Constitutional Validity of Death Penalty in India.docx

8/17/2019 Constitutional Validity of Death Penalty in India.docx

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1) http://newindialaw.blogspot.in/2012/11/constitutional- validity-of-capital.html

2) http://lawlex.org/lex-bulletin/constitutional-validity-of-death-penalty-in-india/1 !"

2. #onstitutional $alidity of %eath &enalty in 'ndia:

( AKANKSHA ARORA *+ APR 21, 2013

,he issue of death penalty has been debated discussed studied from a prolonged time but till now noconclusion can be drawn about the retention or abolishment of the provision. %eath penalty has beena mode of punishment from time immemorial which is practiced for the elimination of criminals andis used as the punishment for the heinous crimes.

$arious countries have different outloo towards crime in different ways. 'n rab countries they choose the retributive punishment of an eye for an eye others have deterrent punishment. *f latethere has been a shift towards restorative and reformist approaches to punishment including in 'ndia.

'ndia is one of the " retentionist countries which have retained death penalty on the ground that it will be awarded only in the 3rarest of rare cases4 and for 3special reasons4. ,hough what constitutes a3rarest of rare case4 or 3special reasons4 has not been answered either by the legislature or by the5upreme #ourt.

,he constitutional validity of the death penalty was challenged from time to time in numerous casesstarting from Jagmohan Singh v. State of U.P where the 5# re6ected the argument that the

death penalty is the violation of the right to life which is guaranteed under article 17 of the 'ndian

constitution. 'n another case Rajendra Prasad v. State of UP 8ustice 9rishna 'yer has

empathetically stressed that death penalty is violative of articles 1 17 and 21. (ut a year later in

the landmar case of Bachan Singh v. State of Punjab by a ma6ority of to 1

(hagwati 8.dissenting) the 5upreme #ourt overruled its earlier decision in ;a6endra &rasad. 't

expressed the view that death penalty as an alternative punishment for murder is not unreasonable

and hence not violative of articles 1 17 and 21 of the #onstitution of 'ndia because the public

order contemplated by clauses 2) to ) of rticle 17 is different from law and order and

also enunciated the principle of awarding death penalty only in the 3rarest of rare cases4. ,he

5upreme #ourt in Machhi Singh v State of Punjab laid down the broad outlines of the

circumstances when death sentence should be imposed.

5imilarly in various other cases the 5upreme #ourt has given its views on death penalty and on its

constitutional validity. (ut the punishment of death penalty is still used in 'ndia some time bac the

death penalty was given to Mohammad Ajmal Kasab . ,he &a istani gunman convicted in 200"


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&arliamentary attac s was also hanged after a huge political discussion on 7 =ebruary 201>.,he next

convict in the death row is Devendra Pal Singh Bhullar convict of 177> car bombing will be

hanged in the coming days as his mercy petition was re6ected by the 5upreme #ourt by holding that in

terror crime cases pleas of delay in execution of death sentence cannot be a mitigating factor.

There has been a diverse opinion regarding the death penalty in India as some are inthe favor of the retention of the punishment while others are in the favor of itsabolishment. Those who are in the favor of death penalty argue that it should be givenin the most heinous and rarest of the rare crimes as for example the Delhi gang rapecase the demand for death penalty for the accused was raised . But the people who areagainst the capital punishment argue on the religious, moral and ethical grounds anddeclare it inhuman and callous investment by unsure and unkempt society. It is alsosuggested that it should be replaced with life imprisonment or any substitute must be

brought out

Jagmohan Singh v. State of U.P !"#$% ! S&& '(.

)ajendra Prasad v. State of UP* A+) !"#" S& "!#.

Ba,han Singh v. State of Punjab* !"#"% $ S&& #'#.

Ma,hhi Singh v. State of Punjab *A+) !"-$ S& " #


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3) http://indianexpress.co /artic!e/exp!ained/exp!ained"in"the"s#pre e"co#rt"so e"$#estions"o%"!i%e"and"death/3. Written by Utkarsh Anand Published:May 27, 2015, 0:53

Which crimes entail capital punishment in ndia!"ra#e $%%ences such as murder, rape &ith in'uries that may result in the death $% a #ictim anda repeat $%%ender, &a(in( &ar a(ainst the )tate, and terr$rism*related $%%ences causin( death

are s$me ma'$r crimes punishable &ith death under the ndian Penal +$de )imilarly, thereare pr$#isi$ns under -he Arms Act, -he .arc$tic /ru(s and Psych$tr$pic )ubstances Act,-he )cheduled +aste and )cheduled -ribes Pre#enti$n $% Atr$cities Act, -he +$mmissi$n$% )ati Pre#enti$n Act, -he Air $rce Act, -he Army Act and -he .a#y Act &herein capital

punishment is prescribed as $ne $% the punishments %$r seri$us $%%ences -he n$&*repealedPre#enti$n $% -err$rism Act P -A and -err$rist and /isrupti#e Acti#ities Pre#enti$n Act

-A/A als$ c$ntained pr$#isi$ns %$r death sentence

What has the )upreme +$urt ruled $n the c$nstituti$nal #alidity $% the death sentence!Article 21 $% the ndian +$nstituti$n ensures the undamental 4i(ht t$ li%e and liberty %$r all

pers$ns t adds n$ pers$n shall be depri#ed $% his li%e $r pers$nal liberty e cept acc$rdin( t$ pr$cedure established by la& -his has been le(ally c$nstrued t$ mean i% there is a pr$cedure,&hich is %air and #alid, then the state by %ramin( a la& can depri#e a pers$n $% his li%eWhile the central ($#ernment has c$nsistently maintained it &$uld keep the death penalty inthe statute b$$ks t$ act as a deterrent, and %$r th$se &h$ are a threat t$ s$ciety, the )upreme+$urt t$$ has upheld the c$nstituti$nal #alidity $% capital punishment in 6rarest $% rarecases n 8a(m$han )in(h #s )tate $% UP 1973 , then in 4a'endra Prasad #s )tate $% UP

1979 , and %inally in achan )in(h #s )tate $% Pun'ab 19;0 , the )upreme +$urt a%%irmedthe c$nstituti$nal #alidity $% the death penalty t said that i% capital punishment is pr$#ided inthe la& and the pr$cedure is a %air, 'ust and reas$nable $ne, the death sentence can bea&arded t$ a c$n#ict -his &ill, h$&e#er, $nly be in the 6rarest $% rare cases, and the c$urtssh$uld render 6special reas$ns &hile sendin( a pers$n t$ the (all$&s

What &$uld c$nstitute a 6rarest $% rare case!-he principles as t$ &hat &$uld c$nstitute the 6rarest $% rare has been laid d$&n by the t$pc$urt in the landmark 'ud(ment in achan )in(h #s )tate $% Pun'ab 19;0 achan )in(h%$rmulated certain br$ad illustrati#e (uidelines and said it sh$uld be (i#en $nly &hen the$pti$n $% a&ardin( the sentence $% li%e impris$nment is 6un$&e#er, the apec$urt als$ laid d$&n the principle $% &ei(hin( a((ra#atin( and miti(atin( circumstances A

balance*sheet $% a((ra#atin( and miti(atin( circumstances in a particular case has t$ bedra&n t$ ascertain &hether 'ustice &ill n$t be d$ne i% any punishment less than the death

sentence is a&arded -&$ prime


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impris$nment %$r li%e inadei(h +$urt c$n%irms the death penalty and it is als$ upheld by the)upreme +$urt, a c$n#ict can %ile a re#ie& petiti$n and a curati#e petiti$n, i% the re#ie&

petiti$n is ni ed, %$r rec$nsiderati$n $% the 'ud(mentA +$nstituti$n ench ruled last year that a re#ie& petiti$n by a death*r$& c$n#ict &ill beheard by a three*'ud(e bench in $pen c$urt )uch cases &ere earlier bein( heard by t&$*'ud(e

benches in the 'ud(es= chamber A curati#e petiti$n is still heard in 'ud(es= chamberspenin( an$ther a#enue, the )upreme +$urt, by yet an$ther path*breakin( #erdict in 201?,

ruled that une plained delay in e ecuti$n &as a (r$und %$r c$mmutati$n $% death penalty,and an inmate, his $r her kin, $r e#en a public*spirited citi@en c$uld %ile a &rit petiti$n

seekin( such c$mmutati$n

/$es the e ecuti#e ha#e a r$le in clemency!es % the )upreme +$urt turns d$&n the appeal a(ainst capital punishment, a c$ndemned

pris$n can submit a mercy petiti$n t$ the President $% ndia and the "$#ern$r $% the )tateUnder Articles 72 and 1B1 $% the +$nstituti$n, the President and "$#ern$rs ha#e the p$&er 6t$ (rant pard$ns, reprie#es, respites $r remissi$ns $% punishment $r t$ suspend, remit $r c$mmute the sentence $% any pers$n c$n#icted $% any $%%ence -his p$&er &as &ith$ut anyc$nditi$ns until the last year=s #erdict by the )upreme +$urt, &hich held that 'udicialclemency c$uld be (ranted $n the (r$und $% in$rdinate delay e#en a%ter a mercy petiti$n isre'ected

>$& is the e ecuti$n $% death sentence carried $ut in ndia!


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C ecuti$n is carried $ut by t&$ m$des, namely han(in( by the neck till death, and bein(e ecuted by %irin( s


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the #ari$us statutes in ndia dealin( &ith +apital Punishment -his shall be %$ll$&ed by a

brie% $% s$me $% the m$st %am$us and imp$rtant cases relatin( t$ the sub'ect matter decided

by the ndian +$urts -he aim $% this paper is t$ (i#e the readers a clear understandin( $% the

p$siti$n $% the ndian c$urts in re(ard &ith a&ardin( $% capital punishment

What is Death Penalty?

-he death penalty is a le(al pr$cess &hereby a pers$n is put t$ death by the state as a

punishment %$r a crime -he 'udicial decree that s$me$ne be punished in this manner is a

death sentence, &hile the actual pr$cess $% killin( the pers$n is ane ecuti$n -here has been a

(l$bal trend t$&ards the ab$liti$n $% capital punishmentG h$&e#er, ndia has n$t ad$pted this

p$siti$n What makes this %$rm $% punishment di%%erent %r$m the $thers is the $b#i$us

element $% irre#ersibility attached t$ it A man $nce e ecuted %$r a crime can ne#er be

br$u(ht back t$ li%e )$ i% any err$r has crept in &hile decidin( $n a matter, this err$r cann$t

be recti%ied at a later sta(e

-he death penalty has e isted since antiammurabi -he ible t$$ set death as punishment %$r crimes such as

ma(ic, #i$lati$n $% the )abbath, blasphemy, adultery, h$m$se uality, bestiality, incest andrape Plat$ t$$ discussed the sc$pe $% death penalty at len(th in his Fa&s

/urin( the middle a(es, the death penalty &as characterised by particular brutality am$us

thinkers like "r$tius, -h$mas >$bbes and 8$hn F$cke &ere als$ supp$rters $% this %$rm $%

punishment -he trials by %ire, &ater etc %$ll$&ed durin( the 1B00=s can be said t$ be a %$rm

$% capital punishment

-he m$dern ab$liti$nist m$#ement started &ith the &$rksIiJ $% (reat talian crimin$l$(ist,

+esare eccaria &hich c$n#inced many statesmen $% the uselessness and inhumanity $%

capital punishment IiiJ /urin( the discussi$ns $n ad$pti$n $% rench Penal +$de in 1791

there &as #i($r$us debate %$r ab$lishment $% death penalty n the 19 th century the ab$liti$nist

m$#ement (re& &ith eminent 'urists like entham and 4$milly supp$rtin( such ideas

Michi(an in 1;?B became the %irst state t$ ab$lish capital punishment %$ll$&ed by Hene@uela

and P$rtu(al in 1;B7 As a ($al %$r ci#ili@ed nati$ns, ab$liti$n $% death penalty &as pr$m$ted

durin( the dra%tin( $% the Uni#ersal /eclarati$n $% >uman 4i(hts in 19?;


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+apital Punishment is currently practiced in 5; c$untries, includin( U)A, 8apan, elarus,

+uba, and )in(ap$re As $% 2012 there are 97 ab$liti$nist states Acc$rdin( t$ Amnesty

nternati$nal the &$rst $%%enders in 2012 &ere +hina 1000K deaths , ran 31?K and ra<

129K -he $r(anisati$n c$n%irmed 1, 722 death sentences and B;2 e ecuti$ns e cludin(+hina in 2012 n Cur$pe h$&e#er it is n$& a #irtually e tinct phen$men$n &ith the

e cepti$n $% the 4epublic $% elarus Acc$rdin( t$ a study ab$ut t&$*thirds $% the c$untries

ha#e either ab$lished capital punishment $utri(ht $r ha#e n$t actually e ecuted any death

sentences in the last ten years IiiiJ

Position in the United States

+apital punishment &as suspended in the United )tates %r$m 1972 thr$u(h 197B primarily as

a result $% the )upreme +$urt=s decisi$n in Furman # Georgia [iv] . n this case, the c$urt

%$und that the death penalty &as bein( imp$sed in an unc$nstituti$nal manner, $n the

(r$unds $% cruel and unusual punishment in #i$lati$n $% the Ci(hth Amendment t$ the United

)tates +$nstituti$n -he )upreme +$urt has ne#er ruled the death penalty t$ be per

se unc$nstituti$nal n urman H "e$r(ia h$&e#er 8ustice )te&art t$$k the #ie& that death

penalty ser#es a deterrent as &ell as retributi#e purp$se I#J

-he +$urt in Gregg # Georgia [vi] upheld a pr$cedure in &hich the trial $% capital crimes &as

bi%urcated int$ (uilt*inn$cence and sentencin( phases At the %irst pr$ceedin(, the 'urydecides the de%endant=s (uiltG i% the de%endant is inn$cent $r $ther&ise n$t c$n#icted $% %irst*

de(ree murder, the death penalty &ill n$t be imp$sed At the sec$nd hearin(, the 'ury

determines &hether certain statut$ry a((ra#atin( %act$rs e ist, and &hether any miti(atin(

%act$rs e ist, and, in many 'urisdicti$ns, &ei(h the a((ra#atin( and miti(atin( %act$rs in

assessin( the ultimate penalty L either death $r li%e in pris$n, either &ith $r &ith$ut par$le

Position in the United ingdo!

Ar$und the 17 th century /eath penalties &ere $ne $% the m$st c$mm$nly meted $ut

punishments in the UE -he c$mm$n la& in th$se days &as called 6 l$$dy +$de I#iiJ

because at $ne p$int there &ere up t$ 220 $%%ences &hich &ere punishable by death,

includin( 6bein( in the c$mpany $% "ypsies %$r $ne m$nth , 6str$n( e#idence $% malice in a

child a(ed 7L1? years $% a(e and 6blackin( the %ace $r usin( a dis(uise &hilst c$mmittin( a

crime -he Murder Ab$liti$n $% /eath Penalty Act 19B5 suspended the death penalty in

Cn(land, Wales and )c$tland but n$t in .$rthern reland %$r murder %$r a peri$d $% %i#e

years, and substituted a mandat$ry sentence $% li%e impris$nment A%ter this e#en th$u(h

death penalty still remained part $% the le(al %rame&$rk it &as implemented in %e&e cepti$nal cases $nly inally $n 20 th May 199; the >$use $% +$mm$ns #$ted t$ rati%y the


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Bth Pr$t$c$l $% the Cur$pean +$n#enti$n $n >uman 4i(hts pr$hibitin( capital punishment

e cept 6in time $% &ar $r imminent threat $% &ar n ct$ber 2003 the UE pr$hibited capital

punishment in all cases -he last e ecuti$n in Cn(land &as carried $ut in Au(ust 19B? I#iiiJ

Allen and C#ans &ere b$th tried t$(ether at Manchester +r$&n +$urt in 8une 19B?, %$r thecapital murder $% 8$hn West murder in the c$urse $r %urtherance $% the%t /urin( the trial,

the 'ud(e p$sed the


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%$r special lea#e t$ appeal t$ that c$urt by such c$n#icts are laid d$&n by the Ministry $%

>$me A%%airs

n this respect &e may re%er t$ Article 72 $% the +$nstituti$n $% ndia &hich says:

“Power of President to grant pardons, etc, and to suspend, remit or commute sentences in

certain cases-

!" #he President shall have the power to grant pardons, reprieves, respites or remissions of

punishment or to suspend, remit or commute the sentence of any person convicted of any

offence

a" in all cases where the punishment or sentence is by a court $artial%

b" in all cases where the punishment or sentence is for an offence against any law relating to

a matter to which the executive power of the &nion extends%

c" in all cases where the sentence is a sentence of death

'" Nothing in sub clause a" of (lause !" shall affect the power to suspend, remit or

commute a sentence of death exercisable by the Governor of a )tate under any law for the

time being in force.*

)imilarly the pard$nin( p$&ers $% the "$#ern$r $% a )tate are menti$ned in Article 1B1

-hese pr$#isi$ns ensure that the accused is sentenced t$ death $nly a%ter there is n$ r$$m %$r

err$r le%t -he culprit (ets multiple a#enues t$ appeal and n$& li%e impris$nment has bec$me

the rule &hile death sentence is the e cepti$n

Discussion o" Land!ar# cases dealing with Death Penalty in India

n the case $% +agmohan )ingh # )tate of &.P [x] &hich &as the %irst case dealin( &ith the


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imp$se capital punishment $r impris$nment %$r li%e is hit by Article 1? $% the +$nstituti$n

because t&$ pers$ns %$und (uilty $% murder $n similar %acts are liable t$ be treated di%%erently

$ne %$r%eitin( his li%e and the $ther su%%erin( merely a sentence $% li%e impris$nment Fastly it

&as c$ntended that the pr$#isi$ns $% the la& d$ n$t pr$#ide a pr$cedure %$r trial $% %act$rsand circumstances crucial %$r makin( the ch$ice bet&een the capital penalty and

impris$nment %$r li%e -he trial under the +riminal Pr$cedure +$de is limited t$ the


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la& and $rder in the c$untry at the present 'uncture, ndia cann$t risk the e periment $%

ab$liti$n $% capital punishment I iJ

n the case $% diga namma # )tate of ndhra Pradesh [xii] &hich %$ll$&ed 8ustice Erishna

yer c$mmuted the death sentence t$ li%e impris$nment by citin( %act$rs like a(e, (ender,

s$ci$*ec$n$mic back(r$und and psychic c$mpulsi$ns $% the accused t &as laid $ut in this

case that apart %r$m l$$kin( int$ the details $% the crime and decidin( based $n the e tent $%

#i$lence c$mmitted the 'ud(es sh$uld als$ l$$k int$ the criminal and his c$nditi$n $r

haplessness &hile c$mmittin( the crime 8ustice Erishna yer in supp$rt $% the li%e

impris$nment $#er capital punishment said:

6 legal policy on life or death cannot be left for ad hoc mood or individual predilection and

so we have sought to ob ectify to the extent possible, abandoning retributive ruthlessness,

amending the deterrent creed and accenting the trend against the extreme and irrevocable

penalty of putting out life I iiiJ

-hese cases &ere %$ll$&ed by three imp$rtant de#el$pments )ecti$n 35? 3 &as added t$

the +$de $% +riminal Pr$cedure, 1973 &hich clearly laid d$&n that in c$n#icti$n %$r cases

&hich are punishable either &ith death $r li%e impris$nment, the 'ud(ment shall state the

reas$ns %$r a&ard $% the punishment and in the e#ent that it is death sentence menti$n the

special reas$ns %$r that decisi$n -his made the lesser punishment the rule and death penalty

the e cepti$n as $pp$sed t$ the pre#i$us situati$n Als$ in 1979 ndia rati%ied the

nternati$nal +$#enant $n +i#il and P$litical 4i(hts ++P4

Article B 2 $% the ++P4 says: 6 /n countries which have not abolished the death penalty,

sentence of death may be imposed only for the most serious crimes in accordance with the

law in force at the time of the commission of the crime and not contrary to the provisions of

the present (ovenant and to the (onvention on the Prevention and Punishment of the (rimeof Genocide.*

)ub* secti$n 5 $% the same Article says that n$ sentence $% death shall be imp$sed $n any$ne

under the a(e $% 1; years and n$ne can be carried $ut $n pre(nant &$men -hus, ndia &as

n$& c$mmitted t$ pr$(ressi#e ab$liti$n $% death penalty An$ther ma'$r de#el$pment &as the

Maneka "andhi caseI i#J &hich held that e#ery la& $% puniti#e detenti$n must pass the

reas$nability test $btained %r$m the c$llecti#e readin( $% the 6"$lden -rian(le i e Articles

1?, 19 and 21


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8ustice Erishna yer reiterated a similar $pini$n in the case $% 0a endra Prasad # )tate of

&ttar Pradesh. [xv] >$&e#er 8ustice )en in his dissentin( 'ud(ement cited his c$ncern $#er

the &ide sc$pe %$r interpretati$n $% the )ecti$n 302 $% the P+ and )ecti$n 35? $% the +rP+

le%t t$ the 'udiciary >e said in this case 6 /t is not necessary for this (ourt to attempt toanalyse the substantive merits of the cases for and against the death penalty for murder. /t is

in my view, essentially, a 1uestion for the Parliament to resolve and not for this (ourt to

decide.* [xvi]

-he case $% 2achan )ingh # )tate of Pun ab [xvii] a(ain br$u(ht up the


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#i$lates Article 19 and 21 as there are n$ pr$cedural as t$ &hen the state has the p$&er t$

take a&ay the li%e and pers$nal liberties $% a pers$n in such cases 8ustice ha(&ati n$t $nly

talks ab$ut the brutality and indiscreti$n that acc$mpanies death penalty but als$ &ith l$(ic

and statistical data sh$&s us h$& capital punishment d$esn=t succeed in attainin( any $% thethree pen$l$(ical ($als 4e%$rmati$n, retributi$n and deterrence t is $b#i$usly imp$ssible

t$ re%$rm a pers$n &h$ is dead and the retributi$n the$ry als$ d$es n$t h$ld (r$und acc$rdin(

t$ him such a punishment is based purely $n em$ti$ns $% #en(eance and re#en(e &hich

sh$uld be curtailed in a ci#ilised s$ciety Fast is the /eterrence the$ry, &hich m$st

retenti$nists assume is the m$st crucial reas$n %$r n$t ab$lishin( capital punishment -hey

belie#e that le(ally sancti$ned death $% the culprit &$uld dissuade $thers %r$m d$in( the

same >$&e#er 8ustice ha(&ati cites #ari$us eminent crimin$l$(ists and statistics $% $ther

c$untries &hich pr$#e that there is n$ increase in the crime rate e#en &hen capital punishment is ab$lished and n$ decrease &hen the c$urt a&ards death sentence %$r a crime

$ithu # )tate of Pun ab [xx] &as an$ther case &here the mandat$ry death sentence under

)ecti$n 303 &as declared unc$nstituti$nal and hence in#alid -he secti$n &as based $n the

l$(ic that any criminal &h$ has been c$n#icted %$r li%e and still can kill s$me$ne is t$$ c$ld

bl$$ded and bey$nd re%$rmati$n, t$ be all$&ed t$ li#e -he 'ud(es in Mithu=s case held that

)ecti$n 303 #i$lated the Articles 1? and 21 $% $ur +$nstituti$n and s$ it &as deleted %r$m the

P+

n the subse


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i When the h$use $% the #ictim is set a%lame &ith the end in #ie& t$ r$ast him ali#e in the

h$use ii When the #ictim is sub'ected t$ inhuman acts $% t$rture $r cruelty in $rder t$ brin(

ab$ut his $r her death iii When the b$dy $% the #ictim is cut int$ pieces $r his b$dy is

dismembered in a %iendish manner I i#J

II (oti)e "or $o!!ission o" !urder

When the murder is c$mmitted %$r a m$ti#e &hich e#inces t$tal depra#ity and meanness $r

instance &hen a a hired assassin c$mmits murder %$r the sake $% m$ney $r re&ard 2 a c$ld

bl$$ded murder is c$mmitted &ith a deliberate desi(n in $rder t$ inherit pr$perty $r t$ (ain

c$ntr$l $#er pr$perty $% a &ard $r a pers$n under the c$ntr$l $% the murderer $r #is*a*#is

&h$m the murderer is in a d$minatin( p$siti$n $r in a p$siti$n $% trust, c a murder is

c$mmitted in the c$urse %$r betrayal $% the m$therland I #J

III Anti Social or Socially a*horrent nature o" the cri!e

a When murder $% a )cheduled +aste $r min$rity c$mmunity etc , is c$mmitted n$t %$r

pers$nal reas$ns but in circumstances &hich ar$use s$cial &rath $r instance &hen such a

crime is c$mmitted in $rder t$ terr$ri@e such pers$ns and %ri(hten them int$ %leein( %r$m a

place $r in $rder t$ depri#e them $%, $r make them &ith a #ie& t$ re#erse past in'ustices and

in $rder t$ rest$re the s$cial balance

b n cases $% bride burnin(= and &hat are kn$&n as d$&ry*deaths= $r &hen murder is

c$mmitted in $rder t$ remarry %$r the sake $% e tractin( d$&ry $nce a(ain $r t$ marry

an$ther &$man $n acc$unt $% in%atuati$n I #iJ

I+ (agnitude o" $ri!e

When the crime is en$rm$us in pr$p$rti$n $r instance &hen multiple murders say $% all $r

alm$st all the members $% a %amily $r a lar(e number $% pers$ns $% a particular caste,

c$mmunity, $r l$cality, are c$mmitted

+ Personality o" +icti! o" !urder

When the #ictim $% murder is a an inn$cent child &h$ c$uld n$t ha#e $r has n$t pr$#ided

e#en an e cuse, much less a pr$#$cati$n, %$r murder, b a helpless &$man $r a pers$n

rendered helpless by $ld a(e $r in%irmity c &hen the #ictim is a pers$n #is*a*#is &h$m the

murderer is in a p$siti$n $% d$minati$n $r trust d &hen the #ictim is a public %i(ure

(enerally l$#ed and respected by the c$mmunity %$r the ser#ices rendered by him and the

murder is c$mmitted %$r p$litical $r similar reas$ns $ther than pers$nal reas$ns I #iiJ


16/75

n llauddin # )tate of 2ihar [xxviii] , 8ustice Ahmadi said that 6Where a sentence $% se#erity

is imp$sed, it is imperati#e that the 8ud(e sh$uld indicate the basis up$n &hich he c$nsiders a

sentence $% that ma(nitude 'usti%ied Unless there are special reas$ns, special t$ the %acts $%

the particular case, &hich can be catal$(ued as 'usti%yin( a se#ere punishment the 8ud(e&$uld n$t a&ard the death sentence t may be stated that i% a 8ud(e %inds that he is unable t$

e plain &ith reas$nable accuracy the basis %$r selectin( the hi(her $% the t&$ sentences his

ch$ice sh$uld %all $n the l$&er sentence

5ehar )ingh # &nion of /ndia [xxix] is the %am$us case &here the assassins $% ndira "andhi

&ere sentenced t$ death Eehar )in(h &as part $% the c$nspirat$rs &h$ planned the murder

and did n$t actually c$mmit the act -he c$urt held that e#en this &as en$u(h t$ %all in the

rarest case criteria -his &as a &idely c$ntr$#ersial decisi$n Fater in )tate of $aharashtra # )u3hdeo )ingh [xxx] the 'ud(es a&arded death sentence t$ the t&$ pers$ns

accused %$r the murder $% "eneral Haidya

/eath sentence &as a&arded t$ the accused in 6axman Nai3 # )tate of 7rissa [xxxi] accused

$% se ually assaultin( his 7 year $ld niece -he e#idence rec$rded and the de(ree $% in'uries

$% the #ictim acc$rdin( t$ the 'ud(es &ere su%%icient t$ pr$#e the (r$ss brutality &ith &hich

the rape and murder had been c$mmitted and hence it &as a case %it t$ %all under the cate($ry

$% the 6rarest $% rare cases

Panchhi and 7rs. # )tate of &ttar Pradesh [xxxii] later held that brutality in the act $%

murder is n$t be the s$le criteri$n &hile decidin( i% the crime %alls under the 6rarest $% rare

d$ctrine as laid d$&n by the case $% achan )in(h n )wamy )hraddhananda 8 $urali

$anohar $ishra # )tate of 5arnata3a [xxxiii] the c$urt %$r the %irst time identi%ied the

dilemma 'ud(es %ace because the term %$r li%e sentence a%ter remissi$n usually &as cut d$&n

t$ 1? years -his &as in s$me cases c$nsidered t$ be (r$ssly inade


17/75

la& laid d$&n in achan )in(h=s case n this case the accused al$n( &ith three $thers

kidnapped a pers$n and demanded a rans$m $% 4upees 10 lakhs C#entually they killed him

and cut his b$dy int$ pieces and disp$sed them in di%%erent places n spite $% the brutal

e ecuti$n $% the murder the 'ud(es &ere c$n#inced that the miti(atin( circumstances= in thiscase &ere su%%icient t$ e clude it %r$m the bracket $% 6rarest $% rare cases -he +$urt

$bser#ed that the accused &ere n$t pr$%essi$nal criminals &ith a l$n( past criminal rec$rd,

that they did &hat they did &ith the s$le m$ti#e $% c$llectin( m$ney )$ the +$urt held that

there is a chance $% re%$rm and rehabilitati$n $% the accused and %$r the sake $% that

p$ssibility (ranted them the lesser sentence $% li%e impris$nment

-hese are in brie% s$me $% the landmark cases &hich (rappled &ith the


18/75

incident had e#$ked nati$n&ide ra(e and the brutality &ith &hich the $%%ence &as c$mmitted

cann$t be i(n$red 6-here sh$uld be e emplary punishment in #ie& $% the unparalleled

brutality &ith &hich the #ictim &as (an( raped and murdered, as the case %alls under the

rarest $% rare cate($ry All be (i#en death, the c$urt said &hile readin( $ut a p$rti$n $% the$rder n a rather dramatic n$te the /e%ence c$unsel A P )in(h said a%ter the #erdict &as

ann$unced that he &ill m$#e hi(h c$urt $nly 6i% n$ $ther rape takes place in ne t t&$ m$nths

a%ter this #erdict

6 % the c$untry &anted this case t$ be a deterrent, &ill &ait %$r t&$ m$nths t$ see the crime

scene % n$ rape takes place due t$ death bein( (i#en in the instant case, &ill (i#e in &ritin(

that my clients be han(ed, he said

ndian c$urts sentenced 1,?55 pris$ners t$ death bet&een 2001 and 2011, acc$rdin( t$ the

.ati$nal +rime 4ec$rds ureau /urin( the same peri$d, sentences %$r ?,321 pris$ners &ere

c$mmuted t$ li%e impris$nment

-here are ?77 pe$ple $n death r$& Many ha#e been there %$r years >uman ri(hts (r$ups

ha#e been alarmed, h$&e#er, by the #i($ur &ith &hich President Pranab Mukher'ee, &h$ &as

s&$rn int$ $%%ice in 8uly 2012, has acted in clearin( the backl$( $% clemency pleas >e has

re'ected 11, c$n%irmin( the death penalty %$r 17 pe$ple I #J

$onclusion

n #ie& $% the ab$#e discussi$ns &e can see that ndia=s thinkin( $n the capital punishment

is still


19/75

6(riminals do not die by the hands of the law. #hey die by the hands of other men.

ssassination on the scaffold is the worst form of assassination because there it is invested

with the approval of the society9..$urder and capital punishment are not opposites that

cancel one another but similars that breed their 3ind.*

And the sec$nd $ne is by (argaret hatcher, Prime Minister $% the UE 1979 *1990 :

6 /f we execute murderers and there is in fact no deterrent effect, we have 3illed a bunch of

murderers. /f we fail to execute murderers, and doing so would in fact have deterred other

murders, we have allowed the 3illing of innocent victims. / would much rather ris3 the

former. #his, to me, is not a tough call9.. ll over the country news stories bemoan and hype

the countdown to execution number !:::, but where are the stories regarding the ripple

effect of the heinous crimes that these murderers were executed for committing;

Maybe there is n$ real ri(ht $r &r$n( ans&er t$ the issue $% capital punishment, $r maybe i%

there is the s$ciety in $ur c$untry need t$ de#el$p t$ a le#el &here the ans&er bec$mes clear

t$ us Until then &hat is re


20/75

I#iiJ +rime and Punishment L -he l$$dy +$de a#ailable at

http:DD&&& nati$nalarchi#es ($# ukDeducati$nDcandpDpunishmentD(0BD(0Bcs1 htm Fast

#isited $n 21 st )eptember, 2013

I#iiiJ >ist$ry $% +apital Punishment L http:DD&&& stephen*strat%$rd c$ ukDcapitalNhist htm

Fast #isited $n 21 st )eptember, 2013

Ii J Fast C ecuti$ns in the UE L a#ailable at http:DD&&& stephen*

strat%$rd c$ ukDlastN$nes htm Fast #isited $n 21st )eptember, 2013

I J +agmohan )ingh # )tate of &.P , 1973 1 )++ 20

I iJ )upra n$te 5 at p 72

I iiJ diga namma # )tate of ndhra Pradesh , A 4 1973 ) + 77?

I iiiJ d At p 2B

I i#J $ane3a Gandhi # &nion of /ndia, A 4 197; )+ 597

I #J 1979 A 4 91B

I #iJ d at p 1?3

I #iiJ )upra n$te 5

I #iiiJ d at p 207

I i J d at p 271

I J $ithu # )tate of Pun ab, 19;0 2 )++ B;?

I iJ #.4 4atheeswaram # )tate of #amil Nadu, 19;3 A 4 3B1, 19;3 )+4 2 3?;

I iiJ )her )ingh # )tate of Pun ab, 19;3 A 4 ?B5, 19;3 )+4 2 5;2

I iiiJ $acchi )ingh # )tate of Pun ab 19;3 3 )++ ?70

I i#J d at p 33


21/75

I #J d at p 3?

I #iJ d at p 35

I #iiJ d at p 3B

I #iiiJ llauddin # )tate of 2ihar , A 4 19;9 )+1?5B

I i J 5ehar )ingh # &nion of /ndia, A 4 19B2 )+ 955

I J )tate of $aharashtra # )u3hdeo )ingh , 1992 A 4 2100, 1992 )+4 3 ?;0

I iJ 6axman Nai3 # )tate of 7rissa , A 4 1995 )+ 13;7, 199? 3 )++ 3;1

I iiJ Panchhi and 7rs. # )tate of &ttar Pradesh, 199; 7 )++ 177

I iiiJ A 4 200; )+ 30?0

I i#J )antosh 5umar 2ariyar # )tate of $aharashtra , 8-2009 7 )+2?;

I #J4ape trial puts %$cus $n ndia=s death penalty parad$ , a#ailable at

http:DD&&& reuters c$mDarticleD2013D09D12Dus*india*rape*idU) 4C9; 1BP20130912 Fast#isited $n 21st )eptember, 2013

5 http:DDaniruddha*c$nstituti$n$%india bl$(sp$t inD2010D05Dc$nstituti$nal*#alidity*$%*

death html


22/75

. p$sted by aniruddha at ;:2B pm thursday, may B, 2010+$nstituti$nal Halidity $% /eath Penalty

-he pr$#isi$n $% death penalty as an alternati#e punishment %$r murder under s 302, P+ &aschallen(ed as c$nstituti$nally in#alid bein( #i$late $% Arts 1?, 19 and 21 $% the +$nstituti$nin a series $% cases t &as c$ntended in 8a(m$han )in(h # )tate $% U P that thec$nstituti$nal #alidity $% death sentence has t$ be tested &ith re%erence t$ Arts 1? and 19

besides Art 21 $% the +$nstituti$n as the ri(ht t$ li%e is %undamental t$ the en'$yment $% allthese %reed$ms as c$ntained in Art 19 $% the +$nstituti$n

t &as %urther c$ntended that the +$de $% +riminal Pr$cedure prescribed the pr$cedure $%%indin( (uilt $% an accused but re(ardin( the sentence t$ be a&arded under s 302, P+ theun(uided and unc$ntr$lled discreti$n has been le%t t$ the 8ud(e t$ decide the sentence t$ bea&arded -he )upreme +$urt held that the death sentence as an alternati#e punishment unders 302, P+ is n$t unreas$nable and it is in the public interest and the pr$cedural sa%e(uard

pr$#ided t$ the accused under the +$de $% +riminal Pr$cedure is n$t unreas$nable lea#in(the discreti$n &ith the 'ud(e t$ sentence an accused, c$n#icted %$r murder either t$ death $rli%e impris$nment /eath sentence as an alternati#e punishment %$r li%e &as held #alid

-h$u(h the c$urt did n$t accept the c$ntenti$n that the #alidity $% the sentence t$ death has t$ be tested in the li(ht $% Arts 1? and 10 $% the +$nstituti$n ut in 4a'endra Prasad # )tate $%U P the c$urt accepted the pr$p$siti$n that the #alidity $% the death sentence can be tested

&ith re%erence t$ Arts 1?, 19 and 21 $% the +$nstituti$n -he )upreme +$urt su((ested thatin e cepti$nal circumstances death sentence sh$uld be imp$sed $nly &hen public interest,s$cial de%ence and public $rder &$uld &arrant )uch e treme penalty sh$uld be imp$sed ine treme circumstances -he c$urt in archan )in(h # )tate $% Pun'ab upheld thatc$nstituti$nal #alidity $% death sentence -he c$urt reas$ned that penal la& d$es n$t attractArt 19 1 $% the +$nstituti$n % the impact $% the la& $n nay $% the ri(hts under Art 19 1 ismerely incidental, indirect, rem$te $r c$llateral, Art 19 &$uld n$t be a#ailable %$r testin( its#alidity

Acc$rdin(ly, the c$urt held that s 302, P+ %$r its #alidity &$uld n$t re


23/75

8umman Eahn &as %acin( the (all$&s $n bein( sentenced t$ death %$r ha#in( brutally rapedand stran(ulated t$ death a si year $ld (irl named )akina -he c$n#ict challen(ed the deathsentence and its c$nstituti$nality t &as ar(ued that death penalty is n$t $nly $utm$ded,

unreas$nable, cruel and unusual punishment but als$ de%ies the di(nity $% the indi#idual andthe issue needs rec$nsiderati$n &hich stands like sentinel $#er human misery, de(radati$nand $ppressi$n -he )upreme +$urt &hile end$rsin( its earlier #ie& as t$ the c$nstituti$nality$% death sentence held that the %ailure t$ imp$se death sentence is such (ra#e cases here it is acrime a(ainst the s$ciety, particularly in case $% murders &ith e treme brutality &ill brin( t$nau(ht the sentence $% death penalty pr$#ided by s 302 $% P+ -he $nly punishment &hichthe c$n#ict deser#es %$r ha#in( c$mmitted the reprehensible and (rues$me murder $% theinn$cent child t$ satis%y his lust is n$thin( but death as a measure $% s$cial necessity and als$a means $% deterrin( $ther p$tential $%%enders

-he )upreme +$urt in earlier case anchan )in(h # )tate Pun'ab upheld the c$nstituti$nal#alidity $% imp$siti$n $% death sentence as an alternati#e t$ li%e impris$nment and it &as%urther that it is n$t #i$late $% Arts 1? and 21 $% the +$nstituti$n +hie% 8ustice +handrachude pressin( the #ie& $% the three 8ud(es $% the )upreme +$urt in )her )in(h # )tate $%Pun'abheld that death sentence is c$nstituti$nally #alid and permissible &ithin the c$nstrains$% the rule in achan )in(h supra -his has t$ be accepted as the la& $% the land -hedecisi$ns rendered by this c$urt a%ter %ull debate has t$ be accepted &ith$ut mentalreser#ati$n until they are set aside

-he challen(e t$uchin( the c$nstituti$nality $% the death sentence als$ sur%aced in -ri#eniben# )tate $% "u'arat and in Allauddin=s case and the )upreme +$urt asserted a%%irmati#ely thatthe +$nstituti$n d$es n$t pr$hibit the death penalty

t is in the rare cases, the le(islature in its &isd$m, c$nsidered it necessary imp$se thee treme punishment $% death t$ deter $thers and t$ pr$tect the s$ciety -he ch$ice $% sentenceis le%t &ith the rider that the 'ud(e may #isit the c$n#ict &ith e treme punishment pr$#idedthere e ist special reas$ns %$r d$in( s$ -he pr$#isi$n $% Art 302, P+ is c$nsistent &ith the+$nstituti$nal Pr$#isi$n $% Art 21 &hich en'$ins that pers$nal liberty $r li%e $% an indi#idualshall n$t be taken e cept acc$rdin( t$ the pr$cedure established by la& Whether death

penalty #i$lates Art 1?, 19, and 21 $% the +$nstituti$n came up %$r c$nsiderati$n be%$re the)upreme +$urt in achan )in(h # )tate $% Pun'ab and the c$urt ans&ered the c$ntenti$n inthe ne(ati#e

n the %ace $% the statut$ry pr$#isi$n in cl 3 $% s 35? $% the +r P+ re


24/75

sensiti#eness in the ch$ice $% sentence t &as held in Allauddin Mian # )tate $% ihar thatspecial reas$n in s 35?, +r P+ sh$uld be su%%icient sa%e (uard a(ainst arbitrary imp$siti$n $% e treme penalty Where a sentence $% se#erity is imp$sed, it is imperati#e that the 8ud(esh$uld indicate the basis up$n &hich he c$nsidered the sentence $% that ma(nitude 'usti%ied

B http:DDca%edissensus c$mD201?D01D01Dindian*'udiciary*and*the*issue*$%*capital*punishmentD

. ndian #diciar and the ss#e o% -apita! P#nish ent


25/75

by Café Dissensus on January 1, 2014(y Su ato Bhadra

?et us begin this brief deliberation with some admitted facts and information in respect to the issue of

death penalty in 'ndia.

1. ?i e most of countries including countries where death penalty as a form of 6udicial punishment is

abolished) in 'ndia the retentionist4s discourse retributive and deterrent value concept public

conscience and demand cultural diversity etc.) continues to dominate public opinion.

2. (eing emboldened by this public perception the legislative wisdom @ ruling and opposition ali e @

has expanded the scope of capital punishment either by amending laws or by enacting new laws to

provide this punishment in certain cases of rape and other 3serious crimes li e 3terrorism4 etc.

>. ,he culture of vengeance and violence is prevailing in 'ndian society and the 'ndian 5tate continues

to be very violent and aggressive. rchaic concept of ;oman law @ life for life eye for eye @ has a

strong grip over the people of 'ndia. Aence despite the historical fact that 'ndia has a long tradition

of ahimsa in a religion li e (uddhism and despite the position of the =ather of the 'ndian nation

! >) of #r.&.# as amended in 17 >.

!udicial structure

'n matter of murder or other serious crimes if the death penalty is awarded by the trial court/sessions

court then even if the convict refuses or fails to appeal against this sentence the appeal will

mandatorily be made by the 5tate before the division bench of Aigh #ourt of the concerned province

as stipulated in section >CC of #riminal &rocedure #ode. =inal appeal court is the 5upreme #ourt of


26/75

'ndia where appeal has to be made for the convicted in the form of 5pecial ?eave &etition G5?&) for

full hearing. ,here is one exception to this rule: if the lower court declares the accused persons as not

guilty and in event of appeal if the Aigh #ourt reversed the 6udgment of the lower court then there

will be an automatic appeal by the 5tate to the 5upreme #ourt as stipulated in section > 7.

gainst the pronouncements by the apex court of capital punishment the convict or the person on

death row is constitutionally entitled to ma e an appeal for mercy to the &resident or to the Bovernor

as the case may beE upon re6ection the convict has a last legal right to as for 6udicial review of the

re6ection of clemency petition. (ut this was shamelessly denied to


27/75

have done save in the rarest of rare cases when the alternative option is unFuestionably foreclosed.

G 17"0) 2 5## at !1).

nd till today this remains the unchanged 6udicial position in 'ndia. ,his 6udgment undoubtedly

affirmed again that the death penalty was the exception not the rule. 5ubseFuently the 5upreme

#ourt in another famous case (achhi ingh v. tate of #un'ab G) 17">)> 5## 0K directs the trial

court to draw up a balance sheet of the aggravating and mitigating circumstances and opt for the

maximum punishment and considering all these factors if the 6udge then finds no other alternative

then he can hand down the death penalty.

$roblems relating to application of %rarest of rare cases

8ustice &. +. (hagwati in his long erudite dissenting 6udgment has refuted all the arguments

advanced by his learned co-6udges and this 6udgment is still the silver lining in 'ndian 8udiciary.

Auman ;ights movement in 'ndia has 6ustifiably Fuestioned such criteria for pronouncing death

sentence. Aow to 6udge rarest of rare cases L 'n terms of plan and conspiracyL *r in terms of

execution of the capital crimeL *r in terms of method of destruction of evidence of the crimeL ,here

is no definition no explanation to this end.

$arious studies reveal that even the exercise of balancing the aggravating and mitigating

circumstances is rarely performed.

,hird as no uniform criteria could be laid down and as no ob6ective evaluation of legislative

thresholds exists the Fuestion of death penalty is not free from the sub6ective vagaries of the 6udges.

*ne erudite 6udge


28/75

Hxtensive study by mnesty 'nternational and &D#? ,amil +adu) on supreme #ourt 6udgments in

death cases between 17!0- 200C has shown conclusively that it is the 6udges4 sub6ective discretion

that eventually decides the fate of an accused. ,hey never consider the issue of death penalty

as human rights issue beyond the pale of law save and except few 6udges li e (hagwati 9rishna

'yer .&. 5hah). s a result we often find that it is largely cases involving the poor and the down-

trodden who are victims of class bias which culminate in an imposition of death penalty. Aere one

hardly finds a rich or affluent person going to the gallows. ,herefore the death penalty as it is used

now is discriminatory. 't stri es against the disadvantaged section of the society showing its arbitrary

and capricious nature @ thus rendering it unconstitutional. +ot to mention how many innocent were

victims of 'ndian 6udicial murders. ,he former &resident of 'ndia &8 9alam suggested the

Bovernment of 'ndia to launch an open debate over the issue of retention of death penalty in 'ndian

statute boo s. 't went unheeded. Ae wrote in his *urning #oints Je all are the creatures of Bod. '

am not sure a human system or a human being is competent to ta e away a life based on artificial and

created evidence 1> ) Ais observations were based on his study of social-economic bac ground of

the convicts whose clemency petitions were pending before him.


29/75

7 https:DDle kh$' &$rdpress c$mD2015D0;D22Dc$nstituti$nal*#alidity*$%*death*penaltyD

. -onstit#tiona! a!idit o% +eath Pena!t-he ndian penal c$de pr$#ides capital punishment %$r hein$us crimes -here are manysch$lars s$me $% them are in %a#$ur $% the death penalty and s$me are a(ainst the death

penalty n many c$untries there has been a demand %$r ab$liti$n $% the death penalty and ins$me this demand has been accepted and death penalty has been ab$lished n ndia t$$, thereare many s$cial &$rkers includin( la&yer and 'ud(es &h$ ha#e #$iced this demand

n this essay &ill e plain the death penalty, secti$ns $% P+ in respects $% death penalty,death penalty sh$uld be banned $r n$t!, reas$ns %$r ab$liti$n c$nstituti$nal #alidity $% death

penalty etc

.-4 /U+- .:* +apital punishment $r the death penalty is a le(al pr$cess &hereby a pers$n is put t$ death by the state as a punishment %$r a crime -he 'udicial decree thats$me$ne be punished in this manner is a death sentence, &hile the actual pr$cess $% killin(the pers$n is an e ecuti$n +rimes that can result in a death penalty are kn$&n as capitalcrimes $r capital $%%ences n ndia death penalty is discreti$nary rather than mandat$ry in allcapital $%%ences e cept in case $% murder )ecti$n 303 $% P+ Punishment %$r murder by li%e*c$n#ict Wh$e#er, bein( under sentence $% Iimpris$nment %$r li%eJ, c$mmits murder, shall be

punished &ith death

6-he care $% human li%e and happiness, and n$t their destructi$n, is the %irst and $nly $b'ect$% ($$d ($#ernment *-h$mas 8e%%ers$n4$nald +hapman, a pr$minent West Palm each la&yer and (raduate $% -he Uni#ersity $%

$&a +$lle(e $% Fa&, e pressed (reat $pp$siti$n t$&ards the death penalty &hen inter#ie&ed by 8erry 8$lly Mr +hapman has de%ended numer$us clients $n trial %$r %irst*de(ree murder and %ace the p$ssibility $% recei#in( death When asked i% he belie#ed there &as an e


30/75

ab$lish because it #i$lates article 19 $% c$nstituti$n $% ndia +riminals als$ ha#e a ri(ht t$li%e An$ther thin( is that it (i#es a chance t$ re%$rm criminals

/CA-> PC.AF- )> UF/ C A..C/ 4 . -! : L

/eath penalty sh$uld be ab$lished th$u(h it is le(al but it #i$lates article 19 ri(ht t$ li%e $% ndian c$nstituti$n Eillin( a pers$n is &r$n( but killin( an$ther pers$n in respect $%

punishment %$r that murder is als$ &r$n(, s$ &e can say that t&$ &r$n( cann$t c$n#ert a&r$n( int$ a ri(ht Many pe$ple ha#e a ar(ument that accused $% hein$us crime d$n=t ha#e ari(ht t$ li#e, s$ they sh$uld be han(ed till death but my $pini$n is that they sh$uld (et achance t$ re%$rm % criminal (et death penalty %$r his crime then h$& he can re%$rm!/eath penalty is in practice c$ntinu$usly then als$ crimes are increasin( rapidly +riminalsd$n=t ha#e %ear $% death s$ there sh$uld be any $ther punishment %$r them

+ .)- -U- .AF HAF / - ->C /CA-> PC.AF- :* -he c$nstituti$nal #alidity$% the death penalty &as challen(ed %r$m time t$ time in numer$us cases startin( %r$m8a(m$han )in(h # )tate $% U P &here the )+ re'ected the ar(ument that the death penalty isthe #i$lati$n $% the 6ri(ht t$ li%e &hich is (uaranteed under article 19 $% the ndianc$nstituti$n n an$ther case 4a'endra Prasad # )tate $% UP, 8ustice Erishna yer hasempathetically stressed that death penalty is #i$lati#e $% articles 1?, 19 and 21 ut a year later in the landmark case $% achan )in(h # )tate $% Pun'ab, by a ma'$rity $% ? t$ 1

ha(&ati 8 dissentin( the )upreme +$urt $#erruled its earlier decisi$n in 4a'endra Prasadt e pressed the #ie& that death penalty, as an alternati#e punishment %$r murder is n$t

unreas$nable and hence n$t #i$lati#e $% articles 1?, 19 and 21 $% the +$nstituti$n $% ndia, because the 6public $rder c$ntemplated by clauses 2 t$ ? $% Article 19 is di%%erent %r$m6la& and $rder and als$ enunciated the principle $% a&ardin( death penalty $nly in the

rarest $% rare cases= -he )upreme +$urt in Machhi )in(h # )tate $% Pun'ab laid d$&n the br$ad $utlines $% the circumstances &hen death sentence sh$uld be imp$sed)imilarly in #ari$us $ther cases the )upreme +$urt has (i#en its #ie&s $n death penalty and$n its c$nstituti$nal #alidity ut the punishment $% death penalty is still used in ndia, s$metime back the death penalty &as (i#en t$ M$hammad A'mal Easab -he Pakistani (unmanc$n#icted in 200; Mumbai attacks &as sentenced t$ death by han(in( and a%ter a l$n(

discussi$n, p$litics and debate &as %inally han(ed $n 21 .$#ember 2012 .e t in the r$& isA%@al "uru, c$n#icted in 2001 Parliamentary attacks &as als$ han(ed a%ter a hu(e p$liticaldiscussi$n $n 9 ebruary 2013 -he ne t c$n#ict in the death r$& is /e#endra Pal )in(h

hullar, c$n#ict $% 1993 car b$mbin( &ill be han(ed in the c$min( days as his mercy petiti$n&as re'ected by the )upreme +$urt by h$ldin( that in terr$r crime cases pleas $% delay ine ecuti$n $% death sentence cann$t be a miti(atin( %act$r

4CA) . 4 A F - . /CA-> PC.AF- : L -he issue $% death penalty has been

debated, discussed, studied %r$m a pr$l$n(ed time but till n$& n$ c$nclusi$n can be dra&nab$ut the retenti$n $r ab$lishment $% the pr$#isi$n /eath penalty has been a m$de $%


31/75

punishment %r$m time immem$rial &hich is practiced %$r the eliminati$n $% criminals and isused as the punishment %$r the hein$us crimes ndia is $ne $% the 7; retenti$nist c$untries&hich ha#e retained death penalty $n the (r$und that it &ill be a&arded $nly in the rarest $% rare cases= and %$r special reas$n= -h$u(h &hat c$nstitutes rarest $% rare case= $r special

reas$ns= has n$t been ans&ered either by the le(islature $r by the supreme c$urt Acc$rdin(t$ my $pini$n death penalty sh$uld ab$lish, because it #i$lates article 19 $% c$nstituti$n $%

ndia +riminals als$ ha#e ri(ht t$ li%e -hey sh$uld (et a chance t$ re%$rm t is a(ainsthuman ri(hts, &e all are e


32/75

; http:DD&&& le(alser#iceindia c$mDarticlesDdsen htm; /eath Penalty/eath penalty has been a m$de $% punishment since time immem$rial -he ar(uments %$r anda(ainst has n$t chan(ed much $#er the years At this p$int $% time &hen the issue I&hether

capital punishment must be ab$lished $r n$tJ is still ra(in(, it &ill be appr$priate t$ remind$ursel#es as t$ h$& the le(islatures and the ape +$urt ha#e dealt &ith this issue e#ery time ithas c$me up be%$re them

/eath )entence Under /i%%erent )tatutesndian +riminal 'urisprudence is based $n a c$mbinati$n $% deterrent and re%$rmati#e the$ries

$% punishment While the punishments are t$ be imp$sed t$ create deter am$n(st the$%%enders, the $%%enders are als$ t$ be (i#en $pp$rtunity %$r re%$rmati$n -he c$urts &hileimp$sin( death sentence has t$ rec$rd its special reas$ns as t$ &hy the c$urt came t$ thec$nclusi$n

+apital Punishment is laid d$&n as a penalty in se#eral le(islati#e Acts, such as:ndian Penal +$de, 1;B0

Under the P+ ele#en $%%ences are punishable by death $r e *Murder, Abetment $% suicide by a min$r $r insane pers$n, /ac$ity &ith murder etc

Army Act, 1950, the Air $rce Act, 1950 and the .a#y Act 195BA death sentence may als$ be imp$sed %$r a number $% $%%ences c$mmitted by members $%the armed %$rces

-he +$mmissi$n $% )ati Pre#enti$n Act, 19;7Prescribes punishment by death %$r any pers$n &h$ either directly $r indirectly abets thec$mmissi$n $% sati imm$lati$n $% a &id$&

-he .arc$tics, /ru(s and Psych$t$pic )ubstances Amendment Act, 19;; ntr$duced thedeath penalty as a punishment %$r %inancin(, $r en(a(in( in the pr$ducti$n, manu%acture $rsale $% narc$tics $r psych$t$pic substance $% speci%ied


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)e#eral le(islati#e attempts t$ ab$lish the death penalty in ndia ha#e %ailed e%$rendependence a pri#ate ill &as intr$duced in the 1931 Fe(islati#e Assembly t$ ab$lish the

death penalty %$r penal c$de $%%ences -he ritish >$me )ecretary at the time h$&e#erre'ected the m$ti$n

-he "$#ernment $% independent ndia re'ected a similar ill intr$duced in the %irst F$k)abha C%%$rts &ere als$ made in 4a'ya )abha t$ m$#e res$luti$n %$r ab$liti$n $% deathsentence in 195; and 19B2 but &ere &ithdra&n a%ter s$me debate

-he Fa& +$mmissi$n in its 4ep$rt presented t$ the "$#ernment in 19B7 and t$ the F$k)abha in 1971 c$ncluded that the death penalty sh$uld be retained and that the e ecuti#e

President sh$uld c$ntinue t$ p$ssess p$&ers $% mercy

Pr$cedure When /eath sentence is mp$sed)pecial 4eas$ns-he c$urt has t$ rec$rd special reas$ns %$r imp$sin( death sentence

+$n%irmati$n by >i(h +$urt+$urt $% sessi$n a%ter passin( a death sentence shall submit the pr$ceedin(s t$ the >i(h+$urt, and the sentence shall n$t be e ecuted unless it is c$n%irmed by the >i(h +$urt -hec$urt passin( the sentence shall then c$mmit the c$n#icted pers$n t$ 'ail cust$dy under a&arrant

Cni(h +$urt &hile dealin( &ith c$n%irmati$n may $rder %urther ini(h +$urt, shall &hen such c$urt c$nsists $% t&$ $r m$re 'ud(es , be made, passed and si(ned by at least t&$ $% them

+$py $% rder )ent t$ +$urt $% )essi$nn cases submitted by the c$urt $% sessi$n t$ the >i(h +$urt %$r the c$n%irmati$n $% a

sentence $% death, the pr$per $%%icer $% the >i(h +$urt shall ,&ith$ut delay, a%ter the $rder $%c$n%irmati$n $r $ther $rder has been made by the >i(h +$urt, send a c$py $% the $rder under

the seal $% the >i(h +$urt and attested &ith his $%%icial si(nature, t$ the c$urt $% sessi$n


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Where a pers$n is sentenced t$ death and an appeal %r$m its 'ud(ment lies the e ecuti$n $%the sentence &ill be p$stp$ned until the peri$d all$&ed %$r pre%errin( such appeal hase pired, $r i% an appeal is pre%erred &ithin that peri$d, until such appeal is disp$sed $%

P$stp$nement $% /eath )entence $n Pre(nant W$man% a &$man sentenced t$ death is %$und t$ be pre(nant, the >i(h +$urt shall $rder the

e ecuti$n $% the sentence t$ be p$stp$ned and may, i% it thinks %it, c$mmute the sentence t$impris$nment %$r li%e

M$de $% C ecuti$n-he issue re(ardin( the c$nstituti$nality $% han(in( as a m$de $% e ecuti$n came up be%$rethe )upreme +$urt in /eena # Uni$n $% ndia I1993J ? )++ B?5Q , th$u(h the c$urt

asserted that it &as a 'udicial %uncti$n t$ pr$be int$ the reas$nableness $% a m$de $% punishment ,it re%used t$ h$ld the m$de $% han(in( as bein( #i$lati#e $% Article 21 $% thec$nstituti$n

-his issue &as $nce a(ain raised in )hashi .ayar 1992 )++ I+4 J 2?J the c$urt held thatsince the issue had already been c$nsidered in /eena, there &as n$ ($$d reas$n t$ take adi%%erent #ie&

An$ther issue &hich deser#es attenti$n is public han(in( as a m$de $% e ecuti$n -he issue

$% public han(in( came t$ the )upreme +$urt thr$u(h a &rit petiti$n Att$rney "eneral #Fachma /e#i 19;9 )++ I+4 J ?13Q in this petiti$n the $rder $% 4a'asthan >i(h +$urtre(ardin( the e ecuti$n $% the petiti$ner by public han(in( under the rele#ant rules $% 8ailmanual -he ) + held that public han(in( e#en i% permitted under the rules &$uld #i$lateArticle 21 $% the +$nstituti$n

Fe(ality $% /eath )entencen the case $% 8a(m$han HDs )tate $% U P 1973 )++ I+4 J 1B9Qthe


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c$ncern %$r the di(nity $% human li%e p$stulates resistance t$ takin( a li%e thr$u(h la&Ssinstrumentality -hat $u(ht t$ be d$ne sa#e in the rarest $% rare cases &hen the alternati#e$pti$n is un$&e#er the ape c$urt laid d$&n a %e& principles &hich&ere t$ be kept in mind &hile decidin( the


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distributi$nG2 % the accused is y$un( $r $ld, he shall n$t be sentenced t$ deathG3 -he pr$bability that the accused &$uld n$t c$mmit criminal acts $% #i$lence as &$uldc$nstitute a c$ntinuin( threat t$ s$cietyG

? -he pr$bability that the accused can be re%$rmed and rehabilitated G-he state shall bye#idence pr$#e that the accused d$es n$t satis%y the c$nditi$ns 3 and ? ab$#eG5 -hat in the %acts and circumstances $% the case, the accused belie#ed that he &as m$rally

'usti%ied in c$mmittin( the $%%enceGB -hat the accused acted under the duress $% d$minati$n $% an$ther pers$nG7 -hat the c$nditi$n $% the accused sh$&ed that he &as mentally de%ecti#e and that the saidde%ect impaired his capacity t$ appreciate the criminality $% his c$nduct

+$n#icti$n $% a min$r -he $rdinary sentencin( applicable t$ adults &ill n$ l$n(er be applicable in the case $%

'u#eniles -he 8u#enile 8ustice Act de%ines the term 'u#enile as a b$y &h$ has n$t attained thea(e $% 1B years, $r a (irl &h$ has n$t attained the a(e $% 1; years As per sec 22 $% the saidAct, n$ delin


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A brie% analysis $% the cases decided by the )+ 4e(ardin( the


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9 https:DD&&& linkedin c$mDpulseDcapital*punishment*ethical*manish*k*salian

9 +S &AP+/A0 PU1+S2M31/ 3/2+&A04

#apital punishment death penalty or execution is punishment by death.

,he sentence that someone be punished in this manner is a death sentence.

#rimes that can result in a death penalty are nown as capital crimes or

capital offences. ,he term capital originates from the ?atin capitalis

literally Oregarding the headO referring to execution by beheading).

#apital punishment has in the past been practiced by most

societies as a punishment for criminals and political or religious

dissidents. Aistorically the carrying out of the death sentence was often

accompanied by torture and executions were most often public.

>C countries actively practice capital punishment 10> countries have

completely abolished it de 6ure for all crimes C have abolished it for

ordinary crimes only while maintaining it for special circumstances such

as war crimes) and !0 have abolished it de facto have not used it for at

least ten years and/or are under moratorium).

+early all countries in the world prohibit the execution of individuals

who were under the age of 1" at the time of their crimesE since 2007 only

'ran 5audi rabia and 5udan have carried out such executions. Hxecutions

of this ind are prohibited under international law.

#apital punishment is a matter of active controversy in various

countries and states and positions can vary within a single political


39/75

ideology or cultural region. 'n the Huropean Dnion member states rticle2

of the #harter of =undamental ;ights of the Huropean Dnion prohibits the

use of capital punishment. ,he #ouncil of Hurope which has member

states also prohibits the use of the death penalty by its members.

,he Dnited +ations Beneral ssembly has adopted in 200 200"

2010 2012 and 201 non-binding resolutions calling for a global

moratorium on executions with a view to eventual abolition. lthough

many nations have abolished capital punishment over C0P of the worldQs

population live in countries where executions ta e place such as #hina

'ndia the Dnited 5tates and 'ndonesia the four most-populous countries in

the world which continue to apply the death penalty although in 'ndia and

in many D5 states it is rarely employed). Hach of these four nations has

consistently voted against the Beneral ssembly resolutions.

2istor5

,he first established death penalty laws date as far bac as the

Highteenth #entury (.#. in the #ode of 9ing Aammaurabi of (abylon

which codified the death penalty for 2! different crimes. ,he death penalty

was also part of the =ourteenth #entury (.#.Qs Aittite #odeE in the 5eventh

#entury (.#.Qs %raconian #ode of thens which made death the only

punishment for all crimesE and in the =ifth #entury (.#.Qs ;oman ?aw of

the ,welve ,ablets. %eath sentences were carried out by such means as

crucifixion drowning beating to death burning alive and impalement.

'n the ,enth #entury .%. hanging became the usual method of

execution in (ritain. 'n the following century Jilliam the #onFueror

would not allow persons to be hanged or otherwise executed for any crime


40/75

except in times of war. ,his trend would not last for in the 5ixteenth

#entury under the reign of Aenry $''' as many as 2 000 people are

estimated to have been executed. 5ome common methods of execution at

that time were boiling burning at the sta e hanging beheading and

drawing and Fuartering. Hxecutions were carried out for such capital

offenses as marrying a 8ew not confessing to a crime and treason.

,he number of capital crimes in (ritain continued to rise throughout

the next two centuries. (y the 1 00s 222 crimes were punishable by death

in (ritain including stealing cutting down a tree and robbing a rabbit

warren. (ecause of the severity of the death penalty many 6uries would not

convict defendants if the offense was not serious. ,his lead to reforms of

(ritainQs death penalty. =rom 1"2> to 1"> the death penalty was

eliminated for over 100 of the 222 crimes punishable by death.

a% 1ineteenth &entur5 'n the early to mid-+ineteenth #entury the abolitionist movement

gained momentum in the northeast. 'n the early part of the century many

states reduced the number of their capital crimes and built state

penitentiaries. 'n 1"> &ennsylvania became the first state to move

executions away from the public eye and carrying them out in correctional

facilities. 'n 1" C


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offenses especially for offenses committed by slaves. 'n 1">" in an effort to

ma e the death penalty more palatable to the public some states began

passing laws against mandatory death sentencing instead enacting

discretionary death penalty statutes. ,he 1">" enactment of discretionary

death penalty statutes in ,ennessee and later in labama were seen as a

great reform. ,his introduction of sentencing discretion in the capital

process was perceived as a victory for abolitionists because prior to the

enactment of these statutes all states mandated the death penalty for

anyone convicted of a capital crime regardless of circumstances. Jith the

exception of a small number of rarely committed crimes in a few

6urisdictions all mandatory capital punishment laws had been abolished by

17C>.

%uring the #ivil Jar opposition to the death penalty waned as more

attention was given to the anti-slavery movement. fter the war new

developments in the means of executions emerged. ,he electric chair wasintroduced at the end of the century. +ew or built the first electric chair

in 1""" and in 1"70 executed Jilliam 9emmler. 5oon other states

adopted this execution method.

b% 3arl5 and Mid6/7entieth &entur5

lthough some states abolished the death penalty in the mid-+ineteenth #entury it was actually the first half of the ,wentieth #entury

that mar ed the beginning of the O&rogressive &eriodO of reform in the

Dnited 5tates. =rom 170 to 171 six states completely outlawed the death

penalty and three limited it to the rarely committed crimes of treason and

first degree murder of a law enforcement official. Aowever this reform was

short-lived. ,here was a frenIied atmosphere in the D.5. as citiIens beganto panic about the threat of revolution in the wa e of the ;ussian


42/75

;evolution. 'n addition the D.5. had 6ust entered Jorld Jar ' and there

were intense class conflicts as socialists mounted the first serious challenge

to capitalism. s a result five of the six abolitionist states reinstated their

death penalty by 1720.

'n 172 the use of cyanide gas was introduced as +evada sought a more

humane way of executing its inmates. Bee 8on was the first person executed

by lethal gas. ,he state tried to pump cyanide gas into 8onQs cell while he

slept but this proved impossible and the gas chamber was constructed.

=rom the 1720s to the 17 0s there was a resurgence in the use of the death

penalty. ,his was due in part to the writings of criminologists who argued

that the death penalty was a necessary social measure. 'n the Dnited 5tates

mericans were suffering through &rohibition and the Breat %epression.

,here were more executions in the 17>0s than in any other decade in

merican history an average of 1C per year.

'n the 17!0s public sentiment began to turn away from capital

punishment.


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,he 5upreme #ourt in Mithu vs State of Punjab struc down 5ection

>0> of the 'ndian &enal #ode which provided for a mandatory death

sentence for offenders serving a life sentence. ,he number of people

executed in 'ndia since independence in 17 is a matter of disputeE official

government statistics claim that only !2 people had been executed since

independence. Aowever research by the &eopleQs Dnion for #ivil ?iberties

indicates that the actual number of executions is in fact much higher as

they located records of 1 22 executions in the decade from 17!> to 17C>

alone. 'n %ecember 200 'ndia voted against a Dnited +ations Beneral

ssembly resolution calling for a moratorium on the death penalty. 'n

+ovember 2012 'ndia again upheld its stance on capital punishment by

voting against the D+ Beneral ssembly draft resolution see ing to ban

death penalty.

'n colonial 'ndia death was prescribed as one of the punishments in the'ndian &enal #ode 1"C0 ') which listed a number of capital crimes. 't

remained in effect after independence in 17 .

Dnder Article 21 of the onstitution of !ndia" no person can be

deprived of his life except according to procedure established by law.

,he 5upreme #ourt of 'ndia ruled in 17"> that the death penaltyshould be imposed only in Othe rarest of rare cases.O Jhile stating that

honour illings fall within the Orarest of the rareO category 5upreme #ourt

has recommended the death penalty be extended to those found guilty of

committing Ohonour illingsO which deserve to be a capital crime. ,he

5upreme #ourt also recommended death sentences to be imposed on police

officials who commit police brutality in the form of encounter illings.

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n appeal filed in 201> by $i ram 5ingh and another person facing the

death sentence Fuestioned the constitutional validity of 5ection >C of the

'ndian &enal #ode

1. a% &a8ital Punishment in 9arious 0egislation in +ndia

#apital punishment is prescribed as one of the punishments in various of

the 'ndian &enal #ode 1"C0 ,he rms ct 17!7 ,he +arcotic %rugs and

&sychotropic substance ct 17"! and ,he 5cheduled #aste and 5cheduled

,ribe &revention of trocities) ct ,he #ommission of 5ati &revention)

ct 17" ,he ir =orce ct 17!0 ,he rmy ct 17!0 and ,he +avy ct

17! . 'n the &revention of ,errorism ct 2002 also there was a provision

for death penalty for causing death of persons using bombs dynamite or

other explosive substances in order to threaten the unity and integrity of

'ndia or to stri e terror in the people. 't is also interesting to note that

under the rms ct +%&5 ct and the 5cheduled #aste and 5cheduled

,ribe ct #apital &unishment is the only punishment for the offence

covered by those sections thus leaving no room for the 6udiciary to exercise

its discretion. 't is doubtful whether these provisions can stand the test of

the constitutional validity in the light of the decision in 0> of the 'ndian &enal #ode was

struc down as violation of Artic!e 21 and 1 of the -onstit#tion of 'ndia

as the offence under the 5ection was punishable to exercise its directionand thus resulted in an unfair un6ust and unreasonable procedure

depriving a person of his life.

1. b% &onstitution al 9alidit5 of &a8ital Punishment

Artic!e 21 of the -onstit#tion of 'ndia provides &rotection of ?ife and

&ersonal ?iberty to every people. nd the deprivation of life of anyone is

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45/75

unconstitutional under Artic!e 21. 't is also said that +o person shall be

deprived of his life or personal liberty except according to procedure

established by lawE it means if there is a procedure than state can deprived

a person from his life.

'n many countries there has been accepted and death penalty has been

abolished. 'n 'ndia too there are many social wor ers including !a' er s

and 8udges who have voiced this demand. &rominent amongst them are

(hagwati 8. and 9rishna 'yer 8. both former 6udges of 5upreme #ourt

9rishna 'yer 8. $ery recently while addressing a Auman right organiIation

strongly expressed himself in favour of the abolition of death penalty.

8ustice .9. Banguly of the 5upreme #ourt has termed the award of death

sentence as barbaric anti-life undemocratic and irresponsible which is

legal in the prevailing 6udicial system. ,he doctrine of the crime falling in

the 3rarest of rare4 category in awarding the death penalty was a grey areaas its interpretation depended on individual 6udges. Ae cautioned that

before giving death penalty a 6udge must be extremely careful and weigh

mitigating and aggravating circumstances.

5o far as constitutionality is concerned it has to be considered in the light of

the provision to ta e away the life of a person through a procedureestablished by law. ,his means that through there is a procedure establish

by law state can deprive a person of his life. ,hrough 6udicial

pronouncements this procedure is interpreted to mean a fair 6ust and

reasonable one. ,hough the constitutional validity of the death punishment

was challenged as violative of Artic!e 17 and 21 of the -onstit#tion of

'ndia because it didn4t provide any procedure to the #ourt upheld the validity of death sentence. 5ince the procedure by which the life is ta en is

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fair 6ust and reasonable. ,he 6udge are given ample power to exercise their

discretion to award death penalty as against imprisonment for life.

,he Fuestion of constitutional validity of death penalty has been raised

before the 5upreme #ourt of 'ndia more than once. 'n case of 8agmohan

5ingh v. 5tate of Dttar &radesh the constitutional validity of death penalty

was upheld by the 5upreme #ourt by a unanimous decision of the five

6udges composing the (ench.

'n case of ;a6ender &rasad v. 5tate of Dttar &radesh 9rishna 'yer 8. said

that death penalty directly affects the life of the people guaranteed

under Artic!e 21 of the -onstit#tion . (ut it has been provided by law and

there is nothing li e due law in Artic!e 21. ,herefore it is valid. Ae further

said that to impose death penalty the two things must be reFuired:

R ,he special reasons should be recorded for imposing death penalty in a

case.R ,he death penalty must be imposed only in extraordinary circumstances.

,he Fuestion was again considered by a five 6udges bench in case of (achan

5ingh v. 5tate of &un6ab particularly in view of certain observations of

9rishna 'yer 8. 'n (achan 5ingh case 6udges considered the social ethical

and even spiritual aspect of death penalty while upholding theconstitutional validity thereof.

't is to be noted that fter the award of the death sentence by a sessions

trial) court the sentence must be confirmed by a Hi h -o#rt to ma e it

final. *nce confirmed the condemned convict has the option of appealing

to the 5upreme #ourt. 'f this is not possible or if the 5upreme #ourt turnsdown the appeal or refuses to hear the petition the condemned person can

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submit a 3mercy petition4 to the &resident of 'ndia and the Bovernor of the

5tate.

Po7er of President

,he present day constitutional clemency powers of the &resident

and Bovernors originate from the Bovernment of 'ndia ct 17>! but unli e

the Bovernor-Beneral the &resident and Bovernors in independent 'ndia

do not have any prerogative clemency powers.

&onstitution al Po7er

Article 72(1) of the Constitution of India states:

,he &resident shall have the power to grant pardons reprieves respites or

remissions of punishment or to suspend remit or commute the sentence of

any person convicted of any offence

a) in all cases where the punishment or sentence is by a #ourt C! !) of the #riminal &rocedure #ode 1"7" prior to its

amendment in 17!! reFuired a court sentencing a person convicted of an

offence punishable with death to a punishment other than death to state the

reasons why it was not awarding death sentence. ,he amendment deleted

this provision but there was no indication in either the #r.&.# or the 'ndian

&enal #ode 1"C0 ') as to which cases called for life imprisonment and

which the alternative @ death penalty. ,he ?aw #ommission of 'ndia in

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17C undertoo a study of death penalty and submitted its >!th ;eport to

the government. 't 6ustified its conclusion for retention of death penalty

thus:

Aaving regardM.to the conditions in 'ndia to the variety of 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 6uncture 'ndia cannot ris the experiment of

abolition of capital punishment.

&a8ital :;en,es

Se,tions Under +P& and other la7s

1204 o% P-4ein a part to a cri ina! conspirac toco it a capita! o5ense

121 o% P-

6a in , or atte ptin to 'a e 'ar, or

a7ettin 'a in o% 'ar, a ainst the

8o*ern ent o% ndia

132 o% P-

A7ettin a #tin in the ar ed %orces 9i% a

#tin occ#rs as a res#!t), en a in in #tin

1 & o% P-

8i*in or %a7ricatin %a!se e*idence 'ith intent

to proc#re a con*iction o% a capita! o5ense


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302, 303 o% P- ;#rder

30 o% P-

A7ettin the s#icide o% a inor, enta!! i!!

person, or intoxicated person

Part Section & o%

Pre*ention o% Sati

Act Aidin or a7ettin an act o% Sati

3 &A o% P-

Kidnappin , in the co#rse o% 'hich the *icti

'as he!d %or ranso or other coerci*e

p#rposes.

31A o% the Narcotic

+r# s and

Ps chotropic

S#7stances Act +r# traa'

9A end ent) Act,

Rape i% the perpetrator in?icts in@#ries that

res#!t in the *icti s death or incapacitation in

a persistent *e etati*e state, or is a repeat


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2013 o5ender.

4o 7a Prohi7ition

98#@arat

A end ent) 4i!!,

200

n 8#@arat on! " ;an#%act#re and sa!e o%

poisoned a!coho! 'hich res#!ts in death9s).

3


51/75

the execution of the death sentence by hanging or by being shot to death.

,he rmy ct 17!0 and the +avy ct 17! also provide for the similar

provisions as in ,he ir =orce ct 17!0.

)e,ent )arest of )are &ases of &a8ital Punishment

Dhananjo5 &hatterjee v. State of =est Bengal > ors . ,he

appellant %hanan6oy #hatter6ee was found guilty of offences punishable

under 5ection > C >02 and >"0 of the 'ndian &enal #ode by 6udgment and

was awarded death sentence by the session 6udge confirmed by the Hi h

-o#rt . special leave petition was filed by the appellant. ?eave was

granted but the appeal was dismissed by the 5upreme #ourt.

Sushil Murmu v. State of Jhar?hand young child of 7 years was

sacrificed before Boddess 9ali by the appellant for his own prosperity is

what the prosecution alleges. ,he 5upreme #ourt awarded death penalty to

the ccused.

State of U.P. v. Satish 5tressing that leniency in punishing grave

crimes would have serious conseFuences the 5upreme #ourt has awarded

the death penalty to a mean for the rape and murder of a six year old girl.

Murder v. &a8ital Punishment

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Abolition of &a8ital Punishment

United State 9ie7

,he Dnited +ations Aigh #ommission for Auman ;ights called a

meeting in early 8uly to commemorate the fifth anniversary of the Beneral

ssemblies vote in favor of a moratorium on the death penalty.. the

5ecretary @ Beneral (an 9i-moon delivered some remar s in which he

reminded listeners that more than 1!0 countries have either abolished

capital punishment or restricted its application. 5ome >2 states retain the

death penalty in case of drug-related crimes and last year only 20 countries

actually conducted executions. 'n the Dnited 5tates 1 states have done

away with the death penalty.

,he right to life is the most fundamental of all human rights. 't lies at the

heart of international human right law. ,he ta ing of life is too absolute

too irreversible for one human being to inflict it on another even when

bac ed by legal process. Jhere the death penalty persists conditions for

those awaiting execution are often horrifying leading to aggravated

suffering. 'nformation concerning the application of the death penaltyincluding secret trials and executions is often cloa ed in secrecy. nd it is

beyond dispute that innocent people are still put to death.

,he Dnited +ations system has long advocated abolition of the death

penalty. et the death penalty is still used for a wide range of crimes that do

not meet that threshold.


54/75

=h5 the &a8ital Punishment should be abolished

#apital punishment is the punishment of death which is generally awarded

to those guilty of heinous crimes particularly murder and child rape. 'n

'ndian the traditional way of awarding this punishment is handing by the

nec till the death of the criminal. 'n other countries shooting electric

chair etcM are the various devices used for the purpose.

,hough 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. 't has been said that capital punishment is brutal that it

is according to the law of 6ungle @ an eye for an eye and tooth for a

tooth . 't is pointed out that there can be no more place for it in a civiliIedcountry.


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%espite freFuent demands from all society 'ndian has not so far abolished

capital punishment. (ut even in 'ndia there has been a decline in the

freFuency of such punishment. 't 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. 'n such cases it is felt that nothing less than

capital punishment would meet the ends of 6ustice that it is 6ust and proper

that such pests of society are eliminated. ,hose who indulge in anti-social

and sternest possible measures should be ta en against them specially

when they are habitual offenders.

't is therefore in the fitness of things that 'ndia has not so far abolished

capital punishment but used it more 6udiciously. 5ociologist are of the view

that capital punishment serves no useful purpose. murderer deprives the

family of the murdered person of its bread-winner. (y sending the

criminals to gallows we in no way help or provide relief to the family of themurd

Documents

Constitutional Validity of Death Penalty in India.docx