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INTRODUCTIONv
SENTENCE OF DEATH: LEGISLATIVE AND JUDICIAL
POLICY...vi
III.
IV.
V.
CONSTITUTIONAL VALIDITY..xiv
VI.
CONCLUSION...xvi
World Wide resolutions and Views - An Anachronism.
..xviii
BIBLIOGRAPHY...xix
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RESEARCH METHODOLOGY:The researcher has adopted a purely Doctrinal method of research as the research
paper discusses the matter in which no field work is required for the same and the
Doctrinal approach is perfectly suited for the same. The researcher has made
extensive use of several libraries, namely, the library at the Chanakya National
Law University, Indian Law Institute, New Delhi, the Indian Society of
International Law library, and also the Internet sources.
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iv
See Harris, D: The Abolition of Death Penalty in European Union States, in Nowak, M., Xin,
C. (Eds.): EU- China Human Rights Dialogue, Proceeding of the Second EU-China Legal Experts
Seminar held in Beijing on 19 and 20 October 1998. Wien 2000, pp. 81-87.
2
See for an overview Report of the Secretary- General: Crime Prevention and Criminal justice.
Capital Punishment and Implementation of the Safeguards guaranteeing Protection of the Rights of
those Facing the Death Penalty. E/2000/3; 31 March, 2000 presenting the 6th quinquennial report
on the Death Penalty for the period 1994 1998.
CHANAKYA NATIONAL LAW UNIVERSITY
Web.amnesty.org/ 80256A2900558068/0/BF41EB80F9D5DEE780256A48005A9B90.
CHANAKYA NATIONAL LAW UNIVERSITY
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Macchi Singh v. State of Punjab AIR 1983 SC 957; Krishna Mochi v. State of Bihar AIR 2002 SC
1965.
5
Ie offend the Constitution of India arts 14, 19 and 21: see Bacchan Singh v. State of Punjab AIR
1980 SC 898; Shashi Nayar v. Union of India AIR 1992 SC 395.
6
Allauddin Mian v. State of Bihar AIR 1989 SC 1456.
7
See s. 121 IPC.
8
S. 132.
9
S. 194, second para.
10
S. 302.
11
S. 305.
12
S. 307.
13
S. 396.
14
S. 34.
15
S. 149.
16
Ss 109-115.
17
S. 120-B.
18
S. 396.
19
Supreme Court declared S. 303 of the IPC, providing for mandatory death sentence for murder
by a life convict, unconstitutional for not being in tune with Arts. 14 and 21 of the constitution.
See, Mithu v. State of Punjab, (1983) 2 SCC 277.
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20
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Machhi Singh v. state of Punjab AIR 1983 SC 957; Anshad v. State of Karnataka (1994) 4 SCC
381; Krishna Mochi v. State of Bihar AIR 2002 SC 1965.
25
Gyasuddin Khan v. State of Bihar AIR 2004 SC 210.
26
Machhi Singh v. State of Punjab AIR 1983 SC 957.
27
Ie of the Constitution of India art. 21.
28
Deena v. Union of India AIR 1983 SC 1155.
29
Mithu v. State of Punjab AIR 1983 SC 473.
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Code of Criminal Procedure 1973 s 354(3). See Jashubha Bharatsinh Gohil v. State of Gujarat
(1994) 4 SCC 353; Rajendra Prasad v. State of Uttar Pradesh AIR 1979 SC 916 (special reason
necessary for the award of death sentence in the light of Fundamental Rights).
31
Lichhamadevi v. State of Rajasthan AIR 1988 SC 1785.
32
Lehna v. State of Haryana (2002) 3 SCC 76.
33
See, Blackshield A.R.: Capital Punishment in India,
2I JILI 137 (1978).
34
Raizada:, Trends in Sentencing: A Study of the Important Penal Statutes and Judicial
Pronouncements f the High Courts and the Supreme Court, (unpublished Ph.D. thesis). See also
Bachan Singh, supra n.32.
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51
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On all these grounds the SC rejected the argument that under Sec. 302, I.P.C., life
of convict is taken without any procedure established by law & therefore, it
violates Art. 21 of the constitution. Thus, the SC settled this controversy long back
in 1973. However even after Jagmohan's case this question came up again and
again.
The next important case, and which can be termed as a milestone in the Indian
Criminal Jurisprudence is the case of Bachan Singh V/s State of Punjab . So
strong were the principles laid down by the apex went in this case that the
principles are being followed even now despite the fact that SC itself has
expressed the need to review criminal jurisprudence from time to time.
Firstly we must understand why Jagomhan's Case was reviewed. After Cr. P.C.
1973 , death sentence ceased to be the normal penalty for murder [ 354 (3)].
Another reason was that Maneka Gandhi's case gave a new interpretation to Art.
14,19 and 21 and their interrelationship . Main issues before the SC were
constitutional validity of Sec. 302 of the I.P.C. as well as constitutional validity of
Sec. 354 (3) of Cr.P.C. .While answering the question of reasonableness of death
penalty, the constitution bench also discussed various other issues. These issues
were :
Views of famous Jurists & sociologists from all over the world.
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J. Sarkaria delivered the judgment for majority discussing all these issues at
length, and the SC, with the majority of 4:1 rejected the challenges to the
constitutionality of Sec. 302 I.P.C.
J.
Bhagwati
was
the
only
one
as
to
He
said
:-
" I am of the opinion that Sec. 302 of the I.P.C. in so for as it provides for imposition of death
penalty as an alternative to life sentence is ultra vires and void as being violative of Art. 14 and 21
of the constitution since it does not provide any legislative guidelines as to when life should be
permitted to be extinguished by imposition of death sentence".
VI. CONCLUSION
The death penalty since the ages of enlightenment up to today was always an issue
around which basic values and human rights have been controversially discussed.
However, the current status of the death penalty worldwide indicates that there is
still a great need to continue the debate on abolishing or retaining the death
penalty, in particular there is a need to continue this debate from International
discourse on human rights. Developments in international instruments certainly
demonstrate an enormous political will to abolish the death penalty worldwide 55
and make the right to life a universally and unconditionally implemented
standard.56
In justifying retention of death penalty, utilitarian considerations, moral aspects
and social attitudes are highlighted.57 Insofar, a mix of preventive and moral
arguments carry the death penalty58 pointing towards the goals of incapacitation,
general deterrence, positive general prevention as well as reducing the risk of
victims taking the law into their own hands.59 Official views on consequences of
55
See with a summarizing account Nowak, M: The Death Penalty Under Present International
Law, in Nowak, M., Xin, C. (Eds.): EU- China Human Rights Dialogue.
56
See also the Economic and Social Council Resolution 2000/65, adopted April 26, 2000 urging all
retentionist states not only to comply with standards and safeguards in implementing the death
penalty but to establish moratoriums on executions with a view to completely abolishing the death
penalty.
57
Yu Shutong: Le systeme de la Peine Capitale Dand le Drot Penal Chinois. Revue Internationale
de Droit Penal. 17 au 22 mai 1988 . 58 (1987), pp. 689- 698.
58
Hood, R.: The Death Penalty. A Worldwide Perspective (Oxford, 1996), pp.38- 40.
59
Gao Ming Xuan, op. cit., pp. 400- 401.
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Wie, L, : The 1997 Criminal Code of the Peoples Republic of China (Buffalo, New York, 1998),
p.12.
61
Hood, R. : Capital Punishment, in Tonry, M. (Ed.): The Handbook of Crime and Punishment
(New York, Oxford, 998), pp. 739-776, p.743.
62
See Nowak, M, : The Death Penalty Under Present International Law, in Nowak , M., Xin, C.
(Eds.): EU- China Human Rights Dialogue. Proceedings of the Second EU- China Legal Expert
Seminar held in Beijing on 19 and 20 October, 1998, pp. 68-77.
63
For a complete review see Hood, R.: Capital Punishment. In Tonry, M. (Ed.): The Handbook
of Crime and Punishment, New York, Oxford, 1998, pp.739-776.
64
See generally, Law Commission of India, Fourteenth Report: reform of Judicial Administration
(Government of India, New Delhi, 1958); Law Commission of India, Forty First Report: Code of
criminal Procedure, 1898 ( Government of India, New Delhi, 1969).
65
See, Annual Reports of the National Human Rights Commission and Reports of then National
Police Commission.
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BIBLIOGRAPHY
Indian Penal Code, B.M. Gandhi, 2nd edition, eastern book company
Universals, The Indian Penal Code, (45 of 1860) Bare act With Short
Notes
Doing research on crime and justice, (ed.) Roy d. King and Emma
wincup, oxford Co.
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