Is capital punishment more likely to be applied in India for terrorist acts?

Question

So far there have only been 8 executions of the death penalty since 2000 in India and most of the cases are related to terrorism.

According to this article recently a terrorist ran out of appeals both to the president and the supreme court.

The highlight statement was

We now turn to the last ground regarding possibility of retribution and rehabilitation of the review petitioner. On this issue, the response of the State in its Written Submissions is as follows: -“3. The petitioner, admittedly a Pakistani national, has been convicted inter-alia under Section 121,302,120B,121A,181 and 353 of the Indian Penal Code, Section 25 of the Arms Act, Section 4 of the Explosive Substances Act, Section 14 of the Foreigners Act, for waging war against the Government of India and committing murder in pursuance thereof. This Hon’ble Court has taken the view that the cases of such nature, involving acts of terror which challenge the unity, integrity and sovereignty of India can only be adequately compensated by awarding the death sentence. Reference in this regard is drawn to the judgment of this Hon’ble Court in State of NCT of Delhi v. Navjot Sandhu (2005) 11 SCC 600 (The Parliament Attack Case), where it was held: 252. In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial court and the High Court. The present case, which has no parallel in the history of the Indian Republic, presents us in crystal- clear terms, a spectacle of the rarest of rare cases. The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperilling the safety of a multitude of peoples’ representatives, constitutional functionaries and officials of the Government of India and engaging in a combat with the security forces is a terrorist act of the gravest severity. It is a classic example of rarest of rare cases. 253. The gravity of the crime conceived by the conspirators with the potential of causing enormous casualties and dislocating the functioning of the Government as well as disrupting the normal life of the people of India is something which cannot be described in words. The incident, which resulted in heavy casualties, had shaken the entire nation, and the collective conscience of the society will only be satisfied if capital punishment is awarded to the offender. The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators, can only be compensated by giving maximum punishment to the person who is proved to be the conspirator in this treacherous act. The appellant, who is a surrendered militant and who was bent upon repeating the acts of treason against the nation, is a menace to the society and his life should become extinct. Accordingly, we uphold the death sentence.

Does that mean capital offences involving attacks against sovereignty, unity and integrity of India are overriding principles in determining whether or not to impose the capital punishment or not and rehabilitation and future threats aren't considered?

Answer 1

In India, death penalty is now discouraged and courts consider it under the "rarest of the rare" doctrine. Some of the precedents set by the Supreme Court towards this are:

1. Ediga Anamma v. State of Andhra Pradesh (1974)
   The Supreme Court, while considering the question of sentence, came up with a list of ‘positive indicators against death sentence under Indian law’.

2. Rajendra Prasad v. State of Uttar Pradesh (1979)
   The SC outlined that one of the tests for imposing the death penalty is to determine if the person poses a traumatic threat to the survival of the social order. The death penalty must be imposed where the peril to social security is to such an extent that extinction of such a person becomes essential for the survival of society.

3. Bachan Singh v. State of Punjab (1980)
   The SC upheld the constitutionality of the death penalty and stated that the mandatory requirement of a pre-sentencing hearing made it necessary not only to consider the circumstances of the crime, but also those of the criminal. The Court enumerated several circumstances as indicators of aggravating and mitigating circumstances relevant for determining sentence. The Court reiterated that life imprisonment is the rule and the death sentence is an exception which, the Court held, should be imposed only in the “rarest of rare” cases when the alternative option of life imprisonment is unquestionably foreclosed.

4. Machhi Singh v. State of Punjab (1983)
   The Supreme Court laid down five categories where society might mandate judges to impose the death sentence. These were the manner of commission of murder, motive of the murder, anti-social or abhorrent nature of the crime, magnitude of the crime and personality of the victim.

5. Ravji alias Ram Chandra v. State of Rajasthan (1995)
   It was held that the nature and gravity of the offence and not the criminal were germane for consideration of appropriate punishment in a criminal trial. The punishment must be consistent with the atrocity and brutality with which the crime is perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal.

6. Swamy Shraddananda & Murali Manohar Mishra v. State of Karnataka (2008)
   It was noticed that in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently leading to a marked imbalance in the end results. These observations made the Court reluctant to confirm the death sentence. However, it was also felt that life imprisonment simpliciter was also unacceptable and therefore, the Court stipulated a special category of “fixed term sentence”.

7. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009)
   The Supreme Court interpreted the “rarest of rare” dictum in Bachan Singh v. State of Punjab to consist of an “authoritative negative precept” that states that death ought not to be imposed except when the alternative of life imprisonment is completely out of the question. It formulated a two step test to determine whether a case deserves the death sentence- i.e., firstly, that the case belongs to the rarest of rare category; and secondly, that the option of life imprisonment would just not suffice.

8. Shankar Kisanrao Khade v. State of Maharashtra (2013)
   It was held that the tests which need to be applied while imposing the sentence are the “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. This, the court explained, meant that even if aggravating circumstances are present to the fullest extent and there are no mitigating circumstances favouring the accused, the rarest of the rare case test had to be applied before the court could impose the death sentence. The Court held that the application of the “rarest of rare” test depended on whether society would approve awarding of the death sentence. In his concurring opinion, Justice Lokur added that the Law Commission of India could examine whether the death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.

9. Sangeet v. State of Haryana (2012)
   The court observed that the aggravating circumstances pertained to the crime while mitigating circumstances referred to the criminal which are distinct elements incapable of being compared. The Court observed that Machhi Singh v. State of Punjab tried to standardize the procedure but in effect made sentencing judge centric and sentencing principles were not being applied uniformly. In light of this, the Court held that where there is uncertainty as to the propriety of punishment, awarding of life imprisonment does not stand unquestionably foreclosed.

10. Manoharan v. State by Inspector of Police (2019)
    The Supreme Court, through the majority opinion of Justice Nariman, upheld the sentence of death imposed upon the appellant. Justice Sanjeev Khanna dissented on the question of sentence and chose the lesser sentence of life imprisonment without remission. In his dissenting opinion Justice Khanna noted that the Appellant had confessed to the crime before a magistrate without compulsion and this, he stated, was the first step back into society and should be treated as a mitigating circumstance. He therefore opined that the appropriate punishment in this case would be life imprisonment without remission.

Source: Landmark Judgements - Rarest of rare - meaning and judicial critique

Terrorists cases can often be considered to fall under the "rarest of rare" case where the crimes against society are more heinous (e.g. mass murder of the innocents) and reform of the terrorist highly unlikely.

Nevertheless, the court follows the sentencing guidelines it has advocated even for terrorist cases and does not use a blanket approach to automatically treat it as a fit case for death penalty (though prosecutors often prosecute it with that intent). So the court does consider the role and state of mind of the individual in a terrorist act before sentencing them.

A good example of this can be seen in the Rajiv Gandhi assassination case, where ultimately only some were sentenced to death, and the court even allowed some to be released on parole (or even commuted their sentence) after they had served considerable time in prison.

Answer 2

There have been 45 executions in India since 1980 (a 43 year time period before this answer was written and covering sentences imposed over roughly the last half-century).

Seven of the people executed (involving six crimes), including three of the last eight (involving three of the five crimes for which the most recent executions were imposed), have been executed for crimes that involved terrorism or could have been characterized as political assassinations (because the victim was a high public official).

The other 38 people executed were executed for apolitical crimes, often multiple murders or a rape-murder.

Certainly, far fewer than 15% of murders for offenses that took place in a time frame to allow for executions after 1980 if they were imposed, involved terrorism or other political circumstances. The share of homicides in India due to terrorism or other political circumstances in that time frame is almost surely less than 1%.

So, yes, capital punishment is more likely to be imposed for terrorist acts in India.

Does that mean capital offences involving attacks against sovereignty, unity and integrity of India are overriding principles in determining whether or not to impose the capital punishment or not and rehabilitation and future threats aren't considered?

Certainly terrorist killings are among those who are treated as exception enough to justify the death penalty.

Generally speaking, however, someone who carries out a deadly terrorist attack is a serious future threat, more akin to a serial killer or hit man, than to someone who commits a murder in the heat of passion, and often causing more deaths in each incident than an isolated murder of a single person.

Also, in the case of an ordinary apolitical crime, normally the sole consideration in terms of future threats is whether this particular offender will offend again. In contrast, the execution of someone for a terrorist attack could impact the future threat posed by an entire terrorist movement. Deterring to the maximum extent possible the tactic of terrorist killings rationally and intentionally considered with pre-mediation before such an attack is carried out is a relevant concern as well.

Note that I don't necessarily agree that this is the most effective way to prevent terrorist attacks. There is a contrary argument that executing terrorists creates martyrs for the cause. But, it is nonetheless part of the logic behind using the death penalty more often in cases that involve terrorism or a political motivation.