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Dr.C.V.

Raman University

A THESIS ON
Critical analysis on capital punishment in Indian
perspective
Submitted in partial fulfillment for degree of

Master in Laws

Under the Supervision of submitted By

Shri R P Chaudhary Kamal Kishor Soni


Asst.Prof LLM LLM 4th Semester

2016-17

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ACKNOWLEDGEMENT

I, Kamal Kishor Soni thankful to all my teachers who


provide me there guidance in every step to help me to
finish my project, I am also very thankful to my friends who
helped me a lot.

Firstly, I want to thank my family and friends especially Mr.


Aminuddin ahmed khan and Ms.Swati Dewangan who
provided me valuable details, documents, materials and
guidance of other advocates which help me to prepare this
project.

Kamal Kishor Soni


L.L.M.4th Semester
Dr.C.V.Raman University

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DECLARATION

I hereby declare that the project titled CAPITAL


PUNISHMENT is prepared by me under the direction
of Shri Jainendra Kumar Patel Asst.prof.
Dr.C.V.Raman University, Kota, Bilaspur.

Kamal Kishor Soni


L.L.M. 4th Semester
Dr.C.V.Raman University

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Certificate

This is hereby Certified that the desertation on


CAPITAL PUNISHMENT is made by Students own
efforts.

Dr.C.V.Raman University Research Officer


Kargi road Kota
Bilaspur

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INDEX

CHAPTER 1 : INTRODUCTION
1.1 Meaning of Capital Punishment.
1.2 Origin of Capital Punishment.
1.3 An effective Deterrent to Crime.
1.4 Execution of Death Sentence in India.
1.5 Execution of Death Sentence in Other Countries.
CHAPTER 2 : HISTORICAL BACKGROUND
2.1 Nineteenth century.
2.2 Early & Mid Twentieth Century.
CHAPTER 3 : INTERNATIONAL SCENARIO
3.1 Capital Punishment in International Human Rights
Treaties.
CHAPTER 4 : Capital Punishment In india
4.1 Constitutional Power.
4.2 Capital Punishment In Various Legislation in India.
4.3 Constitutional Validity of Capital Punishment.
4.4 Capital Punishment Under Criminal Law.
CHAPTER 5 :Supreme Courts View
5.1 The Current Status On Validity of Capital Punishment
5.2 Criteria For Rarest Of Rare.
5.3 Emergency of Alternative Punishments.
5.4 Clemency Powers
5.5 Judicial Reviews of Exercise of Mercy Powers.

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CHAPTER 6 : TABLES
6.1 Capital Offences In IPC 1860.
6.2 Mercy Petitions Decided by The President of
India
CHAPTER 7 : Case Laws
7.1 Dhananjay Chatterjee vs State of west
Bengal & ors.
7.2 Sushil Murmu vs State of Jharkhand.
7.3 State of UP vs Satish.
Murder vs Capital Punishment
7.4 Machhi Singh vs State of Punjab.
7.5 Keshar Singh vs UI
7.6 Jumman khan vs State of UP
7.7 Priti Rathikesh 2013.
7.8 Nirbhaya Case
7.9 Bachan Singh Case
7.10 Yakub Memon Case
CHAPTER 8 : ARGUMENTS
8.1 Argument in Favour of Death Penalty.
8.2 Arguments Against Death Penalty.
CHAPTER 9 : ABOLITION
9.1 Arguments for The Abolition.
9.2 Why the Capital Punishment Should be
Abolished.
CHAPTER 10 : CONCLUSION

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CAPITAL PUNISHMENT

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CAPITAL PUNISHMENT

CHAPTER 1 : INTRODUCTION

The capital punishment debate is the most generally relevant


debate, keeping in mind the situation that has been brought
about by today. Capital punishment is an integral part of the
Indian criminal justice system. Increasing strength of the human
rights movement in India, the existence of capital punishment
is questioned as immoral. However this is an odd argument as
keeping one person alive at the cost of the lives of numerous
members or potential victims in the society is unbelievable and
in fact, that is morally wrong.

Indian constitution is an amalgam of many constitutions, i.e.


the constitution of America, Britain and Japan. It should not
surprise anyone, therefore, that the main provisions of the
constitution of India guaranteeing the right to life has been
lifted from the American and the Japanese constitution. It may
be added here that what we have borrowed in the form or style
of expression and not the right itself. The right to life is not the
something that constitutions create or even confer. The
constitution only recognizes this inalienable and indispensable
right.

The legal system of many nations of the world contain a written


constitution which guarantees fundamental rights against the

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Excesses and the apathy of the legislature and the executive.
Such constitution after recognize the act to life, equal
protection of law and due process of law. They prohibit cruel
and unusual punishment and degrading treatment or
punishment. The constitutional validity of capital punishment
is an issue which has troubled the constitutional courts of the
world. It is a question the answer to which provide a litmus test
of the spirit in which a supreme court perform its duties. The
cases in which the legality of the death penalty has been
impugned raise for judicial review a state practice of dubious
moral propriety one impinging on the fundamental right to life
of the weakest members of society an issue in which the
standards of liberals are in conflict with the standards of
conservatives and often with those of the man in the street.

Capital punishment,death penalty or execution is punishment


by death. The sentence that someone be punished in this
manner is a death sentence. Crimes that can result in a death
penalty are known as capital crimes or capital offences. The
term capital originates from the Latin capitalis, literally
"regarding the head" (referring to execution by beheading).

Capital punishment has, in the past, been practiced by most


societies, as a punishment for criminals, and political or
religious dissidents. Historically, the carrying out of the death
sentence was often accompanied by torture, and executions
were most often public.

36 countries actively practice capital punishment, 103 countries


have completely abolished it de jure for all crimes, 6 have
abolished it for ordinary crimes only (while maintaining it for
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special circumstances such as war crimes), and 50 have
abolished it de facto(have not used it for at least ten years
and.or are under moratorium).

Nearly all countries in the world prohibit the execution of


individuals who were under the age of 18 at the time of their
crimes; since 2009, only Iran, Saudi Arabia, and Sudan have
carried out such executions. Executions of this kind are
prohibited under international law.

1.1 : MEANING OF CAPITAL PUNISHMENT

Capital punishment, also called death penalty, execution of an


offender sentenced to death after conviction by a court of law
for a criminal offense. Capital punishment should be
distinguished from extrajudicial executions carried out without
due process of law. The term death penalty is sometimes used
interchangeably with capital punishment, though imposition of
the penalty is not always followed by execution (even when it is
upheld on appeal), because of the possibility of commutation to
life imprisonment.

The term "Capital Punishment" stands for most severe form of


punishment. It is the punishment which is to be awarded for
the most heinous, grievous and detestable crimes against
humanity. While the definition and extent of such crimes vary
from country to country, state to state, age to age, the

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implication of capital punishment has always been the death
sentence. By common usage in jurisprudence, criminology and
penology, capital sentence means a sentence of death.

1.2 : ORIGIN OF CAPITAL PUNISHMENT

The death penalty was prescribed for various crimes in Babylon


at least 3700 years ago. Some of the ancient society imposed it
only for the most heinous crimes and some imposed it for
minor offences. For example, underRomes law in the 5th
century B.C., death was the penalty for publishing insulting
songs and disturbing the peace of the city atNight .
Under Greeces Draconian Legal Code in the 7th century B.C.,
death was the punishment for every crime. Beginning in ancient
times the executions were frequently carried out in public.
Public executions provided benefits for everyone. For the
surviving victims of the condemned criminals, the execution
provided the grim satisfaction of witnessing the final
punishment of those who had wronged them. For the
authorities, executions served as graphic demonstrations of
their determination to protect the public safety. Public
executions even helped the authorities to do their jobs serving
as grisly object lessons for potential wrongdoers.

The extent or the nature of the punishment depended as much


on the social standing of the criminal as on the nature of the
crime. The commoners were executed much more often than
nobles. Minorities and foreigners were treated more harshly
than members of the dominant group. The methods of
execution were also varied. The common modes of inflicting
death sentence on the offender were drowning, burning,

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boiling, beheading, hurling the offender from rock, stoning,
strangling, impelling, amputating, shooting by gun or starving
him to death. Hanging and beheading were the most common
methods of execution in Europe and Great Britain. At present
the common modes of execution of death sentence are
asphyxiation, electrocution, guillotine, shooting and hanging.
The method of execution by electrocution was first used at
Auburn State Prison, New York on 1890 and is now being
extensively used in USA, UK, USSR, Japan and other European
countries. The use of Guillotine for execution was introduced in
France in 1792. The method of hanging the condemned
prisoner till death has been commonly in use in almost all the
countries since ages. In India public hanging is now held to be
unconstitutional.

1.3 : AN EFFECTIVE DETERRENT TO CRIME:

There is a great deal of debate over how powerful a deterrent


capital punishment is. Most of us have an instinctive feeling
that the death penalty must deter, at least to some extent.
Deterrence is one of the fundamental reasons for punishment
of any kind. Since death is considered the harshest punishment
available under the law, it seems logical that it must also be the
most effective deterrent to crime. The English barrister Sir
James Stephen remarked, No other punishment deters men so
effectually from committing crimes as the punishment of
death. In any secondary punishment, however terrible, there
is hope; but death is death; its terror cannot be described more
forcibly.[3] The federal prisons now have custody of a man
sentenced to life imprisonment, who, since he has been in
prison, has committed three more murderers on three separate
occasions- both of prison guard and inmates. There is no
further punishment that he can receive. In effect, he has a
license to murder.
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1.4 : Execution of Death Sentence in India

The execution of death sentence in India is carried out by two


modes, namely hanging by the neck till death and being
executed by firing squad.

a) Hanging
The Code of Criminal Procedure (1898) called for the method of
execution to be hanging. The same method was adopted in the
Code of Criminal Procedure (1973). Section 354(5) of the above
procedure reads as "When any person is sentenced to death,
the sentence shall direct that the person be hanged by the neck
till the person is dead."

b) Shooting
The Army Act and Air Force Act also provide for the execution
of the death sentence. Section 34 of the Air Force Act, 1950
empowers the court martial to impose the death sentence for
the offences mentioned in section 34(a) to (o) of The Air Force
Act, 1950. Section 163 of the Act provides for the form of the
sentence of death as:-

"In awarding a sentence of death, a court-martial shall, in its


discretion, direct that the offender shall suffer death by being
hanged by the neck until he be dead or shall suffer death by
being shot to death".

This provides for the discretion of the Court Martial to either


provide for the execution of the death sentence by hanging or

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by being shot to death. The Army Act, 1950, and the Navy Act,
1957 also provide for the similar provisions as in The Air Force
Act, 1950.

1.5 : Execution of Death Sentence in other country


(a)Firing squad
Firing squad is the preferred method of execution in Indonesia.
Twelve armed executioners shoot the prisoner in the chest. If
the prisoner is still not dead, the commander then issues a final
bullet to the head

(b)Beheading
Saudi Arabia is the only country in the world where beheadings
are used as a method in capital punishment.The beheadings are
preformed publicly with a sword.

(c)Lethal injection
Though the end result of death is the same in all methods of
executions, lethal injection is often viewed as the least cruel.
Injecting a fatal dose of drugs into a death row inmate has
become the primary method of execution in the United States.
In 2013, lethal injection was also used in China and Vietnam.

(d)Electrocution
The United States is the only country to exercise capital
punishment using electrocution in 2013.In, 2008, the Nebraska
Supreme Court declared execution by electrocution illegal for
being "cruel and unusual punishment.

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CHAPTER 2 : HISTORICAL BACKGROUND

Capital punishment is an ancient sanction. There is practically


no country in the world where the death penalty has never
existed. History of human civilization reveals that during no
period of time capital punishment has been discarded as a
mode of punishment. Capital punishment for murder, treason,
arson, and rape was widely employed in ancient Greece under
the laws of Draco (fl. 7th century BCE), though Plato argued
that it should be used only for the incorrigible. The Romans also
used it for a wide range of offenses, though citizens were
exempted for a short time during the republic.

This finds support in the observation made by Sir Henry Marine


who stated that "Roman Republic did not abolish death
sentence though its non-use was primarily directed by the
practice of punishment or exile and the procedure of
questions".

The first established death penalty laws date as far back as the
Eighteenth Century B.C. in the Code of King Hammurabi of
Babylon, which codified the death penalty for 25 different
crimes. The death penalty was also part of the Fourteenth
Century B.C.'s Hittite Code; in the Seventh Century B.C.'s
Draconian Code of Athens, which made death the only
punishment for all crimes; and in the Fifth Century B.C.'s Roman
Law of the Twelve Tablets. Death sentences were carried out by
such means as crucifixion, drowning, beating to death, burning
alive, and impalement. In the Tenth Century A.D., hanging
became the usual method of execution in Britain. In the

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following century, William the Conqueror would not allow
persons to be hanged or otherwise executed for any crime,
except in times of war. This trend would not last, for in the
Sixteenth Century, under the reign of Henry VIII, as many as
72,000 people are estimated to have been executed. Some
common methods of execution at that time were boiling,
burning at the stake, hanging,

beheading, and drawing and quartering. Executions were


Carried out for such capital offenses as marrying a Jew, not
confessing to a crime,and treason. The number of capital
crimes in Britain continued to rise throughout the next two
centuries. By the 1700s, 222 crimes were punishable by death
in Britain, including stealing, cutting down a tree, and robbing a
rabbit warren. Because of the severity of the death penalty,
many juries would not convict defendants if the offense was
not serious. This lead to reforms of Britain's death penalty.
From 1823 to 1837, the death penalty was eliminated for over
100 of the 222 crimes punishable by death.

2.1 : Nineteenth Century

In the early to mid-Nineteenth Century, the abolitionist


movement gained momentum in the northeast. In the early
part of the century, many states reduced the number of their
capital crimes and built state penitentiaries. In 1834,
Pennsylvania became the first state to move executions away
from the public eye and carrying them out in correctional
facilities. In 1846, Michigan became the first state to abolish
the death penalty for all crimes except treason. Later, Rhode
Island and Wisconsin abolished the death penalty for all crimes.
By the end of the century, the world would see the countries of

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Venezuela, Portugal, Netherlands, Costa Rica, Brazil and
Ecuador follow suit.

Although some U.S. states began abolishing the death penalty,


most states held onto capital punishment. Some states made
more crimes capital offenses, especially for offenses committed
by slaves. In 1838, in an effort to make the death penalty more
palatable to the public, some states began passing laws against
mandatory death sentencing instead enacting discretionary
death penalty statutes. The 1838 enactment of discretionary
death penalty statutes in Tennessee, and later in Alabama,
were seen as a great reform. This introduction of sentencing
discretion in the capital process was perceived as a victory for
abolitionists because prior to the enactment of these statutes,
all states mandated the death penalty for anyone convicted of a
capital crime, regardless of circumstances. With the exception
of a small number of rarely committed crimes in a few
jurisdictions, all mandatory capital punishment laws had been
abolished by 1963.

During the Civil War, opposition to the death penalty waned, as


more attention was given to the anti-slavery movement. After
the war, new developments in the means of executions
emerged. The electric chair was introduced at the end of the
century. New York built the first electric chair in 1888, and in
1890 executed William Kemmler. Soon, other states adopted
this execution method.

2.2 : Early and Mid-Twentieth Century

Although some states abolished the death penalty in the mid-


Nineteenth Century, it was actually the first half of the

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Twentieth Century that marked the beginning of the
"Progressive Period" of reform in the United States. From 1907
to 1917, six states completely outlawed the death penalty and
three limited it to the rarely committed crimes of treason and
first degree murder of a law enforcement official. However, this
reform was short-lived. There was a frenzied atmosphere in the
U.S., as citizens began to panic about the threat of revolution in
the wake of the Russian Revolution. In addition, the U.S. had
just entered World War I and there were intense class conflicts
as socialists mounted the first serious challenge to capitalism.
As a result, five of the six abolitionist states reinstated their
death penalty by 1920.

In 1924, the use of cyanide gas was introduced, as Nevada


sought a more humane way of executing its inmates. Gee Jon
was the first person executed by lethal gas. The state tried to
pump cyanide gas into Jon's cell while he slept, but this proved
impossible, and the gas chamber was constructed.

From the 1920s to the 1940s, there was resurgence in the use
of the death penalty. This was due, in part, to the writings of
criminologists, who argued that the death penalty was a
necessary social measure. In the United States, Americans were
suffering through Prohibition and the Great Depression. There
were more executions in the 1930s than in any other decade in
American history, an average of 167 per year.

In the 1950s, public sentiment began to turn away from capital


punishment. Many allied nations either abolished or limited the

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death penalty, and in the U.S., the number of executions
dropped dramatically. Whereas there were 1,289 executions in
the 1940s, there were 715 in the 1950s, and the number fell
even further, to only 191, from 1960 to 1976. In 1966, support
for capital punishment reached an all-time low.

CHAPTER 3 : INTERNATIONAL SCENARIO

The international landscape regarding the death penalty both


in terms of international law and state practice has evolved in
the past decades. Internationally, countries are classified on
their death penalty status, based on the following categories:

Abolitionist for all crimes


Abolitionist for ordinary crimes
Abolitionist de facto
Retentionist

At the end of 2014, 98 countries were abolitionist for all crimes,


7 countries were abolitionist for ordinary crimes only, and 35
were abolitionist in practice, making 140 countries in the world
abolitionist in law or practice. 58 countries are regarded as
retentionist, who still have the death penalty on their statute
book, and have used it in the recent past10. While only a
minority of countries retain and use the death penalty, this list
includes some of the most populous nations in the world,
including India, China, Indonesia and the United States, making
a majority of population in the world potentially subject to this
punishment.
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3.1 : CAPITAL PUNISHMENT IN INTERNATIONAL HUMAN
RIGHTS TREATIES

The International Covenant on Civil and Political Rights (ICCPR)


is one of the key documents discussing the imposition of death
penalty in international human rights law. The ICCPR does not
abolish the use of the death penalty, but Article 6 contains
guarantees regarding the right to life, and contains important
safeguards to be followed by signatories who retain the death
penalty.

The Second Optional Protocol to the ICCPR, aiming at the


abolition of the death penalty is the only treaty directly
concerned with abolishing the death penalty, which is open to
signatures from all countries in the world. It came into force in
1991, and has 81 states parties and 3 signatories. Similar to the
ICCPR, Article 37(a) of the Convention on the rights of the child.
(CRC) explicitly prohibits the use of the death penalty against
persons under the age of 18. As of July 2015, 195 countries had
ratified the CRC.

The Convention against Torture and Cruel, Inhuman or


Degrading Treatment or Punishment (the Torture Convention)
and the UN Committee against Torture have been sources of
jurisprudence for limitations on the death penalty as well as
necessary safeguards. The Torture Convention does not regard
the imposition of death penalty per se as a form of torture or
cruel, inhuman or degrading treatment or punishment (CIDT).
However, some methods of execution and the phenomenon of

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death row have been seen as forms of CIDT by UN bodies.

In the evolution of international criminal law, the death penalty


was a permissible punishment in the Nuremberg and Tokyo
tribunals, both of which were established following World War
II. Since then, however, international criminal courts exclude
the death penalty as a permissible punishment.

the treaties mentioned above, India has ratified the ICCPR and
the CRC, and is signatory to the Torture Convention but has not
ratified it. Under international law, treaty obligations are
binding on states once they have ratified the treaty. Even
where a treaty has been signed but not ratified, the state is
bound to refrain from acts which would defeat the object and
purpose of a treaty.

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CHAPTER 4 : CAPITAL PUNISHMENT IN INDIA

A careful scrutiny of the debates in British India's Legislative


Assembly reveals that no issue was raised about capital
punishment in the Assembly until 1931, when one of the Members
from Bihar, Shri Gaya Prasad Singh sought to introduce a Bill to
abolish the punishment of death for the offences under the Indian
Penal Code. However, the motion was negatived after the then
Home Minister replied to the motion.

The Government's policy on capital punishment in British India


prior to Independence was clearly stated twice in 1946 by the then
Home Minister, Sir John Thorne, in the debates of the Legislative
Assembly. "The Government does not think it wise to abolish
capital punishment for any type of crime for which that
punishment is now provided".

India retains capital punishment for a number of serious offences.


The Indian Supreme Court has allowed the death penalty to be
carried out in four instances since 1995.

The Supreme Court in Mithu vs State of Punjab struck down


Section 303 of the Indian Penal Code, which provided for a
mandatory death sentence for offenders serving a life sentence.
The number of people executed in India since independence in
1947 is a matter of dispute; official government statistics claim that
only 52 people had been executed since independence. However,
research by the People's Union for Civil Liberties indicates that the
actual number of executions is in fact much higher, as they located

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records of 1,422 executions in the decade from 1953 to 1963
alone. In December 2007, India voted against a United Nations
General Assembly resolution calling for a moratorium on the death
penalty. In November 2012, India again upheld its stance on capital
punishment by voting against the UN General Assembly draft
resolution seeking to ban death penalty.

In colonial India, death was prescribed as one of the punishments


in the Indian Penal Code, 1860 (IPC), which listed a number of
capital crimes. It remained in effect after independence in 1947.

Under Article 21 of the Constitution of India, no person can be


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

The Supreme Court of India ruled in 1983 that the death penalty
should be imposed only in "the rarest of rare cases." While stating
that honour killings fall within the "rarest of the rare" category,
Supreme Court has recommended the death penalty be extended
to those found guilty of committing "honour killings", which
deserve to be a capital crime. The Supreme Court also
recommended death sentences to be imposed on police officials
who commit police brutality in the form of encounter killings.

An appeal filed in 2013 by Vikram Singh and another person facing


the death sentence questioned the constitutional validity of
Section 364A of the Indian Penal Code.

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4.1 : Constitutional Power

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


The President shall have the power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or
commute the sentence of any person convicted of any offence

(a) in all cases where the punishment or sentence is by a Court


Martial;
(b) in all cases where the punishment or sentence is for an offence
against any law relating to a matter to which the executive power
of the Union extends;
(c) in all cases where the sentence is a sentence of death.

4.2 : Capital Punishment in Various Legislation in India

Capital punishment is prescribed as one of the punishments in


various of the Indian Penal Code, 1860, The Arms Act 1959, The
Narcotic Drugs and Psychotropic substance Act 1985, and The
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,
The Commission of Sati (Prevention) Act, 1987, The Air Force Act,
1950, The Army Act, 1950, and The Navy Act, 1957. In the
Prevention of Terrorism Act, 2002 also, there was a provision for
death penalty for causing death of persons using bombs, dynamite
or other explosive substances in order to threaten the unity and
integrity of India or to strike terror in the people. It is also
interesting to note that under the Arms Act, NDPS Act and the
Scheduled Caste and Scheduled Tribe Act, Capital Punishment is
the only punishment for the offence covered by those sections,

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thus leaving no room for the judiciary to exercise its discretion. It is
doubtful whether these provisions can stand the test of the
constitutional validity in the light of the decision in Mithu v. State
of Punjab Because in this Case section 303 of the Indian Penal Code
was struck down as violation of Article 21 and 14 of constitution
of India, as the offence under the Section was punishable to
exercise its direction and thus resulted in an unfair, unjust and
unreasonable procedure depriving a person of his life.

4.3 : Constitutional Validity of Capital Punishment

Article 21 of the Constitution of India provides Protection of Life


and Personal Liberty to every people. And the deprivation of life of
anyone is unconstitutional under Article 21. It is also said that No
person shall be deprived of his life or personal liberty except
according to procedure established by law; it means, if there is a
procedure than state can deprived a person from his life.

In many countries there has been accepted and death penalty has
been abolished. In India, too there are many social workers
including lawyers and Judges who have voiced this demand.
Prominent amongst them are Bhagwati J. and Krishna Iyer J. both
former judges of Supreme Court, Krishna Iyer J. Very recently while
addressing a Human right organization strongly expressed himself
in favour of the abolition of death penalty.

Justice A.K. Ganguly of the Supreme Court has termed the award of
death sentence as barbaric , anti-life, undemocratic and
irresponsible which is legal in the prevailing judicial system. The

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doctrine of the crime falling in the rarest of rare category in
awarding the death penalty was a grey area as its interpretation
depended on individual judges. He cautioned that before giving
death penalty, a judge must be extremely careful and weigh
mitigating and aggravating circumstances.

So far as constitutionality is concerned it has to be considered in


the light of the provision to take away the life of a person through a
procedure established by law. This means that through there is a
procedure establish by law, state can deprive a person of his life.
Through judicial pronouncements, this procedure is interpreted to
mean, a fair, just and reasonable one. Though the constitutional
validity of the death punishment was challenged as violative
of Article 19 and 21 of the Constitution of India, because it didnt
provide any procedure to the Court upheld the validity of death
sentence. Since the procedure by which the life is taken is fair, just
and reasonable. The judges are given ample power to exercise their
discretion to award death penalty as against imprisonment for life.

The question of constitutional validity of death penalty has been


raised before the Supreme Court of India more than once. In case
of Jagmohan Singh v. State of Uttar Pradesh, the constitutional
validity of death penalty was upheld by the Supreme Court by a
unanimous decision of the five judges composing the Bench.

In case of Rajender Prasad v. State of Uttar Pradesh, Krishna Iyer J.


said that death penalty directly affects the life of the people
guaranteed under Article 21 of the Constitution. But it has been
provided by law and there is nothing like due law in Article 21.

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Therefore, it is valid. He further said that to impose death penalty
the two things must be required:

The special reasons should be recorded for imposing death


penalty in a case.

The death penalty must be imposed only in extraordinary


circumstances.

The question was again considered by a five judges bench in case


of Bachan Singh v. State of Punjab, particularly in view of certain
observations of Krishna Iyer J. In Bachan Singh case judges
considered the social, ethical and even spiritual aspect of death
penalty while upholding the constitutional validity thereof.

It is to be noted that, After the award of the death sentence by a


sessions (trial) court, the sentence must be confirmed by a High
Court to make it final. Once confirmed, the condemned convict has
the option of appealing to the Supreme Court. If this is not
possible, or if the Supreme Court turns down the appeal or refuses
to hear the petition, the condemned person can submit a mercy
petition to the President of India and the Governor of the State.
Power of President

The present day constitutional clemency powers of the President


and Governors originate from the Government of India Act 1935
but, unlike the Governor-General, the President and Governors in
independent India do not have any prerogative clemency powers.

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4.4 : Capital Punishment Under Criminal Law

Section 365 (5) of the Criminal Procedure Code, 1898, prior to its
amendment in 1955, required a court sentencing a person
convicted of an offence punishable with death to a punishment
other than death to state the reasons why it was not awarding
death sentence. The amendment deleted this provision but there
was no indication in either the Cr.P.C or the Indian Penal Code,
1860 (IPC) as to which cases called for life imprisonment and which
the alternative death penalty. The Law Commission of India in
1967 undertook a study of death penalty and submitted its 35th
Report to the government.

Having regard to the conditions in India, to the variety of social


upbringing of its inhabitants, to the disparity in the level of morality
and education in the country, to the vastness of its area, to the
diversity of its population and to the paramount need for
maintaining law and order in the country at the present juncture,
India cannot risk the experiment of abolition of capital punishment.

At independence, India retained several laws put in place by the


British colonial government, which included the Code of Criminal
Procedure, 1898 (Cr.P.C. 1898), and the Indian Penal Code, 1860
(IPC). The IPC prescribed six punishments that could be imposed
under the law, including death.For offences where the death
penalty was an option, Section 367(5) of the CrPC 1898 required
courts to record reasons where the court decided not to impose a
sentence of death:

28
If the accused is convicted of an offence punishable with death, and
the court sentences him to any punishment other than death, the
court shall in its judgment state the reason why sentence of death
was not passed.

In 1955, the Parliament repealed Section 367(5), CrPC 1898,


significantly altering the position of the death sentence. The death
penalty was no longer the norm, and courts did not need special
reasons for why they were not imposing the death penalty in cases
where it was a prescribed punishment.

The Code of Criminal Procedure was re-enacted in 1973 (CrPC),


and several changes were made, notably to Section 354(3):

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 reasons for the sentence
awarded, and, in the case of sentence of death, the special reasons
for such sentence.

This was a significant modification from the situation following the


1955 amendment (where terms of imprisonment and the death
penalty were equal possibilities in a capital case), and a reversal of
the position under the 1898 law (where death sentence was the
norm and reasons had to be recorded if any other punishment was
imposed). Now, judges needed to provide special reasons for why
they imposed the death sentence.

These amendments also introduced the possibility of a post-

29
conviction hearing on sentence, including the death sentence, in
Section 235(2), which states:

If the accused is convicted, the Judge shall, unless he proceeds in


accordance with the provisions of section 360, hear the accused on
the question of sentence, and then pass sentence on him according
to law.

CHAPTER 5 : SUPREME COURTS VIEW

5.1 : THE CURRENT STATUS ON VALIDITY OF CAPITAL


PUNISHMENT
Article 21 of the Indian Constitution ensures the Fundamental Right
to life and liberty for all persons. It adds no person shall be
deprived of his life or personal liberty except according to
procedure established by law. This has been legally construed to
mean if there is a procedure, which is fair and valid, then the state
by framing a law can deprive a person of his life. While the central
government has consistently maintained it would keep the death
penalty in the statute books to act as a deterrent, and for those
who are a threat to society, the Supreme Court too has upheld the
constitutional validity of capital

Punishment in rarest of rare cases. In Jagmohan Singh vs State of


Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar
Pradesh (1979), and finally in Bachan Singh vs State of Punjab
(1980), the Supreme Court affirmed the constitutional validity of
the death penalty. It said that if capital punishment is provided in
the law and the procedure is a fair, just and reasonable one, the
30
death sentence can be awarded to a convict. This will, however,
only be in the rarest of rare cases, and the courts should render
special reasons while sending a person to the gallows.

5.2 : Criteria for Rarest of Rare

The principles as to what would constitute the rarest of rare has


been laid down by the top Court in the landmark judgment in
Bachan Singh vs State of Punjab (1980).

In Bachan singh case Supreme Court expressed some outstanding


reasons relating wrongdoing and criminal in which (sections 161 at
page 738 of the judgment). In section 163, Bacchan Singh further
noted: .in settling the level of discipline or settling on the
decision of sentence for different offenses, including one under
Section 302 of [the] Penal Code, the court ought not bind its
thought chiefly or just to the circumstances associated with the
specific wrongdoing, additionally give due attention to the
circumstances of the criminal
The phrase "rarest of rare case" has its genesis in a 1983 Supreme
Court decision, Machhi Singh vs State of Punjab. This judgment
followed the courts earlier decision in Bachan Singh vs State of
Punjab (1982), where it upheld the constitutional validity of capital
punishment but added a caveat that is now famous, if perhaps
impossible to pin down precisely: that death sentences would be
accorded only in the rarest of rare cases.

In Machhi Singh case, the court tried to lay down criteria for
assessing when a crime fell into this category. The bench discussed
and formalized - Imposition of death sentence- "Rarest of rare
cases formula"- Guidelines to be adopted in identification of rarest
of rare cases. Following is the relevant excerpt from the actual
31
judgment. I have highlighted the important statements as well as
some relevant ones to Yakub Memon's case. It should help you
understand an answer to your question.

Excerpt from the judgment:


The reasons why the community as a whole does not endorse
the humanistic approach reflected in "death sentence-in-no-case"
doctrine are not far to seek. In the first place, the very humanistic
edifice is constructed on the foundation of "reverence for life"
principle. When a member of the community violates this very
principle by killing another member, the society may not feel itself
bound by the shackles of this doctrine. Secondly, it has to be
realized that every member of the community is able to live with
safety without his or her own life being endangered because of the
protective arm of the community and on account of the rule of law
enforced by it. The very existence of the rule of law and the fear of
being brought to book operates as a deterrent to those who have
no scruples in killing others if it suits their ends.

Every member of the community owes a debt to the community


for this protection. When ingratitude is shown instead of gratitude
by 'Killing' a member of the community which protects the
murderer himself from being killed, or when the community feels
that for the sake of self preservation the killer has to be killed, the
community may well withdraw the protection by sanctioning the
death penalty.

But the community will not do so in every case. It may do so (in


rarest of rare cases) when its collective conscience is so shocked
that it will expect the holders of the judicial power centre to inflict
death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty. The community

32
may entrain such a sentiment when the crime is viewed from the
platform of the motive for, or the manner of commission of the

crime, or the anti-social or abhorrent nature of the crime, such as


for instance:

I. Manner of Commission of Murder When the murder


is committed in an extremely brutal, grotesque, diabolical.
revolting, or dastardly manner so as to arouse intense and
extreme indignation of the community. For instance,

(i) When the house of the victim is set aflame with the end in view
to roast him alive in the house.

(ii) When the victim is subjected to inhuman acts of torture or


cruelty in order to bring about his or her death.

(iii) When the body of the victim is cut into pieces or his body is
dismembered in a fiendish manner.

II. Motive for Commission of murder When the murder is


committed for a motive which evince total depravity and
meanness. For instance, when

(a) a hired assassin commits murder for the sake of money or


reward

(b) a cold blooded murder is committed with a deliberate design in


order to inherit property or to gain control over property of a ward
or a person under the control of the murderer or vis-a-vis whom
the murderer is in a dominating position or in a position of trust.

(c) a murder is committed in the course for betrayal of the


motherland.

33
III. Anti Social or Socially abhorrent nature of the crime

(a) When murder of a Scheduled Caste or minority community


etc., is committed not for personal reasons but in circumstances
which arouse social wrath. For instance when such a crime is
committed in order to terrorize such persons and frighten them
into fleeing from a place or in order to deprive them of, or make
them with a view to reverse past injustices and in order to restore
the social balance.

(b) In cases of 'bride burning' and what are known as 'dowry


deaths' or when murder is committed in order to remarry for the
sake of extracting dowry once again or to marry another woman on
account of infatuation. IV Magnitude of Crime When the crime is
enormous in proportion. For instance when multiple murders say
of all or almost all the members of a family or a large number of
persons of a particular caste, community, or locality, are
committed. V Personality of Victim af murder When the victim of
murder is (a) an innocent child who could not have or has not
provided even an excuse, much less a provocation, for murder. (b)
a helpless woman or a person rendered helpless by old age or
infirmity (c) when the victim is a person vis-a vis whom the
murderer is in a position of domination or trust (d) when the victim
is a public figure generally loved and respected by the community
for the services rendered by him and the murder is committed for
political or similar reasons other than personal reasons.

In this background the guidelines indicated in Bachan Singh's case


(supra) will have to be culled out and applied to the facts of each
individual case where the question of imposing of death sentences
arises. The following propositions emerge from Bachan Singh's
case:

34
(i) the extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability;

(ii) Before opting for the death penalty the circumstances of the
'offender' also require to be taken into consideration alongwith the
circumstances of the 'crime'

(iii) Life imprisonment is the rule and death sentence is an


exception. In other words death sentence must be imposed only
when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the
crime, and provided, and only provided the option to impose
sentence of imprisonment for life cannot be conscientiously
exercised having regard to the nature and circumstances of the
crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances


has to be drawn up and in doing so the mitigating circumstances
has to be accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating circumstances
before the option is exercised.

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 the 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 offender ?

35
If upon taking an overall global view of all the circumstances in
the light of the aforesaid proposition and taking into account the
answers to the questions posed here in above, the circumstances

of the case are such that death sentence is warranted, the court
would proceed to do so.
Supreme Court formulated certain broad illustrative guidelines and
said it should be given only when the option of awarding the
sentence of life imprisonment is unquestionably foreclosed. It
was left completely upon the courts discretion to reach this
conclusion.

However, the apex court also laid down the principle of weighing,
aggravating and mitigating circumstances. A balance-sheet of
aggravating and mitigating circumstances in a particular case has to
be drawn to ascertain whether justice will not be done if any
punishment less than the death sentence is awarded. Two prime
questions, the top court held, may be asked and answered. First, is
there something uncommon about the crime which renders the
sentence of imprisonment for life inadequate and calls for a death
sentence? Second, are there circumstances of the crime such that
there is no alternative but to impose the death sentence even after
according maximum weightage to the mitigating circumstances
which speak in favour of the offenders.

5.3 : EMERGENCEY OF ALTERNATIVE PUNISHMENT

In the last few years, Supreme Court has entrenched the


punishment of full life or life sentence of determinate number of
years as a response to challenges presented in death cases. The
Supreme Court speaking through a three-judge bench this

36
emerging penal option in following terms: The matter may be
looked at from a slightly different angle. The issue of sentencing

has two aspects. A sentence may be excessive and unduly harsh or


it may be highly disproportionately inadequate. When an
appellant comes to this Court carrying a death sentence awarded
by the trial court and confirmed by the High Court, this Court may
find, as in the present appeal, that the case just falls short of the
rarest of the rare category and may feel somewhat reluctant in
endorsing the death sentence. But at the same time, having
regard to the nature of the crime, the Court may strongly feel that
a sentence of life imprisonment subject to remission normally
works out to a term of 14 years would be grossly disproportionate
and inadequate. What then should the Court do? If the Court's
option is limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more than 14
years and the other death, the Court may feel tempted and find
itself nudged into endorsing the death penalty. Such a course
would indeed be disastrous. A far more just, reasonable and
proper course would be to expand the options and to take over
what, as a matter of fact, lawfully belongs to the Court It needs to
be emphasised that the Court would take recourse to the
expanded option primarily because in the facts of the case, the
sentence of 14 years' imprisonment would amount to no
punishment at all.

Further, the formalisation of a special category of sentence, though


for an extremely few number of cases, shall have the great
advantage of having the death penalty on the statute book but to
actually use it as little as possible, really in the rarest of

37
rare cases." The observations in Swamy Shraddhanand [2] case
have been followed by the Court in a multitude of cases such as

Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v.


Sanjay Kumar , Sebastian v. State of Kerala, Gurvail Singh v. State
of Punjab where full life or sentence of determinate number of
years has been awarded as opposed to death penalty.

5.4 : CLEMENCY POWERS

If the Supreme Court turns down the appeal against capital


punishment, a condemned prisoner can submit a mercy petition to
the President of India and the Governor of the State. Under Articles
72 and 161 of the Constitution, the President and Governors,
respectively have the power to grant pardons, reprieves, respites
or remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of any
Offence. Neither of these powers are personal to the holders of
the Office, but are to be exercised (under Articles 74 and 163,
respectively) on the aid and advice of the Council of Ministers.

Clemency powers, while exercisable for a wide range of


considerations and on protean occasions, also function as the final
safeguard against possibility of judicial error or miscarriage of
justice. This casts a heavy responsibility on those wielding this
power and necessitates a full application of mind, scrutiny of
judicial records, and wide ranging inquiries in adjudicating a
clemency petition, especially one from a prisoner under a judicially
confirmed death sentence who is on the very verge of execution.
38
5.5 : JUDICIAL REVIEW OF EXERCISE OF MERCY POWERS

The Supreme Court in Shatrughan Chauhan case has recorded that


the Home Ministry considers the following factors while deciding
mercy petitions:

Personality of the accused (such as age, sex or mental


deficiency) or circumstances of the case (such as provocation
or similar justification);

Cases in which the appellate Court expressed doubt as to the


reliability of evidence but has nevertheless decided on
conviction;

Cases where it is alleged that fresh evidence is obtainable


mainly with a view to see whether fresh enquiry is justified;

Where the High Court on appeal reversed acquittal or on an


appeal enhanced the sentence;

Is there any difference of opinion in the Bench of High Court


Judges necessitating reference to a larger Bench;

Consideration of evidence in fixation of responsibility in gang


murder case;

Long delays in investigation and trial etc.

39
However, when the actual exercise of the Ministry of Home Affairs
(on whose recommendations mercy petitions are decided) is
analysed, it is seen that many times these guidelines have not
been adhered to. Writ Courts in numerous cases have examined
the manner in which the Executive has considered mercy petitions.
In fact, the Supreme Court as part of the batch matter Shatrughan
Chauhan case heard 11 writ petitions challenging the rejection of
the mercy petition by the Executive.Supreme Court, last year held
that judicial clemency could be granted on the ground of
inordinate delay even after a mercy petition is rejected.

40
CHAPTER 6 : TABLES

6.1 CAPITAL OFFENCES IN IPC 1860


Capital Offences in IPC
Sl. Section Description
No. Number
1. Section Treason, for waging war against the Government of
121 India
2. Section Abetment of mutiny actually committed
132
3. Section Perjury resulting in the conviction and death of an
194 innocent person
4. Section Threatening or inducing any person to give false
195A evidence resulting in
the conviction and death of an innocent person
5. Section Murder
302
6. Section Abetment of a suicide by a minor, insane person or
305 intoxicated person
7. Section Attempted murder by a serving life convict
307 (2)
8. Section Kidnapping for ransom
364A
9. Section Rape and injury which causes death or leaves the
376A woman in a persistent vegetative state
10. Section Certain repeat offenders in the context of rape
376E
11. Section Dacoity with murder
396

6.2 MERCY PETITIONS DECIDED BY THE PRESIDENT OF INDIA

41
Mercy Petitions Decided by the President of India
Sl. Name of the Tenure Number of Number Total
No President Mercy of Mercy
. Petitions Petitions
Accepted Rejected
1. Dr. Rajendra 26.1.1950 180 1 181
Prasad 3.5.1962
2. Dr. Sarvapalli 13.5.1962 - 57 0 57
Radhakrishnan 13.5.1967
3. Dr. 13.5.1967 22 0 22
ZakirHussain 3.5.1969
4. Shri V.V. Giri 3.5.1969 3 0 3
20.7.1969;
24.8.1969
24.8.1974
5. Dr. Fakrudhin 24.8.1974 NA NA 0
Ali Ahmed 11.2.1977
6. Shri N 25.7.1977 NA NA 0
Sanjeeva 5.7.1982
Reddy
7. Giani Zail Singh 25.7.1982 2 30 32
25.7.1987
8. Shri R. 25.7.1987 5 45 50
Venkatraman 25.7.1992
9. Dr. Shankar 25.7.1992 0 18 18
Dayal Sharma 25.7.1997
10. Shri K.R. 25.7.1997 0 0 0
Narayanan 25.7.2002
11. Dr. A.P.J. Abul 25.7.2002 - 1 1 2
Kalam 25.7.2007
12. Smt. Pratibha 25.7.2007 34 5 39
Devisingh Patil 25.7.2012
13. Shri Pranab 25.7.2012 -- 2 31 33
Mukherjee present
Total 306 131 437

42
CHAPTER 7 : CASE LAWS

7.1Dhananjoy Chatterjee v. State of West Bengal & ors.

The appellant, Dhananjoy Chatterjee was found guilty of


offences punishable under Section 376, 302 and 380 of the
Indian Penal Code by judgment and was awarded death
sentence by the session judge, confirmed by the High Court. A
special leave petition was filed by the appellant. Leave was
granted but the appeal was dismissed by the Supreme Court.

7.2 Sushil Murmu v. State of Jharkhand,


A young child of 9 years was sacrificed before Goddess Kali by
the appellant for his own prosperity is what the prosecution
alleges. The Supreme Court awarded death penalty to the
Accused.

7.3 State of U.P. v. Satish,


Stressing that leniency in punishing grave crimes would have
serious consequences the Supreme Court has awarded the death
penalty to a mean for the rape and murder of a six year old girl.

Murder v. Capital Punishment


Murder and execution are morally equivalent because both of
them kill people. But this does not make sense. If that were so, it
could be logically said that wrongful confinement of an innocent
person by a civilian and imprisonment of an offender by the

43
state are morally equivalent, because they both confine a
person. 'Murder' term is used for unlawful killings only and
capital punishment by the judiciary is not unlawful. Moreover
every type of killing even by civilians is not murder. Thus there is
a fundamental legal difference between killing innocent people
(homicide) and capital punishment for murder.
The majority judgement in Bachan Singh continues to hold the
fields. Since then the courts have been administering death
penalty with great caution only in the extreme cases of
diabolical, brutal and gruesome, murder committed with pre
meditation which according to them are the rarest of the rare
cases of murder.

7.4 Machhi Singh Vs. State ofPunjab

In this case court reiterated the view expressed by the majority


in Bachan Singh that death penally should be inflicted in the
rarest of the rare cases . Speaking for the Court, Justice Thakkar
gave some guidelines for determining the rarest of rare case. The
guidelines related to the manner of commission of murder, the
motive for the commission of murder, anti social or socially
abhorrent nature of the crime, magnitude of the crime and the
personality of murder.

7.5 Kehar Singh Vs. Union ofIndia


The question of constitutionality of death penally was also raised
by the supreme court in this case. It was urged in this case while

44
relying on the dissenting operation of justice Bhagwati that the
constitutional validity of death penalty should be reconsidered.
The court rejected the plea holding itself bound by the law laid
down in Bachan Singh.

7.6 Jhumman Khan Vs. State of UP once again Supreme Court


rejected the pleas for the reconsideration of the constitutionally
of death penalty as unpersuasive and upheld the views
expressed by the majority in Bachan Singh.

Thus the constitutional validity of discretionary death penalty


has been repeatedly upheld by the Supreme Court. The survey of
leading cases decided by the Supreme Court reveals that judicial
opinion is in favour of retaining death penalty. However it does
not want its arbitrary use. Precisely for this reasons the court has
ruled that this penalty should be used in the rarest of the rare
cases. However, the strong views expressed by certain Judges in
favour of the abolition of death penalty are bound to have
adverse effect on its use.
7.7 Preeti Rathi Case (2013)- A special womens court has
awarded the death penalty to the convict in the acid attack case.
The Court said, Without a shadow of doubt, this crime falls in
the category of the rarest of the rare case. Therefore, deterrent
punishment is the need of the hour.
It further noted, The height of brutality in acid attacks was
more than those in cases of rape. Rape destroys the soul of the
victim. but she can be kept in isolation, without disclosing her

45
identity, and can be rehabilitated. But for an acid attack victim,
she has to move around with a destroyed body.

7.8 Nirbhaya case


Nirbhaya is the pseudonym used for the rape victim of the
infamous 16 December 2012 Delhi gang rape incident. On just
another chilly December night in Delhi, Nirbhaya and her friend
were returning from a movie theatre, they were waiting for a
bus. One of the would-be culprits convinced them to get on an
empty bus with tinted windows. They were assaulted by six
males, one of whom was a minor, aged 17.

The friend, when he tried to protect Nirbhaya, was beaten up by


the perpetrators. Nirbhaya was not just sexually violated, her
body was mutilated beyond human imagination. Her intestines
were pulled out, and private parts mutilated. She later died of
multiple organ failure, internal bleeding and cardiac arrest on
the 29th of December.

7.9 Bachhan singh case


Facts : Bachan Singh, the appellant in this case, was tried and
convicted and sentenced by the Sessions Judge to death under
section 302, Indian Penal Code for the murders of Desa Singh,
Durga Bai and Veeran Bai. The High Court confirmed his death
sentence and dismissed his appeal. He appealed to the Supreme
Court by special leave. A Bench of the Supreme Court consisting
of Sarkaria and Kailasam, JJ. heard the appeal and directed the
records of the case to be submitted to the Hon'ble Chief Justice,
for constituting a larger Bench to resolve the question of
constitutional validity of death penalty for murder provided in

46
section 302 of the Indian Penal Code, and the sentencing
procedure embodied in sub-section (3) of section 354 of the
Cr.P.C., 1973.

Issue: Constitutional validity of death penalty for murder.

Held: Section 302 of the Indian Penal Code insofar as it provides


for the death sentence as also section 354(3) of the Code of
Criminal Procedure, 1973 is constitutionally valid.
Exercise of discretion under section 354(3), Cr.P.C. should be in
exceptional and grave circumstances and imposition of death
sentence should only be in rarest of rare cases.

7.10 Yakub Memon case


Yakub, a former chartered accountant, is the younger brother of
Tiger Memon, the chief conspirator of the blasts that killed 257
people and left 713 injured. Memon was convicted on charges of
criminal conspiracy, aiding and abetting and facilitating in a
terrorist act, illegal possession and transportation of arms and
ammunition, and possessing explosives with intent to endanger
lives.

The Charges
The charges brought upon him were:
1.Criminal Conspiracy
2.Aiding and abetting and felicitating a terrorist act
3.Illegal possession and transportation of arms and
ammunitionPossessing explosives with intent to endanger lives.

held
47
On 21 March 2013, Supreme Court upheld the death sentence
of Yakub Memon, and called him the mastermind of terror
strike.
President Pranab Mukherjee, on 21 May 2014, rejected the
mercy plea of Memon, following recommendations of the
Maharashtra government and the Home Ministry that the
mercy petition of Memon be rejected.
Memon will be the only person hanged in this case.
Earlier, the death penalty awarded by a special Tada court to
10 others, who had planted RDX explosives-laden vehicles at
various places in Mumbai, had been commuted to life term by
distinguishing their roles from that of Memon.

48
CHAPTER 8 : ARGUMENTS
8.1 ARGUMENTS IN FAVOUR OF DEATH PENALTY

Article 21 of the Indian Constitution ensures the Fundamental


Right to Life and Liberty for all persons. No person shall be
deprived of his life or personal liberty except according to a
procedure established by law. This has been legally construed to
mean that if there is a procedure, which is fair and valid, then
the state by way of framing a law can deprive a person of his life.
This will, however, only be in the rarest of rare cases and the
courts should give special reasons while awarding the
punishment. Nobody values anything more than his or her life,
and any system that takes away your life will be an effective
deterrent.
The penalty should be retained for heinous crimes like rape and
murder. Else the crime rate will shoot up. The death penalty will
set an example for other criminals and will keep a check on
crime rate.
If someone has committed a heinous crime, then why is it
argued that he needs to be treated like a human? Wasnt the
crime he committed of inhumane nature.
As it is awarded only in rarest of rare cases, so not all the
criminals are awarded the penalty.
Keeping a rapist or a murderer for years in jail with all facilities
and letting them free after a period of time is no justice to the
victim.

49
8.2 : Arguments Against Death Penalty

Death Penalty does not necessarily acts as a deterrent.


It is a violation of human rights and is an inhuman and cruel form
of punishment.
India has ratified the Covenant on Civil and Political Rights, which
requires parties to abolish the death penalty.
Even the International Criminal Court, for offences like genocide,
war crimes and crimes against humanity, cannot award the
death penalty.Many countries have already eliminated it. For
example, Nepal officially abolished the death penalty in 1990
and did not re-introduce it even in the aftermath of the Civil war.
Sri Lanka, despite a long Civil War, has maintained a moratorium
on the penalty. Israel has only executed once since its formation.
A total of 140 countries have abolished it while 39 countries
have not.
The Law Commission of India in its 262nd report, had declared
that the abolition of the death penalty must become a goal for
India. It had recommended, for a start, the scrapping of the
death penalty for all crimes except terrorism related offences
and those that amount to waging war against the state.
Retributive justice is important, but it must not descend to the
level of vengeance. The Law Commission had sought a return to
the notions of restorative and reformative justice, and urged a
change in tenor, in such a manner that victims are not made to

50
think that the death penalty is the only, best or ultimate form of
punishment.
It observed that the administration of the death penalty even
within the restrictive environment of rarest of rare doctrine is
constitutionally unsustainable. The continued administration of
the death penalty raises issues of miscarriage of justice, errors as
well as the plight of the poor and disenfranchised in the criminal
justice system.
The question of death penalty is not free from the subjective
element and the confirmation of death sentence or its
commutation by the Court depends a good deal on the personal
preference of the Judges constituting the Bench. As per the SC,
there was a 95.7 % error rate among trial courts (from 2000-
2015) which awarded the penalty and 23.2% error rate among
SC rulings on death (2000-2013).
There is increasing support for the view that the death penalty
for terrorists may not only be ineffective but also be
counterproductive. When they are awarded the penalty, they
become martyrs influencing many other misguided youngsters
to espouse a similar cause. On the other hand, imprisonment of
a terrorist can help in obtaining information relating to their
activities and other terror outfits.
Enhancing the efficiency of the legal system will be more
effective than enhancing the punishment.

CHAPTER 9 : ABOLITION
9.1: ARGUMENTS FOR THE ABOLITION

51
1. Capital punishment should be abolished because it is a
legalized, revengeful and cruel destruction of Gods most
wonderful creation, the human being.

2. Immoral. Capital punishment is morally indefensible. Society


has no right to take the life of any person. It is morally wrong for
the State in the name of the law to take the life deliberately. In
eliminating the criminals, it is stated; the State does not erase
the crime, but repeats it.

3. Inhuman. Capital punishment is essentially inhuman. Death


penalty is a form of cruelty and inhumanity unworthy of a
humane civilization; even the most efficient methods of
execution do not result in instantaneous and painless
death. Humanity demands that capital punishment comes to an
end.

4. Non-violence. Indian ideology is based on non-violence.


Indian tradition is based on reformation of the mind and spirit.
Where it was the opinion that only God could take away life
given by him. Therefore a murderer should be sent to a
penitentiary and there given every chance of reforming himself

5. Irrevocable. Capital punishment is irrevocable. If an innocent


person is sentenced to death and executed, the greatest
injustice results. When as a result of an erroneous conviction, a

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man is sent to prison, he can be compensated. But death admits
of no compensation.
Sometimes there may be a mistaken view of the law. Thus, it is
argued that a person was sentenced to death in one Madras Full
Bench case, on a confession made by him, to an investigating
officer. Ten years later, the Privy Council, in a similar case, held
that this case was wrongly decided, and that the confessions
ought not to have been admitted in evidence.

6. Unjust. The sentence of death injures the family of the


offenders, and thus imposes suffering on persons who have
done nothing to deserve the suffering.

7. Unequal application. Death penalty is applied unequally.


Some persons who have not sufficient financial means to defend
themselves or are morally unable to do so, suffer. The penalty,
therefore, which should be the expression of absolute justice,
often leads in practice to injustices against individuals.

8. An eye for an eye. It will suffice to note that the system of


individual revenge is no longer recognized. The punishment
should not be given to any offender having this principle in the
mind. The court should adopt the retributive approach in these
cases.

9.2 : Why the Capital Punishment should be abolished

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Capital punishment is the punishment of death which is
generally awarded to those guilty of heinous crimes, particularly
murder and child rape. In Indian the traditional way of awarding
this punishment is handing by the neck till the death of the
criminal. In other countries, shooting, electric chair, etc,are the
various devices used for the purpose.

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 an eye for an eye, and tooth for a tooth. It is pointed
out that there can be no more place for it in a civilized country.
Moreover, judges are not infallible and there are instances
where innocent people have been sent to the gallows owing to
some error of judgment.

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. Murders
and other heinous crimes have continued unabated, inspite of it.
The result of such views has been that in recent years there has
been an increasing tendency in western countries to award life
imprisonment instead of capital punishment. Muslims countries,
generally speaking, continue to be more serve in this respect.

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Despite frequent demands from all society Indian 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 cases of hardened criminals and only when it is
established that the murder was not the result of a momentary
impulse, the result of serious provocation, but well-planned and
cold-blooded. 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 pests of society are eliminated. Those who
indulge in anti-social and sternest possible measures should be
taken against them, specially when they are habitual offenders.

It is, therefore, in the fitness of things that India has not so far
abolished capital punishment but used it more judiciously.
Sociologist are of the view that capital punishment serves no
useful purpose. A murderer deprives the family of the murdered
person of its bread-winner. By sending the criminals to gallows,
we in no way help or provide relief to the family of the
murdered. Rather, we deprive another family of its bread-
winner. The sociologists, therefore, suggest that the murderer
should be sentenced for life to work and support the family of
murdered person as well as his own. In this way, innocent
women and children would be saved from much suffering,
hunger and starvation. Moreover, such measures would provide
the criminals with an opportunity to reform himself. He would
be under strict watch and if his conduct is satisfactory, he may

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be allowed to return to society as a useful member of it.

There is much truth is such views, and they must be given due
weightage before a decision is taken to abolish or retain capital
punishment. But Capital punishment should be continue for
those who commit rare of the rarest crimes such as child rape,
group rape, terrorism and etc.

CHAPTER 10 : Conclusion

Death as a penalty has plagued human mind perennially. Death


sentence must fulfill the conditions for protection of human
rights in Criminal Justice Administration in India.

Execution of Dhananjay Chatterjee in 2004, after fourteen years


in death cell and thereafter in the year 2006 Md. Afzals instance
of capital punishment again gave new impetus to the debate
between abolitionists and retentionists concerning speedy
justice, fair trial, protection of human rights of the persons under
death sentence, their human dignity as well as the victimological
perspective to maintain law and order in society.
In the words of P.N. Bhagwati, J. in Bachan Singh v. state of
Punjab the judges have been awarding death penalty according
to their own scale of values and social philosophy and it is not
possible to discern any consistent approach to the problem in
the judicial decisions. Therefore, whether the sentence will be
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for death or for life imprisonment depends, in a large measure,
on the court or composition of bench of the court. We have seen
earlier about execution and commutation of death sentences
into life imprisonment, there are several judgments which show
that there are no fix principles to determine delay and other
factors in the similar cases. Even in Dhananjay Chatterjees case
there was fourteen years delay in execution of death sentence
but it was not commuted to life imprisonment although in some
earlier cases two years, two and half years, three years and nine
years delay in execution was treated as violation of human rights
and fair procedure and their sentences were commuted to life
imprisonment. Is this not a violation of articles 14 and 21 of
the Constitution which enshrine fundamental and sacrosanct
rights of human beings.

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