Ordinarily, all criminal trials are conducted in a Court of Session, and therefore, it is trial court who imposes death sentence. Rarely it comes that the accused acquitted in trial court gets convicted of death penalty in High Court or Supreme Court. According to Section 366 (1) of the Code of Criminal Procedure, 1973 (CrPC), when the Court of Session passes a sentence of death, the proceeding shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. Therefore, irrespective of whether the prisoner files an appeal or not, a death sentence imposed by Court of Session is referred to the concerned High Court for confirmation. However, several central legislations which exclude the application of the CrPC, 1973 do not require confirmation of death sentence by the High Court for the capital offences contained thereunder. Except in a few circumstances, there is no automatic right available to a prisoner sentenced to death to have her case heard by the Supreme Court.
In criminal matters, an appeal lies to the Supreme Court under Article 132 of the Constitution if a certificate of appeal has been granted by the High Court stating that the case involves a substantial question of law regarding the interpretation of the Constitution. The Supreme Court may also be approached under Article 136 of the Constitution which gives the Court the discretion to decide whether it wants to hear a case filed under its ‘special leave’ jurisdiction. While the Supreme Court has rarely refused to hear the appeals of prisoners sentenced to death, there have been few instances of such refusal, making it a matter of grave concern. In the last decade, the Supreme Court has refused to hear special leave petitions in nine death sentence cases involving 11 prisoners, dismissing them at the admission stage. Apart from Articles 132 and 136, an appeal to the Supreme Court in death sentence cases shall necessarily lie under Article 134 of the Constitution, in the following three instances: (1) where High Court has reversed an order of acquittal of an accused person and sentence him to death on an appeal filed before this Court;
(2) where High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or
(3) certifies under Article 134A that the case is a fit one for appeal to the Supreme Court, then a petition seeking review of the judgment or order passed by it may be filed under Article 137 within 30 days from the date of such judgment or order.
In September 2014, a five-judge bench of the Supreme Court in Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India & Ors [(2014) 9 SCC 737] held that in all the cases in which death sentence has been awarded by the High Court in appeals pending before the Supreme Court, only a bench f the three Hon’ble Judges will hear the same. This is for the reason that at least three judicially trained minds need to apply their minds at the final stage of the journey of a convict on death row, given the vagaries of the sentencing procedure outlined above. It is also held that a limited oral hearing with an outer limit of 30 minutes even at the review is mandated by Article 21 in all death sentence cases. If a review petition is dismissed, the Supreme Court may allow a curative petition to reconsider its judgment or order, if it is established that there was a violation of principles of natural justice or an apprehension of bias on the part of a judge. The curative petition would be disposed of without oral arguments, unless ordered otherwise by the Supreme Court.
After the death sentence has been confirmed either by the High Court or the Supreme Court, a person can file a request for pardon either with the Governor of the state (Article 161 of the Constitution) or the President of India (Article 72 of the Constitution). The nature of power exercised by a Governor or the President is different from judicial decision-making and does not result in abrogating the previous judicial record. The exercise of this power is not limited to the consideration of evidence that was placed before the courts, but may also involve the examination of various factors that may be pertinent to the question of sentencing, such as the prisoner’s age, socio-economic circumstances, gender and mental health. However, there is no requirement on the part of the executive to provide reasons for the rejection or acceptance of requests for pardon. While the merits of the executive’s decision cannot be scrutinised by the judiciary, the area and scope of the pardoning power may be reviewed by the High Courts or the Supreme Court. In January 2014, the Supreme Court in Shatrughan Chauhan & Anr v. Union of India & Ors [(2014) 3 SCC 1] held that non-consideration of supervening circumstances by a Governor or the President while rejecting a mercy petition would be in violation of the right to life guaranteed under Article 21 of the Constitution and would be a sufficient ground for commutation of the death sentence to imprisonment for life. The supervening circumstances discussed by the Court were unexplained delay in disposal of mercy petition, insanity/mental illness/ schizophrenia, solitary confinement, reliance on judgments declared per incuriam and procedural lapses in the disposal of the request for pardon.