 in this regard. And he acceded to our request to take things forward in this aspect. And he has also taken certain webinars with the Baad Council of Kerala and he has also taken one of our sessions on the overview of the rape law. As such, his sessions are quite immensely popular. Without taking much time, I would request Mr. Ralph to take things forward, the battle is all his. Thank you, sir. Thank you for inviting me again to this platform. Thank you. Today our subject is an overview of death penalty in India. As you all know, it is a very vast subject and covering this subject in an hour. It is a herculean task. Anyway, we will have an overview of the scenario with special emphasis on the Indian scenario. First of all, as you all know, there are so many debates world over whether it is to be abolished or not, totally abolished or not. And the latest studies shows that 107 countries have abolished it completely. And seven countries like India are retaining it, not seven countries, 27 countries like India abolished this in practice. So they are maintaining the same in the statute, but practically not hanging anyone. That is the situation in 27 countries. Seven countries have abolished for ordinary crimes and they have retained the penalty for war crimes at all. And 54 countries retains its as a punishment in the statute. So that is a worldwide scenario as far as this death penalty is concerned. And Venezuela was the first country in 18 and then as early as in 1863, they have abolished the descendants and the latest is Kazakhstan. In 2021, they have abolished the descendants. So this is the situation world over in the international scenario. India is a signatory to the second optional protocol, but they have not signed the second protocol which was introduced in 1991. So India has made the stand so clear that India is not going to abolish it in the recent past. Though the latest locomotion recommendations are towards evolution, but India has decided to make it in the statute. In 2007, India voted against the UN General Assembly calling for moratorium on death penalty. That was introduced in 2007. At least a moratorium was called for, but India refused to sign it. In 2012 again, there was a draft resolution seeking ban on death penalty that also India refused to sign. So that is the stand of the India in the UN regarding the abolition of death penalty. I will come to that in the latest locomotion report. I will come at the end of the session. Now the history of the hanging or the debates in India can be, we will have an overview. The first hanging happened in 16 knots in India, in the British India and that time the East India Company was doing the business in India and they were not permitted to do any executions. Capital punishment was not possible in those times, but at that time, one Englishman was killed by another man near the port, Surat. Surat port there was a murder and permission was granted to the captain of the ship. I think the name of the ship was Charles. The captain of the ship was given permission by the QN and the trial was held in the ship and the hanging was there in 16 knots. That is the first recorded history of the British, in the British era. And as you all know in 1860, we had the IPC and section 302 provides the descendants and many other sections, not only 302, there are so many sections, I think nearly 12 sections are there. And after the hanging of Bhagat Singh and his colleagues Raju Guru and Sudhev Singh in 1931, the first bill was introduced in the legislative assembly in 1931. That was by Gaya Prasas Singh from Bihar. That was the first bill which was introduced in the parliament in 1931. Obviously, that was defeated and at that time in 1937, Gandhi wrote in hydrogen against the penalty and he says that this is the famous coating, crime is a disease and it should be treated. That was a famous coating by Gandhi that was published in hydrogen. And from that period, from the influence of Gandhi, that there were so many discussions whether it was to be abolished or not. But by that time in 1955, CRPC amendment was there and CRPC amendment in 1955 was a very important amendment. And before the 1955 amendment, death was the usual normal sentence for 302 and life sentence has to be given in rare cases or special cases. The 1955 amendment said that life sentence should be the normal sentence and death can be given in special with reasons, reasons to be recorded for demanding death sentence. So, that was a situation in Indian law after the amendment of 1955. And in the same year, immediately after the amendment, one Mukundala Lagarwal and UPMP moved a private bill for abolishing death penalty. And in 1957, after 2 years on the Prithiraj Kapoor, the Norton film actor, he was a member of the Natchez Abba. He moved a resolution asking that government to reconsider the death penalty norms. But the main, the thrust was in, came in 1961. In Savitri Nagam, Savitri Devi Nagam of UP, she moved another resolution on the basis of the finding of the Royal Commission of Capital Punishment. So, as you all know, the British Royal Commission was established, I think it was 1949. During the period of 1949-53, they submitted a report. And they were against the death penalty and they have decided to abolish the death sentence. So, on the basis of that, 1961, Savitri Devi Nagam moved this. And in 1962 also, Lok Sabha member Raghunath Singh also moved a resolution. And on the basis of which, his express was that it should be referred to the Law Commission for recommendations. And thus, the 1935th Law Commission was not established, was interested with the task of studying the subject on death penalty. So, but after the assassination of Gandhi, the scenario in India changed. When the 1931, when Bhagasin was hanged, the public cry was against the sentence. But when Gandhi was assassinated, it has changed. It was towards death penalty. Though the public cry was in favor of death penalty and the public, most of the politicians wanted that penalty to be, should be in the statute. Why? Because obviously, because of the fact that the Gandhi was assassinated. And as you know, the further complications after the assassination and the ensuing trial and the hanging of God stand out. So, the public cry was against abolition. So, that was the historical, the debates happened in parliament during this period. And in the, but after the, after those, during those period, there were no serious petitions were before the Supreme Court regarding the constitutional validity of the death sentence. But in 1970s, during 1970s, there was a famous case in the US Supreme Court. And on the basis of this, on the base of the Eighth Amendment, on the base of Eighth Amendment, Eighth Amendment of the US Constitution reads like this, excessive bail shall not be required, nor excessive fine imposed, nor cruel and unusual punishment inflicted. That was the Eighth Amendment came in 1970, 1991. But it was taken up in the US Supreme Court in the early 70s. But Supreme Court, US Supreme Court said that it is, it is not cruel or unusual. So, they have decided to maintain it in the statute. At the same time, immediately after that, Indian Supreme Court had the occasion to consider the constitutional validity. That was in 1973 Supreme Court in Jack Mohan Singh. I shall give the citations. I think I can give citations later. Jack Mohan Singh was, 1973 Supreme Court, 947. 1973 Supreme Court, 947, Jack Mohan Singh, that was rented by Palaykar. So, six bench ruling. I am referring only two or three decisions around. So, this was the first serious challenge before the Supreme Court regarding the validity of the, constitutional validity of the death penalty. And in 1974, when Adiga Anandma was rented by Justice V. R. Krishnayar, the 73 court proposed a very, very important change in Section 235-2. So, that was one of the serious changes made in the 1973 court. 235-2 says, if the accused is convicted, the judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence and then pass sentence on him according to law. So, the hearing of the accused after the sentence was made mandatory. So, this is a very important legislative change that occurred in India. And another change was in 354-3, when the judgment of death, if being passed, 354-3 says, when the conviction is for an offense 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. The stress was on the word special. So, the special reasons are to be given if a sentence of death is being imposed for a capital offense. So, these two amendments, those came in 1973. But as you all know, the amendments came in 1974, Act 2 of 74 CRPC. So, we all call it 73 CRPC, but came in 74. So, while Edgar Anumama surrendered in 1974, Justice V. R. Krishnaya took note of this amendment which is coming soon. And he had expressed all his concerns about the constitutional validity of the sentence, but in the later decision also he said that it is constitutionally valid. So, the concerns expressed by Justice V. R. Krishnaya in 1974, Supreme Court in Edgar Anumama, that is the often courted decision, world-wide. And it is often courted by the Amnesty International like that. That was in 74, Edgar Anumama in 1970, 74 Supreme Court, 799, Edgar Anumama. So, that was one of the landmark decisions with special emphasis on 235-2 and 353 of CRPC. And in 79, in Rajendra Prasad, again the constitutional validity was challenged and it gives certain guidelines. And as you all know, the often courted 1980 Supreme Court 89 in Bachchan Singh is considered to be the landmark decision, but if we go through the both decisions, we will find that the Bachchan Singh does not say anything more than Rajendra Prasad. There are certain guidelines which was issued in Rajendra Prasad. And in 1980, Bachchan Singh, they have just adopted the views expressed in Rajendra Prasad, nothing more. And the guidelines issued by Rajendra Prasad, like this, I have shortened it, not in the specific words which was used by their lordships. The situations in which descendants need not be awarded. One, long pendency in Dattara. With the person is in Dattara for a long period, it has to be commuted and it has to be awarded. Focus should be on reformation rather than the retribution. So, in 1979, after coming into force of 354-3 and 235-2 of CRPC, the Supreme Court has considered this and said that the focus should be on the reformative principles and not on retribution, especially since the law provides that there should be special reasons for awarding the sentence. The word special and the right and opportunity of the accused to be heard on the sentence may take a content leap in the process procedure with special emphasis on the accused, not on the crime. So, that is the main shift that happened in 1979. And number three, personal, social, motivational and physical circumstances on the criminal are to be looked into. So, again, they have reiterated that the focus should be on the criminal and not on the crime. Four, mental imbalances, short of insanity has to be considered in favor of the accused. Five, offenses against social justice and welfare in a large perspective like trained decoy, band robbery, organized personal killers, pre-planned murderers, white collar crimes, economic offenses, etc. has to be considered specifically. Six, the murder of public servants on duty, that has to be taken very seriously. If a police officer or a public servant is killed, while he is discharging his official duty, that has to be treated very seriously. Seven, serious case of food and nutrition. So, that was a social legislation in which their lawship said that white collar crimes which are prepared by even by the companies has to be taken not to very seriously. And eight, consideration of special reasons should be on the criminal and not on the crime. Crime may be shocking, but the criminal may not. This criminal may not deserve that penalty and vice versa. Nine, extreme penalty can be given in extreme situations only. So, these were the nine guidelines given by the Supreme Court in 1979. And when it came for the Supreme Court again in 1980 by Chen Singh, they have evaluated the correctness of 79 Supreme Court and they said that we have nothing more to say from the 177 Supreme Court. And the often quoted, rarest of rare, doctrine was declared in paragraph 209. In some journals it is 208 and some journals it is 209. I shall just read one paragraph, only this paragraph I am reading. So, whether the Supreme Court and the High Courts are following the dictum in Chen Singh, rightly or not, is to be considered again because most of the cases rendered by the Supreme Court and other High Courts fortunately not by Kerala High Court says that in rarest of rare cases the sentence can be awarded. But a close reading of section 209 of the Chen Singh shows that that is not what the Supreme Court said. Supreme Court was focusing on the rehabilitation from the processes, the purpose of rehabilitation of the prospective of rehabilitation of the accused not on the rarest of rarity of the crime committed. So, that has to be looked into again and again because unfortunately I have gone through a few of the Kerala High Court judgments in which this aspect came before their lordship and in none of the judgments they have relied on the Chen Singh fortunately. I shall read the paragraph alone. There are numerous other circumstances justifying the passing of the lighter sentence as there are countervailing circumstances of aggravation. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. Nonetheless, it cannot be over-referenced that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expensive construction by the courts in accord with the sentencing policy lit large in 3543. So, again they were reiterating 3543. In other words, they were saying that only in rare special reasons only in cases where special reasons can be given for not awarding a sentence life sentence, then only the sentence can be given. So, that is a stress. Judges should never be blood thirsty. Annual murderers has never been too good for them. Facts and figures incomplete furnished by the Union of India shows that in the past courts have inflicted the extreme penalty with extreme frequency. A fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is therefore imperative to voice the concern that courts aided by the broad illustrative guidelines indicated by us will discharge the onerous function with of ever most frivolous care and human concern. So, they were referring to the nine guidelines issued by the Rajendra Prasad in 1979. So, all were focusing on the accused, not on the crime. So, that is the difference. All those guidelines were towards the crime towards the accused, at least one or two were not on the accused, but on the crimes like the food adulteration and larger conspiracies involved in the decoyty like that. Except two or three, all other consideration was towards the accused, reformative principles. And they said that for persons can direct along higher high road of legislative policy outline 3543, namely that for persons convict for murder, life imprisonment is the role and death sentence and exception. A real abiding concern for the dignity of human life postlates resistance to taking a life through loss instrumentality. So, this is the most crucial thing, crucial words. A real and abiding concern for the dignity of human life postlates resistance to taking a life through loss instrumentality. That ought not to be done, save in the rarest of rare cases when the alternative option is unquestionably foreclosed. So, that is a finding of the court. The court never said that in rarest of rare cases, this person has to be hanged. No. The court said that ought not to be done, save in the rarest of rare cases when the alternative option is unquestionably foreclosed. So, the stress of the words of rarest of rare is on the alternative option, not on the crime, not on the offense, not on the brutal manner in which it was committed. No. It is with regard to the alternative option. If the alternative option is completely foreclosed, alternative option in the sense of life imprisonment. If life imprisonment is completely foreclosed and if the accused cannot be reformed at all, then only you can give descendants. So, that is the impact. That should be the impact of bechancy. But unfortunately, so many cases are there in which the focus was on the manner in which the crime was committed, etc., etc. Even the law commission, I have seen certain comments on the law commission, wrongly interpreting bechancy. So, this is the often quoted, the Lacus Clasicus, the so-called Lacus Clasicus in Indian law, which was nothing but a reiteration of 79 Supreme Court in Ajendra Prasad. So, this is the situation in India for the time being and now the statistics, but this is the cause of the constitutional validity, but that was upheld in all these decisions. And another important decision, Swami Sraddhananda. As you all know, Swami Sraddhananda was rendered in 2008 Supreme Court 3040, in which the Supreme Court said that instead of releasing the person after a sentence of life, the person can be kept in prison until his natural life, until his death. So, that or any larger term of imprisonment can be awarded by the constitutional courts. So, that was the dictum of Swami Sraddhananda. So, all these shows that we are moving towards abolition and at least we are moving towards undeclared moratorium. And after 2004, because 2004, as you all know, the Rangers Chatterjewas hanged in 2004. And after that, the next hanging came only in 2012-15. And three persons, Ghasab, Afsal, Guru and Yakub Mehman, they were hanged from 2012-15. So, during those periods, no death sentence was executed in India. And after that, as you all know, the Nderbay incident came in 2013 and Karmila Anbind was there. And those persons were hanged in March 2020. So, from 2004 to 2020, during the past 16 years, only around 8 persons were hanged. And this is the situation which shows that we are having a moratorium, undeclared moratorium on death sentence. And the latest studies of NSE International shows that sentence, row convicts, there are 401 persons are awaiting death sentence. And since this is the census, 404 persons are awaiting death sentence. Number of hangings for the last 20 years is only 7. Law Commission report in 1967 shows that the decay from 54 to 64, that during that 10 years, 1,400 persons were hanged. That is a shocking number, 54 to 64, 1,400 persons were hanged. And quite interestingly, during the 10-year-old Prabhidha Patil as the President of India, she had given pardons in 30 cases, a quite large number. No other President have given pardons like that. So, 30 cases were given pardons by Prabhidha, Prabhidha Patil as the President of India. And now there are two sets of arguments, for and against the retention of death penalty. The most strong argument against retention is that there is no statutory guidelines for a sentence of death. Why? Because 354 says that the normal sentence should be life imprisonment. So, that is to be considered as the statutory guideline. And 354 also says that only after rendering special reasons death sentence can be awarded. So, the statutory guideline is only for life sentence. No statutory guidelines are there for death sentence. So, this is the main argument of the persons who are against imposing death sentence. And in 1982, as you all know in Bacchan Singh, Justice Bhagavati descended. But that descending judgment was reported, was rendered only after two years. That you can get it in 1982 SCC criminal 535, 1982 SCC criminal 535. It is a beautiful judgment, rendered by Justice Bhagavati. It is a lengthy judgment running into, I think, 70 or 80 pages. He has considered all the scenarios including the Indian history, the circumstances around the world, everything. After considering everything, Starship said that it is unconstitutional. So, that is a beautiful judgment that was rendered by Justice Bhagavati. So, this is the main argument of the persons who are advocating for abolishing death sentence. And they also say that Article 21, the procedure established by law, says only about 354. In the sense, 354 only gives the procedure as life sentence. So, that is the procedure established by law. That is the contention of the abolishments. But on the other hand, one others who are in favor of maintaining death sentence says that Article 21, the procedure established by law, are already there in the CRPC. For one, 360 CRPC says that a sentence of death has to be confirmed by the High Court. So, that has to be heard by two judges. So, there is a protection. In the sense, 80 sentence of death passed by a session judge has to be confirmed by the High Court, and that too by two judges. So, that is one protection they claim. And second, High Court can take additional evidence under 367. So, that is another opportunity. If a wrong condition is to be avoided, High Court can take additional evidence. And 368, High Court can also acquit. So, that shows that the entire evidence will be evaluated again before the High Court. So, the power of acquittal also has been given in 368. And 369 says that confirmation has to be done by two judges, minimum two judges. And 379 says that if the first conviction is by the High Court, an appeal lies automatically to the Supreme Court. So, these are the statutory protections. They claim that the statute CRPC is having on the strength of Article 21. But another very important discussion we could see in Bhagavadis judgment in 83 is that there are other statutes like NAVAC, Army Act, Air Force Act, BSF Act, so many statutes are there. Those statutes are having death sentences. And many of the statutes say that CRPC's application is not there. So, this conviction will not lie because all these statutory protections contained in CRPC are not available in other statutes, wherein death penalty is also there. So, that is a serious handicap. So, you cannot say that all these procedural safeguards are there in CRPC. So, there are statutes which can overlook CRPC protections mentioned in 366 to 379. So, that is a contra argument for those who says that it has to be removed from the statute. So, these are the two arguments, for and against imposition of descendants or abolished of descendants. Now, the purpose, what is the purpose of retaining? So, whether the retribution or not revenge retribution, whether it will have any purpose. So, when the British Royal Commission was probing the issues, even Lord Denning supported the theory of retribution. He gave a statement before the Royal Commission saying that retribution also serves some purpose. And that reflections we have already seen. I already mentioned about the historical background of the descendants and the public opinion for and against. When Bhagat Singh was hanged, the public opinion was against descendants. When Gandhi was assassinated, the public opinion was against shifted. And after the Nirbhaya incident, all those theoreticians or so-called persons who are against descendants had a thinking whether it should be retained in the statute or not. So, the 2012 incident and the hanging of those persons after the period of 80 years also shows that by and large the people were or the media or the people were happy or rather they were satisfied about the manner in which the law executed the sentence of death on four persons. So, there is a theory that retribution also gives purpose that will satisfy the mob, at least in very serious cases like the Nirbhaya incident. So, there that such hangings should will give confidence in the people regarding the supremacy of judiciary or the protection of law, the rule of law has to be maintained through such judicial hangings. So, that is the trend swinging here and there depending upon the situations at the period on certain periods. So, in 2009 Supreme Court asked the law commission to reconsider the matter again. And in 2015, 262nd law commission report, the head of the Slotship Apesha, gave a report. And their conclusions are like this while concluding, they suggested that protection schemes should be there for compensating the victim. Why? Because whenever the debate comes especially after the Nirbhaya incident, all the media and the public at large, they were more concerned about the victim. So, what will the victim gets? So, that is one of the considerations. So, for that purpose, the law commission recommends that the victim has to be compensated. For that, we are already having 378 victim compensation scheme in the CRPC. And even otherwise, we can, there are provisions in 371 and 373 CRPC through which victim can be compensated. So, that has to be done. And the law commission also said that our change from 1955, the 55th amendment I already mentioned, the 73th amendment and the latest trends all over the world which shows that we are moving towards abolition. And 72, 7.23, they have said that penalty of terrorism-related offenses like waging war will affect national security. So, in such cases, it has to be retained. So, that is the view expressed by the law commission. And the most important recommendation is this. I will read that. The commission accordingly recommends that the death penalty be abolished for all times other than terrorism-related offenses and waging war. So, they have recommended like this. For waging war and terrorism-related crimes, it has to be retained. In all other crimes, it can be, it has to be abolished. And the commission trusts that this report will contribute to a more rational, principled and informed debate on the abolished of death penalty for all crimes. Further, the commission sincerely hopes that the movement towards abolition, absolute abolition will be swift and irreversible. So, this is the finding of the law commission that suggests that it has to be completely removed from the statute and has to be abolished. And after 1980 Supreme Court Bechamp Singh, no serious debates were there regarding the constitutional validity of the descendants. But in 2008, Justice Kudy and Joseph doubted the constitutional validity again. And he has expressed his desire to revisit Bechamp Singh. And that is the latest time, 2018. That is the latest view expressed by the Supreme Court through Justice Kudy and Joseph. So, this is the overview of death penalty in India. As you all know, there are hundreds of thousands of judgments on this subject. So, these are the main topics. And I will just repeat those decisions. Again, the Jack Mofan Singh in Jack Mofan Singh was the first serious case in which the constitutional validity was under challenge. That was in 1973 Supreme Court, 947. 1973 Supreme Court, 947. And Ajendra Prasad, 1973 Supreme Court, 916. And Bechamp Singh, 1980 Supreme Court, 989. Ediga Anamma, 1974 Supreme Court, 799. And also, it may also generally refer, 1982 SCC criminal, 535. The descending judgment by his lordship, Justice Bhagavati. So, this is my understanding of the law. I can see Prem Raj. I will ask Prem to give his insights. Prem Raj. And I think Shyam is also entered. Prem Raj, you can contribute. Yeah, of course. I have taken by surprise because I have been caught off the guard. Anyway, now, as the speaker has put in, India is one of those countries who have retained this death penalty in the statute of books. And of course, we have two law commissions, of course. One is during 1967. I think it was the 35th report which suggested to retain the capital punishment. Subsequently, 2015, hardly after 48 years, the 262nd report. In fact, that report highlights, retribution cannot be reduced to vengeance. Now, this was the crux of this particular report. And the debates over this death sentence has been on since very long. Now, in the imperial parliament, as Radfaza said, it was during 1931, a member seeks to abolish this death penalty from the ITC, the then ITC. But in vain, after the independence, we had retained over so many laws which again were enacted by the imperial legislature, which included capital punishment for various offenses under the IPC. And you can see, apart from the IPC, first let me go to the CRPC first, because in 1955, the parliament repeats section 367 cross 5 of the then CRPC of 1898, which was one which mandated all the courts to record the reasons if it decided not to impose a death sentence for the offenses, where death penalty was not automated. So, when the CRPC was reenacted, it was in fact reenacted in 1973, we differed from 1974, which we now have section 354 cross 3, mandating the judges to provide special reasons as to why the death sentence is being imposed. Now, as Radfaza put it, the last execution was that of four persons, like Mukesh Singh, Pawan Gupta, Vinay Sharma and the four four, I forgot the name, something, some Akshay Kumar, I think, Akshay Kumar, I think, and then Durbhaya, which was a case, a savage sexual assault. And the other executions of the recent past includes Yapuk Mehman for the Bombay blast, you have Afsel Guru for the parliament attack, you have Ajmil Kasad for the Mumbai terrorist attack. And the first one in independent India was that of a 27-year-old by the Raghuratsi, that was hardly within a month of re-attaining freedom. And capital punishment in India under the IPC, I think it is 14 offenses total. We have around 23 statutes, I think, which provide for death penalty because you're starting from the army act till the- 59 sections, 18 sentences. In 23 statutes, total, I was talking about statutes. And of course, the first challenge comes in Jagmohansi, 73 Supreme Court. Now, 73 Supreme Court Jagmohansi was decided prior to the present CRPC being enacted. And that was based on the Eighth Amendment to the US Constitution, which I think Raghuratsi cited that Furman was a Georgia. But Furman was a Georgia, that was a case where the US Supreme Court struck down the descendants. They struck down in Furman because the Supreme Court of the US says, I think it was a majority of five is to four, where the Supreme Court strikes it down, the entire scheme of descendants because it is violating of the Eighth Amendment. That is what you see in the 73 judgment that our Supreme Court repelling the entire arguments, which were primarily based on this, US Supreme Court Eighth Amendment, contruing that here it is not unconstitutional. Why? Because our constitution does not have an equivalent to what you see in the Eighth Amendment of the US Constitution. Then in the Roe comes Dalbir Singh, 1979, 3 SCC 745. Then you have Rajendra Prasad, 1979, 3 SCC 646, which deliberates the issue at great length. And there the court in fact is departed from the retributive theory. And the court somewhat emphasizes on the deterrence and reformative theory as the social goals. Then comes Birchen Singh, the off-court Birchen Singh of 1980, Supreme Court 898, which was premised on multiple facets. Now the Supreme Court by a thumping majority of four is to one, affirms the constitutionality and propounds that the doctrine of rarest of rare keys. And of course, the descent of justice Bhagavadi comes during 1982. Next in the line is one of the most important decisions in Mithu, which is 83, 3 SCC 470, I cannot show on the page number, 470, I think in the Supreme Court, lays down the broad outlines of the circumstances when this death sentence has to be imposed. Justice Thakur speaking for the bench, he held five categories of cases which have to be regarded as the rarest of rare keys, which deserves this kind of extreme penalty. One was of course, the manner in which the murder was committed. Then you have to see what is the motive. Then the third one was, please see the socially harmed nature of the crime. The fourth being the magnitude of that particular crime. And the fifth and final was the personality of the victim. So, these four facets which would be considered and these five parameters, they were restated by Justice Arijit Pasaya in Sushil Murmur that is a year 2004 Supreme Court 394, I am not sure of the page number, it is Sushil Murmur. Then again you have a sure sync 1983 Supreme Court holding that the death sentence is constitutionally valid and permissible because it is within the constraints of what you see in urgency. Then you had the Supreme Court in 1989 through and even a certainty that our constitution never prohibits the death penalty. Likewise, Dina as well as 2017 Rishi Malhotra, they of course tell us the hanging because hanging was barbarous and it was human which infringes Article 21. Of course, that also was in being, the context was in being. Now, you can see execution is by two means. One is by hanging, the other is by shooting. The army act, in the Navy act and the Air Force act, that provides execution by shooting also. And well, the discussions on this topic can be broadly outlined in Swami Sraddharanda. Swami Sraddharanda, 2008 Supreme Court 3040. Then in 2008, of course, as Sraddh put it, it was in Chanulal Varma. Yes, he was in Chanulal Varma, Justice Kurian Joseph. He holds that time was appropriate to review this constitutionality of the death penalty and take into consideration the reformative aspects of the punishment. Now, this particular part of Justice Kurian Joseph, that was descended by the other two judges. This was a three-judgment decision. The other two judges were one was just Deepak Gupta and the other was just Heman Gupta. And both of them held that there was absolutely no need at all to be examined because birchen Singh was a good law. And subsequently, there are two decisions in the one is in Ravi, was the State of Maharashtra, 2019-1966-22. Three judges which headed by Nariman, upholding the death penalty, which in that particular case was awarded when accused, who sexually molest a two-year-old after kidnapping her. And this was treated as an assault on the voiceless infant. And that continued even after the life had departed from her body. See the case. Again came Manohar, 2019-1967-16. Another three-judge bench. That three-judge bench in fact dismisses the review petition which was filed by the accused for awarding a lesser punishment. And the judgment was rendered by Historic Justice Sir Suryaka who appealed the death penalty of the accused who in that particular case was a school bus driver who kidnapped a brother and sister and committed all kinds of atrocities with both these minors. And then he attempted to poison these children and then he threw them into a canal. Now capital punishment that has been there from the time of Socrates. And in India you can see applied by the Greeks like Emperor Ashoka, Babur, Sikandar Lothi, Krishnadevaraya, the Marathas, the Peshavas and finally in the British Rajs. And in Greece also you can see what we call the draconian loss, the loss made by Draco which was during the 7th century BC. Even though at that point of time Plato he argues that it should be used only for the incorrigible. Now the Romans used it for a wide range of offenses. And as I told you that these debates have been going on for long regarding whether to retain this death sentence in our statute books or not. Now if you have a close reading of all these statutes, all the offenses in which the death sentence is a punishment, that is not the only punishment. It is an extreme penalty. Thus those provisions which by virtue of the very wordings of those sections that provides for some kind of judicial discretion which is vested in our courts to determine and to decide what is the quantum of punishment. So in its ultimate judicial discussion the power to decide whether this death penalty is to be imposed or not. It has been vested in our courts. However the manner of exercising this discussion it has undergone various changes with the changing times and evolution of new principles which were formulated through various judicial pronouncements. And Ralf you said that Pradipa Patil, you pronounced it I think as Pradipa Patil twice. Pradipa Patil for 34. I think Dr. Rajendra Prasad, he had in fact accepted 180 music petitions. And the second goes to Dr. Radha Krishnan who accepted as many as I think it was 55 of them. It is there in the 2015 Law Commission report and I would say in my humble view this is to be retained because we all know because this is pure judicial discretion because if this also goes because now we are in a society where various kinds of crime we see every day lastly crimes under the skies being committed even against voiceless infants which we see. So suppose if this goes off the statute book and is thrown out of the window I think that may create some sort of at least because the world as such at least in India we know the society it will be too dangerous in the present day scenario. Maybe after sometime maybe because even though we have not realized what exactly is independence after we gained independence we are not realized what exactly the world freedom meant for and that basically is the factor because we are a country where we have more evils, more sinners than good persons. Anyway and I didn't understand one thing what you said because but since you said unfortunately it came before the Kerala High Court but fortunately the High Court did not refer to Bacchan Singh which I did not. Yes none of the recent decisions of the High Court followed Bacchan Singh. They never followed Bacchan Singh because Bacchan Singh if you look at it closely would know that they are not they did not say anything more than 17 and Supreme Court Dayendra Prasad they just appealed Dayendra Prasad they did not say anything more and the rarest of rare, rarest of rare down frame they say is there it should the focus should be on the accused and not on the offense. No five parameters by Machi. Yes Machi Singh. This was the lead down in Machi and Machi that again was restated by Sushil Mughal. Yes. What I am saying Prem that the rarest of rare doctrine that is in paragraph 209 I will read that again that auto to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed so that is their finding. So but the thing that alternative option is unquestionably foreclosed which means if you have no other option other than to hang then hang in. So but at the same time obviously only on the accused not on the crime. At the same time if you see the constitutional scheme yeah that is why taking into account the constitution provided with article 72 and 161. Yes that is the reason that the government their powers to grand pardon to reprieve, to respite, to remit the punishment. And of course it is to be exercised by article 74 and 163 on the advice of the council of the ministers and the clemency powers are built because it is a wide range of consideration wide range of consideration. Anyway today we have Dr Mohan Bhalla because he is the professor of Christu Jain he is the principal of Christu Jain the law college in Bangalore. Yeah he wants to say something. Good morning, good evening sirs and sir very great discussion on death penalty. No doubt what shortly I perceive is that the discretion of the judge at the district level, am I audible? Yes sir. Yes sir is looking a bit, yeah am I audible? Yeah you are audible. You are audible. Yes what is what is judged the take from the way the death penalty has been awarded. It is no doubt unguided as to what cases are to be treated as rarest of rare. And gruesome murders have been considered and that too more so rape murders have been considered and as Meenan rightly pointed out Mithu and Machi Singh say infanticide killing a person in a barbaric manner cutting into cutting the body into several pieces charring the body, bright burnings these are all the cases were which the judges feel that it's very gruesome and barbaric that kind of things and even assassinations were also considered sort to be seen. Machi Singh when we read the Kedinov or the points that have been given assassinations also and communal killings also must be treated as so barbaric just for the reason that one belongs to a particular community or religion you shall not or that must not be targeted. However the trend has been suppose when when we look into Shatrugan Chauhan case 115 death convicts have been commuted to life imprisonment just by a stroke of pen and the reason quoted was that inordinate and unexplained delay in considering the mercy positions. It looks as if the Supreme Court itself says that the persons as Ralfas quoted they do not deserve to live at all because they have committed rarest of rare cases and on the other hand just for the reason that the government took too long time to consider as Minyan was rightly pointing it out it's very well guided the government has to consider and the president or the governor they cannot take independent decisions fortunately or unfortunately during that regime of two ten years of Pratibha madam there were there were so many mercies granted and there are merciful people like even our Kandhi family who would say that we don't want people to be hanged. Okay but even in Bachchan Singh what has been stated by judges is that is a matter of policy we retain this and and yes we don't have legislative support like that of America we were in Persian to that 8th amendment there could be the declaration that the death penalty is unconstitutional in that the name I don't remember for who? Forman versus Georgia. Yeah Forman versus Janish and Dr Arjith Paseh several times had considered this and even in that teacher who was committing rape murder on a small girl of age eight it's in I think Shivaji Aliya's Dadiya Shankar Alhath wherein on a Makara Sankranti day this this man V.A. Beard teacher takes the very young girl who that family used to give them bread and bread for the for this man who was even it was said to have been deserted by his wife and he used to take her he was taking her to Manmodia Hills where he had committed rape on her and then murdered her with her with the rope he was taking her to under the protection that he would fetch her the wood woods for the firewood for for them to cook wood and they were very poor and this man is a V.A. Beard teacher and then just messing on last thing together the arguments put forth were in the in the in that particular case the arguments put forth were such that just for the reason that they were last seen together how can how can there be conviction of death penalty by awarding death penalty that has been negated just for the reason that there is circumstances evidence and you have you have taken ample opportunities to put forth the argument to support the criminal anyway the thing is the thing as as it is pointed out it should it should not be the crime but the criminal no I I don't accept that because it should be the criminality and not the criminal just for the reason that one belongs to a particular age group he must not be given a license to kill people and try to escape escape from death penalty it should be retained I 100 percent or even beyond support meaning for this because because we must send a signal to the to the people otherwise what happens is suppose say all other offenses like terrorists and disruptive activities or anything as such the the possible ways and means that there is no certainty of punishment in India there ought to be certainty of punishment and very short span of time must be taken and people have appreciated the special judge in Kerala in that particular case where that lonely woman was raped and personally she died when she was left in a supine condition the Supreme Court unnecessarily despised the criticism that has been addressed by Justice Markandek Arju in that Soumya murder case you all just Mr. Allure has been very well appreciated for the argumentative capacity that is the different but what I see is that the Supreme Court expects that where is the evidence to show that he had pushed her down even if she volunteers to jump out of the train running train it is to save herself she should have she should have jumped out of the train but later on he had conveniently taken taken time to get down from the train and she had taken her secluded place where rape was committed her belongings including including money and the cell phone through which she could at least communicate to people to come to her rescue that could not be made possible and in such cases how can the Supreme Court expect extra evidence to show that show beyond beyond the fact that she she was on her body what was found was that on a blunt object there were there were there was evidence that she was hit hit to a hard flat substance that that way what is what is and the in brackets it has been given it could be a railway compartment and when she she was hit and then in this couple even by accident if she had fallen down after that you know when a grievously when you when there is a person who commits such a heinous offense on a person who is moaning and grievously injured due to the fall from the train he doesn't deserve any life or life imprisonment but there is an argument of course for the abolitionist state stating that you are giving an easy death to a person who had committed gruesome murders or gruesome murder may be coupled with any other serious offense as very very well appreciated the presentation by Ralf recently history and added by Meenan it's a wonderful discussion and thank you very much for giving me an opportunity to class I thank Professor Malika Arjun has also joined yes just check it out yes as a Malika Arjun has joined I didn't notice Malika Arjun Malika Arjun yeah I don't I didn't notice okay it's fine I thought that we can have his insights also yeah Rajendra Prasad Sunkar Rajendra Prasad has perhaps several he also worked on it and he's a he's I think president of All India Lawyers Union also I think his opinion may also be solved Rajendra Prasad sir are you there Sunkar Rajendra Prasad we will try to unmute him meanwhile as we all speak that once there is a ghastly and gruesome as well as brutal offenses in that case what the common bottom line running through all through these judgments is that as the death penalty will continue but sister he has not taken the I don't think he has joined as much okay anyway and Harish sir is there Harish are you are you willing to express your opinion Harish and Harish Harish sir you may unmute yourself and put forth your opinion he's not unmuting himself because it seems that all three of you have taken these sessions in such a manner that they feel that all things have been taken across and put across the platform it's more like a platter which could be cherished for the legal minds for all times to come as to how how the guidelines were there what is the button saints and I found that professor Mohan Bola that's his favorite judgment and he was called to his Christian college at that point of time also he wanted to speak on that proposition so it's quite close to his heart and he's not able to cherish that fact that the supreme court didn't give the death penalty but as they say that any judgment normally is at what particular moment the lawyer has been able to convince us and like what justice but that said on the date of his retirement that the lawyers know the fact but it is ultimately the judge who has to segregate and see out and bring the best and thank you to all those participants who have been watching us on these all webinars and it was quite a pleasure that Mr. Ralf started preparing the platter and we got more icings of the cakes of that pudding which made the session much insightful and much better we are thankful to Mr. Menon and Professor Mohan to add more to it and we will all enjoy it thank you everyone stay safe stay blessed thank you so much thank you very much Mr. Menon today you didn't have the session Sunday you normally have Sunday hours is 10 o'clock 10 30 in the morning yeah 10 30 it's over okay okay because we normally don't do because