1

Proffesional Ethics Assignment

Title: Why should India say no to Capital Punishment

Submitted by,
Muhammed Farooque KT
LLB 3 Year, 1st Year
Roll no: 4
NLC, BVDU, Pune

Submitted to,
Revathi Murali
NLC, BVDU, Pune
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ABSTRACT

In these days, serious debates are taking place around the word 'capital punishment'. The
word "capital" originated from the Latin word 'capitalis' means literally "regarding the head"
(referring to execution by beheading).

Capital punishment is sentenced for people who have done capital crimes. Capital crimes
are different to nations, religions, culture etc. Currently 103 countries, especially western
countries except the USA abolished it de jure for all crimes. But 36 countries are still actively
practicing this old barbaric penalty.

Scientific studies have consistently failed to demonstrate that executions deter people
from committing crime. In accordance with the retributive justice, our first instinct may be to
inflict badly on someone who wrongs us, but a matured society demands a more measured
response. Our laws and criminal justice system should lead us to higher principles that declare a
complete respect for life, even the life of a criminal.

Most capital crimes are committed during the moments of great emotional impulse. In
the case of planned crimes, even though people are well acquainted with the legal penalties,
heinous offences are happening. It is impossible to say that severity of any punishment could
prevent a crime. If severe punishment can deter crime, then long-term imprisonment is severe
enough to deter any rational person from committing a crime.

In 2012, some retired judges wrote a letter to President, pointing out that the Supreme
Court had erroneously given the death penalty to 15 people since 1996 of whom two were
hanged. In US, a recent study by Colombia University Law School found that for every seven
people executed one man is innocent. These kind of human errors lead to miscarriage of justice
through the wrongful execution of innocent people.
 3

There are socio-economic and political elements playing in the field of Jurisprudence. In
practice, the death penalty doesn't single out worst offenders. Rather, it selects an arbitrary
group based on such irrational factors as the quality of defense council, the country in which
the crime was committed, or the class, race, caste, religion etc of the defendant.

Also a majority of the population does not have access to our legal system due to illiteracy
and poverty. In the sense, almost all defendants facing the penalty cannot afford their own
attorney. A poorly represented defendant is much more likely to be convicted and given a
death sentence. The imposition of death is not free from any political motivations. Our past
experiences are witness for that.

Revenge is not the answer for anything, but prudence is the real solution. What time
needs is the complete abolition of capital punishment and development of a suitable
penological system for rehabilitating hardened criminals and ensuring that they can be
reintegrated into society as responsible citizens.

The rarest of rare doctrine evolved in cases like Bachan Singh vs State of Punjab, Machi
Singh vs State of Punjab and Mithu Singh vs State of Punjab shows our changing perception
towards death penalty. We can hope that abolition of complete death penalty will come soon.
 4

List of cases
Name of Case Citation Page No.
Bachan Singh v. State of AIR 1980 SC 898 12
Punjab
Shatrughan Chauhan & Anr v. AIR (2014) 3 SCC 1 16, 28
Union of India @Ors
McCleskey v. Kemp 481 U.S. 279 19
Sunil Batra v. Delhi AIR 1980 SCR 1579 21
administration
Jagmohan v. State of U.P 19730 1 SCC (Cri) 169 24
Ediga Anamma v. State of A.P (1974)4 SCC (Cri) 479 24
Rajendra Prasad v. State of (1979) 3 SCC (Cri) 749 24
U.P
Bachan Singh v. State of (1979) 3 SCC 727 25
Punjab
Machi Singh v. State of Punjab 19833 SCC 470 25
Mithu Singh v. State of Punjab (1983)2 SCC 277 25
Swamy Shraddananda @ (AIR 2008) SCC 26
Murali Manohar Mishra v.
State of Karnataka
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Introduction:
Introducing the research article on Capital punishment with Mahathma Gandhi’s words:

I do regard death sentence as contrary to ahimsa. Only he takes life who

gives it. All punishment is repugnant to ahimsa. Under a state governed
according to the principles of ahimsa, therefore, the murderer would be sent
to a penitentiary and there given every chance to reform himself. All crime is
a kind of disease and should be treated as such.

Mahatma Gandhi, Harijan, 27 April 1940

Mahatma enlightens us the need to embrace higher moral principles instead of falling on
mere emotions. To quote him again, ‘an eye for an eye will make the whole world blind’. In
these days, serious debates are taking place around the word 'capital punishment'. The
etymology of the word "capital" goes to the Latin word 'capitalis' means literally "regarding the
head" (referring to execution by beheading). Latin being an ancient language, the presence of
such a word in Latin vocabulary implies that there was a practice affiliated with it. It indicates,
words like 'Capital punishment', 'death penalty', 'executions', etc. have been in use for a long
time. Anthropological studies prove this point1.

1
Britannica: Capital Punishment
 6

Origins of Capital Punishment

Socrates and Christ give us early recorded examples of the death penalty. Whether
entitled by the divine right of kings or by its secular versions, God’s deputies, right through
history, have murdered not just murderers but those that give them and the status quo trouble.
But all of them exhibit, indeed flaunt, power, its arrogance, its conceit and its unchallenged, if
passing, sway. In history, death penalty was always a state’s political weapon to annihilate the
opposing views2.

In what is perhaps India’s earliest recorded policy of death penalty is seen in the Maurya
dynasty. Kautilya’s Arthasastra speaks of in Chapter Five, ‘ Talking of Traitors in a King’s Camp’.
That master piece of statecraft recommends that traitors be punished in secret, meaning most
definitely that they put down physically, i.e killed3. Whether ChandraGupta Maurya (r. 324-297
BCE), the king whom Kautilya served, followed that served or not, we do know that in the era of
his grandson, Asoka (r. 268-232 BCE) the death penalty was in vogue4. In the medieval era,
Sultanates, Mughals and other dynasties followed the punishment to death. In south rulers like
Krishna Devarayar practiced execution to maintain dharma.

In the modern era, British hanged to death whoever comes to their way as a threat. In
1799, the Collector of Tinnevelly gave mouth foaming chase to Veerapandiya Kattabomman,
the defiant ruler of Panchalankuruchi, and they captured and hanged him. After the Great
Rebellion of 1857, the British Raj became merciless as a punisher. Its response, in the following
century, to the Ghadar Rebellion, to the challenge posed by the Lahore Conspiracy case,
Hindusthan Socialist Republican Association and the group of Chndrashekhar Azad, Bhagat
Singh, Shivram Rajguru and Sukhdev Thapar showed the panic and paranoia of power5. In the
era of struggle for independence, many other revolutionaries and nationalists also experienced
the same fate.

2
Plato, The Apology of Socrates, 2013, p.313
3
L. N. Rangarajan (ed.) Kautilya: The Arthashastra, Penguin, 1992, 5.2.69.
4
G. Srinivasa Murti and A.N. Krishna Aiyangar, The Edicts of Asoka (Priyasarsin), Adyar Library, 1950
5 rd
The Oxford History of India, 3 edn., 1964, p. 313.
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After execution of Bhagat Singh, Rajguru and Sukhdev urged Congress to take strong stand
against capital punishment. It placed a clause on death penalty in the final text of the
resolution, as vetted by the AICC in Bombay in August 1931, and adopted. Under fourteen
‘Fundamental Rights and Duties’ enumerated in that resolution is, at thirteenth place: There
shall be no capital punishment. In 1931, popular opinion, inflamed by Bhagat Singh’s hanging,
was for abolition. Later, especially after Independence, popular opinion has become divided,
with abolition yielding to retention.
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Position of Death Penalty after Independence

After Independence, during the deliberations on the new Constitution, the abolition
idea had got powerful if passing support from none other than Dr B. R. Ambedkar, Chairman of
the Drafting Committee of the Constituent Assembly. But nothing was, in fact, done to amend
either the Indian Penal Code (1860) or the Code of Criminal Procedure (1898) so as to remove
the provisions for the death penalty. We can only conjecture that just as the executions of the
Lahore trio might have played a part in getting Karachi – Bombay to adopt abolition, the
assassination of Gandhi on 30 January 1948, and the subsequent executions of his assassin
Godse and accomplice Apte, may have militated against abolition in the immediate aftermath.
And so the abolition of the death, despite having had great patronage in the Congress, and in
the person of Ambedkar, was not disturbed by free India’s founders.
 9

Capital Crimes

Capital punishment is sentenced for people who have done capital crimes. Capital
crimes are different to nations, religions, culture, traditions, customs etc. Currently 140
countries, especially western countries except the USA have abolished the death penalty in law
or in practice. But 36 countries are still actively practicing this old barbaric penalty including our
country. A superficial view holds that advanced countries can be so evolved as to abolish the
death penalty and countries not so developed need that punishment on their statute books to
keep heinous crime in check.

Abolition is not about being advanced materially, socially or jurisprudentially. It is about

not being backward civilizationally. The fact that we are practicing execution is a shame on
whole of humanity. Through this acts, we are going back to the old Hammurabi code of Justice.
That’s what reflects in Nelson Mandela’s words, ‘the death penalty is a reflection of the animal
instinct still in human beings’6. If we are executing someone, with him we are hanging his
natural and human rights. Though today our perception on death penalty has changed towards
more of a humane side. Still India is abolition minded in theory, but retentionist in practice. In
India capital crimes are provided in Indian Penal Code, 1860.

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. The Indian Penal Code (IPC) provides that only in following
offences,capital punishment could be awarded:
1. Murder (s.302)

2. Abetment of suicide by a minor, insane person or intoxicated person (s.305)

3. Threatening or inducing any person to give false evidence resulting in the conviction and
death of an innocent person (s.195A)

4. Perjury resulting in the conviction and death of an innocent person (s.194)

5. Treason, for waging war against the Government of India (s.121)

6
John Carlin, ‘Nelson Mandela: My Life’, Independent, 6 Dec 1998
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6. Abetment of mutiny actually committed (s.132)

7. Attempted murder by a serving life convict (s.307(2))

8. Kidnapping for ransom (s.364A)

9. Dacoity [armed robbery or banditry] with murder (s.396)

10. Criminal conspiracy (s. 120 B)

Death penalty is also provided under the following special and local laws:

1. Unlawful Activities Prevention Act, 1967 (as amended in 2004)

2. Defence and Internal Security of India Act, 1971

3. Defence of India Act, 1971

4. Commission of Sati (Prevention) Act, 1987

5. Narcotic Drugs and Psychotropic Substances (Prevention) Act, 1985, as amended in, 1988

6. Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)

7. Prevention of Terrorism Act 2002, (POTA)

8. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

9. Explosive Substances Act, 1908 (amended in 2001)

10. Arms Act, 1959 (amended in 1988)

11. Laws relating to the Armed Forces, for example the Air Force Act 1950, the Army Act 1950
and the Navy Act 1950 and the Indo-Tibetan Border Police Force Act 1992

12. Various states (Andra Pradesh, Karnataka, Arunachal Pradesh and Maharashtra) have
control of Organised Crime Acts which entail the death penalty.
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Judicial Murder

When a man kills he breaks the law. When the State punishes by death it upholds the
law. The man murders, the state executes; one deals death, the other awards it. Helen Prejean
opined once as, ‘If we believe that murder is wrong and not admissible in our society, then it
has to be wrong for everyone, not just individuals but governments as well.’ Murder
extinguishes life; the death penalty annuls the right to stay alive. The purposes are different but
the result identical - a corpse where a human being was. The death penalty is about death.
When the death penalty is confirmed, what had been called ‘judicial murder’ becomes a
constitutional and administrative murder. Albert Camus, a great death penalty abolitionist, has,
in his masterly essay ‘Reflections on the Guilltine’ (1957), in fact called it just that.
 12

Right to life

The scope of article 21, that is right to life in our constitution has expanded by an
activist interpretation in many cases. It has been converted into a regime of positive human
rights unknown in previous constitutional diction. By an affirmative action the courts are trying
to force the government to create favorable conditions for effective realization of the new
individual, collective, diffuse rights. The discoveries of egalitarian goals in the fundamental
rights have resulted in the explosion of rights. The expansion of right to life end in the near
abolition of death penalty and in introspection of penological system for reformation and
rehabilitation of criminals. The most determining step towards abolition of death penalty came
in through the constitution Bench judgment of the Supreme Court of India in Bachan Singh vs
State of Punjab (1980)7 which said that capital punishment in India can be given only in the
rarest of rare cases.

7
Bachan Singh v. State of Punjab AIR 1980 SC 898. Retrieved December 31, 2013 from
http://www.indiankanoon.org
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Deterrence and Retribution

Scientific studies have consistently failed to demonstrate that executions deter people
from committing crime. Most capital crimes are committed during the moments of great
emotional impulse. In the case of planned crimes, even though people are well acquainted with
the legal penalties, heinous offences are happening. It is impossible to say that severity of any
punishment could prevent a crime. If severe punishment can deter crime, then long-term
imprisonment is severe enough to deter any rational person from committing a crime. So there
is no relation at all between deterrence and capital punishment.

In accordance with the retributive justice, our first instinct may be to inflict badly on
someone who wrongs us, but a matured society demands a more measured response.
Retribution is a tangible act for an intangible relief. It can be wrenched tangibly from persons or
institutions but its end in terms of relief is the intangible compensation for tangible losses can
be exercised by different means other than sentencing to death. Our laws and criminal justice
system should lead us to higher principles that declare a complete respect for life, even the life
of a criminal.
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Mental Torture and shame

The death penalty must be abolished not only because it is a shame, but as part of a
larger redemption of the miasmic world of criminal investigation and judicial proceeding treat
the suspect as a ‘property’ over which it has jurisdiction, a ‘body’ available to it for pummelling,
physical and mental. To abolish the death penalty is to end the mentality that treats the convict
as a toy passed by a public’s insatiable appetite for retribution to a power that indulges that
macabre trait.

When someone has sentenced to death, for him it is cataclysmic. For his kin, it is
traumatic. The mental torture caused to both the convict and its family is non-justifiable. For
argument sake, we can argue that if the convict is deserving for death penalty he should
sentence to death. Though how can us justify the punishment which has given to the family of
the convict. The mental trauma they have to under go should take into cognizance. The most
significant legal determination in the judgement authored by Chief Justice P. Sathasivam in the
Shatrughan Chauhan vs Union of India8, is that undue delay by the President in rejecting mercy
to a death row convict amounts to torture to him and his family.

8
Shatrughan Chauhan & Anr v. Union of India @Ors., AIR (2014) 3 SCC 1 Retrieved December 31, 2013 from
http://www.indiankanoon.org
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Terrorism

Some people argue for the need of death penalty for terrorism. Is there a penological
answer against men who are not just ready to kill and die for their cause but are dying to kill
and die for it? Is there a retributively satisfying and deterrentially effective penological answer
to terror? In this regard Alan Dershowitz wrote in The Guardian, "when imposing death
sentence on someone, would turn him into a martyr. His face would appear on posters for
terrorist recruitment. Those seeking paradise through martyrdom would see him as a role
model"9. Teaching people to respond to violence with violence will only breed more violence.

9
Alan Dershowitz, ‘Dzhokar Tsarnaev should not face the death penalty, even for a capital crime’, The Guardian. 24
April 2013.
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Judicial error or irrevocable mistake

The judiciary is run by humans who are not non erroneous. The executive is run by
humans who are not infallible. Evidence is seen by differently by different minds. In statement
issued on 13 August 2013, the Nobel Laureate Amartya Sen said: ‘…all punitive systems can
make errors, and irreversibility of the death penalty does not allow any correction of
mistakes10’. On 1 July 2012, fourteen retired judges wrote a letter to President of India pointing
out that the Supreme Court had erroneously given the death penalty to 15 people since 1996 of
whom two were hanged. The Supreme Court’s admission to error has come too late for them.
In this regard, there was no response from the president. In US, a recent study by Colombia
University Law School found that for every seven people executed one man is innocent. These
kind of human errors lead to miscarriage of justice through the wrongful execution of innocent
people.

The ‘power of pardon’, this ‘power’ is the authority under which Article 72 of the
Constitution of India empowers the head of state to ‘….grant pardons….or commute the
sentence…in all cases where the sentence is a sentence of death’. The order of the President in
a mercy petition is a post – judicial loosening or tightening of the noose, leading to a
commutation of the death sentence to life imprisonment or to hanging. But when the option is
as irreparable, irremediable, irreversible as death, can any human agency in a democratic
republic be trusted with it? Should a petition for clemency be left to the clement heart or the
inclement mind of one person, even if that person be the President of the Republic? But can
that discretion be vested in any individual, with all his or her human variabilities,
predispositions and fallibilities?

10
‘India: Concerned Citizens Statement Against Death Penalty’, South Asia Citizen’s Web, 6 Feb 2016,
http://www.sacw.net/net/article7553.html.
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Influence of other factors in the judicial verdict

There are socio-economic and political elements playing in the field of Jurisprudence. In
practice, the death penalty doesn't single out worst offenders. Rather, it selects an arbitrary
group based on such irrational factors as the quality of defense council, the country in which
the crime was committed, or the class, race, caste, religion etc. of the defendant. Rich,
aristocratic and elite sections of the society are more unlikely to punish by death due to many
factors. New York University School of Law’s Professer Anthony G. Amsterdam, described as ‘
the most extraordinary legal mind’, has this say of United States of America: ‘Our political and
legal machines today are obsessed with the symbolic image of the victim – largely portrayed as
white, middle class, mainstream, deserving, and desperately endangered – with the danger
portrayed as predatory, parasitic, willfully, jobless, promiscuously multiplying people of color.
So, it is little wonder that American governments administer their criminal systems like colonial
penal colonies.11’

The imposition of death is not at all free from any political motivations. Our past
experiences are witness for that. I have already explained how state machineries are using
death penalty as a weapon to crush opposing views. In modern politics, state machineries used
many times and still using capital punishment for vote bank politics and for appeasing a
majority of the population. The decision of a case is also bound to be influenced by political
calculations and hyped public opinion. Many of the verdicts are influenced by public cries.
Sometimes, judiciary is also insecure about their credibility in the public. So, they are bound to
attend the popular call.

Racial biases and other forms of prejudices are not divorced from the judgments. Most
debated one is McCleskey vs. Kemp (478-U.S-1019(1987)) case, in which though McCleskey's
arguments were true his arguments were nullified. His arguments were, "murderers of whites
are four times more likely to be sentenced to death than murderers of black"12. Harper Lee's
classic novel "To kill a mockingbird" is a depiction of racial biases in the Judicial process. We can
see mainstream mindset through other cultural medias, especially in the renowned movie "12
Angry Men" there is a dialogue, "slums are the breeding grounds of criminals". These types of
11
Anthony G. Amsterdam, Remarks at the Southern Center for Human Rights’, Frederick Douglass Awards Dinner,
2 Oct 2008.
12
McCleskey v. Kemp, 481 U.S. 279
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narrations shows us the stereotypes cemented in the minds of the mainstream. Being judges
human Beings, we can’t neglect the possibility of the reflection of these stereotypes in the
judicial verdicts.

Also majority of the population does not have access to our legal system due to illiteracy
and poverty. In the sense, almost all defendants facing the penalty cannot afford their own
attorney. A poorly represented defendant is much more likely to be convicted and given a
death sentence. The pioneering 2016 ‘Death Penalty India Report’ by the National Law
University, Delhi, has added a further dimension to our understanding of the inequity of capital
punishment in India. It has shown, with statistics culled from a study of death row prisoners in
India, that ‘prisoners sentenced to death in this country were almost always poor and belonged
to the marginalized sections of society13.’ There is even a saying, "capital punishment means
without the capital get the punishment".

13
‘Death Penalty India Report’, National Law University, Delhi, 2016, p. 91.
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Reformation and Rehabilitation of prisoners

Revenge is not an answer for anything, but prudence is the real solution. The right to life
is rightly invoked against the death penalty. But it cannot stop at that lofty altar. It has to
proceed from there to redeeming the death vs life term binary from becoming self-indulgently
static. What time needs is the complete abolition of capital punishment and development of a
suitable penological system for rehabilitating hardened criminals and ensuring that they can be
reintegrated into society as responsible citizens. The translating of death penalties to
‘imprisonment for natural life’ can be a major leap towards civilization only if the focus is
shifted from ‘not death’ to ‘not worse-than-death’, in other words, to the deeply philosophic
and spectacularly practical question of India’s prison culture. This is where the lifelong interests
of one who supports commuting the sentence can diverge from the abolition-fixation of
abolitionists. Life, even in hellish conditions would be preferred by a convict as an option to the
noose. But that does not mean that a radical overhaul of prison conditions be treated by
abolitionists as a later or a secondary issue. The two – abolition and prison reform have to
move in tandem. A radical change in our prison culture must prepare the ground for the
abolition of the death penalty.

The right to life is about more than freedom from the noose. It is about the right
conditions for prisoners’ officially incapacitated living – conditions that are compatible with
human dignity. In Sunil Batra vs Delhi administration (AIR 1978) ,the court held that the liberty
to move ,mix ,mingle ,talk share company with the co-prisoner if substantially curtailed would
be violative of Art. 21. Here, solitary confinement with handcuffing made unconstitutional14.
This judgment led to important reforms regarding treatment of prisoners in India. Prison
conditions in India are much better than they were some decades ago, but are still far from
what they should be. Overcrowding, insanitation, under-supervision of prisoner to prisoner
relations, custodial violence including inter prisoner violence, grossly inadequate medical
attention, and torture both physical and psychological, comprise the story of India’s
‘Correctional Homes’, as its prisons are now called. An unusual superintendent may bring in a
welcome phase of civility to prison life but the norm is what has been described above.

14
Sunil Batra v. Delhi administration AIR 1579 SCR 1980, Retrieved December 31, 2013 from
http://www.indiankanoon.org
 20

In its pioneering and, for the case studies it contains, unprecedented ‘Death Penalty India
Report’ (2016), the National Law University, Delhi, says, ‘The cruel and inhuman manner in
which these prisoners have been tortured in police custody not only makes them more
vulnerable during their trials, but the pain and humiliation inflicted also denies them the basic
standard of human dignity that the law seeks to uphold.’ The comment is applicable to non-
death penalty prisoners no less. It is impossible to disagree with the report’s concluding
observation: ‘Meanwhile, those inhabiting worlds locked away from our sights and minds,
within impenetrable walls, have stories to tell that ask damning questions to us.15’

15
‘Death Penalty India Report’, The National Law University, New Delhi, 2016, p. 33
 21

Amendments took place towards abolition

While the death penalty remained on the statute book, for offences where penalty was
an option, Section 367(5) of the CrPC had required courts to record reasons where the court
decided not to impose a sentence of death. In other words, the CrPC as it originally stood
wanted a court to explain why, if it chose a punishment that was less than death in cases where
such an alternative was available; it chose the lesser and not bigger option. Or why it did not
choose death over life. In 1955, Parliament repealed Section 367(5), CrPC 1898, significantly
altering the position of the death sentence. The death penalty was no longer the norm, and a
court was left free to not impose the death penalty in cases where a life term was also available
to prescribe, without having to explain itself.

The CrPC came to be amended once again in 1973, during Indira Gandhi’s prime
ministership, bringing the death penalty one step nearer abolition. Among the several changes
made to it, was one to Section 354(3). The new provision read: ‘When the conviction is for an
offensive punishable with death or, in the alternative, with imprisonment for a term of years,
the judgement shall state the reasons for the sentence awarded, and, in the case of sentence of
death, the special reasons for such sentence.16’ And by another change in the same set of
changes, came in the concept of a post conviction hearing on the sentence, including the death
sentence. The new Section 235(2) stated: ‘If the accused is convicted, the judge shall… hear the
accused on the question of sentence, and then pass sentence on him according to law17.’

16
Criminal Procedure Code, 1973
17
Criminal Procedure Code, 1973
 22

Landmark cases that changed the approach of death penalty

The Jagmohan Singh vs State of UP case was important because it challenged the
constitutionality of the death penalty. The Supreme Court stated that while analyzing Article 21
and Article 72 of the Constitution, it cannot be said that capital sentence was regarded per se
unreasonable or not in the public interest. Thus, SC upheld that death penalty can be attributed
in various crimes. However, an amendment was made in CrPC, which changed the death
penalty from being the norm to an exception18.

In Ediga Anamma vs State of Andhra Pradesh in which the court took the circumstances
into account and decided, despite the heinousness of the murder of a young woman and her
child, to ‘dilute the penalty’ and award the convict life sentence. In Justice V. R. Krishna Iyer’s
words, the focus from crime was shifted to the criminal. Krishna Iyer took note of the 1955 and
1973 changes in the CrPC and said ‘a great change has overtaken the law’ in which ‘life
imprisonment for murder is the rule and capital sentence the exception to be resorted to for
reasons to be stated’. He spoke with the eloquence that has become his idiomatic signature –
‘the stream of tendency being towards cautious, partial abolition and a retreat from total
retention19’.

In Rajendra Prasad vs The State of Uttar Pradesh, the Supreme Court said the nature of
the crime was not the sole determinant and observed: ‘…. The retributive theory has had its day
and is no longer valid. Deterrence and reformation are the primary social goals…. 20’

In 1980, in the case of Bachan Singh v. State of Punjab, the Supreme Court again upheld
the constitutionality of the death penalty. The Court laid down that “for persons convicted of
murder, life imprisonment is the rule and death sentence an exception”. The phrase “rarest of
the rare” was firstly promulgated in this case and is used till date. Supreme Court formulated
certain broad illustrative guidelines and said it should be given only when the option of

18
Jagmohan v. State of U.P (19730 1 SCC (Cri) 169
19
Ediga Anamma v. State of A.P., (1974)4 SCC (Cri) 479
20
Rajendra Prasad v. State of U.P., (1979) 3 SCC (Cri) 749
 23

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?21

The Machi Singh vs State of Punjab case is important because it was in this case that the
Supreme Court laid down the criteria which would make cases “the rarest of rare” and thus
could invite the death penalty22.

In Mithu Singh v. State of Punjab SC declared Section of IPC is unconstitutional because

it is in contradiction to Article 14 and 21 of Constitution of India but capital punishment still
remain in force in rarest of rare case. Article 21 of Constitution of India guarantee right to life
to live and personal liberty includes right to live with human dignity. Further it says that no
person shall be deprived of his right except according to procedure establish by law. It states
that state may have right to take away life in name of law and public at large 23.

21
Bachan Singh v. State of Punjab., (1979) 3 SCC 727
22
Machi Singh v. State of Punjab., (19833 SCC 470
23
Mithu Singh v. State of Punjab (1983)2 SCC 277
 24

Emergence of alternative way of punishment

In the last few years, Supreme Court has entrenched the punishment of “full life” or life
sentence of determinate number of years as a response to challenges presented in death cases.
The Supreme Court speaking through a three-judge bench decision in Swamy Shraddhanand vs
State of Karnataka case laid the foundation of this emerging penal option in following terms:

“The matter may be looked at from a slightly different angle. The issue of sentencing has
two aspects. A sentence may be excessive and unduly harsh or it may be highly
disproportionately inadequate. When an appellant comes to this Court carrying a death
sentence awarded by the trial court and confirmed by the High Court, this Court may
find, as in the present appeal, that the case just falls short of the rarest of the rare
category and may feel somewhat reluctant in endorsing the death sentence. But at the
same time, having regard to the nature of the crime, the Court may strongly feel that a
sentence of life imprisonment subject to remission normally works out to a term of 14
years would be grossly disproportionate and inadequate. What then should the Court
do? If the Court's option is limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more than 14 years and the other
death, the Court may feel tempted and find itself nudged into endorsing the death
penalty. Such a course would indeed be disastrous. A far more just, reasonable and
proper course would be to expand the options and to take over what, as a matter of
fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment
and death. It needs to be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case, the sentence of 14 years'
imprisonment would amount to no punishment at all. Further, the formalisation of a
special category of sentence, though for an extremely few number of cases, shall have
the great advantage of having the death penalty on the statute book but to actually use
it as little as possible, really in the rarest of rare cases ....... 24"

The observations in Swamy Shraddhanand case have been followed by the Court in a multitude
of cases such as Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v. Sanjay Kumar ,
Sebastian v. State of Kerala, Gurvail Singh v. State of Punjab where full life or sentence of
determinate number of years has been awarded as opposed to death penalty.

24
Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka (AIR 2008) SCC
 25

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.
 26

Judicial review of exercise of mercy powers

The Supreme Court in Shatrughan Chauhan vs Union of India25 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.

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 Executive. Supreme Court, last
year held that judicial clemency could be granted on the ground of inordinate delay even after a
mercy petition is rejected.

25
Shatrughan Chauhan & Anr v. Union of India @Ors.,(2014) 3 SCC 1 Retrieved December 31, 2013 from
http://www.indiankanoon.org
 27

Law Commission of India's report on Capital Punishment

The Law Commission of India in its 262nd Report (August 2015) headed by wise and brave
AP Shah recommended that death penalty be abolished for all crimes other than terrorism
related offences and waging war26. 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.

26 th
187 Law Commission of India Report, Mode of Execution of Death Sentence and Incidental Matters, 2, 2003,
th
http:// lawcommissionofIndia.nic.in/reports/187 %report.pdf
 28

Conclusion

The evolution of capital punishment in India from Chandra Gupta Maurya to the recent
2015 Law commission report is indeed a great leap towards humanity. The last Law Commision
(2012-2015), headed by the distinguished Justice A.P. Shah, had taken a huge step forward,
jurisprudentially, socially, politically and civilizationally. But it has taken that step with an
exception being made in cases involving acts of terror and acts against the state. The rarest of
rare doctrine evolved in cases like Bachan Singh vs State of Punjab, Machi Singh vs State of
Punjab and Mithu Singh vs State of Punjab shows our changing perception towards death
penalty. We can hope that abolition of complete death penalty will come soon.

In its essentiality the death penalty, the world over, belongs to the conglomeration of
multiple murders – judicial, administrative, political and social – which seeks to take the
‘original’ physical murder to its retributive opposite. More than the law is involved in the death
penalty. There are impulses, Psychologies and considerations beyond the strict judicial lights of
the courts that propel its continuance on the statue books or in the conventions of the
countries which are not giving up on the death penalty.

A Punishment has five purposes.

First, the purely punitive. A crime has been established, the punishmentprescribed for it
under the law must be awarded.

Second, the preventive. A crime has been committed. The punishment awarded should
tell others this is what happens when this crime is committed and so you better not commit it
yourself.

Third, the retributive. A crime has wronged someone. The punishment should satisfy the
one wronged that wrong doerhas been punished.

Fourth, the normative. The State’s penology has a set of norms. The punishment must
satisfy those, as in cause and effect.

Fifth, the experiential.

 29

This last is the subtlest and to my mind the most vital. The punishment should enter the
experience of the one punished to make him realize, in his mind and not just in his body, that
he has been punished, that his criminal intent has been seen and though it may have met its
immediate end in the committing of the crime, he has not been able to get away it. With the
punishment his criminal egois atomized, he is reduced to a ruin of self-chastisement, perhaps to
self loathing and hopefully to self-correction.

In the death penalty, like in all penalties, the first four occur automatically. But the fifth
does not , indeed it cannot, for the reason that intervenes. The intervention of death gives the
one penalized no means of knowing he has been punished, which is the ultimate crown that the
punishment wears. What possible purpose has been served by a punishment if the one
punished can feel it coming, but not know its end?

This is not abstract truth. But plain truth.

The death penalty is by definition an incomplete and hopelessly miscarried punishment.

 30

Bibiliography

1 Gandhi, Gopal Krishna: Abolishing the Death Penalty, 2016

2 Siddique, Ahmad: Criminology problems and perspective, Fourth Edition 2001
3 Jain, AK: Constitutional Law of India, 2018
4 Jain, MP: Constitutional Law of India, 2018
5 Basu, DD: Shorter Constitution, 2015
6 Basu, DD: Introduction to the Constitution, 22nd Edition 2015
7 Lok Sabha Secretariat: CAPITAL PUNISHMENT IN INDIA, Parliament Library and Reference,
Research, Documentation, and information service (Larddis), No.
27/RN/Ref./October/2015
8 Manupatra
9 West Law
10 Lawoctopus
11 India Kanoon