Submitted in the Partial Fulfilment for Academic Course of

B.B.A. L.L.B. (Hons.) IX semester

DISSERTATION ON THE TOPIC-

ABOLITION OF DEATH PENALTY IN INDIA: A COMPARATIVE ANALYSIS

SUBMITTED TO: SUBMITTED BY:

Dean: Mr. V.K. Kapoor Kishan Singh Gehlot

Raffles University Roll No. 127

Neemrana IX Semester

RAFFLES UNIVERSITY, NEEMRANA

(July- December 2017)

 CONTENTS

Acknowledgement………………………………………………………………………….3

Abstract……………………………………………………………………………………..4

Introduction………………………………………………………………………………....5

I- History of death penalty (Indian history)……………………………...........................6-12

II- Meaning of death penalty…………………………….................................................12-14

III- Less execution of death penalty in India………………………………………........ 15-16

IV- Abolishment of death penalty......................................................................................16-18

V- 35th Law commission report..........................................................................................18-19

VI- 262nd Law commission report......................................................................................19-20

VII- Argument of bases of theories of punishment.............................................................20-21

VIII- Reason why India not abolishing death penalty........................................................21-24

IX- Capital punishment justice or revenge.........................................................................24-26

X- Glimpse of reformative revolution................................................................................26-28

XI- Public opinion...............................................................................................................28-29

XII- Death penalty worldwide...........................................................................................29-30

XIII- Why capital punishment should abolished................................................................30-31

2
 ACKNOWLEDGEMENT

On the successful completion of this project, I would like to thank my respected mentor, my
Professor Alisha Verma, who despite all of his pre-occupations, provided me all the
assistance I needed for the accomplishment of this project and guided me while I tread on the
tenebrous boulevard of ignorance. Had it not been for his support I wouldn’t be able to grasp
the cognizance of something as enthralling as this. I thank him profusely for providing me
this engrossing topic to work on which helped me to learn and relearn, to explore and re-
explore my knowledge of the social literature.

I would like to convey my gratitude towards my friends and batchmates who have rendered
me their valuable time and without their help this project would not have been in its present
shape and form.

No work is complete with solo endeavor, neither is mine. I thank each and every non-
teaching staff of Raffles University for their unconditional support and infinitum. I would
also like to convey my thanks to the Library Staff of Raffles University.

I am grateful to The Almighty, who has given me enough strength and blessings to work
hard and make it to the best of my ability.

Last but not the least; I thank my parents who have given me a chance to study in this
esteemed University, a haven for legal edification

3
 ABSTRACT

The death penalty debate is the most socially relevant debate, keeping in mind the
circumstances that have been brought about by the 21st century. Death penalty forms an
integral part of the criminal justice system in the Indian State. With the increasing strength of
the human rights movement, the very existence of death penalty is questioned as immoral.
This however is a surreal argument as keeping one person alive at the cost of the lives of
numerous members or potential victims in the society is unimaginable and in fact, that is
immoral.

“Every human life is precious. The right to life is the most important of all the fundamental
rights and no state should be allowed to take it away easily. Capital punishment or death
penalty, which is a lawful infliction of death as a punishment is a major controversial topic as
well as a debatable issue which majority argue to be infringing the person’s basic human
right, “Right to Life”, which has assumed great importance engaging human rights activists,
intellectuals and best judicial brains across the world both for its abolition as well as
retention.

This paper focuses mainly on the aspects related to historical background of Crime and
Punishment, study of the reformative revolutions carried on or out in India. It also
emphasizes on the abolishment of death penalty in India today time and now India need to
abolish the death penalty or almost every country abolishes death penalty already.

4
 INTRODUCTION

Death Penalty is a process where a crime so grievous has been committed that the state
condemns the act by sentencing the convicted to death. It is only applied in cases where the
crime is of such nature that it cannot be vitiated without a penalty of death. It has existed
since time immemorial, the first recorded instance being that of Hammurabi in the
18th Century B.C.

The basic purpose of criminal laws of any nation is the reformation of offenders and not
retribution. But it is also the responsibility of the same state to protect the interests of the
society at large and reiterate the society's faith in system of justice and capital punishment
may be a means to this end.

The Indian Penal Code, 1860 awards death sentence as a punishment for various offences.
Some of these capital offences under the IPC are punishment for criminal conspiracy (s.
120B), murder (s. 302), waging or attempting to wage war against the Government of India
(s. 121), abetment of mutiny (s.132), dacoit with murder (s. 396) and others. Apart from this
there are provisions for death penalty in various legislations like the NDPS Act, anti –
terrorism laws etc.

The death penalty debate has gathered much heat in the present times. While the protagonists
of death sentence claim that it must be awarded to the most heinous of crimes, the persons
who advocate human rights are dead against the notion of the continuance of death penalty as
they allege it to be in violation of the basic human rights of an individual. This paper will go
on to elucidate the reasons as to why the existence of death penalty should ban in India

In the 20th century, there was a movement for the abolition of death penalty, which lead to
many States complying with the movement and going ahead to abolish death penalty.
However, in India the death penalty has continued to exist. This has opened the ground for
great discussion and debate, with the human right activists coming out with strong reasons for
the abolition of death penalty. This paper, however, goes on to contradict most of the
arguments put forth by the abolitionists.

5
I. History of death penalty

As far back as the Ancient Laws of China, the death penalty has been established as a
punishment for crimes. In the 18th Century BC, the Code of King Hammurabi of Babylon
codified the death penalty for twenty five different crimes, although murder was not one of
them. The first death sentence historically recorded occurred in 16th Century BC Egypt
where the wrongdoer, a member of nobility, was accused of magic, and ordered to take his
own life. During this period non-nobility was usually killed with an axe.

In the 14th Century BC, the Hittite Code also prescribed the death penalty. The 7th Century
BC Draconian Code of Athens made death the penalty for every crime committed. In the 5th
Century BC, the Roman law of the Twelve Tablets codified the death penalty. Again, the
death penalty was different for nobility, freemen and slaves and was punishment for crimes
such as the publication of libels and insulting songs, the cutting or grazing of crops planted
by a farmer, the burning of a house or a stack of corn near a house, cheating by a patron of
his client, perjury, making disturbances at night in the city, wilful murder of a freeman or a
parent, or theft by a slave. Death was often cruel and included crucifixion, drowning at sea,
burial alive, beating to death, and impalement often used by Nero. The Romans had a curious
punishment for parricides (murder of a parent): the condemned was submersed in water in a
sack, which also contained a dog, a rooster, a viper and an ape.1The most notorious death
execution in BC was about 399 BC when the Greek philosopher Socrates was required to
drink poison for heresy and corruption of youth.2

Mosaic Law codified many capital crimes. In fact, there is evidence that Jews used many
different techniques including stoning, hanging, beheading, crucifixion (copied from the
Romans), throwing the criminal from a rock, and sawing asunder. The most infamous
execution of history occurred approximately 29 AD with the crucifixion of Jesus Christ
outside Jerusalem. About 300 years later, the Emperor Constantine, after converting to
Christianity, abolished crucifixion and other cruel death penalties in the Roman Empire. In
438, the Code of Theodosius made more than 80 crimes punishable by death.3

1
John Laurence, A History of Capital Punishment (N.Y.: The Citadel Press, 1960), 1-3.
2
Michael Kronenwetter, Capital Punishment: AReference Handbook (Santa Barbara, CA: ABC-CLIO, Inc., 1993),
71.
3
Ibid., p.72.
6
Britain influenced the colonies more than any other country and has a long history of
punishment by death. About 450 BC, the death penalty was often enforced by throwing the
condemned into a quagmire. By the 10th Century, hanging from gallows was the most
frequent execution method. William the Conqueror opposed taking life except in war, and
ordered no person to be hanged or executed for any offense. However, he allowed criminals
to be mutilated for their crimes. During the middle ages, capital punishment was
accompanied by torture. Most barons had a drowning pit as well as gallows and they were
used for major as well as minor crimes. For example, in 1279, two hundred and eighty nine
Jews were hanged for clipping coin. Under Edward I, two gatekeepers were killed because
the city gate had not been closed in time to prevent the escape of an accused murderer.
Burning was the punishment for women's high treason and men were hanged, drawn and
quartered. Beheading was generally accepted for the upper classes. One could be burned for
marrying a Jew. Pressing became the penalty for those who would not confess to their crimes.
The executioner placed heavy weights on the victim's chest. On the first day he gave the
victim a small quantity of bread, on the second day a small drink of bad water, and so on until
he confessed or died. Under the reign of Henry VIII, the numbers of those put to death are
estimated as high as 72,000. Boiling to death was another penalty approved in 1531, and
there are records to show some people boiled for up to two hours before death took them.
When a woman was burned, the executioner tied a rope around her neck when she was tied to
the stake. When the flames reached her she could be strangled from outside the ring of fire.
However, this often failed and many were literally burnt alive.4

In Britain, the number of capital offenses continually increased until the 1700's when two
hundred and twenty-two crimes were punishable by death. These included stealing from a
house in the amount of forty shillings, stealing from a shop the value of five shillings,
robbing a rabbit warren, cutting down a tree, and counterfeiting tax stamps. However, juries
tended not to convict when the penalty was great and the crime was not. Reforms began to
take place. In 1823, five laws passed, exempting about a hundred crimes from the death
[penalty]. Between 1832 and 1837, many capital offenses were swept away. In 1840, there
was a failed attempt to abolish all capital punishment. Through the nineteenth and twentieth

4
Ibid., p.72; Laurence, op.cit., 4-9.
7
century’s, more and more capital punishments were abolished, not only in Britain, but also all
across Europe, until today only a few European countries retain the death penalty.5

The first recorded execution in the English American colonies was in 1608 when officials
executed George Kendall of Virginia for supposedly plotting to betray the British to the
Spanish. In 1612, Virginia's governor, Sir Thomas Dale, implemented the Divine, Moral, and
Martial Laws that made death the penalty for even minor offenses such as stealing grapes,
killing chickens, killing dogs or horses without permission, or trading with Indians. Seven
years later these laws were softened because Virginia feared that no one would settle there.6

In 1622, the first legal execution of a criminal, Daniel Frank, occurred in Virginia for the
crime of theft.7 Some colonies were very strict in their use of the death penalty, while others
were less so. In Massachusetts Bay Colony the first execution was in 1630, but the earliest
capital statutes do not occur until later. Under the Capital Laws of New-England that went
into effect between 1636-1647 the death penalty was meted out for pre-meditated murder,
sodomy, witchcraft, adultery, idolatry, blasphemy, assault in anger, rape, statutory rape, man
stealing, perjury in a capital trial, rebellion, manslaughter, poisoning and bestiality. Early
laws were accompanied by a scripture from the Old Testament. By 1780, the Commonwealth
of Massachusetts only recognized seven capital crimes: murder, sodomy, burglary, buggery,
arson, rape, and treason.8

The New York colony instituted the so-called Duke's Laws of 1665. This directed the death
penalty for denial of the true God, pre-meditated murder, killing someone who had no
weapon of defence, killing by lying in wait or by poisoning, sodomy, buggery, kidnapping,
perjury in a capital trial, traitorous denial of the king's rights or raising arms to resist his
authority, conspiracy to invade towns or forts in the colony and striking one's mother or
father (upon complaint of both). The two colonies that were more lenient concerning capital
punishment were South Jersey and Pennsylvania. In South Jersey there was no death penalty
for any crime and there were only two crimes, murder and treason, punishable by death.9

5
Laurence, 9-14.
6
Kronenwetter, 72-73.
7
Hugo Adam Bedau, The Death Penalty in America (N.Y.: Oxford University Press, 1982).
8
Ibid., 7
9
Phillip English Mackey, Voices Against Death: American Opposition to Capital Punishment, 1787-1975 (N.Y.:
Burt Franklin & Co., Inc., 1976), xi-xii.
8
The first reforms of the death penalty occurred between 1776-1800. Thomas Jefferson and
four others, authorized to undertake a complete revision of Virginia's laws, proposed a law
that recommended the death penalty for only treason and murder. After a stormy debate the
legislature defeated the bill by one vote. The writing of European theorists such as
Montesquieu, Voltaire, and Bentham had a great effect on American intellectuals, as did
English Quaker prison reformers John Bellers and John Howard.10

Indian History

In colonial India, death was prescribed as one of the punishments in the Indian Penal Code,
1860 (IPC), which listed a number of capital crimes. It remained in effect after independence
in 1947. The first hanging in Independent India was that of Nathuram Godse and Narayan
Apte in the Mahatma Gandhi assassination case on 15 November 1949. Capital punishment is
a legal penalty in India. It has been carried out in 5 instances since 1995, while a total of 26
executions have taken place in India since 1991.

At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were
sentenced to death (but not executed), according to Amnesty International figures. No official
statistics of those sentenced to death have been released.

About 26 mercy petitions are pending before the president, some of them from 1992. These
include those of Khalistan Liberation Force terrorist Devinder Pal Singh Bhullar, the cases of
slain forest bandit Veerappan's four associates—Simon, Gnanaprakasham, Meesekar
Madaiah and Bilvendran—for killing 21 policemen in 1993; and Praveen Kumar for killing
four members of his family in Mangalore in 1994.11

Seema Gavit and Renuka Shinde are the only two women in India on death row, whose
mercy pleas were rejected by the President after the Supreme Court of India confirmed their
death sentence.12

As of July 2015, President Pranab Mukherjee has rejected 24 mercy pleas including that
of Yakub Memon, Ajmal Kasab, Afzal Guru. On 27 April 1995, Auto Shankar was hanged
in Salem, Tamil Nadu.

10
Mackey, 7-8.
11
http://timesofindia.indiatimes.com/India/Centre-sends-final-opinion-to-President-on-27-mercy-
petitions/articleshow/4483732.cms
12
http://www.dnaindia.com/mumbai/report-will-the-gavit-sisters-serial-killers-of-children-be-the-first-
women-to-be-hanged-2102974
9
On 14 August 2004, Dhananjoy Chatterjee was hanged for the murder (following a rape) of
18-year-old Hetal Parekh at her apartment residence in Bhowanipur on 5 March
1990.[54][55] Chatterjee, whose mercy plea was rejected on 4 August 2004, was kept at Alipore
Central Jail for nearly 14 years.13

On 3 May 2010, a Mumbai Special Court convicted Ajmal Kasab of murder, waging war on
India, possessing explosives and other charges. On 6 May 2010 the same trial court sentenced
him to death on four counts and to a life sentence on five other counts. Kasab was sentenced
to death for attacking Mumbai and killing 166 people on 26 November 2008 along with nine
other Pakistani terrorists. He was found guilty of 80 offences, including waging war against
the nation, which is punishable by death. Kasab's death sentence was upheld by the Bombay
High Court on 21 February 2011. and by the Supreme Court on 29 August 2012. His mercy
plea was rejected by the president on 5 November and the same was communicated to him on
12 November. On 21 November 2012, Kasab was hanged in the Yerwada Central
Jail in Pune.

Afzal Guru was convicted of conspiracy in connection with the 2001 Indian Parliament
attack and was sentenced to death. The Supreme Court of India upheld the sentence, ruling
that the attack "shocked the conscience of the society at large." Afzal was scheduled to be
executed on 20 October 2006, but the sentence was stayed.[citation needed] He was hanged on 9
February 2013 at Delhi's Tihar Central Jail.14

Yakub Memon, convicted of 1993 Bombay bombings, was executed by hanging in Nagpur
Central Jail at around 6:30 am IST on 30 July 2015. On 21 March 2013 the Supreme Court
confirmed Memon's conviction and death sentence for conspiracy through financing the
attacks. On 30 July 2013 the Supreme Court bench headed by Chief Justice P. Sathasivam,
Justice B. S. Chauhan and Justice Prafulla Chandra Pant rejected Memon's application for an
oral hearing and dismissed his review petition by circulation. Indian President Pranab
Mukherjee rejected Memon's petition for clemency on 11 April 2014. Memon then filed a
curative petition to the Supreme Court, which was rejected on 21 July 2015. He became the
first convict in 31 years to be hanged in Nagpur Central Jail and the fourth in India since
2004.15

13
http://scroll.in/article/741784/how-india-hanged-a-poor-watchman-whose-guilt-was-far-from-established
14
http://www.ndtv.com/article/india/afzal-guru-hanged-curfew-declared-in-kashmir-valley-328504
15
http://indianexpress.com/article/india/india-others/the-memon-family/
10
On 5 March 2012 a sessions court in Chandigarh ordered the execution of Balwant Singh
Rajoana, a convicted terrorist from Babbar Khalsa, for his involvement in the assassination
of Chief Minister of Punjab Beant Singh.[66] The sentence was to be carried out on 31 March
2012 in Patiala Central Jail,[67] but the Centre stayed the execution on 28 March due to
worldwide protests by Sikhs that the execution was unfair and amounted to a human rights
violation.16

On 13 March 2012, a court in Sirsa, Haryana, condemned to death 22-year-old Nikka Singh
for raping and strangling to death a 75-year-old woman on 11 February 2011. "The
imposition of the death sentence was most appropriate in this case. The court has held that it
was a cold-blooded murder and where rape was committed on an innocent and hapless old
woman," said Neelima Shangla, the Sirsa additional district and sessions judge. "The rape
and cold-blooded murder of a woman, who was of grandmother's age of the accused, falls in
the rarest of the rare case." The court held that Nikka Singh was a "savage" whose "existence
on earth was a grave danger to society" as he had also attempted to rape two other village
women.

A special mention here is to the 650-page written judgment in the 1984 Assassination of
Indira Gandhi, who was killed by her bodyguards, in which the Delhi High Court panel said,
"No excuse or circumstance can . . . mitigate such a treacherous and cowardly act where a
defenseless woman was cruelly slaughtered by the 'guardians' of her safety." The judgment
condemned "the most inhuman mode of killing" and said, "Two persons crowding in before
an elderly woman and mercilessly pumping into her not one or two but as many as 30 bullets
is the ghastly scene to be conjured in the mind's eye." Kehar Singh was hanged on 6 January
1989 for conspiracy in the assassination, carried out by Satwant Singh and Beant Singh.

In June 2012 it became known that Indian president Pratibha Patil, near the end of her five-
year term as president, commuted the death sentence of as many as 35 convicts to life
imprisonment, including four on the same day (2 June), which created a storm of protest. This
caused further embarrassment to the government when it came to light that one of these

16
http://www.mumbaimirror.com/article/3/201203292012032902372896515e62c4/Beant-killer-
won%E2%80%99t-be-hanged-on-March-31.html
11
convicts, Bandu Baburao Tidke convicted for the rape and murder of a 16-year-old girl had
died five years previously from HIV.17

Death penalty in India: An overview

 When it comes to India, here the brief history is related then the two most important
executions that were done in november2012 and February 2013 has been mentioned.
Both the prisoners who have been convicted are the one who took part in the terrorists
attack.

 The executions that were carried out by the president of India, Dr.Pranab Mukherjee
and he swiftly rejected the mercy petitions that were presented to him. There was seen
the accelerated pace of the executions in India.

 This was also made run counter to the prior government and including that of the right
to information act which mentions that all the important-nature-decisions are to be
made informed to the citizens. According to the statistics that was presented, India has
approximately more than 140 executions and it is from the year 1954 and 1963.that
means there was only one execution per year. Over the last 20 years it can be stated
that the number of executions has been decreased.

II. Meaning of death penalty

Victor Hugo says:

“What says the law? You will not kill how does it say it? By killing!”

Death penalty is the most severe punishment that can be given to an individual for the crime
or wrong he has committed. It has been in vogue since ancient times, and awarded in the
rarest of rare crimes these days because of opposition to this form of punishment from all
quarters of the society. There are influential groups like Amnesty International that are
working towards the removal of death penalty from all countries of the world, as it considers
it to be barbaric and reminiscent of ancient times when an eye for an eye and a life for a life
was the only form of justice. These groups feel that the death penalty gives the right to kill a
life in the hands of the society and lets a man decide whether another man should live or die,
that is unusual and cruel.

17
http://articles.timesofindia.indiatimes.com/2012-06-23/india/32381577_1_death-sentence-bagalkot-
belgaum
12
Death penalty for severe and rare crimes has been followed in many societies of the world
since ancient times. From time to time, there have been heated debates against the pros and
cons of death sentence, as the process or the act of the death penalty is irreversible and ends
all hopes of any change of heart of the accused or the criminal as he is called. Though it has
been abolished in many countries of the world, it is still awarded as a sentence in countries
like US, China, and India; this suggests that the death penalty as a form of capital punishment
will continue, in time to come. The words capital punishment and death penalty are
considered synonyms and have been so defined in many dictionaries. However, there are
some differences between the two as will be clear after reading this article. Let us take a
closer look.

Some feel that the terms capital punishment and death penalty are not the same, and there are
differences between them. This is because of the time lag between the death penalty that is
awarded by a court of law and the actual execution. There are cases where the sentence is
commuted, and a prisoner who is supposed to go to death gallows is instead provided relief
by turning his sentence into life imprisonment. There are countries where death penalty is
given to people without a legal process being set in. This extra judicial death penalty is also
different from capital punishment.

Encyclopaedia Britannica, Also Called death penalty – Execution of an offender sentenced to

death after conviction by a court of law of a criminal offense. Capital punishment should be
distinguished from extrajudicial executions carried out without due process of law. The term
death penalty is sometimes used interchangeably with capital punishment, though imposition
of the penalty is not always followed by execution.

The term "Capital Punishment" stands for most severe form of punishment. It is the
punishment which is to be awarded for the most heinous, grievous and detestable crimes
against humanity. While the definition and extent of such crimes vary from country to
country, state to state, age to age, the implication of capital punishment has always been the
death sentence. By common usage in jurisprudence, criminology and penology, capital
sentence means a sentence of death.18

18
Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
13
What is the difference between Capital Punishment and Death Penalty?

• Technically, the death penalty is the actual act of killing the individual whether through
lethal injection, electric chair, shooting or any other method.

• On the other hand, capital punishment is the entire process of trying the accused and then
awarding death sentence to him by a judicial court of law.19

Execution of death sentence

The execution of death sentence in India is carried out by hanging by the neck till death.

Hanging

The Code of Criminal Procedure (1898) called for the method of execution to be hanging.
The same method was adopted in the Code of Criminal Procedure (1973).20Section 354(5) of
the above procedure reads as "When any person is sentenced to death, the sentence shall
direct that the person be hanged by the neck till the person is dead."

Shooting

The Army Act, The Navy Act and The Air Force Act also provide for the execution of the
death sentence.21 Section 34 of the Air Force Act, 1950 empowers the court martial to impose
the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act,
1950. Section 163 of the Act provides for the form of the sentence of death as:-

"In awarding a sentence of death, a court-martial shall, in its discretion, direct that the
offender shall suffer death by being hanged by the neck until he be dead or shall suffer death
by being shot to death".

This provides for the discretion of the Court Martial to either provide for the execution of the
death sentence by hanging or by being shot to death. The Army Act, 1950, and The Navy
Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950.

19
http://www.differencebetween.com/difference-between-capital-punishment-and-vs-death-penalty/ visited
on October 15, 2016.
20
http://mha.nic.in/sites/upload_files/mha/files/pdf/ccp1973.pdf
21
http://lawcommissionofindia.nic.in/cpds1.pdf
14
III. Less execution of death penalty in India

A death sentence – such as the one handed to Yakub Memon, convicted for the 1993 Mumbai
serial bombings – is common in India, with 1,303 capital-punishment verdicts between 2004
and 2013, according to this National Crime Record Bureau prison statistics report.
However, only three convicts were executed over this period, one each in West Bengal
(2004), Maharashtra (2012) and Delhi (2013). India saw an execution-free period of seven
years between 2004 and 2012.

* On 14 August 2004, Dhananjoy Chatterjee was hanged at Alipore Central Jail in West
Bengal on his 42nd birthday, convicted for the rape and murder of a teenage girl.
* On 21 November 2012, Mohammad Ajmal Amir Kasab the only terrorist to
have survived the 2008 Mumbai terror attacks, was hanged in Pune’s Yerwada Jail.
* On 9 February 2013, Mohammed Afzal Guru, a convict in the 2001 Parliament case was
hanged inside Delhi’s Tihar jail.

In addition, 3,751 death sentences were commuted to life imprisonment during this period.
Former chartered accountant Memon is set to be hanged on July 30, 2015, the day he turns
53. A debate has now broken out over the verdict against him and the death sentence in
general. In July 2007, Yakub and 11 others were convicted and sentenced to death by a
special court for planning or carrying out the 1993 Mumbai bombings that killed nearly 260
people and injured 700. In March 2013, the Supreme Court upheld Memon’s death sentence,
while commuting the death sentence of 10 others (one died later) to life imprisonment.

It is, however, interesting to note that despite the punishment being handed down by the
courts, both the lower and appellate ones, not many have been carried out. According to
official statistics, only 1 sentence, that of DhananjoyChatterji in 2004 was carried out since
the execution of ‘Auto’ Shankar in 1995. And the execution in 2004 has been the last in the
country. Death sentences have recently been handed down to rapist Umesh, where the
Supreme Court confirmed the death penalty handed down by the Karnataka High Court and
in the case of SurinderKoli, the serial killer who committed the heinous act of strangulating
young girls and raping their dead bodies. Such cases defy the laws of basic human courtesy
towards the dead and the death sentence is seen as a welcome punishment by many. Further
to this, Ajmal Kasab, the lone surviving terrorist of the Mumbai attacks in 2008 is awaiting
confirmation of death sentence from the Bombay High Court end of February. However,

15
where warranted the state has to take suitable measures to carry out the sentence of the courts
since implementation of the same is necessary to achieve the result so intended.

IV. Abolishment of death penalty in India

Pre-Constitutional History and Constituent Assembly Debates

An early attempt at abolition of the death penalty took place in pre-independent India, when
Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the death penalty for IPC
offences in 1931. However, this was defeated.22 Around the same time, in March 1931,
following the execution of Bhagat Singh, Sukhdev and Rajguru by the British government,
the Congress moved a resolution in its Karachi session, which included a demand for the
abolition of the death penalty.23

India’s Constituent Assembly Debates between 1947 and 1949 also raised questions around
the judge-centric nature of the death penalty, arbitrariness in imposition, its discriminatory
impact on people living in poverty, and the possibility of error.24

For example, on the possibility of error, Pandit Thakur Das Bhargava said:

It is quite true that a person does not get justice in the original court. I am not complaining of
district courts. In very many cases of riots in which more than five persons are involved, a
number of innocent persons are implicated. I can speak with authority on this point. I am a
legal practitioner and have been having criminal practice for a large number of years.25

An issue of much debate had to do with the right to appeal a death sentence. In this context,
Prof. Shibban Lal Saksena said:

I do feel that the people who are condemned to death should have the inherent right of appeal
to the Supreme Court and must have the satisfaction that their cases have been heard by the
highest tribunal in the country. I have seen people who are very poor not being able to appeal
as they cannot afford to pay the counsel. I see that article 112 says that the Supreme Court

22
Law Commission of India, 35th Report, 1967, at para 12, available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf (last viewed on 24.08.2015).
23
Special Correspondent, It’s time death penalty is abolished: Aiyar, The Hindu, 7 August 2015, available at
http://www.thehindu.com/news/national/its-time-deathpenalty-is-abolished-aiyar/article7509444.ece (last
viewed on 24.08.2015).
24
See Constituent Assembly Debates on 3 June, 1949, Part II available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).
25
Constituent Assembly Debates on 3 June, 1949 Part II, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).
16
may grant special leave to appeal from any judgment, but it will be open to people who are
wealthy, who can move heaven and earth, but the common people who have no money and
who are poor will not be able to avail themselves of the benefits of this section.26

Dr. Ambedkar was personally in favour of abolition saying:

My other view is that rather than have a provision for conferring appellate power upon the
Supreme Court to whom appeals in cases of death sentence can be made, I would much rather
than have a provision for conferring appellate power upon the Supreme Court to whom
appeals in cases of death sentence can be made, I would much rather support the abolition of
the death sentence itself. That, I think, is the proper course to follow, so that it will end this
controversy. After all, this country by and large believes in the principle of non-violence. It
has been its ancient tradition, and although people may not be following it in actual practice,
they certainly adhere to the principle of non-violence as a moral mandate which they ought to
observe as far as they possibly can and I think that having regard to this fact, the proper thing
for this country to do is to abolish the death sentence altogether.27

However, he suggested that the issue of the desirability of the death penalty be left to the
Parliament to legislate on. This suggestion was eventually followed.

CAPITAL PUNISHMENT IN INDIA

A. PRE-INDEPENDENCE

The ancient law of crimes in India provided capital punishment for quite a good number of
offences. The great Hindu law-giver Manu‟ said that 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 the water, the
stronger eating up the weaker.”28

During the reign of Mughal emperors, barbaric methods of putting an offender to death were
used. It is interesting to note that the Sikh Emperor Maharaja Ranjit Singh never hanged

26
Constituent Assembly Debates on 3 June, 1949 Part II, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).
27
Constituent Assembly Debates on 3 June, 1949 Part II, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 26.08.2015).
28
Paranjape, N V, Criminology and Penology, 11th Ed., Central Law Publications, Allahabad, 2001, p.191.

17
anyone during his reign. The British, however, used death by hanging as the only legalized
mode of inflicting capital punishment.

B. POST-INDEPENDENCE

After independence, a bill was introduced in the Lok-Sabha in 1956, to abolish the capital
punishment which was rejected by the house. Efforts made in the Rajya-Sabha in 1958 and
in 1962 were also fruitless.

V. The 35th Report on Capital Punishment (1967)

The Commission began work on its 35th Report on “Capital Punishment” in December 1962,
which it presented in December 1967. The Report was the consequence of a reference by the
Parliament, when the third Lok Sabha debated on the resolution moved by Shri Raghunath
Singh, Member, Lok Sabha for the abolition of capital punishment.29 The Commission
undertook an extensive exercise to consider the issue of abolition of capital punishment from
the statute books. Based on its analysis of the existing socio-economiccultural structures
(including education levels and crime rates) and the absence of any Indian empirical research
to the contrary, it concluded that the death penalty should be retained.

Its recommendations said:

It is difficult to rule out the validity of, or the strength behind, many of the arguments for
abolition. Nor does the Commission treat lightly the argument of irrevocability of the
sentence of death, the need for a modern approach, the severity of capital punishment, and the
strong feeling shown by certain sections of public opinion, in stressing deeper questions of
human values.

Having regard, however, to the conditions in India, to the variety of the social upbringing of
its inhabitants, to the disparity in the level of morality and education in the country, to the
vastness of its area, to the diversity of its population, and to the paramount need for
maintaining law and order in the country at the present juncture, India cannot risk the
experiment of abolition of capital punishment.

29
Law Commission of India, 35th Report, 1967, available at http://lawcommissionofindia.nic.in/1-
50/Report35Vol1and3.pdf and http://lawcommissionofindia.nic.in/1-50/Report35Vol2.pdf (last visited on
25.08.2015).
18
Arguments which would be valid in respect of one area of the world may not hold well in
respect of another area in this context. Similarly, even if abolition in some parts of India may
not make a material difference, it may be fraught with serious consequences in other parts.
On a consideration of all the issues involved, the Commission is of the opinion that capital
punishment should be retained in the present state of the country.30

VI. 262nd Law commission report (2015)

The Law Commission of India in its 262nd Report (August 2015) recommended that death
penalty be abolished for all crimes other than terrorism related offences and waging war.
Complete recommendations of the Report are as follows:

 The Commission recommended that measures suggested that police reforms,

witness protection scheme and victim compensation scheme should be taken up
expeditiously by the government.
 The march of our own jurisprudence from removing the requirement of giving special
reasons for imposing life imprisonment instead of death in 1955; to requiring special
reasons for imposing the death penalty in 1973; to 1980 when the death penalty was
restricted by the Supreme Court to the rarest of rare cases shows the direction in
which we have to head. Informed also by the expanded and deepened contents and
horizons of the Right to life and strengthened due process requirements in the
interactions between the State and the individual, prevailing standards of
constitutional morality and human dignity, the Commission felt that time has come
for India to move towards abolition of the death penalty.
 Although there is no valid pen logical justification for treating terrorism differently
from other crimes, concern is often raised that abolition of death penalty for terrorism-
related offences and waging war, will affect national security. However, given the
concerns raised by the law makers, the Commission did not see any reason to wait any
longer to take the first step towards abolition of the death penalty for all offences
other than terrorism related offences.
 The Commission accordingly recommended that the death penalty be abolished for all
crimes other than terrorism related offences and waging war.

30
Law Commission of India, 35th Report, 1967, at para 1 (Summary of Main Conclusions and
Recommendations), available at http://lawcommissionofindia.nic.in/1- 50/Report35Vol1and3.pdf (last viewed
on 7.08.2015).
19
  Further, the Commission sincerely hopes that the movement towards absolute
abolition will be swift and irreversible.31

VII. ARGUMENTS BASED ON THEORIES OF PUNISHMENTS

A theory of punishment can be best defined as the approach or reaction of the penologists
towards a perpetrator of crime while deciding the question of sentence to him. Though
opinions have differed as regards punishment to offenders varying from age-old
traditionalism to recent modernism, broadly speaking four types of views can be distinctly
found to prevail, out of which, „reformative approach‟ advanced by the Apex Court, has been
put forth under the sub-heading “Judicial View” as above. Arguments based on the other
three theories are as under:

I. Deterrent theory

Not effective under this theory, it is an assumption that one, who contemplates felony, will
be deterred because he knows if he is convicted, he can be sentenced to death. For the
following reasons, it is, however, proven an assumption only:

i. The deterrent theory is right away cancelled, if the criminal can convince himself, as
he typically does, that he will not be caught or convicted.
ii. While considering the deterrent theory what is important is not whether the penalty
of death has deterrent effect on potential murderers but whether it deters more
effectively than other penalties say, a life-imprisonment for a long term. But all
studies made on the subject appear to conclude that the death penalty is
inconsequential as a deterrent. Its efficacy as a deterrent is unproven.32
iii. Most acts of violence are crimes of passion, committed in the heat of the moment
when all rational thought is suspended. Thus, they are not likely to be deterred at all.
For those, who commit pre-meditated crimes, such as professional killers or „hit
men‟, they are even less likely to be deterred by the thought of death. For the simple
reason that for them, any penalty, including capital punishment, is a risk already
taken into account.33

31
India. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.217-218
32
In Bishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964, O. Chinnappa Reddy, J. defined „special
reasons‟ as to those reasons which are special with reference to the offender, with reference to the
constitutional and legislative directives and with reference to the times, that is, with reference to
contemporary ideas in the fields of criminology and connected sciences, etc.
33
Capital Punishment Brutalizes Society, The Times of India, May 05, 2003.
20
 iv. It is submitted that the death penalty is a futile threat for political terrorists because
they usually act in the name of an ideology that honours its martyrs.34
v. It is submitted that deterrence is a function not only of a punishment’s severity, but
also of its certainty and frequency. Thus, it can produce the desired results also when
less severe punishments are awarded but consistently and promptly.

II Retributive theory

Not desirable the retributive theory says that the severity of punishment must be proportional
to the gravity of the crime. And, since, murder is the gravest crime; it deserves the severest
punishment-death penalty. If this rule means punishments are unjust unless they are like the
crime itself, then the theory is unacceptable: it would require us to rape rapists, torture
torturers, betray traitors and kill multiple murderers again and again punishments that are
impossible to inflict in the contemporary civilized world.

III. Preventive theory

Death penalty not necessary Devotees of preventive theory advocate the infliction of capital
punishment, to prevent further crimes by the same criminal. Their apprehension, however,
shall wither away if a culprit is imprisoned for life without the provisions of parole.

IV. Reformative theory

Though on papers and in discussions it seems good as well as possible to reform the
criminals, in practical reality it may not be possible to do so. Professional and hard headed
criminals can never be reformed by any therapy or theory. Another logical apprehension is
that if criminals are sent to prison to be transformed into good citizens, the prisons will no
more remain prison, but will become dwelling houses.

VIII. Reason why India not abolishing death penalty

In the forthcoming paragraphs, the author will try to establish why capital punishment (death
penalty) is important for achieving the ends of justice. This will be established by five main
arguments.

First, death penalty will deter further crimes.

34
Attack on Parliament in Delhi, Akshhardham temple in Gujrat and other similar incidents after the
enactment of Prevention of Terrorism Act, 2002, strengthen this submission.
21
By awarding the most stringent punishment for the most heinous of crimes, future crimes
may be deterred. This works at the very root of human psychology. The basics of psychology
state that, when a person knows he is likely to get severely punished for a particular act, and
the burden from that act far outweighs the benefit, it is only obvious that the person would
not commit that act. Drawing an analogy, if a person knows that a serial murderer or a
terrorist is likely to get the death penalty, then that person would not commit such acts, as
death is a far higher price to pay as compared to any benefit that might arise from that act.

Second, death penalty ensures justice.

The Preamble to the Constitution of India, seeks to achieve for all the Indian citizens Justice,
among other things. The important part is the means to achieve such justice. Now, isn’t it
only fair that a person who has committed the most heinous of crimes, persons who are
potentially dangerous to the society at large, persons who have no repentance, no ounce of
humanity left in them, be shown the gallows? How could persons who have not behaved in a
humane manner, be endowed with the same rights as dutiful, law abiding citizens? What
justice would it be if an inhuman entity (that is not worth being called a natural person) is
treated in the same manner as humane person? Exactly what rights are the human rights
advocates talking about entitling such criminals with? What about the safety and trust the
citizens have reposed in the judicial system, to ensure that a person is punished in proportion
to the crime committed by him or her? These question obviously raise the platform from
which, the abolition of death penalty is viewed in a extremely critical and sceptical light.

Third, death penalty is not arbitrarily awarded.

Under the Indian system, death penalty is not awarded without any basis or arbitrarily
without any rationale or reasoning. First off, as has already been stated capital punishment is
awarded only in the rarest of rare cases. Second, even if the death sentence is passed, the
convict has the right to file for a mercy petition, or due to unreasonable delay there is a
possibility that the death sentence might be commuted to life imprisonment.

On receiving the mercy petition, the executive may conduct a separate enquiry and call for
fresh evidence. If new information is discovered, i.e. information not present in the judicial
record of the case in question, it is a ground for the executive to approve the mercy petition
and commute the death sentence of the convict to life imprisonment. However, this does not
have the effect of over – ruling the judgment of the Judiciary, this power is granted to the

22
judiciary only to correct the errors of the judiciary, if any. This goes on to indicate that there
are adequate checks and balances, to ensure that the life of an innocent person is not put at
stake, and at the same time ensuring that a guilty convict is not allowed to go scot - free.
Moreover there are specific objective standards, laid down by precedents, to establish the
grounds for commutation of death sentence to life imprisonment.

Fourth, the cost benefits analysis.

Even though this argument may seem very meagre and secondary, it is important from the
author’s point of view, insofar as the life of the most brutal convicts is in question. At what
cost is the State going to keep the convicts alive? Especially the convicts with no sense of
remorse or guilt, who can prove to be dangerous to the society in the future,. The chances of a
life convict escaping from prison are not unknown to the history of Indian prison. In the
backdrop of this scenario the question of safety of the society at large arises. The potential
risk to the society by a convicted criminal cannot be kept at bay under the cloak of human
rights.

Besides it is paradoxical to render “human” rights to convicts who do not have an ounce of
humanity left in them. This is especially true in the case of criminals who cannot be
reformed. The brutal, heinous crimes committed by these criminals do not endow them with a
right to live a life, while putting other innocent persons at risk. (Potential victims.)

Fifth, question of morality.

Though the abolitionists contend that it is immoral for the State to take the life of a person,
the same position holds good for the contrary as well. To explain this better, the statement
needs to be elucidated. It connotes that the presence of capital punishment means that the
State confers individual dignity upon convicts, by treating them as persons who are capable
of choosing the paths they want to tread on and taking full responsibility for the
consequences of their actions. If capital punishment is to be abolished on the grounds of
immorality then it is equal to treating the convicts as animals who do not have a sense of
morality and must be excused for even the most heinous crimes committed by them. Besides
death penalty is awarded only to the worst people who have committed the worst crimes, and
who do not deserve to live among the society anymore.

Moreover, if life is considered to be sacred, then it only disregards the life of an innocent
murder victim, if the convict is allowed to live. With this in mind, it only becomes obvious
23
that it is not only the right but also the duty of the State to ensure justice to the life of the
innocent murder victim and ensuring that no other innocent person is sacrificed on the altar of
human rights of such a person who does not even deserve to live. That having been stated,
death penalty must not exist as an instrument of retribution, but as a means by which the
innocent lives of potential victims is saved. The State looks at the common good of the entire
society. It is from this very commitment that the State derives the power to enforce capital
punishment. The Government of the State is under an explicit duty and obligation to protect
the lives of its citizens, and to ensure justice to its citizens, if any of their rights are violated.
Thus by inflicting capital punishment, the State is only carrying forward and honouring its
obligation and the promise it made to its citizens.

These are the five main arguments that are sought to be raised in favour of death penalty or
why India not abolishing death penalty.35

IX. CAPITAL PUNISHMENT: JUSTICE OR REVENGE?

“An eye for an eye makes the whole world blind” — Mahatma Gandhi

Ajmal Amir Kasab's death sentence has brought the issue of capital punishment again into the
spotlight. There are already calls for his execution although the legal process is far from over.
However, given the irreversible and final nature of capital punishment, a number of steps are
required be to taken before any execution can take place.

The death sentence has to be confirmed by the High Court and time allowed for an appeal to
be made to the Supreme Court. After the conclusion of the judicial process, mercy petitions
take center stage. This is a two-tiered process. In Kasab's ease, the first mercy petition will be
sent to the Governor of Maharashtra. If that is rejected, a second and final petition will be
sent to the President of India, Under India's constitutional system, the actual decisions are not
made by the Governor or the President, but instead by the State and Central governments, as
the constitutional heads are bound by the advice of their respective Cabinets.

Such inconsistency in messages is not unusual. An examination of the death penalty in India
over the past 10-15 years will show a number of such inconsistencies. The most significant
inconsistency is that despite the continual expansion of capital-eligible crimes and the scores
of persons sentenced to death every year in India, hardly any executions take place. There has
been only one execution in India after mid-1997: that of Dhananjay Chatterjee, on August 14,

35
http://www.ijhssi.org/papers/v2(5)/version-1/E253236.pdf visited on 2nd November 2016.
24
2004, in Kolkata. How has this situation of a virtual end to executions come about? For a
start, it has not been a sudden move.

The early decline in executions appears to be a result of the amendment to criminal law in
1955-56 (that did away with the idea of death penalty being the obvious punishment for
murder) along with an increase in the grant of commutation in mercy proceedings. The sharp
decrease in the 1970s is likely to be because of the new Code of Criminal Procedure of 1973-
74, which made the death penalty an exceptional punishment. The decline in the 1980s is a
direct result of the judgment of the constitutional Bench of the Supreme Court in Bachan
Singh v. State of Punjab, which limited the award of the death penalty to only the "rarest of
rare" cases. With the number of people being sentenced to death itself reducing (as evident
from the lack of disposal of mercy petitions), executions were bound to reduce as well.

The situation in the last two rows of (post-1995) needs further clarification. The small
number of petitions disposed" cannot be taken to mean that the courts were awarding fewer
death sentences. Instead, post-1997, the number of petitions disposed is small since there
have been a large number of mercy petitions that have been kept pending by the President
and upon which no decision whatsoever has been made. At present, there are 29 files
involving mercy petitions of 52 persons which are pending disposal at the Central level -
between the Ministry of Home Affairs (MHA)" and the Rashtrapati Bhavan.

Further, if the period from 1995 to 2004 is broken down, six of the seven executions in this
period took place during 1995-97- Thus after mid-1997, there has only been one execution in
India, and none since 2004 - a virtual end to executions. Such a situation, however, is not the
result of a policy decision to move away from the death penalty. On the contrary, through the
past decade the Indian government has constantly rejected calls by various U.N. bodies and
others seeking a moratorium on executions and death sentences.36

The basic purpose of criminal laws of any nation is the reformation of offenders and not
retribution. But it is also the responsibility of the same state to protect the interests of the
society at large and reiterate the society's faith in system of justice and capital punishment
may be a means to this end. The use of capital punishment is also viewed as a means of
vengeance for the victims/ families of the victims of such barbaric acts. But this is far from
being the aim of capital punishment as it is not always possible to hand out the sentence in

36
http://shodhganga.inflibnet.ac.in/
25
every instance where the family/ the public at large believe that it is the most suitable
punishment. Although nothing is more inhuman than taking away the human life, Capital
punishment meted out to offenders who show no remorse for their barbaric actions may set
an example in the society of the consequences of such an act and incite fear in the minds of
anyone contemplating a similarly hideous act. The liberty of life of a person cannot be at the
cost of another or in most cases several others in the society. Therefore, capital punishment
meted out to serial killers, rapists and terrorists, who have no consideration for human life
and are blinded by lust, power and misguided by unethical considerations restores the
people's faith in the judicial system. However, the judiciary has an obligation to be prudent in
the use of this sentence and act upon a well founded and unbiased judgement in its decisions.
To conclude, every act performed in moderation always results in greater good for oneself
and the people around.

X. GLIMPSE OF REFORMATIVE REVOLUTION

In pursuance of the resolution of The Forty-Third Annual Session of the Congress at Madras
in 1927, the Working Committee set up a committee in Mary 1928, representing people from
all walks of life ‘to draft a Swaraj Constitution for India on the basis of a declaration of
rights’. Motilal Nehru, father of Jawaharlal, was its chairman. The committee’s report was
known as the Nehru Report. The Karachi Session held at Karachi in March 1931 adopted the
Resolution on Fundamental Rights and Economic and Social Change, which were both a
declaration of rights and a humanitarian socialist manifesto. It resolved, among others, that
‘there should be no capital punishment’.37 Great leaders were vociferous opposing death
sentence. The Father of the Nation, Mahatma Gandhi, writing in Young India as far back as
in 1931, did not consider destruction of individuals as a virtuous act. While cautioning that
evil doers should not be put into death, he rather desired the prisoners treated as persons
suffering from diseases – ‘a malady born out of the present social system’ - and the prisons
converted into hospitals. In Harijan, the mouthpiece of Congress, he wrote: “Only God has
the right to take away a life, because it is the God who gave life”.14 But, even after India
became independent death penalty provision continued to stay in the Penal Codes. The
erstwhile popular leader, Jayaprakash Narayan, whose movement, known as ‘JP Movement’,
made Indira Gandhi, former Prime Minister of India, tremble of him, did not see death
sentence as a remedy for grievous crimes; he rather suggested treating the culprit as a mental

37
A.P.J. Abdul Kalam, “Turning Points: A Journey through Challenges”, HarperCollins Publishers India, Noida,
2012, p.134.
26
case and improving his mental condition sufficiently so as to become a useful citizen. In the
incorrigible minority cases, his view was, to keep them ‘in prison, the former Prime Minister
of India, tremble of him, did not see death sentence as a remedy for grievous crimes; he
rather suggested to treat the culprit as a mental case and improve his mental condition
sufficiently so as to become a useful citizen. In the incorrigible minority cases, his view was,
to keep them ‘in prison houses till they die a natural death’, instead of hanging, even at the
cost of heavy burden on the society. He was optimistic that respect for life and human
treatment even to the murderer will enhance ‘man’s dignity and make society more human’.
Dr. A.P.J. Abdul Kalam, former President of India, was not sure whether ‘a human system or
a human being is competent to take away a life based on artificial and created evidence’
because ‘we are all the creations of God’.38 In the political arena, strenuous efforts were made
to ensure abolition of the diabolic Death Penalty, which is an affront to the human dignity, by
introducing bills, both in the State as well as Central legislatures, from time to time. These
were defeated, opposed, or withdrawn. In 1931, a bill introduced by Gaya Prasad Singh in the
State Assembly was defeated due to Government opposition. In 1955, a bill tabled by
Mukund Lal Agarwal in the Lok Sabha was opposed by the Government and was defeated. In
1958, a motion moved by Prithvi Raj Kapur in the Rajya Sabha was withdrawn after debate.
In 1961 a bill brought by Savithri Devi Nigam in the Rajya Sabha was rejected after a debate.
In 1962, a motion introduced by Ragunath Singh in Lok Sabha created uproar in the House
assuming great importance. But, this was withdrawn only after the Central Government gave
an assurance of compiling the debate. Consequently, Law Commission presented a report on
death penalty, urging Government that India should not experiment with this acid test by
removing death sentence.39However, in its 35th Report published in 1967, the Law
Commission considered provision for lesser punishment, which led to the legislation as it
stands now, for murder, life imprisonment is the rule and capital punishment is an exception.
To quote Professor Baxi: “Much before the judgment in Mithu, bowing to the persistent

38
Upendra Baxi, “The Avatars of Indian Judicial Activism: Explorations in the Geographies of [In]Justice” in
‘Fifty Years of Supreme Court of India: Its Grasp and Reach”, The Indian Law Institute/Oxford University Press,
New Delhi, 2000 (Oxford India Paperbacks 2003, Fourth Impression 2009), pp. 706-7.
39
In India the subject of capital punishment has abortively come before Parliament earlier, although our social
scientists have not made any sociological or statistical study in depth yet. On the statutory side there has been
a significant change since India became free. Under Sec. 367(5) of the Criminal Procedure Code, as it stood
before its amendment by Act of 1955, the normal rule was to sentence to death a person convicted for murder
and to impose the lesser sentence for reasons to be recorded in writing. By amendment, this provision was
deleted with the result that the court is now free to award either death sentence or life imprisonment, unlike
formerly when death was the rule and life term the exception, for recorded reasons. In the new Criminal
Procedure Code, 1973 a great change has overtaken the law.’
27
protests against capital punishment, the legislature had brought in section 66 of the Amending
Act 25 of 1955, which had the effect of widening the discretion of courts in the matter of
imposing lesser punishment in offences punishable with death. In the thirty-fifth report of the
Law Commission on capital punishment published in 1967, the question of prescribing lesser
sentence under sections 302 and 303 were considered. Section 354(3) of the Code of
Criminal Procedure (CrPC), which now prescribes life imprisonment for murder as the rule
and capital punishment as an exception to be resorted to for reasons to be recorded, is a result
of tireless efforts of the reformists.”40 Such also is the subscription of Justice V.R. Krishna
Iyer.18 Therefore, the parameters for the death sentence having been made so liberal in
favour of the prisoner, says P.B. Sahasranaman, Advocate, Kerala High Court the ‘death
sentence was as well banned’. Perhaps as a last resort, the Law Commission Panel recently
recommended death penalty only in cases of ‘terrorism’.

Each year, since 1976, three more countries a year have added their names to the list of
countries that have abolished the death penalty. A majority of nations have ended capital
punishment in law or practice.41 In India, the provisions for the death penalty have been made
in the India Penal Code, 1860, which was given to us by the British colonial masters in the
19th century. Interestingly enough, while the United Kingdom has abolished the death
penalty, India chooses to retain it. However, several judges of our Supreme Court have, from
time to time, favoured the abolition of death penalty.

XI. Public Opinion

An important reason often cited by governments for retaining the death penalty is that public
opinion demands the same. The 35th Report of the Law Commission also considered public
opinion as an important factor in the context of the death penalty.42

One could argue that public opinion is indeed a factor to be considered while making
important decisions which effect the population at large. However, it is not necessary for the
government to follow public opinion on every issue. Indeed, the Government has a duty to
drive public opinion towards options which support fairness, dignity and justices, which are

40
P.B. Sahasranaman (Ed.), “Speaking for the Bench: Selected Judgments of Justice V.R. Krishna Iyer”, Oxford
University Press, New Delhi.
41
About the Death Penalty, Amnesty International USA, Available at: http://www.amnestyusa.org/abolish /
worldwide.html (visited on June 8, 2005)
42
The 35th Report apprehended that if the law were to go against public opinion, it is possible that the public
would indulge in acts of revenge, by killing or injuring offenders themselves. (See Law Commission of India,
35th Report, 1967, Ministry of Law, Government of India, at para 265 (22).)
28
constitutionally, enshrined ideals. It is useful to quote the former UN Human Rights High
Commissioner, Navi Pillay, who says:

Human progress does not stand still. Popular support for the death penalty today does not
mean that it will still be there tomorrow. There are undisputed historical precedents where
laws, policies and practices that were inconsistent with human rights standards had the
support of a majority of the people, but were proven wrong and eventually abolished or
banned. Leaders must show the way how deeply incompatible the death penalty is with
human dignity.43

There are multiple instances where governments around the world have abolished the death
penalty contrary to current public opinion, both in Asia and in the West.44 Very few of the
current abolitionist countries would have been able to ever abolish the death penalty had they
waited for public opinion to change on the issue.45 Moreover, once the death penalty was
abolished, the legal framework caused the public opinion to change radically on the issue,
and now the death penalty is thought of as unthinkable.46 The Indian experience of laws
governing social issues, such as Sati, dowry prohibition, untouchability, and child marriage is
testament to the fact that the government has the power to lead public opinion even against
deeply entrenched cultural norms and indeed an obligation to do so when faced with issues
concerning human dignity and equality.

XII. The Death Penalty Worldwide

According to Amnesty International, as of July 2015, 101 countries have abolished the death
penalty for all crimes in law, while 140 countries have abolished the death penalty in law or
practice. At least 607 executions were carried out worldwide in 2014, a decrease of almost
22% compared to the figures recorded for 2013. Executions were recorded in 22 countries in
2014, the same number as 2013. This is a significant decrease from 20 years ago in 1995,
when there were executions in 42 countries, highlighting the clear global trend of states
moving away from the death penalty. Three countries have signed treaties to abolish the
death penalty, but not have been ratified yet them.

43
Moving away from the Death Penalty: Lessons from South-East Asia, United Nations Human Rights
Commission 9 (2014).
44
Moving away from the Death Penalty: Lessons from South-East Asia, United Nations Human Rights
Commission 9 (2014).
45
Jon Yorke, AGAINST THE DEATH PENALTY 262 (1st ed. 2008).
46
2Eg. France and UK; See also Roger Hood Speech at the Law Commission National Consultation on 10 July,
2015.
29
36 countries actively practice capital punishment, 103 countries have completely abolished it
de jure for all crimes, 6 have abolished it for ordinary crimes only (while maintaining it for
special circumstances such as war crimes), and 50 have abolished it de facto(have not used it
for at least ten years and/or are under moratorium).

Nearly all countries in the world prohibit the execution of individuals who were under the age
of 18 at the time of their crimes; since 2009, only Iran, Saudi Arabia, and Sudan have carried
out such executions. Executions of this kind are prohibited under international law.
Capital punishment is a matter of active controversy in various countries and states, and
positions can vary within a single political ideology or cultural region. In the European Union
member states, Article 2 of the Charter of Fundamental Rights of the European Union
prohibits the use of capital punishment. The Council of Europe, which has 47 member states,
also prohibits the use of the death penalty by its members.

The United Nations General Assembly has adopted, in 2007, 2008, 2010, 2012 and 2014 non-
binding resolutions calling for a global moratorium on executions, with a view to eventual
abolition. Although many nations have abolished capital punishment, over 60% of the world's
population live in countries where executions take place, such as China, India, the United
States and Indonesia, the four most-populous countries in the world, which continue to apply
the death penalty (although in India and in many US states it is rarely employed). Each of
these four nations has consistently voted against the General Assembly resolutions.

XIII. Why the Capital Punishment should be abolished

Capital punishment is the punishment of death which is generally awarded to those guilty of
heinous crimes, particularly murder and child rape. In Indian the traditional way of awarding
this punishment is “handing by the neck” tills the death of the criminal. In other countries,
shooting, electric chair, etc, are the various devices used for the purpose.

Though the awarding of capital punishment, especially 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 “an eye for an eye”, and
tooth for a tooth”. It is pointed out that there can be no more places for it in a civilized
country. Moreover, judges are not infallible and there are instances where innocent people
have been sent to the gallows owing to some error of judgment.

30
Capital punishment is nothing but judicial murder, it is said, especially when an innocent life
is destroyed. Besides this, capital punishment, as is generally supposed, is not deterrent.
Murders and other heinous crimes have continued unabated, in spite of it. The result of such
views has been that in recent years there has been an increasing tendency in western countries
to award life imprisonment instead of capital punishment. Muslims countries, generally
speaking, continue to be more serving in this respect.

Despite frequent demands from all society Indian 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 cases of hardened criminals and only when it is established that the murder
was not the result of a 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 meet the ends of justice, that it is just and proper that such pests of society are
eliminated. Those who indulge in anti-social and sternest possible measures should be taken
against them, especially when they are habitual offenders.

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. A murderer deprives the family of the murdered person of its bread-winner.
By sending the criminals to gallows, we in no way help or provide relief to the family of the
murdered. Rather, we deprive another family of its bread-winner. The sociologists, therefore,
suggest that the murderer should be sentenced for life to work and support the family of
murdered person as well as his own. In this way, innocent women and children would be
saved from much suffering, hunger and starvation. Moreover, such measures would provide
the criminals with an opportunity to reform him. He would be under strict watch and if his
conduct is satisfactory, he may be allowed to return to society as a useful member of it.

There is much truth is such views, and they must be given due weight age before a decision is
taken to abolish or retain capital punishment. But Capital punishment should be continuing
for those who commit rare of the rarest crimes such as child rape, group rape, terrorism and
etc.

31
 CONCLUSION

In the wake of above discussion and ground realities of present day world following
conclusions can be drawn: The process of globalisation has made the world smaller and
brought many problems also. One of the serious threats arising recently is the phenomenon of
global terrorism. When terrorists groups strike at free will at innocent civilians and
institutions of civil society then all arguments in favour of abolition of death penalty fail.
These are exemplified by the December 2001 terrorist attack on the Indian Parliament, attack
on Akshardham Temple, 9/11 attack on WTC in USA, train bombings at Madrid, bomb blasts
in public transport in London, killing of an IIT professor emeritus in Bangalore, bomb blasts
at holy places such as Varanasi temple, Mosque in Andhra Pradesh, Ajmer Sharif Dargah and
at the Lord Hanuman Temple in Jaipur in May 2008. Since most of these strikes are made by
suicide squads (Fidayeen), hence, if such culprits or their kingpins are caught, then death
penalty is the only mechanism to save the civil society from the unscrupulous ideologies or
evil designs of hate mongers. Does any issue of human rights stand validity for these terrorist
outfit runners. In the wake of modernization, globalisation and advancement of extreme
material values, there is a relative erosion of moral pressure of the community, family,
religion, etc. on the individual. This has led to a situation where severe penalties such as
death penalties stand justified. In a world with so much of acute disparity in terms of
development between nations, no rhetoric can work or bring reformation but for severe
punishments such as death penalty. For instance, there is stark contrast between the
populations living in developed countries vis-à-vis populations in sub-Saharan countries,
where obscurantism, superstitions, extreme communal hatred and prejudices operate due to
illiteracy, poverty, deprivation and fundamentalism. How well severe penalties work in such
societies is well evident from the extremely low crime rate in Islamic countries of the Middle
East. Even within India, the kind of killings take place in the name of religion (Graham
Staines Murder Case), superstition (lynching of so called 'witches' in rural Rajasthan and
Haryana), caste killings in Bihar, female infanticide and dowry deaths, the abolition of death
penalty will be against all social, legal, moral, national, civic and cultural interests.

On one hand, there is a demand for abolition of death penalty and on the other hand, there is
an increased rhetoric for capital punishment for rape, heinous crimes against women, trade
and trafficking of women and narcotics. Much of the arguments for provisions of death
penalty have strong rationale on moral and social grounds. Therefore, keeping in mind the

32
maxim ‘Salus populi est suprema lex’47 a proper approach to issue perhaps will be, that death
penalty must be retained for incorrigibles and hardened criminals but its use should be limited
to the 'rarest of rare cases’. The courts may make use of death penalty sparingly but its
retention on the statute book seems necessary as a penological expediency. Therefore, it can
be safely concluded that death penalty should not be subjected to untimely death penalty.

47
The Latin maxim ‘Salus populi est suprema lex’ which means the welfare of the public is the supreme law, is
one of the well known laws which deals with public interest. To this maxim all other maxims of public policy
must yield for the object that “all laws are to promote the general well being of society”. In other words,
“regard for the public welfare is the highest law”. It also stands for Let the welfare of the people be the
supreme law.
33
 BIBLIOGRAPHY

Websites

 http://lawcommissionofindia.nic.in/reports/report262.pd
 http://www.rsdr.ro/art-1-3-4-2008.pdf
 http://www.achrweb.org/reports/india/indiaabolishdeathpenalty.pdf
 https://asianjournaloflegalstudies.files.wordpress.com
 https://wp-content/uploads/2016/05/Death-Penalty-India-Report-Volume-

34