DEATH SENTENCE: PROCEDURE AND HUMAN RIGHT PERSPECTIVE

DEATH SENTENCE: PROCEDURE AND HUMAN RIGHT

PERSPECTIVE

PROJECT SUBMITTED TO:-

(FACULTY FOR CRIMINAL LAW.)

PROJECT SUBMITTED BY:-

ANAND ABHISHEK

ROLL No. 12

2ND YEAR, 4th SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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TABLE OF CONTENTS:-

Research Methodology………………………………………….……….iii

References………………………………………………………………….iv

I. INTRODUCTION…………………………………………………v
II. SENTENCE OF DEATH: LEGISLATIVE AND JUDICIAL
POLICY………………………………………..…………….……vi

III. PROCEDURE FOR IMPOSITION OF DEATH

SENTENCE……………………….……………………………….xi

IV. EXECUTION OF DEATH SENTENCE………………………...xiii

V. CONSTITUTIONAL VALIDITY……………………..…………xiv

VI. CONCLUSION…………………………………………...………xvi

World Wide resolutions and Views - An Anachronism……………….……….….xviii

BIBLIOGRAPHY……………………………………………………………..………….xix

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RESEARCH METHODOLOGY:-

The researcher has adopted a purely Doctrinal method of research as the research
paper discusses the matter in which no field work is required for the same and the
Doctrinal approach is perfectly suited for the same. The researcher has made
extensive use of several libraries, namely, the library at the Chanakya National
Law University, Indian Law Institute, New Delhi, the Indian Society of
International Law library, and also the Internet sources.

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REFERENCES:-

STATUTES-

1. Indian Penal Code.

2. Criminal Procedure Code.

3. Indian Evidence Act.

LIST OF CASES-

1. Krishna Mochi v. State of Bihar AIR 2002 SC 1965.

2. Bacchan Singh v. State of Punjab AIR 1980 SC 898;

3. Macchi Singh v. State of Punjab AIR 1983 SC 957;

4. Shashi Nayar v. Union of India AIR 1992 SC 395.

5. Allauddin Mian v. State of Bihar AIR 1989 SC 1456.

6. Mithu v. State of Punjab, (1983) 2 SCC 277.

7. Jagmohan Singh v. State of Uttar Pradesh(1973) 2 SCR 541

8. Anshad v. State of Karnataka (1994) 4 SCC 381

9. Gyasuddin Khan v. State of Bihar AIR 2004 SC 210.

10. Deena v. Union of India AIR 1983 SC 1155.

11. Jashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 SCC 353;

12. Rajendra Prasad v. State of Uttar Pradesh AIR 1979 SC 916

13. Lichhamadevi v. State of Rajasthan AIR 1988 SC 1785.

14. Lehna v. State of Haryana (2002) 3 SCC 76.

15. Bhupendra Singh v. State of Punjab AIR 1968 SC 1438

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I. THE DEATH PENALTY: INTERNATIONAL AND HUMAN RIGHTS

PERSPECTIVES ON THE FUTURE OF CAPITAL PUNISHNENT

Introduction: The Death Penalty- Ongoing Concerns

Despites continuing International efforts for initiating and implementing policies
aiming at complete abolition or at least at extended moratoriums the death penalty
is still imposed and enforced in various world regions. Today, Europe represents
(besides South America) the only world region where the death penalty has been
eliminated completely.1 With political and economic transition having been
accompanied during the nineties by the process of abolition of the death penalty in
Central and Eastern Europe, Europe at large has become a death penalty-free
zone.
From a European perspective, it is essentially two major world regions where the
death penalty still plays a significant role. In particular, Asia, and here China as
well as United States of America, seem firmly committed to retaining the death
penalty as a response to serious crime. However, Asia at large as well as the
African continent to be places where the death penalty not only is available in
criminal law statutes but is also imposed and enforced.2 Some 84 countries-
according to the latest Amnesty International survey- retained and enforced the
death penalty at the end of 2001. Although this seems now a minority, we have to
consider the size of the populations living under retentionist criminal law regimes.
Approximately 70% of the world population still lives under the rule of death
penalty.

1
See Harris, D: “The Abolition of Death Penalty in European Union States”, in Nowak, M., Xin,
C. (Eds.): EU- China Human Rights Dialogue, Proceeding of the Second EU-China Legal Experts
Seminar held in Beijing on 19 and 20 October 1998. Wien 2000, pp. 81-87.
2
See for an overview Report of the Secretary- General: Crime Prevention and Criminal justice.
Capital Punishment and Implementation of the Safeguards guaranteeing Protection of the Rights of
those Facing the Death Penalty. E/2000/3; 31 March, 2000 presenting the 6th quinquennial report
on the Death Penalty for the period 1994– 1998.

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Most execution are reported from a minority of the retainist countries, that is
China, Saudi Arabia, Iran and the US. According to Amnesty International
estimates almost 90% of all known executions took place in these four countries.3

II. SENTENCE OF DEATH: LEGISLATIVE AND JUDICIAL POLICY

Death sentence of Dhananjay Chaterjee was executed on 14th August 2004, and
he was hanged till death, after affirmation by the Supreme Court and rejection of
his mercy Petition by the Hon'ble president. The case against him was that he hit a
girl aged 14 years, brutally on head, and while the girl was dying, she was raped
by the accused. Result: ultimately the girl died. The session's court considered it
as the rarest of rare case. High Court affirmed the death sentence and the appeal
against the High Courts order was dismissed by the S.C.

While the majority of people in this country welcomed the execution, there were a
few organizations & people who straight away outlaw capital punishment for any
kind of offence and therefore, they opposed Dhananjay's death sentence as well.
All this opposition led to a big drama before the sentence was executed and a
desperate attempt was made to keep the issue of death sentence alive.

We as the member of this legal fraternity have seen this question being tossed up a
number of times and every time it has been settled down by the honorable Courts.
None of us would like to go into the debate of " whether capital punishment
should be abolished or not" again. However, at this point of time when the issue is
still raging, it will be appropriate to remind ourselves as to how the legislatures
and the apex Court have dealt with this issue every time it has come up before
them . Another issue is regarding the extent of judicial discretion.

Life imprisonment is the rule and death sentence is an exception and must be
imposed only when life imprisonment appears to be an altogether inadequate
punishment having regard to the relevant circumstances of the case.4 The

3
Web.amnesty.org/ 80256A2900558068/0/BF41EB80F9D5DEE780256A48005A9B90.
4
Macchi Singh v. State of Punjab AIR 1983 SC 957; Krishna Mochi v. State of Bihar AIR 2002
SC 1965.

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provision for death penalty is constitutional and does not offend the provisions of
the constitution of India,5 and this does not need re-consideration.6

The Indian Penal Code, 1860 (IPC), a major substantive criminal law in India,
provides for sentence of death and imprisonment for life as alternative punishment
for: waging war against the government of India, attempting or abetting thereof; 7
abetting mutiny by a member of armed forces;8 fabricating false evidence leading
to conviction of an innocent person and his execution; 9 committing murder;10
abetting suicide of a child, insane or intoxicated person; 11 attempting murder by a
person under sentence of imprisonment for life if hurt is caused; 12 and committing
dacoity with murder.13 Premised on vicarious liability, the IPC also provides for
death sentence for the acts done in furtherance of common intention; 14 or common
object;15 abetment;16 criminal conspiracy;17 and dacoity with murder (if anyone of
the five persons commits murder while committing dacoity).18

It is important to note that there is not a single offence in the IPC which is
punishable with mandatory death penalty19 and in the above mentioned categories
of offences the death sentence only sets the upper limit of punitive strategies. The
judges, in offence punishable with life imprisonment and alternatively with
sentence of death, therefore, have to make a critical choice between the two
permissible punitive alternatives, viz. death sentence and imprisonment for life.
The statutory provisions do not provide any guidelines as to when judges should
impose capital punishment in preference to imprisonment for life, or award lesser
sentence of life imprisonment.
5
Ie offend the Constitution of India arts 14, 19 and 21: see Bacchan Singh v. State of Punjab AIR
1980 SC 898; Shashi Nayar v. Union of India AIR 1992 SC 395.
6
Allauddin Mian v. State of Bihar AIR 1989 SC 1456.
7
See s. 121 IPC.
8
S. 132.
9
S. 194, second para.
10
S. 302.
11
S. 305.
12
S. 307.
13
S. 396.
14
S. 34.
15
S. 149.
16
Ss 109-115.
17
S. 120-B.
18
S. 396.
19
Supreme Court declared S. 303 of the IPC, providing for mandatory death sentence for murder
by a life convict, unconstitutional for not being in tune with Arts. 14 and 21 of the constitution.
See, Mithu v. State of Punjab, (1983) 2 SCC 277.

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The Supreme Court of India in Jagmohan Singh v. State of Uttar Pradesh,20 was,
inter alia, invited to dwell upon the constitutional validity of such a wide
unguided and uncontrolled judicial discretion to make a choice between ‘death’
and ‘life’ of the convict. It was forcefully argued before the five-member Bench
that such discretion results in discrimination and involves arbitrariness vitiating
article 14 of the constitution. The Court rejected the argument and justified such a
wide judicial owing to impossibility of laying down sentencing norms as facts and
circumstances of no two cases are alike and wrong discretion in matter of
sentence, if any, is liable to be corrected by superior courts.

Death sentence may be awarded in rarest of rare cases 21 when the collective
conscience of the community 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 the desirability or otherwise of retaining death penalty. 22 When a man
becomes a beast and menace to the society, he can be deprived of his life
according to the procedure established by law, as the Constitution itself has
recognized the death sentence as a permissible punishment for which sufficient
constitutional provisions for an appeal, reprieve and the like have been provided
under the law.23
The following circumstances may be considered as the rarest of rare cases where
the death penalty may be imposed, for instance when:
(1) the murder is committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arose the intense and extreme
indignation of the community;
(2) the murder is committed for a motive which evinces total depravity and
meanness;
(3) the murder of a member of scheduled caste or minority community and the
like is committed not for personal reasons but in circumstances which
arose social wrath;
(4) the crime is enormous in proportion;

20
(1973) 2 SCR 541.
21
Bacchan Singh v. State of Punjab AIR 1980 SC 898.
22
Krishna Mochi v. State of Bihar AIR 2002 SC 1965.
23
Ibid (See para 22).

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(5) the victim of murder is:

(a) an innocent child who might 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) a person vis-à-vis whom the murderer is in a position of
domination or trust;
(d) 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.24

These enumerated aggravating circumstances are not exhaustive but are only
broad guidelines and every sentence must be decided on the facts and
circumstances of each case.25 Before opting for death penalty, the circumstances
of the offender also require to be taken into consideration along with the
circumstances of the crime. A balance sheet of aggravating and mitigating
circumstances has to be drawn up in full. In doing soothe mitigating
circumstances have to be accorded full weightage and a just balance has to be
struck between the aggravating and the mitigating circumstances before the option
of sentence is exercised.26 The mandate of the provision of the Constitution of
India27 demands that a death sentence must not be executed in a cruel, barbarous
or degrading manner.28 A provision which provides for a mandatory sentence of
death is unconstitutional.29

Special Reasons For Awarding death Sentence to be Stated

Where the conviction is for 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

24
Machhi Singh v. state of Punjab AIR 1983 SC 957; Anshad v. State of Karnataka (1994) 4 SCC
381; Krishna Mochi v. State of Bihar AIR 2002 SC 1965.
25
Gyasuddin Khan v. State of Bihar AIR 2004 SC 210.
26
Machhi Singh v. State of Punjab AIR 1983 SC 957.
27
Ie of the Constitution of India art. 21.
28
Deena v. Union of India AIR 1983 SC 1155.
29
Mithu v. State of Punjab AIR 1983 SC 473.

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special reasons for such sentence.30 Special reasons mean special facts and
circumstances obtained in the case justifying the extreme penalty. 31 The
personality of the offender as revealed by his age, character, antecedents and other
circumstances and the tractability of the offender to reform must necessarily play
the most prominent role in determining the sentence to be awarded. 32 The choice
of death sentence has to be made only in the rarest of the rare cases.

Supreme Court in search of Guiding Principles: Factors to be considered for

Choice between Death Sentence and Life Imprisonment
The preceding account unequivocally reveals that death sentence can be inflicted
only in the rarest of rare cases when the ‘alternative option is unquestionably
foreclosed’ and for ‘special reasons’ to be recorded.
However, a survey of reported cases and studies thereof, though scanty, reveal
inconsistent and incoherent judicial behavior in opting for either of the alternative
punishments, i.e., death sentence or life imprisonment, and commutation of death
sentence. Such an inconsistent judicial behavior could be traced either to the
composition of the Benches33 or judicial reaction to the perceived facts and
circumstances of the cases. A study on ‘trends in sentencing and judicial
pronouncement’,34 for example, demonstrates that courts in a number of cases
have justified imposition of death sentence when the murder, according to the
respective judges’ assessment of the facts and their aversion to the nature and/or
modus operandi of the crime was ‘brutal’, cold-blooded’, ‘deliberate’,
‘unprovoked’, ‘fatal’, ‘gruesome’, ‘wicked’, ‘callous’, ‘heinous’, or ‘violent’, etc.
Young age of the offender; delay in final sentence; or delay in execution of capital
sentence; have also been generally accepted as mitigating factors warranting
commuting the death sentence to life imprisonment. Courts in India, time and
again, have been resorting to the above-mentioned or identical phrases as ‘special
reasons’ to justify imposition of death sentence in preference to life imprisonment
30
Code of Criminal Procedure 1973 s 354(3). See Jashubha Bharatsinh Gohil v. State of Gujarat
(1994) 4 SCC 353; Rajendra Prasad v. State of Uttar Pradesh AIR 1979 SC 916 (special reason
necessary for the award of death sentence in the light of Fundamental Rights).
31
Lichhamadevi v. State of Rajasthan AIR 1988 SC 1785.
32
Lehna v. State of Haryana (2002) 3 SCC 76.
33
See, Blackshield A.R.: “Capital Punishment in India”,
2I JILI 137 (1978).
34
Raizada:, “Trends in Sentencing: A Study of the Important Penal Statutes and Judicial
Pronouncements f the High Courts and the Supreme Court”, (unpublished Ph.D. thesis). See also
Bachan Singh, supra n.32.

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and/or its commutation to life imprisonment. But the ‘special reasons’ justifying
capital punishment, owing to the absence of any legislative and judicial guiding
principles, are bound to vary from judges to judges depending upon his ‘attitude
and approaches; predilections and prejudices; habits of mind and thought, and his
social value system.’35

III. PROCEDURE FOR IMPOSITION OF DEATH SENTENCE

Submission of Death Sentences to high Courts for Confirmation
When a court of session passes the sentence of death, the proceedings shall be
submitted to the High Court, and the sentence shall not be executed unless it is
confirmed by the High Court.36 Where the appeal is by an accused who is
sentenced to death, so that the High Court dealing with the appeal has before it,
simultaneously with appeal, a reference for confirmation of sentence of the capital
sentence under the provision of the Code of Criminal Procedure 1973 relating to
appeals from convictions on a reference for confirmation of the sentence of death,
the High Court is required to proceed in accordance with the provisions of the
Code of Criminal Procedure 1973.37 These provisions make it clear that the duty
of the High Court in dealing with the reference is not only to see whether the order
passed by the session judge is correct, but to examine the case for itself and even
direct a further inquiry or the taking of additional evidence if the court considers it
desirable in order to ascertain the guilt or the innocence of the convicted person.38
In a murder trial, where the accused stands the risk of being subjected to the
highest penalty prescribed by the Indian Penal Code 1860, the judicial approach in
dealing with such cases has to be cautious, circumspect and careful. In dealing
with such an appeals or reference proceedings where the question of confirming a
death sentence is involved, the High Court has to deal with the matter carefully

35
See Bachan Singh, ibid.
36
Code of Criminal Procedure 1973 s 366(1).
37
Ie in accordance with the Code of Criminal Procedure 1973 ss 375 and 376.
38
Bhupendra Singh v. State of Punjab AIR 1968 SC 1438 (under the Code of Criminal Procedure
1973 s 376 proviso, no order of confirmation is to be made until the period allowed for preferring
the appeal has expired, or, if an appeal is presented within such period, until such appeal is
disposed of so that, if an appeal is filed by a condemned prisoner, it has to be disposed of before
any order is made in the reference confirming the sentence of death. In disposing of such an
appeal, however, it is necessary that the high court must keep in view its duty under the Code of
Criminal Procedure 1973 s 375 and consequently, the court must examine the appeal record for
itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or
not, and then come to its own conclusion on the entire material on record whether conviction of the
condemned prisoner is justified and the sentence of death must be confirmed).

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and to examine all relevant and material circumstances before upholding the
conviction and confirming the sentence of death.

Power of high Courts to enquire further or take additional evidence

Where proceedings for the confirmation of the death sentence are submitted to the
high court, and the court thinks that a further inquiry should be made into, or
additional evidence taken upon, any point bearing upon the guilt or innocence of
the convicted person, it may make such inquiry or take such evidence itself, or
direct it to be made or taken by the court of session.39 Unless the high Court
otherwise directs, the presence of the convicted person may be dispensed with
when such enquiry is made or such evidence is taken. 40 Where the enquiry or
evidence, if any, is not made or taken by the High Court, the result of such inquiry
or evidence shall be certified to such court.41

Power of High Courts to confirm sentence or annul conviction

In any case submitted under the provision of the Code of Criminal Procedure
197342 to a high court for the purpose of confirmation of a death sentence passed
by the Court of Session, the high court may (1) confirm the sentence, or pass any
other sentence warranted by law;43 or (2) annul the conviction, and convict the
accused of any offence of which the court of session might have convicted him, or
order a new trial on the same or an amended charge; 44 or (3) acquit the accused
person.45 However, no order of confirmation shall be made under the above stated
provision until the period allowed for preferring an appeal has expired, or, if an
appeal is presented within such period, until such appeal is disposed of.46

Confirmation or new Sentence to be signed by two Judges

39
Code of Criminal Procedure 1973 s 367 (1).
40
Code of Criminal Procedure 1973 s 367 (2).
41
Code of Criminal Procedure 1973 s 367 (3).
42
Ie under the Code of Criminal Procedure 1973 s 366.
43
Code of Criminal Procedure 1973 s 368(a).
44
Code of Criminal Procedure 1973 s 368(b).
45
Code of Criminal Procedure 1973 s 368(c).
46
Code of Criminal Procedure 1973 s 368 proviso.

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In every case submitted by a court of session for confirmation of death sentence to

a high court, the confirmation of the sentence, or any new sentence or order
passed by the high court, shall, when such court consists of two or more judges, be
made passed and signed by at least two of them.47 Where in any particular, there is
only one judicial commissioner the ultimate judicial authority, and if the
confirmation of the sentence of death has to be made by him, the procedure laid
down must be followed.

Procedure in case of Difference of Opinion

Where any case submitted by a court of session for confirmation of death sentence
to a high court is heard before a bench of judges and such judges are equally
divided in opinion, the case shall be decided in the manner provided by the
provision of the Code of Criminal Procedure 1973. 48 However, where one of the
judges constituting the bench, or, where the appeal is laid before another judge
under the above stated provision, that judge, so requires, the appeal shall be
reheard and decided by a larger bench of judges.49

IV. EXECUTION OF DEATH SENTENCE

Execution of Orders passed by High Courts
Where in a case submitted to a high court for the confirmation of death sentence,
the Court of Session receives the order of confirmation or other orders of the high
court thereon, it shall cause such orders to be carried into effect by issuing a
warrant or taking such other steps as may be necessary.50

Execution of Death Sentences passed by high courts in appeal or revision

47
Code of Criminal Procedure 1973 s 369.
48
Ie by the Code of Criminal Procedure 1973 s 392: When an appeal under this Chapter is heard
by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their
opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he
thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion- provided
that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge
under this section, that Judge, so requires, the appeal shall be reheard and decided by a larger
Bench of Judges; see the Code Of Criminal Procedure 1973 s 370.
49
Code of Criminal Procedure 1973 s 392 proviso.
50
Code of Criminal Procedure 1973 s 413.

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Where a sentence of death is passed by the high court in appeal or revision, the
court of session shall, upon receiving the order of the high court, cause the
sentence to be carried into effect by issuing a warrant.51
Where a person is sentenced to death by a high court and an appeal from its
judgment lies to the Supreme Court under the provision of the Constitution of
India,52 the high court shall order the execution of the sentence to be postponed
until the period allowed for preferring such appeal has expired, or if an appeal is
preferred within that period, until such appeal is disposed of.53

Postponement of Capital Sentence on Pregnant Woman

Where a woman sentenced to death is found to be pregnant, the high court shall
order the execution of the sentence to be postponed, and may, if it thinks fit,
commute the sentence to imprisonment for life.54

Execution of death sentence

When an person is sentenced to death, the sentence shall direct that he be hanged
by the neck till he is dead. A session judge must not sentence an accused to
receive the ‘supreme penalty’ or merely sentence a person to be hanging but direct
that the accused be hanged by neck till he be dead. It is the duty of the session
judge to clearly state the mode in which the sentence is to be executed as
described in the Code of Criminal Procedure 1973 and it is not for the high court
to do so in confirmation proceedings. The system of hanging is consistent with the
obligation of the state to ensure that the process of execution is conducted with
decency and decorum without involving degradation or brutality of any kind and
is, therefore, not violative of the provision of the Constitution of India.

V. CONSTITUTIONAL VALIDITY
The question of constitutional validity of Sec. 302, I.P.C. was discussed in detail
by the SC in Jagmohan V/s State of U.P . Apart from the constitutional validity,
the SC also discussed position in other countries, the structure of Indian Criminal

51
Code of Criminal Procedure 1973 s 414.
52
Ie under the Constitution of India art 134(1)(a) or (b).
53
Code of Criminal Procedure 1973 s 415(1).
54
Code of Criminal Procedure 1973 s 416.

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law, various policies and bills proposed in the parliament , the extent of Judicial
discretion etc. On the question of constitutional validity the Court observed:-

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

On all these grounds the SC rejected the argument that under Sec. 302, I.P.C., life
of convict is taken without any procedure established by law & therefore, it
violates Art. 21 of the constitution. Thus, the SC settled this controversy long back
in 1973. However even after Jagmohan's case this question came up again and
again.

The next important case, and which can be termed as a milestone in the Indian
Criminal Jurisprudence is the case of Bachan Singh V/s State of Punjab . So
strong were the principles laid down by the apex went in this case that the
principles are being followed even now despite the fact that SC itself has
expressed the need to review criminal jurisprudence from time to time.
Firstly we must understand why Jagomhan's Case was reviewed. After Cr. P.C.
1973 , death sentence ceased to be the normal penalty for murder [ 354 (3)].
Another reason was that Maneka Gandhi's case gave a new interpretation to Art.
14,19 and 21 and their interrelationship . Main issues before the SC were
constitutional validity of Sec. 302 of the I.P.C. as well as constitutional validity of
Sec. 354 (3) of Cr.P.C. .While answering the question of reasonableness of death
penalty, the constitution bench also discussed various other issues. These issues
were :-

 Whether death sentence saves any enological purpose?

 Views of famous Jurists & sociologists from all over the world.

 Various foreign cases and position in other countries.

 Circumstances which can aggravate or mitigate death punishment.

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 Cases in which the death sentence should be inflicted, and

 The extent of judicial discretion and need of guidelines.

J. Sarkaria delivered the judgment for majority discussing all these issues at
length, and the SC, with the majority of 4:1 rejected the challenges to the
constitutionality of Sec. 302 I.P.C. as the 354 (3) of Cr. P.C.
J. Bhagwati was the only one to dissent . He said :-
" I am of the opinion that Sec. 302 of the I.P.C. in so for as it provides for imposition of death
penalty as an alternative to life sentence is ultra vires and void as being violative of Art. 14 and 21
of the constitution since it does not provide any legislative guidelines as to when life should be
permitted to be extinguished by imposition of death sentence".

VI. CONCLUSION
The death penalty since the ages of enlightenment up to today was always an issue
around which basic values and human rights have been controversially discussed.
However, the current status of the death penalty worldwide indicates that there is
still a great need to continue the debate on abolishing or retaining the death
penalty, in particular there is a need to continue this debate from International
discourse on human rights. Developments in international instruments certainly
demonstrate an enormous political will to abolish the death penalty worldwide 55
and make the right to life a universally and unconditionally implemented
standard.56

In justifying retention of death penalty, utilitarian considerations, moral aspects

and social attitudes are highlighted. 57 Insofar, a mix of preventive and moral
arguments carry the death penalty58 pointing towards the goals of incapacitation,
general deterrence, positive general prevention as well as reducing the risk of
victims taking the law into their own hands.59 Official views on consequences of

55
See with a summarizing account Nowak, M: “ The Death Penalty Under Present International
Law”, in Nowak, M., Xin, C. (Eds.): EU- China Human Rights Dialogue.
56
See also the Economic and Social Council Resolution 2000/65, adopted April 26, 2000 urging
all retentionist states not only to comply with standards and safeguards in implementing the death
penalty but to establish moratoriums on executions with a view to completely abolishing the death
penalty.
57
Yu Shutong: Le systeme de la Peine Capitale Dand le Drot Penal Chinois. Revue Internationale
de Droit Penal. 17 au 22 mai 1988 . 58 (1987), pp. 689- 698.
58
Hood, R.: The Death Penalty. A Worldwide Perspective (Oxford, 1996), pp.38- 40.
59
Gao Ming Xuan, op. cit., pp. 400- 401.

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abolishing the death penalty associate with abolition an increase in crime, threats
for public safety60 and possible deterioration of the public’s believe in the rule of
law. Similar reservations of the United States of America, however, were judged
to be non-compatible with the goals of the International Covenant by the United
Nations Committee of Human Rights.61
The International development as regards the death sentence also reflects the basic
trend towards restriction and ultimately complete abolition of the death penalty. In
1989, the Assembly of the United nations adopted the 2 nd Optional Protocol to the
International Covenant on Civil and political Rights which states that in tho
ountries which do sign the 2nd Protocol, death penalty may not be enforced
anymore. In June 1990, the Assembly of the Organization of American States
adopted the Protocol to the American Convention on Human Rights on the
abolition of the death penalty.62 In this Protocol, member countries are urged to
abolish the death penalty, although an obligation to do so was not introduced. In
1997, the Human Rights Commission of the United Nations adopted a resolution
which demands for a moratorium on the death penalty and consideration of
complete abolition of the death penalty.63
Reforms in criminal justice system have been a matter of frequent review and
debate in India. The Law Commission of India64 as well as other Commissions65,
from time to time, has suggested a number of proposals for reforms in the
administration of criminal justice. Most of the suggestions, predominantly loaded
with the idea of fair, efficient and human administration of criminal justice, not
only insist for review of some of the fundamental principles of administration of
criminal justice and suggest appropriate amendments to the substantive and
procedural laws but also recommend restructuring and redefining of operational

60
Wie, L, : The 1997 Criminal Code of the People’s Republic of China (Buffalo, New York,
1998), p.12.
61
Hood, R. : “ Capital Punishment”, in Tonry, M. (Ed.): The Handbook of Crime and Punishment
(New York, Oxford, 998), pp. 739-776, p.743.
62
See Nowak, M, : “The Death Penalty Under Present International Law”, in Nowak , M., Xin, C.
(Eds.): EU- China Human Rights Dialogue. Proceedings of the Second EU- China Legal Expert
Seminar held in Beijing on 19 and 20 October, 1998, pp. 68-77.
63
For a complete review see Hood, R.: “Capital Punishment”. In Tonry, M. (Ed.): The Handbook
of Crime and Punishment, New York, Oxford, 1998, pp.739-776.
64
See generally, Law Commission of India, Fourteenth Report: reform of Judicial Administration
(Government of India, New Delhi, 1958); Law Commission of India, Forty First Report: Code of
criminal Procedure, 1898 ( Government of India, New Delhi, 1969).
65
See, Annual Reports of the National Human Rights Commission and Reports of then National
Police Commission.

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orbits of all constituent state functionaries- investigatory, prosecutory, ad

judicatory, and custodial- of the criminal justice delivery system. However,
majority of these proposals, unfortunately, are greeted with insensitivity by the
policy-makers and the Legislature.

World Wide resolutions and Views - An Anachronism

1. The movement for abolition of Death Penalty cannot be separated form the movement of
Human Rights. The Universal Declaration of Human Rights (Article 3) recognized each person's
right to life and categorically states further, Article 5, "No one shall be subject to torture, or to
cruel, inhuman or degrading treatment or punishment."

2. In Amnesty International's view Death Penalty robes the value of human life and removes the
foundation for the realization of all rights enshrined in the UDHR. It opposes Death Penalty in all
cases without reservation. C.J. Bhagwati held a similar view, while speaking at the 8th United
Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana on
September1, 1999

3. The General Assembly of the United Nations resolved in 1971, "In order to fully guarantee the
right to life provided in Article 3 of the UDHR, the number of offences for which Capital
punishment may be imposed should be progressively restricted, stressing desirability of abolishing
of this punishment in all countries."

4. The European Convention on Human Rights, 1950, ratified by 41 member states of the Council
of Europe, provides via Article 3 " No one shall be subject to torture or inhumane treatment or
punishment."

5. The Protocol to the American Convention on Human Rights to abolish Death Penalty is open to
signature and ratification.

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6. The International Convention on Civil and Political Rights, to which India is a party and which
has been ratified by 144 states, encourages the abolition of Death Penalty.

7. The 2nd Protocol to the International Convention on civil and Political Rights adopted by the
United Nations General Assembly with its Resolution on 44/128 of 15th December 1989, is the
world's first pact of universal scope at ending Death penalty.

8. The Rome Statute of International Criminal Court 1998, ratified by 60 states, via Article 77
provides for a punishment of maximum 30 years.

9. In 1995, the South African Constitutional Court has barred Death Penalty as an "Inhumane
Punishment." Half of the countries in the World have abolished it either by law or in practice.

Respect Human Life.

Why Do We Kill To Tell People Not To Kill?

BIBLIOGRAPHY

BOOKS AND MAGAZINES:-

 Indian Penal Code, B.M. Gandhi, 2nd edition, eastern book company
 Universals, The Indian Penal Code, (45 of 1860) Bare act With Short

Notes

 Halsbury’s Law of India.

 Annual Survey of Indian Law.

 D.N .Sen, The Code of Criminal Procedure, vol.2, Premier publishing

co.

 Doing research on crime and justice, (ed.) Roy d. King and Emma
wincup, oxford Co.

 K.N Chandrasekhar Pillai, General Principles of Criminal Law,

Eastern book Co.

 Russel on Crime ,vol.1, 12th ed ,Universal law publishers

 Ratanlal & Dhirajlal , The Code of Criminal Procedure,vol.1 , 18 th ed. ,

Y.V Chandra Chud & V R Manohar ,Wadhwa

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 Sarkar’s Code of Criminal Procedure,9 th ed ., vol.1, Sudipto Sarkar,

Wadhwa

 Halsbury’s law of India ,vol( 5)1 ,lexis-Nexis

 Halsbury’s law of England ,vol.11(3), lexis-Nexis

AUTHORITIES AND JOURNALS:

 Supreme Court Cases.

 Harris, D: “The Abolition of Death Penalty in European Union
States”.

 Black shield A.R.: “Capital Punishment in India.”

 Nowak, M: “ The Death Penalty Under Present International Law”

 All India Report.

 Reports of the Law Commission Of India.

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