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Research Paper

A STUDY OF „DEATH PENALTY- IS EVER JUSTIFIED‟

KIRT.AGARWAL
4th Yr. student, Amity Law School Delhi (GGSIPU)

ABSTRACT

Death penalty is a debatable international topic and every country stands with different opinion in
this context. It has been banned in various countries where as, it is regarded as panacea to the
persistent threat to the society. United Nations prohibits death penalty in all of its forms declaring it
as barbarous and inhuman. India is party to UN conventions but it has always voted against the
question of global moratorium on the death penalty. India restricts itself to apply the provisions of
UN resolutions on death penalty. Indian legislation has several provisions that provide death penalty
for some serious type of offences. During the 1980s the Supreme Court sought to restrict the use of
the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare”
cases. This category is no where defined in the constitution or any other legislative provision. It‟s all
judicial creativity based on facts and circumstances of the case and subjected to judicial mindset and
judicial creativity. Here, we have examined various case laws and tried to find the reasonability
behind the category of rarest of rare. In a case, for a crime, a person is awarded death sentence and
for the same offence in another case, accused is given life imprisonment, proving the theory of rarest
of rare as vague. It is subjected to arbitrary practices which infuses corruption in system. Provisions
of mercy petition by President and governor proves to be inconsistent with the criteria of awarding
death penalty. India is a land of customs, beliefs and superstitious traditions. There exists a belief
that God resides in every human being and there are ample chances of transformation. But now we
are facing such situations where expiratory theory doesn‟t work. Retributive way of punishment is
the only way to cure brutal acts against humanity. There exists a persistent doubt, is death penalty
applicable in India? And the answer is YES.

Keywords:- Debatable, persistent, opinion, prohibits, provisions, characterizing, category, mindset,

transformation, applicable.

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A PUNISHING DEBATE trafficking offences. India retains capital

For centuries the death penalty, often punishment for a number of serious offences

accompanied by barbarous refinements, has under Indian Penal Code, 1860. Offences Such

been trying to hold crime in check, yet crime as punishment of criminal conspiracy, waging

persists. Because the instincts that are warring of war against the Government of India,

in man are not, as the law claims, constant abetment of mutiny, murder, abetment of

forces in a state of equilibrium. India suicide of child or insane person, kidnapping

retains capital punishment for a number of for ransom, dacoity with murder under IPC are

serious offences. The Indian government is punishable with death penalty. The Supreme

committed to the retention of the death Court in Mithu vs State of Punjab1 struck

penalty. In December 2007 India was among down Section 303 of the Indian Penal Code,

the minority of countries who voted at the which provided for mandatory death

United Nations General Assembly against a punishment for offenders serving life

moratorium on executions. India retains the sentence. Death sentences are carried out by

death penalty as punishment for a number of hanging. In 1983 the Supreme Court upheld

crimes including murder, kidnapping, the constitutionality of this method, stating

terrorism, desertion, inducement to suicide of that it: “involves no barbarity, torture or

a minor or a mentally-retarded person and has degradation.”

more recently in 2013 come to include the After observing an unofficial moratorium of 8

offence of rape in certain circumstances. It is years in India, the Indian Government in

mandatory for second convictions for drug

1
Mitu Singh vs. State of Punjab, A.I.R. 1983 S.C. 473

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November 2012 carried out the execution of Rights states that every human being has the

Ajmal Kasab, convicted in the Mumbai attacks inherent right to life. This right shall be

case, without public knowledge. This was protected by law. No one shall be arbitrarily

followed by the secret execution of Afzal Guru, deprived of his life. Anyone sentenced to

convicted in the Parliament attack case of death shall have the right to seek pardon or

2001, in February 2013, under similar commutation of the sentence. Amnesty,

circumstances, without intimating his pardon or commutation of the sentence of

immediate family or affording a chance of death may be granted in all cases. Sentence of

judicial review. In both cases, the executions death shall not be imposed for crimes

were carried out under covert operations committed by persons below eighteen years of

conducted by the Government immediately age and shall not be carried out on pregnant

upon rejection of their mercy petitions. Before women3. The Universal Declaration of Human

these executions, the last execution to be Rights, adopted by the United Nations General

carried out in India was that of Dhananjoy Assembly in December 1948, recognizes each

Chatterjee v. State of West Bengal2 in 2004 person’s right to life. It categorically states

who was convicted of rape and murder and that “No one shall be subjected to torture or

which sentence was carried out after he had to cruel, inhuman or degrading treatment or

spent 13 years in solitary confinement. punishment”4. In Amnesty International’s

Under International context, Article 6 of view, the death penalty violates these rights.

International Covenant on Civil and Political

3
Article 6, ICCPR, 1966
2 4
(1994) 2 SCC 220 Article 5, Universal Declaration of Human Rights, 1948

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The Second Optional Protocol to the reaffirming its previous call for a global

International Covenant on Civil and Political moratorium on capital punishment.7Once

Rights, aiming at the abolition of the death again on 21 December 2010, the 65th General

penalty, adopted by the UN General Assembly Assembly adopted a third resolution

in 1989, is of worldwide scope5. It provides for (A/RES/65/206) with 109 countries voting in

the total abolition of the death penalty but favour, 41 against and 35 abstentions8.

allows states parties to retain the death India is party to ICCPR but it has always voted

penalty in time of war if they make a against the question of global moratorium on

reservation to that effect at the time of the death penalty. India restricts itself to apply

ratifying or acceding to the Protocol. Any state the provisions of UN resolutions on death

which is a party to the International Covenant penalty. Judiciary declares the case as “Rarest

on Civil and Political Rights can become a party of Rare” and award death penalty according to

to the Protocol. On 18 December 2007, facts and circumstances of the case.

the United Nations General Assembly voted Let’s examine flaws in Indian legislation

104 to 54 in favour of resolution regarding provisions of death penalty. Here,

A/RES/62/149, which proclaims a global Rarest of rare has not been defined in any

moratorium on the death penalty6. On 18 statute or law provisions. It is a part of judicial

December 2008, the General Assembly

adopted another resolution (A/RES/63/168)

6
UN General Assembly, Resolution 62/149
Date: December 18, 2007
Meeting No. 76 , Code : A/RES/62/149
7
UN General Assembly, Resolution 63/168
Date: December 18, 2008
5
Second Optional Protocol on ICCPR, 1989 Meeting No. 70 , Code : A/RES/63/168

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interpretation. In every case where death
penalty is to be given as per the provisions
established by law, it is the liability of that
judge handling the matter either to confirm
the death penalty or convert it into life
imprisonment. Therefore, whether the case
will fit in the category of rarest of rare or not
will be decided by judge himself as per his own
mindset. On 3 February 2013, in response to
public outcry over a brutal gang rape in Delhi9,
the Indian Government passed an ordinance
which applied the death penalty in cases of
rape that leads to death or leaves the victim in
a "persistent vegetative state". Death penalty
can also be granted to repeat offenders in
rape under Criminal Law (Amendment) Act,
2013. There may be any instance that death
penalty might not be granted to these accused
people but this could not occur because of
8
UN General Assembly, Resolution 65/206
Date: December 21, 2010
Meeting No. 71 , Code : A/RES/65/206
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Vol- 1 , Issue- 1 ,JAN -2015
excessive public and media pressure. It can be
presumed that outside media trials influence
the decision of judiciary and an early mind set
was made to award death penalty to these
accused people. There are no definite laws
and discretion revolves upon judicial
interpretation only. As we have seen in above
mentioned point, it is pure work of judicial
interpretation where penalty is decided by
mind set of the judge. Hence, if judge follows
retributive theory of punishment, the accused
will be hanged to death or if judge follows
reformation theory, he may grant life
imprisonment to the accused10. As the laws
regarding death penalty are weak and fragile,
criminals can easily manipulate the facts and
circumstances of the case and can escape
9
Delhi Gang Rape Case, Ram Singh v. N.C.T. of Delhi
10
Criminal law, Atul Dua and Rahul Goel available at
http://articles.manupatra.com/PopOpenArticle.aspx?ID
=e9377ec4-2a41-4c81-8ea5
(last accessed on 18. 4. 2014)
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death penalty. It’s all about “Rich man Show” 2001, in February 2013, under similar

here. circumstances, without intimating his

In Jessica Lal Murder Case11, all the and immediate family or affording a chance of

circumstances of the case represents that judicial review. In both cases, the executions

Manu Sharma have shot Jesicca Lal on her were carried out under covert operations

head and merely 200 eye witness were conducted by the Government immediately

present there. But no one turned in the court upon rejection of their mercy petitions. This

as a witness because his father enjoys a strong makes us doubtful regarding following of

portfolio at central government level. The death penalty procedures here. If there is a

crime was of such a nature that it must be criteria to consider the man innocent until

punishable with death penalty but judge proved guilty beyond a reasonable time, then

granted life imprisonment to th accused, is why such hurry was made in execution of such

regarded as misuse of law and proves the criminals whose case were not decided since

theory that powerful rules the world. past eight years12. It questioned on the

The Indian Government in November 2012 principle and procedure of giving death

carried out the execution of Ajmal Kasab, penalty. May be Congress had done that to

convicted in the Mumbai attacks case, without strengthen their vote bank and represent

public knowledge (Operation X). This was themselves as law abiding government.

followed by the secret execution of Afzal Guru,

convicted in the Parliament attack case of

12

http://www.justice.gov/atr/public/speeches/1118.htm
11
2002 CrLJ 341 (last accessed on 18.4.2013)

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Under Article 7213 of the Indian Constitution, death sentences can be given by a majority

President has been given power to grant rather than a unanimous bench and many

pardons, etc and to suspend, remit or convictions for death sentences are based

commute death sentences in certain cases. A entirely on circumstantial evidence. This

similar power has been granted Governor of coupled with a faulty criminal law

States under Article 161 of the constitution14. enforcement system and admittedly high

Following this, several mercy petitions of corruption levels in the police force

death row convicts have come to be rejected. investigating the crime, increases the chances

The fear of execution of such convicts is of false convictions. In such a scenario, the

imminent. Bolstered by the Government's correctness of conviction resulting in the

unapologetic conduct and public outcry, ultimate sentence of capital punishment relies

especially in recent cases of rape and murder on a system of trial and error15. Also, the

reported in the country, the courts are handing over of the death penalty is

continuing to hand down death sentences at dependent on various variable factors such as

an alarming rate. There is very little existing biases amongst law enforcers, social

information on the number of people biases, media reports and public outcry, social

sentenced to death in India. Inherently there and financial status of the accused, quality of

are serious flaws in capital sentencing. In legal representation and last but not the least,

certain situations, DNA evidence is not used, the bent of mind of the judges. During the

13 15
Dr. DD Basu, Introduction to Constitution of India, http://www.hindu.com/index.php/articles/general-
Part II, page 175-200 articles/48-ipr-under-criminl-act-2002.html (last
14
Ibid accessed on 15.4.2013)

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1980s the Supreme Court sought to restrict sentence to life imprisonment. Devender Pal

the use of the death penalty by characterizing Singh Bhullar had approached the Supreme

it as a punishment reserved only for the Court in 2011 after the President rejected his

“rarest of the rare” cases16. Over the past mercy petition after 8 years. The said

two decades the death penalty has been judgment may have a far reaching effect on

extended to include more crimes and been similar cases where mercy petitions have

handed down with increasing frequency. remained pending with the President for

Paradoxically, whilst the “rarest of the rare” inordinate periods of time.

doctrine has been used to limit and restrict the In Santosh Kumar v. CBI18, Priyadarshini

use of the mandatory death penalty elsewhere Mattoo was a 25-year-old law student who

in the world, it has often had the opposite was found raped and murdered at her house

effect in India. It has enabled judges to justify in New Delhi on January 23, 1996. On October

imposing sentences of death in an arbitrary 17, 2006, the Delhi High Court found Santosh

manner, reinforcing the deeply flawed Kumar Singh guilty on both counts of rape and

character of capital punishment in India today. murder and on October 30 of the same

Recently in April 2013, in a petition filed by year sentenced him to death. On October 6,

Devender Pal Singh Bhullar17 in the Supreme 2010, the Supreme Court of India commuted

Court, delay in deciding his clemency plea was the death sentence to life imprisonment.

ruled out as a ground to commute his death Santosh Kumar Singh, the son of a Police

Inspector-General, had earlier been acquitted

16
Machhi Singh v. State of Punjab 1983 SCC (3) 470
17
Devendra Pal Singh Bhullar v. State of N.C.T of delhi,
18
WP(Cr.)No. 146 of 2011 (2010) 9 SCC 747

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by a trial court in 1999, and the High Court Dr. APJ Abdul Kalam. The family refused to

decision was widely perceived in India as a either attend the execution or claim his body;

landmark reversal and a measure of the force it was later cremated. The date of Chatterjee's

of media pressure in a democratic setup. This execution was fixed at a high-level meeting at

decision went in favor because the facts were the office of Jail Minister Biswanath

not presented correctly in the lower court. Choudhury. This was the first hanging at

In Dhananjoy Chatterjee v. State of West Alipore since 1993

Bengal19, Dhananjoy Chatterjee was born in In Sidharath Vashisth @ Manu Sharma v.

a Bengali Hindu family and worked as a State20, Jessica Lal (1965–1999) was a model

security guard, and was in New Delhi, who was working as a celebrity

executed by hanging for the murder (following barmaid at a crowded socialite party when she

a rape) of the 14-year-old female juvenile was shot dead at around 2 am on 30 April

Hetal Parekh on March 5, 1990 at her 1999. Dozens of witnesses pointed to

apartment residence in Bhowanipur. Siddharth Vashisht, also known as Manu

Chatterjee, whose mercy plea was rejected on Sharma, the son of Venod Sharma, a wealthy

August 4, was kept at Alipore for nearly 14 and influential Congress-nominated Member

years. The execution was scheduled on June of Parliament from Haryana, as the murderer.

25, but it was stayed after his family In the ensuing trial, Manu Sharma and a

petitioned the Supreme Court of India, and number of others were acquitted on 21

filed a mercy plea with the then President February 2006. Following intense media and

19 20
(1994) 2 SCC 220 2002 CrLJ 341

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public pressure, the prosecution appealed and punishment. On the other hand we are of the

the Delhi High Court conducted proceedings view that hardened criminals cannot be

on a fast track with daily hearings conducted reformed. They are brutal and heinous and

over 25 days. The trial court judgment was pose a serious threat to the society21. So we

overturned, and Manu Sharma was found eliminate such criminals through death

guilty of having murdered Lal. He was penalty by following Retributive Theory of

sentenced to life imprisonment on 20 Punishment. Justice requires punishing the

December 2006. guilty even if only some can be punished and

From the above mentioned cases we can sparing the innocent, even if all are not

easily infer that there are no fixed criteria for spared. Morally, justice must always be

awarding the sentence of death penalty. It is preferred to equality. Justice cannot ever

only determined by judicial framework and permit sparing some guilty person, or

subjected to excessive corrupt practices. India punishing some innocent ones, for the sake of

is not in a favour to completely reject death equality just because others have been spared

penalty because we belong to the land of or punished. In practice, penalties could never

customs and traditions and have faith that be applied if we insisted that they can be

“God resides in every human being”. The inflicted on only a guilty person unless we are

crime has been committed due to able to make sure that they are equally

circumstantial wrongs and criminal can be applied to all other guilty persons.

reformed if treated under special conditions.

Hence, we follow reformative theory of 21

Analysis of Criminal Law in India , Debashree Dutta,
available at

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In this modern and advanced scenario we the safeguard of such procedure and to

cannot walk along with age old laws. Laws are protect the provision from the misuse by

required to be updated with time in order to powerful players. Retributive theory of

make harmonious progressions in the society. punishment is the only way out for

India must clear its stand on death penalty and harmonious existence. Most people have a

must define set rules and guidelines for natural fear of death. It’s a trait man have to

implementation of it. Depending solemnly on think about what will happen before we act. If

the mindset of judges and the category of we don’t think about it consciously, we will

Rarest of rare is most vague and ambiguous think about it unconsciously. If every murderer

procedure for awarding death sentence. We who killed someone died instantly, the

just cannot grant life imprisonment or death homicide rate would be very low because no

penalty because a judge thinks so. “Morality one likes to die. We cannot do this, but if the

must be kept aside from the ambit of law” – Justice system can make it more swift and

Salmond, and I feel the same. India should severe, we could change the laws to make

have provision of death penalty for heinous capital punishment faster and make appeals a

crimes and hardened criminals are needed to shorter process. The death penalty is

be eliminated from society for peaceful living important because it could save the lives of

in every society. Either legislature or judiciary thousands of potential victims who are at

must set some instructions or guidelines for stake. If people say that the State is like a

murderer himself. The argument here is, if

http://www.legalserviceindia.com/articles/neew.htm
(last accessed on 18.4.2014) execution is murder, than killing someone in

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war is murder. Our country should stop the burden of man and prevents him to carry

fighting wars. On the contrary, it is necessary forward the load in next life. If we do not

to protect the rights of a group of know whether the death penalty will deter

people. Hence, the death penalty is vital to others, we will be confronted with two

protect a person’s right to live. Arresting uncertainties. If we have the death penalty

someone is not same as kidnapping and achieve no deterrent effect, than, the life

someone. In the same, executing someone is of convicted murderers has been expended in

not murder, it is punishment by society for a vain. If we have the death sentence, and deter

deserving criminal. future murderers, we spared the lives of

future victims. In this case, the death penalty

CONCLUSION:
is a gain, unless the convicted murderer is
The Bible quotes the Lord declaring
valued more highly than that of the unknown
“Vengeance is mine” (Romans 12:19). He thus
victim. Capital Punishment is not excessive,
legitimized vengeance and reserved it to
unnecessary punishment, for those who
Himself. However, the Bible also enjoins, “The
knowingly and intentionally commits murder
murderer shall surely be put to death”
in premeditation, to take lives of others. Even
(Numbers 35:16-18), recognizing that the
though capital punishment is not used so
death penalty can be warranted whatever the
often, it still is a threat to the criminal. Some
motive. In India, Expiratory theory will work as
people argue that the capital punishment
superstitious belief about death still persists in
tends to brutalize and disregards society.
Indian society. Giving death sentence reduces
Others say that penalty is legalized for murder

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because it is like “an eye for an eye”. The punishment. As a matter of fact, most people

difference between punishment and the crime in India today are in favour of it. Death penalty

is that one is legalized and the other is not. can help to curtail future murderers and

People are more brutalized by what they see rapists and we can save more lives. Hence,

on television and newspaper daily. People are death penalty is justified in India as per

not brutalized by punishments they are current scenario.

brutalized by our failure to seriously punish

BIBILIOGRAPHY
the brutal acts.
BARE ACTS:
Same effect could not be achieved by putting

the criminal in prison for life. But even if it o Code of Criminal Procedure,1973

were real life imprisonment, its deterrent o Indian Penal Code,1860

effect will never be as great as that of the o The Constitution of India,1950

death penalty. The death penalty is the only o The General Clauses Act,1897

actually irrevocable penalty. My research

BOOKS:
on issues on the death penalty is one of the
o Indian Penal Code, Ratanlal &
most debatable in the criminal justice
Dheerajlal, Allahabad Law Publication,
system. Today, there are many pros and cons
16th Edition
to this death penalty issues. However, if
o Introduction to Constitution of India,
people weigh the arguments properly, and
D.D.Basu, Lexis Publications
have empathy for the victims, they will be
o R.V.Kelkar Lecture series on Criminal
more inclined to favour capital
Law, 2014 Reprint Edition
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o Justice and Reality by Ram Krishna Iyer,

2012

o Criminal Law, S.N.Mishra, 2013

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