CHAPTER - IV

DEATH PENALTY VIS-A-VIS HUMAN RIGHTS 1.

General

Capital punishment is the punishment of death which is generally awarded to those

guilty of heinous crimes, particularly murder. Capital punishment is nothing but judicial
murder, it is said specially when an innocent life is destroyed. Besides this, capital
punishment, as is generally supposed is not deterrent. Though the awarding of capital
punishment specially for murder is according to age old tradition, in recent times there has
been much hue and cry against it. It has been said that capital punishment is brutal, that it is
according to the law of jungle that is an eye for an eye and tooth for a tooth. It is pointed out
that there can be no place for it in a civilized country. The question of capital punishment -
its abolition or retention has been agitating the civilized world for a long time. Capital
punishment means the death sentence. It is awarded to such persons who are charged and
convicted of serious crimes.

What is it that separates humans from animals? What do human have, that animals
don't. Human consider themselves civilized creatures and to live in a civilized manner, they
must be governed by certain laws formulated by the governing bodies, which have been
formulated by the people themselves. Every human being is born with the inherent right to
life. Human life is considered to be one of the most sacred things throughout history. Kings
have gambled their wealth, power and status just to protect it. So the question that really
comes to mind is that if the State cannot give life, does it have the right to take it. Capital
punishment or the death penalty is a legal process whereby a person is put to death by the
State as a punishment for a crime. The judicial decree that someone be punished in this
manner is the death sentence, while the actual process of killing the person is an execution.
Crimes that can result in a death penalty are known as capital crimes or capital offences.
The term capital originates from the Latin capitals, literally "regarding the head"(referring to
execution by beheading). The right to live is the birth right of all living beings. Article 3 of
the Universal Declaration of Human Rights, 1948 states quite clearly that everyone
112

has the right to life, liberty and security of person. In the light of this fundamental right to
life, the United Nations Organization (U.N.O.) has tried to make the use of death
punishment as limited as possible, aiming of course at a total stop. In 1989 US's General
Assembly passed the "Second Optional Protocol to the International Covenant on Civil and
Political Rights, aiming at the abolition of death penalty". This protocol declares quite clearly that the abolition of death
penalty will strengthen the human dignity and develop the human rights. In the course of social evolution; it can be seen that
certain practices are given up and no longer tolerated. Ritual human sacrifice, slavery by the way of example etc. have
largely been abandoned. Vestiges do continue but those are aberrations that further underscore the fact that would has turned
against these practices. There is no denying that some heinous crimes are beyond description and violate human dignity and
life in the grimmest of fashion.

Death sentence has been used as an effective weapon of retributive justice for centuries. The justification advanced is
that it is lawful to forfeit the life of a person who takes away another's life. A person who kills another must be eliminated
from the society and therefore, his execution is justified. 1 The motive for death penalty may include vengeance which is a
compensatory and reparatory satisfaction for an injured party, group or society. When regulated and controlled by law,
vengeance is also socially useful. Legal vengeance solidifies social solidarity against law-breakers and probably is the only
alternative to the disruptive private revenge of those who feel harmed. 2

The human rights supporters who are against the death penalty, have the view that death penalty has failed as a
measure of social protection, so also as an instrument of retributive justice. Citing illustrations from United States to support
this contention, he argued that the number of executions are far less than the number of murders committed annually which
clearly indicates that death sentence is no longer looked with favour and is falling into disuse rapidly. Another argument
which needs attention regarding declining effect of death penalty is that even after the award of this sentence, in most cases,
it is either commuted or pardoned in the last resort and its final execution is seldom carried out.

2. Historical Perspective of Death Penalty

Unlike animals, human beings in the course of time have upgraded their social standards in which they reside and
where they can claim to be proud residents of a protective society, where they have a prerogative claim to basic civic,
political, economic and legal rights, where State watches and prevails over crime and they are also the recipients of
persistent and unwavering justice, which being stringent ensures that any slight deviation from time honoured and accepted
behaviour by any citizen brings them under the austere eyes of the law which then helps in preserving the fabric of the
society and the efficiency of its social network which de facto is one core reason why society should have capital
punishment as a tool and aid to be used as a deterrent; it has been universally supported by the great political thinkers like
John Locke who propounded his concept of capital punishment containing elements of retributive and utilitarian theory,
where he contends that a person forfeits his rights for the commission of even minor crimes and such rights are forfeited,
punishments can be rightly pronounced on them as they have made a breach to the social contract to which they had agreed
and the remedy is punishment to the wrongdoer which in itself is an endeavour to darn the damage done to the social fabric.

1 David Dressler : Reading in Criminology and Penology (Second Ed.)p. 501

2 Ernest Van den Haag, Is Capital Punishment Just? P. 406
2
 Punishment is needed to protect our society by deterring crime through such examples, does society may punish the
criminal in anyway it deems necessary which may include taking away his life so as to set an example for other would be
criminals and is further justified for the reason that the acts which are so wile and destructive for society and dignity of the
people. Invalidating the right of the perpetrator to membership and even to life, because preciousness of life in a moral
community must be so highly honoured that those who do not honour the lives of others make null and void their own right
to membership, which is why in a community based on love and ideals when made to face the music of hostility and having
to deal with people who have committed brutal errors of terror, violence and murder, face a dilemma by the way of the set
of ideals the community propagates; it cannot imbibe the philosophy of , "An eye for eye, a tooth for a tooth and a life for a
life". But would be forced to act for the safety of the members of the community from further destruction and would have to
treat the perpetrators who had shown no respect for life to be restrained, permanently if necessary, so that they could not
further endanger other members of the community which would leave a sense of satisfaction and happiness to all with
whom the wrong has been done or relatives of the victim and to society as such, if he who breaks the law is not punished
then he who obeys it is cheated which can also be rightly corroborated from the utilitarian and retributive perspective of
capital punishment.

Jurist Hobbes asserted that every man had under the natural order has the right of repraisal for wrongs done to
himself or anyone else. Then he said that social contract had left this right to the sovereign while taking it away from
everyone else. Jurist Kant viewed that every political society had a duty to enforce retributive justice. Jurist Roussoeu felt
that the subject ought not to complain if the sovereign demanded the subject's life. He considered death as a proper
punishment, if the criminal was beyond redemption. Jurist Salmond has said that a society which felt neither anger nor
indignation at outrageous conduct would hardly enjoy an effective system of law.

3. Capital Punishment in Ancient Rome and Greece

In ancient times, the law administrators unflinchingly executed murderers because they believed that "the life of
each man should be sacred to each other man". They realized that it is not enough to proclaim the sacredness and
inviolability or human life, it must be secured as well, by threatening with the loss of life of those who violate what has been
proclaimed inviolable the right of innocent to live. Murder, being the worst of crimes, must deserve the highest penalty
which is death sentence. This shall also be in accordance of the principle that punishment must be in proportion to the
gravity of the offence. Ancient Romans accepted the deterrent value of death penalty. Under the Roman criminal law, the
offender was put to public ridicule and his execution took the form of a ceremony. Death was caused to the condemned
person in a most tortuous manner. For example, one who killed his father was sewn in a sack along with a live dog, cat and
a cobra and thrown into river. The object was to make him die

3
most painfully. The sentence of death could be awarded even to a debtor who was unable to
pay off the debt of his creditor. Thus, a creditor who found that his debtor was unable to pay
off the debt, could vent his wrath upon the debtor by marching him up the Tarpeian rock and
hurling him from there to death. The Greek penal system also provided death sentence for
many offences. The offenders were stripped, tarred and feathered to death publicly.
Execution of death penalty in public places was favoured because of its deterrent effect.

4. English Law on Death Penalty

The history of crime and punishment in England during the medieval period reveals
that infliction of death penalty was commonly practiced for the elimination of criminals.
Henry VIII who reigned in England for over fifty years, 3 was particularly infamous for his
brutality towards the condemned prisoners. He used to boil the offenders alive. His daughter
Queen Elizabeth who succeeded him, was far more stiff in punishing the offenders. The
offenders were not put to death at once but were subjected to slow process of amputation by
bits so that they suffer maximum pain and torture. The condemned offenders were often
executed publicly. These brutal methods of condemning the offenders were, however,
abandoned by the end of eighteenth century when the system of transporting criminals to
distant American Colonies at their option was firmly established.

Dr. Fitzgerald observed that the history of capital punishment in England for the
last two hundred years recorded a continuous decline in the execution of this sentence. 4
During the later half of the eighteenth century as many as two hundred offences were
punishable with death penalty. The obvious reason for the frequency of execution was the
concern of the ruler to eliminate criminals in absence of adequate police force to detect and
prevent crimes. The methods of putting offenders to death were extremely cruel, brutal and
torturous.

As the time passed, the severity of capital punishment was mitigated mainly in two
ways : Firstly, this sentence could be avoided by claiming the 'benefit of clergy' which
meant exemption from death sentence to those male

3 Henry VIII ruled over England from 1491 to 1541 AD.

4 Fitzerald, P.J., Criminal Law and Punishment ,1962 p. 216.
116

offenders who could read and were eligible for holy Order. Secondly, the prisoners who
were awarded death sentence could be pardoned if they agreed to be transported to
American Colonies. During later half of the eighteenth century, condemned felons could be
transported for seven years in lieu of capital sentence. In course of time, death punishment

4
for felony was abolished,3 and in 1853, the system of transporting criminals also came to an
end and a new punishment of penal servitude was introduced.Commenting on the frequency
of executions during the eighteenth century Donald Taft observed that during no period in
the history of western civilization were more frantic legislative efforts made to stem crime
by infliction of capital punishment as in that century. 4 In his opinion, the growing
importance of this punishment was owing to the agrarian and industrial changes in the
English society resulting into multiplicity of crimes which had to be suppressed by all
means. Supporting this view it was observed that more than 190 crimes were punishable
with death during the reign of George III in 1810. However, with the advance of nineteenth
century, the public opinion disfavoured the use of capital punishment for offences other than
the heinous crimes. Bentham and Bright, the two eminent English law reformers opposed
frequent use of capital punishment. Sir Samuel Romilly also advocated a view that the use
of capital punishment should be confined only to the cases of intentional and willful murder.

The irrevocable and irreversible nature of death penalty gave rise to a number of
complications which invited public attention towards the need for abolition of death
sentence. Consequently, the British Royal Commission on Capital Punishment was
appointed in 1949 to examine the problem. As a result of the findings of this Commission,
death sentence was suspended in England and Wales for five years from 1965 and was
finally abolished by the end of 1969. However, the constant rise in the incidence of crime in
recent decades has necessitated Britain to re-assess its penal policy regarding death penalty.
The two decisions of the Privy Council emphatically stressed that the award of death
sentence is not violative of human rights or fundamental rights.

5In subsequent years, this benefit was extended to women also. It was finally abolished in
1927.

5. Death Sentence under different Statutes

Capital Punishment is laid down as a penalty in several Legislative Acts, such as

the Indian Penal Code, 1860, (IPC) and the penalty provisions of national security and anti-
narcotics legislation. Under the I.P.C. approximately eleven offences are punishable by
death. A death sentence may also be imposed for a number of offences committed by

3 Death as a punishment for felony was abolished in 1827.

4 Taft & England, Criminology (4th Ed.) p. 297.
members of the armed forces under the Army Act, 1950, the Air Force Act, 1950 and the
Navy Act 1956.

Several legislative attempts to abolish the death penalty in India have failed.
Before Independence a private Bill was introduced in the year 1931 Legislative Assembly to
abolish the death penalty for Penal Code offences. The British Home Secretary at the time
however rejected the motion. The Government of Independent India also rejected a similar
Bill introduced in the first Lok Sabha. Resolutions introduced in the Rajya Sabha in 1958
and 1962 house debates of the Law Commission which was at the time reviewing the Indian
Penal Code, 1860 and the Code of Criminal Procedure, 1973. The Law Commission in its
Report presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that
the death penalty should be retained and the executive (President) should continue to
possess powers of mercy. National discussion about the death penalty has resurfaced from
time to time. The Lok Sabha specifically discussed abolition of the death penalty in 1983.
While the Prime Minister at the time publicly favoured abolition, her Minister in Home
Affairs denied that the Government was considering any specific proposals to abolish the
death penalty. Some time back, the debate over the death penalty was reinvigorated when all
26 defendants in the Rajiv Gandhi assassination case were sentenced to death.

In fact in recent years the Indian Parliament (Lok Sabha and Rajya Sabha) has
dramatically extended the scope of the penalty. The Terrorist and Disruptive

8 Eston Baker v. Queen, 1975 PC 774 and Michael de Fraeities v. George

Ramoutar Benny, 1976 PC 239.

Activities (Prevention) Act, 1985 (TADA) which was extended in 1987 empowered special
courts to impose the death penalty for certain broadly defined 'terrorist' acts. Although the
Parliament decided to let this hugely unpopular and controversial Act lapse in 1995, it is
now considering new legislation, in the form of the Prevention of Terrorism Bill which
would reintroduce many aspects of the Terrorist and Disruptive Activities (Prevention) Act,
1985 TADA.

Use of the death penalty has also been extended through other legislation. The
Commission of Sati (Prevention) Act, 1987, which prescribes punishment by death for any
person who either directly or indirectly abets the commission of 'Sati'(immolation of a
widow). The Narcotics, Drugs and Psychotropic Substances (Amendment) Act, 1988,
introduced the death penalty as a punishment for financing, or engaging in the production,
manufacture or sale of narcotics or psychotropic substance of specified quantities (eg.
opium 10 kgs, cocaine 500 grams) after previous convictions. The Scheduled Castes and

6
Scheduled Tribes (Prevention of Atrocities) Act, 1989, introduced the death penalty for
fabricating of providing false evidence that results in the conviction and execution of an
'innocent' member of a scheduled caste or scheduled tribe. In February 2013, the Criminal
Amendment Act, 2013 came into force which provides death penalty for causing death of
rape victim.5

6. Mode of Execution

The execution of death sentence in India is carried out by two modes namely
hanging by neck till death and being shot to death. The jail manuals of various States
provide for the method of execution of death sentence in India. Once death sentence is
awarded and is confirmed after exhausting all the possible available remedies the execution
is carried out in accordance with section 354(5) of the Code of Criminal Procedure 1973 i.e.
hanging by neck till death. It is also provided under The Air Force Act, 1950, The Army Act
1950 and The Navy Act 1957 that the execution has to be carried out either by hanging by
neck till death or by being shot to death.

5 This amendment was made on the recommendations of Justice Verma Committeeconstituted for reform in
criminal law. This Committee was the outcome of hue and cry of people for severe punishment for rape offenders
against the 16 December, 2012 gang rape case in Delhi.
7. Execution of Death Sentence

Section 413 of Criminal Procedure Code provides that when in a case submitted to
the High Court for the confirmation of a sentence of death, the court of session receives the
order of confirmation or other order of the High Court thereon, it shall cause such order to
be carried into effect by issuing a warrant or taking such other steps as may be necessary.

Section-414 of the Criminal Procedure Code provides that when a sentence of death
is passed by the High Court in appeal or in revision, the court of session shall, on receiving
the order of the High Court, cause the sentence to be carried into effect by issuing a warrant.

Section-415 (1) of the Criminal Procedure Code provides that where a person is
sentenced to death by the High Court and an appeal from its judgment lies to the Supreme
Court under sub clause (1) of clause (1) of Article 134 of the Constitution, the High Court
shall order the execution of the sentence to be postponed until the period allowed for
preferring such appeal has expired, or if an appeal is preferred within that period, until such
appeal is disposed of. Section 415 (2) of the Criminal Procedure Code provides that where a
sentence of death is passed or confirmed by the High Court, and the person sentenced
makes an application to the High Court for the grant of a certificate under Art. 132 or under
sub- clause(c) of clause(1) of Article 134 of the Constitution, the High Court shall order the
execution of the sentence to be postponed until such application is disposed of by the High
Court, or if a certificate is granted on such application, until the period for preferring an
appeal to the Supreme Court on such certificate has expired. Further, Section 425 (3) of the
Criminal Procedure Code provides that when a sentence of death is passed or confirmed by
the High Court, and High Court is satisfied that the person sentenced intends to present a
petition to the Supreme Court for the grant of special leave to appeal under Article 136 of
the Constitution, the High Court shall order the execution of the sentence to be postponed
for such period as it considers sufficient to enable him to present such petition.

Section-416 of the Criminal Procedure Code provides that if a woman sentenced to

death is found to be pregnant, the High Court shall order the
120
execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to
imprisonment for life.

8. Capital Punishment (Death Sentence) Under The Indian Penal

Code, 1860

8
 Capital Punishment is prescribed in India for various offences under the Indian
Penal Code. The offences for which capital punishment is prescribed under Indian Penal
Code are as follows:

1. Waging war against the Government of India (Section 121)

2. Mutiny and its abetment (Section 132)

3. Giving or fabricating false evidence upon which an innocent person suffers death
(Section 194)

4. Murder (Section 302)

5. Punishment for murder by life-convict (Section 303)6

6. Abetment of suicide of child, insane person (Section 305)

7. Dacoity accompanied with murder (S. 396)

8. Attempt to murder under sentence of imprisonment. If hurt is caused in such

attempt (Section 307)

9. Kidnapping for ransom (Section 364-A)

10. Causing death or resulting in persistent vegetative state of victim

(Section 376-A)7

Despite frequent demand from some sections of society, India has not
so far, abolished capital punishment. But even in India there has been a decline in the
frequency of such punishment, it is now awarded only in case of hardened criminals and
only when it is established that the murder was not the result of momentary impulse, the
result of serious provocation, but well planned and cold blooded. In such cases, it is felt that
nothing less than capital punishment would meet the ends of justice, that it is just and
proper that such beasts of society are eliminated. It is, therefore, in the fitness of things that
India has not so far abolished capital punishment but used it more judiciously, sociologists
are of the view that capital punishment serves no useful purpose.

9. Related provisions of Criminal Procedure Code, 1973

6 In Mithu v. State of Punjab, AIR 1983 SC 45, Section 303 of Indian Penal Code has been declared
unconstitutional.

7 This section has been substituted by Amendments Act 13 of 2013, and it has been enforced from 03-02-2013.
Section 354(3), (5) of the Criminal Procedure Code requires that when the conviction is for
an offence punishable with death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall the state reasons for such sentence.
Further, when any person is sentenced to death, the sentence shall direct that he be hanged
by the neck till he is dead.

Section 366 of the Criminal Procedure Code procedure that when the Court of Session
passes a sentence of death, the proceedings shall be submitted to the High Court, and the
sentence shall not be executed unless it is confirmed by the High Court. The court passing
the sentence shall then commit the convicted person to jail custody under a warrant.

Section 367 of the Criminal Procedure Code procedure that When such proceeding are
submitted, the High Court thinks that a further inquiry should be made into, or additional
evidence taken upon, any point bearing upon, any point bearing upon the guilty or
innocence of the convicted person, it may make such enquiry or take such evidence itself, or
direct it to be made or taken by the court of session. The inquiry contemplated under Sec.
367 would take in the examination of the accused under Sec. 313(1) (a). When the inquiry
or evidence (if any) is not made or taken by the High Court, the result of such inquiry or
evidence shall be certified to such court. Unless the High Court otherwise directs, the
presence of the convicted person may be dispensed with when such inquiry is made or such
evidence is taken.

Section 368 of the Criminal Procedure Code procedure requires that no order for
confirmation shall be made until the period allowed for preferring an appeal has expired, or
if any appeal is presented within such period, until such appeal is disposed of. Section 369
of the Criminal Procedure Code procedure requires that in every case so submitted, the
confirmation of the sentence, or any new sentence or order passed by the High Court, shall
when such court consists of two or more judges, be made, passed and signed by at least two
of them. Further, Section 370 of the Criminal Procedure Code procedure provides that
where any such case is heard before a bench of judges and such judges are equally divided
in opinion, the case shall be decided in the manner provided by Section 392 of the Criminal
Procedure Code. As per the Section 371 of the Criminal Procedure Code procedure in cases
submitted by the Court of Session to the High Court for the confirmation of a sentence of
death, the proper officer of the High Court shall, without delay, after the order of
confirmation or other order has been made by the High Court, send a copy of the order
under the seal of the High Court and attested with his official signature, to the Court of
Session.

10
10. Concept of Rarest of Rare Cases

Whether a case falls under the category of rarest of rare case or not, for that matter the Apex
Court laid down a few principles for deciding the question of sentence. One of the very
important principles is regarding aggravating and mitigating circumstances. Court opined
that while deciding the question of sentence, a balance sheet of aggravating and mitigating
circumstances in that particular case has to be drawn. Full weightage should be given to the
mitigating circumstances and even after that if the Court feels that justice will not be done if
any punishment less than the death sentence is awarded, then and then only death sentence
should be imposed.

Again in Machhi Singh v. State of Punjab8 the court laid down :-

"In order to apply these guidelines inter- alia the following questions may be asked
and answered :-

(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?

(b) Are there circumstances of the crime such that there is no alternative but to impose
death sentence even after according maximum weightage to the mitigating
circumstances which speak in favour of the offenders?"

The principles laid down by the Apex Court were reiterated in its judgment in
Sushil Murmu v. State of Jharkhand" :

In rarest of rare cases, when the collective conscience of the

community is so shocked that it will expect the holders of the judicial
power center to inflict death penalty irrespective of their personal opinion
as regards desirability or otherwise of retaining death penalty, death
sentence can be awarded.

The Supreme Court has also discussed the circumstances in various cases. These
circumstances include:-

Murder committed in an extremely brutal, grotesque, diabolical, revolting or

dastardly manner so as to arouse intense and extreme indignation of the community.

Murder for a motive which evinces total depravity and meanness.

Murder of a Scheduled Caste or Scheduled Tribe arousing social wrath( not for
personal reasons)

8 AIR 1983 SC 947.

 Murderer is on dominating position, position of trust or in course of betrayal of the
motherland.

Where it is enormous in proportion.

Victim-innocent child, helpless woman, old/infirm person, public figure generally

loved and respected by the community.

If upon taking an overall view of all the circumstances and taking it into account
the answers to the question posed by way of the test of rarest of rare cases, the
circumstances of the case are such that death penalty is warranted, the court would proceed
to do so. In Lalit Kumar Yadav @ Kuri v. State of Uttar Pradesh 9,In the present case, the
circumstantial evidence comes to only one conclusion that appellant attempted to commit
rape and because of resistance he committed the murder of the deceased. The appellant was
aged about 21 years at the time of offence. Initially when the matter for confirmation of
death sentencewas heard by the two learned Judges of the High Court there was a divided

132004 (2) SCC 338.

opinion, one Judge confirmed the death sentence while the other acquitted the appellant. It
is the other Bench which affirmed the death sentence. It is not the case of the Prosecution
that the appellant cannot be reformed. In fact the possibility of his reformation cannot be
ruled out. There is no criminal antecedent of the appellant. The Court has to consider
10
different parameters as laid down in Bachhan Singh followed by Machhi Singh11 and
balance the mitigating circumstances against the need for imposition of capital punishment.
Court observed that considering the age of the accused, the possibility of reforming him
cannot be ruled out. He cannot be termed as social menace. Further, the case does not fall
under the "rarest of rare" category.

11. Retributive Character of Death Punishment

The punishment is retributive in character. The object of sentencing should be to

see that the crime does not go unpunished and the victim of crime as also the society has the
satisfaction that justice has been done to it lest it may lead to Lynch Law. There have been
instances where victim's relative killed the accused. Criminal Law has its origin in
vengeance. Punishment mechanism revolves around the satisfaction of law-abiding person's

9 2014 STPL (Web) 318 SC.

10 Bachhan Singh v. State of Punjab, AIR 1980 SC 898.
11 Supra 12.

12
anger. Anger is not always bad but it is the indifference of community towards the
circumstances, which is more harmful. One of the purposes of law is to calm the
community's anger by punishing the criminal. Anger which is not selfish like greed or
jealousy is socially constructive and when it erupts for right cause it should be rewarded.
Punishment is primarily satisfaction of private revenge and at the same time an emphatic
denunciation of the crime by the society. Any civilized society which shies away from
showing righteous indignation has nothing to distinguish it from main soul. The Criminal
Law stands to the passion of revenge in much the same relation as marriage to sexual
appetite.

The theory of deterrent punishment draws its inspiration from the hedonistic
philosophy of Beccaria's Classical school of criminology. A rigorous and maximum
punishment as against a moderate and lesser punishment helps to prevent the commission of
a crime. For the incorrigibles and habitual and hardened criminals death penalty is best
suited and it is the only method teaching hardened criminals. The incorrigible and hardened
criminals as a rotten limb of the society must be eliminated. The prevalence of recidivism
offers a serious stumbling block to a too ready acceptance of the idea of readily achieved
reformation. The recidivist becomes the criminal who after having experienced
rehabilitation treatment returns to crime and ultimately to prison again to be rehabilitated
further. Making murder a safer proposition, a less deadly proposition for the killer will have
a hostile effect on society. The capital punishment is an effective tool to curve the grave
wrong act such as of killing and it can also be instrumental in preventing society from
becoming ever more imperfect than it need be.

12. Global Perspective of Death Sentence

Given the abolition of the death penalty in Europe and a number of other nations
including Canada, Australia and Mexico, the question of unanimity has been rendered
superfluous in these States. A number of other States which continue to award the death
sentence require a unanimous verdict by all judges. Even in countries of the Commonwealth
that retain the jury system - Malta, Ghana, Anguillas, Guyana and the Bahamas- a
unanimous verdict is essential for a death sentence. Indeed common law follows a strong
tradition of commuting a death sentence to life in the case of a non-unanimous verdict.

Though the death penalty is imposed frequently in the United States of America,
(more than 900 people have been executed since 1976 and 3500 more await a similar fate),
the law is clearly in favour of unanimity. Criminal cases are tried by a twelve member jury
and after the landmark judgment in Ring v.
 17

Arizona , the jurors reserve the power to decide the sentence. No person may be awarded
the death sentence except by the unanimous verdict of a twelve member jury. This is the
law- in criminal as well as federal cases- in all 38 states that have retained the death penalty.
In US Martial and Martial Tribunal Courts, the Uniform Civil Code of Military Justice notes
that a death sentence can only be handed out with unanimity of opinion of a five member
panel that tries the case.

17 536 US 584(2002)

14
The panel must agree that no other sentence is more appropriate than death. In addition to
such safeguards, the convening authority has the power to reduce- but not increase- the
sentence and set aside a finding a guilt.

The Law Council of Australia has reported that even the Military Commissions set
up to try Guantanamo Bay detainees will follow the same procedure and therefore can only
unanimously impose the death penalty. Previously, even the Nuremberg and Tokyo war
crimes tribunals set up after the Second World War have required unanimity. In South Asia -
Nepal, Bhutan, Sri Lanka and the Maldives have abolished the death penalty either in law or
practice. However Pakistan and Bangladesh retain the death penalty and follow the majority
rule in awarding death sentences. In the Zulfiqar Ali Bhutto case in the Supreme Court of
Pakistan in 1977, the seven judge bench sentenced the former Prime Minister and former
President, Mr. Bhutto to death by a majority verdict with four judges in favour of the death
sentence.12

An international survey carried out in 1962 by the United Nations, however,

confirmed that neither suspension nor abolition of death penalty had any immediate effect in
increasing the incidence of crimes punishable with sentence of death. The countries which
had abolished capital punishment, notably, Germany, Austria, Scandinavia, Netherlands,
Denmark and some Latin American States reported no ill-effects of abolition.

It is significant to note that with the abandonment of the torturous and barbarous
methods of inflicting death penalty, the meaning of the term 'capital punishment' now
extends only to death sentence for murder or homicides. Particularly, in western countries
rape is no longer serious crime for two main reasons. Firstly, with general laxity in morality,
the gravity of this offence is fast declining. In the second place, scientists have established
rape as a mere passive surrender by the victim because in their opinion it is practically
impossible to commit rape unless the victim is made unconscious. Likewise, treason being
exclusively a war-time offence, it is futile to enlist it as a peace-time offence and to provide
death penalty for it.

In the modern reformative era, the retributive principle of 'tit for tat' does not serve
any useful purpose. Retribution can only do more harm than good to the criminals and can
never be an effective measure of suppressing crime. Retaliation and retribution, apart from
being outdated are also against the accepted norms of modern criminal justice. Beccaria was
perhaps the first criminologist who raised a crusade against capital punishment in 1764. He

12 PLD 1978 Lahore 523 (Criminal Original Case. No. 60 of 1977. 1 2 7

strongly protested against the use of cruel and barbarous modes of punishing the offenders
and emphasized the need of individualized treatment. He expressed a view that death as a
sentence symbolizes man's cruelty and insignificance of human life. In course of time, mens
rea became the guiding principle for determining the guilt and punishment of the offender
though it is true that in certain cases, it is difficult to determine mens rea of the offender.13

Yet another reason for discarding retribution as a principle of criminal justice to be

found in the fact that putting a person to death virtually amounts to killing him deliberately.
That apart, experience has shown that more than eighty per cent of the persons committing
murder are not really murderers but are persons who have fallen a prey to this heinous crime
due to circumstances such as passion, provocation, jealousy, sexual impulsiveness, poverty
or intoxication. Obviously, death sentence is hardly an appropriate punishment for such
offenders. The human rights supporters have expressed doubts about the adequacy of capital
punishment as it involves the risk of innocent person being sent to guillotine. In a number of
cases bona fide errors of judgment as to guilt of the accused are known to have occurred. If
an innocent person is hanged due to miscarriage of justice, his life is lost for ever and the
loss is obviously irredeemable. Perhaps it is for this reason that slightest doubt about the
guilt of the accused entitles him for an acquittal on the plea of 'benefit of doubt 14 under the
criminal law of most Countries.

The abolitionists strongly argue that since death penalty is irrevocable and against
the human rights, it should not be awarded. But the elaborate safeguards provided in the
procedural law clearly indicate that though the sentence of death is irrevocable, it is
awarded only after a thorough scrutiny at every stage of thecase and therefore, chances of
human error or judgment are not only minimized but reduced to almost nil. Slightest doubt
the guilt of the accused who is to be sentenced to death is sufficient to entail him benefit of
doubt. As such, abolition of death penalty on the ground of irrevocability hardly seems to be
justified.

13. Previous Efforts to Abolish Death Penalty

Legislative attempts to abolish the death penalty in India have failed. Before
Independence a private Bill was introduced in 1931 in Legislative Assembly to abolish the
death penalty for penal code offences. The British Home Secretary at the time however
rejected the motion. The Government of India rejected a similar Bill in the first Lok Sabha.

13 Dr. Vimla Devi v. Delhi Administration, AIR 1963 SC 1572.

14 Daiya Moshya Bhil v. State of Maharashtra, AIR 1984 SC 1730.1 2 8
Efforts were also made in Rajya Sabha to move resolution for abolition of death sentence in
1958 and 1962 but were withdrawn after some debate. The Law Commission in its Report
presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death
penalty should be retained and that the executive (President) should continue to possess
powers of mercy.

The issue of constitutional validity of Section 302 of Indian Penal Code, the
Supreme Court in Jagmohan vs. State of U.P.15 Apart thrashed out I.P.C. in detail from the
constitutional validity, the Supreme Court also discussed position in other countries, the
structure of Indian Criminal Law, the extent of Judicial discretion etc. It was held in
Jagmohan Singh vs. State of U.P.16, that death sentence act as deterrence but as token of
emphatic disapproval of the crime by the society, where the murder is diabolical in
conception and cruel in execution and that such murderers cannot be simply wished away
by finding alibis in the social maladjustment of the murderer. Expediency of transplanting
western experience in our country was rejected, as social conditions and so also the general
intellectual levels are different. The Court referred to the 25 th Report of the Law
Commission of India, in which it was stated that India cannot risk the experiment of
abolition of capital punishment. The fact that the possibility of an error being committed in
the matter of sentence can be corrected by appeals and revisions to higher courts was relied
upon.

The approach of our Supreme Court in the matter of death sentence is cautious as
well as restrictive which is in consonance with the modern and liberal trends in criminal
jurisprudence. The doctrine of Rarest of Rare evolved by the Apex Court reflects the
humanist Jurisprudence. There have been ample instances where the Supreme Court has
restricted the use and imposition of death penalty only to cases coming with in the category
of rarest of rare case. Under Sec. 354(3) of the Criminal Procedure Code, 1973 a new
provision has been introduced to say when the conviction is for an offence punishable with
death or, in the alternative with imprisonment for life or imprisonment for a term of years,
the judgment shall state the reason for the sentence awarded and in the case of sentence of
death, the special reason for such sentence.

14. Arguments for Retention of Death Penalty

The retentionist's view of death penalty considers death penalty necessary on the
following grounds:

15 AIR 1973 SC 947.

16 Ibid.
 1. Elimination of murderers by execution is fair retribution and serves the ends of
justice.

2. Punishment must match the gravity of offence and worst crimes should be severely
dealt with for the sake of deterrence and security of the society.

3. Death penalty shows society's reaction to heinous crimes.

4. One who ends somebody's life, forfeits his right to life.

5. Death sentence should be looked as a form of retributive justice insofar as it

provides satisfaction and peace of mind for many victims of crime and their
families or relatives.

6. It is the most effective way to protect society against condemned offenders. This is
the reason why death penalty has been held to be constitutionally valid.

7. Some authorities believe that death penalty is less cruel than a prolonged life
imprisonment.

8. Considered from the economic point of view also it is for less expensive to execute
a convict than to house him/her in a prison institution for life.

9. It prevents over-crowding in prisons and helps in elimination of offenders who are

potential danger to the institution thereby making maintenance of discipline in
prisons easy.

10. It upholds rule of law because it discourages vigilantism or self-help on the part of
victim's family.

15. Arguments for Abolition of Death Penalty

The abolitionist's view of death penalty supports the abolition of death penalty on
the following grounds:

1. Death penalty is killing and all killings are wrong and therefore, death sentence is
also wrong.

2. An execution arising out of miscarriage of justice is irreversible and therefore, it

may result in great injustice to the person wrongly sentenced to death.

3. It is a lethal vengeance which brutalises the society.

4. Death penalty is unjust and often discriminatory against poor who cannot afford to
defend themselves properly against a homicide charge.
 5. It is a misconception to think that death penalty has a deterrent effect because hired
murderers do take chance with the criminal justice system whatever be the
consequences.

6. Death penalty is violative of human rights, particularly Articles 3 and Article 5 of

the United Nations Declaration of Human Rights, 1948.

7. Quite a large number of murders are crimes of emotion or impulsiveness.

Therefore, death penalty in such cases does not serve the ends of justice.

8. It denies the possibility of reformation and rehabilitation of the offender.

A perusal of arguments for and against the retention of capital punishment in a

penal system makes it abundantly clear that at least its retention in the statutebook would
better serve the ends of justice, though in practice it may be used sparingly. This approach
to capital punishment is well reflected in the judicial pronouncements handed down by the
Supreme Court ever since the historic
23

Bachhan Singh's case, where the Court laid down the "rarest of rare case" principle.17

16. Death Penalty is no more 'Mirage' in India

Death penalty entangles unavoidable element of suffering and humiliation. If delay

occurs in the execution of death penalty it causes severe mental anguish to the person
awaiting death which is cruel and inhuman. At international level, with the endeavours of
the United Nations Organization General Assembly and the Commission on Human Rights,
Second Optional Protocol to the International Covenant on Civil and Political Rights, has
been adopted by which, State Parties to the Covenant took an additional obligation of
abolition the death penalty.

In our country, in this context, it is well settled legal position that the death penalty
may be awarded only in the case of rarest of rare cases and the
25

Hon'ble Judge of the Supreme Court Mr. Krishna Iyer had propounded key verdict that in
criminal trial possibility of imposing death penalty should be only if the nature and manner
of offences committed fall in category of rarest of rare cases. Decades past, the Indian
Courts have followed this magic judicial note resulting undeclared abolition of death
penalty although the punishment as to death penalty has not been removed from Indian
Penal Laws.

17 Earlier, in Jagmohan Singh v. State of U.P., AIR 1973 SC 947 also the Supreme Court held that death penalty
per se is not violative of Art. 19.
 On number of occasions the Supreme Court of India has laid down that the delay in
execution of death sentence would entitle the convicted person to seek conversion or
alteration of death sentence into life imprisonment. In Triveni Ben v. State of Gujrat, 18 the
five judge Bench of the Supreme Court has held that undue delay in execution of the death
sentence will entitle the condemned person to approach the court to seek commutation of
death sentence into lifeimprisonment. The Court expressed the view that before passing
order of commutation it is necessary to examine the nature of delay and circumstances of
23Bachhan Singh v. State of Punjab, AIR 1980 SC 898.

25 Supra 23.

the case. Even if the person facing death penalty shows genuine repentance which is evident
from report of jail authorities, it was held by the Supreme Court that the death sentence
could be commuted to life imprisonment.19 Thus, in case of delay in execution of death
sentence it could be commuted to life imprisonment. Article 21 of the Constitution of India,
1950 which guarantees right to life and personal liberty can be invoked by the person
anticipating death penalty. Recently on march 31, 2014, the Supreme Court commuted the
death penalty of terror convict Devinder Pal Singh Bhuller to life term over mental illness
and an inordinate delay by the government in deciding his mercy plea. 20

17. Judicial Trend Qua Death Penalty

The magistracy has more often than, not, used Section 354(3) of the Code of
Criminal Procedure to justify its stand either in support of or against the award of capital
punishment. The abolitionists see this provision a green signal for dilution of capital
punishment while for the receptionists the special reasons contemplated by Section 354 (3)
implicitly suggest that death sentence is legally and constitutionally permissible.

A perusal of some of the Supreme Court decisions involving award of death penalty
would reveal that sudden impulse or provocation 21 uncontrollable hatred arising out of sex

18 AIR 1989 SC 142.

19 Javed Ahmad v. State of Maharashtra, AIR 1985 SC 231.
20 Navneet Kaur v. State of NCT Delhi, 2014 STPL (Web) 226 SC.
21 Ummilal v. State of M.P., AIR 1981 SC 1710, Dalbir Singh v. State of Punjab, AIR 1979 SC 1384, Gura Singh
V. State of Rajasthan, (1984) Cr. L.J. 1423 (1428).
indulgence,22 family feud or land dispute, infidelity of wife23 or sentence of death hanging
over the head of the accused for a considerable long period of time due to law's delay, 24
have been accepted as extenuating circumstances justifying lesser penalty of life
imprisonment instead of death sentence. Mr. Justice Krishna Iyyer of the Supreme Court of
India,
33
however, made it clear in Rajendra Prasad v. State of U.P. that where themurder is
deliberate, premeditated, cold-blooded and gruesome25 and there are no extenuating
circumstances, the offender must be sentenced to death as a measure of social defence.26

33AIR 1979 SC 916.

The pros and cons of "life or death" sentence have been extensively dealt with by
the Supreme Court of India in Rajendra Prasad's27 case. Therefore it would be pertinent to
state the facts of the case to analyse the entire issue in its proper perspectives.

The Supreme Court in Ranjit Singh v. Union Territory of

37

Chandigarh was once again called upon to decide an appeal relating to the question of
sentence. In the instant case, murder was committed by appellant, a life convict during
parole. The accused was sentenced to death on conviction under Section 303, I.PC. and the
co-accused was awarded life-imprisonment. Agreeing with the contention of deceased's
counsel the Supreme Court commuted the sentence of death to that of imprisonment for life
as Section 303, I.P.C, had
38

been declared unconstitutional in Mithu v. State of Punjab. The Court held that during
parole appellant should have behaved like a law abiding citizen but instead he indulged into
heinous crime of murder hence the case fell within the category of "rarest of rare cases".

22 Ediga Anamma v. State of Andhra Pradesh, AIR 1974 SC 799.

23 Bishnu Dev Shaw v. State of West Bengal, AIR 1979 SC 702.
24 T. V. Vatheeswaran v. State of Tamil Nadu, 1983 Cr LJ 481.
25Harihar Singh v. State of U.P., AIR 1975 SC 1501.
26Sarveshwar Prasad Sharma v. State of M.P., AIR 1977 SC 2423.
27Supra 33.
 Again, in Mahesh etc. v. State of M.P.28 the Supreme Court maintaining the
sentence of death passed by the High Court observed :

it would be mockery of justice to permit the appellants to

escape the extreme penalty of
lawand to give lesser punishment for the
appellants would be to render justicing system of this
country suspect, the common man would lose faith in
courts.
The Supreme Court in its decision in T. V. Vatheeswaran v. State of Tamil
Nadu,29 reiterated that prolonged delay in execution exceeding two years will be a sufficient
ground to quash death sentence since it is an unjust, unfair and

28AIR 1937 SC 1346.

29AIR 1983 SC 361.
34 35 36
37

AIR 1984 SC 45.

AIR 1983 SC 473.

38 39 40

23
unreasonable procedure and the only way to undo the wrong is to quash the death sentence.
The Court further observed that the cause of delay is immaterial when the sentence is that of
"death" and a person under sentence of death may also claim fundamental rights, i.e.
procedure under Article 21 must be just, fair and reasonable.

At present time, the Indian judiciary is playing a role, which has no parallel in the
history of the judiciaries of the world. It has been upholding the rights of citizens, both the
formal political rights contained in Part III and also the socio economic rights in Part IV of
the Constitution. Many people regard the judiciary as the last hope of the nation, despite all
its defects. The Indian judiciary must therefore prove itself worthy of the trust and
confidence which the people reposes in it. Justice must prevail in all circumstances.

18. Judicial Discretion and Death Penalty

For all the offences, in which death sentence is the punishment, it may be noted that
it is not the only punishment, it is the extreme penalty. Thus, these sections, by virtue of
their very wordings itself, provide for a discretion which is to be vested in courts right from
the inception of Penal Code in 1860. However, the manner of exercising this discretion has
undergone various changes with the changing time and evolution of new principles. There is
also a debate going on, about the extent of this judicial discretion. In Jagmohan's30 case the
Supreme Court held:-

The structure of our criminal law which is principally

contained in the IPC and the Cr.P.C. undertakes the policy
that when the legislatures have defined an offence with
clarity and prescribed the maximum punishment, therefore
a wide discretion in the matter of fixing the degree of
punishment should be allowed to judges.
Thus the Supreme Court was in favour of wide discretion to be given to
judges for deciding the degree of punishment. However, this wide discretion was
restricted by Section 354(3) of Criminal Procedure Code, 1973 which laid downthe law for
death sentence special reasons Judges are left with the task of discovering 'Special Reasons'.

In the case of Dalbir Singh v. State of Punjab31, the court expressed its concern for
the way in which this discretion was being used:

Notwithstanding the catalogue of grounds warranting

death sentence as an exceptional measure, 'life' being the

30 Supra 21.

31AIR 1979 SC 1384.

24
 rule, the judicial decisions have been differing at various
levels with the result the need for a through re-
examination has been forced on courts by counsel on both
sides.
In Bachan Singh's case32 this problem was solved by the Apex Court
itself to a very large extent. The court observed:

It is imperative to voice the concern that courts, aided by

the broad illustrative guidelines indicated by us, will
discharge the onerous function with evermore scrupulous
care and humane concern, directed along with high road
of legislative policy outlined in Sec. 354(3) of Criminal
Procedure
Code.
19. Legality of Death Sentence

In the case of Jagmohan v. State of U.P.33, the question of constitutional validity of

Sec. 302, I.P.C. was discussed in detail by the Supreme Court. Apart from the constitutional
validity, the Supreme Court also discussed positions in other countries, the structure of
Indian Criminal Law, various policies and bills proposed in the Parliament, the extent of
Judicial discretion etc. On the question of constitutional validity the Court observed:-

The Cr.P.C. requires that the accused must be questioned

with regard to the circumstances appearing against him in
the evidence. He is also questioned generally on the case
and there is an opportunity for him to say whether he
wants to
say In important cases like murder, the
Court always gives a chance to the accused to address the
Court on the question of sentence. Under the Cr.P.C. after
convicting the accused, the

42
43
44
Court has to pronounce the sentence according to the law.
On all these grounds the Supreme Court rejected the argument that under Section
302, Indian Penal Court, life of convict is taken without any procedure established by law
and therefore, it violates Article 21 of the Constitution. Thus, the Supreme Court settled this
controversy long back in 1973. However even after Jagmohan's case45 this question came

32Supra 23.
33Supra 21.

25
up again and again. The Supreme Court reviewed Jagmohan's Case46 in the case of
Bachhan Singh v. State of
47

Punjab because after Criminal Procedure Code, 1973, death sentence cease to be the
normal penalty for murder. 354(3). Another reason was that Maneka
48

Gandhi's case gave a new interpretation to Article 14, 19 and 21 of the Constitution and
their interrelationship. Main issues before the SC were constitutional validity of Sec. 354(3)
of Criminal Procedure Code, 1973.

In Shankar Kisanrao Khade v. State of Maharashtra, 49 , the Supreme Court noticed

c
aggravating circumstances (crime test) - mitigating circumstances- riminal test) and rarest
of rare case -(R-R test) and aggravating circumstances as pointed above, of course, are not
exhaustive so also the mitigating circumstances. In the considered view, the tests which
have to be applied are that while awarding death sentence are "crime test", "criminal test"
and the "R-R test" and not the "balancing test". To award death sentence, the "crime test"
has to be fully satisfied, that is, 100% and "criminal test" 0%, that is, no mitigating
circumstance favouring the accused. If there is any circumstance favouring the accused, like
lack of intention to commit the crime, possibility of reformation, young age of the accused,
not a menace to the society, no previous track record, etc. the "criminal test" may favour the
accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the
aggravating circumstances to the fullest extent and no mitigating circumstances favouring
the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test
depends upon the perception of the society that is "society- centric" and not "Judge-centric",
that is, whether the society will approve the awarding of death sentence

45 Ibid.

26
46 47 48Id.
49 Supra 23. AIR 1978
SC 597. (2013) 5
SCC 546.

27
to certain types of crimes or not. While applying that test, the court has to look into variety
of factors like society's abhorrence, extreme indignation and antipathy to certain types of
crimes like sexual assault and murder of intellectually challenged minor girls, suffering
from physical disability, old and infirm women with those disabilities, etc. Examples are
only illustrative and not exhaustive. The courts award death sentence since situation
demands so, due to constitutional compulsion, reflected by the will of the people and not the
will of the Judges.

20. Reasonableness of Death Sentence

The need of retaining death penalty as well as its constitutionality has already been
upheld in the Supreme Court. The Supreme Court in the case of Bachhan Singh v. State of
Punjab50 observed:

if notwithstanding the view of the abolitionists to the

contrary, a very large segment of people, the world over,
including sociologists, legislature, Jurists, judges and
administrators still firmly believe in the worth and
necessity of capital punishment for the protection of
society, if in the perspective of prevailing crime conditions
in India, contemporary public opinion canalized through
the people's representative in Parliament, has repeatedly
including the one made recently to abolish or specifically
restrict the area of death penalty, if death penalty is still a
recognized legal sanction for murder or some types of
murder in most of the civilized countries in the world, if
the framers of the Indian Constitution were fully aware of
the existence of death penalty as punishment for murder,
under the Indian Penal Code, if the 25th Report and
subsequent reports of Law Commission suggesting
retention of death penalty, and recommending revision of
the Cr.P.C. and the insertion of the new sections 235 (2)
and 354(3) were before the Parliament when it took up
revision of the Cr.P.C. , it is not possible to held that the
provision of death penalty as an alternative punishment for
murder, in Sec. 302, Penal Code is unreasonable and not in
the public interest. The impugned provision in Sec. 302,
50 Supra 23.

29
 violates neither the letter nor the ethos of Article 19" 51

21. Reasons for Abolition of Capital Punishment

The reasons why countries have abolished Capital Punishment in different

countries varies. Spain abandoned that last remains of capital punishment in 1995 stating
that the death penalty has no place in general penal system of advanced, civilized societies.
What more degrading or afflictive punishment can be imagined than to deprive a person of
his life. The right to life and dignity are the most important of all human rights and this must
be demonstrated by the state in everything that it does, including the way it punishes
criminals.

Richard Jaffe his recent book 'Quest for Justice' wrote "I always keep in mind the
maxim that history will judge a society by the way it treats it weakest and most vulnerable.
Although most would assume that applies to the poor and elderly, all one has to do is look at
those who end up on death row, on overwhelming number are poor, disenfranchised and
suffer from some marital defeat or we brain damage."52

In India in July 2012, 14 retired Indian Judges wrote to President Pranab Mukherjee
urging in him to work towards abolishing, the death penalty in the country. Among the other
things the judges pointed out the Supreme Court had itself admitted that it had gone wrong
in three cases in which it had upheld the death sentence. One of the persons has already
been hanged while the Other two are awaiting elimination, This is indeed a very chilling
fact about death penalty. If the legal system goes wrong, as it can since its manned by
humans, we can never reverse death. That is why "it's better that ten guilty persons escape
than one innocent suffer". There is total justification in the argument that if one cannot
given life back, one has no right to take it, whatever the circumstances maybe. India
maintains that it imposes capital punishment in only the "rarest of rare" cases. In July 14,
2012 retired judges asked the president to commute the death sentences. of 13 inmates
erroneously upheld by the Supreme Court over the past nine years. This followed the Court
is admission that these death sentences where rendered per in curium (out of error or
ignorance). In November, the Supreme

51 Rajender Prasad v. State of U.P., AIR 1979 SC 916.

52 Richard Jaffe, Quest for Justice, 2014, Introduction part.
139
Court also conceded that the "request of rare" standard has not been applied uniformly over
the years and that the principles for judging what constitutes "rarest of rare" crimes need " a
first look".34

Moreover, the fate of most of death-row inmates of prolonged solitary confinement

for indefinite period in prison is a retribution enough. The court of Appeals in the United
Kingdom recently quashed the conviction of Belfast man named Liam Holden for allegedly
murdering a soldier in 1972. Fortunately, his death sentence had been reduced to life
imprisonment and he spent 17 years in jail. Had he been executed, the acquittal by the Court
of Appeals would have had no meaning. Leain Holder in his 1973 testimony said that after
the interrogation he was taken from the school and driven to the outstretch of Belfast. There
he signed a statement admitting to shooting of Peter Bell. In 2012, Holden summed up his
feelings at the time: "By the time they had finished with me I would have
admitted to killing JFK."

India too has been moving steadily towards the abolition of the death penalty.
Before independence and for many years after that, the death sentence was liberally handed
down to convicts. But the number of voices joining this international debate on abolition of
death penalty is steadily increasing. The watershed came in the year 1980 when a
constitutional bench of the Supreme Court considered the case of Bachhan Singh35. The
court upheld the constitutional validity of the death sentence but made it clear that
henceforth the death sentence could only be given in the rarest of rare cases. In giving some
definition to what rarest of rare could mean. The court held that such a crime must have
been deliberately planned, executed meticulously in a diabolic manner, exhibiting inhuman
conduct in such a ghastly manner as to shock the conscience of everyone and therefore
disturb the moral fabric of society. This judgment has indeed had a salutary effect because,
over the years fewer and fewer people have been sentenced to death and subsequently
killed. In the last 12 years, India has hanged only two persons.

Now the question that comes to mind is that has the doctrine of "rarest of rare
cases" worked in India. To some it appears to be the most practical solution to an almost
intractable problem. This gives the judiciary flexibility to vary the punishment from case to
case. The 14 retired S.C. judges who recently wrote to the President, however, felt that the
doctrine was altogether active and arbitrary because upholding the death penalty depends
entirely on the personal sophy and morality of our judges. One set of judges may sentence a

34 Human Rights Watch World Report, 2013, p 321.

35 Supra 23.

31
man to death while the facts and circumstances may induce another set of judges to hand
him the mild of life imprisonment. A close study of Supreme Court judgments on the
subject can leave one bewildered. India one day abolish the death sentence? That prospect
does not seem to be looming. The death sentence acts as a deterrent has many believers in
our country even though is increasing evidence to show this may not be true.

Sometimes the crime is so gruesome and diabolic, it shocks everyone. Taking the
Delhi rape case36, the senior leaders asking for death penalty for people have committed the
rape. They get mixed up with the issues. They say that two wrongs make it, that's effectively
what they are saying. Somebody commits a crime, so we will commit more. As far as
human rights view is concerned, it says that death penalty under any circumstances is a
crime, they think it is contrary to right to life. There's a real direct problem. The empirical
evidence that doesn't have a deterrent effect. There is no correlation between the two. We
are long to India to become one of the states that completely stops execution. The concern
about mistakes in capital cases is indeed the most powerful driving force which needs re-
evaluation of the death penalty even in United States of America, presently, Supreme Court
Justices, legislators, political leaders and commentators have all expressed deep concerns
about nations of innocent people on death row in recent years. From the human
right'sperspective, anger of executing an innocent person has played a key role in the
abolition of the death penalty in other countries.

22. Capital Punishment in India

The ancient law of crimes in India provided death sentence for quite a good number
of offences. The Indian epics, viz., the Mahabharata and the Ramayana also contain
references about the offender being punished with vadhadand which meant amputation by
bits. Fourteen such modes of amputating the criminals to death are known to have existed
which included chaining and imprisonment of the offender.

Justifying the retention of death penalty, King Dyumatsena observed : "if the
offenders were leniently let off, crimes were bound to multiply". He pleaded that true ahimsa
lay in the execution of unworthy persons and therefore, execution of unwanted criminals
was perfectly justified.37 His son Satyaketu, however, protested against the mass scale

36On the night of 16 th December, 2012 , one student was brutally raped by six persons in a moving bus, due to
the incident a public outrage for awarding death penalty to the rapists was occurred and in December, 2012, a
committee headed by Justice J. S. Verma including members Justice Leila Seth, former judge of high court and
Gopal Subramanium, former Solicitor General of India was appointed to recommend the amendment to the
criminal laws especially sexual offences against women due to the grave public outrage occurred after the incident
of 16 December gang rape in Delhi. The Committee submitted its detailed report on January 23, 2013.

37 Mahabharat-Shantiparva chapter CCLXVII Verses 4-13.

execution and warned his father that destruction of human life can never be justified on any
ground. But Dyumatsena. ignored the advice of his son and argued that distinction between
virtue and vice must not disappear and vicious elements must be eliminated from society.38

The great ancient law-giver Manu also placed the element of fear as an essential
attribute of judicial phenomenon. According to him, in order to refrain people from sinful
murders, death penalty was necessary and in absence of this mode of punishment, state of
anarchy will prevail and people would devour each other as the fish do in water, the
stronger eating up the weaker.

During the medieval period of Mughals rule in India, the sentence of death revived
in its crudest form. At times, the offender was made to dress in the tight robe prepared out
of freshly slain buffalo skin and thrown in the scorching sun. The shrinking of the raw-hide
eventually caused death of the offender in agony, pain and suffering. Another mode of
inflicting death penalty-was by nailing the body of the offender on walls. These modes of
putting an offender to death were abolished under the British system of criminal justice
administration during early decades of nineteenth century when death by hanging remained
the only legalised mode of inflicting death sentence.

23. Law Commission on Capital Punishment

In response to the resolution moved in the Parliament in 1962 on the abolition of

capital punishment, the Government of India referred the question to the Law Commission.
The Commission decided to take up this subject separately for the revision of the general
criminal law in view of its importance. The Commission presented its report to the Lok
Sabha on November 18,1971, in which it inter alia observed :

even after all the arguments in support of abolition of

capital punishment are taken into account, there does not
remain a residium of cases where it is absolutely
impossible to enlist any sympathy on the side of the
criminal.55

The Commission further expressed a view that 'retribution' involved in capital

punishment does not connote the primitive concept of 'eye for an eye' but it is an expression
of public indignation at a shocking crime, which can better be described as 'reprobation'.
Therefore, the Commission did not recommend any material change in the offences which
are made punishable with death under the Indian Penal Code. As regards the question of

38 Ibid.

33
exempting certain categories of persons from death sentence, the Law Commission in its
42nd Report published in June 1971 suggested that:

1. Children below 18 years of age(at the time of commission of the crime) should not
be sentenced to death.59

2. It is not necessary to exempt women generally from the death penalty.

3. It is unnecessary to insert a statutory provision relating to "diminished

responsibility" in the statute book.

58 42nd and 48th Report of the Law Comission of India (1971-72)

59 Under the Juvenile Justice (Care and Protection of Children) Act 2000, the maximum term for a juvenile
is three years in a Special Home.

4. An attempt to commit suicide should cease to be an offence in India. The present law in
this regard is " harsh and unjustifiable and it should be replaced". 39

The Law Commission strongly felt that capital punishment acts as an effective,
deterrent "which is the most important object and even if all objects were to be kept aside,
this object would by itself furnish rational basis for its retention". In its concluding remarks,
the Commission observed that having regard to the peculiar conditions prevalent in India
and the paramount need for maintaining law and order in this country, India cannot risk the
experiment of abolition. This is perhaps the most appropriate approach to the problem of
capital punishment so far Indian criminal justice system is concerned.

24. Indian Law on Death Penalty

The members of the judiciary are sharply divided on the crucial issue of life or
death sentence. Those who support abolition argue that death penalty is degrading and
contrary to the notion of human dignity; it is irrevocable and an expression of retributive
justice, which has no place in modern penology. The retentionists, on the other hand, justify
capital punishment as a social necessity having a unique deterrent force.

The shifting trend towards imposition of death sentence for the offence of murder is
clearly discernible from the amendments made in criminal law from time to time. Prior to
1955, judicial discretion in awarding a lesser penalty instead of death sentence was
circumscribed by requiring the Judge to record his reasons for awarding a lesser

39 In Rathinam Nagbhusan Patnaik v. Union of India, AIR 1994 SC 1844, the Supreme Court had ruled that
attempt to commit suicide(i.e. Sec. 309 IPC) deserves to be effaced from IPC being violative of Art. 21 of the
Constitution. But this decision was subsequently over-ruled by the Supreme Court in Gyan Kaur v. State of Punjab,
AIR 1996 SC 946 and consequently Sec. 309, IPC is valid.

6117 CWN 1213

punishment. This in other words, meant that the discretion of the Judge was open to further
judicial review. However, it was subsequently realised that this restriction on the power of
Court was unnecessary because at times it nullified the achievement of the Judge if his
reasons for awarding life imprisonment instead of death sentence, did not argue well even
though he might be ultimately correct in his final judgment. Thus, in Avtar Singh v.
Emperor/2the Judge concerned considered it proper to award a sentence of life
imprisonment instead of death, for the reason that the accused was initially condemned to
death which remained suspended for a period of over six months. Giving reasons for his
decision, the learned Judge observed that it was unjust to keep the sentence of death
hanging over the head of the accused for a long period of over six months because it must
have caused him great mental torture. The Judge therefore, thought it proper to reduce the
sentence of death to that of life imprisonment. But in another case, i.e., Queen v. Osram
Sungra,40 where the accused committed a deliberate cold blooded murder for ulterior
motives, the Court awarded a lesser punishment of life imprisonment instead of death,
without recording reasons of such leniency.

Restrictions on the discretion of the Judge to record reasons for awarding a lesser
punishment of life imprisonment to the murderer instead of sentence of death were
withdrawn by the Amendment Act,41 of 1955. After this amendment, the Judge had the
discretion to commute the sentence of death to that of life imprisonment, but in case he
considered the imposition of death sentence necessary, he had to state the reasons as to why
a lesser penalty would not serve the ends of justice. Thus, the amendment clearly reflected
the shift in trend towards death penalty.

The Code of Criminal Procedure, 1973, also contains a provision regarding death
sentence. Section 354 (3) of the Code provides that while awarding sentence of death, the
Court must record "special reasons" justifying the sentence and state as to why an
alternative sentence of life-imprisonment would not meet the ends of justice in that
particular case. Commenting on this provision of the Code, Mr. Justice V.R. Krishna Iyer
of the Supreme Court (as he was then) observed that the special reasons which Section

40 (1886) 6 WR (Cr) 82.

41 Section 66 of the Criminal Law Amendment Act, (XXVI of 1955).

35
354(3) of Criminal Procedure Code speaks of reasonableness as envisaged in Article 19 as a
relative connotation dependent on a variety of variables, cultural, social, economic and
otherwise".42

The Code of Criminal Procedure, 1973 further requires that the sentence of death
imposed by the Sessions Judge can be executed only after it is confirmed by the concerned
High Court.43 That apart, Section 235(2) of the Code further casts a statutory duty upon the
Court to hear the accused on the point of sentence The Court should also call upon the State,
i.e., the Public Prosecutor to mention giving reasons whether or not that extreme penalty
prescribed by law is called for in view of the facts and circumstances of the case.

It is thus evidently clear that a heavy duty cast by Section 302 of the Indian renal
Code on the Judge, of choosing between death and imprisonment for life for the person
found guilty of murder, is expected to be discharged in a highly responsible mariner by
complying with the provisions contained in Sections 354(3) and 235(7) of the Code of
Criminal Procedure so that the principle of natural justice and fair play holds its sway in the
sphere of sentencing. These provisions also help the Judge to individualize sentencing
justice and make it befitting to the crime and the criminal. The rationale of the above
procedural safeguards and the aweful consequences of a death sentence on the convict, his
family and society were considered by the Supreme Court once again in the case of
Allauddin Mian v. State of Bihar.44, in this case the Apex Court held that when the Court
is called upon to choose between the convict's cry 'I, want to live' and the prosecutor's
demand, 'he deserves to die', it must show a high degree of concern and sensitiveness in the
choice of sentence.

The Supreme Court further observed that 'special reason clause' contained in
Section 354(3) of Criminal Procedure Code implies that the court can impose extreme
penalty of death in appropriate cases. The provision of Section 235(2) of the Code calls
upon the Court that the convicted accused must be given an opportunity of being heard on
the question of sentence. This provides the accused an opportunity to place his antecedents,
social and economic background and mitigating and extenuating circumstances before the

42 Rajendra Prasad v. State of U.P., AIR 1979 SC 916 (931).

43 Section 366(1) of the Code of Criminal Procedure, 1973.
44 AIR 1989 SC 1456.
Court. Besides the statutory provisions, the Constitution of India also empowers the
President45 and the

45 Art. 72 of the Constitution of India.

37
Governor of the State to grant pardon to the condemned offenders in appropriate cases.
These powers are, however, co-extensive with the legislative powers. The power to cut short
a sentence by an act of executive clemency69 is not subject to judicial review. It is an
exclusive domain of the executive in India 70 and elsewhere.71 It is significant to note that the
controversy once for all in the case of Sarat Chandra v. Khagendra Nath, 72 which
affirmed the principle that sentencing powers of judiciary and executive are readily
distinguishable. A brief analysis of the cases decided by the S.C. regarding the question of
death sentence over last 25 years, will reveal how differing/dithering the judgments have
been.

In 1994, while deciding the case of Anshad v. State of Karnataka73, the

Supreme Court commuted death sentence to life imprisonment while the accused was
convict of a brutal, diabolical murder. The sentence was commuted because the SC felt that
there are chances of reformation of accused. With due respect to the court's view, it is
submitted that there still remains a question creating doubts on such judgments as to how to
judge the chances of reformation of an accused in a particular case. However, it can be done
on the line of Supreme Court's judgment in Javed Ahmed Abdul Hamid Passawa v. State
of Maharashtra74 on this case. The death sentence of accused was affirmed in 1983, but
later, on the basis of serious atonement, the SC commuted the sentence to life imprisonment.

Then comes the very important case of Mohd. Chaman v. State

75

(N.C.T.) of Delhi , in this case a one and a half year old girl was raped by the accused, and
because of the heinous act, she sustained serious injuries and died. High Court confirmed the
death sentence awarded by the Session Court. But the Hon'ble Supreme Court commuted
death sentence into life imprisonment, observing:-

68 Art. 161 of the Constitution of India.

69 The Prerogative of Mercy the Power of Pardon & Criminal Justice, Public Law
(London) 1983 pp. 398-439.
70 AIR 1962 SC 605
71 AIR 1968 SC 497.
72 AIR 1968 SC 497.
73 1994 (4) SCC 381.
74 AIR 1985 SC 231.
75 2001(2) SCC 28.
147

The crime committed is undoubtedly serious and heinous and the conduct of the
appellant is reprehensible. It reveals a dirty and prevented mind of a
human being who has no control own his carnal desiresWe are not persuaded
to accept that the case can be called one of the 'rarest of rare cases' deserving death penalty.
We find it difficult to hold that the appellant is such a dangerous person that to spare his life
will endanger the community. It is our considered view that the case is one in which a
humanist approach should be taken in the matter of awarding punishment.

Can it be said that justice was done? In order to avoid controversies and to put
forward their liberal approach, Judges often change the degree of offence avoiding the
guidelines laid down by the Apex Court itself. This should not happen. It is the basic duty of
a judge to render justice in - toto and while doing so he shall not get affected by any
surrounding circumstances or controversies which may arise in future. But this is an
idealistic approach and cannot be followed completely. Indian legal system is no different
and it seems that the judges also get prejudiced with their surroundings and social
circumstances. This could be the only reason that one see such different approaches being
taken by different judges in offences of similar nature.

In the case of Mohd. Chaman46, on the question of extent of judicial discretion, the
Court observed:-

Such standardization is well high possible. Firstly degree of culpability cannot be

measured in any case. Secondly criminal cases cannot be categorized there being infinite,
unpredictable and unforeseeable variations. Thirdly in such categorization, the sentencing
procedure will cease to be judicial. And fourthly, such standardization or sentencing
discretion is policy matter belonging to the legislature beyond the courts functions.

Despite the fact that full discretion is given to judges, in ultimate analysis, it can
safely be said that such wide discretion has resulted into enormously varying judgments,
which does not potray a good picture of the justice delivery system. What is needed to be
done; therefore; is to revise and review the guidelines and principles laid down in cases like
Bachan Singh or Machhi

Singh , or if it is felt that these guidelines still stand firm and fit perfectly in the present
social scenario, then these guidelines have to be strictly complied with, so that the persons
convicted for offence of similar nature are awarded punishments of identical degree. The
Supreme Court had another opportunity to rectify its
78

position, when the case of V. Mohini Giri v. Union of India , was argued before it in 2002.
In this case the petitioner had sought the issuance of a guideline as to what should be
appropriate approach in the cases where one of the judges in the Bench of this Court while

46 Ibid.

39
hearing an appeal against death sentence, acquits the accused person. The Apex Court
declined issuing such a guideline arguing that it would curtail the judicial discretion of the
bench.

25. Human Rights and Capital Punishment

While human rights defenders have long campaigned for the abolition of the death
penalty in India, it is former President Abdul Kalam who has brought it to the center stage
with his request to the government to review all pending cases due to the capital punishment
being so obviously applied with a bias against the economically and socially weaker
sections: meaning the poor and the 'lower' castes. India is one of the 78 countries including
the US, China, Iran and Vietnam which have not banned the death penalty. Near about 86
countries and territories have abolished the death penalty for all crimes, and a total of 121
countries have abolished the death penalty in law or practice. Over 40 countries have
abolished the death penalty for all crimes since 1990. 10 December 2005, the International
Human Rights Day was observed as Anti-Capital Punishment Day in India. There are
several arguments against the capital punishment. Some are systemic, some procedural and
some are ideological. Mahatma Gandhi provides the best logic: What is not permissible for
an individual (in this case to kill) is not permissible for a group.

Criminal Justice has to discharge three functions: deter, reform and punish. Capital
punishment does not give the criminal any chance to reform. Punishment has two
components: one to restore as close as possible, status quo ante, and to fulfill the need for
revenge of the victim. While other crimes can restore status quo ante, in this one, the victim

77 Supra 23.
78 2002 AIR SCW 5306.

who was murdered cannot be brought back to life by 'punishing' the criminal by capital
punishment. So it is not 'restitution' in any sense of the term, but only codified revenge, and
a futile one at that. Most civilized societies accept that this form of 'justice' is only thinly
veiled revenge. Of the three, deterrence is the aspect most hotly debated. But studies prove
that capital punishment is not really a deterrent. Except for a slight surge- if at all- for a short
while after abolition, countries that have abolished death penalty actually have less crime
than otherwise. In the case of 'hardcore' criminals, the certainty of capital punishment makes
them even more reckless with the twisted logic of no redemption as it means for a criminal
"anyway I will be killed, so I might as well be killed for a hundred murders rather than one".
 One of the flip side, there are many reasons why there should not be a death penalty.
The first and foremost is that when mistakes are made- and they are made very often - there
is no way in which it can be reversed. Death is final. USA has executed about 1000 people in
the last 30 years. 115 have been released because they were found innocent- after being
found 'guilty beyond reasonable doubt' several times over by courts from the local to the
state level, and the review boards recommending no pardon! Advances in technology- such
as DNA testing - found that these men could not have committed the crimes they were
convicted of. Crime syndicates routinely bribe or blackmail innocents into confessions, then
coach them on the details of crime so that their confession is 'authentic'. Political parties do
the same in India or elsewhere. In India, the death penalty is handed out only in the 'rarest of
rare' cases. Even so, it has several flaws. For one, it is unevenly applied on the weaker
sections. The 'urge to punish' is always a reflection on social bias. The 'untidy' 'uncouth' and
'unkempt' child- often dark- is more likely to be punished, and more severely, than a neat
'fair' one. The same applies for all punishments- right up to capital punishment. If you are
poor and 'low' caste, you are more likely to be hanged than if you kill and stuff the body into
an oven and belong to a national political party.

The second flaw is that the law itself gives capital punishments only to the 'lower
class crimes'. Causing death, even fully knowing the consequences, by

'white collar crimes' such as adulteration of food or medicine does not attract the death
penalty. Causing death by denying basic needs is not even considered a social crime, but
rather an economic virtue and is promoted as 'structural reform' by governments. The third
flaw is that the 'rarest of the rare' is still an evolving concept. Many religions prescribe the
death penalty for apostates. In India the 'rarest of rare' was a Dalit learning how to read and
write. Now it is a conspiracy to murder. An important part of jurisprudence is that the
criminal always get the benefit of the progress of understanding. Capital Punishment negates
the concept. There are proposals to extend capital punishment to many more crimes. That is
an escapist attitude that seeks magic bullets without engaging with the process that leads to
increased violence or question its structural origins. Does that 'rarest of the rare' actually
work to deter, reform or punish in the case of suicide bombers, who actually welcome death
with open arms? Extending capital punishment to more and more crimes is not the answer.

What we require is a social consciousness where murder, for whatever reason, is

outlawed. If killing is justified for the 'rarest of the rare' then citizens will claim the right and
freedom to judge what is 'rarest of rare' in their opinion, and then claim the logical right to
follow through on their judgment- meaning execute. It is only when the normative value
base of society shifts to making all killing unlawful, and all violence abhorrent, that the

41
'rarest of the rare' will disappear. The right to life is sacred at all times for all people. Most
people want to know the 'alternative'. There is already an alternative in law that fulfills all
the three conditions of deter, reform and punish life imprisonment. The modern
jurisprudence for capital punishment originates from Europe - which has given it up. It
thrives mainly in the U.S., which has more people in their jails than on their farms. India has
a rich history of rehabilitating criminals, of whom Valmiki is but one. India would not have a
Ramayana if Valmiki lived in modern India. He would have been declared a 'terrorist' or a
naxalite, given no chance for reform and executed. We need to build on such traditions of
enlightened tolerance, rather than following the regressive practices of others. It is high time
that India joins the civilized world in outlawing capital punishment.
26. Conclusion

It may be reiterated that capital punishment is undoubtedly against the notions of

modern rehabilitative processes of treating the offenders. It does not offer an opportunity to
the offender to reform himself. That apart, on account of its irreversible nature, many
innocent persons may suffer irredeemable harm if they are wrongly hanged. As a matter of
policy, the act of taking another's life should never be justified by the State except in
extreme cases of dire necessity and self-preservation in war. 47 Therefore, it may be
concluded that though capital punishment is devoid of any practical utility yet its retention in
the penal law seems expedient keeping in view the present circumstances when the
incidence of crime is on a constant increase in India. Time is not yet ripe when complete
abolition of capital punishment can be strongly supported without endangering the social
security. It is no exaggeration to say that in the present time the retention of capital
punishment seems to be morally and legally justified. It serves as a reminder to everyone
that in case of unpardonable crime one has to forfeit his own right to life and survival. For
example, no sensible man can suggest any other punishment for the culprits of 16 December,
2012 gang rape case in Delhi.

It must also be noted that the essence of criminal jurisprudence has always been to
provide protection, as also to contrive measures against the fears both from within and
without, for the individuals and also for the social order itself. The criminal jurisprudence
while it provides protective devices through punitive sanctions, also aims at securing better
social order by insulating against the unwarranted acts emanating from the individual. It is
with this backdrop that the desirability or otherwise of the capital punishment has to be
judged. While administrating justice, a look to the human rights of victims is also must for

47 Kethaleen J. Smith : "A Cure to Crime" Gerald Duckworth Ltd., London (1964), p.57.
fair justice. As a note of caution S. Venugopal Rao who chaired the session on capital
punishment of International Congress of Criminal Law,48 rightly pointed out that there is no
objection to according a humane treatment to the offender but this should not mean that the
victims be at the mercy of criminals who pose adanger to the society and deserve treatment
through deterrent and preventive measures. Therefore, there is a need for searching out a
viable alternative to deterrence, which has a vital protective function in society.

At present, as many as 127 countries out of 191 countries of the world have retained
death penalty but renovations are continuously being made by them in the methods of
execution49 so that the person on whom the sentence has been ordered suffers minimum
torture. The Amnesty International had started a global campaign in 1989 for the abolition of
death sentence but it has not yet fully succeeded in its mission though many countries have
reopened favourably to its appeal and abolished death penal from their criminal law. The
Indian law in this regard, however, seems to be satisfactory as the Supreme Court.

The Supreme Court in Allauddin Mian v. State of Bihar50 has stressed on the
penological aspect of death sentence and observed that provisions of Sections 354(3) and
235(2) of the Code of Criminal Procedure, 1973, require the sentencing Judge to state
reasons for awarding death sentence and giving an opportunity to the condemned person to
be- heard on the point of sentence, satisfy the rule of natural justice, and fair play. This
enables the sentencing Court to endeavour to see that all the relevant facts and circumstances
which have bearing on the question of sentence are brought on record and no injustice is
caused to the accused. In the instant case, the Apex Court noted that the trial Judge had not
attached sufficient importance to mandatory requirements of the above provisions and the
High Court confirmed the death sentence without having sufficient material placed before it
on record to know about the antecedents of the accused, his socio-economic conditions and
impact of crime etc. which rendered the rationale of the judgment doubtful.

The Indian sentencing law contains certain admirable principles which the Judges
who have responsibility for passing sentence, should bear in mind while finalising the
sentence of the accused. The objectives of sentences and the range of sentences have
widened over the years and this calls for properly marshalled observation of the results of
similar sentences imposed in similar circumstances in the past. The sentencing courts should

48 The International Congress of Criminal Law was held in New Delhi on 8th Feb., 1983.
49 The Law Commission of India in its 45th Report on capital punishment suggested the use of lethal injection for
execution as it is simplest decent and ensues.

50 AIR 1989 SC 1456.

43
therefore, keep themselves abreast of the penological developments, specially when the
choice is between 'death' or 'life imprisonment. At present, there is no provision in law which
provides only death penalty.

From the time immemorial this has for long remained a controversial question both
at national and international level. The issue has been tirelessly debated on national as well
as international level but nothing conclusive has come out till now. No doubt the problem is
of serious nature but the difficulty involved should not deter us from venturing into the pros
and cons involve in the question. The opinion of intellectuals such as Legal Philosophers,
Jurists, Judges, and other social scientists stands divided. In many countries capital
punishment is an integral part of criminal justice system and it has remained to be accepted
form of justice through the ages though its form may have been different because of reasons
of geography, culture, and the passing of time. One of the arguments of abolitionists is that
death penalty is against Hindu Philosophy but this will not stand the scrutiny of
mythological texts. The imposition of death penalty in India; appears to go back to ancient
times according to the country's epics and mythology; stories abound in Indian mythology of
the destruction of demons who, became a deadly menace to the life, property and authority
of mortals and the divine race alike; tales of Hiranyakashyapu, Bali and Mahishasura etc. No
doubt religion preaches against killing of human being but that presupposes an ideal society
and if one cannot of particular aspect in isolation. The statistics, which talks of absence of
any relationship between death penalty and occurrence of crime, cannot be straightway
trusted for such an important policy decision as that of death penalty. The statistics derived
from a quantitative method may not be an appropriate method to judge the basic truth about
the qualitative aspect of those results.

In the ultimate analysis, it will be seen that considered from the angle of social
justice and protection of society from hard-core criminals, death sentence is not
unreasonable or unwarranted or obsolete type of punishment. The noted Italian criminologist
Garofalo, while disapproving the abolition of death sentence from the statute Book
commented, "when State abolishes the sentence of death, it authorises murderer and says to
the criminal 'the risk you run in killing a human being is a change of abode, the necessity of
spending your days in my house (i.e. prison) instead of your own.' Will it be proper to do so?
The death penalty is no doubt unconstitutional if imposed arbitrarily, capriciously,
unreasonably, discriminatory, freakishly or wantonly, but if it is administered rationally,
objectively and judiciously, it will enhance people's confidence in criminal justice system.
With growing international consensus towards abolition of the death penalty, India's
continuation of award of non-unanimous death sentences is equivalent to taking steps
backward. Fair and reasonable procedure is a vital safeguard for the enjoyment of human
rights- more so where people are charged with crimes punishable by death. Under
international human rights standards, such accused are entitled to the strictest observance of
all fair trial guarantees and to certain additional safeguards. The requirement of unanimity of
judges in imposing death sentences could act as an additional safeguard.

45