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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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

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

Published - December 14, 2018 12:15 am IST

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

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Abolition, retention and capital punishment in twentieth-century India

Alastair McClure Assistant Professor, Department of History, University of Hong Kong

Time to read

Since 2016, researchers at Project 39A have published a staggering amount of information relating to the death penalty in contemporary India. Among several troubling developments, their latest annual report found 561 prisoners on death row at the end of 2023 - the highest number since 2004 . The report attributes this swelling figure to two factors: the increasing readiness of lower courts to pass death sentences and the longer processing time for higher courts to dispose of cases. As this research has also consistently demonstrated , those condemned to death are overwhelmingly composed of the poor and those from marginalized backgrounds.  

While legal scholars and human rights organizations continue to shed light on what is being described as “ India’s burgeoning death penalty crisis ”, h istorians have hitherto paid scant attention to the historical forces informing the evolution of this punishment over time. In an article recently published in Law and History Review, I examined material relating to capital punishment found in archival documents, Constituent Assembly debates, newspaper records, Supreme Court judgments and Law Commissions. The article was framed around a specific question: How did an institution so intimately bound up with colonial state violence not only survive decolonization, but become legible within a new political landscape defined by the vocabularies of constitutional democracy and popular sovereignty?

The article begins with the history of capital punishment at the end of empire. Most striking here is the sheer scale of executions. Between 1925 and 1944, the colonial state recorded an average of 577 executions a year in India. For context, the government in England and Wales executed a sum total of 632 convicts between 1900 and 1949. [1] Also noteworthy, the rate of executions in India was growing decade on decade under British rule. Colonial justice became more bloody as independence neared, not less.

As executions numbers rose, a recognizable abolition movement emerged during the interwar period. Newspapers and law journals printed pro-abolition articles, penal reform organizations were established and Indian politicians tabled resolutions to abolish the death penalty in legislative assemblies. Predictably, calls to temper state violence were afforded short shrift by the colonial administration. While the movement struggled to make headway with the colonial government, signs of progress were evident elsewhere. In a set of developments ripe for further scholarly inquiry, several of the semi-autonomous Princely States dotted across British India had dramatically reduced the use of the death penalty by the 1940s. Cochin State, a coastal state in southern India, ended capital punishment in 1944.

Though abolition was supported by some of the most important nationalist leaders of the time, the tumultuous conditions that accompanied independence did not lend themselves to progressive penal reform. The horrors of partition, war in Kashmir, and the violent annexation of Hyderabad led many to conclude that the death penalty should not yet be relinquished. A notable factor was the assassination of M.K. Gandhi. In one of history's dark ironies, the murder of the world’s most famous proponent of nonviolence was quickly leveraged by Indian retentionists as powerful evidence supporting capital punishment. As the powerful Congress politician C. Rajagopalachari argued, “I cannot think of a stronger case for the infliction of death … [the assassin] stabbed the heart of India itself.” [2]

Image: The trial of those accused of the murder of M.K. Gandhi, 1948. Photo source: Flickr , licensed under Creative Commons CC BY 2.0 DEED.

If abolitionist efforts faltered, independence brought significant changes to the death penalty. Amendments to the code of criminal procedure and a more merciful postcolonial executive resulted in a sharp decline in executions. In response to persistent abolitionist efforts, the government ordered the first major study of capital punishment in 1962 through the establishment of a Law Commission to examine the question. After consultation with legal professions, local governments, and the public, the Commission published its findings in 1967, recommending retention .  The report stated that India had not reached the appropriate “stage” for abolition and pointed to low levels of education and India’s diversity and size as evidence. While maintaining a paternalist logic, the report did not simply recycle old colonial arguments. As the authors also explained, the Indian death penalty was supported by the “majority of citizens” which made the punishment an effective “expression of public indignation at a shocking crime.” [3] The death penalty was now legitimated through a language consonant with ideas of popular sovereignty.

Shortly after the Law Commission published its findings, the constitutionality of the death penalty was considered by the Supreme Court in a host of important cases between 1973 and 1983. [4] On one hand, the Court sought to ensure that death was firmly understood as the exception in the punishment of murder, characterized by the introduction of the “rarest of the rare” standard proposed in Bachan Singh vs State of Punjab (1980). [5] On the other hand, as the death penalty was retained, judges consistently returned to (and strengthened) the link between popular outrage and the validity of the capital punishment. This process culminated with Machhi Singh vs State of Punjab (1983), in which the Court explained the “rarest of the rare” through reference to crimes in which the “collective conscience is so shocked.” [6] The discursive shift has proven incredibly consequential. In a 2015 study published by the Asian Centre for Human Rights noted that some variants of this phrase have become a signal feature of death sentences ever since.

The remaking of the death penalty as state violence legitimated by abstract notions of the popular will has contributed to the death penalty’s subsequent durability in India, as well its expansion in recent times. As various scholars have noted, from the 1980s Indian politics became increasingly shaped by the rising force of Hindu nationalism. In this context, populist leaders quickly grasped the symbolic power of the death penalty. [7] How better to demonstrate your ability to police and protect an exclusivist idea of the people and nation than by proclaiming your willingness to kill in its name? Death penalty talk developed into a feature of election campaigning, political manifestoes promised to make more crimes punishable with death and opposition leaders demanded the execution of infamous criminals during blood-curdling political speeches. The number of capital offenses steadily grew during this period. [8]

The relationship between the death penalty and majoritarian Hindu nationalism continues in lockstep to this present day. In December 2023, the Indian Parliament passed three new bills which promise to completely overhaul the system of criminal justice in India. [9] In scrubbing the statute books of nineteenth-century penal codes, the government has celebrated these changes as major landmarks in ongoing efforts to decolonize India’s legal system. In the official press release, the bills were pertinently positioned squarely within the Bharatiya Janata Party’s (BJP) wider nationalist political project. As the release explained: “ Be it Ram temple, Article 370, Triple Talaq or women reservation… we do what we say . ” [10] The content of these laws, and especially the enlargement of police powers, has provoked serious concern from legal scholars . Among its proposals, the new laws will also expand the number of offenses punishable by death . Whether the death penalty deserves such prominence in codes touted for their newly acquired Indian “ soul ” does not appear to have been considered worthy of debate. These laws received Parliamentary assent during a session in which over a hundred opposition members were suspended from Parliament. The most radical changes to India’s system of criminal justice for over a century, therefore, were agreed upon in front of “opposition benches almost empty.” And yet if these new bills result in more death sentences and more executions, they will serve less as a break from the bloody days of colonial rule, but rather simply exacerbate the structural violence that already marks the institution of capital punishment in postcolonial India.  

This article draws upon findings published in Alastair McClure, ' Killing in the Name Of? Capital Punishment in Colonial and Postcolonial India ' (2023) Law and History Review 41, 365-385.

[1] Victor Bailey,  “The Shadow of the Gallows: The Death Penalty and the British Labour Government, 1945-51”, Law and History Review, 18:2 (200), 306.

[2] Cited in Alastair McClure, “Killing in the Name of? Capital Punishment in Colonial and Postcolonial India”, Law and History Review, 41 (2023) 373.

[3] Ibid , 377.

[5] Bachan Singh vs. State of Punjab , AIR 1980 SC 898.

[6] Machhi Singh and Others vs State of Punjab, 1983, 957, 1983 SCR (3).

[7] Thomas Blom Hansen, The Saffron Wave: Democracy and Hindu Nationalism in Modern India, (Princeton: Princeton University Press, 1999), 8.

[8] In the 1980s, the death penalty was included in three new Acts, Narcotic Drugs and Psychotropic Substances, 1985; Commission of Sati (Prevention) Act, 1987; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. For the crimes punishable by death in India see here .

[9] These bills were the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Act. They will replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act.

[10] The revocation of Article 370 in the Indian Constitution in 2019 ended Kashmir’s special constitutional status which afforded greater autonomy to the only Muslim-majority state in India. While triple talaq has been the site of longstanding debate within the Indian feminist movement, the attention given to this issue by Hindu nationalist political parties has been questioned by legal scholars, described by Flavia Agnes as a “minority-bashing exercise” . Finally, the recent construction of the Ram Temple in Ayodhya, believed by some to be the birthplace of Ram, was built on top of the sixteenth-century Babri Masjid. The mosque was demolished by Hindu nationalist activists in 1992, resulting in large-scale communal riots and violence.

Photo credit for preview image of the flag of India: Wikimedia Commons , licensed under Creative Commons BY-SA 3.0 DEED.

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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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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?
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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.

Recent News

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.”

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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.

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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Capital Punishment in India: Critical Analysis

• What is the test that's required to give capital punishment to a person in India?
• Whether the death penalty is an appropriate mode for society in the present era?
• What are the arguments that are against or in the favour of capital punishment?
• If a person is a party to criminal conspiracy in order to commit a capital offence, he's punishable by the death penalty.
• A person who attempts to kill a life convict is punishable by a death sentence if the victim is harmed in the attempt.
• If an individual provides any false evidence against an innocent person, despite being of the knowledge that based on that evidence that person can be given a punishment of death penalty, and if it results in the execution of an innocent person, then the person who provides such evidence will be given the death penalty.
• Minor As per Indian Law, an individual who is younger than eighteen years at the time of commitment to the crime can't be given capital punishment.  
• Pregnant woman As per the alteration made in the year 2009, Clemency must be conceded to a pregnant lady who is condemned to the death penalty.  
• Intellectually Disabled As indicated by the Indian penal code, an individual whereas committing out grievous wrongdoing, was rationally sick or can't comprehend that the nature of the demonstration performed by him is risky, can't be rebuffed by capital punishment.[4]
• Manner of Commission of the Crime: The Court declared that if the crime were committed in extremely brutal and diabolic manners so that it arouses the intense outrage of the society, it'd fall under the rarest of the rare case. Some instances were given like when the house of the victim is set to flame with the objective to burn him alive, or the victim is subjected to inhuman cruelty and torture, or when the body of the victim is chopped and mutilated, it'll be thought of as a rarest of rare case.  
• Motive for Commission of the Crime: when the crime is committed in furtherance to betray the nation, or assassins are employed to kill the victim, or any deliberate design is made to kill the victim in a cold-blooded manner, it'll also fall under the said class of rarest of the rare.  
• Magnitude of the Crime: when the crime is large in proportion, for example, killing all the members of the family or a locality is done.  
• Socially obscene Nature of Crime: when the crime is such it's socially abhorred, like killing someone belonging to the backward categories of the community or burning of a bride in case dowry wishes aren't met or murdering a woman to remarry again.  
• Victim of the Crime: If the victim of the crime is a small child, who couldn't have provided any reason to the accused to commit the crime, or the crime is committed against a helpless woman, or an old person, and if the victim was mentally challenged, or the victim was a public figure who was loved by the society, the crime will fall under rarest of the rare case.[5]
• If the murder has been committed after previous planning and involves extreme brutality.
• If the murder involves exceptional depravity or murder has been committed of someone on public duty.
• Capital punishment shouldn't be given in every case; instead, it should be given on the idea of the culpability of various cases. Before granting such punishment, the circumstances of the offender and the crime should be taken care of.
• The punishment will only be given when life imprisonment falls short of the crime done by the offender.
• Both aggravating and mitigating factors should also be considered and the balance between them must be maintained.
• Overview and Analysis of Capital Punishment in India (ipleaders.in)
• Capital punishment in India - An Overview - iPleaders
• Death Sentence in India - IPC - Death penalty (legalserviceindia.com)
• Death Penalty in India (legalserviceindia.com)
• Death Penalty in India (amicusx.com)
• Abolition of Death Penalty in India: A Case Study - The Law Blog
• Debate On death penalty - iPleaders
• Rai, Diva. "Overview and Analysis of Capital Punishment in India." IPleaders, 24 July 2019, blog.ipleaders.in/capital-punishment-2/.
• Death Penalty in India (May. 7, 2020), https://www.amicusx.com/post/death-penalty-in-india.
• R Furtado, Capital punishment in India - An Overview - iPleaders ( Jul. 1, 2016), https://blog.ipleaders.in/capital-punishment-india-overview/.
• G Sharma, Death Penalty in India (. , ), http://www.legalserviceindia.com/legal/article-3212-death-penalty-in-india.html
• Debate On death penalty - iPleaders ( Mar. 18, 2018), https://blog.ipleaders.in/debate-death-penalty/.
• G Sharma, Death Penalty in India (. , ), http://www.legalserviceindia.com/legal/article-3212-death-penalty-in-india.html .

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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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E-Justice India

Capital punishment: pros and cons. when and why it can be justified.

Author :- Ayush Kumar Gupta

1. INTRODUCTION

India is a country which consists of large number of crimes and criminals. In India all punishments are based on the motive to give penalty for the wrongdoer. There are two main reasons for imposing the punishment, one is the wrongdoer should suffer and other one is imposing punishment on wrongdoers discourages other from doing wrong. In this paper I focused on capital punishment or death penalty. Capital Punishment is one of the important parts of Indian criminal justice system. Crimes result in death penalty is known as capital crimes or capital offences. The term capital punishment is derived from the Latin word “capitalis” means “regarding the head” Capital punishment is also known as the death penalty. Capital Punishment is a legal death penalty in India. India gives capital punishment for serious offences .In India capital punishment is awarded for most heinous and grievous offence. After the independent India has seen the hanging of 755 people until now. While in past three decade 16 convicts have been executed. Despite India’s stance on capital punishment the judiciary saves it for extreme violation of law. According to the article 21 of the Indian constitution, “no person shall be deprived of his life of personal liberty except according to procedure established by law. “Capital punishment has always been point of contention in the judiciary, not only in India but also in the most developed countries. . India voted against a United Nations General Assembly resolution calling for a prohibition on the death penalty . In November 2012, India again continues its posture on capital punishment by voting against the UN General Assembly draft resolution request to ban death penalty. Section 53 of the IPC deals with the kinds of punishment which can be inflicted on the offenders. They are as follow: Death penalty, life imprisonment etc. Thus generally speaking, IPC gives much sentencing discretion to the judicial officer.

2. CAPITAL PUNISHMENT IN INDIA

Capital punishment is an ancient sanction. There is practically no country in the world where the death penalty has never existed. Human civilization reveals that during no period of time capital punishment has been described as a mode of punishment. At independence, India retained several laws put in place by the British colonial government, which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian Penal Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be imposed under the law, including death.

For offences where the death penalty was an option, Section 367(5) of the Cr.P.C 1898 required courts to record reasons where the court decided not to impose a sentence of death:

If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.

In 1955, the Parliament repealed Section 367(5), Cr.P.C 1898, significantly altering the position of the death sentence. The death penalty was no longer the norm, and courts did not need special reasons for why they were not imposing the death penalty in cases where it was a prescribed punishment.

The Code of Criminal Procedure was re-enacted in 1973 (‘Cr.P.C’), and several changes were made, notably to Section 354(3):

When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence.

This was a significant modification from the situation following the 1955 amendment (where terms of imprisonment and the death penalty were equal possibilities in a capital case), and a reversal of the position under the 1898 law (where death sentence was the norm and reasons had to be recorded if any other punishment was imposed). Now, judges needed to provide special reasons for why they imposed the death sentence.

These amendments also introduced the possibility of a post-conviction hearing on sentence, including the death sentence, in Section 235(2), which states:

If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law. [4]

3. TYPES OF CAPITAL PUNISHMENT

In this topic, I am going to discuss the various methods of punishments that are used in the different countries. But, before that let’s talk about the capital punishment that people used in the past. Earlier, the capital punishments are more like torture rather than a death penalty. They used to strain and punish the body of the culprit to the extreme that he/she dies because of the pain and fear of torture. Besides modern method are quicker and less painful than the traditional method.

1. Electrocution – In this method, the criminal is tied to a chair and a high voltage current that can kill a man easily is passed through the body. In addition, it causes organ failure (especially heart). As of 2015 , the only place in the world that still reserve the electric chair as an option for execution are U.S. States of Alabama, Florida etc.

2. Tranquilization – This method gives the person a slow but painless death as the toxin injections are injected into his body that takes up to several hours for the criminal to die.

3. Beheading – Generally, the Arab and Gulf countries use this method. Where they decide the death sentence by the crime of the person. Furthermore, in this method, they simply cut the person’s head apart from the body.

4. Stoning – In this the criminal is beaten till death. Also, it is the most painful method of execution. UAE, Iraq, Qatar, Saudi Arabia, Somalia, Sudan etc. These country follow this as a capital punishment

5. Shooting – The criminal is either shoot in the head or in his/her chest in this method. Myanmar use this as a capital punishment

3.6 Hanging – This method simply involves the hanging of culprit till death. India, Iran, Iraq, Japan, Malaysia, Pakistan, UAE, Sudan, Myanmar, Sri Lanka etc. These county used this as a capital punishment.

4. Supreme Court on Validity of Capital Punishment in India

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life. While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in “rarest of rare” cases. In Jagmohan Singh v. State of Uttar Pradesh (1973), then in Rajendra Prasad v. State of Uttar Pradesh (1979), and finally in Bacchan Singh v. State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows

4.1 Criteria for Rarest of Rare

The principles as to what would constitute the “rarest of rare” have been laid down by the top Court in the landmark judgment in Bacchan Singh v. State of Punjab. Supreme Court formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely upon the court’s discretion to reach this conclusion. However, the apex court also laid down the principle of weighing, aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded.

In the case of Dhananjoy Chaterjee v. State of West Bengal he was accused of raping and then murdering a 14 year old girl, Hetal Parekh. He work as a security guard. The victim lived in the same apartment that Dhananjoy was guarding. According to the official verdict, it was proved that he raped the girl and then choked her to death. The judiciary declared the crime as “rarest of rare” because the guard was responsible for the protection of the society and the people living in it. The accused was scheduled to hang on June 25, 2004 but his family filed a mercy plea, which was rejected by the then President of India, A.P.J. Abdul Kalam. He was finally hanged on his 39th birthday in Alipore Central Jail in Kolkata.

In the case of Mohammad Ajmal Amir Kasab v. State of Maharashtra Ajmal Kasab was a part of the group that was responsible for the infamous 26/11 attacks in Mumbai. This case was closely followed by the media of our country which was probably the reason why case was expedited. An 11,000 page charge sheet was filed against Kasab which made a strong case against him. He kept changing his statement from time to time and moved up to the Supreme Court pleading for mercy. President Pranab Mukherjee upheld the judgement of capital punishment on the November 5, 2012 and he was hanged to death on November 21, 2012.

In the case of Afzal Guru. He was accused of being the master mind behind the attacks on the parliament on December 13, 2001. Five armed terrorists attacked the Indian Parliament which led to the death of 8 security personnel and a gardener. A media person was also shot amidst the attack and succumbed to the injuries later. The case was handed to a special cell of Delhi Police, which was able to track and arrest Afzal by December 15, 2001. He pleaded guilty in front of the media but took back his statement later claiming that he did it due to the pressure induced by the police. A special court was formed under the Prevention of Terrorism Act which finally sentenced him to death on December 18, 2002. Due to various pleads and protests the case went on till February 6, 2013, when his plea was rejected by the President Pranab Mukherjee. His execution was a carried out as a secret mission on February 9, 2013.

5. Pros and cons of capital punishment

A. Pros of capital punishment

• It deters criminals from committing serious crimes .  Common sense tells us that the most frightening thing for a human being is to lose their life; therefore the death penalty is the best deterrent when it comes to discouraging people from carrying out the worst crimes.
• It stops the threat of an escape that alternative sentences would create . The fastest way to stop a murderer from continuing to kill people is to eliminate their ability to do so. That is what capital punishment does. The death penalty makes it impossible for someone convicted of murder to find ways that kill other people. Failing to execute someone who is taking a life unjustly, who that is able to kill someone else, puts all of us into a place of responsibility for that action. Although there are issues from a moral standpoint about taking any life, we must remember that the convicted criminal made the decision to violate the law in the first place, knowing full well what their potential outcome would be.
• Without the death penalty, some criminals would continue to commit crimes .  It deters prisoners who are already serving life sentences in jail from committing more serious offenses.

6. Cons of capital punishment

• It is a cruel and unusual punishment,  where basic standards of human dignity are compromised or undermined.
• It continues the cycle of violence.  Retribution is just another word for revenge, it is essentially just a form of the flawed thinking that two wrongs can make a right. The pro argument is that killing people is wrong, therefore you should kill people for killing, which makes no sense
• The justice system is bound to make mistakes .  In the case of people who are wrongly imprisoned, they can be released from prison and given compensation, but a wrongful execution can never righted

7. Relevant legal provisions of capital offences

• Capital offences of IPC

1. Section 121- Treason, for waging war against the Government of India

2. Section 132- Abetment of mutiny actually committed

3. Section 194 -Perjury resulting in the conviction and death of an innocent person

4. Section 195A- Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person

5. Section 302 – Murder

6. Section 305 – Abetment of a suicide by a minor, insane person or intoxicated person

7. Section 307 (2) – Attempted murder by a serving life convict

8. Section 364A -Kidnapping for ransom

9. Section 376A- Rape and injury which causes death or leaves the woman in a persistent vegetative state

10. Section 376E- certain repeat offenders in the context of rape

11. Section 396 – Dacoity with murder

• Capital Offences in other laws in India

1. Sections 34, 37, and 38(1) – The Air Force Act, 1950

2. Section 3(1) (i) – The Andhra Pradesh Control of Organised Crime Act, 2001

3. Section 27(3) – The Arms Act, 1959 (repealed)

4. Sections 34, 37, and 38(1) – The Army Act, 1950

5. Sections 21, 24, 25(1) (a), and 55- The Assam Rifles Act, 2006

6. Section 65A (2) – The Bombay Prohibition (Gujarat Amendment) Act, 2009

7. Sections 14, 17, 18(1) (a), and 46- The Border Security Force Act, 1968

8. Sections 17 and 49- The Coast Guard Act, 1978

9. Section 4(1) – The Commission of Sati (Prevention) Act, 1987

10. Section 5- The Defence of India Act, 1971

11. Section 3- The Geneva Conventions Act, 1960

12. Section 3 (b) – The Explosive Substances Act, 1908

13. Sections 16, 19, 20(1) (a), and 49- The Indo-Tibetan Border Police Force Act, 1992

14. Section 3(1) (i) – The Karnataka Control of Organised Crime Act, 2000

15. Section 3(1) (i) – The Maharashtra Control of Organised Crime Act, 1999

16. Section 31A (1) – The Narcotics Drugs and Psychotropic Substances Act, 1985

17. Sections 34, 35, 36, 37, 38, 39, 43, 44, 49(2) (a), 56(2), and 59- The Navy Act, 1957

18. Section 15(4) – The Petroleum and Minerals Pipelines (Acquisition of rights of user in land) Act, 1962

19. Sections 16, 19, 20(1) (a), and 49- The Sashastra Seema Bal Act, 2007

20. Section 3(2) (i) – The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

21. Section 3(1) (i) – The Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002

22. Sections 10(b) (I) and Section 16(1) (a) – The Unlawful Activities Prevention Act, 1967

8. Conclusion

In India, capital punishment has been practiced since ancient times. Many countries abolished capital punishment. When we look at our national crime statistics death penalty has not proved to be deterrent for doing offence, the crimes rates are increasing only. Capital punishment is the harsh reality of our world. Without the death penalty, some criminals would continue to commit crimes.  It deters prisoners who are already serving life sentences in jail from committing more serious offenses. Capital punishment is necessary in India because in today’s world the crime rate of rare of the rarest is increase, so if the capital punishment is not given to him then the fear will not create in the society and the crime rate will increase. To maintain peace in the society judiciary have to take some tough calls.

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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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Should the Death Penalty Be Abolished?

In its last six months, the United States government has put 13 prisoners to death. Do you think capital punishment should end?

By Nicole Daniels

Students in U.S. high schools can get free digital access to The New York Times until Sept. 1, 2021.

In July, the United States carried out its first federal execution in 17 years. Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had in the previous six decades.

The death penalty has been abolished in 22 states and 106 countries, yet it is still legal at the federal level in the United States. Does your state or country allow the death penalty?

Do you believe governments should be allowed to execute people who have been convicted of crimes? Is it ever justified, such as for the most heinous crimes? Or are you universally opposed to capital punishment?

In “ ‘Expedited Spree of Executions’ Faced Little Supreme Court Scrutiny ,” Adam Liptak writes about the recent federal executions:

In 2015, a few months before he died, Justice Antonin Scalia said he w o uld not be surprised if the Supreme Court did away with the death penalty. These days, after President Trump’s appointment of three justices, liberal members of the court have lost all hope of abolishing capital punishment. In the face of an extraordinary run of federal executions over the past six months, they have been left to wonder whether the court is prepared to play any role in capital cases beyond hastening executions. Until July, there had been no federal executions in 17 years . Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.

The article goes on to explain that Justice Stephen G. Breyer issued a dissent on Friday as the Supreme Court cleared the way for the last execution of the Trump era, complaining that it had not sufficiently resolved legal questions that inmates had asked. The article continues:

If Justice Breyer sounded rueful, it was because he had just a few years ago held out hope that the court would reconsider the constitutionality of capital punishment. He had set out his arguments in a major dissent in 2015 , one that must have been on Justice Scalia’s mind when he made his comments a few months later. Justice Breyer wrote in that 46-page dissent that he considered it “highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was marred by racial discrimination. Justice Breyer added that there was little reason to think that the death penalty deterred crime and that long delays between sentences and executions might themselves violate the Eighth Amendment. Most of the country did not use the death penalty, he said, and the United States was an international outlier in embracing it. Justice Ginsburg, who died in September, had joined the dissent. The two other liberals — Justices Sotomayor and Elena Kagan — were undoubtedly sympathetic. And Justice Anthony M. Kennedy, who held the decisive vote in many closely divided cases until his retirement in 2018, had written the majority opinions in several 5-to-4 decisions that imposed limits on the death penalty, including ones barring the execution of juvenile offenders and people convicted of crimes other than murder .

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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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Capital Punishment should be Banned or Allowed?

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