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Legislature alone can abolish death penalty: Supreme Court by J Venkatesan

“It is only the legislature which can abolish the death penalty and not the courts. As long as the death penalty exists in the statute book, it has to be imposed in some cases, otherwise it will tantamount to repeal of the death penalty by the judiciary,” the Supreme Court said on Tuesday while confirming the death sentence on an accused for burning to death his wife and three children.

A Bench of Justices Markandey Katju and C.K. Prasad said: “It is not for the judiciary to repeal or amend the law, as that is in the domain of the legislature. The very fact that it has been held that death penalty should be given only in the rarest of the rare cases means that in some cases it should be given and not that it should never be given.”

Writing the judgment, Mr. Justice Katju said: “Section 302 IPC provides the punishment for murder. It stipulates a punishment of death or imprisonment for life and fine. Once an offender is found by the court to be guilty of the offence of murder under Section 302, then it has to sentence the offender to either death or for imprisonment for life. The court has no power to impose any lesser sentence.”

The Bench said: “There is a wide divergence in various countries in the world whether to permit or not permit the death penalty. According to Amnesty International, 96 countries have legally abolished the death penalty, 34 countries have not used it for a considerable period of time while 58 countries have still retained it…Most Asian and Arab countries permit death penalty. As regards the United States of America, some States permit it while others do not.

“The U.N. General Assembly in 2007-08 passed a non-binding resolution calling for a global moratorium of execution with a view to eventual abolition. However, 65 per cent of the world population live in countries like China, India, Indonesia and the U.S. which continue to apply death penalty, although both India and Indonesia only use it rarely. Each of these four nations voted against the U.N. General Assembly resolution. Of the 194 independent States in the world that are members of the United Nations or have U.N. observer status, 42 [22 per cent] maintain the death penalty both in law and practice, 95 [49 per cent] have abolished it, 8 [4 per cent] retain it for crimes committed in exceptional circumstances such as in time of war and 49 [25 per cent] permit its use for ordinary crimes, but have not used it for at least 10 years and have a policy or established practice of not carrying out an execution or it is under a moratorium.”

In the instant case, the appellant Ajitsingh Harnamsingh Gujral was awarded death sentence by a trial court in Maharashtra. The Bombay High Court confirmed the death sentence and the present appeal is directed against this judgment.

Rejecting the appeal, the Bench said: “This Court has held that death sentence should only be given in the rarest of rare cases. In our opinion this is one of such cases. Burning living persons to death is a horrible act which causes excruciating pain to the victim, and this could not have been unknown to the appellant.”