CAPITAL PUNSHMENT IN ANCIENT INDIA

BAL9.5 PENOLOGY AND CORRECTIONAL ADMINISTRATION

Submitted by
Abhimanyu Paliwal
UID No.: UG 19-04
B.A.LL.B. (Hons.)
Year: V Semester: X

Submitted to
Prof. Aarti Anand Tayade
Assistant Professor of Law

August 2023
MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR
 TABLE OF CONTENTS

1. Introduction……………………………………………………..………………..……
2. Research Methodology………………………………………….……..…….....……..
2.1 Aim and Objectives…………………………..……………….…….……..………
2.2 Research Design………………………………..………….….………..………….
2.3 Research Question……………………………………...…….…………………....
2.4 Scope and Limitation………………………………...………….………….....…...
3. Review of Literature……………………………………………………………...……
4. Meaning of Capital Punishment…………………………………………………….....
5. Theories of Capital Punishment…………………………………………………..……
6. History of Death Penalty in India……………………………………………………….
6.1 Death sentence under Hindu Law…………………………………………………..
6.2 Death sentence under Muslim Law………………………………………………..
6.3 Death sentence under Mughal Empire…………………………………………….
6.4 Death sentence under the British rule in India…………………………………….
7. Conclusion…………………………………………………………………………....
8. Bibliography……………………………………………………………………….…

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INTRODUCTION

“Criminals do not die by the hands of the law. They die by the hands of other men.
Assassination on the scaffold is the worst form of assassination because there it is invested
with the approval of the society…..Murder and capital punishment are not opposites that
cancel one another but similars that breed their kind.” – Bernard Shaw

India being a democratic country mandates human right under fundamental rights to each &
every citizen which is why the debate on capital punishment is the most controversial
yetrelevant debate in the Indian judicial system. Capital punishment is the highest and
ultimate repression intended to execute the law of the land that serves as one of the
cornerstone of modern governance. Before the formation of the Indian penal code, even the
most trivial crimes had the punishment of death penalty and this kind of punishment was of
very prominence in the ‘draconian era’. The magnitude of the punishment in that era
depended upon the King and thus it is an overt of the deterrence. However in the current
scenario the controversy is around the fact whether the modern era should allow capital
punishment.

Increment of human rights activism has defined capital punishment to be unscrupulous,

debauched and objectionable. India being a developing nation simultaneously heaps crime
percentages year by year and the variegated enactments are unable to stop and control
violations. The certitude that the lawlessness in the society toppled with the argument of
keeping one perpetrator alive at the cost of numerous victims is a matter of contention. On
the other hand this highest level of punishment is opposed by the United Nations as it quoted
‘Life is precious and death is irrevocable’. In United Nations moratorium on the death
penalty resolution passed by the European Nations along with 8 other member states in 2007
addressed the general suspension of death penalty throughout the world. “The death penalty
has no place in the 21st century” – UN Secretary General Antonio Gueterres.

India is one of the 58 countries whose statute books include the death penalty and has used it
in modern times. The Law Commission had argued in 1967 to perpetuate the death penalty
but in 2015 it clarified that 'retribution cannot be reduced to vengeance . When Indira Jaising,
an advocate and human rights activist solicited the mother of the Delhi gang rape victim to
absolve the offenders, she received immense counterblast from the public as well as the
mother who had been fighting tooth and nail for justice. Many contended that the miscreants
should be given the capital punishment yet many have opined that the dissuasion from such

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heinous crime cannot be stopped by the death penalty. The only aggregate of the capital
punishment may only be retributive justice for the public and not for the deterrence of crime
rates.

Lest the extent of crimes in India which exists in the top 10 countries of the world, the capital
punishment had opinionated the public as well as the International Court of Jurists (ICJ)
which condemned the Centre not to hang the ‘Nirbhaya’ convicts.

REVIEW OF LITERATURE

1. “The Dharma of Death: Buddhism and Capital Punishment in Ancient India” by

John S. Strong (1999)

John S. Strong’s work explores the intersection of Buddhism and capital punishment in
ancient India. The author delves into Buddhist scriptures and texts to examine how this
religious tradition's teachings on compassion, non-violence (ahimsa), and karma influenced
attitudes towards capital punishment. The book analyzes Buddhist perspectives on the ethical
implications of taking a life, particularly in the context of state-sanctioned executions.
Strong's research provides valuable insights into the ethical debates surrounding capital
punishment within a religious framework.

2. “Legal Codes and Social Norms: A Comparative Study of Capital Punishment in

Ancient India and Rome” by Susan E. Reynolds (2009)

Susan E. Reynolds’ comparative study explores the legal codes and social norms governing
capital punishment in ancient India and Rome. By juxtaposing the two civilizations, Reynolds
examines how different societies approached the concept of punishment for heinous crimes.
The book analyzes specific cases of capital punishment, highlighting the role of legal systems
in maintaining order and reinforcing societal hierarchies. Reynolds’ work contributes to a
nuanced understanding of the social and legal dynamics that shaped capital punishment
practices.

3. “The Power of the King: The Role of Capital Punishment in Mauryan India” by
Michael Witzel (1993)

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Michael Witzel’s research focuses on the Mauryan Empire and its use of capital punishment
as a tool of royal authority. By analyzing inscriptions, legal texts, and historical accounts,
Witzel examines the role of capital punishment in upholding the power and legitimacy of
Mauryan kings. The study explores how the state utilized executions to maintain social order,
deter dissent, and consolidate political control. Witzel’s work provides valuable insights into
the intersection of political power and capital punishment in ancient India.

4. “Crime and Punishment in Ancient India: A Historical and Sociological Analysis” by

R.P. Arora (1984)

R.P. Arora’s comprehensive study offers a sociological analysis of crime and punishment in
ancient India, with a specific focus on capital punishment. Drawing from a wide range of
historical sources, Arora examines the socio-cultural context of capital offenses and the
methods of execution employed. The book explores the impact of capital punishment on
different segments of society, shedding light on issues of class, caste, and power dynamics.
Arora’s research contributes to a holistic understanding of the societal implications of capital
punishment.

5. “Dharma and Justice: A Study of Capital Punishment in Ancient Indian Legal

Thought” by Veena Das (1984)

Veena Das’ work delves into the philosophical and legal dimensions of capital punishment in
ancient Indian legal thought. The author explores how concepts of dharma (righteousness)
and justice were intertwined with the practice of capital punishment. By examining legal texts
and commentaries, Das investigates the moral and ethical justifications put forth to validate
the imposition of the death penalty. The book offers a thought-provoking analysis of the
moral dilemmas and philosophical considerations surrounding capital punishment in ancient
India.

MEANING OF CAPITAL PUNISHMENT

Capital Punishment, also known as the death penalty, is the execution of an offender
sentenced to death on conviction of a serious felony by a court of law. Capital punishment
should be distinguished from extrajudicial killings which lack the appropriate judicial
procedure. The term ‘death penalty’ is often used conversely with ‘capital punishment’ but
the application of the sentence is not necessarily accompanied by the execution (even if it is
upheld on appeal) because of the likelihood of a clemency to life imprisonment.

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Death Penalty is a very serious problem, since it involves taking the life of a person which
probes to be a very vulnerable problem. That is why concerns are being posed against
countries apart from India such as China, the United States and Arabic countries for awarding
the death penalty. The word "capital punishment" reflects the harshest possible form of
punishment. It is the sanction to be given for the most horrific, egregious and contemptible
crimes against humanity. Although the description and severity of such crimes differs from
country to country, state to state, age to age, death sentence has always been the consequence
of capital punishment. The punishment is the legal killing of the person who has committed
the crime prohibited by the law.

According to Encyclopedia Britannica, the death penalty is the execution of an offender

sentenced to death after conviction by the court for a criminal offence. The ancient legal
system calls it the highest penalty prescribed. The death penalty is provided under the Indian
Penal Code for various offences such as “Waging a war or attempting to wage a war against
the Government of India” (Section 121), Abetting the committing of mutiny by an officer,
soldier, sailor or airman, in the Army, Navy or Air Force of the Government of India (Section
132), Giving or fabricating false evidence with intent to procure conviction of capital offence
(Section 194) and threatening or inducing to give false evidence is made punishable under
section 195-A. Section 302 of the Indian Penal Code, 1860 provides that whoever commits
murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
The section provides punishment for murder. Section 304 for culpable homicide not
amounting to murder. Except in case where there were extenuating circumstances, the normal
punishment under this section was death. However, pursuant to section 354(3) of the 1973
Criminal Procedure Code, a new provision has been added to ensure that, where the
punishment is punishable by death or, instead, by imprisonment for life or imprisonment for a
term, the judgment shall specify the reasons for the sentence handed down and, in the case of
death penalty, the reasons for the penalty. It seems, therefore, that standard punishment for
murder is no longer a death penalty, but imprisonment for life, and a death punishment can be
awarded in ‘rarest of rare’ cases only for specific circumstances to be documented in
judgment.

THEORIES OF CAPITAL PUNISHMENT

As this punishment has already been deemed as a social security mechanism multiple times,
the correlation of punishment with other steps involving deprivation by the legally accepted

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rights of the state is evident. The justifiability of these steps may very well be contentious in
particular circumstances, but is hardly on investigation. Punishment may be used as an
opportunity to educate the incidences of nefarious activities either by persuading criminals, or
by neutralizing and prohibiting them from committing a serious crime, or by converting them
into virtuous individuals. The theories typically include aspects relating to punishment
theories, namely: Deterrent, Retributive, Preventive, and Reformative. The core dilemma that
most penologists address is whether truly ‘humane’ methods of punishment are inherent in
their target, such as the reformist success. Prisons are recognized to have been a place for the
raising of offenders, not as a site of reformation as it was supposed to be.

In the Theories of Punishment it can be said that Reformative theory have a based paradigm
of benefit over Deterrence Theory. Since there is a dimension of transformation present in
Reformative Theory while this scope is entirely absent in Deterrent Theory. In India, the
Tihar Jail prisoners make ‘Essence Stick’ and ‘DhoopBatti’ which is a good way to make
them adaptable or versatile to society. These theories are usually kept in consideration the
courts give their judgments.

HISTORY OF DEATH PENALTY IN INDIA

To be more systematized the history of death penalty in India is deliberated under the
following four heads-

(A)Death Sentence under the Hindu Law:

Since the earliest era of existence punishment has been an integral part of society. Together
with exile, Death Penalty was present as two easiest places of suppressing the antisocial
elements of society which were the best examples of punishment and dissuasion for society.
Cases of death penalty are as old as those of the Hindu community. References to the death
penalty can be found in the old scriptures and books. The Hindu law system did not find the
execution of the death penalty barbaric and was reimbursed with the infliction of torture as
much as possible in order to have a draconian effect on society. Death penalty fragments
were uncovered as far back as the 4th century. Kalidas has demonstrated beautifully the need
for the death penalty. The need for the death penalty has been expressed in historical,
mythological epics such as Ramayana & Mahabharata that it is the King's highest priority to
protect society from any kind of threat, and this can be done by taking the life of the
wrongdoer. Katyayana and Brahaspati are also proponents of the death penalty. Katyayana

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and Brahaspati are also proponents of the death penalty. Essential for the protection of all and
possible only through the execution of the perpetrator on the grounds of religious merits. The
Buddhist period when Ahimsa was the law of conduct, even then Ashoka did not consider
capital punishment to be false. Deterrence and mental health were the rudimentary foundation
of the dandniti in India. Clearly, the idea of social security and non-correctional philosophy is
a very clear element in the Hindu criminal system. Manu has taken very good note of the
objective and subjective circumstances. The crime and weakness of the perpetrator in his
legendary work Manu Smriti.

Even in the work of Kautilya, the reference to the death penalty was there as according to him
it was a fundamental means of maintaining public protection. According to some law
scholars, Brahmans had been excluded from the death penalty and otherwise removed, but
however there were some references in the history of the Brahman's death penalty and could
not therefore be regarded as fully excluded.

(B) Death sentence under Muslim Law:

Muslim law or Islamic law maintains that the primary purpose of punishment is to have a
punitive effect on society. The Islamic Doctrine mainly promotes the good of society and
protects against wrongdoing by imposing punishment on the wrongdoer.

There are 3 types of crimes under the Islamic law:

1. Had Crimes:

The crimes that influenced the community were called Had or Huhud, i.e. the penalty
prescribed by Allah himself. Crimes in this group include murder, murder, larceny drinking
wine, bloodshed, apostasy, and revolt. These offences shall be dealt with very strictly, and
neither the judge nor the victim has the right to pardon the crime or to enforce the penalty.

2. Tazir Crimes:

The second group of such offences shall be that for which tazeer or a criminal offense has
been committed. Punishment shall apply. For these categories of offenses, the courts are able
to determine whether to prosecute them, unlike the first group of offenses.

3. Qisas Crimes:

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The third group of social crimes is those involving Qisas (retaliatory) and Diyut blood money
or paid mullet. The cases of murder and intentional or accidental injury or, to be precise, the
crimes protected by Qisas were intentional or felonious murder, attempted intentional murder
or accidental murder, intentional or unintentional injury. This crime shall be punished with
Qisas or diyut and, in such cases, the victim or his legal guardian or heir can forgive or
change the amount of the penalty.

All these 3 types of crime have a definite prescribed punishment and these differ in the
gravity of offence and punishment both.

(C) Death sentence under the Mughal Empire:

The medieval history of India was dominated by the mighty Mughal rule. They are
administered primarily based on the Laws of the Quran. There was no uniformity in the law
enforced in the different parts of the world and the disputes were addressed and the judges
were mostly focused on the Quranic beliefs, but they also had discretionary penalties with the
officer who determined the case. The Indian Quzes had their own rundown of all the Islamic
law that was going on proposed outside the world. There were many such digests that were
being prepared and the last one was the ‘Fatwai-Alamgiri’ compiled under the order of
Aurangzeb.

The views of Akbar were very lenient and, according to him, the death penalty should be the
last order after all mature deliberations and, according to Akbar 's rule, only severe offenses
of sedition of death could be ordered and given by the emperor himself and no death should
be accompanied by mutilation and other cruelties. Same was the laws of Jahangir and
Aurangzeb. The final order of the death penalty was executed with furious and excruciating
methods, such as tossing the prisoner in the scorching sun as he was wrapped in freshly slain
fluffed thin to shrink raw hide and finally collapsing in misery and pain, or the prisoners were
mailed in the walls together with lively corpses. These approaches have been overtaken by
the mandatory imprisonment of the criminal to death under the Modern British Criminal
Justice and Administration Scheme

(D)Death Sentence under the British rule in India

The advent of the British East India Company to the Indian Territory during the Mughal reign
in India saw the statutory modifications in the Muslim criminal law that was in practice at the
time of British. The Bengal Resolution of 1773 made some improvements in the case of

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murder, and there were only slight amendments that were very important to eradicate the
current defeats. Now the most critical factor was the purpose of the offense, not the process
of the execution of the crime that would dictate the penalty. The sentence of execution can
now be applied to the death penalty even though it is prescribed by Muslim law. Now the
government has been given the power to amend the death penalty, too. Murder & Culpable
Homicide was distinguished for the first time by statute. Commission in 1846, after a series
of alterations and references by eminent scholars. In 1857, for the first time, the Code was
read, adopted by the Legislative Council and authorized by the Governor General on 6
October 1860. The British have been responsible for the implementation of a formal criminal
code and criminal prosecutions. Capital crimes were narrowly restricted under this penal code
of India and thus the British could be held accountable for the partial abolition of the death
penalty. The Parliament has seen the abolition of the death penalty many times, but still the
criminal law on the issue of capital punishment and death sentences both technically and in
practice.

The colonial prison of Andaman & Nicobar island also known as ‘Kala Pani’ was best known
for the exiling and then execution of political prisoners and the ‘rebels’ of the nation. It is
said that about 80,000 prisoners were held by the British and very few had survived. Solitary
confinement was enforced as the British government wanted to ensure the separation of
political prisoners and the revolutionaries from each other. The Andaman Island acted as the
East India Company's perfect environment to do this. The remorseless and diabolical
punishment was the one of horrid disparage of penalties ever known to the country.

CONCLUSION

Viewing the above discussions, it is obvious that India’s contentions in regards to capital
punishment is still disarranged. The discussion is not only on the validity and the
constitutionality of the capital punishment, but also on the moral and social dimensions
relevant to this subject. The efficacy of capital punishment is a matter of dubiousness and
must be contemplated with public sentiments and morals rather than just law. Death penalty
is unfair, oppressive and inhuman. A greater portion of democratic society is at all times
opposed to the death penalty-regardless of who is convicted, the crime, guilt or innocence or
execution process. Therefore, the veracity of the capital punishment will proceed to be
questioned and, probably eventually, the Supreme Court will have to address if there is ample
room for lack of political will to circumvent the right to life.