CHAPTER - IV

DEATH PENALTY VIS-A-VIS HUMAN RIGHTS

1. General

Capital punishment is the punishment of death which is generally

awarded to those guilty of heinous crimes, particularly murder. Capital
punishment is nothing but judicial murder, it is said specially when an innocent
life is destroyed. Besides this, capital punishment, as is generally supposed is not
deterrent. Though the awarding of capital punishment specially for murder is
according to age old tradition, in recent times there has been much hue and cry
against it. It has been said that capital punishment is brutal, that it is according to
the law of jungle that is an eye for an eye and tooth for a tooth. It is pointed out
that there can be no place for it in a civilized country. The question of capital
punishment its abolition or retention has been agitating the civilized world for a
long time. Capital punishment means the death sentence. It is awarded to such
persons who are charged and convicted of serious crimes.

What is it that separates humans from animals? What do human have,

that animals dont. Human consider themselves civilized creatures and to live in a
civilized manner, they must be governed by certain laws formulated by the
governing bodies, which have been formulated by the people themselves. Every
human being is born with the inherent right to life. Human life is considered to be
one of the most sacred things throughout history. Kings have gambled their
wealth, power and status just to protect it. So the question that really comes to
mind is that if the State cannot give life, does it have the right to take it. Capital
punishment or the death penalty is a legal process whereby a person is put to
death by the State as a punishment for a crime. The judicial decree that someone
be punished in this manner is the death sentence, while the actual process of
killing the person is an execution. Crimes that can result in a death penalty are
known as capital crimes or capital offences. The term capital originates from the
Latin capitals, literally regarding the head(referring to execution by
beheading). The right to live is the birth right of all living beings. Article 3 of the
Universal Declaration of Human Rights, 1948 states quite clearly that everyone
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has the right to life, liberty and security of person. In the light of this fundamental
right to life, the United Nations Organization (U.N.O.) has tried to make the use
of death punishment as limited as possible, aiming of course at a total stop. In
1989 USs General Assembly passed the Second Optional Protocol to the
International Covenant on Civil and Political Rights, aiming at the abolition of
death penalty. This protocol declares quite clearly that the abolition of death
penalty will strengthen the human dignity and develop the human rights. In the
course of social evolution; it can be seen that certain practices are given up and
no longer tolerated. Ritual human sacrifice, slavery by the way of example etc.
have largely been abandoned. Vestiges do continue but those are aberrations that
further underscore the fact that would has turned against these practices. There is
no denying that some heinous crimes are beyond description and violate human
dignity and life in the grimmest of fashion.

Death sentence has been used as an effective weapon of retributive justice

for centuries. The justification advanced is that it is lawful to forfeit the life of a
person who takes away anothers life. A person who kills another must be
eliminated from the society and therefore, his execution is justified.1 The motive
for death penalty may include vengeance which is a compensatory and reparatory
satisfaction for an injured party, group or society. When regulated and controlled
by law, vengeance is also socially useful. Legal vengeance solidifies social
solidarity against law-breakers and probably is the only alternative to the
disruptive private revenge of those who feel harmed.2

The human rights supporters who are against the death penalty, have the
view that death penalty has failed as a measure of social protection, so also as
an instrument of retributive justice. Citing illustrations from United States to
support this contention, he argued that the number of executions are far less than
the number of murders committed annually which clearly indicates that death
sentence is no longer looked with favour and is falling into disuse rapidly.
Another argument which needs attention regarding declining effect of death
penalty is that even after the award of this sentence, in most cases, it is either

1 David Dressler : Reading in Criminology and Penology (Second Ed.)p. 501

2 Ernest Van den Haag, Is Capital Punishment Just? P. 406
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commuted or pardoned in the last resort and its final execution is seldom carried
out.

2. Historical Perspective of Death Penalty

Unlike animals, human beings in the course of time have upgraded their
social standards in which they reside and where they can claim to be proud
residents of a protective society, where they have a prerogative claim to basic
civic, political, economic and legal rights, where State watches and prevails over
crime and they are also the recipients of persistent and unwavering justice, which
being stringent ensures that any slight deviation from time honoured and accepted
behaviour by any citizen brings them under the austere eyes of the law which
then helps in preserving the fabric of the society and the efficiency of its social
network which de facto is one core reason why society should have capital
punishment as a tool and aid to be used as a deterrent; it has been universally
supported by the great political thinkers like John Locke who propounded his
concept of capital punishment containing elements of retributive and utilitarian
theory, where he contends that a person forfeits his rights for the commission of
even minor crimes and such rights are forfeited, punishments can be rightly
pronounced on them as they have made a breach to the social contract to which
they had agreed and the remedy is punishment to the wrongdoer which in itself is
an endeavour to darn the damage done to the social fabric.

Punishment is needed to protect our society by deterring crime through

such examples, does society may punish the criminal in anyway it deems
necessary which may include taking away his life so as to set an example for
other would be criminals and is further justified for the reason that the acts which
are so wile and destructive for society and dignity of the people. Invalidating the
right of the perpetrator to membership and even to life, because preciousness of
life in a moral community must be so highly honoured that those who do not
honour the lives of others make null and void their own right to membership,
which is why in a community based on love and ideals when made to face the
music of hostility and having to deal with people who have committed brutal
errors of terror, violence and murder, face a dilemma by the way of the set of
ideals the community propagates; it cannot imbibe the philosophy of , An eye

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for eye, a tooth for a tooth and a life for a life. But would be forced to act for the
safety of the members of the community from further destruction and would have
to treat the perpetrators who had shown no respect for life to be restrained,
permanently if necessary, so that they could not further endanger other members
of the community which would leave a sense of satisfaction and happiness to all
with whom the wrong has been done or relatives of the victim and to society as
such, if he who breaks the law is not punished then he who obeys it is cheated
which can also be rightly corroborated from the utilitarian and retributive
perspective of capital punishment.

Jurist Hobbes asserted that every man had under the natural order has the
right of repraisal for wrongs done to himself or anyone else. Then he said that
social contract had left this right to the sovereign while taking it away from
everyone else. Jurist Kant viewed that every political society had a duty to
enforce retributive justice. Jurist Roussoeu felt that the subject ought not to
complain if the sovereign demanded the subjects life. He considered death as a
proper punishment, if the criminal was beyond redemption. Jurist Salmond has
said that a society which felt neither anger nor indignation at outrageous conduct
would hardly enjoy an effective system of law.

3. Capital Punishment in Ancient Rome and Greece

In ancient times, the law administrators unflinchingly executed murderers

because they believed that "the life of each man should be sacred to each other
man". They realized that it is not enough to proclaim the sacredness and
inviolability or human life, it must be secured as well, by threatening with the
loss of life of those who violate what has been proclaimed inviolable the right of
innocent to live. Murder, being the worst of crimes, must deserve the highest
penalty which is death sentence. This shall also be in accordance of the principle
that punishment must be in proportion to the gravity of the offence. Ancient
Romans accepted the deterrent value of death penalty. Under the Roman criminal
law, the offender was put to public ridicule and his execution took the form of a
ceremony. Death was caused to the condemned person in a most tortuous
manner. For example, one who killed his father was sewn in a sack along with a
live dog, cat and a cobra and thrown into river. The object was to make him die

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most painfully. The sentence of death could be awarded even to a debtor who was
unable to pay off the debt of his creditor. Thus, a creditor who found that his
debtor was unable to pay off the debt, could vent his wrath upon the debtor by
marching him up the Tarpeian rock and hurling him from there to death. The
Greek penal system also provided death sentence for many offences. The
offenders were stripped, tarred and feathered to death publicly. Execution of
death penalty in public places was favoured because of its deterrent effect.

4. English Law on Death Penalty

The history of crime and punishment in England during the medieval

period reveals that infliction of death penalty was commonly practiced for the
elimination of criminals. Henry VIII who reigned in England for over fifty
years,3 was particularly infamous for his brutality towards the condemned
prisoners. He used to boil the offenders alive. His daughter Queen Elizabeth who
succeeded him, was far more stiff in punishing the offenders. The offenders were
not put to death at once but were subjected to slow process of amputation by bits
so that they suffer maximum pain and torture. The condemned offenders were
often executed publicly. These brutal methods of condemning the offenders were,
however, abandoned by the end of eighteenth century when the system of
transporting criminals to distant American Colonies at their option was firmly
established.

Dr. Fitzgerald observed that the history of capital punishment in England

for the last two hundred years recorded a continuous decline in the execution of
this sentence.4 During the later half of the eighteenth century as many as two
hundred offences were punishable with death penalty. The obvious reason for the
frequency of execution was the concern of the ruler to eliminate criminals in
absence of adequate police force to detect and prevent crimes. The methods of
putting offenders to death were extremely cruel, brutal and torturous.

As the time passed, the severity of capital punishment was mitigated

mainly in two ways : Firstly, this sentence could be avoided by claiming the
'benefit of clergy' which meant exemption from death sentence to those male

3 Henry VIII ruled over England from 1491 to 1541 AD.

4 Fitzerald, P.J., Criminal Law and Punishment ,1962 p. 216.
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offenders who could read and were eligible for holy Order.5 Secondly, the
prisoners who were awarded death sentence could be pardoned if they agreed to
be transported to American Colonies. During later half of the eighteenth century,
condemned felons could be transported for seven years in lieu of capital sentence.
In course of time, death punishment for felony was abolished,6 and in 1853, the
system of transporting criminals also came to an end and a new punishment of
penal servitude was introduced.Commenting on the frequency of executions
during the eighteenth century Donald Taft observed that during no period in the
history of western civilization were more frantic legislative efforts made to stem
crime by infliction of capital punishment as in that century.7 In his opinion, the
growing importance of this punishment was owing to the agrarian and industrial
changes in the English society resulting into multiplicity of crimes which had to
be suppressed by all means. Supporting this view it was observed that more than
190 crimes were punishable with death during the reign of George III in 1810.
However, with the advance of nineteenth century, the public opinion disfavoured
the use of capital punishment for offences other than the heinous crimes.
Bentham and Bright, the two eminent English law reformers opposed frequent
use of capital punishment. Sir Samuel Romilly also advocated a view that the
use of capital punishment should be confined only to the cases of intentional and
willful murder.

The irrevocable and irreversible nature of death penalty gave rise to a

number of complications which invited public attention towards the need for
abolition of death sentence. Consequently, the British Royal Commission on
Capital Punishment was appointed in 1949 to examine the problem. As a result of
the findings of this Commission, death sentence was suspended in England and
Wales for five years from 1965 and was finally abolished by the end of 1969.
However, the constant rise in the incidence of crime in recent decades has
necessitated Britain to re-assess its penal policy regarding death penalty. The two

5 In subsequent years, this benefit was extended to women also. It was finally
abolished in 1927.
6 Death as a punishment for felony was abolished in 1827.
7 Taft & England, Criminology (4th Ed.) p. 297.
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decisions8 of the Privy Council emphatically stressed that the award of death
sentence is not violative of human rights or fundamental rights.

5. Death Sentence under different Statutes

Capital Punishment is laid down as a penalty in several Legislative Acts,

such as the Indian Penal Code, 1860, (IPC) and the penalty provisions of national
security and anti-narcotics legislation. Under the I.P.C. approximately eleven
offences are punishable by death. A death sentence may also be imposed for a
number of offences committed by members of the armed forces under the Army
Act, 1950, the Air Force Act, 1950 and the Navy Act 1956.

Several legislative attempts to abolish the death penalty in India have

failed. Before Independence a private Bill was introduced in the year 1931
Legislative Assembly to abolish the death penalty for Penal Code offences. The
British Home Secretary at the time however rejected the motion. The
Government of Independent India also rejected a similar Bill introduced in the
first Lok Sabha. Resolutions introduced in the Rajya Sabha in 1958 and 1962
house debates of the Law Commission which was at the time reviewing the
Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973. The Law
Commission in its Report presented to the Government in 1967 and to the Lok
Sabha in 1971 concluded that the death penalty should be retained and the
executive (President) should continue to possess powers of mercy. National
discussion about the death penalty has resurfaced from time to time. The Lok
Sabha specifically discussed abolition of the death penalty in 1983. While the
Prime Minister at the time publicly favoured abolition, her Minister in Home
Affairs denied that the Government was considering any specific proposals to
abolish the death penalty. Some time back, the debate over the death penalty was
reinvigorated when all 26 defendants in the Rajiv Gandhi assassination case were
sentenced to death.

In fact in recent years the Indian Parliament (Lok Sabha and Rajya Sabha)
has dramatically extended the scope of the penalty. The Terrorist and Disruptive

8 Eston Baker v. Queen, 1975 PC 774 and Michael de Fraeities v. George

Ramoutar Benny, 1976 PC 239.

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Activities (Prevention) Act, 1985 (TADA) which was extended in 1987
empowered special courts to impose the death penalty for certain broadly defined
terrorist acts. Although the Parliament decided to let this hugely unpopular and
controversial Act lapse in 1995, it is now considering new legislation, in the form
of the Prevention of Terrorism Bill which would reintroduce many aspects of the
Terrorist and Disruptive Activities (Prevention) Act, 1985 TADA.

Use of the death penalty has also been extended through other legislation.
The Commission of Sati (Prevention) Act, 1987, which prescribes punishment by
death for any person who either directly or indirectly abets the commission of
Sati(immolation of a widow). The Narcotics, Drugs and Psychotropic
Substances (Amendment) Act, 1988, introduced the death penalty as a
punishment for financing, or engaging in the production, manufacture or sale of
narcotics or psychotropic substance of specified quantities (eg. opium 10 kgs,
cocaine 500 grams) after previous convictions. The Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, introduced the death
penalty for fabricating of providing false evidence that results in the conviction
and execution of an innocent member of a scheduled caste or scheduled tribe. In
February 2013, the Criminal Amendment Act, 2013 came into force which
provides death penalty for causing death of rape victim.9

6. Mode of Execution

The execution of death sentence in India is carried out by two modes

namely hanging by neck till death and being shot to death. The jail manuals of
various States provide for the method of execution of death sentence in India.
Once death sentence is awarded and is confirmed after exhausting all the possible
available remedies the execution is carried out in accordance with section 354(5)
of the Code of Criminal Procedure 1973 i.e. hanging by neck till death. It is also
provided under The Air Force Act, 1950, The Army Act 1950 and The Navy Act
1957 that the execution has to be carried out either by hanging by neck till death
or by being shot to death.

9 This amendment was made on the recommendations of Justice Verma Committee

constituted for reform in criminal law. This Committee was the outcome of hue and cry
of people for severe punishment for rape offenders against the 16 December, 2012 gang
rape case in Delhi.
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7. Execution of Death Sentence

Section 413 of Criminal Procedure Code provides that when in a case

submitted to the High Court for the confirmation of a sentence of death, the court
of session receives the order of confirmation or other order of the High Court
thereon, it shall cause such order to be carried into effect by issuing a warrant or
taking such other steps as may be necessary.

Section-414 of the Criminal Procedure Code provides that when a

sentence of death is passed by the High Court in appeal or in revision, the court
of session shall, on receiving the order of the High Court, cause the sentence to
be carried into effect by issuing a warrant.

Section-415 (1) of the Criminal Procedure Code provides that where a

person is sentenced to death by the High Court and an appeal from its judgment
lies to the Supreme Court under sub clause (1) of clause (1) of Article 134 of the
Constitution, the High Court shall order the execution of the sentence to be
postponed until the period allowed for preferring such appeal has expired, or if an
appeal is preferred within that period, until such appeal is disposed of. Section
415 (2) of the Criminal Procedure Code provides that where a sentence of death
is passed or confirmed by the High Court, and the person sentenced makes an
application to the High Court for the grant of a certificate under Art. 132 or under
sub- clause(c) of clause(1) of Article 134 of the Constitution, the High Court
shall order the execution of the sentence to be postponed until such application is
disposed of by the High Court, or if a certificate is granted on such application,
until the period for preferring an appeal to the Supreme Court on such certificate
has expired. Further, Section 425 (3) of the Criminal Procedure Code provides
that when a sentence of death is passed or confirmed by the High Court, and High
Court is satisfied that the person sentenced intends to present a petition to the
Supreme Court for the grant of special leave to appeal under Article 136 of the
Constitution, the High Court shall order the execution of the sentence to be
postponed for such period as it considers sufficient to enable him to present such
petition.

Section-416 of the Criminal Procedure Code provides that if a woman

sentenced to death is found to be pregnant, the High Court shall order the
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execution of the sentence to be postponed and may, if it thinks fit, commute the
sentence to imprisonment for life.

8. Capital Punishment (Death Sentence) Under The Indian Penal Code,

1860

Capital Punishment is prescribed in India for various offences under the

Indian Penal Code. The offences for which capital punishment is prescribed
under Indian Penal Code are as follows:

1. Waging war against the Government of India (Section 121)

2. Mutiny and its abetment (Section 132)

3. Giving or fabricating false evidence upon which an innocent person

suffers death (Section 194)

4. Murder (Section 302)

5. Punishment for murder by life-convict (Section 303)10

6. Abetment of suicide of child, insane person (Section 305)

7. Dacoity accompanied with murder (S. 396)

8. Attempt to murder under sentence of imprisonment. If hurt is caused

in such attempt (Section 307)

9. Kidnapping for ransom (Section 364-A)

10. Causing death or resulting in persistent vegetative state of victim

(Section 376-A)11

Despite frequent demand from some sections of society, India has not
so far, abolished capital punishment. But even in India there has been a decline in
the frequency of such punishment, it is now awarded only in case of hardened
criminals and only when it is established that the murder was not the result of
momentary impulse, the result of serious provocation, but well planned and cold
blooded. In such cases, it is felt that nothing less than capital punishment would

10 In Mithu v. State of Punjab, AIR 1983 SC 45, Section 303 of Indian Penal Code has
been declared unconstitutional.
11 This section has been substituted by Amendments Act 13 of 2013, and it has been
enforced from 03-02-2013.
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meet the ends of justice, that it is just and proper that such beasts of society are
eliminated. It is, therefore, in the fitness of things that India has not so far
abolished capital punishment but used it more judiciously, sociologists are of the
view that capital punishment serves no useful purpose.

9. Related provisions of Criminal Procedure Code, 1973

Section 354(3), (5) of the Criminal Procedure Code requires that 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 the
state reasons for such sentence. Further, when any person is sentenced to death,
the sentence shall direct that he be hanged by the neck till he is dead.

Section 366 of the Criminal Procedure Code procedure that when the
Court of Session passes a sentence of death, the proceedings shall be submitted to
the High Court, and the sentence shall not be executed unless it is confirmed by
the High Court. The court passing the sentence shall then commit the convicted
person to jail custody under a warrant.

Section 367 of the Criminal Procedure Code procedure that When such
proceeding are submitted, the High Court thinks that a further inquiry should be
made into, or additional evidence taken upon, any point bearing upon, any point
bearing upon the guilty or innocence of the convicted person, it may make such
enquiry or take such evidence itself, or direct it to be made or taken by the court
of session. The inquiry contemplated under Sec. 367 would take in the
examination of the accused under Sec. 313(1)(a). When the inquiry or evidence
(if any) is not made or taken by the High Court, the result of such inquiry or
evidence shall be certified to such court. Unless the High Court otherwise directs,
the presence of the convicted person may be dispensed with when such inquiry is
made or such evidence is taken.

Section 368 of the Criminal Procedure Code procedure requires that no

order for confirmation shall be made until the period allowed for preferring an
appeal has expired, or if any appeal is presented within such period, until such
appeal is disposed of. Section 369 of the Criminal Procedure Code procedure
requires that in every case so submitted, the confirmation of the sentence, or any

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new sentence or order passed by the High Court, shall when such court consists
of two or more judges, be made, passed and signed by at least two of them.
Further, Section 370 of the Criminal Procedure Code procedure provides that
where any such case is heard before a bench of judges and such judges are
equally divided in opinion, the case shall be decided in the manner provided by
Section 392 of the Criminal Procedure Code. As per the Section 371 of the
Criminal Procedure Code procedure in cases submitted by the Court of Session to
the High Court for the confirmation of a sentence of death, the proper officer of
the High Court shall, without delay, after the order of confirmation or other order
has been made by the High Court, send a copy of the order under the seal of the
High Court and attested with his official signature, to the Court of Session.

10. Concept of Rarest of Rare Cases

Whether a case falls under the category of rarest of rare case or not, for
that matter the Apex Court laid down a few principles for deciding the question
of sentence. One of the very important principles is regarding aggravating and
mitigating circumstances. Court opined that while deciding the question of
sentence, a balance sheet of aggravating and mitigating circumstances in that
particular case has to be drawn. Full weightage should be given to the mitigating
circumstances and even after that if the Court feels that justice will not be done if
any punishment less than the death sentence is awarded, then and then only death
sentence should be imposed.

Again in Machhi Singh v. State of Punjab12 the court laid down :-

In order to apply these guidelines inter- alia the following questions may
be asked and answered :-

(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?

(b) Are there circumstances of the crime such that there is no alternative but
to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offenders?

12 AIR 1983 SC 947.

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 The principles laid down by the Apex Court were reiterated in its
judgment in Sushil Murmu v. State of Jharkhand13 :

In rarest of rare cases, when the collective conscience of

the community is so shocked that it will expect the holders
of the judicial power center to inflict death penalty
irrespective of their personal opinion as regards desirability
or otherwise of retaining death penalty, death sentence can
be awarded.

The Supreme Court has also discussed the circumstances in various cases.
These circumstances include:-

Murder committed in an extremely brutal, grotesque, diabolical, revolting

or dastardly manner so as to arouse intense and extreme indignation of the
community.

Murder for a motive which evinces total depravity and meanness.

Murder of a Scheduled Caste or Scheduled Tribe arousing social wrath(

not for personal reasons)

Murderer is on dominating position, position of trust or in course of

betrayal of the motherland.

Where it is enormous in proportion.

Victim-innocent child, helpless woman, old/infirm person, public figure

generally loved and respected by the community.

If upon taking an overall view of all the circumstances and taking it into
account the answers to the question posed by way of the test of rarest of rare
cases, the circumstances of the case are such that death penalty is warranted, the
court would proceed to do so. In Lalit Kumar Yadav @ Kuri v. State of Uttar
Pradesh14,In the present case, the circumstantial evidence comes to only one
conclusion that appellant attempted to commit rape and because of resistance he
committed the murder of the deceased. The appellant was aged about 21 years at
the time of offence. Initially when the matter for confirmation of death sentence

13 2004 (2) SCC 338.

14 2014 STPL (Web) 318 SC.
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was heard by the two learned Judges of the High Court there was a divided
opinion, one Judge confirmed the death sentence while the other acquitted the
appellant. It is the other Bench which affirmed the death sentence. It is not the
case of the Prosecution that the appellant cannot be reformed. In fact the
possibility of his reformation cannot be ruled out. There is no criminal antecedent
of the appellant. The Court has to consider different parameters as laid down in
15
Bachhan Singh followed by Machhi Singh16 and balance the mitigating
circumstances against the need for imposition of capital punishment. Court
observed that considering the age of the accused, the possibility of reforming him
cannot be ruled out. He cannot be termed as social menace. Further, the case does
not fall under the rarest of rare category.

11. Retributive Character of Death Punishment

The punishment is retributive in character. The object of sentencing

should be to see that the crime does not go unpunished and the victim of crime as
also the society has the satisfaction that justice has been done to it lest it may lead
to Lynch Law. There have been instances where victims relative killed the
accused. Criminal Law has its origin in vengeance. Punishment mechanism
revolves around the satisfaction of law-abiding persons anger. Anger is not
always bad but it is the indifference of community towards the circumstances,
which is more harmful. One of the purposes of law is to calm the communitys
anger by punishing the criminal. Anger which is not selfish like greed or jealousy
is socially constructive and when it erupts for right cause it should be rewarded.
Punishment is primarily satisfaction of private revenge and at the same time an
emphatic denunciation of the crime by the society. Any civilized society which
shies away from showing righteous indignation has nothing to distinguish it from
main soul. The Criminal Law stands to the passion of revenge in much the same
relation as marriage to sexual appetite.

The theory of deterrent punishment draws its inspiration from the

hedonistic philosophy of Beccarias Classical school of criminology. A rigorous
and maximum punishment as against a moderate and lesser punishment helps to

15 Bachhan Singh v. State of Punjab, AIR 1980 SC 898.

16 Supra 12.
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prevent the commission of a crime. For the incorrigibles and habitual and
hardened criminals death penalty is best suited and it is the only method teaching
hardened criminals. The incorrigible and hardened criminals as a rotten limb of
the society must be eliminated. The prevalence of recidivism offers a serious
stumbling block to a too ready acceptance of the idea of readily achieved
reformation. The recidivist becomes the criminal who after having experienced
rehabilitation treatment returns to crime and ultimately to prison again to be
rehabilitated further. Making murder a safer proposition, a less deadly
proposition for the killer will have a hostile effect on society. The capital
punishment is an effective tool to curve the grave wrong act such as of killing and
it can also be instrumental in preventing society from becoming ever more
imperfect than it need be.

12. Global Perspective of Death Sentence

Given the abolition of the death penalty in Europe and a number of other
nations including Canada, Australia and Mexico, the question of unanimity has
been rendered superfluous in these States. A number of other States which
continue to award the death sentence require a unanimous verdict by all judges.
Even in countries of the Commonwealth that retain the jury system Malta,
Ghana, Anguillas, Guyana and the Bahamas- a unanimous verdict is essential for
a death sentence. Indeed common law follows a strong tradition of commuting a
death sentence to life in the case of a non-unanimous verdict.

Though the death penalty is imposed frequently in the United States of

America, (more than 900 people have been executed since 1976 and 3500 more
await a similar fate), the law is clearly in favour of unanimity. Criminal cases are
tried by a twelve member jury and after the landmark judgment in Ring v.
Arizona17, the jurors reserve the power to decide the sentence. No person may be
awarded the death sentence except by the unanimous verdict of a twelve member
jury. This is the law- in criminal as well as federal cases- in all 38 states that have
retained the death penalty. In US Martial and Martial Tribunal Courts, the
Uniform Civil Code of Military Justice notes that a death sentence can only be
handed out with unanimity of opinion of a five member panel that tries the case.

17 536 US 584(2002)
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The panel must agree that no other sentence is more appropriate than death. In
addition to such safeguards, the convening authority has the power to reduce- but
not increase- the sentence and set aside a finding a guilt.

The Law Council of Australia has reported that even the Military
Commissions set up to try Guantanamo Bay detainees will follow the same
procedure and therefore can only unanimously impose the death penalty.
Previously, even the Nuremberg and Tokyo war crimes tribunals set up after the
Second World War have required unanimity. In South Asia Nepal, Bhutan, Sri
Lanka and the Maldives have abolished the death penalty either in law or
practice. However Pakistan and Bangladesh retain the death penalty and follow
the majority rule in awarding death sentences. In the Zulfiqar Ali Bhutto case in
the Supreme Court of Pakistan in 1977, the seven judge bench sentenced the
former Prime Minister and former President, Mr. Bhutto to death by a majority
verdict with four judges in favour of the death sentence.18

An international survey carried out in 1962 by the United Nations,

however, confirmed that neither suspension nor abolition of death penalty had
any immediate effect in increasing the incidence of crimes punishable with
sentence of death. The countries which had abolished capital punishment,
notably, Germany, Austria, Scandinavia, Netherlands, Denmark and some Latin
American States reported no ill-effects of abolition.

It is significant to note that with the abandonment of the torturous and

barbarous methods of inflicting death penalty, the meaning of the term 'capital
punishment' now extends only to death sentence for murder or homicides.
Particularly, in western countries rape is no longer serious crime for two main
reasons. Firstly, with general laxity in morality, the gravity of this offence is fast
declining. In the second place, scientists have established rape as a mere passive
surrender by the victim because in their opinion it is practically impossible to
commit rape unless the victim is made unconscious. Likewise, treason being
exclusively a war-time offence, it is futile to enlist it as a peace-time offence and
to provide death penalty for it.

18 PLD 1978 Lahore 523 (Criminal Original Case. No. 60 of 1977.

127
 In the modern reformative era, the retributive principle of 'tit for tat' does
not serve any useful purpose. Retribution can only do more harm than good to the
criminals and can never be an effective measure of suppressing crime. Retaliation
and retribution, apart from being outdated are also against the accepted norms of
modern criminal justice. Beccaria was perhaps the first criminologist who raised
a crusade against capital punishment in 1764. He strongly protested against the
use of cruel and barbarous modes of punishing the offenders and emphasized the
need of individualized treatment. He expressed a view that death as a sentence
symbolizes man's cruelty and insignificance of human life. In course of time,
mens rea became the guiding principle for determining the guilt and punishment
of the offender though it is true that in certain cases, it is difficult to determine
mens rea of the offender.19

Yet another reason for discarding retribution as a principle of criminal

justice to be found in the fact that putting a person to death virtually amounts to
killing him deliberately. That apart, experience has shown that more than eighty
per cent of the persons committing murder are not really murderers but are
persons who have fallen a prey to this heinous crime due to circumstances such
as passion, provocation, jealousy, sexual impulsiveness, poverty or intoxication.
Obviously, death sentence is hardly an appropriate punishment for such
offenders. The human rights supporters have expressed doubts about the
adequacy of capital punishment as it involves the risk of innocent person being
sent to guillotine. In a number of cases bona fide errors of judgment as to guilt of
the accused are known to have occurred. If an innocent person is hanged due to
miscarriage of justice, his life is lost for ever and the loss is obviously
irredeemable. Perhaps it is for this reason that slightest doubt about the guilt of
the accused entitles him for an acquittal on the plea of 'benefit of doubt20 under
the criminal law of most Countries.

The abolitionists strongly argue that since death penalty is irrevocable and
against the human rights, it should not be awarded. But the elaborate safeguards
provided in the procedural law clearly indicate that though the sentence of death
is irrevocable, it is awarded only after a thorough scrutiny at every stage of the

19 Dr. Vimla Devi v. Delhi Administration, AIR 1963 SC 1572.

20 Daiya Moshya Bhil v. State of Maharashtra, AIR 1984 SC 1730.
128
case and therefore, chances of human error or judgment are not only minimized
but reduced to almost nil. Slightest doubt the guilt of the accused who is to be
sentenced to death is sufficient to entail him benefit of doubt. As such, abolition
of death penalty on the ground of irrevocability hardly seems to be justified.

13. Previous Efforts to Abolish Death Penalty

Legislative attempts to abolish the death penalty in India have failed.

Before Independence a private Bill was introduced in 1931 in Legislative
Assembly to abolish the death penalty for penal code offences. The British Home
Secretary at the time however rejected the motion. The Government of India
rejected a similar Bill in the first Lok Sabha. Efforts were also made in Rajya
Sabha to move resolution for abolition of death sentence in 1958 and 1962 but
were withdrawn after some debate. The Law Commission in its Report presented
to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death
penalty should be retained and that the executive (President) should continue to
possess powers of mercy.

The issue of constitutional validity of Section 302 of Indian Penal Code,

the Supreme Court in Jagmohan vs. State of U.P.21 Apart thrashed out I.P.C. in
detail from the constitutional validity, the Supreme Court also discussed position
in other countries, the structure of Indian Criminal Law, the extent of Judicial
discretion etc. It was held in Jagmohan Singh vs. State of U.P.22, that death
sentence act as deterrence but as token of emphatic disapproval of the crime by
the society, where the murder is diabolical in conception and cruel in execution
and that such murderers cannot be simply wished away by finding alibis in the
social maladjustment of the murderer. Expediency of transplanting western
experience in our country was rejected, as social conditions and so also the
general intellectual levels are different. The Court referred to the 25th Report of
the Law Commission of India, in which it was stated that India cannot risk the
experiment of abolition of capital punishment. The fact that the possibility of an
error being committed in the matter of sentence can be corrected by appeals and
revisions to higher courts was relied upon.

21 AIR 1973 SC 947.

22 Ibid.
129
 The approach of our Supreme Court in the matter of death sentence is
cautious as well as restrictive which is in consonance with the modern and liberal
trends in criminal jurisprudence. The doctrine of Rarest of Rare evolved by the
Apex Court reflects the humanist Jurisprudence. There have been ample instances
where the Supreme Court has restricted the use and imposition of death penalty
only to cases coming with in the category of rarest of rare case. Under Sec.
354(3) of the Criminal Procedure Code, 1973 a new provision has been
introduced to say 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 reason for the sentence awarded and in the case of
sentence of death, the special reason for such sentence.

14. Arguments for Retention of Death Penalty

The retentionist's view of death penalty considers death penalty necessary

on the following grounds:

1. Elimination of murderers by execution is fair retribution and serves the

ends of justice.

2. Punishment must match the gravity of offence and worst crimes should be
severely dealt with for the sake of deterrence and security of the society.

3. Death penalty shows society's reaction to heinous crimes.

4. One who ends somebody's life, forfeits his right to life.

5. Death sentence should be looked as a form of retributive justice insofar as

it provides satisfaction and peace of mind for many victims of crime and
their families or relatives.

6. It is the most effective way to protect society against condemned

offenders. This is the reason why death penalty has been held to be
constitutionally valid.

7. Some authorities believe that death penalty is less cruel than a prolonged
life imprisonment.

130
8. Considered from the economic point of view also it is for less
expensive to execute a convict than to house him/her in a prison
institution for life.

9. It prevents over-crowding in prisons and helps in elimination of

offenders who are potential danger to the institution thereby
making maintenance of discipline in prisons easy.

10. It upholds rule of law because it discourages vigilantism or self-help on

the part of victim's family.

15. Arguments for Abolition of Death Penalty

The abolitionist's view of death penalty supports the abolition of death

penalty on the following grounds:

1. Death penalty is killing and all killings are wrong and therefore, death
sentence is also wrong.

2. An execution arising out of miscarriage of justice is irreversible and

therefore, it may result in great injustice to the person wrongly sentenced
to death.

3. It is a lethal vengeance which brutalises the society.

4. Death penalty is unjust and often discriminatory against poor who

cannot afford to defend themselves properly against a homicide charge.

5. It is a misconception to think that death penalty has a deterrent effect

because hired murderers do take chance with the criminal justice system
whatever be the consequences.

6. Death penalty is violative of human rights, particularly Articles 3 and

Article 5 of the United Nations Declaration of Human Rights, 1948.

7. Quite a large number of murders are crimes of emotion or impulsiveness.

Therefore, death penalty in such cases does not serve the ends of justice.

8. It denies the possibility of reformation and rehabilitation of the offender.

A perusal of arguments for and against the retention of capital punishment

in a penal system makes it abundantly clear that at least its retention in the statute

131
book would better serve the ends of justice, though in practice it may be used
sparingly. This approach to capital punishment is well reflected in the judicial
pronouncements handed down by the Supreme Court ever since the historic
23
Bachhan Singh's case, where the Court laid down the "rarest of rare case"
24
principle.

16. Death Penalty is no more 'Mirage' in India

Death penalty entangles unavoidable element of suffering and

humiliation. If delay occurs in the execution of death penalty it causes severe
mental anguish to the person awaiting death which is cruel and inhuman. At
international level, with the endeavours of the United Nations Organization
General Assembly and the Commission on Human Rights, Second Optional
Protocol to the International Covenant on Civil and Political Rights, has been
adopted by which, State Parties to the Covenant took an additional obligation of
abolition the death penalty.

In our country, in this context, it is well settled legal position that the
death penalty may be awarded only in the case of rarest of rare cases and the
Honble Judge of the Supreme Court Mr. Krishna Iyer25 had propounded key
verdict that in criminal trial possibility of imposing death penalty should be only
if the nature and manner of offences committed fall in category of rarest of rare
cases. Decades past, the Indian Courts have followed this magic judicial note
resulting undeclared abolition of death penalty although the punishment as to
death penalty has not been removed from Indian Penal Laws.

On number of occasions the Supreme Court of India has laid down that
the delay in execution of death sentence would entitle the convicted person to
seek conversion or alteration of death sentence into life imprisonment. In Triveni
Ben v. State of Gujrat,26 the five judge Bench of the Supreme Court has held
that undue delay in execution of the death sentence will entitle the condemned
person to approach the court to seek commutation of death sentence into life

23 Bachhan Singh v. State of Punjab, AIR 1980 SC 898.

24 Earlier, in Jagmohan Singh v. State of U.P., AIR 1973 SC 947 also the Supreme Court
held that death penalty per se is not violative of Art. 19.
25 Supra 23.
26 AIR 1989 SC 142.
132
imprisonment. The Court expressed the view that before passing order of
commutation it is necessary to examine the nature of delay and circumstances of
the case. Even if the person facing death penalty shows genuine repentance which
is evident from report of jail authorities, it was held by the Supreme Court that
the death sentence could be commuted to life imprisonment.27 Thus, in case of
delay in execution of death sentence it could be commuted to life imprisonment.
Article 21 of the Constitution of India, 1950 which guarantees right to life and
personal liberty can be invoked by the person anticipating death penalty.
Recently on march 31, 2014, the Supreme Court commuted the death penalty of
terror convict Devinder Pal Singh Bhuller to life term over mental illness and an
inordinate delay by the government in deciding his mercy plea.28

17. Judicial Trend Qua Death Penalty

The magistracy has more often than, not, used Section 354(3) of the Code
of Criminal Procedure to justify its stand either in support of or against the award
of capital punishment. The abolitionists see this provision a green signal for
dilution of capital punishment while for the receptionists the special reasons
contemplated by Section 354 (3) implicitly suggest that death sentence is legally
and constitutionally permissible.

A perusal of some of the Supreme Court decisions involving award of

death penalty would reveal that sudden impulse or provocation29 uncontrollable
hatred arising out of sex indulgence,30 family feud or land dispute, infidelity of
wife31 or sentence of death hanging over the head of the accused for a
considerable long period of time due to law's delay,32 have been accepted as
extenuating circumstances justifying lesser penalty of life imprisonment instead
of death sentence. Mr. Justice Krishna Iyyer of the Supreme Court of India,
however, made it clear in Rajendra Prasad v. State of U.P.,33 that where the

27 Javed Ahmad v. State of Maharashtra, AIR 1985 SC 231.

28 Navneet Kaur v. State of NCT Delhi, 2014 STPL (Web) 226 SC.
29 Ummilal v. State of M.P., AIR 1981 SC 1710, Dalbir Singh v. State of Punjab, AIR
1979 SC 1384, Gura Singh V. State of Rajasthan, (1984) Cr. L.J. 1423 (1428).
30 Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799.
31 Bishnu Dev Shaw v. State of West Bengal, AIR 1979 SC 702.
32 T. V. Vatheeswaran v. State of Tamil Nadu, 1983 Cr LJ 481.
33 AIR 1979 SC 916.

133
murder is deliberate, premeditated, cold-blooded and gruesome34 and there are no
extenuating circumstances, the offender must be sentenced to death as a measure
of social defence.35
The pros and cons of "life or death" sentence have been extensively dealt
with by the Supreme Court of India in Rajendra Prasad's36 case. Therefore it
would be pertinent to state the facts of the case to analyse the entire issue in its
proper perspectives.
The Supreme Court in Ranjit Singh v. Union Territory of
Chandigarh37 was once again called upon to decide an appeal relating to the
question of sentence. In the instant case, murder was committed by appellant, a
life convict during parole. The accused was sentenced to death on conviction
under Section 303, I.PC. and the co-accused was awarded life-imprisonment.
Agreeing with the contention of deceased's counsel the Supreme Court commuted
the sentence of death to that of imprisonment for life as Section 303, I.P.C, had
been declared unconstitutional in Mithu v. State of Punjab.38 The Court held
that during parole appellant should have behaved like a law abiding citizen but
instead he indulged into heinous crime of murder hence the case fell within the
category of "rarest of rare cases".

Again, in Mahesh etc. v. State of M.P.39 the Supreme Court maintaining

the sentence of death passed by the High Court observed :

it would be mockery of justice to permit the

appellants to escape the extreme penalty of
law..............and to give lesser punishment for the
appellants would be to render justicing system of
this country suspect, the common man would lose
faith in courts.
The Supreme Court in its decision in T. V. Vatheeswaran v. State of
Tamil Nadu,40 reiterated that prolonged delay in execution exceeding two years
will be a sufficient ground to quash death sentence since it is an unjust, unfair and

34 Harihar Singh v. State of U.P., AIR 1975 SC 1501.

35 Sarveshwar Prasad Sharma v. State of M.P., AIR 1977 SC 2423.
36 Supra 33.
37 AIR 1984 SC 45.
38 AIR 1983 SC 473.
39 AIR 1937 SC 1346.
40 AIR 1983 SC 361.
134
unreasonable procedure and the only way to undo the wrong is to quash the death
sentence. The Court further observed that the cause of delay is immaterial when
the sentence is that of "death" and a person under sentence of death may also
claim fundamental rights, i.e. procedure under Article 21 must be just, fair and
reasonable.

At present time, the Indian judiciary is playing a role, which has no

parallel in the history of the judiciaries of the world. It has been upholding the
rights of citizens, both the formal political rights contained in Part III and also the
socio economic rights in Part IV of the Constitution. Many people regard the
judiciary as the last hope of the nation, despite all its defects. The Indian judiciary
must therefore prove itself worthy of the trust and confidence which the people
reposes in it. Justice must prevail in all circumstances.

18. Judicial Discretion and Death Penalty

For all the offences, in which death sentence is the punishment, it may be
noted that it is not the only punishment, it is the extreme penalty. Thus, these
sections, by virtue of their very wordings itself, provide for a discretion which is
to be vested in courts right from the inception of Penal Code in 1860. However,
the manner of exercising this discretion has undergone various changes with the
changing time and evolution of new principles. There is also a debate going on,
about the extent of this judicial discretion. In Jagmohans41 case the Supreme
Court held:-

The structure of our criminal law which is

principally contained in the IPC and the Cr.P.C.
undertakes the policy that when the legislatures
have defined an offence with clarity and prescribed
the maximum punishment, therefore a wide
discretion in the matter of fixing the degree of
punishment should be allowed to judges.
Thus the Supreme Court was in favour of wide discretion to be given to
judges for deciding the degree of punishment. However, this wide discretion was
restricted by Section 354(3) of Criminal Procedure Code, 1973 which laid down

41 Supra 21.

135
the law for death sentence special reasons Judges are left with the task of
discovering Special Reasons.

In the case of Dalbir Singh v. State of Punjab42, the court expressed its
concern for the way in which this discretion was being used:

Notwithstanding the catalogue of grounds

warranting death sentence as an exceptional
measure, life being the rule, the judicial decisions
have been differing at various levels with the result
the need for a through re-examination has been
forced on courts by counsel on both sides.
In Bachan Singhs case43 this problem was solved by the Apex Court
itself to a very large extent. The court observed:

It is imperative to voice the concern that courts,

aided by the broad illustrative guidelines indicated
by us, will discharge the onerous function with
evermore scrupulous care and humane concern,
directed along with high road of legislative policy
outlined in Sec. 354(3) of Criminal Procedure
Code.
19. Legality of Death Sentence

In the case of Jagmohan v. State of U.P.44, the question of constitutional

validity of Sec. 302, I.P.C. was discussed in detail by the Supreme Court. Apart
from the constitutional validity, the Supreme Court also discussed positions in
other countries, the structure of Indian Criminal Law, various policies and bills
proposed in the Parliament, the extent of Judicial discretion etc. On the question
of constitutional validity the Court observed:-

The Cr.P.C. requires that the accused must be

questioned with regard to the circumstances
appearing against him in the evidence. He is also
questioned generally on the case and there is an
opportunity for him to say whether he wants to
say In important cases like murder, the
Court always gives a chance to the accused to
address the Court on the question of sentence.
Under the Cr.P.C. after convicting the accused, the

42 AIR 1979 SC 1384.

43 Supra 23.
44 Supra 21.
136
 Court has to pronounce the sentence according to
the law.
On all these grounds the Supreme Court rejected the argument that under
Section 302, Indian Penal Court, life of convict is taken without any procedure
established by law and therefore, it violates Article 21 of the Constitution. Thus,
the Supreme Court settled this controversy long back in 1973. However even
after Jagmohans case45 this question came up again and again. The Supreme
Court reviewed Jagmohans Case46 in the case of Bachhan Singh v. State of
Punjab47 because after Criminal Procedure Code, 1973, death sentence cease to
be the normal penalty for murder. 354(3). Another reason was that Maneka
Gandhis case48 gave a new interpretation to Article 14, 19 and 21 of the
Constitution and their interrelationship. Main issues before the SC were
constitutional validity of Sec. 354(3) of Criminal Procedure Code, 1973.

In Shankar Kisanrao Khade v. State of Maharashtra,49 , the Supreme Court

noticed aggravating circumstances (crime test) mitigating circumstances-
(criminal test) and rarest of rare case (R-R test) and aggravating circumstances
as pointed above, of course, are not exhaustive so also the mitigating
circumstances. In the considered view, the tests which have to be applied are that
while awarding death sentence are crime test, criminal test and the R-R test
and not the balancing test. To award death sentence, the crime test has to be
fully satisfied, that is, 100% and criminal test 0%, that is, no mitigating
circumstance favouring the accused. If there is any circumstance favouring the
accused, like lack of intention to commit the crime, possibility of reformation,
young age of the accused, not a menace to the society, no previous track record,
etc. the criminal test may favour the accused to avoid the capital punishment.
Even if both the tests are satisfied, that is, the aggravating circumstances to the
fullest extent and no mitigating circumstances favouring the accused, still we
have to apply finally the rarest of the rare case test (R-R test). R-R test depends
upon the perception of the society that is society- centric and not Judge-
centric, that is, whether the society will approve the awarding of death sentence

45 Ibid.
46 Id.
47 Supra 23.
48 AIR 1978 SC 597.
49 (2013) 5 SCC 546.
137
to certain types of crimes or not. While applying that test, the court has to look
into variety of factors like societys abhorrence, extreme indignation and
antipathy to certain types of crimes like sexual assault and murder of
intellectually challenged minor girls, suffering from physical disability, old and
infirm women with those disabilities, etc. Examples are only illustrative and not
exhaustive. The courts award death sentence since situation demands so, due to
constitutional compulsion, reflected by the will of the people and not the will of
the Judges.

20. Reasonableness of Death Sentence

The need of retaining death penalty as well as its constitutionality has

already been upheld in the Supreme Court. The Supreme Court in the case of
Bachhan Singh v. State of Punjab50 observed:

if notwithstanding the view of the abolitionists to

the contrary, a very large segment of people, the
world over, including sociologists, legislature,
Jurists, judges and administrators still firmly believe
in the worth and necessity of capital punishment
for the protection of society, if in the perspective of
prevailing crime conditions in India, contemporary
public opinion canalized through the peoples
representative in Parliament, has repeatedly
including the one made recently to abolish or
specifically restrict the area of death penalty, if
death penalty is still a recognized legal sanction for
murder or some types of murder in most of the
civilized countries in the world, if the framers of the
Indian Constitution were fully aware of the
existence of death penalty as punishment for
murder, under the Indian Penal Code, if the 25th
Report and subsequent reports of Law Commission
suggesting retention of death penalty, and
recommending revision of the Cr.P.C. and the
insertion of the new sections 235
(2) and 354(3) were before the Parliament when it
took up revision of the Cr.P.C. , it is not possible to
held that the provision of death penalty as an
alternative punishment for murder, in Sec. 302,
Penal Code is unreasonable and not in the public
interest. The impugned provision in Sec. 302,

50 Supra 23.
138
 violates neither the letter nor the ethos of Article
19.51
21. Reasons for Abolition of Capital Punishment

The reasons why countries have abolished Capital Punishment in different

countries varies. Spain abandoned that last remains of capital punishment in 1995
stating that the death penalty has no place in general penal system of advanced,
civilized societies. What more degrading or afflictive punishment can be
imagined than to deprive a person of his life. The right to life and dignity are the
most important of all human rights and this must be demonstrated by the state in
everything that it does, including the way it punishes criminals.

Richard Jaffe his recent book 'Quest for Justice' wrote I always keep in
mind the maxim that history will judge a society by the way it treats it weakest
and most vulnerable. Although most would assume that applies to the poor and
elderly, all one has to do is look at those who end up on death row, on
overwhelming number are poor, disenfranchised and suffer from some marital
defeat or we brain damage.52

In India in July 2012, 14 retired Indian Judges wrote to President Pranab

Mukherjee urging in him to work towards abolishing, the death penalty in the
country. Among the other things the judges pointed out the Supreme Court had
itself admitted that it had gone wrong in three cases in which it had upheld the
death sentence. One of the persons has already been hanged while the Other two
are awaiting elimination, This is indeed a very chilling fact about death penalty.
If the legal system goes wrong, as it can since its manned by humans, we can
never reverse death. That is why "it's better that ten guilty persons escape than
one innocent suffer". There is total justification in the argument that if one cannot
given life back, one has no right to take it, whatever the circumstances maybe.
India maintains that it imposes capital punishment in only the "rarest of rare"
cases. In July 14, 2012 retired judges asked the president to commute the death
sentences. of 13 inmates erroneously upheld by the Supreme Court over the past
nine years. This followed the Court is admission that these death sentences where
rendered per in curium (out of error or ignorance). In November, the Supreme

51 Rajender Prasad v. State of U.P., AIR 1979 SC 916.

52 Richard Jaffe, Quest for Justice, 2014, Introduction part.
139
Court also conceded that the "request of rare" standard has not been applied
uniformly over the years and that the principles for judging what constitutes
"rarest of rare" crimes need " a first look".53

Moreover, the fate of most of death-row inmates of prolonged solitary

confinement for indefinite period in prison is a retribution enough. The court of
Appeals in the United Kingdom recently quashed the conviction of Belfast man
named Liam Holden for allegedly murdering a soldier in 1972. Fortunately, his
death sentence had been reduced to life imprisonment and he spent 17 years in
jail. Had he been executed, the acquittal by the Court of Appeals would have had
no meaning. Leain Holder in his 1973 testimony said that after the interrogation
he was taken from the school and driven to the outstretch of Belfast. There he
signed a statement admitting to shooting of Peter Bell. In 2012, Holden summed
up his feelings at the time: "By the time they had finished with me I would have
admitted to killing JFK."

India too has been moving steadily towards the abolition of the death
penalty. Before independence and for many years after that, the death sentence
was liberally handed down to convicts. But the number of voices joining this
international debate on abolition of death penalty is steadily increasing. The
watershed came in the year 1980 when a constitutional bench of the Supreme
Court considered the case of Bachhan Singh54. The court upheld the
constitutional validity of the death sentence but made it clear that henceforth the
death sentence could only be given in the rarest of rare cases. In giving some
definition to what rarest of rare could mean. The court held that such a crime
must have been deliberately planned, executed meticulously in a diabolic manner,
exhibiting inhuman conduct in such a ghastly manner as to shock the conscience
of everyone and therefore disturb the moral fabric of society. This judgment has
indeed had a salutary effect because, over the years fewer and fewer people have
been sentenced to death and subsequently killed. In the last 12 years, India has
hanged only two persons.

53 Human Rights Watch World Report, 2013, p 321.

54 Supra 23.
140
 Now the question that comes to mind is that has the doctrine of "rarest of
rare cases" worked in India. To some it appears to be the most practical solution
to an almost intractable problem. This gives the judiciary flexibility to vary the
punishment from case to case. The 14 retired S.C. judges who recently wrote to
the President, however, felt that the doctrine was altogether active and arbitrary
because upholding the death penalty depends entirely on the personal sophy and
morality of our judges. One set of judges may sentence a man to death while the
facts and circumstances may induce another set of judges to hand him the mild of
life imprisonment. A close study of Supreme Court judgments on the subject can
leave one bewildered. India one day abolish the death sentence? That prospect
does not seem to be looming. The death sentence acts as a deterrent has many
believers in our country even though is increasing evidence to show this may not
be true.

Sometimes the crime is so gruesome and diabolic, it shocks everyone.

Taking the Delhi rape case55, the senior leaders asking for death penalty for
people have committed the rape. They get mixed up with the issues. They say
that two wrongs make it, that's effectively what they are saying. Somebody
commits a crime, so we will commit more. As far as human rights view is
concerned, it says that death penalty under any circumstances is a crime, they
think it is contrary to right to life. There's a real direct problem. The empirical
evidence that doesn't have a deterrent effect. There is no correlation between the
two. We are long to India to become one of the states that completely stops
execution. The concern about mistakes in capital cases is indeed the most
powerful driving force which needs re-evaluation of the death penalty even in
United States of America, presently, Supreme Court Justices, legislators,
political leaders and commentators have all expressed deep concerns about
nations of innocent people on death row in recent years. From the human right's

55 On the night of 16 th December, 2012 , one student was brutally raped by six persons in
a moving bus, due to the incident a public outrage for awarding death penalty to the
rapists was occurred and in December, 2012, a committee headed by Justice J. S.
Verma including members Justice Leila Seth, former judge of high court and Gopal
Subramanium, former Solicitor General of India was appointed to recommend the
amendment to the criminal laws especially sexual offences against women due to the
grave public outrage occurred after the incident of 16 December gang rape in Delhi. The
Committee submitted its detailed report on January 23, 2013.
141
perspective, anger of executing an innocent person has played a key role in the
abolition of the death penalty in other countries.

22. Capital Punishment in India

The ancient law of crimes in India provided death sentence for quite a
good number of offences. The Indian epics, viz., the Mahabharata and the
Ramayana also contain references about the offender being punished with
vadhadand which meant amputation by bits. Fourteen such modes of amputating
the criminals to death are known to have existed which included chaining and
imprisonment of the offender.

Justifying the retention of death penalty, King Dyumatsena observed : "if

the offenders were leniently let off, crimes were bound to multiply". He pleaded
that true ahimsa lay in the execution of unworthy persons and therefore,
execution of unwanted criminals was perfectly justified.56 His son Satyaketu,
however, protested against the mass scale execution and warned his father that
destruction of human life can never be justified on any ground. But Dyumatsena.
ignored the advice of his son and argued that distinction between virtue and vice
must not disappear and vicious elements must be eliminated from society.57

The great ancient law-giver Manu also placed the element of fear as an
essential attribute of judicial phenomenon. According to him, in order to refrain
people from sinful murders, death penalty was necessary and in absence of this
mode of punishment, state of anarchy will prevail and people would devour each
other as the fish do in water, the stronger eating up the weaker.

During the medieval period of Mughals rule in India, the sentence of

death revived in its crudest form. At times, the offender was made to dress in the
tight robe prepared out of freshly slain buffalo skin and thrown in the scorching
sun. The shrinking of the raw-hide eventually caused death of the offender in
agony, pain and suffering. Another mode of inflicting death penalty-was by
nailing the body of the offender on walls. These modes of putting an offender to
death were abolished under the British system of criminal justice administration

56 Mahabharat-Shantiparva chapter CCLXVII Verses 4-13.

57 Ibid.

142
during early decades of nineteenth century when death by hanging remained the
only legalised mode of inflicting death sentence.

23. Law Commission on Capital Punishment

In response to the resolution moved in the Parliament in 1962 on the
abolition of capital punishment, the Government of India referred the question to
the Law Commission. The Commission decided to take up this subject separately
for the revision of the general criminal law in view of its importance. The
Commission presented its report to the Lok Sabha on November 18,1971, in
which it inter alia observed :

even after all the arguments in support of abolition

of capital punishment are taken into account, there
does not remain a residium of cases where it is
absolutely impossible to enlist any sympathy on the
side of the criminal.58

The Commission further expressed a view that retribution involved in

capital punishment does not connote the primitive concept of eye for an eye but
it is an expression of public indignation at a shocking crime, which can better be
described as reprobation. Therefore, the Commission did not recommend any
material change in the offences which are made punishable with death under the
Indian Penal Code. As regards the question of exempting certain categories of
persons from death sentence, the Law Commission in its 42nd Report published in
June 1971 suggested that:

1. Children below 18 years of age(at the time of commission of the crime)

should not be sentenced to death.59

2. It is not necessary to exempt women generally from the death penalty.

3. It is unnecessary to insert a statutory provision relating to diminished

responsibility in the statute book.

58 42nd and 48th Report of the Law Comission of India (1971-72)

59 Under the Juvenile Justice (Care and Protection of Children) Act 2000, the maximum
term for a juvenile is three years in a Special Home.

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4. An attempt to commit suicide should cease to be an offence in India. The
present law in this regard is harsh and unjustifiable and it should be
replaced.60

The Law Commission strongly felt that capital punishment acts as an

effective, deterrent which is the most important object and even if all objects
were to be kept aside, this object would by itself furnish rational basis for its
retention. In its concluding remarks, the Commission observed that having
regard to the peculiar conditions prevalent in India and the paramount need for
maintaining law and order in this country, India cannot risk the experiment of
abolition. This is perhaps the most appropriate approach to the problem of capital
punishment so far Indian criminal justice system is concerned.

24. Indian Law on Death Penalty

The members of the judiciary are sharply divided on the crucial issue of
life or death sentence. Those who support abolition argue that death penalty is
degrading and contrary to the notion of human dignity; it is irrevocable and an
expression of retributive justice, which has no place in modern penology. The
retentionists, on the other hand, justify capital punishment as a social necessity
having a unique deterrent force.
The shifting trend towards imposition of death sentence for the offence of
murder is clearly discernible from the amendments made in criminal law from
time to time. Prior to 1955, judicial discretion in awarding a lesser penalty instead
of death sentence was circumscribed by requiring the Judge to record his reasons
for awarding a lesser punishment. This in other words, meant that the discretion
of the Judge was open to further judicial review. However, it was subsequently
realised that this restriction on the power of Court was unnecessary because at
times it nullified the achievement of the Judge if his reasons for awarding life
imprisonment instead of death sentence, did not argue well even though he might
be ultimately correct in his final judgment. Thus, in Avtar Singh v. Emperor,61

60 In Rathinam Nagbhusan Patnaik v. Union of India, AIR 1994 SC 1844, the Supreme
Court had ruled that attempt to commit suicide(i.e. Sec. 309 IPC) deserves to be effaced
from IPC being violative of Art. 21 of the Constitution. But this decision was
subsequently over-ruled by the Supreme Court in Gyan Kaur v. State of Punjab, AIR
1996 SC 946 and consequently Sec. 309, IPC is valid.
61 17 CWN 1213
144
the Judge concerned considered it proper to award a sentence of life
imprisonment instead of death, for the reason that the accused was initially
condemned to death which remained suspended for a period of over six months.
Giving reasons for his decision, the learned Judge observed that it was unjust to
keep the sentence of death hanging over the head of the accused for a long period
of over six months because it must have caused him great mental torture. The
Judge therefore, thought it proper to reduce the sentence of death to that of life
imprisonment. But in another case, i.e., Queen v. Osram Sungra,62 where the
accused committed a deliberate cold blooded murder for ulterior motives, the
Court awarded a lesser punishment of life imprisonment instead of death, without
recording reasons of such leniency.

Restrictions on the discretion of the Judge to record reasons for awarding

a lesser punishment of life imprisonment to the murderer instead of sentence of
death were withdrawn by the Amendment Act,63 of 1955. After this amendment,
the Judge had the discretion to commute the sentence of death to that of life
imprisonment, but in case he considered the imposition of death sentence
necessary, he had to state the reasons as to why a lesser penalty would not serve
the ends of justice. Thus, the amendment clearly reflected the shift in trend
towards death penalty.

The Code of Criminal Procedure, 1973, also contains a provision

regarding death sentence. Section 354 (3) of the Code provides that while
awarding sentence of death, the Court must record "special reasons" justifying the
sentence and state as to why an alternative sentence of life-imprisonment would
not meet the ends of justice in that particular case. Commenting on this provision
of the Code, Mr. Justice V.R. Krishna Iyer of the Supreme Court (as he was
then) observed that the special reasons which Section 354(3) of Criminal
Procedure Code speaks of reasonableness as envisaged in Article 19 as a relative
connotation dependent on a variety of variables, cultural, social, economic and
otherwise".64

62 (1886) 6 WR (Cr) 82.

63 Section 66 of the Criminal Law Amendment Act, (XXVI of 1955).
64 Rajendra Prasad v. State of U.P., AIR 1979 SC 916 (931).
145
 The Code of Criminal Procedure, 1973 further requires that the sentence
of death imposed by the Sessions Judge can be executed only after it is confirmed
by the concerned High Court.65 That apart, Section 235(2) of the Code further
casts a statutory duty upon the Court to hear the accused on the point of sentence
The Court should also call upon the State, i.e., the Public Prosecutor to mention
giving reasons whether or not that extreme penalty prescribed by law is called for
in view of the facts and circumstances of the case.

It is thus evidently clear that a heavy duty cast by Section 302 of the
Indian renal Code on the Judge, of choosing between death and imprisonment for
life for the person found guilty of murder, is expected to be discharged in a
highly responsible mariner by complying with the provisions contained in
Sections 354(3) and 235(7) of the Code of Criminal Procedure so that the
principle of natural justice and fair play holds its sway in the sphere of
sentencing. These provisions also help the Judge to individualize sentencing
justice and make it befitting to the crime and the criminal. The rationale of the
above procedural safeguards and the aweful consequences of a death sentence on
the convict, his family and society were considered by the Supreme Court once
again in the case of Allauddin Mian v. State of Bihar.66, in this case the Apex
Court held that when the Court is called upon to choose between the convict's cry
'I, want to live' and the prosecutor's demand, 'he deserves to die', it must show a
high degree of concern and sensitiveness in the choice of sentence.

The Supreme Court further observed that 'special reason clause' contained
in Section 354(3) of Criminal Procedure Code implies that the court can impose
extreme penalty of death in appropriate cases. The provision of Section 235(2) of
the Code calls upon the Court that the convicted accused must be given an
opportunity of being heard on the question of sentence. This provides the accused
an opportunity to place his antecedents, social and economic background and
mitigating and extenuating circumstances before the Court. Besides the statutory
provisions, the Constitution of India also empowers the President67 and the

65 Section 366(1) of the Code of Criminal Procedure, 1973.

66 AIR 1989 SC 1456.
67 Art. 72 of the Constitution of India.
146
Governor68 of the State to grant pardon to the condemned offenders in
appropriate cases. These powers are, however, co-extensive with the legislative
powers. The power to cut short a sentence by an act of executive clemency69 is
not subject to judicial review. It is an exclusive domain of the executive in India70
and elsewhere.71 It is significant to note that the controversy once for all in the
case of Sarat Chandra v. Khagendra Nath,72 which affirmed the principle that
sentencing powers of judiciary and executive are readily distinguishable. A brief
analysis of the cases decided by the S.C. regarding the question of death sentence
over last 25 years, will reveal how differing/dithering the judgments have been.

In 1994, while deciding the case of Anshad v. State of Karnataka73, the

Supreme Court commuted death sentence to life imprisonment while the accused
was convict of a brutal, diabolical murder. The sentence was commuted because
the SC felt that there are chances of reformation of accused. With due respect to
the courts view, it is submitted that there still remains a question creating doubts
on such judgments as to how to judge the chances of reformation of an accused in
a particular case. However, it can be done on the line of Supreme Courts
judgment in Javed Ahmed Abdul Hamid Passawa v. State of Maharashtra74
on this case. The death sentence of accused was affirmed in 1983, but later, on
the basis of serious atonement, the SC commuted the sentence to life
imprisonment.

Then comes the very important case of Mohd. Chaman v. State

(N.C.T.) of Delhi75, in this case a one and a half year old girl was raped by the
accused, and because of the heinous act, she sustained serious injuries and died.
High Court confirmed the death sentence awarded by the Session Court. But the
Honble Supreme Court commuted death sentence into life imprisonment,
observing:-

68 Art. 161 of the Constitution of India.

69 The Prerogative of Mercy the Power of Pardon & Criminal Justice, Public Law
(London) 1983 pp. 398-439.
70 AIR 1962 SC 605
71 AIR 1968 SC 497.
72 AIR 1968 SC 497.
73 1994 (4) SCC 381.
74 AIR 1985 SC 231.
75 2001(2) SCC 28.
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 The crime committed is undoubtedly serious and heinous and the conduct
of the appellant is reprehensible. It reveals a dirty and prevented mind of a
human being who has no control own his carnal desires.. We are not persuaded
to accept that the case can be called one of the rarest of rare cases deserving
death penalty. We find it difficult to hold that the appellant is such a dangerous
person that to spare his life will endanger the community. It is our considered
view that the case is one in which a humanist approach should be taken in the
matter of awarding punishment.

Can it be said that justice was done? In order to avoid controversies and to
put forward their liberal approach, Judges often change the degree of offence
avoiding the guidelines laid down by the Apex Court itself. This should not
happen. It is the basic duty of a judge to render justice in toto and while doing
so he shall not get affected by any surrounding circumstances or controversies
which may arise in future. But this is an idealistic approach and cannot be
followed completely. Indian legal system is no different and it seems that the
judges also get prejudiced with their surroundings and social circumstances. This
could be the only reason that one see such different approaches being taken by
different judges in offences of similar nature.

In the case of Mohd. Chaman76, on the question of extent of judicial

discretion, the Court observed:-

Such standardization is well high possible. Firstly degree of culpability

cannot be measured in any case. Secondly criminal cases cannot be categorized
there being infinite, unpredictable and unforeseeable variations. Thirdly in such
categorization, the sentencing procedure will cease to be judicial. And fourthly,
such standardization or sentencing discretion is policy matter belonging to the
legislature beyond the courts functions.

Despite the fact that full discretion is given to judges, in ultimate analysis,
it can safely be said that such wide discretion has resulted into enormously
varying judgments, which does not potray a good picture of the justice delivery
system. What is needed to be done; therefore; is to revise and review the
guidelines and principles laid down in cases like Bachan Singh or Machhi

76 Ibid.
148
Singh77, or if it is felt that these guidelines still stand firm and fit perfectly in the
present social scenario, then these guidelines have to be strictly complied with, so
that the persons convicted for offence of similar nature are awarded punishments
of identical degree. The Supreme Court had another opportunity to rectify its
position, when the case of V. Mohini Giri v. Union of India78, was argued
before it in 2002. In this case the petitioner had sought the issuance of a guideline
as to what should be appropriate approach in the cases where one of the judges in
the Bench of this Court while hearing an appeal against death sentence, acquits
the accused person. The Apex Court declined issuing such a guideline arguing
that it would curtail the judicial discretion of the bench.

25. Human Rights and Capital Punishment

While human rights defenders have long campaigned for the abolition of
the death penalty in India, it is former President Abdul Kalam who has brought it
to the center stage with his request to the government to review all pending cases
due to the capital punishment being so obviously applied with a bias against the
economically and socially weaker sections: meaning the poor and the lower
castes. India is one of the 78 countries including the US, China, Iran and Vietnam
which have not banned the death penalty. Near about 86 countries and territories
have abolished the death penalty for all crimes, and a total of 121 countries have
abolished the death penalty in law or practice. Over 40 countries have abolished
the death penalty for all crimes since 1990. 10 December 2005, the International
Human Rights Day was observed as Anti-Capital Punishment Day in India. There
are several arguments against the capital punishment. Some are systemic, some
procedural and some are ideological. Mahatma Gandhi provides the best logic:
What is not permissible for an individual (in this case to kill) is not permissible
for a group.

Criminal Justice has to discharge three functions: deter, reform and punish.
Capital punishment does not give the criminal any chance to reform. Punishment
has two components: one to restore as close as possible, status quo ante, and to
fulfill the need for revenge of the victim. While other crimes can restore status

77 Supra 23.
78 2002 AIR SCW 5306.
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quo ante, in this one, the victim who was murdered cannot be brought back to life
by punishing the criminal by capital punishment. So it is not restitution in any
sense of the term, but only codified revenge, and a futile one at that. Most
civilized societies accept that this form of justice is only thinly veiled revenge.
Of the three, deterrence is the aspect most hotly debated. But studies prove that
capital punishment is not really a deterrent. Except for a slight surge- if at all- for
a short while after abolition, countries that have abolished death penalty actually
have less crime than otherwise. In the case of hardcore criminals, the certainty
of capital punishment makes them even more reckless with the twisted logic of
no redemption as it means for a criminal anyway I will be killed, so I might as
well be killed for a hundred murders rather than one.

One of the flip side, there are many reasons why there should not be a
death penalty. The first and foremost is that when mistakes are made- and they
are made very often there is no way in which it can be reversed. Death is final.
USA has executed about 1000 people in the last 30 years. 115 have been released
because they were found innocent- after being found guilty beyond reasonable
doubt several times over by courts from the local to the state level, and the
review boards recommending no pardon! Advances in technology- such as DNA
testing found that these men could not have committed the crimes they were
convicted of. Crime syndicates routinely bribe or blackmail innocents into
confessions, then coach them on the details of crime so that their confession is
authentic. Political parties do the same in India or elsewhere. In India, the death
penalty is handed out only in the rarest of rare cases. Even so, it has several
flaws. For one, it is unevenly applied on the weaker sections. The urge to
punish is always a reflection on social bias. The untidy uncouth and
unkempt child- often dark- is more likely to be punished, and more severely,
than a neat fair one. The same applies for all punishments- right up to capital
punishment. If you are poor and low caste, you are more likely to be hanged
than if you kill and stuff the body into an oven and belong to a national political
party.

The second flaw is that the law itself gives capital punishments only to the
lower class crimes. Causing death, even fully knowing the consequences, by

150
white collar crimes such as adulteration of food or medicine does not attract the
death penalty. Causing death by denying basic needs is not even considered a
social crime, but rather an economic virtue and is promoted as structural reform
by governments. The third flaw is that the rarest of the rare is still an evolving
concept. Many religions prescribe the death penalty for apostates. In India the
rarest of rare was a Dalit learning how to read and write. Now it is a conspiracy
to murder. An important part of jurisprudence is that the criminal always get the
benefit of the progress of understanding. Capital Punishment negates the concept.
There are proposals to extend capital punishment to many more crimes. That is
an escapist attitude that seeks magic bullets without engaging with the process
that leads to increased violence or question its structural origins. Does that rarest
of the rare actually work to deter, reform or punish in the case of suicide
bombers, who actually welcome death with open arms? Extending capital
punishment to more and more crimes is not the answer.

What we require is a social consciousness where murder, for whatever

reason, is outlawed. If killing is justified for the rarest of the rare then citizens
will claim the right and freedom to judge what is rarest of rare in their opinion,
and then claim the logical right to follow through on their judgment- meaning
execute. It is only when the normative value base of society shifts to making all
killing unlawful, and all violence abhorrent, that the rarest of the rare will
disappear. The right to life is sacred at all times for all people. Most people want
to know the alternative. There is already an alternative in law that fulfills all the
three conditions of deter, reform and punish life imprisonment. The modern
jurisprudence for capital punishment originates from Europe which has given it
up. It thrives mainly in the U.S., which has more people in their jails than on their
farms. India has a rich history of rehabilitating criminals, of whom Valmiki is but
one. India would not have a Ramayana if Valmiki lived in modern India. He
would have been declared a terrorist or a naxalite, given no chance for reform
and executed. We need to build on such traditions of enlightened tolerance, rather
than following the regressive practices of others. It is high time that India joins
the civilized world in outlawing capital punishment.

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26. Conclusion

It may be reiterated that capital punishment is undoubtedly against the

notions of modern rehabilitative processes of treating the offenders. It does not
offer an opportunity to the offender to reform himself. That apart, on account of
its irreversible nature, many innocent persons may suffer irredeemable harm if
they are wrongly hanged. As a matter of policy, the act of taking another's life
should never be justified by the State except in extreme cases of dire necessity
and self-preservation in war.79 Therefore, it may be concluded that though capital
punishment is devoid of any practical utility yet its retention in the penal law
seems expedient keeping in view the present circumstances when the incidence of
crime is on a constant increase in India. Time is not yet ripe when complete
abolition of capital punishment can be strongly supported without endangering
the social security. It is no exaggeration to say that in the present time the
retention of capital punishment seems to be morally and legally justified. It serves
as a reminder to everyone that in case of unpardonable crime one has to forfeit
his own right to life and survival. For example, no sensible man can suggest any
other punishment for the culprits of 16 December, 2012 gang rape case in Delhi.

It must also be noted that the essence of criminal jurisprudence has

always been to provide protection, as also to contrive measures against the fears
both from within and without, for the individuals and also for the social order
itself. The criminal jurisprudence while it provides protective devices through
punitive sanctions, also aims at securing better social order by insulating against
the unwarranted acts emanating from the individual. It is with this backdrop that
the desirability or otherwise of the capital punishment has to be judged. While
administrating justice, a look to the human rights of victims is also must for fair
justice. As a note of caution S. Venugopal Rao who chaired the session on
capital punishment of International Congress of Criminal Law,80 rightly pointed
out that there is no objection to according a humane treatment to the offender but
this should not mean that the victims be at the mercy of criminals who pose a

79 Kethaleen J. Smith : "A Cure to Crime" Gerald Duckworth Ltd., London (1964), p.
57.
80 The International Congress of Criminal Law was held in New Delhi on 8th Feb.,
1983.
152
danger to the society and deserve treatment through deterrent and preventive
measures. Therefore, there is a need for searching out a viable alternative to
deterrence, which has a vital protective function in society.

At present, as many as 127 countries out of 191 countries of the world

have retained death penalty but renovations are continuously being made by them
in the methods of execution81 so that the person on whom the sentence has been
ordered suffers minimum torture. The Amnesty International had started a global
campaign in 1989 for the abolition of death sentence but it has not yet fully
succeeded in its mission though many countries have reopened favourably to its
appeal and abolished death penal from their criminal law. The Indian law in this
regard, however, seems to be satisfactory as the Supreme Court.

The Supreme Court in Allauddin Mian v. State of Bihar82 has stressed

on the penological aspect of death sentence and observed that provisions of
Sections 354(3) and 235(2) of the Code of Criminal Procedure, 1973, require the
sentencing Judge to state reasons for awarding death sentence and giving an
opportunity to the condemned person to be- heard on the point of sentence,
satisfy the rule of natural justice, and fair play. This enables the sentencing Court
to endeavour to see that all the relevant facts and circumstances which have
bearing on the question of sentence are brought on record and no injustice is
caused to the accused. In the instant case, the Apex Court noted that the trial
Judge had not attached sufficient importance to mandatory requirements of the
above provisions and the High Court confirmed the death sentence without
having sufficient material placed before it on record to know about the
antecedents of the accused, his socio-economic conditions and impact of crime
etc. which rendered the rationale of the judgment doubtful.

The Indian sentencing law contains certain admirable principles which the
Judges who have responsibility for passing sentence, should bear in mind while
finalising the sentence of the accused. The objectives of sentences and the range
of sentences have widened over the years and this calls for properly marshalled
observation of the results of similar sentences imposed in similar circumstances

81 The Law Commission of India in its 45th Report on capital punishment suggested
the use of lethal injection for execution as it is simplest decent and ensues.
82 AIR 1989 SC 1456.
153
in the past. The sentencing courts should therefore, keep themselves abreast of
the penological developments, specially when the choice is between 'death' or
'life imprisonment. At present, there is no provision in law which provides only
death penalty.

From the time immemorial this has for long remained a controversial
question both at national and international level. The issue has been tirelessly
debated on national as well as international level but nothing conclusive has
come out till now. No doubt the problem is of serious nature but the difficulty
involved should not deter us from venturing into the pros and cons involve in the
question. The opinion of intellectuals such as Legal Philosophers, Jurists, Judges,
and other social scientists stands divided. In many countries capital punishment is
an integral part of criminal justice system and it has remained to be accepted
form of justice through the ages though its form may have been different because
of reasons of geography, culture, and the passing of time. One of the arguments
of abolitionists is that death penalty is against Hindu Philosophy but this will not
stand the scrutiny of mythological texts. The imposition of death penalty in India;
appears to go back to ancient times according to the countrys epics and
mythology; stories abound in Indian mythology of the destruction of demons
who, became a deadly menace to the life, property and authority of mortals and
the divine race alike; tales of Hiranyakashyapu, Bali and Mahishasura etc. No
doubt religion preaches against killing of human being but that presupposes an
ideal society and if one cannot of particular aspect in isolation. The statistics,
which talks of absence of any relationship between death penalty and occurrence
of crime, cannot be straightway trusted for such an important policy decision as
that of death penalty. The statistics derived from a quantitative method may not
be an appropriate method to judge the basic truth about the qualitative aspect of
those results.

In the ultimate analysis, it will be seen that considered from the angle of
social justice and protection of society from hard-core criminals, death sentence
is not unreasonable or unwarranted or obsolete type of punishment. The noted
Italian criminologist Garofalo, while disapproving the abolition of death sentence
from the statute Book commented, "when State abolishes the sentence of death, it

154
authorises murderer and says to the criminal 'the risk you run in killing a human
being is a change of abode, the necessity of spending your days in my house (i.e.
prison) instead of your own.' Will it be proper to do so? The death penalty is no
doubt unconstitutional if imposed arbitrarily, capriciously, unreasonably,
discriminatory, freakishly or wantonly, but if it is administered rationally,
objectively and judiciously, it will enhance people's confidence in criminal
justice system. With growing international consensus towards abolition of the
death penalty, Indias continuation of award of non-unanimous death sentences is
equivalent to taking steps backward. Fair and reasonable procedure is a vital
safeguard for the enjoyment of human rights- more so where people are charged
with crimes punishable by death. Under international human rights standards,
such accused are entitled to the strictest observance of all fair trial guarantees and
to certain additional safeguards. The requirement of unanimity of judges in
imposing death sentences could act as an additional safeguard.

155