly meted out punishments
in the UK. The common law in The Murder (Abolition of Death Penalty) Act 1965 suspended
the death penalty in England, those days was called “Bloody Code. on 20 May 1998, the House
of Commons voted to ratify the 6th Protocol of the European Convention on Human Rights
prohibiting capital punishment except “in time of war or imminent threat of war.” In October
2003 the UK prohibited capital punishment in all cases. The last execution in England was
carried out in August 1964. Allen and Evans were jury found both men guilty of murder, and
they were both sentenced to death by hanging. After that, the country has not seen any case of
execution though some people were awarded the death sentence they were all reprieved at a later
stage. Thus, we see the transition in common law from aggressively handing out death sentences
to completely abolishing capital punishment.
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TRADITION OF CAPITAL PUNISHMENT
In a "Consultation Paper on Mode of Execution of Death Sentence and Incidental Matters", the Law
Commission of India has discussed the various modes of death sentence through the history of criminal
justice delivery system.
The methods of execution of death sentence discussed in the consultation paper are:
❖ Burning at the stake: It was prevalent in many parts of the world, particularly in Europe. But, it was
considered very cruel and barbaric. The last legal execution by burning at stake took place at the end of
the Spanishi Inquisition in 1834.
❖ The wheel: A person could be attached to the outer rim of the death wheel and then rolled over sharp
spikes or down a hill to his death.
❖ Guillotine: Named after the French doctor Joseph Guillotine who proposed this method, guillotine was
carried out by decapitation of the convict. It was considered less painful and quick. 23-04-2020M/S.GIRIDHAR & SAI
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❖ Hanging and the garotte: It was a two-step execution depending on whether the sentence intended torture or not for
certain crimes. A convict could be hanged with a noose and die of fracturing of the neck. If torture was intended in the
sentence, the garotte was used. It involved mechanical device such as a rack or a gag to be tightened around the
convict's neck, causing slow strangulation, stretching, and obstruction of blood vessels.
❖ Headman's axe: It involved decapitation of the convict executed with an axe or sword.
❖ Firing squad: It is still an execution method in many countries. The convict, blindfolded, is usually tied to a pole with
hands or to a chair. A team of executioners is used to fire bullets aiming at his heart.
❖ Gas chamber: The convict is kept in an airtight gas chamber, which is filled with poisonous gases at a designated time.
Death occurs to convicts in six to 18 minutes.
❖ Electrocution: A convict is strapped to a specially built chair with shaven head and body. A team of executioners
pushes the buttons but only one is connected to actual electrical source.
❖ Lethal injection: Death by lethal injection involves the continuous intravenous injection of a lethal quantity of three
different drugs. This is the most common method in the US. There is an evolving trend in the world in favour of this
method. 23-04-2020M/S.GIRIDHAR & SAI
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Death penalty in India
HANGING AND SHOOTING are the TWO METHODS of death penalty in India. According to the Criminal Procedure
Code, hanging is the method of execution in the civilian court system. The Army Act, 1950, however, lists both
HANGING AND SHOOTING as official methods of execution in the martial court.
Section 163 of the Air Force Act states: "In awarding a sentence of death, a court-martial shall, in its
discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall
suffer death by being shot to death.“ But India is not alone in having shooting as a legal method to execute a death
sentence. Russia, China, Thailand and some states in the US like Utah and Oklahoma have shooting to death as one
of the modes to execute death sentences. Countries world over have adopted different methods for executing death
sentences and these methods range from hanging, public hanging, burning at stake to guillotine, firing squad, gas
chamber, lethal injection and even electrocution.
Crimes punishable by death in India include aggravated murder, OTHER OFFENCES RESULTING IN DEATH,
terrorism-related crimes resulting in death, TERRORISM-related cases not resulting in death, RAPE not resulting in
death, KIDNAPPING not resulting in death, DRUG TRAFFICKING not resulting in death, TREASON, ESPIONAGE and
MILITARY offenses not resulting in death.
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Section 354(3) in The Code Of Criminal Procedure, 1973(3) When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
Section 354(3) of the Criminal Procedure Code, the judge is required to provide “special reasons” for awarding the
death sentence in the first place, and only in the “rarest of rare” cases. However, there is no statutory definition
of “rarest of rare” cases.
The judgments in the Bachan Singh vs State of Punjab play a crucial role in deciding whether any crime deserves
death penalty or not? Death penalty should be imposed when collective conscience of the society is so
shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of
their personal opinion as regards desirability of otherwise of retaining death penalty.”
❑ offences resulting in death are punishable by death only when they meet the “rarest of rare”
The CrPC Section 354(5) states, "When any person is sentenced to death, the sentence shall direct that he be
hanged by the neck till he is dead." 23-04-2020M/S.GIRIDHAR & SAI
10 INDIAN LAWS ON DEATH PENALTY

Position in India
The Indian Penal Code, 1860 awards death sentence as a punishment for various offenses. Some of
these capital offences under the IPC are punishment for CRIMINAL CONSPIRACY (SECTION 120B),
MURDER (SECTION 302), WAGING OR ATTEMPTING TO WAGE WAR AGAINST THE GOVERNMENT
OF INDIA (SECTION 121), ABETMENT OF MUTINY (SECTION 132), DACOITY WITH MURDER
(SECTION 396) AND OTHERS.
The Indian Constitution has provision for clemency of capital punishment by the PRESIDENT. Once the
SESSIONS COURT has awarded death sentence to a convict in a case, it must be convicts under
sentence of death and with appeals HIGH COURT to the SUPREME COURT and applications for special
leave to appeal to that court by such convicts
In India Article 21 of the Constitution titled ‘Protection of life and personal liberty’ says:
No person shall be deprived of his life or personal liberty
except as according to procedure established by law.
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SUPREME COURT ON HANGING
➢ In the Deena versus Union of India case of 1983, the Supreme
Court laid down a test to carry out death sentence. It held that the
execution of death punishment should satisfy the THREEFOLD
TEST:
➢ The act of execution SHOULD BE AS QUICK and SIMPLE AS
POSSIBLE and free from anything that unnecessarily sharpens the
poignancy of the prisoner's apprehension.
➢ The act of the execution should produce IMMEDIATE
UNCONSCIOUSNESS PASSING QUICKLY INTO THE DEATH
➢ It should be DECENT.
➢ It should NOT INVOLVE MUTILATION.
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IS DEATH PENALTY CONSTITUTIONAL?
 The Mithu vs State of Punjab judgment states that death penalty is not a
mandatory punishment for the crimes. The Supreme Court had also ruled that
mandatory death penalty is UNCONSTITUTIONAL.
 Section 416 of the CrPC says if a woman sentenced to death is found to be
pregnant, the high court shall order the execution of the sentence to be
postponed and may, if it thinks fit, commute the sentence to IMPRISONMENT
FOR LIFE.
 The Supreme Court has also held that mental illness is a “mitigating factor”
sparing those with such disorders from the gallows.
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Is death by hanging dignified?
A convict is entitled to die "in peace and not in pain“
The execution of death sentence by hanging is an inhuman and cruel act that
violates "the fundamental right of a death convict. The Supreme Court in its
judgment in Gian Kaur versus State of Punjab held that Article 21 of the
Constitution is also available to a death convict. It had ruled that "the right to die
by a dignified procedure of death is a fundamental right.. Justice Bhagwati in
1982 case of Bachan Singh versus State of Punjab. Justice Bhagwati had then
held that hanging a condemned prisoner involved intense physical pain,
suffering, mental anguish, psychological strain and physical agony. According
to Justice Bhagwati, execution of death sentence by hanging was "cruel" and
inhuman".
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abolish hanging as death penalty, bring in
shooting or lethal injection?
o Gian Kaur vs State of Punjab (1996), the Supreme Court had held that "the
right to life, including the right to live with human dignity, would mean the
existence of such a right up to the end of natural life. This also includes the
right to a dignified life up to the point of death, including a dignified procedure
of death. In other words, this may include the RIGHT OF A DYING MAN TO
ALSO DIE WITH DIGNITY WHEN HIS LIFE IS EBBING OUT."
o Drawing a comparison, while in hanging the entire execution process takes
more than 40 minutes to declare a prisoner to be dead, the shooting
process involves not more than a few minutes. In case of intravenous lethal
injection, it's all over in five minutes.
o Malhotra said the Law Commission's view was that developed as well as
developing countries have replaced the execution by hanging with intravenous
lethal injection or shooting, "which is most acceptable and humane method of
executing death sentence involving less pain and suffering to a condemned
prisoner".
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DISCUSSION OF LANDMARK CASES DEALING WITH THE DEATH
PENALTY IN INDIA
❖ JAGMOHAN SINGH V. STATE OF U.P which was the first case dealing with the question of
constitutional validity of capital punishment in India. The counsel for the appellant, in this case,
put forward three arguments which invalidate section 302 of the IPC.
❖ Firstly that execution takes away all the fundamental rights guaranteed under Clauses (a) to (g) of
Sub-clause (1) of Article 19 and, therefore the law with regard to capital sentence is unreasonable
and not in the interest of the general public.
❖ Secondly that the discretion invested in the Judges to impose capital punishment is not based on any
standards or policy required by the Legislature for imposing capital punishment in preference to
imprisonment for life.
❖ Thirdly, he contended, the uncontrolled and unguided discretion in the Judges to impose capital
punishment or imprisonment for life is hit by Article 14 of the Constitution because two persons
found guilty of murder on similar facts are liable to be treated differently one forfeiting his life and
the other suffering merely a sentence of life imprisonment.
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❖Lastly, it was contended that the provisions of the law do not provide a procedure for trial of
factors and circumstances crucial for making the choice between the capital penalty and
imprisonment for life. The trial under the Criminal Procedure Code is limited to the question of
guilt. In the absence of any procedure established by law in the matter of sentence, the protection
given by Article 21 of the Constitution was violated and hence for that reason also the sentence of
death is unconstitutional.
❖After looking into the arguments the FIVE-JUDGE BENCH UPHELD THE CONSTITUTIONALITY OF
THE DEATH PENALTY and held that deprivation of life is constitutionally permissible for being
recognized as a permissible punishment by the drafters of our Constitution.

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Ediga Anamma v. State of Andhra Pradesh which followed justice krishna iyer commuted the death sentence to
life imprisonment by citing factors like age, gender, socio-economic background and psychic compulsions of the
accused. it was laid out in this case that apart from looking into the details of the crime and deciding based on the
extent of violence committed the judges should also look into the criminal and his condition or haplessness while
committing the crime. justice krishna iyer in support of life imprisonment over capital punishment said: “a
legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have
sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent
creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”

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These cases were followed by THREE important developments. Section 354 (3) was added to the Code of
Criminal Procedure, 1973 which clearly laid down that in conviction for cases which are punishable either
with death or life imprisonment, the judgment shall state the reasons for award of the punishment and in
the event that it is death sentence mention the special reasons for that decision. This made the lesser
punishment the rule and death penalty the exception as opposed to the previous situation. Also in 1979, India
ratified the International Covenant on Civil and Political Rights (ICCPR).
Article 6(2) of the ICCPR says: “In countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the present Covenant and to the Convention
on the Prevention and Punishment of the Crime of Genocide.”
Subsection 5 of the same Article says that no sentence of death shall be imposed on anyone under the age of
18 years and none can be carried out on pregnant women. Thus, India was now committed to progressive
abolition of the death penalty. Another major development was the Maneka Gandhi case[xiv] which held that every
law of punitive detention must pass the reasonability test obtained from the collective reading of the

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Mithu v. State of Punjab was another case where the mandatory death sentence under Section
303 was declared unconstitutional and hence invalid. The section was based on the logic that
any criminal who has been convicted for life and still can kill someone is too cold-blooded
and beyond reformation, to be allowed to live. The judges in Mithu’s case held that Section
303 violated the Articles 14 and 21 of our Constitution and so it was deleted from the IPC.
T.V Vatheeswaram v. State of Tamil Nadu and Sher Singh v. State of Punjab the Supreme
Court was faced with the question of delay in execution of the death sentence and whether a
prolonged delay was reason enough to commute the death sentence to life imprisonment. While the
first case laid down that such a situation gave reason enough for the convict to invoke section 21
and get the lesser punishment, the majority in the latter case differed on this point.
Kehar Singh v. Union of India is the famous case where the assassins of Indira Gandhi were
sentenced to death. Kehar Singh was part of the conspirators who planned the murder and did not
actually commit the act. The court held that even this was enough to fall in the rarest case criteria.
This was a widely controversial decision.

Conclusion
 Bernard Shaw, an Irish playwright and a co-
founder of the London School of Economics:
 “Criminals do not die by the hands of the law.
They die by the hands of other men.
Assassination on the scaffold is the worst form of
assassination because there it is invested with
the approval of the society…..Murder and capital
punishment are not opposites that cancel one
another but similars that breed their kind.”
 Margaret Thatcher, Prime Minister of the UK
(1979 -1990) :
 “If we execute murderers and there is, in fact, no
deterrent effect, we have killed a bunch of
murderers. If we fail to execute murderers, and
doing so would, in fact, have deterred other
murders, we have allowed the killing of innocent
victims. I would much rather risk the former. This,
to me, is not a tough call…..All over the country
news stories bemoan and hype the countdown to
execution number 1000, but where are the stories
regarding the ripple effect of the heinous crimes
that these murderers were executed for
committing? ”
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