DEATH PENALTY: THE BREAKING OF FUNDAMENTAL HUMAN RIGHT FOR

LIFE

TABLE OF CONTENTS
INTRODUCTION............................................................................................................................................2
DEFINING DEATH PENALTY AND ITS METHODS...........................................................................................2
DEATH PENALTY: VALIDITY........................................................................................................................3
CRIMES THAT RESULT IN DEATH PENALTY IN INDIA...................................................................................3
DELAY IN DEATH PENALTY EXECUTION......................................................................................................5
CAUSES OF THE IN EXECUTION OF DEATH PENALTY...................................................................................6
DEATH PENALTY: INTERNATIONAL VIEWPOINTS.........................................................................................6
DEATH PENALTY’S POSITION IN INDIA........................................................................................................7
RELEVANT CASE LAWS...............................................................................................................................8
CONCLUSION AND SUGGESTIONS.................................................................................................................9
 INTRODUCTION
As centuries have passed, the commonality between various aspects of life has ceased to exist
apart from one aspect that is death penalty which is used as a medium of justice administration.
If we delve into the past, we see that a retributive form of punishment for justice used to exist (an
eye for an eye). The first codification of death penalty was done by King Hammurabi of
Babylon. Proper examples of death penalty in the earlier times were the practice of guillotine in
France, chopping the head in Middle East, electrocuting one's body in Russia, etc.

In the present era, with human rights getting prevalence and law being properly codified, the
question that lies before us is that whether death penalty is still the best form of administering
justice by punishment? Several organizations have voiced their opinions against the institution of
death penalty but still it is prevalent and carried out in several countries.

Capital punishment or death penalty has been declared as a crime against humanity by the UN
charter and the same has asked the member countries to abolish it. India being a member country
of the United Nations, still practices capital punishment even though Art. 21 of the Constitution
prescribes that the government has no right to take away the life of an individual. Also, in the
General Assembly and at the Human Rights Council, India has always taken the stand of going
against the resolution and stating that abolishment of death penalty is in contravention of the
statutory law as the execution is carried out in India in the 'rarest of the rare' case. This paper is a
careful and critical analysis on the aforementioned notion of death penalty.

Aims and Objectives

The aim of this paper is to carefully analyze death penalty in Indian scenario and examine it in
the light of fundamental rights and several international obligations. The objective of this paper
is to aim for a societal change as death penalty is a practice that is too barbaric and archaic and
needs to be scrapped off from various provisions of law.

DEFINING DEATH PENALTY AND ITS METHODS

A death penalty is a process that is considered legal in nature where a person is sentenced to
death by the state as a criminal punishment. The decree after the judicial process is called a death
sentence. The crime for which such punishment is given is called capital offence and the process
induced is called execution. S. 368 of the Cr.PC confers the power upon High Courts for the
confirmation of death sentence. The same is given in cases of murder, sedition or what in India is
considered to be the 'rarest of the rare' case. Several other countries have different methods of
execution which are considered more brutal than what happens in India. In India, a person is
hung prevalently as a means of execution for death penalty. Apart from that another way of
execution is by shooting the convict and the same is provided in 3 Acts, namely The Army Act,
The Navy Act, and The Air Force Act. Apart from this, several other countries have ruthless
ways of execution like stone pelting, guillotine, etc., but still hanging remains as the most
prevalent form of execution.

DEATH PENALTY: VALIDITY

USA was the first country where the constitutional validity of death penalty was challenged. The
same lead to abolishment of death penalty in Pennsylvania. But even though it had happened,
death penalty was not completely abolished as it continues to be practiced in several countries
like India, Saudi Arabia, etc.

The particular method of hanging by neck in India has been there since the time of the British
and continues to exist. The IPC provides for death penalty 1 and Cr.PC provides confirmation to
the same.2 Death penalty is handed out in cases which are considered to be the rarest of the rare.
This means such cases where the community's collective conscience has reached to such
shocking depths that the society has the expectation of giving death as a penalty by the judicial
administrative authorities. For example, The Supreme Court of India is of the opinion that
murder is an offence which falls within the purview of rarest of the rare case.

Mandatory death penalty is considered unconstitutional as per the stand of SC. 3 Although the
consequent legislation in regards to the drug and criminal offences has a prescription for or
mandatory death penalty, death penalty has not been explicitly struck down as unconstitutional
by the SC. Moreover, the necessary death penalty for these crimes has not actually been applied

1
S. 53, Indian Penal Code, 1860, No. 1, Acts of Parliament 1860.
2
S. 368, The Code of Criminal Procedure,1973, No.2, Acts of Parliament, 1973.
3
Mithu v. State of Punjab, AIR 1983 SC 473.
by Indian courts. Moreover, Hindi existence of exceptional circumstances for inducing death
penalty always remains to be the golden rule for the aforementioned concept.4

CRIMES THAT RESULT IN DEATH PENALTY IN INDIA

 Aggravated Murder5

Following are the instances where death penalty is awarded in cases of murder-

1) Death penalty can be given to a group even if one member of the group had committed the
murder in the process of an armed robbery.6

2) When the result is a kidnapping for ransom and the person who is kidnapped gets killed, the
same is punishable by death penalty.7

3) Being member of an association and using of ammunition which results in the person dying,
will result in death penalty (Art. 6 of The Unlawful Activities (Prevention) Amendment
Ordinance, 2004)

4) Any kind of an organized crime which results in the death of a person, such person who is
engaged, will be given death penalty (State laws).

5) The act of committing or inducing someone to commit sati is punishable under s. 4(1) of The
Commission of Sati Act.

 Offences involving Terrorism

Any particular explosive of a special category which is likely to put life of an individual in an
imminent threat are main cause a damage to the property is an offence which will lead to death
penalty under section 3 (b) of The Explosive Substances Act, 2001.

 Aggravated Rape

4
Bachan Singh v. State of Punjab, AIR 1980 SC 898.
5
Supra Note 4
6
S. 396, Indian Penal Code, 1860, No. 1, Acts of Parliament 1860.
7
S. 364A, Indian Penal Code, 1860, No. 1, Acts of Parliament 1860.
If the victim during the act of commission of rape is dead or is left in a stage known as a
persistent vegetative state, the accused of the act will be awarded death penalty under the
Criminal Law Amendment Act, 2013. After the rape case of Nirbhaya, several gang rapes were
held to be liable and punishable with death penalty, under section 9 of the Act. Post the rape of
an 8 year old, an amendment came in the year 2018 Criminal Law Ordinance, which stated that
the rape of a girl who is 12 years or below, shall meet the punishment of death penalty for the
accused.8

 Treason

The act where one wages or attempts to wage war against the state and assisting officers,
soldiers, or members of the Navy, Army or Air force in committing mutiny shall be punishable
by death penalty.9

 Kidnapping

The illegal detention or kidnapping of an individual is an offence punished by law, even though
the abductor is merely threatening or genuinely doing harm to the victim. (Indian Penal Code,
Article 364 A). However, in the light of the ruling of the Indian Supreme Court in Bachan Singh
v. State of Punjab, whether (or when) these crimes are death-eligible must be found (1980).

DELAY IN DEATH PENALTY EXECUTION

There should be a reasonable factor in order to reduce the sentence which was originally of death
penalty into to life imprisonment as the factors to be considered here are that of mental agony
and torture inflicted on the accused during this sentence period. The SC has often stressed upon
the delay in the execution of death penalty stating that excessive delay leads the prisoner to
suffer a dehumanizing effect with the clash between hope and despair, and this gives the prisoner
an entitlement to a lesser sentence of life term. According to the most recent studies, it is because
of the delay in sentencing the death penalty that the punishment has lost its effectiveness and
moreover, it increases the amount of torture upon the convict and his family members.

8
Azadi, Death Penalty and Human Right, LEGAL SERVICES INDIA (28 December,2020, 12:55 PM),
http://www.legalserviceindia.com/legal/article-442-death-penalty-and-human-right.html.
9
S. 121 and 136, Indian Penal Code, 1860, No. 1, Acts of Parliament 1860.
As 2017 had ended, there were 371 cases who are convicted for death penalty but were still
waiting on the row of death with the oldest case in India being 25+ years old from 1991. In the
last 13 years there have been only few executions. As per the 2015 report of Law commission of
India, the execution clemency, trials and appeals are delayed for death penalty prisoners in India.

As per the centre on death penalty's study the average in regards to the time faced for trial by 373
convicts of death penalty was on an average of five years. The trial time was more than 5 years
for 127 convicts and for 10 years or more for more than 54 prisoners. The delay had been so
prolonged that more than 21 years was the time of delay for a prisoner on a death row.10

CAUSES OF THE IN EXECUTION OF DEATH PENALTY

Due to the elongated period in sentencing death penalty, the delays primary cost to the prisoners
who have wait for death penalty. Other reasons are mental and physical health of the convicts
were waiting for death penalty as the need to be fit in both aspects when the sentence is granted
to them. Since the whole process and procedure of death sentence after a trial is dehumanizing
and intolerant, feasible mental condition of the prisoners is a questionable matter. The SC is also
of the stand that the delay which is unreasonable and inordinate in nature is equivalent to torture.

Adequate treatment must be given to the prisoners who undergo such an extent of mental agony
because of the delay caused in the judgments by the judiciary. Often there are instances where a
prisoner who is sentenced death penalty, has to beg the adequate authorities to conduct his
execution so that the suffering that the prisoner has been going through can come to an end. The
same has been the situation in a case where a Khalistani terrorist in Tihar Jail was suffering
schizophrenia because of the mental torture caused to him due to the delay in his execution. He
had to finally beg the adequate authorities to carry out the execution so that the torture could
come to an eventual end. The SC on March 31, 2014 derived a conclusion that due to
schizophrenia, agony and inordinate delay in answering his mercy petition his death penalty had
to be commuted to life imprisonment.11

10
Monika, Critical Analysis Of Death Penalty In India, IPLEADERS (28 December,2020, 5:55 PM),
https://blog.ipleaders.in/death-penalty/#:~:text=Position%20of%20Death%20Penalty%20In
%20India&text=According%20to%20this%20article%2C%20no,the%20procedure%20established%20by
%20law.&text=Therefore%20the%20state%20may%20take,the%20procedure%20established%20by%20law.
11
Devender Pal Singh Bhullar & Anr vs State Of NCT Of Delhi, Devender Pal Singh Bhullar & Anr vs State Of
NCT Of Delhi, 627 of 2002 Appeal (crl.) 761 of 2001.
 DEATH PENALTY: INTERNATIONAL VIEWPOINTS
Several countries and organisations have criticized death penalty e as a retributive form of
punishment. There is a requirement for high standards in regards to fair trial which should be
followed by every country and the same has been stated by the United Nations General
Assembly. Abolishment of death penalty and if not then ensuring speedy trials to the defendant
has been recommended by the United Nations Economic and Social Council. Death penalty has
been abolished by almost every European Union country. Abolishment of death penalty in all
circumstances was the motto open for signatures for the member countries for the thirteenth
protocol to the European Convention for the protection of human rights and fundamental
freedoms on May 3rd, 2002.

Several legislations of international standard have also favored the abolishment of death penalty.
No one is supposed to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment as per Art. 5 of the UDHR and Art. 7 of the ICCPR. Moreover, Art. 3 of UDHR
provides for right to life, liberty and security of every individual. Death penalty was abolished by
the Murder (Abolition of Death Penalty) Act, 1965 in England though when the eighteenth
century ended, almost 200 offences had been punishable by death.

The resolution of United Nations in regards to a moratorium on death penalty has been imposed
by India time and again since the sovereign right rests with United Nations in regards to
determine meaning its own legal system and adequate legal penalties. In India the rarest of the
rare case principle irrespective of the offence remains as the golden rule for the harm that
happens to the conscience of the society. The UN Secretary General has also affirmed that the
limiting of death penalty has also been taken into consideration by the Supreme Court and also
the rights of the people who were sentenced need to be protected.12

DEATH PENALTY’S POSITION IN INDIA

There has been a drastic reduction in the execution rates of India in the last 20 years. Right to
live with dignity is an essential facet of right to life and personal liberty which is guaranteed to
its citizens by Art. 21 of Indian Constitution. As per this particular Art., A person cannot be
deprived of his life and personal liberty except for the procedure that has been established by
12
Lok Sabha Secretariat, Capital Punishment in India, REFINPUT (28 December, 2020, 5:55 PM),
http://164.100.47.193/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf.
law. This means that the state has the right to take away the life of a person who has committed a
particular crime. This means that in consonance with law and public order following the
procedure established by law, the state can take away the life of an individual. This procedure
must be in accordance with the 'due process' as held in Maneka Gandhi v Union of India13. This
means that the procedure taking away life of an individual must be in accordance with the
principles of just, fair and reasonable. Furthermore in Mithu v. State of Punjab 14, the SC had
opined that s. 303 is ultra vires to the Constitution because it does not come down in accordance
with Art. 14 and 21 of the Constitution.

Several not-for-profit organizations have been fighting against punishments that are considered
cruel, inhuman and a direct attack on the human rights of an individual. The rarest of the rare
case principle remains to be the golden rule for punishments like these; but at the same time
plethora of cases have indicated that the application of this principle is in direct contravention of
the constitutional principles. An eminent jurist and former judge, Jst. V. R. Krishna Iyer has also
voiced his opinions against death penalty. As per Jst. Iyer, God has given the life and has all the
rights to take away the same. A person's life cannot be taken away by the state arbitrarily.
Inhumanity is projected by the state through death penalty and execution. He also put forth that
we live in a country that was propounded by the Gandhian principles and the same must be
upheld by abolishing the very archaic practices of death penalty. Even if the state is supporting
the same by judicial decisions, the same must not be taken into practice.

When we take the Indian scenario into consideration, the conditions of people who are
undergoing death sentence is in a horrific state. A prominent example in regards to the same is
the case of Devendra Pal Singh Bhullar, who had been accused of 1993 Delhi bomb blast case
and was left in a horrific state until his death sentence was changed in 2014 to life imprisonment.
A mental saturation and death is seen for the prisoners as they keep waiting for the day of their
execution and the same keeps on getting delayed.

RELEVANT CASE LAWS

13
Maneka Gandhi v. Union of India, 1978 AIR 597.
14
Mithu v. State of Punjab, AIR 1983 SC 473.
Since the Code of Criminal Procedure was incorporated in 1898, while death penalty got
imposed, the courts had an obligation to not impose death penalty. The shift from a norm to an
exception came down in the area of death penalty since Cr.PC was re-enacted in 1973. S. 354 (3)
was introduced in the Code, where special reasons had to be given for giving someone death
penalty. Cr.P.C had s. 235(2), which validated hearing after conviction on penalty which brought
a paradigm shift to the jurisprudence in a drastic manner allowing for an evaluation in careful
manner and analysis of circumstances that surround death penalty as a concept.

In Jagmohan Singh v. State of Uttar Pradesh15, the verdict of the five judge bench was
unanimous in regards to the fact that they upheld the death penalty was constitutionally valid and
was not violative of article 14, 19 and 21. The primary contention in the case what's that the
procedure prescribed under Cr.P.C. was only in regards to guilt and not death penalty per se. The
SC opined that death penalty supposed to be in accordance with procedure established by law.
the circumstances and facts of the case and the nature of crime brought before the trial are certain
things that the judges need to deliberate upon while making a choice between death penalty and
life imprisonment.

In Bachan Singh v. State of Punjab16, Jst. Bhagwati in his dissent had opined that death penalty is
to be considered arbitrary, discriminatory and capricious. According to him the poor are
subjected to such operation generally while the rich and affluent escape from the clutches of
death penalty. Article 14 and 15 of the Constitution indeed gets violated by the same.

In Rajendra Prasad v. State of Uttar Pradesh 17 after Cr.P.C got re-enacted in 1973, while death
sentence was imposed, the courts had an obligation to give 'special reasons' for not imposing
death penalty. The SC in the instant case, lay down in February, dealing with policy of law on
sentencing discretion and discussed the terminology of special reasons for bringing in
exceptional grounds for death penalty. The social goals in the instant case shifted from
retributive theory of sociology to deterrence and reformation. Moreover, that capital punishment
or death penalty needed special reasons and the same must not relate to crime but rather the
focus has to be on the criminal.

15
Jagmohan v. State of UP, AIR 1973 SC 1947.
16
Supra Note 4.
17
Rajendra Prasad v. State of UP, 1979 AIR 916.
In Shashi Nayar v. Union of India18, relying upon the precedent of the Bachan Singh case death
penalty was again challenged in the light of 35th Law commission report. The court was of the
opinion that the time was not right for hearing such a petition. Moreover the plea in regards to
hanging till death as a practice which is archaic, barbaric and dehumanizing was not taken into
consideration.

In Shatrughan Chauhan v. Union of India19, certain guidelines had been laid down by the
Supreme Court of India in regards to the conversion of death penalty to life imprisonment. The
same was implemented in the judicial precedent of Union of India v. Sriharan,20 the case
commonly known for the assassination of Rajiv Gandhi. The death penalty in this case of the
people who had assassinated Rajiv Gandhi was reduced to life imprisonment by the SC.

In Channulal Verma v. State of Chhattisgarh 21, it was noted in the instant case that it was
appropriate to review the constitutionality of death penalty and reformative aspects of
punishment need to be deliberated upon. The remaining two judges on the bench, though
disagreeing on the issue of the rights of the death penalty, stressed the obligation of the judiciary
to be morally right, even though their opinions became counter-majoritarian. In general, public
sentiment is formed by politically charged narratives that do not actually need to be technically
accurate and adequately educated. They might also be against the ideals of the rule of law and
constitutionalism that are bound by the courts. In Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra22, the court reiterated the view that public sentiment is neither an objective
situation relevant to crime nor the criminal in the death penalty sentence. The death sentence was
commuted to life imprisonment after taking into account the appellant's likelihood of change and
recovery, which was shown by his good behaviour.

18
Shashi Nayar v. Union of India, 1992 AIR 395.
19
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.
20
Union of India v. Sriharan, (2014) 4 SCC 242.
21
Channulal Verma v. State of Chhattisgarh ,2018 SCC OnLine SC 2570.
22
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009 6 SCC 498).
 CONCLUSION AND SUGGESTIONS
It is henceforth concluded that death penalty can always be considered as a crime against
humanity. Life is an aspect that is given by the divine forces. The state does not have any right to
take away the life given by the divine forces. Since death penalty is an offence against human
rights, it must be declared unconstitutional. The negative aspects of sentencing someone to death
must be taken into consideration by the government. The onus of the same lies upon the
government to scrap the archaic provisions of law prescribing for death penalty. The entire
process and procedure from trial to death penalty is a tedious and horrific process and convicted
prisoners undergo torture on both physique and mind. They are left with no option but to beg for
death. Human being is not meant for or facing such situations irrespective of the fact that
whether that person is a convict or not. A lot has to be done to fasten the procedure as there are
several people who are waiting for their actual execution after being punished with death
penalty. The rate of execution is decreasing day by day. In any case, the constitutional facets are
to be upheld and at the same time India has to abide by the international commitments.

The researcher is in full agreement with the 262nd report of the law commission. The 262nd
report of the Law Commission has opined that death penalty should be abolished in each case
except for cases involving terrorism. This was seen as an awakening after Yakub Abdul Razzak
Memon who was hanged on 30th July 2015 in the early morning hours completely disregarding
the fact that his lawyers we are looking for a stay on the execution and the conversion of the
same into a life imprisonment.

The Assembly of Tripura has enacted legislation for abolishing death penalty in India. Certain
guidelines are to be laid down as well in regards to the execution of death warrant within a
specified limit of time. In case there is a delay of an unconditional nature (keeping aside the
cases involving terrorism), the provisions are supposed to be made in regards to the mental
condition of the convict and accordingly his death penalty must be converted into life
imprisonment. Execution in regards to death penalty must not be backed by political influence as
alleged in the case of Yakub Memon execution. Above everything, life and death are the
decisions of the divine forces and the state or any of its organs must not bind the same because
death penalty otherwise will remain nothing but what is commonly known as a State sponsored
murder and the same shall remain ultra vires to the basic facets of humanity and Constitution.