should capital punishment be abolished in india essay

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• Criminal Law
• death penalty
• Indian Penal Code 1860
• International Covenant on Civil and Political Rights (ICCPR)
• the Indian death penalty jurisprudence
• the NDPS Act

Death penalty should be abolished : an ongoing debate

This article is written by Sujitha S, from the School of Excellence in Law, Chennai. This article deals with the contemporary legal issue of the abolition of the death penalty in India. Further, it briefly discusses the various arguments, alternative punishments, the relevant legal framework, and the validity of the punishment in India. 

This article has been published by  Shoronya Banerjee .

Table of Contents

Introduction 

In light of the circumstances brought forth by the twenty-first century, the death penalty debate is the most socially important topic. In India, the death penalty is a fundamental aspect of the criminal justice system. With the growing prominence of the human rights movement, the death penalty’s mere existence is being questioned as unethical. The 262nd Law Commission report has been widely hailed as a “historic,” “seminal,” “decisive,” and, in a more hyperbolic tone, a “paradigm shift” in the Indian death penalty jurisprudence. But what progress has it achieved by advocating revisions to the language of exception? With terrorism cases, the report replaces the rarest of rare criteria as the exception to death penalty repeal. In recent years, the death penalty issue has garnered considerable attention. While proponents of the death penalty argue that it should only be applied to the most egregious offences, human rights advocates argue that the death penalty violates an individual’s basic human rights.

The death penalty is not a novel concept; it has existed since the beginning of civilization. The death sentence (typically involving beheading the individual) was imposed by the king in ancient times for the express non-compliance of any person with any command issued by the king or with any moral obligation imposed on that person. It was eventually inserted into the Indian Penal Code of 1860, resulting in its legal incorporation, and it has been lawful in India ever since. In the twentieth century, there was a campaign to abolish the death penalty, which led to numerous states following suit and abolishing the death sentence. However, the death penalty has remained in place in India. This has sparked a lot of discussion and controversy, with human rights advocates presenting compelling arguments for the death penalty’s elimination.

Law Commission of India’s report

In its 262nd Report (August 2015), India’s Law Commission proposed that the death penalty be abolished for all crimes excluding terrorism-related offences and war. The report’s full recommendations are as follows: 

• The Commission urged that the government should implement measures such as police reforms, witness protection schemes, and victim compensation schemes as soon as possible.
• The path of our own jurisprudence: From 1955, when no special reasons were required for imposing life imprisonment instead of death, to 1973, when special reasons were required for imposing the death penalty, to 1980, when the death penalty was limited to the rarest of rare cases by the Supreme Court – demonstrates the path we must take. 
• The Commission felt that the time had come for India to move towards abolition of the death penalty, informed by the expanded and deepened contents and horizons of the Right to Life, strengthened due process requirements in interactions between the state and the individual, prevailing standards of constitutional morality and human dignity.
• Despite the fact that there is no acceptable penological reason for treating terrorism differently from other crimes, there is often concern that abolishing the death sentence for terrorism-related offences and war will have an impact on national security. 
• Given the legislators’ concerns, the Commission saw no reason to wait any longer to take the first step toward abolishing the death sentence for all offences other than terrorism-related offences.

Death penalty under IPC

The death penalty, also known as capital punishment, is the harshest form of punishment available under any criminal law in existence anywhere in the world. The legal method through which the state exercises its power to take an individual’s life is known as capital punishment. “No individual shall be deprived of his life or personal liberty except pursuant to the procedure established by law,” says Article 21 of the Indian Constitution , which guarantees every citizen the fundamental right to life. This means that your right to life will never be taken away from you until you follow the legal system, which means that the state can take away your life if it sees fit through the legal process. Not all crimes are punishable by death; in fact, most agencies do not seek capital punishment; rather, it is reserved for the most egregious of offences.

Eleven offences mentioned below if performed inside the territory of India are punishable by death, according to the Indian Penal Code and other Acts:

• Section 120B : Being a party to a criminal conspiracy to commit a capital offence.
• Section 121 : Waging, or attempting to wage war, or abetting waging of war, against the Government of India.
• Section 132 : Abetting a mutiny in the armed forces (if a mutiny occurs as a result), engaging in mutiny.
• Section 194 : Giving or fabricating false evidence with intent to procure a conviction of a capital offence.
• Sections 302 , 303 : Murder.
• Section 305 : Abetting the suicide of a minor.
• Section 364A: Kidnapping, in the course of which the victim was held for ransom or other coercive purposes.
• Section 376A : Criminal Law (Amendment) Act, 2013: Rape if the perpetrator inflicts injuries that result in the victim’s death or incapacitation in a persistent vegetative state, or is a repeat offender
• Section 396 : Banditry with murder, in cases where a group of five or more individuals commit banditry and one of them commits murder in the course of that crime, all members of the group are liable for the death penalty.
• Part II, Section 4 of Prevention of Sati Act , aiding or abetting any act of Sati such as:
• Any inducement to a widow to have her body burned or buried alive alongside the body of her deceased husband, or with any object associated with the husband, regardless of whether she is in a fit state of mind or is suffering from intoxication, or any other cause impeding her free will.
• Convincing a widow or woman that the act of Sati will bring spiritual advantage to her or her departed spouse or relative, or to the family’s overall well-being.
• Encouraging a widow or woman to stick to her decision to commit Sati, thus inciting her to do so.
• Engaging in any procession in conjunction with the commission of Sati , or assisting the widow or woman in her choice to commit Sati by transporting her to the cremation or burial cemetery with the body of her departed spouse or relative.
• Being present at the location where Sati is committed to such a commission or any ceremony associated with it as an active participant.
• Hindering or impeding the widow or woman from escaping being burned alive or buried alive.
• 31A of the Narcotic Drugs and Psychotropic Substances Act ,1985 – Drug trafficking in cases of repeated offences: Regardless of Section 31, if any person who has been sentenced for the commission of, or attempt to carry out, or abetment of, or criminal scheme to carry out, any of the offences culpable under Section 27 of the NDPS Act, including offences involving the business amount of any opiate tranquiliser or psychotropic substance, is indicted in this manner for the commission of, or attempt to carry out, or abetment of, or criminal scheme to carry out;
• Any taking part in the production, manufacture, ownership, transportation, importation into India, exportation from India, or transhipment of opiates or psychotropic substances.
• Any exercise specified under the said Article, that is financed, legally or by implication, shall be punishable with death.

Death penalty : the international framework

• Despite the fact that the death penalty was still in practice in the majority of countries in the early 1960s, the drafters of the International Covenant on Civil and Political Rights (ICCPR) have already begun efforts to have it abolished in international law.
• Although Article 6 of the ICCPR allows for the use of the death penalty in restricted circumstances, it also states that nothing in this Article shall be invoked to delay or hinder any State Party to the present Covenant from abolishing capital punishment.
• The UN Economic and Social Council enacted Safeguards in 1984, ensuring that persons facing the death penalty have their rights protected.
• The ICCPR’s Second Optional Protocol aims to abolish the death penalty.
• The UN General Assembly ratified the Second Optional Protocol to the ICCPR in 1989, 33 years after the adoption of the Covenant itself, giving abolition a powerful fresh boost. Members of the Protocol’s signatories pledged not to execute anyone within their domains.
• Resolutions of the United Nations General Assembly: The General Assembly urged states to observe international standards that protect the rights of persons facing the death sentence in a series of resolutions enacted in 2007 , 2008 , 2010 , 2012 , 2014 , 2016 , and 2018 , and to gradually reduce the number of offences punishable by death.

Arguments against the abolition of death penalty

Prevention of future crimes.

To begin with, the death sentence will prevent future offences. Future crimes may be discouraged by imposing the worst punishment for the most terrible of offences. This has a profound effect on human psychology. When a person knows he is likely to be severely penalised for specific conduct, and the cost of that behaviour much surpasses the reward, it is self-evident that he will not commit that act.

Ensuring justice

Second, the death penalty ensures that justice is served. The Preamble to the Indian Constitution aims to achieve, among other things, justice for all Indian citizens. The ways by which such justice can be achieved are crucial. Isn’t it only just that a person who has committed the most terrible of crimes, who poses a threat to society as a whole, who has no repentance, no ounce of humanity left in them, be sentenced to death? What rights are these offenders supposed to have, according to human rights advocates? What about the citizens’ trust in the justice system to ensure that a person is punished proportionately to the offence that he or she has committed? These questions clearly establish a foundation from which the elimination of the death penalty is viewed with severe scepticism.

Judicial reasoning

Third, the death penalty is not imposed arbitrarily. The death sentence in India is not imposed on the basis of no evidence or without any logic or reasoning. To begin with, as previously indicated, capital punishment is only applied in the rarest of circumstances. Even if the death sentence is carried out, the convict has the right to make a mercy petition, or the death sentence may be modified to life imprisonment owing to undue delay. The executive may launch a separate investigation and request new evidence after receiving the mercy petition. If new material is revealed, that is, information that is not included in the judicial record of the case, the executive may approve the mercy petition and reduce the convict’s death sentence to life imprisonment.

Furthermore, there are precise objective criteria, established by precedents, that must be met in order for a death sentence to be commuted to life imprisonment.

Bachan Singh v. State of Punjab (1980)

It was argued during the hearing of Bachan Singh’s case that the following conditions may be used as parameters for finding aggravating circumstances that would support the application of the death penalty:

• if the murder happened after preplanning and involves extreme inhumanity; 
• if the murder involves extraordinary depravity; or 
• if the murder of army men or any public servant was committed—
• while such person was on duty; or 
• as a result of anything done or attempted to be done by such member in the lawful discharge of his duty, if he was such member or public servant, as the case may be, at the time of the murder, or had ceased to be such member of a public servant; or 
• If the victim was a person who had acted in the legitimate exercise of his duties under Section 43 of the Code of Criminal Procedure 1973, or who had provided assistance to a Magistrate or a police officer who had demanded or required his support under Sections 37 and 129 of the same Code.

It was also recommended that the court, in exercising its discretion, examine the following factors as mitigating factors for granting the lower punishment of life imprisonment.

• The offence was committed when the accused was suffering from severe mental or emotional instability; 
• The age of the accused, If the accused is young or old, he shall not be sentenced to death;
• The likelihood that the accused would not commit criminal acts of violence that would pose a continuing threat to society; 
• The likelihood that the accused can be reformed; 
• That the accused believed he was morally permissible in committing the offence in the light of facts and circumstances of each case; 
• That the accused acted under the duress of another person’s superiority; 
• That the accused’s condition revealed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
• In the case of Machhi Singh and Others v. the State Of Punjab (1983) , the Supreme Court established certain standards for the imposition of the death penalty. The following were the guidelines:
• Except in the most serious circumstances of extreme culpability, the death sentence is not required.
• Before deciding on the death penalty, the circumstances of the ‘offender’, as well as the circumstances of the ‘crime,’ must be considered.
• The death penalty is an exception rather than the norm. To put it another way, a death sentence must be imposed only when life imprisonment appears to be an insufficient punishment in light of the relevant circumstances of the crime, and only if the option of imposing a life sentence cannot be exercised conscientiously in light of the nature and circumstances of the crime and all relevant circumstances.
• Before exercising the option, a balance sheet of aggravating and mitigating circumstances must be drawn out, with the mitigating factors given full weightage and a just balance created between the aggravating and mitigating circumstances.

However, in order for a court to apply these guidelines, it must first ask and answer the following two questions: 

• Is there something unusual about the crime that makes a life sentence insufficient and necessitates the imposition of a death sentence?
• Are the circumstances of the crime such that there is no alternative but to impose a death sentence even after giving maximum weight to the mitigating circumstances that speak in the offender’s favour? 

And the court must evaluate if the case fits into the category of “rarest of rare case” and so warrants the death penalty, based on the circumstances of the case and the responses received to the questions given.

Human rights

The possibility of a life-sentenced prisoner escaping is not unknown in Indian prison history. In the context of this situation, the question of society’s overall safety arises. Under the guise of human rights, a convicted criminal’s potential threat to society cannot be avoided. Furthermore, it is absurd to grant “human” rights to criminals who have lost any sense of humanity. This is especially true for offenders who are unable to be reformed. These offenders do not have a right to life because of the horrible acts they have done, which put other people in danger.

Question of morality

While abolitionists argue that it is unethical for the state to take a person’s life, the same argument may be made for the opposite. It implies that the presence of capital penalty implies that the state accords individual dignity to prisoners by considering them as individuals capable of choosing their own paths and accepting full responsibility for their conduct. If capital punishment is abolished on the grounds of immorality, it is equivalent to treating criminals as animals who lack morality and must be absolved for even the most horrible crimes they have committed.

Arguments in favor of the abolition of death penalty

Execution of innocent people.

Innocent individuals have been executed in the past and will continue to be executed in the future. No matter how advanced a legal system is, it will always be vulnerable to human errors. Between 2000 and 2014, the Supreme Court and high courts acquitted a fifth of individuals sentenced to death by trial courts. That’s 443 individuals who were sentenced to death but were later determined to be innocent of all accusations.

Arbitrariness

The possibility of the death penalty being applied arbitrarily cannot be ruled out. The death sentence is frequently used disproportionately on the poor, minorities, and members of racial, ethnic, political, and religious communities. According to the National Law University Delhi’s Death Penalty India Report 2016 (DPIR) , approximately 75% of all convicts sentenced to death in India are from socio-economically underprivileged categories, such as Dalits, OBCs, and religious minorities.

Human rights and dignity are incompatible with the death penalty. The death sentence is a violation of the right to life, which is the most fundamental of all human rights. It also infringes on the right not to be tortured or subjected to other brutal or degrading treatment or punishment. Furthermore, the death penalty degrades the basic dignity of every human being.

The death sentence does not have the deterrent effect that its supporters claim it does. “There is no solid proof of the death penalty’s deterrent value,” the United Nations General Assembly has stated ( UNGA Resolution 65/206 ). It’s worth noting that the effectiveness of the death penalty in preventing crime is being seriously questioned by a growing number of law enforcement experts in many retentionist states.

Public opinion

The public’s support for the death penalty does not necessarily imply that the state has the authority to take a human being’s life. There are unmistakable historical precedents where majorities of people supported terrible human rights atrocities, only to be roundly denounced later. Leading people and politicians have a responsibility to emphasise the incompatibility of capital punishment with human rights and dignity. It is important to emphasise that popular support for the death sentence is intrinsically tied to people’s desire to be free of crime. There are, however, more effective methods for preventing crime.

The current scenario in India

Validity of death penalty in india.

There are a total of 404 people on death row as of December 31, 2020, with Uttar Pradesh having the highest, with 59, Maharashtra having 45, and Madhya Pradesh having 37. Andhra Pradesh has the fewest death row inmates, with only two. Article 21 of the Indian Constitution guarantees everyone’s fundamental right to life and liberty. It goes on to say that no one’s life or personal liberty can be taken away from them unless they follow a legal procedure. This has been interpreted legally to suggest that if a procedure is fair and valid, the state can deprive a person of his life by enacting a law. While the central government has stated that the death penalty will remain in place as a deterrent and for those who pose a threat to society, the Supreme Court has also affirmed the constitutional legality of capital punishment in “rarest of rare” circumstances. The Supreme Court upheld the constitutional legitimacy of the death penalty in three cases: Jagmohan Singh v. State of Uttar Prades h (19 73) , Rajendra Prasad v. State of Uttar Pradesh (1979), and Bachan Singh v. State of Punjab (1980). It stated that a convict can be sentenced to death if the capital penalty is established in the law and the method is fair, just, and reasonable. This will only happen in the “rarest of rare” instances, and judges should give “exceptional reasons” when sentencing someone to death.

Rarest of rare

The criteria of what constitutes the “rarest of rare” were put down by the Supreme Court in Bachan Singh v. State of Punjab, a landmark decision (1980). The Supreme Court established some broad illustrative criteria, stating that it should be issued only when the alternative of a life sentence is “unquestionably foreclosed.” To reach this conclusion, the court was given complete discretion. The Supreme Court, on the other hand, established the notion of balancing, aggravating and mitigating circumstances. A balance sheet of aggravating and mitigating circumstances in a specific case must be constructed to determine whether justice will be served if a sentence other than death is imposed.

The Supreme Court ruled that two key questions may be asked and answered. First, is there something unusual about the crime that makes a life sentence insufficient and necessitates the death penalty? Second, are the circumstances of the crime such that there is no other option than to inflict the death penalty, even after giving the most weight to the mitigating circumstances that speak in the offenders’ favour.

Mercy petitions

The Indian government’s Ministry of Home Affairs has prepared a “Procedure Regarding Petitions for Mercy in Death Sentence Cases” to help state governments and prison officials deal with mercy petitions presented by death row convicts. In the case of Shatrughan Chauhan v. Union of India (1947) , the Supreme Court stated that before deciding on mercy pleas, the Home Ministry considers the following factors:

• The accused’s personality (such as age, sex, or mental deficiency) or the circumstances of the case (such as provocation or similar justification);
• Cases in which the Appellate Court expressed doubts about the reliability of evidence but still decided on conviction;
• Cases in which it is alleged that new evidence is obtainable primarily to determine whether a new investigation is warranted;
• Cases in which the High Court reversed acquittal.
• Is there a difference of opinion among the High Court Judges that requires a referral to a larger bench?
• Evidence consideration in determining responsibility in a gang murder case.
• Prolonged inquiry and trials, etc.

When the actual actions of the Ministry of Home Affairs (on whose recommendations mercy petitions are considered) are examined, it is clear that these standards were not followed in many cases. In a number of situations, Writ Courts have looked into how the executive has handled mercy requests. In reality, the Supreme Court considered 11 writ petitions contesting the executive’s denial of the mercy petition as part of the Shatrughan Chauhan case.

Global perspective 

In 2007 , the United Nations proposed to all of its member countries that the death penalty be abolished for all crimes. India, as well as a number of other countries, including the United States, have rejected this plan.

In 2003 , the World Coalition Against the Death Penalty declared October 10th to be International Day Against the Death Penalty. The European Union, the United Nations, and Amnesty International are among the non-governmental and international organisations that support it. Each year, it focuses on a different subject, highlighting concerns such as living circumstances, mental health, poverty, and narcotics, all of which are related to the death penalty.

The death penalty is one of the most controversial issues in the world, and it is a topic that is constantly being debated. Over 70% of the world’s countries have abolished capital punishment in law or practice, according to the Death Penalty Information Center. According to Amnesty International, by the year 2020, 108 countries will have abolished the death sentence in law for all crimes, and 144 countries will have abolished it in law or practice.

In the last ten years, 28 nations have practically abolished the death penalty by not executing anyone; 55 countries still have the death penalty for ordinary crimes.

According to Amnesty International, 1,477 people have been sentenced to death in 54 nations throughout the world. In addition, 483 executions were recorded in 18 nations. China, Iran, Saudi Arabia, Iraq, and Egypt were the countries with the most executions. It is crucial to note, however, that secrecy prevents proper reporting of executions, and hundreds more could be carried out each year.

The following are some of the 55 countries that still use the death penalty: Bangladesh, China, Egypt, Ethiopia, India, Indonesia, Iran, Japan, Nigeria, Saudi Arabia, South Korea, Sri Lanka, Taiwan, and the United State. 

Alternative punishments 

As a response to challenges presented in death cases, the Supreme Court has enshrined the punishment of “full life” or a life sentence of a set number of years. In Swamy Shraddhanand v. the State of Karnataka (2008) , the Supreme Court, in a three-judge bench ruling, provided the groundwork for this developing punishment alternative as follows:

• The situation can be viewed from a somewhat different perspective. There are two dimensions to the question of sentence. A sentence can be excessive and unnecessarily severe, or it can be woefully lacking. When an appellant comes to this Court with a death sentence imposed by the trial court and confirmed by the High court, the Court may determine, as it did in this instance, that the case falls just short of the rarest of the rare, and may be hesitant in upholding the death sentence. However, given the nature of the crime, the Court may strongly believe that a sentence of life in prison with remission, which generally works out to a term of 14 years, would be disproportionate.
• Furthermore, the formalisation of a distinctive form of sentencing, though for a very small number of instances, will have the significant benefit of having the death penalty on the law book but using it as infrequently as possible, in the rarest of cases.

The observations in the Swamy Shraddhanand case have been followed by the Court in a number of cases, including Haru Ghosh v. State of West Bengal (2009) , State of Uttar Pradesh v. Sanjay Kumar (2012) , Sebastian v. State of Kerala (2015) , and Gurvail Singh v. State of Punjab (2013) , where full life or a fixed number of years has been awarded instead of the death penalty.

Other alternatives include

Life imprisonment without parole.

Although capital punishment is the toughest form of punishment, a criminal must still be punished for the offence he commits. One of the options may be life imprisonment without parole, which means the offender would be imprisoned for the rest of his life without the possibility of parole, which would allow them to leave the prison only after serving a portion of their term. Prisoners can also be sentenced to an indeterminate length of imprisonment, in which the prisoner is condemned to prison for a set period of time but is only guaranteed release after a review.

Usage of resources towards rehabilitation

Another option is to move resources away from the death penalty and toward rehabilitation programmes or support for both victims and convicts.

Occupation without remuneration

As death penalties are only used in the most extreme circumstances involving the most heinous offences, the punishment should be served equally but not lead to someone’s death. In such instances, the inmates could be hired for low-wage occupations, increasing productivity while also helping the economy in some way. Cleaning roadways, building sites, secretarial work, and other such duties should not be paid. This might be beneficial to both the economy and the government because they would receive free labour, achieving two goals: making criminals face harsher penalties and saving money to invest in health or education sectors.

The concept of capital punishment is centuries old and has been used in every community throughout history. Despite the fact that times have changed and society has progressed, this practice is being carried out in the twenty-first century. The most severe type of punishment for the most heinous crimes, such as murder, rape, waging war, and acts of terrorism, is a capital penalty, which is only applied in the rarest of circumstances. The death penalty is when a person’s life is taken away because of a crime he has committed. Although it is still used in society today, it has been eliminated in the majority of countries.

For years, capital punishment has been a contentious issue not only on a worldwide level but also on a national level in India. As the death penalty is painless and speedy, it serves to preserve resources that might otherwise be wasted or could be employed elsewhere if wrongdoers were just imprisoned or confined behind bars. Given that India’s prisons are currently overcrowded, their basic needs for survival consume a significant portion of the economy. Since convicts have human rights, it is the government’s responsibility to protect them. The primary goal of the death sentence is deterrence, that is, to prevent an individual from committing a similar crime in the future, as well as to deter others from doing so by displaying severe repercussions. There are extremely few opportunities to avoid the repercussions of wrongdoing. The fact that Article 21 of the Indian Constitution, which stipulates, “No person shall be deprived of his life or personal liberty…” , is a contradiction to the approval of a death sentence because taking someone’s life is against Article 21 of the Constitution.

Due to the difficulty of seeking justice in a country like India with so many cases awaiting, there have been instances where innocent persons have been sentenced to death. Rehabilitation is required in addition to the goals of prevention and deterrence. A criminal’s opportunity of rehabilitation is taken away when he or she is sentenced to death. This type of punishment is akin to putting a full halt to an individual’s life. It’s also worth noting that while death penalties should reduce the number of crimes committed, crime rates have risen in recent years, along with the severity of offences. As a result, based on the statistics, the motivation for capital punishment appears to be ineffective.

A sentence like capital punishment should be substituted by alternatives like those stated above in a country like India, where the Constitution protects the human rights of 1.3 billion people. Although capital punishment is terrible, it can also be ineffectual, resulting in the deaths of innocent individuals. Since god gave us life, only god, not the state, has the authority to take it away from us. Taking all of this into account, new appropriate regulations should be created to ensure the successful execution of alternatives to capital punishment, as well as advice from professionals.

• https://sls.pdpu.ac.in/downloads/ExpertsSpeakFinal.pdf
• http://164.100.47.193/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf
• https://allindialegalforum.in/2021/07/09/is-there-an-alternative-to-capital-punishment/
• https://www.bbc.com/news/world-45835584
• https://www.amnesty.org/en/documents/act50/3760/2021/en/
• https://lawcommissionofindia.nic.in/reports/report262.pdf
• https://icomdp.org/why-the-death-penalty-should-be-abolished/
• https://www.advocatekhoj.com/library/lawreports/capitalpunishment/24.php?Title=Capital%20Punishment&STitle=Arguments%20for%20abolition
• https://www.legalserviceindia.com/articles/cap_pp.htm
• https://indians4sc.org/2020/04/24/abolishment-of-capital-punishment-in-india/#.Yc4KdslBzIV
• https://www.britannica.com/topic/capital-punishment/Arguments-for-and-against-capital-punishment

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Capital Punishment in India – Should we do away with it?

From Current Affairs Notes for UPSC » Editorials & In-depths » This topic

There is growing support for abolishing capital punishment in India and it needs serious consideration since, on the other side, there has been a nationwide outrage over the series of incidents of sexual assaults of minor girls , like the one in Kathua. The Supreme Court itself admitted on many occasions that there are confusion and contradiction on the application of the death penalty.

This topic of “Capital Punishment in India – Should we do away with it?” is important from the perspective of the UPSC IAS Examination , which falls under General Studies Portion.

What is capital punishment?

• Capital punishment is the punishment which involves the legal killing of a person who has committed a serious crime such as murder.
• The term Death Penalty is sometimes used interchangeably with Capital Punishment, even though the imposition of the death penalty is not always followed by execution due to the possibility of commutation to life imprisonment.

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What is the need for capital punishment? / Arguments in favour? / Why India still retains it?

• Capital punishment is an important instrument for preserving law and order, deterring crime and costs less than life imprisonment.
• Retributive justice or “an eye for an eye” honours the victim, helps console grieving families and guarantees that the perpetrator never has an opportunity to cause future tragedy.
• Death sentence serves as a deterrent for other criminals as well.
• A guilty must be punished with respect to the severity of the crime. Murder and rape are very severe crimes = death penalty must be imposed on such crimes.
• The death penalty is needed in law books to contain terrorism. It forms part of the national response against terrorist activities.
• The death penalty provides much-needed closure for the victims’ families.

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What are the arguments against the death penalty?

• There is no sufficient evidence to prove that the death penalty is any more effective in reducing crime than imprisonment. Notably, Brutal rapes in India have not decreased despite the enforcement of the Criminal law (Amendment) Act, 2013 which prescribes the death penalty and life imprisonment for sexual assaults that result in the victim dead or being reduced to a persistent vegetative state.
• It gives arbitrary power to the government for taking a human life = violation of the right to life guaranteed under Article 21 of the constitution.
• It aggravates social injustices by targeting people who cannot afford good lawyers.
• Lifetime jail sentences are more severe and less expensive punishment than death.
• Human rights activists argue that it is inhumane and barbaric to sentence the criminals with the death penalty.
• The death penalty is like murdering criminals as revenge. What if the perpetrator has also murdered a person for revenge? = Imposing the death penalty makes the government as well as the citizens murderers.
• Death sentence violates international human rights laws.
• As the death sentence is irrevocable, an innocent person can also be wrongly executed.
• There is no uniform and fair principle on the execution of convicts on death row.
• There are 3 major objectives of punishment i.e., retribution, reformation, and deterrence. The theory of reformation is based on the obligation of society to reform a convicted person. But this objective will be entirely defeated in case of capital punishment since the offender does not continue to live.
• It reduces the chances of survival of the victim. For example, the death penalty would motivate rapists to do more harm to the victims.
• The populist death penalty solution to curb sexual violence is highly patriarchal which overemphasize the sexual aspect of the assault and strengthen the stigma associated with rape.
• As per the law commission report, around 76% of death row prisoners were from poor, backward classes and religious minorities. And when cases move up on higher levels of courts, the percentage of general category prisoners fell and the percentage of SC and ST prisoners increased. This is discriminatory and against the principle of the right to equality and Equal protection of Law . *

What is the evolution of the death penalty in India?

• The death penalty remained as the normal punishment for murder during the first 5 years after the constitution was made (1950).
• It was changed in 1955 when a choice was given to sessions judges to award either of the two sentences for murder i.e., capital punishment or life imprisonment.
• Accordingly, the Criminal Procedure Code (CrPC) was amended in 1973 by which Parliament declared that special reasons shall be given by the Sessions judge if she decided to impose the death penalty on the convicted person.
• Later on, in the Bachan Singh vs. State of Punjab case 1980, SC ruled that death penalty could be imposed only in “rarest of rare cases” in which the life imprisonment cannot be imposed.
• Murder is committed in an extremely brutal manner = aroused extreme outrage of the community.
• Murder is committed with a motive of expressing total degeneracy and meanness.
• The crime is enormous in proportion.

What are the protections against capital punishment under the constitution?

• Article 21 – It provides the right to life for citizens and gives them protection not only against executive actions but also against the legislation.
• Article 72 – President can pardon even the death sentence, while the governor cannot under Article 161. Even when the pardon was denied to a death row criminal, there is scope for judicial review if the presidential decision is arbitrary, irrational and discriminatory.
• Article 134 – Under this, the right to appeal the high court verdict in the Supreme Court in any case where capital punishment was imposed on an accused in the reversal of acquittal order.
• Hence the treatment of death row convicts has been humanized under the constitution itself.

What is the way forward?

Issues which need to be addressed

• Delay in police action: Unwarranted delay by police in filing missing person complaints and registering written complaints of sexual assault survivors is one of the major factors for the rising number of crimes without any deterrence.
• Insensitive agencies: Many sexual harassment cases tend to come under the media spotlight only in extreme cases, such as the one where a child, after being sexually assaulted and left bleeding, was kept waiting for hours at a civil hospital in March 2018.
• Low conviction rate: It is the main reason that contributes to the culpability of rapists and nurtures the growing impunity with which sexual crimes are committed. This reality is well captured in National Crime Records Bureau data that unveils high figures of repeat sexual offenders.
• Hence India’s growing rape culture is best reversed by improving conviction rates via reforms in the police and judicial systems, and by increasing measures to rehabilitate and empower rape survivors. The government should allocate more resources towards establishing fast-track courts, more one-stop crisis centres, proper witness protection, more expansive compensation for rape survivors and the overhaul of current child protection services.

Improving sex ratio

India’s murder rate has declined constantly since 1961 and is at present the lowest in our recorded history except for 1963. Studies prove that a more equal sex ratio resulted in a declining murder rate than capital punishments.

Abolishing the death penalty

• Although the Law Commission recommended the abolition of the death penalty for ordinary crimes, activists argue for abolishing it altogether.
• Abolishing the death penalty will also save the long-term litigation involved in murder cases.
• It is high time that the Supreme Court decide whether the lack of political will for the abolition of the death penalty is enough ground to violate the right to life guaranteed under Article 21.

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Death Penalty

• 12 Feb 2020
• 11 min read
• GS Paper - 2
• Government Policies & Interventions
• Issues Arising Out of Design & Implementation of Policies

This article is based on “Does death penalty deter crime?” which was published in The Times of India on 12/02/2020. It talks about the ongoing debate on the death penalty.

Capital punishment, also called the death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence. It is the highest penalty awardable to an accused. Generally, it is awarded in extremely severe cases of murder, rapes, treason etc.

The death penalty is seen as the most suitable punishment and effective deterrent for the worst crimes. Those who oppose it, however, see it as inhumane. Thus, the morality of the death penalty is debatable and many criminologists and socialists all across the globe, have been long demanding abolition of the death penalty.

Arguments: In Favour of the Death Penalty

• This argument states that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime.
• Each criminal should get what their crime deserves and in the case of a murder, criminal deserves death.
• Deterrence: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
• It is often argued that the death penalty provides closure for victims' families.
• Thomas Aquinas noted that by accepting the punishment of death, the offender was able to expiate his evil deeds and so escape punishment in the next life. It demonstrates that the death penalty can lead to some forms of rehabilitation.

Arguments: Against the Death Penalty

• Some of those executed may not have been capable of being deterred because of mental illness or defect.
• Some capital crimes are committed in such an emotional state that the perpetrator did not think about the possible consequences.
• Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold. This compels one to think of the death penalty is an effective deterrent to crime.
• According to Amnesty International: As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.
• People who oppose Capital punishment are of the view that retribution is immoral, and it is just a sanitised form of vengeance.
• The UN Secretary General's report on the death penalty presented to the Human Rights Council held that "some 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have suspended executions for more than 10 years".
• Capital punishment doesn't rehabilitate the prisoner and return them to society.

Death Penalty in the Indian Context

• Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.
• As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.
• The situation has been reversed and a life sentence is the rule and death penalty an exception in capital offences.
• Moreover, despite a global moratorium against the death penalty by the UN , India retains the death penalty.
• India is of view that allowing criminals guilty of having committed intentional, cold-blooded, deliberate and brutal murders to escape with a lesser punishment will deprive the law of its effectiveness and result in travesty of justice.
• In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35 th report 1967.
• In the majority of the cases, death was commuted to life imprisonment and some were acquitted by the higher courts.

The Indian Penal Code prescribes ‘death’ for offences such as

• Waging war against the Government of India. (Sec. 121);
• Abetting mutiny actually committed (Sec. 132);
• Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
• Murder (Sec. 302);

Some other criminal statutes that provide for the death penalty as a form of punishment.

• Direct or indirect abetment of sati is punishable with Death penalty under the Commission of Sati (Prevention) Act, 1987.
• Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
• Besides these, rape of a minor below 12 years of age is punishable with death under Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
• Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offences committed by members of the armed forces.

Supreme Court on the Death Penalty

• Thus the death sentence imposed after a trial in accordance with legally established procedures under Cr.PC and the Indian Evidence Act is not unconstitutional under Art. 21.
• Rajendra Prasad v. State of UP 1979 case: The Supreme Court held that, if the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.
• Bachan Singh v. the State of Punjab 1980 case: A Constitution Bench of the Supreme Court propounded the dictum of ‘rarest of rare cases’ according to which death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed.
• Machhi Singh v. State of Punjab 1983 case: The Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.

Rarest of Rare Cases

• When the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community.
• When total depravity and cruelty are the motives behind a murder.

Deterrence is most effective when the punishment happens soon after the crime. The more the legal process distances the punishment from the crime - either in time, or certainty - the less effective a deterrent the punishment will probably be.

India is awaiting execution of Nirbhaya’s rapists, the inordinate delay in the execution of the death penalty has taken the sting out of the punishment. This is the reason why Hyderabad police encounter in Disha’s case was hailed by a large populace.

In this context, there is a need to expedite investigations at the hands of a well trained and equipped police system ably supported by fast track trials to reinforce the faith of the public in our legal system.

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Is it time to abolish the death penalty?

Updated - December 15, 2018 10:06 am IST

Published - December 14, 2018 12:15 am IST

The death penalty is error-ridden, arbitrarily imposed and unfairly targets the poor

As a punishment, the death penalty makes no sense: how does killing a person who has killed a person show that killing is wrong? Most of the civilised world has abolished it. India certainly does not need it as it serves no purpose. No study has shown that the death penalty deters murder more than life imprisonment. The evidence is all to the contrary. For deterrence to work, the severity of the punishment has to coexist with the certainty and swiftness of the punishment. The death penalty has not deterred terrorism, murder or even theft. For over a century, stealing attracted the death penalty in England, where spectators at public hangings often had their pockets picked!

Problems with death penalty

The death penalty is error-ridden. Between January 1, 2000 and June 31, 2015, the Supreme Court imposed 60 death sentences. It subsequently admitted that it had erred in 15 of them (25%). Can this system be trusted to take a life? And that too based on evidence collected, or fabricated, by a police force not known for its probity or efficiency?

The death penalty unfairly targets the poor and marginalised. Those without capital get the punishment. Penurious prisoners on legal aid get it the most, while others with private lawyers remain untouched.

The death penalty is impossible to administer fairly or rationally. The Supreme Court has repeatedly admitted that it has arbitrarily imposed this most extreme punishment. Executions occurred in 5.2 cases for every 1 lakh murders. Such a selection cannot but be freakish. It depends overwhelmingly on the adjudicator’s personal beliefs. Judges opposed to it never gave a death sentence; those in favour doled it out. Abolitionist Presidents (S. Radhakrishnan and A.P. J. Abdul Kalam) refused to reject mercy petitions, while others, differently inclined, readily denied clemency. Should the killing of a human being depend on the philosophy of a particular individual?

Abolishing the death penalty will ease, not enhance, the tax-payer’s burden. The annual cost of maintaining a prisoner is about ₹30,000. The hangman is paid more, and we also save on the protracted litigation that death cases involve.

Constitutional, legal and policy issues cannot be determined by the victim’s understandable hunger for revenge without leading to a frenzy where the death penalty is demanded, as it often is, for wholly inappropriate cases (accidental deaths, cheating, etc.). If life imprisonment sufficed for the 99.99% of victims’ families, why not for the minuscule fraction in whose name the death penalty is demanded?

Punish, yes, but why in the same cold-blooded, premeditated and brutal manner as the prisoner killed his or her victim? Punishment should not imitate crime. We do not rape rapists, or maim and disfigure those who have done this to others. Why do we have to kill killers?

A safer country

India’s murder rate has declined continuously since 1991 and is at present the lowest in our recorded history except for 1963. Fearmongering aside, we are safer today than our parents or grandparents ever were. And this is not thanks to the death penalty whose infrequent and arbitrary implementation has made no real difference. It may as well have not been there. Studies show that a more equal sex ratio has more to do with declining murder rates than killing murderers.

Nobody wants to undergo the trauma of administering the death penalty — not the higher courts and not the hapless prison staff who have to see a human being die gasping at the end of a rope. Governments kill prisoners to show that they are tough on crime. There is nothing muscular or tough about killing a man who is at your mercy.

Yug Mohit Chaudhry is a lawyer practising in the Bombay High Court

Life can only be seen to be protected if those who take it away are proportionately punished

The death penalty has been criticised for far too long without an understanding of its nuances. It is criticised mainly on three counts: arbitrariness, irreversibility and human rights. However, the punishment passes muster on all accounts. Its constitutionality has not only been upheld in India but also in the bastion of liberal democracy that is the U.S. The retention of the death penalty is not a reflection of “uncivilised” polity in theocratic states that have come to be defined by violence but a creation of the individual geopolitical circumstances of each state.

Geopolitical circumstances

The Law Commission of India has attempted to analyse the need for the death penalty on two separate occasions. While the 35th Report correctly called for its retention in order to see its impact on a new republic, the more recent 262nd Report could not recommend the punishment’s absolute abolition despite a rather desperate attempt to do the same for the first 240 pages. The exception to abolition came in cases of terror. Herein comes the first defence of the death penalty: India’s neighbourhood is not peaceful, unlike Scandinavia, and it does not form a supranational conglomerate of nations that facilitate common growth, unlike the European Union. On the contrary, every day vested interests attempt to destabilise the very idea of our nation from across every border it shares. It is this peculiar nature of India’s polity that must inform any debate for abolition. As noted by the Commission itself, cases of violent terror are constant reminders of the need to protect national stability by ensuring appropriate responses to such actions, and the death penalty forms part of the national response.

It is in this idea that there exists a moral support for the death penalty. A punishment cannot be judged by its impact on criminals but by its impact on those who are still innocent. Those who defend the death penalty often do it on the basis of retributive justice. However, the retention of the death penalty is far more fundamental than an arrogant state interest to seek revenge. On the contrary, the punishment itself is a reflection of societal mores. It determines that there are certain acts which the society so essentially abhors that they justify the taking of the most crucial of rights – the right to life. For, the state acknowledges that the sacredness of life can only be seen to be protected if those who take it away are proportionately punished. The hanging of Ajmal Kasab and Yakub Memon strongly affirms India’s commitment to the protection of life.

Rarest of rare cases only

The death penalty is also often criticised on its practical implementation. Some argue that it is arbitrarily meted out and others find its irreversibility repugnant. However, both these sets of criticisms are reflections of bad syllogism. The punishment is not arbitrary because it comes out of a judicial process. To term the punishment as arbitrary, one has to necessarily prove the process as flawed. However, in the cases of the death penalty, the courts have made sure that caution is exercised in giving the punishment. They are conscious of its irreversibility and have therefore restricted it to only rarest of rare cases that shock the conscience of society. This is reflective in the fact that in the last 13 years, only four people have been executed.

Meenakshi Lekhi is a BJP member and a lawyer

The SC will have to answer whether absence of political will is sufficient to override the right to life

The moral foundation of judicial killing has been questioned and it has been judged untenable in many countries. In 2007, the UN General Assembly passed a resolution calling for a moratorium on the administration of the death penalty by the 59 countries that still retained it. India is one of them, even if it does not employ it as frequently as countries such as Iran, China, Pakistan, Saudi Arabia, and the U.S.

Only a few political parties have demanded the abolition of the death penalty in India, including the Communist parties and the DMK. B.R. Ambedkar, in the Constituent Assembly debates, opposed it on the principle of non-violence. The Congress opposed it in 1931, after Bhagat Singh, Sukhdev and Rajguru were executed, but has not moved for its abolition during its multiple terms as a ruling party.

Constitutional scepticism

An eye for an eye has ancient appeal. Following the gang rape of a young woman in Delhi in December 2012, amendments were made to the Indian Penal Code adding the death penalty for certain categories of rapes and repeat offenders. This year India introduced the death penalty for those who rape minors. The polarised debate that surrounded Yakub Menon’s execution in 2015 was yet another reminder of the pervasive popularity of the idea.

In 1962, the Law Commission supported the death penalty stating that India’s particular circumstances were such that it could not “experiment” with its abolition. In 1991, the Supreme Court cited its use in defending law and order as the reason for its continuance. Its alleged usefulness extends from being a potential deterrent to serving as a primordial need for retribution.

That said, India has looked to the judicial administration of death with greater constitutional scepticism. In 1980, in Bachan Singh v. State of Punjab , a Constitution Bench articulated the “rarest of rare” threshold stating that “judges should never be bloodthirsty”. Death must only be imposed where the alternative option is unquestionably foreclosed. The question is, under what circumstances are the retributive and deterrent effects of a life in prison so certainly insufficient that death is the only answer? And can such an answer be delivered without human error?

Problems in implementation

Implementation of the death penalty has also been deeply problematic. As the recent Death Penalty India Report by the National Law University, Delhi, indicates, the structural flaws in our criminal procedure and criminal justice system are most pronounced in death penalty cases. Due to biases in criminal investigations, the marginalised — whether by religious and caste denominations, or class — are disproportionately subject to the death penalty. And delays in the criminal justice system disproportionately affect those who suffer the tyranny of the uncertainty of their life. India also retains the death penalty as an option for non-homicide offences where the instrumentality argument is the most attenuated. Even so, the Supreme Court upheld it, as recently as 2015, for kidnapping with ransom.

In 2015, the Law Commission called for abolition of the death penalty for ordinary crimes, and activists continue to argue for abolishing it altogether. Political will in India is still bound by populism. However, the constitutionality of the death penalty will continue to be challenged and, sooner or later, the Supreme Court will have to answer whether absence of political will is sufficient ground to override the right to life.

Avi Singh is an advocate who is the Additional Standing Counsel for criminal cases for the Government of the NCT of Delhi

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Capital Punishment in India: Status, Arguments, and Way Forward

This article is based on the news “ Death by nitrogen: Why this Alabama execution is polarising ” which was published in the Indian Express. In Alabama, USA a convict has been executed using nitrogen hypoxia for the first time as a method of capital punishment.

What is Capital Punishment?

• About: Capital Punishment is defined as a death penalty ordered by the state owing to the commission of a Crime. Crimes that can result in the death penalty are known as capital crimes or capital offences.
• Purpose of Capital Punishment: The prime reason behind capital punishment is its efficacy in deterring identical or similar crimes.

Status of Capital Punishment Across World

• European Union : Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment. 
• Council of Europe: It has 47 member states, and also prohibits the use of the death penalty by its members.
• Although many nations have abolished capital punishment, China, India, the United States and Indonesia , continue to apply the death penalty (although in India and in many US states it is rarely employed). 
• Each of these four nations has consistently voted against the General Assembly resolutions.

Capital Punishment in India: Status

• A ll death sentences were either set aside or commuted to life in 2023, as they did not fall under the “rarest of rare cases”.
• 98.3% of the death penalty cases were decided by trial courts “ without any materials on mitigating circumstances of the accused and without any state-led evidence on the question of reform.

Provisions For Capital Punishment in India

• Statutory Provision : The Air Force Act, of 1950, The Army Act, of 1950, and The Navy Act, 1957 provide punishment for offences, including hanging or death by shooting.

Supreme Court Judgement on Capital Punishment in India

• Jagmohan Singh v. State of Uttar Pradesh (1972): The constitutional validity of the death penalty was upheld by the SC.  
• The special reasons should be recorded for imposing the death penalty in a case.
• The death penalty must be imposed only in extraordinary circumstances.
• It upheld the Rule of Law which holds that the death sentence is only legal if it s erves as an alternative to life in prison.  
• It strengthens the policy that life imprisonment is the rule and death punishment is an exception.
• Deena Dayal vs Union of India And Others (1983): It upheld the capital punishment by ruling that hanging is “as painless as possible” and “causes no greater pain than any other known method”.

Arguments in Favour of Capital Punishment in India

• Death sentence is seen as just retribution for murderers, providing closure for victime’s family and society.
• Utilitarianism: Utilitarian theory propounded by Jeremy Bentham aims at welfare-maximising actions and conveys that the consequential welfare of the society outweighs the deprivation of life of the criminal. 
• Deterrence: It has been argued that it gives victims’ families satisfaction and serves as a deterrence to potential offenders , preventing them from committing these extremely horrible crimes again.
• Public Safety: The public has to be safeguarded against the possibility of release of a murderer which may cause further crimes.
• Least Humane Method: The government argues that hanging should remain legal because it is the least common method of execution that goes wrong, in addition to not being harsh or inhumane.

Arguments Against Capital Punishment in India

• The Indian Constitution , under Article 21, states that no person shall be deprived of his “Right to Life” unless done with due process. 
• When the death penalty is imposed, it also r estricts the scope of introducing fresh evidence or legal rules into the case.  
• The most popular technique, lethal injection , has been involved in controversy due to unsuccessful executions. 
• Ex- One Oklahoma prisoner experienced an apparent heart attack forty-three minutes following the initial injection in 2014.
• Social scientists had shown the death penalty had no deterrent effect; and that public opinion worldwide was in favour of its abolition. 

• The death penalty Report of India clearly shows that a round 76% of convicts of Death Penalty belonged to lower and backward castes contravening the philosophy of ethics and morality. 
• Additionally 93.5% sentenced to death penalty for crimes of terror belong to Scheduled Castes or religious minorities. 
• The sanctity of life and the dignity of death are held in high moral regard, and capital punishment is widely condemned as a grave violation of human rights.
• In some cases, special or military courts set up through counterterrorism laws have sentenced civilians to death, undermining international standards. 

Way forward

• Life Imprisonment as an Alternative: The  Bharatiya Nyaya Sanhita, 2023 has defined ‘life imprisonment’ as a term for the remainder of one’s natural life, and this should be the default alternative to death sentences. 
• Removing capital punishment from the statute book and introducing a rational and universal remission policy will be a substantive reform in the justice system.
• The case for the abolition of the death penalty in India will gain strength if the trend of seeking the premature release of life convicts on political grounds is arrested and life terms without remission become more common. 
• Rehabilitation has its theoretical base in the belief that unfavourable social conditions are the reason behind commission of crime. Therefore, it is the moral right of the convict to seek the help of society. 
• Law Commission Recommendation:   As recommended by the Law Commission report, death penalty should be abolished , except in certain cases where the accused is convicted in terror related offence.

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Abolition of Capital Punishment in India: The Need of the Hour

• December 2022
• Society & Sustainability 4(2):40-48
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Capital Punishment In India: History, Debate And Its Future

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Capital Punishment, Mercy Pleas and the Supreme Court

Last updated on July 10, 2024 by Alex Andrews George

Capital punishment remains and will remain a hot topic across the world. It is not easy to reach a consensus on the question ” Should the death penalty be abolished?”.

Some countries abolished Capital Punishment. Some countries did not. India is one of the countries where the death penalty exists, but now only for the “rarest of rare cases”.

Let’s see in this article, the major issues and news related to capital punishment and the judiciary. Don’t forget to come back to visit this post again as we normally update our articles when SC passes any new observations or guidelines.

Table of Contents

Capital Punishment in India: Overview

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India retains capital punishment for several serious offences. But the imposition of capital punishment is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment. The number of people executed in India since independence in 1947 is a matter of dispute; official government statistics claim that only about 60 people have been executed since independence.

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However, the People’s Union for Civil Liberties cited information from Appendix 34 of the 1967 Law Commission of India report showing that 1,422 executions took place in 16 Indian states from 1953 to 1963, and has suggested that the total number of executions since independence may be as high as 3,000 to 4,300.

In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban the death penalty.

Rarest of the rare case doctrine

There are various sections under IPC (302, 376A, etc) and other statutes that award capital punishment to the convict. But the Supreme Court of India ruled in 1983 that the death penalty should be imposed only in “the rarest of rare cases.”

While stating that honor killings fall within the “rarest of the rare” category, Supreme Court has recommended the death penalty be extended to those found guilty of committing “honor killings”, which deserve to be a capital crime.

The Supreme Court also recommended death sentences be imposed on police officials who commit police brutality in the form of encounter killings .

IPC 376A – Rape/Sexual Assault

An amendment in the year 2013 provided for the death penalty in case he inflicts an injury upon a woman during rape which causes her death or to be in a persistent vegetative state. The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, of 2013 .

Laws other than IPC for Capital Punishment

In addition to the Indian Penal Code, a series of legislation enacted by the Parliament of India have provisions for the death penalty.

• Commission of Sati (Prevention) Act, 1987: Part. II, Section 4(1).
• Scheduled Tribes (Prevention of Atrocities) Act, 1989: Section 3(2)(i).
• Narcotic Drugs and Psychotropic Substances (NDPS) Act .

Clemency and Mercy Petition in the Indian Constitution

After the award of the death sentence by a sessions (trial) court, the sentence must be confirmed by a High Court to make it final. Once confirmed, the condemned convict has the option of appealing to the Supreme Court .

Where the condemned prisoner is unable to appeal to the Supreme Court ; or where the court either refuses to hear the appeal or upholds the death sentence, the prisoner also has the option of submitting a ‘mercy petition’ to the President of India and the Governor of the State .  

Who grants pardon?

Article 72(1) of the Constitution of India states:

The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death.

Despite the language of the constitutional provisions, clemency is exercised not by the President but by the government .

For all practical purposes, the decision on a mercy petition is arrived at within the MHA as the subject has been allocated to the Department of Home, MHA vide the second schedule of the Government of India (Allocation of Business) Rules 1961. Once a convict submits a mercy petition to the President, the Rashtrapathi Bhavan forwards the petition to the Ministry of Home Affairs, for seeking the Cabinet’s advice on the matter.

The MHA then forwards the same to the concerned State Government for eliciting its views.

It is only then the MHA formulates its advice and tenders it to the President, on behalf of the Council of Ministers).

A memorandum on the case is prepared by a junior official in the Ministry and based on the same, a Joint Secretary or an Additional Secretary ‘recommends’ a decision to commute the death sentence or reject the mercy petition. This ‘recommendation’ is considered by the Minister of Home Affairs who makes the final ‘recommendation’, on behalf of the Cabinet of Ministers, to the President.

Article 74(1) provides the President with only one opportunity to return the ‘recommendation’ for the decision to be reviewed. If no change is made, the President has to sign his assent.

PS: The Constitution doesn’t have any maximum time limit within which a mercy petition has to be decided. There have been instances of mercy petitions lying with the President for over a decade without any decision being taken. The MHA can’t ask the President to speed up the process. Similarly, a mercy petition may get delayed at MHA or state level too.

Is everything over, once the President rejects the mercy petition and signs his assent?

Things are not over here.

There is still hope for the convict.

President’s pardon/rejection/delay is also subjected to judicial review . A delay in deciding mercy plea is a relevant ground for commuting the death sentence to life imprisonment. This is what happened in the recent Shatrughan Chauhan vs Union of India case .

The Supreme Court has also directed all prison authorities to give a gap of 14 days between intimation of the rejection of the mercy petition to the condemned prisoner and his actual execution. In this period, the convict can seek judicial redress of grievances against the rejection of a mercy plea. Also note that if the President grants an unfair pardon, SC can overrule it.

So the long route of capital punishment can be summarized as follows :

• Trail court awards death sentence.
• The high court confirms it.
• Supreme Court confirms it on appeal.
• Mercy petition filed to President of India.
• The President of India forwards it to the Ministry of Home Affairs.
• Ministry of Home Affairs routes it to the state concerned.
• The state lets MHA know its advice.
• MHA forwards its recommendation to the President of India.
• The President of India rejects that advice and asks MHA to reconsider it.
• MHA submits its recommendation again.
• The President of India signs it. Mercy is denied.
• The convict can ask for a Judicial review.
• The Judicial review verdict is final.

Highlights of recent SC judgment on Mercy Plea (Shatrughan Chauhan vs Union of India)

The following are the 12  guidelines issued by the Supreme Court bench comprising Chief Justice P. Sathasivam, Justice Ranjan Gogoi, and Justice Shiva Kirti Singh on various procedures before executing a death convict.

• Solitary Confinement: (only in the last 14 days)
• Procedure for placing the mercy petition before the President:
• Communication of Rejection of Mercy Petition by the Governor:
• Communication of Rejection of the Mercy Petition by the President:
• Death convicts are entitled to a right to receive a copy of the rejection of the mercy petition by the President and the Governor.
• Minimum 14 days’ notice for execution:
• Mental Health Evaluation:
• Physical and Mental Health Reports:
• Furnishing documents to the convict:
• Final Meeting between the Prisoner and his Family:
• Post Mortem Reports:

Extra articles related to capital punishment worth reading

• The journey of a mercy plea – Indian Express.
• How does the President decide mercy petitions?
• Mercy plea is in the dock – India Today.
• Capital Punishment – Wikipedia.

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• Capital Punishment Essay

Essay on Capital Punishment

Capital Punishment is the execution of a person given by the state as a means of Justice for a crime that he has committed. It is a legal course of action taken by the state whereby a person is put to death as a punishment for a crime. There are various methods of capital punishment in order to execute a criminal such as lethal injection, hanging, electrocution, gas chamber, etc. Based on moral and humanitarian grounds, capital punishment is subjected to many controversies not only at the national level but also at the global platform. One must understand the death sentence by itself.

Many records of various civilizations and primal tribal methods denote that the death penalty was a part of their justice system. The system of the prison was evolved to keep people in confinement for some time who have done wrong in their life and was harmful to society. The idea behind keeping the criminal in the prison was to give them a chance to change and reform themselves. The idea works well with people who have done minor offences like theft, robbery, etc. A complication arises when grievous offences like brutal and inhumane acts of rape, murder, mass killing, etc. are involved. So, the contentious part is the grimness of the crime, which is the deciding reason for execution. 

During the 20th century period, millions of people died in the wars between the nations or states. In this violent period, military organizations practised capital punishment as a way of maintaining discipline. The death penalty was employed for crimes in many religious beliefs and historically was practised widely with the support of religious hierarchies. Today, there is no religious faith attached to the morality of capital punishment. It has been left to the discretion of the judiciary system to award the punishment in special circumstances. 

Most people feel that punishment for crimes like murders, rapes, and mass killings should not be death but some reformative or preventive sentence. The death penalty cannot reform a criminal, since once dead he cannot be reformed. Some people hold the view that no one has the right to take away anyone’s life for any reason. One should not take the role of God in taking away anybody’s life. At the same time, a criminal has no right to take away anyone’s life for any reason at all. If a person could go to an extent of taking someone’s life, he too has no right to live in a civilized society. Both the arguments can be cited to support viewpoints that are poles apart. 

Mankind has coined a large number of methods of capital punishment:

hanging by the rope until a person breathes his last.

death by electric current.

the murderer faces a firing squad.

the offender is beheaded and executed.

the culprit is poisoned.

the offender is stoned to death.

he is burnt alive at the stake.

the criminal is made to drown.

the criminal is thrown before hungry beasts of prey.

death through crucifixion.

Guillotine.

the offender is thrown into a poisonous gas chamber.

Methods can be different but all of these methods have one thing common and that is capital punishment is barbaric in all forms. It is savage and vindictive. It is a relic of an uncivilized era. Many people say that the methods by which executions are carried out involve physical torture. Contrary to the popular belief that the death penalty deters all future crimes, various surveys have shown that the threat of the death penalty does not in any way reduce the occurrence of violent crimes. 

Capital Punishment in India

Capital punishment in India does not come with a single stoke. The practice of Capital punishment is not very common in India. In our country, the Court of Session awards a death sentence according to the gravity of the offence, and this verdict requires confirmation by the High Court. Then an appeal can be made to the Supreme Court of India. In some cases, an appeal to the Supreme Court lies as a matter of right, where the High Court has reversed the verdict of the Sessions Court either into acquittal or punishment or has enhanced the sentence to capital punishment. 

Lastly, if needed an appeal can be made to the president of India and the governors of states for mercy. The President is solely guided by the notes in the files by the Home Minister or the Secretariat. He is bound to pen down the reasons for mercy. It is exercised very judiciously. 

Contemplating over capital punishment has been ramping on for a countless number of years. It is true that the death sentence is not the solution to the increase in crimes but at the same time, capital punishment inflicts physiological fear in the minds of people. In many countries, the use of this punishment has helped to deter crimes and change the minds of future criminals against committing heinous crimes. Capital punishment should be given in the rare of the rarest cases after proper investigation of the criminal’s offence. 

FAQs on Capital Punishment Essay

Q1. What Do You Understand By Capital Punishment?

Ans. Capital Punishment is the execution of a person given by the state as a means of Justice for a crime that he has committed. It is a legal course of action taken by the state whereby a person is put to death as a punishment for a crime. There are quite a few methods of capital punishment to execute a criminal such as lethal injection, hanging, electrocution, gas chamber, etc.

Q2. Why Do Some People Argue Against Capital Punishment?

Ans. Some people argue against capital punishment because they hold the view that no one other than God has the right to take anyone’s life. They argue that criminals should get a chance to change or reform themselves into good and responsible human beings. If they are executed, then they cannot be reformed.

Q3. What are Some Methods that Mankind has Coined for Capital Punishment?

Ans. Mankind has coined various methods of capital punishment:

the criminal is burnt alive at the stake.

the offender is thrown before hungry beasts of prey.

Q4. Does Capital Punishment Deter the Rate of Crimes?

Ans. There is no solid evidence to the theory of capital punishment that it reduces the crime rate but yes it does instil psychological fear in the minds of future criminals against committing heinous crimes.

More results...

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Is the Death Penalty Justified or Should It Be Abolished?

• is the death penalty justified or should it be abolished?

*Updated 2022

Throughout history, societies around the world have used the death penalty as a way to punish the most heinous crimes.  while capital punishment is still practiced today,  many countries  have since abolished it.  in fact, in 2019, california’s governor put a  moratorium on the death penalty , stopping it indefinitely. in early 2022, he took further steps and ordered the dismantling of the state’s death row. given the moral complexities and depth of emotions involved, the death penalty remains a controversial debate the world over., the following are three arguments in support of the death penalty and three against it., arguments supporting the death penalty.

Prevents convicted killers from killing again

The death penalty guarantees that convicted murderers will never kill again.  There have been countless cases where convicts sentenced to life in prison have  murdered other inmates  and/or prison guards. Convicts have also been known to successfully arrange murders from within prison, the most famous case being mobster  Whitey Bulger , who apparently was killed by fellow inmates while incarcerated. There are also cases where convicts who have been released for parole after serving only part of their sentences – even life sentences – have  murdered again  after returning to society. A death sentence is the only irrevocable penalty that protects innocent lives.

Maintains justice

For most people, life is sacred, and innocent lives should be valued over the lives of killers. Innocent victims who have been murdered – and in some cases, tortured beforehand – had no choice in their untimely and cruel death or any opportunity to say goodbye to friends and family, prepare wills, or enjoy their last moments of life. Meanwhile, convicted murderers sentenced to life in prison – and even those on death row – are still able to learn, read,  write , paint, find religion, watch TV, listen to music, maintain relationships, and even appeal their sentences.

To many, capital punishment symbolizes justice and is the only way to adequately express society’s revulsion of the murder of innocent lives. According to a 2021 Pew Research Center Poll, the majority of US adults ( 60% ) think that legal executions fit the crime of what convicted killers deserve. The death penalty is a way to restore society’s balance of justice – by showing that the most severe crimes are intolerable and will be punished in kind

Historically recognized

Historians and constitutional lawyers seem to agree that by the time the Founding Fathers wrote and signed the  U.S. Constitution in 1787, and when the Bill of Rights were ratified and added in 1791, the death penalty was an acceptable and permissible form of punishment for premeditated murder. The Constitution’s  8 th  and 14 th  Amendments  recognize the death penalty BUT under due process of the law. This means that certain legal requirements must first be fulfilled before any state executions can be legally carried out – even when pertaining to the  cruelest, most cold-blooded murderer . While interpretations of the amendments pertaining to the death penalty have changed over the years, the Founding Fathers intended to allow for the death penalty from the very beginning and put in place a legal system to ensure due process.

Arguments against the Death Penalty

Not proven to deter crime

There’s  no concrete evidence  showing that the death penalty actually deters crime.  Various studies comparing crime and murder rates in  U.S. states  that have the death penalty versus those that don’t found that the murder rate in non-death-penalty states has actually remained consistently lower over the years than in those states that have the death penalty. These findings suggest that capital punishment may not actually be a deterrent for crime.

The winds may be shifting regarding the public’s opinion about the death penalty. This is evident by the recent decision of a non-unanimous Florida jury to sentence the Parkland High School shooter to life in prison without parole instead of the death penalty . While the verdict shocked many, it also revealed mixed feelings about the death penalty, including among the families of the 17 Parkland victims and families of victims from other mass shootings.

More expensive than imprisonment

Contrary to popular belief, the death penalty is actually  more expensive  than keeping an inmate in prison, even for life. While the cost of the actual execution may be minimal, the overall costs surrounding a capital case (where the death penalty is a potential punishment) are enormously high.  Sources say  that defending a death penalty case can cost around four times higher than defending a case not seeking death. Even in cases where a guilty plea cancels out the need for a trial, seeking the death penalty costs almost twice as much as cases that don’t. And this is before factoring in appeals, which are more time-consuming and therefore cost more than life-sentence appeals, as well as higher prison costs for death-row inmates.

Does not bring closure

It seems logical that punishing a murderer, especially a mass murderer, or terrorist with the most severe punishment would bring closure and relief to victims’ families. However, the opposite may be true.  Studies  show that capital punishment does not bring comfort to those affected by violent and fatal crimes.  In fact, punishing the perpetrator has been shown to  make victims feel worse , as it forces them to think about the offender and the incident even more. Also, as capital cases can drag on for years due to endless court appeals, it can be difficult for victims’ families to heal, thus delaying closure.

The Bottom Line: The death penalty has been used to maintain the balance of justice throughout history, punishing violent criminals in the severest way to ensure they won’t kill again.  On the other hand, with inconclusive evidence as to its deterrence of crime, the higher costs involved in pursuing capital cases, and the lack of relief and closure it brings to victims’ families, the death penalty is not justified. Where do you stand on this controversial issue?

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the death penalty debate

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Is capital punishment a fair and appropriate measure for atrocious crimes or should it be banned?

Capital punishment is still enforced in many countries, such as the USA and China. We discuss the pros and cons of death penalty and whether it should be abolished. If you care about this issue, leave your comments and share the debate.

Harsh punishments

Capital punishment is at the centre of one of the most significant moral debates in modern societies. Theorists and proponents of, both, utilitarian and retributive justice have historically discussed whether it is morally acceptable for the state to execute people, and if so under what circumstances. Although the death penalty has been abolished, either by law or practice, by more than 140 countries , it is still used in a big part of the world. According to Amnesty international , the number of countries implementing executions each year over the last couple of years is 22.

China has been consistently the country with the most executions and the USA is among the five top executioners. Murder and drug-trafficking are the most common crimes punishable by death , although in some countries adultery, witchcraft, or political activism can also incur capital punishment. Lethal injections, hanging, shooting, and electrocutions are some of the most common methods used for the death penalty.

Death penalty pros and cons

• One of the most common justifications for the death penalty in the Western world is that it acts as a deterrent of capital crimes , as the fear of death and the horror of the execution might prevent people from committing serious crimes.
• It is also considered to be the appropriate retribution and deserved punishment for really horrific crimes. Criminals who commit capital crimes have reached a point where rehabilitation is impossible and for some life in prison might increase criminal behaviour. The death penalty, therefore, prevents crimes for recurring and protects society.
• Further moral arguments suggest that capital punishment provides closure for the families of the victims and that punishment should fit the crime in order for justice to be served.
• Finally, there are practical arguments put forward. The death penalty helps ease overpopulation in prisons and it ensures that less tax payers' money is spent for the maintenance of individuals that have acted against society in the most violent way.
• It can also be used as an important negotiating tool for the police and the justice system, as where the possible sentence is death, the prisoner has the strongest possible incentive to try to get their sentence reduced, and therefore are likely to help with investigations.

These arguments are rebuked by opponents of capital punishment.

• Executions, they argue, are  cruel and immoral . Human life is valuable and everybody has a right to live. No one has the right to take away a human life, not even organised states.
• Human rights activists argue that death penalty is a form of revenge against offenders and revenge is not necessarily about social justice .
• Another important argument supported by abolitionists is that the death penalty discriminates against minorities and the poor, as it is people from these groups that are more likely to be sentenced to death. For example, although African Americans make up only about 13% of the US population, almost 50% of convicts on the death row are African American .
• There is also always the possibility of a wrongful verdict that might irrevocably sent innocent people to the death row.
• Finally, opponents of capital punishment argue that empirical reality disproves some of the arguments of defenders of the death penalty. There is no proof that the death penalty or long prison sentences have a strong deterrent effect . Crime rates are no lower in countries with death penalty.
• Furthermore, the costs of carrying out a death sentence can be much more expensive than keeping a criminal in jail, due to legal costs, number of appeals but also security and incarceration costs.

It is for these reasons that opponents of the sentence ask for the death penalty to be abolished.

Where do you stand in this debate? After looking at death penalty's pros and cons, do you consider that capital punishment is a fair and appropriate measure for atrocious crimes or is it inhumane and should be banned?    

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Experts & views, should capital punishment be abolished.

Capital punishment is an issue which figures prominently in philosophical, religious and political discussions, and has absorbed the attentions of law-makers and the public worldwide. Right wing politicians usually express strong support for capital punishment, while more moderate, liberal and leftist politicians openly oppose it and seek to eliminate the death penalty from national law. The issue has become a global concern and some attempts have been made to regulate the issues under national as well as international law.

The Universal Declaration of human rights, adopted on December 10, 1948, by General Assembly resolution 217 A (III), states that “Everyone has the right to life, liberty and security of person”(Art 3). The declaration used the term ‘everyone’, which implies the interpretation that no one should be deprived of this basic right, including persons who have been convicted of a crime. The resolution proclaimed ‘life’ as the supreme value that deserved full, unconditional legal protection, regardless the circumstances. The first attempt by the United Nations to abolish the death penalty was made... Read more

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Moral arguments

Utilitarian arguments, practical arguments, the abolition movement.

• Capital punishment in the early 21st century

Arguments for and against capital punishment

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• Internet Encyclopedia of Philosophy - Capital Punishment
• Santa Clara University - Capital Punishment: Our Duty or Our Doom?
• Cornell Law School - Legal Information Institute - Death penalty
• capital punishment - Children's Encyclopedia (Ages 8-11)
• capital punishment - Student Encyclopedia (Ages 11 and up)
• Table Of Contents

Capital punishment has long engendered considerable debate about both its morality and its effect on criminal behaviour. Contemporary arguments for and against capital punishment fall under three general headings: moral , utilitarian, and practical.

Supporters of the death penalty believe that those who commit murder , because they have taken the life of another, have forfeited their own right to life. Furthermore, they believe, capital punishment is a just form of retribution , expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general. By contrast, opponents of capital punishment, following the writings of Cesare Beccaria (in particular On Crimes and Punishments [1764]), argue that, by legitimizing the very behaviour that the law seeks to repress—killing—capital punishment is counterproductive in the moral message it conveys. Moreover, they urge, when it is used for lesser crimes, capital punishment is immoral because it is wholly disproportionate to the harm done. Abolitionists also claim that capital punishment violates the condemned person’s right to life and is fundamentally inhuman and degrading.

Although death was prescribed for crimes in many sacred religious documents and historically was practiced widely with the support of religious hierarchies , today there is no agreement among religious faiths, or among denominations or sects within them, on the morality of capital punishment. Beginning in the last half of the 20th century, increasing numbers of religious leaders—particularly within Judaism and Roman Catholicism—campaigned against it. Capital punishment was abolished by the state of Israel for all offenses except treason and crimes against humanity, and Pope John Paul II condemned it as “cruel and unnecessary.”

Supporters of capital punishment also claim that it has a uniquely potent deterrent effect on potentially violent offenders for whom the threat of imprisonment is not a sufficient restraint. Opponents, however, point to research that generally has demonstrated that the death penalty is not a more effective deterrent than the alternative sanction of life or long-term imprisonment.

There also are disputes about whether capital punishment can be administered in a manner consistent with justice . Those who support capital punishment believe that it is possible to fashion laws and procedures that ensure that only those who are really deserving of death are executed. By contrast, opponents maintain that the historical application of capital punishment shows that any attempt to single out certain kinds of crime as deserving of death will inevitably be arbitrary and discriminatory. They also point to other factors that they think preclude the possibility that capital punishment can be fairly applied, arguing that the poor and ethnic and religious minorities often do not have access to good legal assistance, that racial prejudice motivates predominantly white juries in capital cases to convict black and other nonwhite defendants in disproportionate numbers, and that, because errors are inevitable even in a well-run criminal justice system, some people will be executed for crimes they did not commit. Finally, they argue that, because the appeals process for death sentences is protracted, those condemned to death are often cruelly forced to endure long periods of uncertainty about their fate.

Under the influence of the European Enlightenment , in the latter part of the 18th century there began a movement to limit the scope of capital punishment. Until that time a very wide range of offenses, including even common theft, were punishable by death—though the punishment was not always enforced , in part because juries tended to acquit defendants against the evidence in minor cases. In 1794 the U.S. state of Pennsylvania became the first jurisdiction to restrict the death penalty to first-degree murder, and in 1846 the state of Michigan abolished capital punishment for all murders and other common crimes. In 1863 Venezuela became the first country to abolish capital punishment for all crimes, including serious offenses against the state (e.g., treason and military offenses in time of war). San Marino was the first European country to abolish the death penalty, doing so in 1865; by the early 20th century several other countries, including the Netherlands, Norway , Sweden , Denmark , and Italy , had followed suit (though it was reintroduced in Italy under the fascist regime of Benito Mussolini ). By the mid-1960s some 25 countries had abolished the death penalty for murder, though only about half of them also had abolished it for offenses against the state or the military code. For example, Britain abolished capital punishment for murder in 1965, but treason, piracy, and military crimes remained capital offenses until 1998.

During the last third of the 20th century, the number of abolitionist countries increased more than threefold. These countries, together with those that are “de facto” abolitionist—i.e., those in which capital punishment is legal but not exercised—now represent more than half the countries of the world. One reason for the significant increase in the number of abolitionist states was that the abolition movement was successful in making capital punishment an international human rights issue, whereas formerly it had been regarded as solely an internal matter for the countries concerned.

In 1971 the United Nations General Assembly passed a resolution that, “in order fully to guarantee the right to life, provided for in…the Universal Declaration of Human Rights,” called for restricting the number of offenses for which the death penalty could be imposed, with a view toward abolishing it altogether. This resolution was reaffirmed by the General Assembly in 1977. Optional protocols to the European Convention on Human Rights (1983) and to the International Covenant on Civil and Political Rights (1989) have been established, under which countries party to the convention and the covenant undertake not to carry out executions. The Council of Europe (1994) and the EU (1998) established as a condition of membership in their organizations the requirement that prospective member countries suspend executions and commit themselves to abolition. This decision had a remarkable impact on the countries of central and eastern Europe , prompting several of them—e.g., the Czech Republic , Hungary , Romania , Slovakia , and Slovenia—to abolish capital punishment.

In the 1990s many African countries—including Angola, Djibouti, Mozambique, and Namibia—abolished capital punishment, though most African countries retained it. In South Africa , which formerly had one of the world’s highest execution rates, capital punishment was outlawed in 1995 by the Constitutional Court, which declared that it was incompatible with the prohibition against cruel, inhuman, or degrading punishment and with “a human rights culture.”

Capital punishment, Death Penalty, or execution is the infliction of death upon a person by judicial process as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The practice of capital

Punishment is as old as government itself. Capital punishment or in easier terms the death penalty is applied to people who have done various forms of bad behavior. Method of execution are crucifixion, stoning, drowning, impaling, and beheading but in such present time execution is formed by lethal gas or injections, electrocution, hanging, or shooting.

THE DEBATE whether the death penalty should be abolished or not is one of most long lasting and impassioned debates going on in the civil society and political sphere in India. Some subscribe to the "eye for an eye" or "life for life" philosophy, while others believe that sanctioned death is wrong. Former Chief Justice of India and now NHRC Chairperson K G Balakrishnan has favoured continuance of this provision, but he seems to have forgotten the other side. Most supporters of death penalty believe that it is justified on one or more of the following grounds: as means of revenge/justice, as a deterrent to others, to prevent any danger of re-offending and it is cheaper than life imprisonment where criminal will stay whole life in prison on tax payers' money.

But some human rights organizations oppose the death penalty on one or more of the following grounds: killing someone is always inhuman and it is like murdering legally, there is no evidence of deterrent effect ( indeed the available evidence seems to show there is no effect), life without parole is just as effective a way to prevent someone re-offending as finishing them, saving money can never be a justification for taking someone's life and mistakes are bound to happen. In India, death sentence was last carried out in 2004 when one Dhananjay Chatterjee was hanged for rape and murder of a 14-year-old girl in Kolkata. Here the question to ask is, has the execution of Dhananjay Chatterjee stopped rapes in our society? Has the number of rape cases declined? No, these crimes are increasing day by day. If we look at hanging cases, there is hardly any positive effect of death penalty.

In my view if we look at our national crime statistics, death penalty has not proved to be a deterrent. The reality is that the death penalty is a barbaric exercise in which no civilized society should participate. Capital punishment is a flawed aspect of the judicial system in our country. So many instances prove that the criminal justice system (CJS) is riddled with errors, corrupt officials, and flawed practices, yet this system is still permitted to execute people. The system needs an overhaul. The death sentence to the terrorists evades logic as a fidayeen (suicide attacker) like Kasab and Afzal Guru would only embrace death as their means to martyrdom. These people are already prepared to die for beliefs. Besides this, their execution will not guarantee end of further terror attacks against the country but would rather be used by the extremist masterminds to instigate violence and more hatred against India. If we are serious about dealing with terrorists, we could do worse if we follow the Israeli example.

The death penalty has no place in modern society, so nobody's surprised that it's still used in India, China and the United States. There is a punishment worse than death; make the convict endure endless discussion about capital punishment. The rigorous life in prison would be a far worse punishment than a swift death and in the case of terrorists, they took the job fully prepared to die for their cause. The death penalty serves only to assuage a misplaced public sense of retribution and as a tool for pandering politicians.

I strongly feel, we have to reform our laws especially for death penalty. Our laws should be such that a punishment should be so rigorous that it should remind not only to the offenders/ terrorists/culprits but also it should be a living example for the people around him about his inhuman acts. Each day and night, he should regret his acts of crime and at the same time it should act as deterrent.

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Top 10 Pro & Con Arguments

Life without Parole

Retribution

Victims’ Families

Methods of Execution

Medical Professionals’ Participation

Federal Death Penalty

1. Legality

The United States is one of 55 countries globally with a legal death penalty, according to Amnesty International. As of Mar. 24, 2021, within the US, 27 states had a legal death penalty (though 3 of those states had a moratorium on the punishment’s use).

Proponents of the death penalty being legal argue that such a harsh penalty is needed for criminals who have committed the worst crimes, that the punishment deters crime, and that the US Supreme Court has upheld the death penalty as constitutional.

Opponents of the death penalty being legal argue that the punishment is cruel and unusual, and, thus, unconstitutional, that innocent people are put to death for crimes they did not commit, and that the penalty is disproportionately applied to people of color.

Read More about This Debate:

Should the Death Penalty Be Legal?

ProCon.org, “International Death Penalty Status,” deathpenalty.procon.org, May 19, 2021 ProCon.org, “Should the Death Penalty Be Legal?,” deathpenalty.procon.org, Sep. 20, 2021 ProCon.org, “States with the Death Penalty, Death Penalty Bans, and Death Penalty Moratoriums,” deathpenalty.procon.org, Mar. 24, 2021

2. Life without Parole

Life without Parole (also called LWOP) is suggested by some as an alternative punishment for the death penalty.

Proponents of replacing the death penalty with life without parole argue that imprisoning someone for the duration of their life is more humane than the death penalty, that LWOP is a more fitting penalty that allows the criminal to think about what they’ve done, and that LWOP reduces the chances of executing an innocent person.

Opponents of replacing the death penalty with life without parole argue that LWOP is just an alternate death penalty and parole should always be a consideration even if the prisoner never earns the privilege. While other opponents argue that life without parole is not a harsh enough punishment for murderers and terrorists.

Should Life without Parole Replace the Death Penalty?

ProCon.org, “Should Life without Parole Replace the Death Penalty?,” deathpenalty.procon.org, Sep. 20, 2021

3. Deterrence

One of the main justifications for maintaining a death penalty is that the punishment may prevent people from committing crimes so as to not risk being sentenced to death.

Proponents who argue that the death penalty is a deterrent to capital crimes state that such a harsh penalty is needed to discourage people from murder and terrorism.

Opponents who argue that the death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent.

Does the Death Penalty Deter Crime?

ProCon.org, “Does the Death Penalty Deter Crime?,” deathpenalty.procon.org, Sep. 20, 2021

4. Retribution

Retribution in this debate is the idea that the death penalty is needed to bring about justice for the victims, the victims’ families, and/or society at large.

Proponents who argue that the death penalty is needed as retribution argue that “an eye for an eye” is appropriate, that the punishment should match the crime, and that the penalty is needed as a moral balance to the wrong done by the criminal.

Opponents who argue that the death penalty is not needed as retribution argue that reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind.”

Should the Death Penalty Be Used for Retribution for Victims and/or Society?

ProCon.org, “Should the Death Penalty Be Used for Retribution for Victims and/or Society?,” deathpenalty.procon.org, Sep. 20, 2021

5. Victims’ Families

Whether the death penalty can bring about some sort of closure or solace to the victims’ families after a horrible, life-changing experience has long been debated and used by both proponents and opponents of the death penalty.

Proponents who argue that the death penalty is needed to bring about closure and solace to victims’ families argue that the finality of the death penalty is needed for families to move on and not live in fear of the criminal getting out of prison.

Opponents who argue that the death penalty is needed to bring about closure and solace to victims’ families argue that retributive “justice” does not bring closure for anyone and that the death penalty can take years of media-friendly appeals to enact.

Does the Death Penalty Offer Closure or Solace to Victims’ Families?

ProCon.org, “Does the Death Penalty Offer Closure or Solace to Victims’ Families?,” deathpenalty.procon.org, Sep. 20, 2021

6. Methods of Execution

Because the drugs used for lethal injection have become difficult to obtain, some states are turning to other methods of execution. For example, South Carolina recently enacted legislation to allow for the firing squad and electric chair if lethal injection is not available at the time of the execution.

Proponents of alternate methods of execution argue that the state and federal government have an obligation to carry out the sentence handed down, and that, given the recent botched lethal injection executions, other methods may be more humane.

Opponents of alternate methods of execution argue that we should not be reverting to less humane methods of execution, and that the drug companies’ objection to use of lethal injection drugs should signal a need to abolish the penalty altogether.

Should States Authorize Other Methods of Execution Such as Hanging or the Firing Squad?

ProCon.org, “Should States Authorize Other Methods of Execution Such as Hanging or the Firing Squad?,” deathpenalty.procon.org, Sep. 20, 2021

7. Innocence

Reports indicate over 150 innocent people have been found not-guilty and exonerated since the death penalty was reinstated in 1973.

Proponents of abolishing the death penalty because innocent people may be executed argue that humans are fallible and the justice system is flawed, putting more Black and brown people on death row than are guilty of capital crimes, and that we cannot risk executing one innocent person just to carry about retributive “justice.”

Opponents of abolishing the death penalty because innocent people may be executed argue that the fact that death row inmates have been exonerated proves that the checks and balances to prevent innocent people from being executed are in place and working well, almost eliminating the chance that an innocent person will be executed.

Should the Death Penalty Be Abolished Because Innocent People May Be Executed?

ProCon.org, “Should the Death Penalty Be Abolished Because Innocent People May Be Executed?,” deathpenalty.procon.org, Sep. 20, 2021

8. Morality

Both religious and secular debates have continued about whether it is moral for humans to kill one another, even in the name of justice, and whether executing people makes for a moral and just government.

Proponents who argue that the death penalty is a moral punishment state that “an eye for an eye” is justified to promote a good and just society than shuns evil.

Opponents who argue that the death penalty is an immoral punishment state that humans should not kill other humans, no matter the reasons, because killing is killing.

Is the Death Penalty Immoral?

ProCon.org, “Is the Death Penalty Immoral?,” deathpenalty.procon.org, Sep. 20, 2021

9. Medical Professionals’ Participation

With the introduction of lethal injection as execution method, states began asking that medical professionals participate in executions to ensure the injections were administered properly and to provide medical care if the execution were botched.

Proponents who argue that medical professionals can participate in executions ethically state that doctors and others ensure that the execution is not “cruel or unusual,” and ensure that the person being executed receives medical care during the execution.

Opponents who argue that medical professionals cannot participate in executions ethically state that doctors and others should keep people alive instead of participate in killing, and that the medicalization of execution leads to a false acceptance of the practice.

Is Participation in Executions Ethical for Medical Professionals?

ProCon.org, “Is Participation in Executions Ethical for Medical Professionals?,” deathpenalty.procon.org, Sep. 20, 2021

10. Federal Death Penalty

The federal death penalty has only been carried out 16 times since its reinstatement after Furman v. Georgia in 1988: twice in 2001, once in 2003, ten times in 2020, and three times in 2021. Several moratoriums have been put in place by presidents in the interims. Under President Joe Biden, the US Justice Department has enacted a moratorium on the death penalty, reversing President Donald Trump’s policy of carrying out federal executions.

Proponents of keeping the federal death penalty argue that justice must be carried out to deter crime and offer closure to families, and that the federal government has an obligation to enact the sentences handed down by the courts.

Proponents of banning the federal death penalty argue that the United States federal government should set an example for the states with a ban, and that only a ban will prevent the next president from executing the prisoners on death row.

Should the US President Reinstate the Federal Death Penalty?

ProCon.org, “Most Recent Executions in Each US State,” deathpenalty.procon.org, Aug. 26, 2021 ProCon.org, “Should the US President Reinstate the Federal Death Penalty?,” deathpenalty.procon.org, Sep. 20, 2021

People who view this page may also like:

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