Trends Regarding Death Penalty in India

Reading time: 8-10 minutes.

A Bench of Rajasthan High Court comprising Justice Sabrina and Justice Chandra Kumar Sonagara recently upheld the conviction of a murder accused named Mohan Singh alias Mahaveer Singh, for murdering a women by strangulation and thereafter cutting her abdomen and taking out certain organs. The High Court upheld his conviction for the offences under Section 302, 391 and 201 of the Indian Penal Code allowing a maximum sentence of death which was awarded to him. The accused was already convicted under other murder cases of heinous nature. The Court held that the prosecution had clearly established the guilt of the accused without any shadow of doubt, using circumstantial evidence as well as medical evidence including DNA reports, to negate any possibility of innocence of the accused.

This brings to light the controversy surrounding imposition of death penalty in India and the domestic legislations as well as case laws and conflicting global movement in favour of abolishing death penalty.

Facts of the Case

In February 2020, a Trial Court in Kota convicted Mohan Singh for murdering a woman whose naked body was found in a sack in March 2019, though rape charges could not be proved against him. Mohan has previously been convicted for killing three women for which he was serving a life sentence. In 1997, Mohan had committed a double murder of a mother and her daughter in Kota, whose bodies he damaged using a beer bottle. In 2003, he raped and strangled a woman for which he was serving life imprisonment in Sanganer Open Jail, from where he escaped in 2016 and committed the present murder. Mohan had not only murdered the women but had thereafter cut her abdomen and replaced certain organs with her kurti and petticoat which he sewed in her abdomen with a wire. The post-mortem report revealed the missing liver, ovary, uterus and part of the deceased’s intestine.

Looking at the heinous manner of the crime by the accused, as well as his criminal antecedents, the Rajasthan High Court upheld his conviction of death penalty. In 2018, the courts imposed 162 death sentences out which 58 were for murder along with a sexual offence and 45 were for murder only.

Legal Provisions Involved

Section 302 of the Indian Penal Code provides the punishment for the offence of murder. It punishes murder with death, or imprisonment for life and also a fine.

The IPC also allows imposition of death penalty for waging war or attempt to do so against the Government of India (section 121), abetment of mutiny (section 132), abetment of suicide of a child or an insane person (section 305), kidnapping for ransom (section 364A), dacoity with murder (section 396), for repeat offenders in case of rape (section 376E) and by virtue of Criminal Law (Amendment) Act, 2018 for inflicting injuries which causes death or causes the rape victim to be in a persistent vegetative state (section 376A) or for committing rape on a women under twelve years of age (section 376AB) and gang rape of women under twelve years of age (section 376DB).

Article 21 of the Indian Constitution states that no person shall be deprived of life and personal liberty, except according to procedure established by law. There have been many discussions as to how the imposition of death penalty is a violation of the fundamental right to life, but the five bench judge of the Supreme Court in the case of Bachchan Singh v. State of Punjab held, by a majority of 5:4, that death penalty as an alternative punishment is not unreasonable or violative of Articles 14, 19 or 21 of the Constitution.

Articles 72 and 161 of the Indian Constitution empower the President and the Governors to grant pardon, suspend, remit or commute sentence of any person sentenced to death penalty among other cases. The Supreme Court has observed in the case of Shatrughan Chauhan v. Union of India that power conferred upon the executive under these Articles is not a matter of privilege or grace but an important constitutional duty to be performed in the aid of justice and not in its defiance.

Critical Analysis

Out of all the punishments available, the capital punishment is the most severe and extreme. There has been a practice of imposing capital punishment in almost every country since time immemorial. The irreversible nature of the act makes its imposition limited only to those convicted of the most gruesome, heinous and anti-social crimes. With time however, most of the countries put an end to this practice and became signatories to international conventions to prohibit the same. Currently, 133 countries have abolished death penalty in law or in practice. Even the Indian judiciary has acted in accordance with this international trend. In 1979, the constitutionality of capital punishment was challenged before the Supreme Court in the case of Rajendra Prasad v. State of Uttar Pradesh where the Justice Krishna Iyer held that death sentence is not justified unless it is shown that the criminal was dangerous to the society. He also pleaded for the abolition of death penalty and held that discretion given to the judge to choose between death and life imprisonment was violative of Article 14 which condemns arbitrariness.

However, the Supreme Court overruled Rajendra Prasad’s judgment in the case of Bachchan Singh v. State of Punjab and Machhi Singh v. State of Punjab but these cases limited the imposition of death penalty to the ‘rarest of the rare’ cases and issued guidelines to consider the manner of commission of offence, motive, anti-social behaviour or socially abhorrent nature of the crime, magnitude of the crime and the personality of the victim. The concerns about discrimination and arbitrariness are still present in the system despite international organizations like Amnesty International and United Nations seeking the abolition of the death penalty through its resolutions. 

A reason for its ban is the possibility of an innocent person being subjected to the strictest punishment of all. The Law Commission’s 2015 Report stated that 28.9% of the cases where the Trial Court had awarded the death sentence resulted in an acquittal by the High or the Supreme Court. One of the arguments made against the abolition of death penalty is the deterrent effect that such a sentence has on members of the society and the belief that it would actually deter others from committing the same offence. However, the reports and statistics suggest otherwise. The report of Royal Commission on Capital Punishment (1953) which was reiterated in the case of Triveniben v. State of Gujrat concluded that there was no conclusive statistical evidence that capital punishment was any more deterrent that other forms of punishments. Even after bringing the POCSO Act and various amendments to it as well as the Criminal Law (Amendment) Act incorporating death penalties for various offences, the number of cases of sexual assault and rape against children have gone up. Experts believe that the larger interest for bringing such laws is to empathise with the public anger. 

Another serious drawback of capital punishments is that since these acts came into force, there have been more and more cases of murder of the victims of sexual assault by the offender in an attempt to escape prosecution and possibly a death penalty. This can be observed by the fact that the number of death sentences imposed in cases of murder including sexual violence jumped 35% from the previous year. Another problem with the imposition of capital punishment is the possibility that the cases of such nature will not get reported. The National Crime Records Bureau, in its 2016 Report indicated that 94.6% of the rape accused were the victim’s relatives, including brother, father, grandfather, sons or acquaintances. In this situation, there is a chance that the victim, or if the victim is a minor then his or her guardians may not report the case to shield the relative accused to protect them from being subjected to death penalty.

Conclusion

Taking a look at the last fifteen years, the number of people sentenced to death, that were actually executed, stand at eight people, including Dhananjay Chatterjee’s hanging in 2004, Md. Ajmal Kasab’s, Md. Afzal Guru’s, Yakub Memon’s hanging in 2012, 2013 and 2015 respectively and the four of the convicts of Nirbhaya gang rape in 2012, who were hung in March 2020. Thus, despite the provisions allowing death penalty in various offences, the Courts of India have acted in accordance with the international trend of minimising the imposition of capital punishment and used the discretion only in the rarest of the rare cases, involving terrorism or gruesome acts of rape and murder. The power vested with the judges has been and should continue to be used very sparingly, in imposing the most severe and strict punishment there is, death.

Author: Ashray Singh, School of law, NMIMS Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India.

Death penalty debate in India

Reading time: 8-10 minutes.

The International Court of Jurists condemn the execution of four men who were convicted of raping and murdering a 23-year-old student in December 2012 while stating that the execution of the perpetrators was an “affront to rule of law and does not improve access to justice for women”

The International Commission judicially pronounces the execution of four men for the punishment and denounces the executions and instigates to Indian Government to abolish the death penalty. ICJ called the Government to introduce systematic changes to the legal system that would prevent violence and improve access to justice for women

The International Court of Justice opposes capital punishment in all cases except as a violation of the right to life and freedom from cruel, inhuman or degrading punishment.

The International Court of Justice, sometimes called the world court, is the principal organ of the United Nation.

“State-sanctioned executions are little more public theatre that risk celebrating and perpetuating violence at the expense of the rule of law. As heinous as these crimes were, the imposition of the death penalty- the deterrent effect of which has been widely debunked- does nothing to improve the lives of women”.

Evolution of death penalty

After the Constitution was made death penalty was the normal punishment for murder when the first five-year plan was introduced. “If a person commits murder then the person will be awarded death sentence or death penalty is said to a murder”. But the practice of giving the death penalty is changed in 1955 basis on the discretion of the session judge. The session judge gives a discretionary power either in two- Capital punishment or Life imprisonment. Slowly and gradually in the year, the 1973 Code of Criminal Procedure was amended. By amending the proviso of CRPC parliament made it mandatorily that the session judge awarding capital punishment to a person who has committed murder; he has to show the reasons why he or she the judge has to show the special reasons while life imprisonment or while death sentence is awarded.

The famous case while stating for the death penalty in India:-

 In  Bachan Singh case- The Supreme Court ruled out that the death penalty could be imposed in only Rarest of Rare case, a judge or a court can impose i.e. alternative sentences of life is untestable for closed.

In Mache Singh vs. State of Punjab case- The case provides some exemptions to an earlier judgment of the court.

If the murder is committed in a brutal manner.

If the murder is committed by a motive.

If the crime is enormous in proportion.

Protections guaranteed under Constitution:-

Article 21- A person can be deprived not only of his life even under capital punishment.

Article 72- The president can pardon the death sentence while the governor cannot in a state to pardon.

Scope of judicial review- It can be conducted when presidential decision not to pardon the death sentence is arbitrary irrational and discriminatory

Article 134- It is a right of appeal from the High Court verdict to the Supreme Court and this is applicable anywhere when capital punishment is imposed in an acquittal order.

Global trend regarding death penalty

CORPORAL PUNISHMENT- This punishment was very common until the late 18th century. It includes flogging, branding, mutilation, chaining, and pillory.

FLOGGING- in India whipping was recognized as a mode of punishment under the Whipping Act, 1864 which was repealed and replaced by a similar act in 1909. The instruments and methods of flogging however differed from country to country. Some of them used straps and whips with a single lash while others used short pieces of rubber hose.

MUTILATION- It was also a common form of corporal punishment. It was known to have been in practice in ancient India during the Hindu period. In case of theft one or both, the hands of the offender were chopped off and in case of sex-offense his private part cut-off.

BRANDING- It is a mode of punishment that was commonly used in oriental and classical societies. Roman criminal law supported this mode of punishment and criminals were branded with an appropriate mark on their forehead so that they could be easily identified and permanently subjected to public ridicule.

CHAINING- The offenders together was also commonly used as a mode of punishment. Their liberty and mobility were thus completely restricted. The hands and legs of criminals were tied with iron rods and chained together.

PILLORY- This type of punishment was also called poetic punishment through it was more often used in fiction than in poetry. The offender was brought in public place for the execution of the sentence. He could even be publically stoned if offense was of a serious offense.

 Reason behind death penalty in India:-

 The existence of execution in India came into force by Justice JS Verma Panel

The report led to severe changes through the Legal code Amendment Act, 2013.

A report had suggested that seeking such a punishment would be a regressive step within the field of sentencing and reformation.

The committee has criticized the lack of reformatory and rehabilitation policies in jails and juvenile homes.

The committee had argued instead for rigorous punishment of a convict of life.

Critical analysis

  • The death penalty is error-ridden
  • The execution is unfair targets the poor and marginalized
  • Those without capital get the punishment
  • It is being implemented within the “rarest of the rare” cases
  • Its constitutionally is upheld even in liberal democracies like the U.S
  • The hanging of Ajmal Kasab and Yakub Memon strongly affirms India’s commitment to prevention of terrorism
  • Tougher punishments act as a deterrent for others to commit the identical.

Conclusion

The hanging of the four convicts in the Nirbhaya Gang Rape and murder case has come as closure for not just her family but also the police officials who investigated the barbaric case. However the need of the hour is to know and check what we can moderate or can we changed into the legal system without any delay of execution in condemning to death Justice is delayed but not denied.at the most what we can say is justice will ultimately prevail but it took a long time. And we can hope or pray that various victims who have suffered by this type of heinous crime should be delivered through justice by the legal system.

Author: Neha .M. George from ITM University, Raipur.

Editor: Tamanna Gupta from RGNUL, Patiala.

Death penalty in India

Reading time: 6-8 minutes.

Death penalty is the execution by a state to the convict for committing an offence. The execution is done by lethal injection, shooting or hanging. The capital punishment of death given by the court and execution is ironical in a state which protects the vary basis of human right that is the right to life.

For the rarest of rare crime the capital punishment is given and the state ensures that the wrong doer must be punished. But the courts have an idea of not giving the punishment in the exceptional cases only. The capital punishment is given only for the cases of the rarest of rare. The court has laid down these rules and criteria of giving the capital punishment in the cases of heinous crimes. However, the question is whether capital punishment can be done away with in India altogether. Several countries have abolished the capital punishment as it is against the basic human rights.

Death penalty – An overview

A death penalty is given by state for the execution of a convict in a particular case which imposes death penalty on the convict by the provisions of law on day of committing of crime.

The penalty the death is the highest punishment given in a law. It gives the State a right over one’s life. The execution is done by methods like beheading, electrocution, hanging ,lethal injection and shooting.

Mental stability and death penalty

In the recent Nirbhaya case, the Delhi high court declined to entertain a plea seeking directions to the NHRC to intervene and enquire into mental and physical state of the four death row convicts. The contention was that the four convicts were kept in the solitary confinement under fear of the death which can affect the mental status and stability. Also one of the convicts plea was rejected by the court as he was contended to be mentally instable but the court held him to be fit and his mind is sound. The psychologist checked all four convicts and held them to be fine.

Constitutional validity

The constitutional validity of capital punishment was challenged in the landmark judgment of Jag Mohan vs state of Uttar Pradesh, in which the Hon’ble Supreme Court upheld its validity,

stating that capital punishment itself was not unreasonable per se. Its abolition would not be in the public interest, hence the punishment of death penalty does not violate Article 19 of the Constitution. However, a catena of judgements has held that capital punishment is violative of Article 21 of the Indian constitution, which protects right to life and personal liberty.

Landmark judgments

In the case of Bachan Singh v. State of Punjab, the Court observed that Section 354(3) CrPC is part of the due process framework on the death penalty. Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty.

The general rule since Bachan Singh was that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.

Doctrine of rarest of rare

The doctrine of rarest of rare was stated in the landmark judgement of Bachan Singh v State of Punjab, the constitutional validity of the death penalty was upheld by majority of 4 : 1 that death penalty must be awarded in the rarest of rare cases.

Later, in the case of Macchi Singh v state of Punjab, the court held that some categories expanded the criteria of rarest of rare. In the case of Santosh Kumar Bariyar v State of Maharashtra, it was held that the life imprisonment is a rule and death punishment is an exception. In the case of Prajeet Kumar Singh v State of Bihar, the court laid down the rarest of rare criteria ‘when a murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

International trends regarding death penalty

Universal Declaration of Human Rights (UDHR)

  • Article 3 provides that everyone has the right to life, liberty and security of person.
  • Article 5 says that no one shall be subjected to torture to cruel, inhuman or degrading treatment or punishment.
  • Article 11 provides that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trail at which he has had all the guarantees necessary for his defence.

Amnesty International opposed capital punishment in all cases without exception, regardless of who is accused, the nature or circumstances of the crime, guilt or innocence or method of execution.

In many countries, the internationally recognised World Day against the Death Penalty is observed on Oct. 10. In 91 countries death penalty was abolished in 2007. Today, there are 106 countries which have abolished death penalty right now.

Death penalty in INDIA – The debate

The idea of the rarest of rare cases is the one which not only punishes the convict of a heinous crime but also deters others from committing the same crime. However, the idea of correction and reformation need not be solved by death alone. The life imprisonment is a self-realization of one’s own deeds which is also an essential part of reducing and correcting the people.

In the most heinous cases the crime is done by a person without thinking twice. The rights of victim are cruelly violated. With this in mind, death penalty becomes essential for punishing the wrongdoer. However, on the same footing the persons right to life cannot be violated and the person should get equal protection of the rights as the right to life is the foremost and the most important right of a man.

Innocent men are being punished in many cases which unnecessarily leads to the violation of right to life. Sometimes they are being punished for the acts which should not be criminalised in some countries and in some countries, even a juvenile is being punished with death penalty. People also spend their years on death row, causing a severe decline in the mental stability of the convict.

Conclusion

Death penalty is an archaic concept, and many countries and international organisations have condemned the practice. It must be accepted that death penalty is violative of the human and constitutional right to life. It can no longer be justified by the doctrine of rarest of the rare as this doctrine is prone to grave misuse. We must work towards adapting the law to the changing times, and do away with capital punishment.

Author: Deeksha from Bharati Vidyapeeth University .

Editor: Anna Jose Kallivayalil from NLU, Delhi.

Remedies available after award of death penalty

Reading time: 6-8 minutes.

Death Penalty or Capital Punishment is a government sanctioned order whereby a person is sentenced to death for the commission of any heinous offence. It is given in the rarest of rare cases. Death Penalty aims to make the convict as well as the whole society realize the magnitude of the wrong that has happened. The Nirbhaya Rape case involved an appalling incident of brutality and atrocity at its peak.

It showcased the worst shades of human existence and portrayed the inhumane instincts present in the society. This needs to be corrected in order to avoid the commission of such acts in the future. The execution of the death penalty should be done within a reasonable amount of time, unlike the unreasonable delay in the case of the Nirbhaya Rape convicts.

Details and significance of the incident:

The Honorable Supreme Court had announced death penalty to the convicts of the Nirbhaya Rape case. However, the execution of the same been postponed for a very long time. Recently, the court dismissed the plea of separate hanging of the four convicts. One of the four convicts, Akshay Kumar Singh’s mercy petition has been rejected by the President. Pawan Gupta was the only convict who had not filed any such petition, so he has been provided with a week’s time period to avail the same if he wishes to. The postponement of the capital punishment of these barbaric people has, however, a rage across the nation. It seems apt to comprehend the importance of the phrase, justice delayed is equal to justice denied in this case.

Background: Events leading up to this incident

The Nirbhaya case, a shocking instance of barbarism and atrocity, took place on 16 December, 2012 in Southern Delhi. It involved the brutal rape and murder of a 23-year-old woman, Jyoti Singh. She was returning home after watching a movie with a friend of hers. They both boarded a bus with six men in it, including a minor who told them that the bus was going in the direction in which they wanted to go. The direction of the bus changed all of a sudden and the doors were locked.

The friend of the victim became suspicious and a brawl started between him and the other men. He was ruthlessly beaten with an iron rod and at last he became unconscious. The men then started beating Jyoti with the rod and then raped her in a moving bus. The injuries had caused serious illness to Jyoti around her abdomen, genitals and intestine. The medical reports revealed that the vile act included the penetration of an iron rod. They later on threw Jyoti and her friend outside the bus and cleaned it in order to remove evidence. They were found by a passerby and admitted to Safdarjung Hospital. She was in a very bad condition and was provided an emergency treatment. This inhumane act had shocked the whole nation, leading to a nationwide protest.

Reasons behind this move:

Sexual violence is not just a dehumanizing act but also an unlawful infringement of a woman’s right to live with dignity, sanctity and privacy. It is often destructive of the whole personality of the victim and pushes a woman into deep emotional crisis. A crime which destroys the soul of woman deserves a strict implementation of punishment.

However, there have many debates about the award of death penalty. In the 1980 landmark case of Bachan Singh v. State of Punjab, the Hon’ble Supreme Court, in context of death penalty, propounded that, “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.” However, this is a case falling under the rarest of rare cases and hence deserves the execution of death penalty of the convicts.

Remedies available to a person on award of death penalty:

The pardoning principle has been recognized as an act of grace and humanity in every civilized nation. These remedies are as follows:

  •  The award of the death sentence by a trial court must be reaffirmed by a High Court under section 366 (1)of CrPC to make it final.
  • Article 137 of the Indian Constitution provides the power to the Supreme Court to review the orders and judgments passed by it. The review petition can be filed under Section 114 and Order 47 of the CPC.
  • After the dismissal of the review petition, the person can file curative petition. Petitioners can file curative petitions in case of gross violation of principles of natural justice. The curative petition will be sent to the three most senior judges and the bench of judges who passed the judgment. If the majority of them find substance in the petition, then the matter would be sent to the same bench of judges.
  • Mercy Petition can be filed by the convicts. It is to be done within a period of seven days from the date when the Superintendent of jail informs the convicted person of the dismissal of the petition.
  • Article 72 and 161 of the Indian Constitution provides the power to pardon the petitioner to the President and the Governor, respectively.

Scope of improvement in this field:

The court must set a specified period of time within which the judgment of death penalty must be executed. The unnecessary prolonging of the same would tantamount to a great magnitude of emotionally traumatic, financially taxing and socially saddening. The very basic improvement that needs to be done is the uniformity of temporal provision provided to the convicts adjudged to get death penalty. Fast track courts should be more functional, and the element of transparency should be present.

The way forward:

There is a need to speed up the cases having the gravity of involving death penalty. There are many debates going on regarding the constitutionality of the same. However, the reasons why the community as a whole does not endorse the humanistic approach reflected in death-sentence-in-no-case doctrine are not far to seek.

The Supreme Court of India, in the case of Macchi Singh v. State of Punjab (1983), stated the need for fast execution of death penalty. In the first place, the very humanistic edifice is constructed on the foundation of “reverence for life” principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine.

Secondly, it has to be realized that every member of the community should able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of the law operates as a deterrent for criminals. Every member of the community owes a debt to the community for this protection.

Author: Archie Anant from Rajiv Gandhi National University of Law, Punjab.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

Explained: Death Penalty to Parvez Musharaff

Reading time: 6-8 minutes.

On December 17, 2019, a special court of the Supreme Court of Pakistan awarded death sentence to former military general and ex-president of the country Pervez Musharraf for the offence of “high treason”.

The court’s ruling was based on the finding that Musharraf had imposed an “extra-Constitutional” emergency on November 3, 2007. The effect of such declaration of emergency in Pakistan had been that hundreds of top judges were placed under house arrest or dismissed, triggering nationwide demonstrations from lawyers. Therefore, Musharraf’s 2007 declaration of emergency could not be offered the protection of the Constitution.

The offence of high treason is provided in Article 6 of the Constitution of Pakistan, which reads as follows:

Any person who abrogates or reinstates or suspends or attempts to abrogate or subvert or suspend or suspend the Constitution by force or coercion or by any other unconstitutional means shall be guilty of high treason.”

(It is here pertinent to note that Article 6 was inserted in the Constitution of Pakistan by the 18th Amendment in the year 2010. This fact is important as the offence of high treason was therefore not in existence when Musharraf declared the emergency, but was subsequently inserted as a punishable offence. Hence, the law was applied retrospectively to arrest and convict Musharraf.)

In the case of Federation of Pakistan v. General (R) Pervez Musharraf , a three-judge bench comprising of Chief Justice of Peshawar Waqar Ahmed Seth, Justice Shahid Karim and Justice Nazar Akbar found Pervez Musharraf guilty of High Treason.

The decision was passed in 2:1 majority; the dissenting judgement came from Nazar Akbar. In a 167-page Judgement, the Court awarded death penalty to Musharraf on account of five charges framed against him.

The court also noted that in Pakistani law, death is the only penalty for high treason. According to the 1973 High Treason Punishment Act, death or life imprisonment is the penalty for high treason.

The Court also directed in the verdict to law enforcement agencies to ensure that if, the concerned  person is found dead before execution, his corpse be dragged to the D-Chowk, Islamabad and be hanged for three days. After which Pakistan army slammed the trial and its spokesperson regarded, the words used in the written order as beyond humanity, religion, culture and any other values.

Imran Khan’s Goverment has decided to file a reference against Chief Justice of Peshawar High Court Waqar Ahmed Seth for his remarks in the verdict about general’s corps be dragged and hanged.

Musharraf has denied all the allegations stating that ‘I have been victimized’ and the case is based on ‘personal vendetta’. Musharraf currently undergoes medical treatment at a hospital in Dubai. As he is on a self-imposed exile and can lay appeal in the higher Court, the chances of his extradition or implementation of this verdict is unlikely.

Background

Musharraf gained national eminence when he was made army’s general and led Kargil infiltration in 1999. In no time contentious relations started between, then prime minister of Pakistan Nawaz Sharif and army general Pervez Musharraf. Sharif tried to remove Musharraf, in retaliation to which army staged coup d’etat, which led Musharraf being the President of Pakistan in 2001.

Musharraf who seized the power in 1999 through a military coup, which was facing a widespread public backlash. The fear of public opposition and Supreme Court ruling against the presidential elections led him to impose an emergency on November 3, 2007, citing the reason of it to be enervated judiciary and high threat from militant attacks. He claimed that the imposition was necessary considering ‘national interest’.

For a period of 4 months, all civil liberties, human rights and democratic processes were suspended. The final years of his reign were characterised by fighting against the courts over his desire to remain head of the army while becoming president. He also detained a number of judges and issued provisional legislative orders to uphold his regime. Strong public resentment, creeping Talibanisation and rising US pressure caused Musharraf to succumb and finally resign.

On July 31, 2009, the Supreme Court of Pakistan ruled that the emergency imposed was unconstitutional under Article 279 of the Constitution of Pakistan and declared the steps in declaring the state of emergency to be null and void, and adjudged the removal of judges to be unconstitutional and illegal. Musharraf refused to answer charges against him and fled to the UK.

The case against Musharraf

Musharraf in 2013 returned to Pakistan to participate in that year’s general elections but was then booked for treason and was disqualified from participating after warrants were issued against him. He was accused of high treason under Article 6 of the Constitution of Pakistan, 1973.

The court held that he should be apprehended from Dubai and must be hanged by neck till he dies and if found dead before being executed his corpse to be dragged and hanged for three days.

To proof the jurisdiction to pass this verdict, the court relied on the previous ruling of Pakistan Supreme Court in Lahore High Court Bas Association v. General (R) Pervez Musharraf. Though the word high treason is not defined in Pakistan’s constitution, the court relied on its dictionary meaning. Also, the retrospective application after the insertion of article 6 is disputable.

It can be no coincidence that the decision came in haste just 2 days before the retirement of Chief Justice Asif Khosa, who gave a green flag to the special court to pass the verdict in absentia.

Explaining the Charge – What is high treason?

In UK, the crime of disloyalty to the crown is known as high treason. In earlier times high treason was separated from petit treason, and was considered as the most serious offence subjected to extraordinary punishments.

High treason offences were generally related to the sovereign and its subjects while petty treason was of any sub-ordinate relation, such as, in a master-servant relationship, of a bishop and a clergyman, of a husband and a wife etc. In 1828 petit treason ceased to be a distinct offence and high treason is today referred simply as treason.

Sir Edward Coke, Baron de Montesquieu, Sir Matthew Hale, and Sir William Blackstone regarded the highest of offences to be treason and declared it needed to be precisely defined in order to prevent governmental abuse.

Similar laws in India

While treason is not explicitly defined in Indian law, it is included in State offences (under sections 121-124A IPC). In the case of Ram Nandan v. State of U.P., the Hon’ble High Court held that section 124A enforced restrictions on free speech which are not in the general public’s interest and therefore proclaimed 124-A to be unconstitutional.

However, in the case of Kedarnath Das v. State of Bihar, the Hon’ble Supreme Court overturned this judgment and upheld Section 124-A as valid and constitutional. Generally defined, in so far as it disturbs public order, all offences are against the state or government.

However, there are certain illegal acts that are aimed against the state’s very existence, some of which are treason, espionage, and revolt. Treason is the offence of betraying a state by actions that are perceived to be dangerous to its protection, such as selling military secrets to a foreign power, aiding the tyrant in wartime, etc.

Treason is also explained in the 43rd Law Committee report, explaining offences against national security as an expression that is generally applied in its narrow and limited sense to those very severe offences that explicitly and recklessly affect the security and competence of the Country.

Conclusion

While some regard this judgement as a historic decision to curb military influence and to destabilise Pakistan’s military establishments as profit making companies and see this verdict in the light of a means to recognise supremacy of constitution and rule of law in Pakistan.

Contrary to this opinion, others do not relate this matter with constitution or justice but an ongoing hustle between the two institutions craving for power and dominance. Pakistan Army Spokesman Maj Gen Asif Ghafoor was quoted as saying, “The due legal process seems to have been ignored including constitution of special court, denial of fundamental right of self-defence, undertaking individual specific proceedings and concluding the case in haste.”

Therefore, the Court in issuing the hasty judgement and order, had failed to ensure the basic rights of the accused, as provided by the Constitution. Nevertheless, the conviction against Musharraf is significant for Pakistan, as it sets a precedent for governance.

Since the inception of democracy in Pakistan in 1970, this is the first time that a military leader has faced any kind of accountability by public as well as judicial resentment. Such an unprecedented event is surely the avant-courier of a new political age for the country.

Authors: Aryan Parashar from National Law University Odisha and Muskaan Verma from Alliance School of Law, Bangalore.

Editor: Anna Jose Kallivayalil from NLU, Delhi.