“Can the State take life in the name of justice”? This question lies at the center of the debate on the death penalty in India. The capital punishment remains one of the most debated forms of punishments in criminal jurisprudence.
A rational and impartial analysis of criminological jurisprudence suggests that the use of capital punishment is justified only when other mode of penalty fails, or in the highest degree of culpability cases, like which may shatter the conscience of society or may harm the delicate fabric of society.
In India, the debate regarding abolition of the death penalty was accelerated after the 262nd report of Law Commission of India, that was released on August 31st, 2015. The Law Commission of India in its previous report, 35th report, 1967 kept the retentionist view, that means it recommended the death penalty as a penological measure in grave crimes. This article explores the viewpoints of both the retentionists and abolitionists and understands the position and value of the death penalty under modern democratic society.
How did the Death Penalty emerge in the world?
ANCIENT WORLD
Ancient evidence of the Death Penalty as a punitive measure has been found in “Twelve Tables of Rome” in the 5th B.C. by way of throwing the accused in front of hungry wild animals, beheading, burying alive, drowning, hanging and other inhuman ways, only to seek revenge.
Next is the Code of Athens around 7th B.C, which made death penalty as the only punishment for all offences. It was drafted by the aristocratic king “Draco” who prepared the city’s first written law, called “Draco’s Law Code”, which was cruel to all and biased towards rich land-owners.
Then “Hittite Code” which was composed of opinions around 14th B.C., which provided the Death Penalty only for sexual offences.
The “Code of Hammurabi” in old Babylon, which is now Iraq, dates back to 18th Century BC was harsher than “Twelve Tables of Rome”. It was engraved on stone tablets open to view by all members of the public, and Death Penalty was prescribed for more than twenty,20, offences including minor offences like theft and perjury.
Most of the “Mosaic Law” was inspired from Rome, a lot of punishments were in the form of death penalty including stoning, hanging, beheading, crucifixion.
In 438 “Code of Theodosius”, almost Eighty,80. crimes were made punishable by death.
MEDIEVAL WORLD
King Henry VIII ruled over England from 1491 to 1514 AD. He was notorious for his brutal orders for prisoners. During his reign the death penalty was commonly practiced. He used to command torture on rack, decapitation etc as a mode of punishment. Even his daughters Queen Mary I ordered burning alive of three hundred(300) protestants as she was staunch Catholic; and Queen Elizabeth I, followed footprints of his father but in a different perception that not to execute the prisoner in a go rather subject him to gradual amputations, so that he can suffer maximum pain, that too in public. However, this method was replaced by the end of the eighteenth century with the transportation of prisoners to distant American Colonies.
MODERN
Until 1700 almost Two Hundred and Twenty Two crimes, 222, were made punishable by death only in different ways like throwing the wrongdoer in a quagmire.
Cesare Beccaria in his famous work on Crime and Punishment (1764) discussed criminal reforms and openly criticised death penalty on these reasons:
- The state has no right to take the lives;
- Capital Punishment is not useful and necessary way of punishment;
He called the death penalty excessive,unnecessary and pointless.
The irrevocable consequences of the death penalty invited public attention. So, British Royal Commission on Capital Punishment in the year 1949 examined the problem and the death penalty was suspended in England and Wales from 1965 to December 31, 1969.
Famous Executions in the World
Jesus Christ was crucified on account of Blasphemy.
The second wife of King Henry VIII, Anne Boleyn was executed as she couldn’t give a male heir. She was beheaded in May 1536. Later on his fifth wife, Catherine Howard who was a teenager was also beheaded on the ground of treason.
Socrates was a Greek philosopher. He was hated by the people of Athens, he was charged for heresy and corrupting the youth, he was forced to drink poison.
Marie Antoinette, who was the wife of King Louis XVI of France was executed in 1793. How did the Death Penalty come to India?
ANCIENT INDIA
The punishment policy of ancient India is known as “danda-niti”, as per the “manu”, “Brihaspati” and “Yajnavalkya”, there were four modes of punishment namely:
- Admonition (vakdanda),
- Penance (Prayaschitta),
- Fine (Arthadanda),
- Corporal punishment (Vadhadanda,Mrityudanda,Angvichheda);
Corporal punishment included the Death Penalty, all forms of punishment were quite barbaric like chopping off limbs, branding on forehead, ancient penal jurisprudence was based on the idea that the king should be apt in Governance or “Rajdharma” . In ancient India “Brahmin” were given supremacy over the others, even in punishment, as they were not allowed to be awarded the Death Penalty.
MEDIEVAL INDIA
This was the era of Mughal invasion in India. They introduced their own penal laws in India. There were four modes of punishment:
- Quisa (retaliation)
- Diya (compensation)
- Hadd (limit, defined)
- Tazeer
All these four ways of punishment were biased for Hindus. The system was retributive, discriminatory, based on suppression or oppression towards Indians. During this period the Death Penalty reached its crudest shape including crushing by elephant, “wall in” so that accused suffocate and die, throwing the accused in scorching sun after tying him in a tight robe prepared from buffalo’s skin.
MODERN INDIA
Modern India roughly commences from the Nineteenth Century with the arrival of Warren Hastings, when Mughal punishments were abolished and the only way of administering the Death Penalty was by hanging till death. Later, after the Sepoy Mutiny a need was felt to introduce a proper penal code for British India. In response, Lord Macauley introduced the Indian Penal Code, 1860. Under section 53 of the Indian Penal Code, 1860 Death was listed as a punishment along with imprisonment, transportation of life, fine.
The Death Penalty is prescribed under specific penal provisions of various laws including but not limited to the following curated list of penal laws:
INDIAN PENAL CODE, 1860 and BHARTIYA NYAYA SANHITA, 2023
Following are the some offences for which Death Penalty is prescribed.
| Offence | Under IPC | Under BNS |
| for waging war against the Government of India, | 121 | 147 |
| Abetment of mutiny actually committed | 132 | 159 |
| Perjury resulting in the conviction and death of an innocent person | 194 | 230 |
| Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent person | 195 | 231 |
| Murder, | 302 | 103 |
| Abetment of a suicide by a minor, insane person or intoxicated person | 305 | 107 |
| Attempted murder by a serving life convict | 307(2) | 109(2) |
| Kidnapping for ransom | 364(A) | 140 |
| Rape and injury which causes death or leaves the woman in a persistent vegetative state | 376(A) | 66 |
| repeat offenders in the context of rape | 376(E) | 71 |
| Dacoity with murder | 396 | 310(3) |
Death Penalty Under Other Special and Local Laws
Apart from the Bhartiya Nyaya Sanhita, 2023, there are several other special and local laws which prescribes death penalty for certain offences. This includes organised crime, arms and ammunition, narcotic drugs etc.
| Category of Offence | Legislation/Statute | Provisions |
| Armed Force | Air Force Act, 1950 | Sections 34, 37, 38(1) |
| Armed Force | Army Act, 1950 | Sections 34,37 and 38(1) |
| Armed Force | Assam Rifles Act, 2006 | Sections 21, 24, 25(1) and 55 |
| Armed Force | Border Security Force Act, 1968 | Sections 14,17,18(1)(a),46 |
| Armed Force | Coast Guard Act, 1978 | Sections 17 and 49 |
| Organised Crime | The Maharashtra Control of Organised Crime Act, 1999 | Section 3(1)(i) |
| Organised Crime | The Karnataka Control of Organised Crime Act, 2000 | Section 3(1)(i) |
| Organised Crime | The Andhra Pradesh Control of Organised Crime Act, 2001 | Section 3(1)(i) |
| Social Reform | The Commission of Sati (Prevention) Act, 1987 | Section 4(1) |
| Narcotics drugs | The Narcotics Drugs and Psychotropic Substances Act, 1985 | Section 31A(1) |
| Caste discrimination | The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 | Section 31A(1) |
| National Security | The Defence of India Act, 1971 | Section 5 |
| International humanity | The Geneva Conventions Act, 1960 | Section 3 |
| Public Safety and Security | The Explosive Substances Act, 1908 | Section 3(b) |
| Sale of illicit liquor | The Bombay Prohibition (Gujarat Amendment) Act, 2009 | Section 65A(2) |
| Repealed | The Army Act, 1950 | Section 27(3) |
This table is illustrative rather than exhaustive. It does not encompass every statute which provides for the death penalty.
People who are exception to the award of the Death Penalty in India
| PEOPLE | AUTHORITY |
| MINOR: whoever less than the age of 18 | Juvenile Justice(Care and Protection) Act, 2015 |
| Pregnant women | Section 416, Code of Criminal Procedure,1973 |
| Any person suffering from any Mental Disorder | Resolution 2000/65 of UN Human Rights Commission Clause 3(e) |
Death Penalty in International Community
International legal landscape do not support the Death Penalty as it is violative of the right not to be subject to torture, or other inhumane, barbaric, degrading forms of punishment as promised by Article 5 of the Universal Decleration of Human Rights, 1948, which came into existence on December 10th, 1948. Since then, December 10 is celebrated as International Human Rights Day every year.
Next is the International Covenant on Civil and Political Rights which was adopted on December 16, 1966 by a General Assembly resolution. Article 6 of the covenant guaranties that right to life is inherent to every human being.It cannot be taken away arbitrarily. However, the sentence of death can be imposed in those countries where death is a punishment only in serious offences as per the law of that country as per the order of the competent court. The Death Sentence cannot be imposed on any one who is below the age of Eighteen and pregnant women. Right to seek pardon and commutation of sentence shall always be there in order to withhold human rights of everyone. This Covenant neither supported the Death Penalty nor abolished the Death Penalty. It left it to the decisions of the concerned Government.
The Second optional protocol to the International Covenant to civil and Political Rights which was adopted in 1989 abolishes the Death Penalty by setting out that any party to this covenant shall take necessary steps to abolish the Death Penalty within its jurisdiction.
United Nations Convention on the Rights of the Child under Article 37(a), a child or young person shall not be tortured, imprisoned for no chance of release, they shouldn’t even be arrested. This view is based on the best interest of the child or young person.
LAW COMMISSION OF INDIA REPORT NO.262 ON DEATH PENALTY
Law Commission 262nd Report on the Death Penalty is the aftermath of Shankar Kishan Rao Khade v. State of Maharashtra (2013) where Supreme Court called the Law Commission of India, to resolve the issue by examining the nature of the Death Penalty as deterrent, retributive or as an incapacitated goal. However, this pronouncement was not the first in the Indian judicial trends, earlier in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009), the Apex Court asserted the need of credible research either by the Law Commission of India or the National Right Human Commission for an informed and latest debate or discussion on this topic.
Following are the highlights by the Law Commission of India in this Report:
- Law Commission recommended to abolish death penalty for all offences except waging war against the Government and Terrorism;
- It suggested Government should implement expeditiously Police reforms, Witness Protection Scheme, Victim Compensation Scheme;
- Retention of the Death Penalty in Terrorist Activities and Treason is important for Sovereignty and Security of our nation;
- The major issue highlighted by the Commission is the unguided judicial reasoning or application of mind while recording reasons for the Death sentence, which are primarily instigated by theories of punishment or media brouhaha;
- The report discussed inconsistencies in various Supreme Court’s judicial decision with the march of time;
- Several factors including conditions in correctional facilities, lack of legal-aid, ignorance of penalty by the offender, protracted trial procedures lead the Commission to observe that it is the high time to abolish the Death Penalty.
- Most of the time the only staunch argument for the Death Penalty is “Deterrence”, so Commission relied on the Journal Article by Paul Robinson and John Darley (2004) on following observations:
- There are certain pre-requisites for deterrence to work, if any of these pre-requisites is weak then deterrence may not work:
- The offender should know that this offence have death penalty as a measure;
- Crime is not always committed by mere free will, it is also a calculated risk involving cost analysis,benefits arising after the commission;
- Offender knows already if I do this I will have to face the Death Sentence. It is the direct consequence;
- Potential offender is not risk seeking but a risk averse;
- Potential offender give weightage to cost factor not the pleasure or gain aspect of the act;
If these conditions are satisfied then there will be deterrence, if someone is adventurous or a risk taker, he will not be refrained or deterred by this.
But there are two major fallacies are there:
- Knowledge fallacies which implies that the offender do not have any awareness of the punishment associated with each of the offences;
- Rationality fallacies which implies who ever prepare to commit a crime do it with deliberations, weighing down all the calculated risks associated with it;
SUPREME COURT ON DEATH PENALTY
In Jagmohan v State of Uttar Pradesh (1973) by a unanimous verdict of five-judge Bench, the Supreme Court concluded that the Death Penalty is not violative of Articles 14,19,and 21. Since, a judge has to do judicial reasoning whether to provide the sentence of death or the life term, he has to keep in mind facts of the case, circumstances preceding, attending and following the crime, the gravity of the act, whether it was planned or in the heat of passion. So, the award of the Death Penalty is as per the procedure, not arbitrary. Hence, constitutional.
In Rajendra Prasad v State of Punjab (1979) by a majority of 2 to 1 through Mr. Justice V. R. Krishna Iyer observed that penal institutions cannot cure criminality within the criminal.This failure is the sole cause of cruel murder. The Bench commuted the sentence of death to that of life. He said further, where the murder is deliberate, gruesome, cold-blooded,and there are no extenuating circumstances that means there are no situations that can lessen the brutality or the gravity of the offence, then, death sentence can serve as a measure of social defence.
In a way Rajendra Prasad’s case provided a proper opportunity to the Supreme Court to look into the dilution of the Death Penalty in the socio-economic scenario of India. Justice Sri V. R Krishna Iyer stressed that the death sentence is violative of the Articles 14,19 and 21 of the Constitution of India. He said that the death sentence is alien to fundamental rights. Restriction should be reasonable, these restrictions when reach to the extent of extinction requires prohibition of fundamental rights totally. While sentencing, the court cannot be arbitrary, as arbitrariness is akin to inequality.
Furthermore, Justice Iyer tried to come at the point that special reasons referred under section 354(3) of the code of criminal Procedure must be interpreted in a way that the Death Penalty is limited to rare or special categories of offences as white-collar offences, hardened offences, trans-border crime like hijacking.
Also,learned judge brought light on the concern that in India murder is not professional, it is because of sudden out-burst of emotions like family feud, heat of passion,or an altercation, which arouses one to go to any stretch, in these circumstances prospects of reformation of the offender are still there if he is not awarded with death sentence.
The ruling of Rajendra Prasad’s case was followed in the following cases:
K. Guruswamy v. State of Tamil Nadu (1979) where the accused committed a murder out of a family quarrel, and his death sentence was commuted to life imprisonment. Further, in Dalbir Singh v. State of Uttar Pradesh (1979) where death sentence was commuted to life imprisonment on the ground that provocation was initiated from the deceased side.
RAREST OF RARE CASE
A year later, the Supreme Court, after the passing of ruling in Rajendra Prasad’s case, dwelled in the discussion of choice between the Death Penalty and life-imprisonment, in the famous case of Bachan Singh v State of Punjab (1980). The Apex Court by majority of 4 to 1, majority judges: Mr. Justice Y.V. Chandrachud, Ranjit Singh Sarkaria, A.C. Gupta, N.L. Untwalia,JJ.And minority: Justice P.N.Bhagwati.
The Supreme Court imposed certain limitations on the award of the Death Penalty.
- The extreme penalty of life should be inflicted only in the gravest cases of extreme culpability.
- The circumstances of the accused should also be considered along with the circumstances of the offence.
- Life imprisonment should be the rule and capital punishment should be the exception.
- Both the aggravating factors and mitigating factors should be weighed down to ascertain the guilt to award the Death Penalty.
Henceforth, life imprisonment became the rule and the life sentence or capital punishment became an exception, to be awarded in the rarest of rare cases. But what are the rarest of rare cases was not discussed in detail. Hence, the criteria to award life imprisonment or life sentence created confusion for the judges. A need was felt to resolve this dilemma, thereafter, in the case of Machhi singh v State of Punjab (1983) the Supreme Court come face to face to left the curtain regarding the application of the rarest of rare case rule to the facts of different cases to prevent miscarriage of justice.
Following guidelines were laid down by the Court to apply the rarest of rare case doctrine:
A Manner of Commission of Murder:
If the killing is done in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to aggravate intense and extreme indignation of the community. This is something which shakes the conscience of the society as a whole. For example, if someone sets ablaze someone’s home. Or, when the body of the killed is cut into several pieces to express immense hatred towards him.
B Motive for Commission of murder
When the murder is committed for a motive which indicates a total state of being morally corrupt and selfish. It may include personal gains like hired assassin kills for huge monetary or luxury gains. Or killing of anyone superior in rank in office to procure that promotion.
C AntiSocial or Socially abhorrent nature of the crime
It includes murder of under-privileged society members or minority to create fear in the mind of that community. Such instances are clear indicators of social imbalance. They are violative of life and personal liberty. It includes instances of “bride-burning” also. The motive may vary from seeking dowry, marrying another, any business motive.
D Magnitude of Crime
It includes killing of masses like the entire family, lot of people of a particular community, locality, or passengers in a train.
E Personality of Victim of murder
When the victim of murder is
(a) a small child who could not provocate anyone for murder.
(b) a helpless woman or a person rendered helpless on account of old age or infirmity
(c) when the victim can be dominated by the murderer
(d) when the victim is a celeb, famous, loved, admired and respected by the community for the services offered and discharged by him and the murder is committed for political or similar reasons other than personal reasons.
For applying these guidelines following questions may be considered:
- What is uncommon about the crime that suggests the Death Penalty secures justice in place of life-imprisonment;
- Are the circumstances speaking of the death sentence?
In Santosh Kumar Singh v. State (through CBI) (2011), the mitigating circumstances of the accused that after his acquittal from the trial court he got married and a daughter was born to his family, here these mitigating circumstances outweighed the aggravating circumstances, hence his life sentence commuted to the life imprisonment.
In Mohd. Ajmal Mohammadamir Kasab v. State (2013) the main accused Kasab was sentenced to death by the Apex Court, evidently fell under the bracket of the rarest of rare doctrine, he being a serious threat to the society and law and order. His sentence was executed on November 24th, 2012.
ARGUMENTS FOR CONTINUANCE AND ABOLITION OF DEATH PENALTY
There are two views for the continuance or abolition of the Death Penalty:
(I) Retentionist view, which stresses on keeping the Death Penalty as a means of punishment, however, with certain checks and balances.
(II) Abolitionist view, which favours discontinuance of the Death Penalty on the ground that it does not serve any purpose of penological jurisprudence.
The most debatable and attention-seeking form of punishment among modern penologists is the Death Penalty. As a matter of law, the quantum of punishment depends on the degree of criminality. It must not exceed the gravity of the offence.Penalty is a price for a crime that a criminal has to pay. This price is in the nature of pain or suffering. It is awarded to exceed the amount of pleasure or benefit that the offender has enjoyed by committing the crime. It aims at reducing the occurrence of crime by the same perpetrator and others as well. It is intended to serve as a precedent or deterrence for others.
The purpose of punishment is to maintain discipline and to enhance a sense of security to aid in the development of the society as a whole, not to show utter disregard to the basic human rights of its citizens. The idea of “an eye for an eye, a tooth for a tooth…” is not a feature of any civilized society. On one hand, we follow the doctrine of presumption of innocence, on the other hand we favour awarding of death sentence to satisfy the society that justice is being delivered.The lack of uniformity in awarding this highest form of punishment, lead to undermining of jurisprudential principles, thus causing arousal among society.
RETENTIONIST VIEW
Retentionist are those scholars including lawyers, sociologists, criminologists, penologists, law enforcement personnels and other professionals or social workers who advocate retaining Death Penalty as a form of punishment to keep our criminal justice system robust and justice-oriented. India is one of the retentionist country among 78 who have kept the Death Penalty as a punitive measure.Following are high frequency arguments for retaining Death Penalty in the Indian legal system:
- Elimination of murderers by way of death is however retributive but fair and justice-oriented.
- Punishment should neither be less or more than the gravity of offence, most heinous crimes should be dealt with for setting an example for deterrent effect and maintaining a sense of security in the society.
- It upholds rule of law, not retribution, otherwise society may go back to retribution for satisfaction of their sufferings.
- Economically it is less expensive as compared to keeping in correctional facilities and provides him with basic amenities like food, clothes, precinct.
- Death Penalty is constitutionally valid as it is the most deterrent form of punishment .
- Death Penalty shows societal reaction to grotesque crimes.
- One who worsens another’s life, should also give up on his life.
- Death Penalty is a form of retributive justice as it provides immense satisfaction and mental peace to the victim if alive, or the family of the victim.
- Death Penalty is less grave with respect to the mental health of the offender, as compared to life sentence, society will keep stigmatizing him for his wrong doing, thereby, affecting his mental health and may turn him even more horrid and incorrigible.
- Some criminologists also perceive jails as criminal universities, as there one may learn more ways of committing crime and also escape.
- Death Penalty saves society from repeat offending better than any other form of punishment.
- Death Penalty is a vital form of justice which helps in prevention of heinous or most dangerous crime.
ABOLITIONIST VIEW
Abolitionists are those scholars including jurists, penologists, psychologists who do not support Death Penalty as a form of punishment. The abolitionist view has been found in the writings of Jeremy Bentham, Montesquieu, Cesare Beccaria.The essay on Crime and Punishment by Cesare Beccaria paved the way for abolitionist movement. It is based on the tenet that the State is not justified in taking away someone’s life. In India the father of the Constitution Dr. B.R. Ambedkar advocated for the abolition of the Death Penalty, according to him our country believe in the principle of non-violence.He believed people of this country will certainly follow the principle of non-violence as a moral mandate.He suggested that the issue of the Death Penalty should be left on Parliament to legislate on.
Following are the arguments put forth by abolitionists to support discontinuance of Death Penalty as a means for impart justice:
- Death Penalty is killing justified by the law, but it is killing, therefore, death sentence is wrong.
- It goes against the principles of rehabilitation, reformation and restorative justice.
- Death Penalty is violative of human rights, as per Articles 3 and 5 of Universal Declaration of Human Rights, 1948.
- Death Penalty is severe for those who are not capable of defending themselves before the court of law owing to their financial conditions or socio-economic challenges. So, award of death penalty is miscarriage of justice in such a scenario.
- Since Death Penalty is irreversible and irrevocable in its inception, so if someone later found innocent can’t be brought back to life and society.
- There are several instances of hired murderers like in the assassination of famous political leaders, assailants were not fearful of repercussions, they did it only for money or some personal reason. In the end, the death penalty doesn’t serve the purpose of deterrence anymore.
- Death Penalty is against the Doctrine of Presumption of Innocence”, as the fear of executing someone innocent can never be eliminated owing to poor administration, media interference, destruction of evidence, hostile witnesses, lack of proper representation of wrong doers before the court.
CONCLUSION
The debate on the death penalty centers around the sentiments of society, victims and the objectives of the criminal justice system. It is the subject of human rights. The retentionist says that capital punishment is an effective response against heinous crime where the accused had no sensitivity towards the victim, no morality, and no care towards future repercussions. While abolitionists question its validity in today’s world. They question its impact on society. Is it really leading to reduction in heinous crime? They discuss its irreversible nature. When someone’s life is taken away it cannot be restored. If an innocent person’s life has been taken away by a wrongful conviction, it can never be restored.
In India, the death penalty continues to saved under the doctrine of “rarest of rare cases”.Its application should stay exceptional not a general form of punishment.Now with the latest report on death penalty a need was felt to reconsider the death penalty as a mode of deterrence over other alternate reformatory measures as death penalty is no more effective as deterrent as time has changed.It should be awarded only when no lesser punishment is adequate to balance the interests of justice with the crime so committed.
