Punishment is defined as, “Any pain, penalty, suffering, or confinement inflicted upon a person by the

authority of the law and the judgment and sentence of a court, for some crime or offense committed by
him, or for his omission of a duty enjoined by law.” i Capital punishment, also called death penalty, is the
execution of an offender sentenced to death after conviction by a court of law for a criminal offence. It
is the highest penalty awardable to an accused. Generally, it is awarded in extremely severe cases of
murder, rapes, treason etcii. The state-endorsed practice of putting a person to death as a consequence
for a particular crime is known as the death penalty. The act of carrying out capital punishment for a
crime has a long history, with executions in the past often being public events that sometimes included
forms of torture.

Here are some definitions of the death penalty given by experts:

 Amnesty International: "The death penalty is the ultimate, irreversible punishment and the most
extreme form of state-sanctioned violence. It violates the right to life and is a cruel and unusual
punishment."

 Human Rights Watch: "The death penalty is a cruel and unusual punishment that violates the
right to life. It is also irreversible, and there is a risk of executing the innocent."

 The United Nations Office on Drugs and Crime: "The death penalty is the ultimate sanction, the
most severe penalty that can be imposed on an individual. It is an irreversible punishment, and
its use raises complex moral, ethical, and legal questions."

The primary rationale for the concept of capital punishment lies in its effectiveness as a
deterrent against identical or similar crimes. It is also emphasized that specific categories of
crimes deprive individuals of their right to life.

In India, the death penalty is a lawful punishment for specific criminal offenses outlined in the
Indian Penal Code of 1860 and related legislations. It is executed through hanging by the neck,
as prescribed in Section 354 (5) of the Code of Criminal Procedure of 1973. 1 Section 354 (3) of
the 1973 Code outlines that the imposition of the death penalty is infrequent and is designated
solely for extraordinary situations.2 This clause also places limitations on the courts' discretion in
this matter. To decide the appropriate punishment, the court is obligated to assess the
offender's character in conjunction with the surrounding circumstances, events, and responses.

The death penalty has been a subject of significant debate for decades, encompassing complex
legal, ethical and moral dimensions. Capital punishment since the beginning has given rise to
considerable debate about both its morality and its effect on criminal behavior.

1
Code of Criminal Procedure of 1973, s. Section 354 (5)
2
Code of Criminal Procedure of 1973, s. Section 354 (3)
 This project will examine the legal and moral issues surrounding the death penalty. It will
identify the different arguments for and against the death penalty, and it will evaluate the
strengths and weaknesses of each argument.

i
See Cummings v. Missouri, 4 Wall. 320, 18 L. Ed. 356
iiiiiiiiiiiiiiiiiiii

INTRODUCTION

Early Death Penalty Laws

Until the nineteenth century, without developed prison systems, there was frequently no workable alternative to
ensure deterrence and incapacitation of criminals. 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 set the different punishment and
compensation, according to the different class or group of victims and perpetrators it codified the death penalty
for 25 different crimes. Death sentences were carried out by such means as crucifixion, drowning, beating to
death, burning alive, and impalement.

In ancient Greece the death penalty was applied for a particularly wide range of crimes. Protagoras criticized the
principle of revenge; because once the damage is done it cannot be cancelled by any action. So, if the death
penalty is to be imposed by society, it is only to protect the latter against the criminal or for a dissuasive purpose.

Plato saw the death penalty as a means of purification, because crimes are a "defilement. For the murderers, he
considered that the act of homicide is not natural and is not fully consented by the criminal. Homicide is thus a
disease of the soul, which must be reeducated as much as possible, and, as a last resort, sentence to death if no
[
rehabilitation is possible.

The Romans also used the death penalty for a wide range of offences. In ancient Rome, the application of the
death penalty against Roman citizens was unusual and considered exceptional. They preferred alternative
sentences ranging, depending on the crime and the criminal, from private or public reprimand to exile, including
the confiscation of their property, or torture, or even prison, and as a last resort, death.

In medieval and early modern Europe, before the development of modern prison systems, the death penalty was
also used as a generalized form of punishment for even minor offences.

However In the 18th and 19th centuries, the use of the death penalty began to decline in many parts of the world.
This was due in part to the growing influence of the Enlightenment, which emphasized the importance of
individual rights and liberties. However, the death penalty continued to be used in the United States and other
countries.
In the 20th century, the use of the death penalty decreased further. This was due in part to the growing awareness
of the risk of executing innocent people. However, the death penalty continued to be used in the United States
and other countries. ( capital punishment available at https://en.wikipedia.org/wiki/Capital_punishment#History
(last visited 23-09-2023) )

Death penalty in india

The death penalty has a long history in India. It was used in ancient India to punish a variety of crimes, including
murder, theft, and adultery. The death penalty was also used during the Mughal period.
The British introduced the death penalty to India in the 18th century. The British used the death penalty to punish
a wide range of crimes, including murder, rebellion, and terrorism.
After independence, India retained the death penalty. The death penalty is included in the Indian Penal Code,
which was enacted in 1860.
The death penalty was used extensively in the early years of independence. In the 1950s and 1960s, India executed
hundreds of people each year. However, the use of the death penalty has declined in recent years. In the 2000s,
India executed an average of less than 10 people each year.

Offences punishable with death in India are contained in both central and state legislations, but there is no
exhaustive list of such provisions. The Code of Criminal Procedure, 1973 (CrPC) explicitly provides for a separate
sentencing hearing2 and also requires special reasons to be recorded when a trial court imposes the death
sentence.3 Death sentences imposed by trial courts are necessarily required to be confirmed by the High Court,4
except under certain central legislations that exclude the application of the CrPC.5 There is no right to appeal to
the Supreme Court from the decision of the High Court except in a few circumstances.6

The ethical and legal dilemma surrounding the death penalty

The discourse surrounding the death penalty has historically centered on questions of morality. Extensive
deliberations have transpired, engaging with the ethical and moral dimensions of capital punishment. To gain a
deeper comprehension of this matter, it is imperative to initially present the diverse rationales both in favor of and
against the imposition of the death penalty.

Advocates for capital punishment espouse the notion that the severity of the penalty should surpass that of the
crime committed in order to exert a deterrent influence on society. They also believe that as the person who has
committed a murder has taken a life then his life should be forfeited as well. Additionally, they contend that the
death penalty constitutes a fair means of retribution, serving to articulate and strengthen the moral outrage not
just of the victim's family but also of law-abiding members of society as a whole. Their objective is to ensure justice
for the victim and the victim's family as well as closure, and they contend that the only viable means of achieving
this outcome is through the execution of the individual responsible for the egregious offense. Proponents of
capital punishment further contend that certain individuals possess an inherent malevolence, characterized by a
lack of remorse for their victims and an absence of guilt concerning their deeds. They maintain that these
individuals are impervious to rehabilitation, and the sole effective measure to prevent them from causing harm to
others is through the deprivation of their life.

The argument put forth by those who oppose the death penalty emphasizes the fact that the question should not
be “do some people deserve to die” , but rather “ should a government of humans with subjective understanding
of justice be able to determine whether a person deserves to die or not”

The death penalty is something which there can be no coming back from and as the people who are deciding to
give out these judgements are themselves humans who can be blinded by emotion in certain particular cases there
is always a chance of making a mistake and sentencing a innocent person to death. There have been various cases
in which people who were innocent were sentenced to die. Wrongful execution is a miscarriage of justice occurring
when an innocent person is put to death by capital punishment.

It could be said that the people who are for the death penalty don’t realize the gravity of the action of taking
someone’s life because they are not directly involved in the process. The taking of a life, even though as a
punishment, is still murder. the argument about the death penalty has shifted to the way we execute people.
In Indian the traditional way of awarding this punishment is “handing by the neck” till the death of the criminal,
which is considerably a much more inhumane way of taking the life of someone no matter how evil or deserving of
this punishment the person may be. In many country the sentence is served by giving the lethal injection but the
supreme court rejected the petition to use lethal injections instead sticking with death by hanging.

One of the biggest factor in the argument against death penalty is that people who are poor and are ethnic and
religious minorities often do not have access to good legal assistance. There have been numerous of the accused
being tortured and forced to sign blank sheets of paper, followed by staged recovery of facts that go on to become
critical to prove the guilt of the accused during the trial. Out of the 191 prisoners who shared information
regarding access to a lawyer at the time of interrogation, 185 (97%) said they did not have a lawyer. Of these 185
prisoners, 155 spoke about their experience of custodial violence, out of which 128 prisoners (82.6%) said they
were tortured in police custody. (Dr. Anup Surendranath, Shreya Rastogi, et.al., “Project 39A” 132 (2016)
)

Another factor to take into account is that Prisoners on death row in India are living in inhumane conditions, facing
unfair trials and horrific acts of police torture, according to a new study released by the Death Penalty Research
Project at the National Law University in Delhi. The study is based on interviews with 373 of the 385 inmates
believed to be on death row in India and offers a harrowing insight into the unbearable uncertainty the prisoners
face and the horrific conditions they have to live in as they wait for judges to decide their fate. The study is a
window into the lengthy, bureaucratic judicial process in India. It shows that for those currently on death row,
there was an average of five years between arrest and sentencing. Death sentences are handed down without
consistency, forcing inmates into an endless system of appeals, during which they often have little information
about the progress of the cases against them. Many are unable to meet their lawyers and are not informed about
the status of proceedings. Researchers recorded stories of prisoners who had committed suicide in jail, and others
who preferred an immediate execution rather than spending the remainder of their lives waiting for a judgment in
prison. (India's death row prisoners face horrific conditions, study finds
available at https://www.theguardian.com/world/2016/may/06/india-death-row-prisoners-horrific-conditions-
study#:~:text=The%20study%20is%20based%20on,judges%20to%20decide%20their%20fate. (last visited 23-09-
2023) )

One of the main argument for the support was the death penalty was that it acts as a deterrence. But statistical
evidence has disproven that. Evidence from around the world has shown that the death penalty has no unique
deterrent effect on crime. Many people have argued that abolishing the death penalty leads to higher crime rates,
but studies in the USA, Canada and India, for instance, do not back this up. (DOES THE DEATH PENALTY DETER
CRIME? Available at amnesty.org last visited ondfdsf)

The Doctrine of Rarest of Rare came up on account of Bacchan Singh v. State of Punjab. ((1980) 2 SCC 684) The
Supreme Court, for this situation, tried to remove a precept especially for offences at fault with death to diminish
the uncertainty for courts in regards to when to go for the most elevated discipline of the land, but at the end of
the day it is upon the judges to decide what they find rare. This can be a bad thing as it could lead to judgements
being made which have been influenced by emotions, it would be easy for them to adopt the ‘an eye for an eye’
mentality while making the judgments. A clear distinction for what constitutes “Rarest of the rare” is not drawn by
the law and is left to the discretion of the judges hearing the case which leads to culture, gender and even
cognitive bias. In other words, the beliefs and conscience of the judge are the defining factors.

The whole concept of the justice system is based on rehabilitating the person and taking them away from society
until their better so no harm comes to other. That "every effort to rehabilitate the offender"46 should be made is
now established doctrine.4 " From this, it is argued that capital punishment ought to be abolished because it
abandons this method of dealing with offenders. Punishment is also involved in the process of rehabillitation;
offenders are forcibly taken in hand. Moreover, not only is it an inescapable incident; punishment itself may be
reformative and valuable and necessary in treatment and re-education. Other ways are the incapacitation of actual
offenders by imprisonment or execution and deterrance thereby of potential offenders.
A number of studies have demonstrated that countries that have abolished the death penalty have seen their
murder rates unchanged or even decline, he added. (HC: Death penalty should be abolished in the 21st century
Available at https://www.ohchr.org/en/stories/2023/04/hc-death-penalty-should-be-abolished-21st-
century#:~:text=A%20number%20of%20studies%20have,minorities%2C%20and%20the%20LGBTIQ%2B%20comm
unity. Last visited dfdsf)
DENMARK abolished the death penalty for all crimes. LUXEMBOURG, NICARAGUA, and NORWAY abolished the
death penalty for all crimes. Are some examples.

CONCLUSION

B.R. Ambedkar was a strong opponent of the death penalty. He believed that it was a cruel and unusual
punishment, and that it was not an effective deterrent to crime. He also believed that the death penalty was
disproportionately applied to minorities and the poor.
In his book "Thoughts on Pakistan", Ambedkar wrote:
"The death penalty is a relic of a barbaric past and has no place in a modern democracy."
He also said:
"The death penalty is not a deterrent to crime, it is only a revenge by society on the individual."
Ambedkar's views on the death penalty were influenced by his own experiences as a Dalit. He had seen firsthand
the injustice and discrimination that Dalits faced in Indian society. He believed that the death penalty was just one
more way that the state was used to oppress minorities.
Ambedkar's views on the death penalty are still relevant today. The death penalty remains a controversial issue in
India, and there is a growing movement to abolish it. Ambedkar's arguments against the death penalty are still
used by activists who are fighting to end this cruel and unusual punishment.

Mahatma Gandhi was a strong opponent of the death penalty. He believed that it was a cruel and unusual
punishment, and that it was not an effective deterrent to crime. He also believed that the death penalty was
morally wrong, and that it violated the fundamental right to life.
In his book "Hind Swaraj", Gandhi wrote:
"The death penalty is the extreme limit of human arrogance and an unwarranted interference with the prerogative
of God."
He also said:
"The death penalty is a relic of a barbaric past and has no place in a civilized society."
Gandhi's views on the death penalty were influenced by his own beliefs in ahimsa (non-violence) and satyagraha
(truth force). He believed that all life is sacred, and that no one should be killed, even for a crime. He also believed
that violence only leads to more violence, and that the death penalty is not an effective way to deter crime.

Cesare Beccaria was an Italian jurist, philosopher, and economist who is considered to be one of the founding
fathers of modern criminology. He was a strong opponent of the death penalty, and his arguments against it are
still widely cited today.
In his book "On Crimes and Punishments", Beccaria argued that the death penalty was not an effective deterrent
to crime, and that it was cruel and unusual punishment. He also argued that the death penalty was
disproportionately applied to the poor and minorities.

My perspectives are an extension of the philosophical paradigms posited by eminent thinkers of the past. The
objections levied against the practice of capital punishment readily prevail over the justifications in favor of it.
Consequently, the imperative for the abolition of the death penalty has become increasingly pressing