CAPITAL PUNISHMENT: THE DEATH PENALITY

INTRODUCTION

This research is about the Capital Punishment. Capital Punishment is also called death
penalty. In simple words Capital Punishment refers to the execution of a person by the state
following the judicial order of the state. 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 beenthe death sentence. By common usage in jurisprudence,
criminology and penology, capital sentence means a sentence of death.

All punishments are based on the same proposition i.e. there must be a penalty for
wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that
it is both right and just that a person who has done wrong should suffer for it; the other is the
belief that inflicting punishment on wrongdoers discourages other from doing wrong. The
capital punishment also rests on the same proposition as other punishments.

The capital punishment debate is the most generally relevant debate, keeping in mind the
situation that has been brought about by today. Capital punishment is an integral part of the
Indian criminal justice system. Increasing strength of the human rights movement in India,
the existence of capital punishment is questioned as immoral. However this is an odd
argument as keeping one person alive at the cost of the lives of numerous members or
potential victims in the society is unbelievable and in fact, that is morally wrong.
CHAPTER-1

The term 'capital punishment' is derived from the Latin caput, meaning 'head'. It originally
referred to death by decapitation, but now applies generally to state sanctioned executions.
Some Middle East countries still practise decapitation for certain offences, but more common
forms of the death penalty include electrocution, gas, firing squad, lethal injection and
hanging.1

Capital punishment, or the death penalty, is the execution of a convicted criminal by the state
as punishment for the most serious crimes—known as capital crimes. The word "capital" is
derived from the Latin capitalis, which means "concerning the head"; therefore, to be
subjected to capital punishment means (figuratively) to lose one's head. The death penalty
when meted out according to law is quite different from murder, which is committed by
individuals for personal ends. Nevertheless, human life has supreme value. Regimes that
make prolific use of capital punishment, especially for political or religious offenses, violate
the most important human right—the right to life.

Capital punishment, also called death penalty, execution of an offender sentenced to death
after conviction by a court of law for 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 (even when it is upheld on appeal),
because of the possibility of commutation to life imprisonment.2

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 beenthe
death sentence. By common usage in jurisprudence, criminology and penology, capital
sentence means a sentence of death.3

Capital punishment (also known as the ‘death penalty’) is the execution of a person by the
state following a judicial process. This is different from extrajudicial state killings,

1
http://aic.gov.au/media_library/publications/tandi_pdf/tandi003.pdf
2
https://www.britannica.com/topic/capital-punishment
3
Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
paramilitary killings or political assassinations. Typically, people are executed for the most
serious crimes such as murder, but historically (in the UK and elsewhere) crimes against the
state, like treason, could also lead to the death penalty. Some jurisdictions impose capital
punishment for nonhomicide offences like drug dealing or rape.4

1.1. Historical Background

The death penalty was historically misused, meted out for minor crimes, and to suppress
political dissent and religious minorities. Such misuse of the death penalty greatly declined in
the nineteenth and twentieth centuries, and today it has been abolished in many countries,
particularly in Europe and Latin America. In most countries where it is retained, it is reserved
as a punishment for only the most serious crimes: premeditated murder, espionage, treason,
and in some countries, drug trafficking. Among some countries, however, use of the death
penalty is still common.

Even before there were historical records, tribal societies enforced justice by the principle
of lex talionis: "an eye for an eye, a life for a life." Thus, death was the appropriate
punishment for murder. The biblical expression of this principle (Exod. 21:24) is understood
by modern scholars to be a legal formula to guide judges in imposing the appropriate
sentence. However, it hearkens back to tribal society, where it was understood to be the
responsibility of the victim's relatives to exact vengeance upon the perpetrator or a member
of his family. The person executed did not have to be an original perpetrator of
the crime because the system was based on tribes, not individuals. This form of justice was
common before the emergence of an arbitration system based on the state or
organized religion. Such acts of retaliation established rough justice within the social
collective and demonstrated to all that injury to persons or property would not go
unpunished.5

Compared to revenge killings, use of formal executions by a strong governing authority was a
small step forward. The death penalty was authorized in the most ancient written law codes.
For example, the Code of Hammurabi (c. 1800 B.C.E.) set different punishments and
compensation according to the different class/group of victims and perpetrators. The Hebrew
Bible laid down the death penalty for murder, kidnapping, magic, violation of

4
http://www.sccjr.ac.uk/wp-content/uploads/2015/11/SCCJR-Capital-punishment.pdf
5
http://www.newworldencyclopedia.org/entry/Capital_punishment
the Sabbath, blasphemy, and a wide range of sexual crimes, although evidence suggests that
actual executions were rare.

The emergence of modern democracies brought with it the concepts of natural rights and
equal justice for all citizens. At the same time there were religious developments within
Christianity that elevated the value of every human being as a child of God. In the nineteenth
century came the movement to reform the prison system and establish "penitentiaries" where
convicts could be reformed into good citizens. These developments made the death penalty
seem excessive and increasingly unnecessary as a deterrent for the prevention of minor
crimes such as theft. As well, in countries like Britain, law enforcement officials became
alarmed when juries tended to acquit non-violent felons rather than risk a conviction that
could result in execution.6

The world wars in the twentieth century entailed massive loss of life, not only in combat, but
also by summary executions of enemy combatants. Moreover, authoritarian states—those
with fascist or communist governments—employed the death penalty as a means of political
oppression. In the Soviet Union, Nazi Germany, and in Communist China, millions of
civilians were executed by the state apparatus. In Latin America, tens of thousands of people
were rounded up and executed by the military in their counterinsurgency campaigns. Partly as
a response to these excesses, civil organizations have increasingly emphasized the securing of
human rights and abolition of the death penalty.

6
http://deathpenalty.procon.org/view.answers.php?questionID=00098
CHAPTER-2

CAPITAL PUNISHMENT IN INDIA

A careful scrutiny of the debates in British India's Legislative Assembly reveals that no issue
was raised about capital punishment in the Assembly until 1931, when one of the Members
from Bihar, Shri Gaya Prasad Singh sought to introduce a Bill to abolish the punishment of
death for the offences under the Indian Penal Code. However, the motion was negatived after
the then Home Minister replied to the motion.

The Government's policy on capital punishment in British India prior to Independence was
clearly stated twice in 1946 by the then Home Minister, Sir John Thorne, in the debates of the
Legislative Assembly. "The Government does not think it wise to abolish capital punishment
for any type of crime for which that punishment is now provided".7

At independence, India retained several laws put in place by the British colonial government,
which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian Penal
Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be imposed under the
law, including death.

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

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

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

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

7
Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p 104-105
When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for
such sentence.

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

These amendments also introduced the possibility of a post-conviction hearing on sentence,

including the death sentence, in Section 235(2), which states:

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

The Legislative Framework

Indian law provides for death penalty for a number of offences either under the Indian
PenalCode (hereinafter IPC) or other special enactments. Under IPC there are ten offences,
most of which relate to offences against state or offences against human body, for which
death is the maximum penalty, “we

are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in
cases where either murder or the highest offence against the state has been

committed…”.

For most of the offences where death penalty is provided, the code leaves a good amount of
discretion with the judge either by providing the minimum sentences or alternative sentences.
The reason adopting such a policy of discretion may be found in one of the basic principles of
criminal sanction viz. proportionality which mandates
that punishment must be proportionate to the crime committed. Thus, a judge deciding themat
ter is regarded as best person to ascertain the liability and award individual is sanctions. This
exactly is the reason why the Supreme Court in Mithu v. State struck downS.303 of IPC.8

8
http://www.academia.edu/8827086/Death_Penalty_in_India_A_case_of_reckless_justice
In addition, there are special legislations imposing death penalty, some of them even
authorising mandatory death penalty. For instance, laws relating to armed forces like the Air
Force Act, 1950, Navy Act, 1950 contains mandatory death penalty. Legislations concerning
the security of the state and maintenance of law and order, like the Defence of India Act,
1971, Defence and Internal Security Act, 1971, Terrorist and Disruptive Activities
(Prevention) Act, 1987, Prevention of Terrorism Act, 2002,Unlawful Activities Prevention
Act, 1967, Explosive substances Act, 1908 and Arms Act,1959 also authorize imposition of
death. Another category of legislations include social purpose legislations like Scheduled
Castes and Scheduled Tribes (Prevention of atrocities)Act, 1987,Commission of Sati
(Prevention) Act, 1987 and Narcotic Drugs andPsychotropic Substances (Prevention) Act,
1985. Some of the state legislations too, containdeath penalty provisions. For instance
legislations dealing with organised crimes likeMaharashtra Control of Organised Crime Act,
1999, Karnataka Control of Organised Crime Act, 2000, Andhra Pradesh Control of
Organised Crime Act, 2001 etc. However it can be seen that the jurisprudence in this area has
been formulated mostly with reference to murder cases where the sentencing judge has the
discretion to impose either death or life imprisonment.9

JUDICIAL ATTITUDE TOWARDS DEATH PENALTY IN INDIA

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all
persons. It adds no person shall be deprived of his life or personal liberty except according to
procedure established by law. This has been legally construed to mean if there is a procedure,
which is fair and valid, then the state by framing a law can deprive a person of his life. While
the central government has consistently maintained it would keep the death penalty in the
statute books to act as a deterrent, and for those who are a threat to society, the Supreme
Court too has upheld the constitutional validity of capital punishment in “rarest of rare”
cases. In Jagmohan Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State
of Uttar Pradesh (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme
Court affirmed the constitutional validity of the death penalty. It said that if capital
punishment is provided in the law and the procedure is a fair, just and reasonable one, the
death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare”
cases, and the courts should render “special reasons” while sending a person to the gallows.10

9
http://www.academia.edu/8827086/Death_Penalty_in_India_A_case_of_reckless_justice
10
http://164.100.47.134/intranet/CAPITAL_PUNISHMENT_IN_INDIA.pdf
Criteria for rarest of rarest case

The principles as to what would constitute the “rarest of rare” has been laid down by the top
Court in the landmark judgment in Bachan Singh vs State of Punjab (1980). Supreme Court
formulated certain broad illustrative guidelines and said it should be given only when the
option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was
left completely upon the court’s discretion to reach this conclusion. However, the apex court
also laid down the principle of weighing, aggravating and mitigating circumstances. A
balance-sheet of aggravating and mitigating circumstances in a particular case has to be
drawn to ascertain whether justice will not be done if any punishment less than the death
sentence is awarded. Two prime questions, the top court held, may be asked and answered.
First, is there something uncommon about the crime which renders the sentence of
imprisonment for life inadequate and calls for a death sentence? Second, are there
circumstances of the crime such that there is no alternative but to impose the death sentence
even after according maximum weightage to the mitigating circumstances which speak in
favour of the offenders.11

CLEMENCY POWERS

If the Supreme Court turns down the appeal against capital punishment, a condemned
prisoner can submit a mercy petition to the President of India and the Governor of the State.
Under Articles 72 and 161 of the Constitution, the President and Governors, respectively
have the power “to grant pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted of any offence” . Neither of
these powers are personal to the holders of the Office, but are to be exercised (under Articles
74 and 163, respectively) on the aid and advice of the Council of Ministers. Clemency
powers, while exercisable for a wide range of considerations and on protean occasions, also
function as the final safeguard against possibility of judicial error or miscarriage of justice.
This casts a heavy responsibility on those wielding this power and necessitates a full
application of mind, scrutiny of judicial records, and wide ranging inquiries in adjudicating a
clemency petition, especially one from a prisoner under a judicially confirmed death sentence
who is on the very verge of execution.12

11
http://164.100.47.134/intranet/CAPITAL_PUNISHMENT_IN_INDIA.pdf
12
ibid
The Ministry of Home Affairs, Government of India, has drafted the “Procedure Regarding
Petitions for Mercy in Death Sentence Cases” to guide State Governments and the prison
authorities in dealing with mercy petitions submitted by death sentence prisoners.13

JUDICIAL REVIEW OF EXERCISE OF MERCY POWERS

The Supreme Court in Shatrughan Chauhan case has recorded that the Home Ministry
considers the following factors while deciding mercy petitions:

a) Personality of the accused (such as age, sex or mental deficiency) or circumstances of the
case (such as provocation or similar justification);

b) Cases in which the appellate Court expressed doubt as to the reliability of evidence but
has nevertheless decided on conviction;

c) Cases where it is alleged that fresh evidence is obtainable mainly with a view to see
whether fresh enquiry is justified;

d) Where the High Court on appeal reversed acquittal or on an appeal enhanced the sentence;

e) Is there any difference of opinion in the Bench of High Court Judges necessitating
reference to a larger Bench;

f) Consideration of evidence in fixation of responsibility in gang murder case;

g) Long delays in investigation and trial etc.

However, when the actual exercise of the Ministry of Home Affairs (on whose
recommendations mercy petitions are decided) is analysed, it is seen that many times these
guidelines have not been adhered to. Writ Courts in numerous cases have examined the
manner in which the Executive has considered mercy petitions. In fact, the Supreme Court as
part of the batch matter Shatrughan Chauhan case heard 11 writ petitions challenging the
rejection of the mercy petition by the Executive14 . Supreme Court, last year held that judicial
clemency could be granted on the ground of inordinate delay even after a mercy petition is
rejected.

LAW COMMISSION OF INDIA's REPORT ON DEATH PENALTY

13
14
I ndia. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.190-191
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 penological 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.

 Further, the Commission sincerely hopes that the movement towards absolute
abolition will be swift and irreversible.15

15
India. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.217-218
CHAPTER-3

INTERNATIONAL TREND

Capital punishment is one of the most debated issues around the world. The UN General
Assembly recognised that in case of capital punishment there is a need for high standard of fair
trial to be followed by every country. Procedures to be followed must be just, fair and reasonable.
For example the UN Economic and Social Council (ECOSOC) in resolution No. 15 of 1996 (23
July 1996) encouraged member countries to abolish death sentence and recommended that those
countries who retain it must ensure defendants a speedy and fair trial. 16

Article 5 of the Universal Declaration of Human Rights 1948 provides that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 7 of the
International Covenant on Civil and Political Rights (ICCPR) 1966 provides that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. By several
resolutions the United Nations suggested protection of human rights of the persons facing capital
punishment which were again approved by Economic and Social Council in resolution No. 50 of
1984 (26th May ,1984). These may be summarised as follows:

(1) Countries which have not yet abolished capital punishment may impose it only for
the most serious crimes;
(II) Capital punishment may be imposed only in case of serious offences according to
established law for the time being in force. There must not be any retrospective effect of
the punishment;

(III) Young persons at the time of commission of crime, whose age was below16 years,
should not be awarded death penalty;

(IV) Death penalty must not be imposed upon pregnant women or on new mothers or
insane persons;

(V) Capital punishment must be imposed after following fair procedure according to
Article 14 of the ICCPR and when guilt is clearly proved leaving no room for reasonable
doubt or alternative explanation of the fact;

16
https://www.bjs.gov/content/pub/pdf/cp05.pdf
 (VI) Any person sentenced to capital punishment shall have right to appeal to the higher
court and steps should be taken to ensure him right to appeal;

(VII) Any one sentenced to capital punishment should be given the right to seek pardon
or commutation of sentence;

(VIII) When appeal, pardon or commutation of sentence proceeding is pending, capital

punishment shall not be executed;

(IX) Execution of capital punishment must be by way of minimum possible suffering.

2.2 The European Union:

During 19th century due to work of Prof. Beccaria and other criminologists, political and
economic changes as well as due to initiatives of Central and Eastern Europe, the European
countries almost became capital punishment-free area and recognised death penalty as cruel and
inhuman, which imposes psychological terror and gives scope for disproportional punishment.
The 6th protocol to the European convention on Human Rights 1982 provides for the complete
abolition of death sentence in peacetime by all members. The Assembly of the Council of Europe
in the year 1994 with further protocol to the European convention on Human Rights
recommended for the complete abolition of death penalty even in war time and under the
Military Laws.

On 3rd May 2002 the 13th protocol to the European convention for the protection of Human
Rights and Fundamental Freedoms was open for signature of member states which provides for
the total abolition of death penalty in all circumstances. Most of the countries in the European
Union have abolished death sentence. Capital Punishment has been recognised as cruel,
degrading and inhuman punishment which infringes upon the basic human rights of the accused
as expressed in article 3 of the European Convention on Human Rights.17 Article 3 of the UDHR
also provides for right to life, liberty and security of human beings.

Following the resolutions of the European Union and the United Nations, several countries
abolished death penalty completely. For example, Germany is a death penalty-free zone.
However, China imposed maximum death penalty. Saudi Arabia, Iran, Iraq, the United States of
America (USA) are also in the first row so far the application of capital punishment is concerned.

.
In England it was abolished by the Murder (Abolition of Death Penalty) Act, 1965 though at the
end of 18th century about 200 offences were punishable by death.

In Warwickshire (England) a person was prosecuted on the charge of

murder.18 A little girl was under the care and custody of her uncle due to death of her multi-
millionaire father. Accordingly she was about to inherit her father’s property when she would
become 16 years of age .The uncle was affectionate to her about her food, shelter, education and
other reasonable necessities. When she was about nine years of age, one night the neighbours
heard her cry which was quite unnatural saying “oh good uncle, please don’t kill me” and so
forth. Just after this incident she disappeared and could not be traced. The police were informed
about the matter. The uncle was suspected of committing murder of his niece and disposing of
her body as in her absence he was her father’s heir apparent and would inherit his huge estate. He
was arrested immediately though was released on bail on condition to produce the girl soon
before the court. He could not produce the girl and he was sentenced to capital punishment. But
after several years of the execution of death sentence, the girl returned to Warwickshire. She said
that due to fear of punishment for her mischief, she had escaped to the neighbouring town for
those years. Death sentence once enforced is irreversible and irrevocable and the life which is
lost cannot be brought back and the injustice done is irreparable.

18
A. Felicitla, Human Rights and Capital Punishment, in Human Rights and the Law:
National and Global Perspectives,1997, 207.
CAPITAL PUNISHMENT: A BOON OR BANE

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" till 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, 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 - "an eye for an eye", and
tooth for a tooth". It is pointed out that there can be no more place 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.19

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.

19
http://bschoolgdpi2013.blogspot.in/2013/02/should-capital-punishment-be-abolished.html
Murders and other heinous crimes have continued unabated, inspite 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 serve in this respect.20

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, specially when they are habitual offenders.21

It is, therefore, in the fitness of things that India has not so far abolished capital punishment
but used it more judiciously. Sociologist 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 himself. 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 weightage before a decision is
taken to abolish or retain capital punishment. But Capital punishment should be continue for
those who commit rare of the rarest crimes such as child rape, group rape, terrorism and etc.

20
ibid
21
https://www.megaessays.com/viewpaper/95279.html