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UNIVERSITY OF MUMBAI

(Department of Law)

LL.M GROUP V-CRIMINAL LAW AND CRIMINAL ADMINISTRATION

SEMESTER-III

PROJECT

____________________________________________________________

JUDICIAL TRENDS WHILE AWARDING CAPITAL

PUNISHMENT IN INDIA: A STUDY OF NEED OF ALTERNATIVE
PUNISHMENT
____________________________________________________________

Under the Guidance

Of

Prof.Dr.SARITA MAHADIK

(Department of Law)

NAME:- AKANKSHA JEETENDRA NALAWADE

ROLL.NO:- 12

DIVISION-B
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TABLE OF CONTENT

Sr.no CONTENT

1. INTRODUCTION

2. HISTORY OF CAPITAL PUNISHMENT

3. DEATH SENTENCE IN HINDU LAW

DEATH SENTENCE IN ISLAMIC LAW
DEATH SENTENCE DURING MUGHAL EMPIRE
4. CAPITAL PUNISHMENT BEFORE AND AFTER
INDEPENDENCE
5. EXECUTION METHOD USED IN INDIA

6. LAW COMMISSION OF INDIA’S REPORT

7. DEATH PENALTY UNDER IPC

8. INTERNATIONAL FRAMEWORK

9. ARGUMENT AGAINST THE ABOLITION OF

DEATH PENALTY
10. ARGUMENT IN FAVOUR OF ABOLITION OF
DEATH PENALTY
11. CURRENT SENARIO IN INDIA

12. ALTERNATIVE PUNISHMENT OF CAPITAL

PUNISHMENT
13. CASE LAWS

14. CAPITAL PUNISHMENT IN IPC

15. CAPITAL PUNISHMENT IN OTHER LAW

16. CRIMES PUNISHABLE BY THE DEATH PENALTY

17. CATEGORY EXEMPTED FROM THE DEATH

PENALTY
18. PROCEDURE AFTER THE IMPOSITION OF THE
DEATH PENALTY
19.
THE CAPITAL PUNISHMENT CONSTITUITIONAL
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VALIDITY

20.
JUDGMENTS AWARDING DEATH PENALTY

21.
CAPITAL PUNISHMENT IN INTERNATIONAL
HUMAN RIGHTS TREATIES

22.
LIMITATION TO MOST SERIOUS CRIME

23.
THE INTERNATIONAL PUSH TOWARDS
ABOLITION

24.
LIFE IMPRISONMENT AS AN ALTERNATIVE TO
THE CAPITAL PUNISHMENT

25.
INDIA REFUSES TO ABOLISH DEATH PENALTY

26. CONCLUSION
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INTRODUCTION

“MEANING AND DEFINITION OF CAPITAL PUNISHMENT”

India's history with the death penalty dates back to a period when the proverb "an eye
for an eye" served as the primary source of inspiration for criminal punishment. The
oldest forms of punishment were imprisonment, fines, and banishment; the most
common kind, however, was death. The death penalty, on the other hand, was the
harshest penalty and was usually applied to those who had committed the worst crimes,
such as rape, murder, treason, etc. When India was under British administration, the
death penalty was regularly used. The death penalty was introduced by the Indian
Criminal Code as a means of penalizing crimes such as piracy, treason, and murder.

The British executed a number of freedom fighters for their involvement in anti-colonial
actions. who also used the death sentence as a means of putting an end to political
unrest and rebellion. The Indian criminal law, which established the death penalty for
murder, was passed in 1861. Following India's independence in 1947, the death penalty
remained a recognized method of punishment. It was responsible for drafting the
country's Constitution, but there were mounting calls for its repeal, and they had a long
debate over it.

Between 1950 and 1980, there were reportedly between 3000 and 4000 executions. It is
harder to estimate how many persons were given death sentences and executed between
1980 and the mid-1990s. An estimated few individuals are executed by hanging every
year. In the Bachan Singh case of 1980, the Supreme Court decided that the death
sentence should only be used in extremely exceptional circumstances.

Capital punishment or the death penalty is a legal process whereby a person is put to
death by state as a punishment for a crime.” “Capital Punishment is the legally
authorized killing of someone as punishment for a crime. Capital Punishment is the
death sentence awarded for capital offences like crimes involving planned murder,
multiple murders, repeated crimes; rape and murders, etc where the criminal
provisions consider such persons as a gross danger to the existence of the society”.

Both the Rajya Sabha and the Lok Sabha, but none of them were ratified. It was
estimated that there had been between 3000 and 4000 executions between 1950 and
1980. The vast range of people who were given death sentences between 1980 and the
mid-1990s is harder to evaluate. It is estimated that two or three persons are hanged per
year.
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The capital Punishment sometimes referred to as the loss of life penalty in the Bachan
Singh ruling of 1980, is the execution of a person sentenced to death following their
conviction through the use of a court docket. The Indian Supreme Court ruled that the
death penalty should only be applied in the "rarest of rare" circumstances, albeit it's
unclear exactly when those circumstances might occur. Death was one of the penalties
specified in the Indian Penal Code, 1860 (IPC), which included several capital crimes,
in colonial India. “Declaration of Human Rights," which called for outlawing the
serious crimes that could result in the death penalty in order to eventually eliminate it
completely. This choice “Declaration of Human Rights," which called for outlawing the
serious crimes that could result in the death penalty in order to eventually eliminate it
completely. The General Assembly revised and reaffirmed this decision in 1977.

As stated in Section 354(5) of the Criminal Code of Procedure, 1973, the principal
mode of execution is “Hanging by the neck until dead” and is only granted in the “rarest
of cases”. The Army Act, Navy Act, and Air Force Act allow for shooting as an
alternative to hanging, which is the other means of execution permitted by Indian law.
The court martial will decide whether to use hanging or gunshot as the technique.

The most recent executions in India occurred in March 2020 in the Tihar Prison in
Delhi, where four of the defendants in the 2012 Delhi gang rape and murder case were
put to death.

HISTORY OF CAPITAL PUNISHMENT

India’s history with the death penalty goes back to a time when the idea of punishment
for a crime was centred on the adage “an eye for an eye”. Banishment, fines, and
incarceration were among the earliest types of punishment. The most severe
punishment, however, was death, which was typically meted out to the individuals who
had committed the most terrible offenses, like treason, murder, rape, etc. The death
sentence was frequently applied in India while it was ruled by the British. The Indian
Criminal Code established the death sentence as a punishment for crimes like murder,
treason, and piracy. Several freedom fighters were put to death for their participation in
anti-colonial activities by the British, who also employed the death penalty as a tactic to
quell political dissent and insurrection.
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In 1861, India passed the Indian Criminal Code, which included the death penalty for
murder. The death penalty remained an accepted form of punishment in India after the
Country’s independence in 1947. Nonetheless, there were growing calls for its repeal,
and the Constituent Assembly of India, which was in charge of creating the constitution
for the nation, held a lengthy discussion on the subject. The 1950 constitution, despite
objections from some assembly members, kept the death sentence as a legal method of
punishment. The constitution of India allowed capital punishment to be imposed for a
wide range of crimes, including murder, terrorism, and certain types of treason.

There were estimated to have been between 3000 and 4000 executions between 1950
and 1980. The number of people who were sentenced to death and put to death between
1980 and the middle of the 1990s is more difficult to estimate. According to estimates, a
few people are hanged each year. The Supreme Court ruled in the Bachan Singh
decision of 1980 that the death penalty should only be applied in the rarest of the rare
instances.

DEATH SENTENCE IN THE HINDU LAW

Penalties have been an essential component of civilization since the beginning of

human history. The death penalty and exile were two simple means of eliminating the
delinquent elements of society; they were the best forms of punishment and dissuasion
available to them. The history of the death punishment is as old as the Hindu
community. The old texts and writings make reference to the death punishment. In the
Hindu judicial system, the death penalty was not seen as barbarous; instead, it was
substituted with as much suffering as possible in order to have a drastic effect on
society. Pieces of the death punishment that date back to the fourth century have been
found.

Kalidas has done a magnificent job of illustrating the need for the death sentence. The
necessity of the death sentence has also been argued by historical and mythological
epics like the Ramayana and Mahabharata, which say that the king's first responsibility
is to protect society from threats of all types, and that this can be achieved by executing
the offender. Furthermore, Brahaspati and Katyayana were both in favor of the death
sentence.
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THE DEATH PUNISHMENT IN ISLAMIC LAW

Sharia law, which originated with the Qur'an, the Hadith, the Ijma, the Urf, the Masalih
al-Mursala, and the Qiyas, governs Islam. The Qur'an says, "Your Lord said to the
angels, I am appointing a vicegerent on earth," in verse 2:30. In addition, the scripture
stated, "Your Lord said to the angels, I am going to create a human being out of clay;
kneel before him in prostration when I have fashioned him and breathed of My spirit
into him." As a result, the Qur'an rejects the right to take human life. Islamic ideologies
hold that I'dam, the act of taking life away, and Ijad, the act of giving it, are wholly
divine rights.

To put an end to The Qur'an authorizes the taking of life by authorities other than Allah
through the proper channels of law and justice, in order to prevent even more horrible
crimes from happening in society, as needed by Sharia Law.

The crimes listed below are those that fall under Sharia law.

Had crimes:- The term "Had" or "Huhud" refers to the punishment that Allah himself
prescribed for the offenses that had an impact on the community. This category of
offenses includes violence, apostasy, revolt, theft, murder, and alcohol drinking. There
will be severe prosecution for these offenses, and neither the victim nor the judge will
be able to reduce the sentence or carry out the punishment.

Tazeer crimes: The second group of these offenses consists of those for whom a
criminal or tazeer offence has been committed. Unlike the first category of offenses, the
courts have the power to determine whether to bring charges against these offenses.
This category of offenses includes obscenity, false testimony, and attempted adultery.

Qisas crimes: Retaliatory Qisas and Diyut (blood money) crimes make up the third
category of social crimes. purposeful or felonious murder, attempted purposeful or
unintentional murder, and intentional or inadvertent injury were among the offenses
covered by Qisas. When a victim, his legal guardian, or his heir commits this crime,
they may be eligible for forgiveness or a reduction in the penalty amount under Qisas or
Diyut.

There are distinct penalties for each of these three types of crimes, varying according to
the seriousness of the offense committed.
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DURING THE MUGHAL EMPIRE, THE DEATH SENTENCE

The powerful Mughal Empire dominated India's medieval history. Their governance
mostly adhered to the laws of the Quran. The law was not consistently applied in all
regions of the world, and judges had the power to administer arbitrary punishments in
addition to taking Quranic precepts into consideration when resolving disputes.

Akbar was a very lenient person; he thought that the death penalty should only be used
to serious sedition offenses and only after much thought. In addition, he thought that no
one should be killed and then subjected to severe punishments like mutilation or other
atrocities. Jahangir and Aurangzeb both had comparable laws.

The death sentence was carried out using cruel and agonizing methods like throwing the
prisoners were either nailed in the walls with other victims or tossed in the blazing sun
while coated in freshly killed, fluffed thin rawhide that would ultimately shrink and
cause them to fall in agony. Under the current British criminal justice and
administration system, the mandatory execution of offenders has superseded these
tactics.

THE DEATH PENALTY BEFORE AND AFTER INDEPENDENCE

It wasn't until 1931 that the death penalty was brought up in the British Indian
legislative assembly by Bihar member Shri Gaya Prasad Singh in an attempt to
introduce a bill that would have repealed the death sentence for offenses included by the
Indian Penal Code. But after receiving a response from the then-home minister, the
motion was rejected. Twice in Legislative Assembly debates prior to independence; the
government's stance on the death penalty in British India was made clear by the then-
home minister, Sir John Thorne. "For any crime for which it is currently authorized, the
Government does not think it is prudent to repeal the death penalty."

The Republic of India enacted a number of colonial-era laws after gaining

independence, notably the Indian Penal replied to it. Twice in Legislative Assembly
debates prior to independence; the government's stance on the death penalty in British
India was made clear by the then-home minister, Sir John Thorne. "For any crime for
which it is currently authorized, the Government does not think it is prudent to repeal
the death penalty."
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The Indian Penal Code of 1860 and the Code of Criminal Procedure of 1898 are two
examples of the colonial-era statutes that the Republic of India enacted after gaining its
independence. Six penalties, including the death penalty, were imposed by the IPC.

EXECUTION METHODS USE IN INDIA

In India, there are two methods for carrying out a death sentence: being shot in the head
or hanging by the neck till death. The manner in which capital sentences are carried out
in India is outlined in the prison manuals of many States. Section 354(5) of the Code of
Criminal Procedure 1973 states that the execution is carried out in line with hanging by
the neck until death after the death sentence is granted and confirmed after all other
legal remedies have been exhausted. The Air Force Act of 1950, the Army Act of 1950,
and the Navy Act of 1957 likewise stipulate that the execution must be carried out by
shooting the victim to death or by hanging them by the neck until they die (as has been
detailed in length herein).

Code of Criminal Procedure, 1973, and the Prison Manual

Section 368(1) of the Code of Criminal Procedure, 1898 provided for hanging by
neck till death. This has not been amended by the Code of Criminal Procedure,
1973.

“Section 354(5) reads as under”:-

"When any person is sentenced to death, the sentence shall direct that he be hanged by
the neck till he is dead." The execution of the death penalty in India, under the Code of
Criminal Procedure, is thus carried out with hanging by neck till death during the last
over hundred years. The execution of the death penalty is carried out in accordance with
section 354(5) of the Code of the Criminal Procedure, 1973, and Jail Manuals of the
respective States. For example, Chapter XXXI, Jail Manual of Punjab and Haryana
provides for the various steps leading to the execution of the death sentence:-

EXECUTIONS IN COMPLIANCE WITH THE ACTS OF THE ARMY, AIR

FORCE, AND NAVY

The death penalty is also carried out in accordance with the Army Act and Air Force
Act. Although the details of the execution process for death sentences are not provided,
the essential laws highlighted in this consultation paper are significant in terms of the
provisions related to confirmation and revision petitions as well. The Air Force Act of
1950 is one of the Acts that contains the numerous clauses.
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The Air Force Act of 1950 also allows for the imposition of the death penalty and its
execution in connection with a few offenses that are listed below and are thoroughly
described.

Studying the application of the death sentence granted in accordance with the Act's
provisions will make the Death Sentence as specified by The Air Force Act, 1950,
pertinent. The Act's Section 34 lists the several offenses that are considered to be
punishable by death.

"Shall, upon conviction by court-martial, be liable to suffer death or such less

punishment as is mentioned in this Act," the provision reads. The court martial may
impose the death penalty for offenses listed in "section 34 (a) to (o) of The Air Force
Act, 1950" under this provision.

However, the procedures for the Confirmation and Revision requirements are outlined
in Chapter XII, and these sanctions are subject to those rules. The execution of
punishments is covered by a provision in Chapter XIII.

“SECTION 163 provides for the form of the sentence of death as:- “In awarding a
sentence of death, a court-martial shall, in its discretion, direct that the offender shall
suffer death by being hanged by the neck until he be dead or shall suffer death by being
shot to death”. This provides for the discretion of the Court Martial to either provide for
the execution of the death sentence by hanging or by being shot to death.”

This section lays out the process and methodology for carrying out death sentences in
compliance with the Act's stipulations. It is significant to remember that the Air Force
Act of 1950 authorized "shot to death" executions.

The Air Force Act of 1950 provides for the execution of the death penalty, even if it is
not required under the Code of Criminal Procedure. This indicates that the death
penalty may also be carried out in India, at least in part, by alternative means, namely
being shot to death.

Similar provisions to those in the Air Force Act of 1950 are likewise provided by
the Army Act of 1950 and the Navy Act of 1957. Similar clauses to those found in
The Air Force Act of 1950 also allow for the death punishment to be carried out by
being shot to death.
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There are two methods of execution in India are practice and they are:-

1. HANGING: The offender is only hanged until death. In India, hanging is the
method used to carry out all death sentences. Godse was the first Indian to be
killed by hanging in the wake of independence, in Mahatma Gandhi's case. The
Supreme Court of India recommended that in the rarest of rare circumstances,
capital punishment be applied.

“Section 354(5) of Crpc” specifies that hanging is the method of execution in the
civilian court system and that it is the only method permitted in India for the execution
of a civilian person. The method used is the same as it was during British colonial rule,
and there have been no changes to the mode of execution since then.

The number of death sentences handed out by Indian courts in 2022 was 165, the most
in more than 20 years.

Matter before India's Supreme Court.

In an effort to bring about a more honourable method of carrying out the death penalty,
Attorney Rishi Malhotra filed a Public Interest Litigation (PIL) in 2017. He made the
case that a prisoner whose life must end due to their punishment shouldn't have to
endure the agony of hanging.

“Section 354(5) of the Crpc, 1973”, which states that "when any person is sentenced to
death, the sentence shall direct that he be hanged by the neck till he is dead," was
challenged in the PIL as being unconstitutional. The Supreme Court affirmed the
constitutionality of the death penalty itself in Bachan Singh v. State of Punjab

The government claimed that hanging was the only "viable" way to carry out a death
warrant in its Affidavit, which was filed in January 2018. However, the government
requested more time to research execution strategies used in other nations.

The Law Commission has suggested that “Section 354(5) of the Crpc” be changed to
allow for "Lethal injection until the accused is dead" in its 187th report from 2003. It
had indicated that the judge, who should first hear the convict on the matter before
making a decision, should have the last say over the method of execution.

“DHANANJOY CHATTERJEE V. STATE OF WEST BENGAL” (2004)

In this instance, the 18-year-old student Hetal Parekh was slain by Dhananjoy
Chatterjee, who was found guilty of both rape and murder. He was employed at an
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apartment complex as a security guard. Dhananjoy worked as a security guard in the

same apartment complex as the victim.

On March 5, 1990, the victim's mother discovered her dead at her house in the
afternoon. Since Dhananjoy was last seen in the vicinity following the discovery of the
murder, he was accused of raping and murdering the girl at her apartment. He was taken
into custody by Kolkata police on May 12, 1990, on suspicion of rape. homicide as
well as watch stealing.

The Alipore Sessions Court convicted Dhananjoy of all counts in 1991 and sentenced
him to death. This ruling was maintained by the Supreme Court and the Calcutta High
Court. He petitioned the West Bengal governor and President A.P.J. Abdul Kalam for
clemency, but both were turned down. Dhananjoy was killed at 4:30 a.m. on August 14,
2004, his 39th birthday, at Kolkata's Alipore Central Jail.

“MOHAMMED AJMAL AMIR KASAB V. STATE OF MAHARASHTRA”

(2012)

Kasab and nine other terrorists executed a series of well plotted bombing and gun
strikes around the city during the historic 26/11 Mumbai attack. Ajmal Kasab and
Ismail Khan carried out a terrorist assault at the CST station that targeted important
landmarks and resulted in up to 58 fatalities and over 100 injuries.

At the time, Kasab, a 21-year-old, was the lone survivor of the gang that had killed 166
people while wreaking massive destruction around Mumbai. After a gunfight with the
police, he was brought into jail, questioned, and accused with 86 crimes, including
murder and inciting war against India. Kasab's defense contended that the prosecution's
allegation that he had confessed was untrue.

He was put on trial in March of 2009. Kasab was given the death penalty by a special
court in May 2010. Trial Judge ML Tahaliyani declared on May 7 that Kasab should be
hanged by the neck until he dies and that he had no right to "humanitarian treatment."

This was in spite of the fact that Kasab's lawyer had begged for mercy and maintained
that his client could be rehabilitated because he had been brainwashed by the terrorist
organization Lashkar-e-Taiba. Kasab filed an appeal against the ruling, but the Mumbai
High Court dismissed it in February 2011.
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Kasab appealed the death penalty to the Supreme Court in July 2011. In his statement
before the court, Kasab asserted that the prosecution had not proven his allegations
beyond a reasonable doubt.

"I am not guilty of waging war against the state, but he may be guilty of killing people
and committing a terrorist act," he declared. The Trial Court's decision to have him
executed on August 29, 2012, was maintained by the Supreme Court, which denied his
appeal.

Furthermore, President Pranab Mukherjee turned down his plea for compassion. On
November 21, 2012, Ajmal Kasab was executed by hanging at Pune's Yerwada Jail.

“YAKUB MEMON V. STATE OF MAHARASHTRA ”(2013)

Yakub Memon, Tiger Memon's brother, was one of the main suspects in this
investigation about the bombs. Yakub Memon, a chartered accountant by trade, was
accused of being involved in the Dawood Ibrahim and Tiger Memon-organized Bombay
bomb case.
257 people were killed by the blasts. On August 5, 1994, Yakub Memon was taken into
custody at the New Delhi Railway Station.

He was convicted guilty of murder, criminal conspiracy to conduct acts of terrorism,

and aiding terrorist activities. In accordance with the Terrorist and Disruptive Activities
(Prevention) Act (TADA), 1987, the Trial Court condemned him to death after finding
him guilty of unlawfully carrying and possessing guns and ammunition.

Memon requested a modification of his sentence, but the Supreme Court affirmed
Memon's death sentence. On July 30, 2015, the day of Yakub Memon's execution, the
Maharashtra government carried out his death sentence. Memon filed a curative petition
with the Supreme Court on May 22, 2015.

July 21, 2015, saw the rejection of the same. He also filed a mercy plea requesting a
stay of execution, which the Maharashtra governor denied. Yakub Memon was killed in
Nagpur Central Jail on July 30, 2015.

2. SHOOTING: In India, shooting is another technique of execution. A prisoner who has

been sentenced to death may be put to death by a member of the firing squad. The
Army, Air Force, and Navy are the only organizations that are able to carry out the
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death penalty in this way. The Army Act of 1950 states that both hanging and gunshot
are acceptable means of death under the army court-martial system.

LAW COMMISSION OF INDIA’S REPORT

In its 262nd Report (August 2015), India’s Law Commission proposed that the death
penalty be abolished for all crimes excluding terrorism-related offences and war. The
report’s full recommendations are as follows:

 The Commission urged that the government should implement measures such as police

reforms, witness protection schemes, and victim compensation schemes as soon as

possible.

 The path of our own jurisprudence: From 1955, when no special reasons were required

for imposing life imprisonment instead of death, to 1973, when special reasons were
required for imposing the death penalty, to 1980, when the death penalty was limited to
the rarest of rare cases by the Supreme Court – demonstrates the path we must take.

 The Commission felt that the time had come for India to move towards abolition of the

death penalty, informed by the expanded and deepened contents and horizons of the
Right to Life, strengthened due process requirements in interactions between the state
and the individual, prevailing standards of constitutional morality and human dignity.

 Despite the fact that there is no acceptable penological reason for treating terrorism

differently from other crimes, there is often concern that abolishing the death sentence
for terrorism-related offences and war will have an impact on national security.

 Given the legislators’ concerns, the Commission saw no reason to wait any longer to take
the first step toward abolishing the death sentence for all offences other than terrorism-
related offences.
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DEATH PENALTY UNDER IPC

The death penalty, also known as capital punishment, is the harshest form of
punishment available under any criminal law in existence anywhere in the world. The
legal method through which the state exercises its power to take an individual’s life is
known as capital punishment. “No individual shall be deprived of his life or personal
liberty except pursuant to the procedure established by law,” says Article 21 of
the Indian Constitution, which guarantees every citizen the fundamental right to life.
This means that your right to life will never be taken away from you until you follow
the legal system, which means that the state can take away your life if it sees fit through
the legal process. Not all crimes are punishable by death; in fact, most agencies do not
seek capital punishment; rather, it is reserved for the most egregious of offences.

Eleven offences mentioned below if performed inside the territory of India are
punishable by death, according to the Indian Penal Code and other Acts:

1. Section 120B : Being a party to a criminal conspiracy to commit a capital offence.

2. Section 121 : Waging, or attempting to wage war, or abetting waging of war, against the
Government of India.

3. Section 132 : Abetting a mutiny in the armed forces (if a mutiny occurs as a result),
engaging in mutiny.

4. Section 194 : Giving or fabricating false evidence with intent to procure a conviction of a
capital offence.

5. Sections 302, 303: Murder.

6. Section 305 : Abetting the suicide of a minor.

7. Section 364A: Kidnapping, in the course of which the victim was held for ransom or
other coercive purposes.

8. Section 376A: Criminal Law (Amendment) Act, 2013: Rape if the perpetrator inflicts
injuries that result in the victim’s death or incapacitation in a persistent vegetative state,
or is a repeat offender

9. Section 396: Banditry with murder, in cases where a group of five or more individuals
commit banditry and one of them commits murder in the course of that crime, all
members of the group are liable for the death penalty.
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10. Part II, Section 4 of Prevention of Sati Act, aiding or abetting any act of Sati such as:

 Any inducement to a widow to have her body burned or buried alive alongside the body
of her deceased husband, or with any object associated with the husband, regardless of
whether she is in a fit state of mind or is suffering from intoxication, or any other cause
impeding her free will.

 Convincing a widow or woman that the act of Sati will bring spiritual advantage to her or
her departed spouse or relative, or to the family’s overall well-being.

 Encouraging a widow or woman to stick to her decision to commit Sati, thus inciting her

to do so.

 Engaging in any procession in conjunction with the commission of Sati, or assisting the

widow or woman in her choice to commit Sati by transporting her to the cremation or
burial cemetery with the body of her departed spouse or relative.

 Being present at the location where Sati is committed to such a commission or any

ceremony associated with it as an active participant.

 Hindering or impeding the widow or woman from escaping being burned alive or buried

alive.

11. 31A of the Narcotic Drugs and Psychotropic Substances Act,1985 – Drug trafficking in
cases of repeated offences: Regardless of Section 31, if any person who has been
sentenced for the commission of, or attempt to carry out, or abetment of, or criminal
scheme to carry out, any of the offences culpable under Section 27 of the NDPS Act,
including offences involving the business amount of any opiate tranquiliser or
psychotropic substance, is indicted in this manner for the commission of, or attempt to
carry out, or abetment of, or criminal scheme to carry out;

 Any taking part in the production, manufacture, ownership, transportation, importation

into India, exportation from India, or transhipment of opiates or psychotropic
substances.

 Any exercise specified under the said Article, that is financed, legally or by implication,
shall be punishable with death.
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DEATH PENALTY: THE INTERNATIONAL FRAMEWORK

1. Despite the fact that the death penalty was still in practice in the majority of countries in
the early 1960s, the drafters of the International Covenant on Civil and Political Rights
(ICCPR) have already begun efforts to have it abolished in international law.

2. Although Article 6 of the ICCPR allows for the use of the death penalty in restricted
circumstances, it also states that nothing in this Article shall be invoked to delay or
hinder any State Party to the present Covenant from abolishing capital punishment.

3. The UN Economic and Social Council enacted Safeguards in 1984, ensuring that persons
facing the death penalty have their rights protected.

4. The ICCPR’s Second Optional Protocol aims to abolish the death penalty.

5. The UN General Assembly ratified the Second Optional Protocol to the ICCPR in 1989,
33 years after the adoption of the Covenant itself, giving abolition a powerful fresh
boost. Members of the Protocol’s signatories pledged not to execute anyone within their
domains.

6. Resolutions of the United Nations General Assembly: The General Assembly urged
states to observe international standards that protect the rights of persons facing the
death sentence in a series of resolutions enacted in 2007, 2008, 2010, 2012, 2014, 2016,
and 2018, and to gradually reduce the number of offences punishable by death.

ARGUMENTS AGAINST THE ABOLITION OF DEATH PENALTY

Prevention Of Future Crimes

To begin with, the death sentence will prevent future offences. Future crimes may be
discouraged by imposing the worst punishment for the most terrible of offences. This
has a profound effect on human psychology. When a person knows he is likely to be
severely penalised for specific conduct, and the cost of that behaviour much surpasses
the reward, it is self-evident that he will not commit that act.

Ensuring Justice

Second, the death penalty ensures that justice is served. The Preamble to the Indian
Constitution aims to achieve, among other things, justice for all Indian citizens. The
 P a g e | 18

ways by which such justice can be achieved are crucial. Isn’t it only just that a person
who has committed the most terrible of crimes, who poses a threat to society as a whole,
who has no repentance, no ounce of humanity left in them, be sentenced to death? What
rights are these offenders supposed to have, according to human rights advocates? What
about the citizens’ trust in the justice system to ensure that a person is punished
proportionately to the offence that he or she has committed? These questions clearly
establish a foundation from which the elimination of the death penalty is viewed with
severe scepticism.

Judicial Reasoning

Third, the death penalty is not imposed arbitrarily. The death sentence in India is not
imposed on the basis of no evidence or without any logic or reasoning. To begin with,
as previously indicated, capital punishment is only applied in the rarest of
circumstances. Even if the death sentence is carried out, the convict has the right to
make a mercy petition, or the death sentence may be modified to life imprisonment
owing to undue delay. The executive may launch a separate investigation and request
new evidence after receiving the mercy petition. If new material is revealed, that is,
information that is not included in the judicial record of the case, the executive may
approve the mercy petition and reduce the convict’s death sentence to life
imprisonment.

Furthermore, there are precise objective criteria, established by precedents, which must
be met in order for a death sentence to be commuted to life imprisonment.

BACHAN SINGH V. STATE OF PUNJAB (1980)

It was argued during the hearing of Bachan Singh’s case that the following conditions
may be used as parameters for finding aggravating circumstances that would support the
application of the death penalty:

 if the murder happened after preplanning and involves extreme inhumanity;

 if the murder involves extraordinary depravity; or

 if the murder of army men or any public servant was committed—

1. while such person was on duty; or

 P a g e | 19

2. as a result of anything done or attempted to be done by such member in the lawful

discharge of his duty, if he was such member or public servant, as the case may be, at
the time of the murder, or had ceased to be such member of a public servant; or

 If the victim was a person who had acted in the legitimate exercise of his duties
under Section 43 of the Code of Criminal Procedure 1973, or who had provided
assistance to a Magistrate or a police officer who had demanded or required his support
under Sections 37 and 129 of the same Code.
It was also recommended that the court, in exercising its discretion, examine the
following factors as mitigating factors for granting the lower punishment of life
imprisonment.

1. The offence was committed when the accused was suffering from severe mental or
emotional instability;

2. The age of the accused, If the accused is young or old, he shall not be sentenced to death;

3. The likelihood that the accused would not commit criminal acts of violence that would
pose a continuing threat to society;

4. The likelihood that the accused can be reformed;

5. That the accused believed he was morally permissible in committing the offence in the
light of facts and circumstances of each case;

6. That the accused acted under the duress of another person’s superiority;

7. That the accused’s condition revealed that he was mentally defective and that the said
defect impaired his capacity to appreciate the criminality of his conduct.

 In the case of Machhi Singh and Others v. the State Of Punjab (1983), the Supreme

Court established certain standards for the imposition of the death penalty. The
following were the guidelines:

1. Except in the most serious circumstances of extreme culpability, the death sentence is not
required.

2. Before deciding on the death penalty, the circumstances of the ‘offender’, as well as the
circumstances of the ‘crime,’ must be considered.

3. The death penalty is an exception rather than the norm. To put it another way, a death
sentence must be imposed only when life imprisonment appears to be an insufficient
 P a g e | 20

punishment in light of the relevant circumstances of the crime, and only if the option of
imposing a life sentence cannot be exercised conscientiously in light of the nature and
circumstances of the crime and all relevant circumstances.

4. Before exercising the option, a balance sheet of aggravating and mitigating circumstances
must be drawn out, with the mitigating factors given full weightage and a just balance
created between the aggravating and mitigating circumstances.
However, in order for a court to apply these guidelines, it must first ask and answer the
following two questions:

1. Is there something unusual about the crime that makes a life sentence insufficient and
necessitates the imposition of a death sentence?

2. Are the circumstances of the crime such that there is no alternative but to impose a death
sentence even after giving maximum weight to the mitigating circumstances that speak
in the offender’s favour?
And the court must evaluate if the case fits into the category of “rarest of rare case” and
so warrants the death penalty, based on the circumstances of the case and the responses
received to the questions given.

Human Rights

The possibility of a life-sentenced prisoner escaping is not unknown in Indian prison

history. In the context of this situation, the question of society’s overall safety arises.
Under the guise of human rights, a convicted criminal’s potential threat to society
cannot be avoided. Furthermore, it is absurd to grant “human” rights to criminals who
have lost any sense of humanity. This is especially true for offenders who are unable to
be reformed. These offenders do not have a right to life because of the horrible acts they
have done, which put other people in danger.

Question of morality

While abolitionists argue that it is unethical for the state to take a person’s life, the same
argument may be made for the opposite. It implies that the presence of capital penalty
implies that the state accords individual dignity to prisoners by considering them as
individuals capable of choosing their own paths and accepting full responsibility for
their conduct. If capital punishment is abolished on the grounds of immorality, it is
 P a g e | 21

equivalent to treating criminals as animals who lack morality and must be absolved for
even the most horrible crimes they have committed.

ARGUMENTS IN FAVOR OF THE ABOLITION OF DEATH PENALTY

Execution Of Innocent People

Innocent individuals have been executed in the past and will continue to be executed in
the future. No matter how advanced a legal system is, it will always be vulnerable to
human errors. Between 2000 and 2014, the Supreme Court and high courts acquitted a
fifth of individuals sentenced to death by trial courts. That’s 443 individuals who were
sentenced to death but were later determined to be innocent of all accusations.

Arbitrariness

The possibility of the death penalty being applied arbitrarily cannot be ruled out. The
death sentence is frequently used disproportionately on the poor, minorities, and
members of racial, ethnic, political, and religious communities. According to the
National Law University Delhi’s Death Penalty India Report 2016 (DPIR),
approximately 75% of all convicts sentenced to death in India are from socio-
economically underprivileged categories, such as Dalits, OBCs, and religious
minorities.

Inhumane

Human rights and dignity are incompatible with the death penalty. The death sentence is
a violation of the right to life, which is the most fundamental of all human rights. It also
infringes on the right not to be tortured or subjected to other brutal or degrading
treatment or punishment. Furthermore, the death penalty degrades the basic dignity of
every human being.

Deterrence

The death sentence does not have the deterrent effect that its supporters claim it does.
“There is no solid proof of the death penalty’s deterrent value,” the United Nations
General Assembly has stated (UNGA Resolution 65/206). It’s worth noting that the
 P a g e | 22

effectiveness of the death penalty in preventing crime is being seriously questioned by a

growing number of law enforcement experts in many retentionist states.

Public Opinion

The public’s support for the death penalty does not necessarily imply that the state has
the authority to take a human being’s life. There are unmistakable historical precedents
where majorities of people supported terrible human rights atrocities, only to be roundly
denounced later. Leading people and politicians have a responsibility to emphasise the
incompatibility of capital punishment with human rights and dignity. It is important to
emphasise that popular support for the death sentence is intrinsically tied to people’s
desire to be free of crime. There are, however, more effective methods for preventing
crime.

THE CURRENT SCENARIO IN INDIA

Validity Of Death Penalty In India

There are a total of 404 people on death row as of December 31, 2020, with Uttar
Pradesh having the highest, with 59, Maharashtra having 45, and Madhya Pradesh
having 37. Andhra Pradesh has the fewest death row inmates, with only two. Article 21
of the Indian Constitution guarantees everyone’s fundamental right to life and liberty. It
goes on to say that no one’s life or personal liberty can be taken away from them unless
they follow a legal procedure. This has been interpreted legally to suggest that if a
procedure is fair and valid, the state can deprive a person of his life by enacting a law.
While the central government has stated that the death penalty will remain in place as a
deterrent and for those who pose a threat to society, the Supreme Court has also
affirmed the constitutional legality of capital punishment in “rarest of rare”
circumstances. The Supreme Court upheld the constitutional legitimacy of the death
penalty in three cases: Jagmohan Singh v. State of Uttar Pradesh (1973), Rajendra
Prasad v. State of Uttar Pradesh (1979), and Bachan Singh v. State of Punjab (1980). It
stated that a convict can be sentenced to death if the capital penalty is established in the
law and the method is fair, just, and reasonable. This will only happen in the “rarest of
rare” instances, and judges should give “exceptional reasons” when sentencing someone
to death.
 P a g e | 23

Rarest Of Rare

The criteria of what constitutes the “rarest of rare” were put down by the Supreme Court
in Bachan Singh v. State of Punjab, a landmark decision (1980). The Supreme Court
established some broad illustrative criteria, stating that it should be issued only when
the alternative of a life sentence is “unquestionably foreclosed.” To reach this
conclusion, the court was given complete discretion. The Supreme Court, on the other
hand, established the notion of balancing, aggravating and mitigating circumstances. A
balance sheet of aggravating and mitigating circumstances in a specific case must be
constructed to determine whether justice will be served if a sentence other than death is
imposed.

The Supreme Court ruled that two key questions may be asked and answered. First, is
there something unusual about the crime that makes a life sentence insufficient and
necessitates the death penalty? Second, are the circumstances of the crime such that
there is no other option than to inflict the death penalty, even after giving the most
weight to the mitigating circumstances that speak in the offenders’ favour.

Mercy Petitions

The Indian government’s Ministry of Home Affairs has prepared a “Procedure

Regarding Petitions for Mercy in Death Sentence Cases” to help state governments and
prison officials deal with mercy petitions presented by death row convicts. In the case
of Shatrughan Chauhan v. Union of India (1947), the Supreme Court stated that before
deciding on mercy pleas, the Home Ministry considers the following factors:

 The accused’s personality (such as age, sex, or mental deficiency) or the circumstances of

the case (such as provocation or similar justification);

 Cases in which the Appellate Court expressed doubts about the reliability of evidence but

still decided on conviction;

 Cases in which it is alleged that new evidence is obtainable primarily to determine

whether a new investigation is warranted;

 Cases in which the High Court reversed acquittal.

 Is there a difference of opinion among the High Court Judges that requires a referral to a
larger bench?
 P a g e | 24

 Evidence consideration in determining responsibility in a gang murder case.

 Prolonged inquiry and trials, etc.

When the actual actions of the Ministry of Home Affairs (on whose recommendations
mercy petitions are considered) are examined, it is clear that these standards were not
followed in many cases. In a number of situations, Writ Courts have looked into how
the executive has handled mercy requests. In reality, the Supreme Court considered 11
writ petitions contesting the executive’s denial of the mercy petition as part of the
Shatrughan Chauhan case.

Global Perspective

In 2007, the United Nations proposed to all of its member countries that the death
penalty be abolished for all crimes. India, as well as a number of other countries,
including the United States, have rejected this plan.

In 2003, the World Coalition against the Death Penalty declared October 10th to be
International Day against the Death Penalty. The European Union, the United Nations,
and Amnesty International are among the non-governmental and international
organisations that support it. Each year, it focuses on a different subject, highlighting
concerns such as living circumstances, mental health, poverty, and narcotics, all of
which are related to the death penalty.

The death penalty is one of the most controversial issues in the world, and it is a topic
that is constantly being debated. Over 70% of the world’s countries have abolished
capital punishment in law or practice, according to the Death Penalty Information
Center. According to Amnesty International, by the year 2020, 108 countries will have
abolished the death sentence in law for all crimes, and 144 countries will have abolished
it in law or practice.

In the last ten years, 28 nations have practically abolished the death penalty by not
executing anyone; 55 countries still have the death penalty for ordinary crimes.

According to Amnesty International, 1,477 people have been sentenced to death in 54

nations throughout the world. In addition, 483 executions were recorded in 18 nations.
 P a g e | 25

China, Iran, Saudi Arabia, Iraq, and Egypt were the countries with the most executions.
It is crucial to note, however, that secrecy prevents proper reporting of executions, and
hundreds more could be carried out each year.

The following are some of the 55 countries that still use the death penalty: Bangladesh,
China, Egypt, Ethiopia, India, Indonesia, Iran, Japan, Nigeria, Saudi Arabia, South
Korea, Sri Lanka, Taiwan, and the United State.

Alternative Punishments

As a response to challenges presented in death cases, the Supreme Court has enshrined
the punishment of “full life” or a life sentence of a set number of years.

In Swamy Shraddhanand v. the State of Karnataka (2008), the Supreme Court, in a

three-judge bench ruling, provided the groundwork for this developing punishment
alternative as follows:

 The situation can be viewed from a somewhat different perspective. There are two

dimensions to the question of sentence. A sentence can be excessive and unnecessarily

severe, or it can be woefully lacking. When an appellant comes to this Court with a
death sentence imposed by the trial court and confirmed by the High court, the Court
may determine, as it did in this instance, that the case falls just short of the rarest of the
rare, and may be hesitant in upholding the death sentence.

 However, given the nature of the crime, the Court may strongly believe that a sentence of

life in prison with remission, which generally works out to a term of 14 years, would be
disproportionate.

 Furthermore, the formalisation of a distinctive form of sentencing, though for a very

small number of instances, will have the significant benefit of having the death penalty
on the law book but using it as infrequently as possible, in the rarest of cases.

The observations in the Swamy Shraddhanand case have been followed by the Court in
a number of cases, including Haru Ghosh v. State of West Bengal (2009), State of
Uttar Pradesh v. Sanjay Kumar (2012), Sebastian v. State of Kerala (2015),
and Gurvail Singh v. State of Punjab (2013), where full life or a fixed number of years
has been awarded instead of the death penalty.
 P a g e | 26

OTHER ALTERNATIVES INCLUDE

Life imprisonment without parole

Although capital punishment is the toughest form of punishment, a criminal must still
be punished for the offence he commits. One of the options may be life imprisonment
without parole, which means the offender would be imprisoned for the rest of his life
without the possibility of parole, which would allow them to leave the prison only after
serving a portion of their term.

Prisoners can also be sentenced to an indeterminate length of imprisonment, in which

the prisoner is condemned to prison for a set period of time but is only guaranteed
release after a review.

Usage Of Resources Towards Rehabilitation

Another option is to move resources away from the death penalty and toward
rehabilitation programmes or support for both victims and convicts.

Occupation Without Remuneration

As death penalties are only used in the most extreme circumstances involving the most
heinous offences, the punishment should be served equally but not lead to someone’s
death. In such instances, the inmates could be hired for low-wage occupations,
increasing productivity while also helping the economy in some way.

Cleaning roadways, building sites, secretarial work, and other such duties should not be
paid. This might be beneficial to both the economy and the government because they
would receive free labour, achieving two goals: making criminals face harsher penalties
and saving money to invest in health or education sectors.
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MOST HORRIFYING DEATH ROW CASES

1. VINAY SHARMA V. UNION OF INDIA (2020)

The Vinay Sharma v. the Union of India (2020) case, also famously known as the
Nirbhaya gang-rape case, had shocked the conscience of the whole country. The
unfortunate and brutal incident occurred in the chilled weather of Delhi on a bus. The
girl was brutally raped by six accused which also led to the death of the girl. An iron rod
was also inserted into her private parts and she was thrown naked to the road. All the
physical and mental torture led to her death. When the case was brought before the
court, one of the accused committed suicide in jail and one of the accused was a
juvenile so he was not sentenced to death. But the other four accused were sentenced to
death and were also hanged in the year 2020.

This judgement was concluded after analysing the aggravating and mitigating factors.
The aggravating factors outweighed the mitigating factors if any. The death sentence
was imposed because life imprisonment seemed inadequate considering the relevant
circumstances of the crime and the inhuman torture committed on the victim which
brought about her death.

2. SHABNAM V. UNION OF INDIA (2015)

In Shabnam v. the Union of India, (2015) the Court awarded a death sentence to the
woman and the same was hanged for the first time in the Indian criminal justice system.
In this case, Shabnam with her lover killed the members of her family. This incident
happened in the year 2008. Shabnam killed her family members because they weren’t
allowing her to marry her lover.

Therefore, she planned a brutal murder for her family which amounted to be the
aggravating factor. She didn’t even leave her young nephew (who was only 10 months
old) and also led him to drape with blood. She also submitted mercy to the president
which got rejected and she is mostly to be hanged by next year.
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3. HYDERABAD VETERINARIAN CASE (2019)

In the Hyderabad veterinarian case (2019), the female doctor was all alone in the
scooter which she parked to the Shamdabad plaza and from where she took the taxi to
the office where she was going to work. In the meanwhile, four accused were
monitoring her and which led them to puncture her scooter in her absence. When she
was back from her work she saw that her scooter was punctured. And in the meanwhile,
these four accused came and started forcing her and raping, burning her body. The case
was a clear cut case for awarding death sentence, but here the police encountered the
accused leading to questions about our Indian criminal justice system.

4. SIDHARTHA VASHISHT @ MANU SHARMA V. STATE (NCT OF DELHI)

(2010)

Sidhartha Vashisht @ Manu Sharma v. the State (NCT Of Delhi) (2010), also known as
the Jessica Lal case, was one of the horrifying death cases which led the society to know
that sometimes money can buy anything but cannot buy justice. In this case, the girl was
shot to death when she refused to serve alcohol to one of the accused. Her sister had to
run to all the courts for justice for her sister and finally, through a media trial, she led to
having the suo motu case taken to the High Court. In this case, the accused manipulated
the prime eye witness to become a hostile witness which led the court to award him the
punishment of life imprisonment. This judgement was passed after seeing the balance
between aggravating and mitigating factors.

5. SURENDRA KOLI V. STATE OF UP (2011)

Surendra Koli v. the State Of U.P. (2011), also famously known as Nithari Kaand,
which happened in the year 2007 was one of the shocking updates for the Indians. In
this case, the bodies of the deceased children and adults were found at the house of
Mohinder Singh Pandher in the village of Noida called Nithari. When the case was
studied in the depth it was found that the found bodies of the girls had been raped and
killed and eaten by him. He had committed such a crime to fifteen girls and was
awarded the death penalty. He was covered under the aggravating factors. But because
of certain provisions of plea bargaining, he was given life imprisonment.
 P a g e | 29

CAPITAL OFFENCES IN IPC

Sr. Section Description

No Number

1. Section 121 Treason, for waging war

against the Government of
India

2. Section 132 Abetment of mutiny actually

committed

3. Section 194 Perjury resulting in the

conviction and death of an
innocent person

4. Section 195A Threatening or inducing any

person to give false evidence
resulting in the conviction and
death of an innocent person

5. Section 302 Murder

6. Section 305 Abetment of a suicide by a

minor, insane person or
intoxicated person

7. Section 307 Attempted murder by a serving

(2) life convict
 P a g e | 30

8. Section 364A Kidnapping for ransom

9. Section 376A Rape and injury which causes

death or leaves the woman in
a persistent vegetative state

10. Section 376E Certain repeat offenders in the

context of rape

11. Section 396 Dacoity with murder

CAPITAL OFFENCES IN OTHER LAWS

1. Sections 34, 37, and 38(1) - The Air Force Act, 1950
2. Section 3(1)(i) - The Andhra Pradesh Control of Organised Crime
Act, 2001
3. Section 27(3)- The Arms Act, 1959 (repealed)
4. Sections 34, 37, and 38(1)- The Army Act, 1950
5. Sections 21, 24, 25(1)(a), and 55- The Assam Rifles Act, 2006
6. Section 65A (2) - The Bombay Prohibition (Gujarat Amendment)
Act, 2009
7. Sections 14, 17, 18(1)(a), and 46- The Border Security Force Act,
1968
8. Sections 17 and 49- The Coast Guard Act, 1978
9. Section 4(1)- The Commission of Sati (Prevention) Act, 1987
10. Section 5- The Defence of India Act, 1971
12. Section 3- The Geneva Conventions Act, 1960
13. Section 3 (b)- The Explosive Substances Act, 1908
 P a g e | 31

14. Sections 16, 19, 20(1)(a), and 49- The Indo-Tibetan Border Police Force Act, 1992
a. 14 Section 3(1)(i)- The Karnataka Control of Organised Crime Act, 2000
15. Section 3(1)(i)- The Maharashtra Control of Organised Crime Act, 1999
16. Section 31A(1)- The Narcotics Drugs and Psychotropic Substances Act, 1985
17. Sections 34, 35, 36, 37, 38, 39, 43, 44, 49(2)(a), 56(2), and 59- The Navy Act, 1957
18. Section 15(4)- The Petroleum and Minerals Pipelines (Acquisition of rights of user in
land) Act, 1962
19. Sections 16, 19, 20(1)(a), and 49- The Sashastra Seema Bal Act, 2007
20. Section 3(2)(i)- The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989
21. Section 3(1)(i)- The Suppression of Unlawful Acts against Safety of Maritime Navigation
and Fixed Platforms on Continental Shelf Act, 2002;
22. Sections 10(b)(i) and Section 16(1)(a)- The Unlawful Activities Prevention Act, 1967-

CAPITAL OFFENCE UNDER BNS

Punishment for Murder

Sectio
n 103

Waging War against Government

Sectio of any foreign State at peace with
n 153 Government of India.

Waging, or attempting to wage

Sectio war, or abetting waging of war
n 147 against Government of India.

Punishment for rape.

Sectio
n 64
 P a g e | 32

CRIMES PUNISHABLE BY THE DEATH PENALTY

The foundation of Indian criminal law is a combination of reformist and dissuasive

theories of punishment. Penalties must be applied to deter offenders, but the offender
must also be given the opportunity to reform. When the death penalty is imposed, the
courts must provide detailed justification for their decision. Several legislative acts
include the death penalty as a punishment, which include:

The Indian Penal Code, 1860

The Indian Penal Code contains several crimes that include the death penalty. They are
discussed as follows:

1. One of the crimes that have been connected to the death penalty is waging war against
India or attempting to do so. Waging war against a country is a crime that is specifically
defined in Section 121 of the IPC. Anyone who attempts to wage war against India or is
successful in waging war may be sentenced to death.

2. The death penalty has also been associated with the abatement of mutiny. Abatement of
armed rebellion by an officer or member of the army, navy, or air force is specified
in Section 132 of the I.P.C and accordingly, anyone who abets in the commission of a
mutiny by an officer, soldier, sailor, or pilot in the army, navy, or air force of the
Government of India, so that mutiny will be committed as a result of that complicity,
can be punished by death.

3. Section 194 of the IPC has been added to the list of crimes punishable by
death. According to Section 194, fabricating evidence is punishable by the death
penalty if it is done to obtain a capital conviction for a crime. A person who commits
such a crime can face the death penalty.

4. Section 302 of the IPC imposes the death penalty for a person who commits murder.

5. Assisting or supporting a minor’s suicide has been associated with the death
penalty. Section 305 of the IPC deals with punishment for assisting or supporting a
person under the age of 18 or an intellectually disabled person in committing suicide.
As a result, anyone who commits this crime can face the death penalty.

6. Kidnapping for ransom or other purposes is a serious offence punishable by death.

Kidnapping a person with the intent to cause them harm or death is specified
 P a g e | 33

under Section 364A of IPC. Any person who commits this crime can face the death
penalty.

7. The following offences were added to the IPC by the Criminal Law (Amendment) Act of
2013 for which a court may impose the death penalty:

 Section 376A specifies the death penalty for rape that results in death or a permanent

vegetative state of the victim.

 Under Section 376E, repeat rape offenders may face the death penalty.

8. Section 396 also provides for the death penalty in cases of dacoity with murder.

The Commission of Sati (Prevention) Act, 1987

Any person involved in the commission of Sati directly or indirectly is subject to the
death penalty under The Commission of Sati (Prevention) Act, 1987.

Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985

Based on previous convictions, Section 31A of the NDPS Act has introduced the death
penalty for providing financial support or taking part in the production or sale of
narcotics or psychoactive substances in a predetermined amount (e.g., opium 10 kg,
cocaine 500 grammes).

The Scheduled Castes And Scheduled Tribes (Prevention of Atrocities) Act, 1989

Forging evidence that leads to the conviction and execution of an innocent member of a
scheduled caste or tribe is punishable by death under the Act.

Army Act, 1950; Air Force Act, 1950 and Navy Act, 1957

Various offences committed by members of the military forces under military laws like
the Army Act, 1950; Air Force Act, 1950, and Navy Act, 1957, may also be punishable
by death.
 P a g e | 34

CATEGORY OF OFFENDERS EXEMPTED FROM CAPITAL PUNISHMENT

Minors

According to Indian laws, a person who committed a crime while still a minor, that is,
before the age of 18, cannot be executed. The lawmakers decided to include minors in
the group of offenders exempted from the death penalty because they thought that
anyone who hasn’t reached adulthood has room for improvement and might be able to
learn from his mistakes by being given the right environment and education. In addition,
our laws provide a separate law known as the Juvenile Justice Act (2015), that is only
implemented in situations involving minors. This is beneficial because it gives criminals
a chance to improve.

Pregnant Woman

Pregnant women were added to the list of criminals who are excluded from the death
penalty. According to Section 416 of the CrPC, if the high court finds that a woman
who has been awarded the death sentence is pregnant then such sentence can be
postponed or commuted to life imprisonment. The reasoning behind this is that hanging
a pregnant woman kills both the pregnant woman and the child in her womb. The
unborn child in the woman’s womb has not committed any wrongdoing and does not
deserve to die for what the woman did. Pregnant women may thus fall under the
category of criminals who are excluded from the death penalty.

Intellectually Disabled

According to the law, anyone who is intellectually disabled or challenged may fall
under the category of offenders who are exempted from the death penalty. If a person
committing a serious crime is unable to comprehend the nature and consequences of
their actions, this is sometimes referred to as having an intellectual disability. Because
of their intellectual disability, someone with a criminal record might not be aware of the
specifics of their crime. Consequently, the intellectually disabled were added to the list
of criminals who were exempted from the death penalty by lawmakers.
 P a g e | 35

PROCEDURE AFTER THE IMPOSITION OF THE DEATH PENALTY

Confirmation By The High Court

The session’s court shall present the case proceeds to the high court of the relevant state
for confirmation of the sentence after the sentence is imposed, in accordance
with Section 366 of the CrPC. The sentence-passing court is required to transfer the
convicted person to jail custody with a warrant until the High Court confirms the
sentence.

ENQUIRY AND ADDITIONAL EVIDENCE

According to Section 367 of the CrPC, the high court may order a further investigation
of the incident or the collection of additional evidence at any point relevant to the
convicted person’s guilt or innocence.

High Court’s Power To Approve Sentences Or Annul Convictions

According to Section 368 of CrPC, the high court has the power to affirm a conviction,
impose any other sentence the court deems appropriate, or amend the charges and order
a new trial. The court cannot confirm the sentence until the time allotted for filing an
appeal has expired.

Confirmation Of The New Sentence

According to Section 369 of the CrPC, any order or sentence that is submitted to the
High Court for confirmation, whether it is a new sentence or one that has already been
passed by the High Court, must be approved and signed by at least two judges.
 P a g e | 36

THE CAPITAL PUNISHMENT'S CONSTITUTIONAL VALIDITY

“Article 21 of the Indian Constitution” states that “No person deprived of his life or
personal liberty except according to procedure established by law”. According is to
definition of Right to life in Article 21 itself it has been legally construed to mean if
there is a procedure, which is fair, valid and unbiased, then the state by constructing a
law can deprive a person of his life.

The constitutionality of the death sentence has been contested several times in various
ways before the Indian Supreme Court. India is one of the few countries in the world
that has neither completely abolished the death penalty nor enacted laws that would cast
doubt on the applicability or legitimacy of the death penalty or capital punishment. In
India, the notion of the rarest of rarest punishments is applied.

The ruling and decree were issued prior to the 1973 re-enactment of the Criminal
Procedure Code, which declared the death penalty to be an unusual punishment.
Because the death penalty violated “Articles 19 and 21 of the Indian Constitution”, its
legitimacy was contested in this instance.

According to the Supreme Court, "the procedure established by law is used to choose
the death sentence." Furthermore, it was established throughout the case hearing that the
Supreme Court chooses between a life sentence and the death penalty based on several
facts, the nature of the offense, the notion of the wrongdoing, and the circumstances that
were brought up in front of the Court during the trial. The Supreme Court's opinions
have evolved since it delivered the order and verdict on heinous crimes, which poses a
number of issues in relation to earlier rulings.

“MANEKA GANDHI V/S UNION OF INDIA” (1978),

Since the procedure involves taking away someone's fearful existence, it must be just,
rational, and impartial. It suggests that the State may use laws to limit or eliminate a
person's right to life, so long as a fair and legal process is in place. But only the most
egregious crimes are subject to the death sentence; other offenses are not punished in
this way.

Prior to the Passports Act 1967, there was no legislation governing the passport required
of someone wishing to relocate overseas from their country of origin. Additionally, the
executives' decision to provide the passport was completely voluntary.
 P a g e | 37

Before the Act of 1967, there was no legislation governing the passport needed for
anyone wishing to relocate overseas from their home country. Additionally, the
executives issued the passports in an aimless and unassailable manner, using complete
discretion.

Cases after “Maneka Gandhi V/s Union of India”

The ruling rendered by the Supreme Court in the case of “Maneka Gandhi v. Union of
India” established a new standard for the interpretation of basic rights and
revolutionized the way that individual rights are shaped and comprehended, particularly
the right to life under Article 21. Many more instances followed, expanding its scope
and offering a comprehensive comprehension of the fundamental rights guaranteed by
the Indian constitution. Several of these instances consist of:

a. “Sunil Batra v. Delhi Administration” (1979)

The Indian Supreme Court brought attention to the necessity of appropriate jail
conditions and the legitimacy of the "death penalty" as an extreme kind of punishment
through this decision. The Hon’ble Supreme Court declared that inmates are entitled to
the protection of their constitutional rights and do not lack access to their basic liberties.
By this standard, prisoners also have the right to life and dignity. The court also
declared that the death sentence may only be used following a rigorous investigation
and after following tight rules created with the fundamentals of human dignity and life
in mind. These rights cannot be taken away from anybody, not even those who have
been found guilty

b. Olga Tellis v. Bombay Municipal Corporation (1985)

The main contention when this case was brought before the court was that the state had
violated the fundamental right to livelihood by evicting pavement dwellers and hawkers
in Mumbai. The court held that as the right to livelihood is one of the necessities for
maintaining life, it must be included in the definition of the right to life as set forth in
Article 21. As a result, it is against their basic rights to expel pavement dwellers without
offering them a substitute place to live or work. Like “Maneka Gandhi v. Union of
India”, this case likewise emphasized the significance of the golden triangle of
fundamental rights.
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AN EXAMINATION OF THE 1978 MANEKA GANDHI V. UNION OF INDIA

RULING CRITICALLY

The decision to overturn the result in “A.K. Gopalan” was welcomed across the
country, and since it expanded the definition of basic rights, this case has become
significant in history. Judges sharply disapproved of the respondent's argument that a
statute remains authentic and enforceable until it is abolished. In addition, the court
established a standard for future generations to pursue their fundamental rights—
whether or not they are specifically stated in Part III of the constitution—by liberally
interpreting the Maneka Gandhi case.

“As part of the Right to Life & Personal Liberty, the courts have successfully
interpreted various cases to establish socio-economic and cultural rights under Article
21. These rights include the Right to Clean Air, Water, Freedom from Noise Pollution,
Right to a Speedy Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical
Care, and Right to a Clean Environment”.

The ruling gave rise to new avenues for judicial activism, and judges began to value
public interest lawsuits and use liberal interpretation where it was necessary to uphold
the rule of law.

“JAGMOHAN SINGH V/S STATE OF UTTAR PRADESH” (1973)

The death penalty was initially contested on the grounds that it infringed upon an
individual's basic freedom—the right to life—as guaranteed by Article 21 of the Indian
Constitution. In its decision, the Apex Court's five-judge panel declared that the death
sentence is lawful under the constitution and does not contravene any of its articles.
Additionally, it was discovered that all relevant information and the characteristics of
the offense as they were demonstrated throughout the trial were taken into consideration
while deciding between the death penalty and life in prison.

This was the first case dealing with the question of constitutional validity of capital
punishment in India. The counsel for the appellant, in this case, put forward three
arguments which invalidate section 302 of the IPC and judicial approach was carried on
and where the council for the appellant put forth the argument that capital punishment
takes away all the rights guaranteed under “Article 19 (1) of the Constitution”

This was the first case in India where the constitutional legitimacy of the death penalty
was contested. In this case, the appellant's counsel presented three arguments that
invalidate “section 302 of the IPC.” The appeals council also argued that the death
 P a g e | 39

penalty violates all of the rights guaranteed by “Article 19 (1) of the Constitution,” and
the court upheld their arguments. The second point put out was that there was no set
criteria or policy that guided the discretion used to determine which cases should result
in the death penalty.

Thirdly, it was claimed that “Article 14 of the constitution,” which protects equality
before the law, was broken by this unrestrained and unguided discretion. It was
mentioned that there were several instances in which two people were found guilty of a
murder and one received the death penalty while the other received life in prison.
Additionally, it was argued that the death sentence contradicts the Constitution's articles
19 and 21 in addition to article 14.

The reason the method is unclear in this situation is that, once the accused is found
guilty, there is no legal process in place to decide whether the death penalty or some
other less severe punishment is suitable in that specific instance.

However, the Supreme Court dismissed this argument and stated that "in important
cases like murder the court always gives a chance to the accused to address the court
on the question of death penalty”. The Court also held “deprivation of life is
constitutionally permissible provided it is done according to procedure established by
Law. The death sentence per se is not unreasonable or not against public interest.
The policy of the Law in giving a very wide discretion in the matter of punishment to
the Judges has its origin in the impossibility of laying down standards. Any attempt to
lay down standards as to why in one case there should be more punishment and in the
other less punishment would be an impossible task. What is true with regard to
punishment imposed for other offences of the Code is equally true in the case of murder
punishable under “section 302 I.P.C”. No formula is possible that would provide a
reasonable criterion for infinite variety of circumstances that may affect the gravity of
the crime of murder.

The impossibility of laying down standards is at the very core of the criminal law as
administered in India which invests the Judges with a very wide discretion in the matter
of fixing the degree of punishment”

RAJENDRA PRASAD V/S STATE OF UTTAR PRADESH (1979)

The Indian Constitution's humanistic imperative, which is crucial to the Penal Code's
punitive approach, has not received much attention from the courts in this area of "life
or death" at the hands of the law, “according to Krishna Iyer, J. Our judgment primarily
 P a g e | 40

focuses on this striking human rights deficit. Section 302 of the Indian Penal Code and
Section 354(3) of the Code of Criminal Procedure must be read in the context of the
human rights of Parts III and IV, as further elucidated by the Preamble to the
Constitution. This is case law within the confines of the Penal Code, which is
impregnated by the Constitution”.

Furthermore, he maintained that until it could be demonstrated that the offender posed a
threat to society, the death penalty would not be appropriate. Furthermore, it was
decided that granting the judge authority under section 354(3) of the Cr.P.C. to choose
between a life sentence and the death penalty for "special reasons" would violate
Article 14, which forbids arbitrariness.

He begged that the death penalty be abolished and kept exclusively as a form of
punishment for "white collar offences". It is argued that the minority ruling is accurate
since, following the I.P.C. amendment and the ruling in Jag Mohan Singh's case, life in
prison is now the norm rather than the death penalty. Judges, not the executive branch,
have the authority to choose between the two penalties.

“BACCHAN SINGH V/S STATE OF PUNJAB” (1980)

Frequently referred to as the "Rarest of Rare Doctrine" ruling, which likewise required
the death penalty under specific conditions. The Supreme Court maintained the
legitimacy of and created a rule mandating that it be implemented only in the most
extreme circumstances by a majority of 4:1. The Supreme Court did not define or limit
the usage of the phrase "rarest of rare," despite the fact that it was decided that life in
prison is the norm and the death sentence is an exception.

In this case, Justice Bhagwati was the only one to dissagree, but the problem was that
his ruling was rendered just two full years after the verdict was rendered. Thus, a few of
his most important objections to the death sentence were never raised. Furthermore, he
felt that “Article 14”, which protects equality before the law, is plainly broken by this
very idea. Furthermore, it is against “Articles 19 and 21” since there is no established
procedure for when the state may take away someone's life or personal freedoms.

In addition to discussing the cruelty and irresponsibility associated with the death
sentence, Justice Bhagwati demonstrates via reason and statistical evidence why the
death penalty fails to achieve any of the three penological objectives.
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“DEENA DAYAL V/S UNION OF INDIA” (1983)

On the grounds that it is cruel, barbarous, and a violation of Article 21 to hang someone
by a rope. According to the Supreme Court's ruling, hanging is a legal and just form of
execution that complies with Article 21's requirements.

“MITHU V/S STATE OF PUNJAB” (1983)

It was determined that the death penalty under Section 303 IPC is unconstitutional
because it infringes on the safeguards enumerated in Article 14 and 21 of the
Constitution.

The case involved challenges to Section 303 which is applicable not only to murder
convicts charged for life imprisonment under Section 302 but also to convicts under 50
other offences that have life imprisonment as a form of punishment. Section 303 was
uniformly applicable to all the 51 offences under IPC which also includes offences like
sedition and forgery. The convicts under these offences were subjected to the mandatory
death penalty in case they commit a murder while undergoing imprisonment for life.

The court used the 'reasonable classification test' to check whether section 303 is in
consonance with Article 14. The questions it delves into were: Whether there is an
intelligible basis to differentiate between life convicts and non-life convicts who
commit murder? Whether these differentiations warrant making the death penalty
mandatory in the first case and optional in the latter? Is there any rational nexus
between such classification and the object of law?

It is important here to consider the opinion of the 42nd Law Commission related to
Section 303. According to it, this section was enacted keeping in view only one class of
cases, wherein a life convict commits a murder of a jail official. The State agrees with
this interpretation and argues the case using it. The Court states that in such cases the
classification does not have any nexus with the object of the law.

It gives examples where a life-convict inside the prison or outside on parole might kill
someone in grave and sudden provocation due to the severity of the situation. In such a
case even that life convict will be subjected to the mandatory death penalty due to the
application of Section 303.This clearly shows the over inclusive nature of Section 303.
The over inclusivity is a ground on which classification may fail the rational nexus test
as was acknowledged in the case of Navtej Singh Johar v. Union of India.
 P a g e | 42

JUDGEMENT’S AWARDING THE DEATH PENALTY

1. Shabnam V/s Union of India (2015)

The Court awarded a death sentence to the woman and the same was hanged for the first time
in the Indian criminal justice system. In this case, Shabnam with her lover killed the members
of her family. This incident happened in the year 2008. Shabnam killed her family members
because they weren’t allowing her to marry her lover. Therefore, she planned a brutal murder
for her family which amounted to be the aggravating factor. She didn’t even leave her young
nephew (who was only 10 months old) and also led him to drape with blood. She also
submitted mercy to the President which got rejected.

2. Hyderabad Veterinarian case (2019)

The female doctor was all alone in the scooter which she parked to the Shamdabad plaza and
from where she took the taxi to the office where she was going to work. In the meanwhile, four
accused were monitoring her and which led them to puncture her scooter in her absence. When
she was back from her work she saw her scooter was punctured. And in the meanwhile, these
four accused came and started forcing her and raping, burning her body. The case was a clear
cut case for awarding death sentence, but here the police encountered the accused leading to
questions about our Indian criminal Justice system.

CAPITAL PUNISHMENT IN INTERNATIONAL HUMAN RIGHTS TREATIES

The Death Penalty under International Law

While the death penalty is not prohibited by the International Covenant on Civil and Political Rights
(ICCPR) or any other virtually universal international treaty, there are a number of instruments in force
with fewer states parties that do abolish capital punishment. Similarly, international customary law
does not prohibit the death penalty at the current time, but custom is rapidly changing towards a
position in favour of worldwide abolition.

At the international level, the most important treaty provision relating to the death penalty is Article 6
of the ICCPR. At the time the ICCPR was drafted (1947-1966), just ten countries had abolished the
death penalty, but extensive debate nonetheless took place as to its status under the covenant.
 P a g e | 43

Article 6 of the ICCPR states:

1. Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed
only for the most serious crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only
be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this
article shall authorize any State Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention and Punishment
of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years
of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.

It is clear from this article that there are a number of strict limitations on the imposition of the
death penalty, including (but not limited to) the following:

• Right to a fair trial before the imposition of the death penalty;

• Limitation of the death penalty to only the most serious crimes;
• Prohibition against imposing the death penalty when other ICCPR rights have been violated;
• Prohibition against retroactive imposition of the death penalty;
• Right to seek pardon or commutation of a death penalty sentence;
• Prohibition against the execution of persons who were under the age of eighteen at the time
the offence was committed; and
• Prohibition against the execution of pregnant women.

In addition to these limitations, other customary limits are emerging, including (but not limited
to) trends towards the abolition of executing the mentally ill and mothers with dependant
infants. The first three limitations remain vague and controversial, so it is helpful to examine
some of these issues in greater depth.
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‘Arbitrarily deprived’ – the right to a fair trial

Article 6 demands a fair trial before the imposition of the death penalty under two heads: the
protection against being ‘arbitrarily deprived’ of one’s life; and the requirement that the death penalty
not be imposed when the Covenant is otherwise breached. This has been interpreted by the Human
Rights Committee (the body responsible for monitoring States Parties compliance with the ICCPR), to
mean that in all capital trials a fair trial that observes all the provisions of the ICCPR must be held,
without which the death penalty may not be imposed. This includes recognised international
requirements including (but not limited to): being informed promptly and in detail of the charges; for
translation or interpretation into one’s own language to be provided; presumption of innocence;
counsel of one’s choosing; sufficient time to prepare a defence; a trial to be held without undue delay;
for the hearing to be heard by an independent and impartial tribunal; and for the right of review by a
higher tribunal.

This interpretation was supported and extended by the European Court of Human Rights, which stated
in 2005: In the Court’s view, to impose a death sentence on a person after an unfair trial is to subject
that person wrongfully to the fear that he will be executed… Such anguish cannot be dissociated from
the unfairness of the proceedings underlying the sentence which, given that human life is at stake,
becomes unlawful under the Convention. Having regarded to the rejection by the Contracting Parties
of capital punishment, which is no longer seen as having any legitimate place in a democratic society,
the imposition of a capital sentence in such circumstances must be considered, in itself, to amount to a
form of inhuman treatment.

LIMITATION TO ‘THE MOST SERIOUS CRIMES’

Whilst the limitation of the imposition of the death penalty to the most serious crimes is an established
principle of international law, it lacks definition and agreement. In 1984, the Economic and Social
Council published the Safeguards Guaranteeing the Protection of the Rights of Those Facing the
Death Penalty, which stipulated that the most serious crimes should not go beyond intentional crimes
with lethal or other extremely grave consequences. While these Safeguards are not legally binding,
they were endorsed by UN General Assembly, indicating strong international support. Similarly, the
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has stated that the death
penalty should be eliminated for economic crimes, drug-related offences, victimless offences, and
actions relating to moral values including adultery, prostitution and sexual orientation. However, this
interpretation is contested by a number of countries, and so cannot be regarded as universally accepted.
For example, some Islamic states regard adultery and apostasy as some of the most serious crimes,
while other states believe the most serious crimes include political offences and economic crimes.
States such as Singapore regard drug offences as among the most serious crimes. Many of these views
 P a g e | 45

are not supported at the international level, and the Human Rights Committee has stated specifically
that the ‘imposition…of the death penalty for offences which cannot be characterised as the most
serious, including apostasy, committing a homosexual act, illicit sex, embezzlement by officials, and
theft by force, is incompatible with Article 6 of the Covenant’

Other areas remain in contention. While the Committee’s findings are non-binding, they are
nonetheless highly persuasive in interpreting the ICCPR, particularly when read in conjunction with
the Safeguards endorsed by the General Assembly and the UN Special Rapporteur’s position.

However interpreted, it is clear that this provision restricts the application of the death penalty to a
very limited number of crimes. Consequently, under international law, the death penalty must only be
used as an exceptional measure, carried out under strict conditions.

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

The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty is the only
treaty directly concerned with abolishing the death penalty, which is open to signatures from all
countries in the world. It came into force in 1991, and has 81 states parties and 3 signatories.

Article 7 of the International Covenant on Civil and Political (ICCPR) 1966

Provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.

Later, the United Nations in regard to Protection of Human Rights, instigated some suggestions when
death penalty should be applied or it should be removed. Some suggestions are as follows:-

Countries which have not yet abolished capital punishment may impose it only for the most serious
crimes.

Capital Punishment may be imposed only in case of serious offence according to established law for
the time being in force. There must not be any retrospective effect of the punishment.

Young person at the time of commission of crime, whose age was below 16 years, should not be
awarded death penalty.

Death penalty must not be imposed upon pregnant women or on new mothers or insane persons.
 P a g e | 46

Any person sentenced to capital punishment shall have right to appeal to the higher court and steps
should be taken to ensure him right to appeal.

Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the Child (CRC) explicitly
prohibits the use of the death penalty against persons under the age of 18. As of July 2015, 195
countries had ratified the CRC

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

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

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

The United Nations (UN) :-

The United Nations usually play a great role in protecting the human rights in that way, they
recognized that there is a need for high standard of fair trial to be followed by every country, and
Procedures to be followed must be just, fair and reasonable. Moreover, important of human rights in
criminal justice system has been declared in many international conventions. Some are mentioned
below:-

Article 5 of the Universal Declaration of Human Rights 1948

Provides that no one shall be subjected to tortured or to cruel, inhuman or degrading treatment or
punishment.
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THE INTERNATIONAL PUSH TOWARDS ABOLITION

In addition to the above limitations, the ICCPR encourages states to move towards total abolition of
the death penalty. The Human Rights Committee has said that the ICCPR ‘strongly suggest[s] that
abolition is desirable’.21 However, Article 6 does not make abolition mandatory under international
law.

Despite the lack of such a mandatory requirement, movement towards abolishing the death penalty
worldwide has been increasing rapidly in the last sixty years 22, particularly since the United Nations
Declaration on Human Rights. At the beginning of the 20th century, only Costa Rica, San Marino and
Venezuela had permanently abolished the death penalty. At the current time, 133 countries have
abolished the death penalty in law or in practice.

The first international treaty to limit the death penalty was the 1929 Geneva Convention, which
restricted it as a penalty on prisoners of war taken in armed conflict.24 The absence of such a
prohibition from the ICCPR is explained by leading death penalty expert Professor William Schabas,
who claims that the ICCPR’s goal was abolition, but it was not made mandatory due to ‘the prudence
of its drafters, aware of its anomaly but fearful of alienating retentionist States and discouraging them
from ratification’.

Public support for abolishing the death penalty gained ground following the huge loss of life in the
Second World War, and numerous states began to move towards abolition. In the 1980s, three
international instruments completely abolishing the death penalty were drafted. At great speed, the
world moved towards ending capital punishment, and abolitionist states outnumbered retentionist
states as early as the mid-1990s. Progress continues to this day, with an average of three countries per
year abolishing the death penalty throughout the last decade.William Schabas cites an unmistakable
trend towards abolition, one that constantly growing in momentum…Customary international law does
not prohibit capital punishment…but trends in State practice, in the development of international
norms, and in fundamental human values suggest that it will not be true for very long.

The issue of the death penalty has clearly moved firmly into the human rights arena, and is no longer
accepted as simply a national criminal justice policy issue.It has been argued that the exclusion of the
death penalty by the international courts for the most heinous crimes imaginable suggests that there is
now no crime serious enough to warrant the death penalty.

One example of the way in which the movement towards abolition has been growing is evident in the
Human Rights Committee’s consideration of the responsibilities of abolitionist states in extradition and
deportation cases. In a 2003 landmark decision, the Human Rights Committee held that Canada was
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obliged to ensure that the death penalty would not be carried out on a proposed deportee. In this
decision, the Human Rights Committee stated:

For countries that have abolished the death penalty, there is an obligation not to expose a person to the
real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals
from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without
ensuring that the death sentence will not be carried out.

This was a departure from the previous position of the Committee, which had allowed such
extraditions and deportations to take place. In moving from its earlier position, the Committee stated:

Since that time there has been a broadening international consensus in favour of abolition of the death
penalty, and in states which have retained the death penalty, a broadening consensus not to carry it
out…The Committee considers that the Covenant should be interpreted as a living instrument and the
rights protected under it should be applied in context and in the light of present-day conditions.

While Human Rights Committee decisions are not binding, this decision supports the assertion that the
human rights discourse surrounding the death penalty is expanding. It is highly likely that, eventually,
international customary law will view the death penalty as a breach of the right to life, the prohibition
against torture, and the right not to be subjected to cruel, inhuman or degrading treatment.

LIFE IMPRISONMENT AS AN ALTERNATIVE TO THE CAPITAL PUNISHMENT

No human being should be regarded as beyond improvement and should therefore always have the
prospect of being released. – Dirk van Zyl Smit

The fundamental reason for adopting an alternative to the death penalty is the possibility to reform.
Often offenders barring hardcore criminals or history sheeters repent after spending time in prison and
having their liberty severely curtailed. This can be gauged from offenders behaviour in prison, his
attitude towards inmates and prison authorities.

LIFE IMPRISONMENT: An effective alternative to Death Penalty is life imprisonment. This

includes Imprisonment until the natural death of a convict, with no possibility of release i.e. without
parole. This is sometimes called life without parole (LWP). Similarly, there can be life imprisonment
with the possibility of parole. Rationales advanced for life imprisonment, as a form of the most severe
punishment, includes deterrence, retribution, restoration and incapacitation (stopping an offender from
reoffending in the interests of public protection).
 P a g e | 49

However, even Life imprisonment is unnecessarily punitive in many cases, especially in cases of non-
violent crimes, and does not satisfy the principle of proportionality. LWOP, in particular, raises issues
of cruel, inhuman and degrading punishment and undermines the right to human dignity by taking
away the prospect of rehabilitation.

Therefore LWOP also attracts similar objections as the death penalty as it undermines the inherent
right to life. To lock up a prisoner and take away all hope of release is to resort to another form of a
death sentence. Prisoners can leave prison only after they die. LWOP does not respect the inherent
human dignity of the offender.

LONG-TERM IMPRISONMENT: Another variant of life imprisonment is the long-term sentence

for a fixed number of years like 40 years in Croatia, after which the prisoner is released either with or
without further restrictions (such as requirements to report to the police at regular intervals). Brazil,
Colombia, Croatia, El Salvador, Nicaragua, Norway, Portugal and Venezuela also have no life
sentence. However, prisoners in these countries may serve long prison sentences, which can even
exceed the minimum terms that must be served in some other countries for persons sentenced to life.

An indeterminate term of imprisonment: Another alternative is to sending an offender to prison to

serve a minimum number of years and after serving that period they can be considered for release, but
the review does not guarantee a release This means that in effect prisoners stay in prison until they are
considered safe to be freed, and are not given a release date. This thus involves the discretion of
authorities, which might lead to unintended negative consequences.

Prolonged detention without any hope of release results in de-socialisation, the loss of personal
responsibility, an identity crisis and an increased dependency on the penal institution, will reform,
especially when the offender shows apparent repentance, apart from susceptibility to mental illness,
including depression and suicidal tendencies.

According to the Sentencing Project, crime prevention policy which accepts keeping a prisoner for life
even if he is no longer a danger to society would be incompatible with modern principles on the
treatment of prisoners and thwart the reintegration of offenders into the society as a normal person.

The sentencing project describes “a life without parole” as a “death by another name”. According to
Article 10(3) states ICCPR The essential aim of the penitentiary system i.e. the prison system of a
nation shall be the reformation and social rehabilitation of the offender. Thus Life-imprisonment
should be subject to review of some sort.

RELEASE WITH RESTRICTIONS: If an offender is released the offender may subsequently be

subjected to supervision for a limited or lifelong period. Failure to comply with supervision conditions
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can lead to the convicted person being returned to prison, to serve a prison sentence until the end of
natural life or until a review of his conduct by appropriate authorities.

Eg. According to Article 110(3) of Rome Statute individuals sentenced to life imprisonment by the
International Criminal Court will not be considered for a conditional release unless they have served
for 25 years of their life imprisonment.

PREVENTIVE DETENTION: Preventive Detention means a person detained to prevent him from
committing a crime. Norway has a maximum sentence of 21 years but, it can hold offenders beyond
that time in preventive detention. Such detention is imposed in those cases where it is suspected that
the offender could pose a particularly high risk to the public following release. It may be limited to
cases where a serious violent or sexual offence was committed in the first place, and the preventive
element of the sentence must (in several jurisdictions) be included in the original sentence. This form
of imprisonment should not be confused with pre-trial preventive detention, where a person is
imprisoned without having previously been convicted of an offence.

In Norway, once someone sentenced to preventive detention has completed a minimum term of
imprisonment (between 10 and 21 years), a review is conducted and the sentence extended by five
years if deemed necessary for protecting the public. This process is repeated every five years, with the
possibility that some prisoners may be held for the rest of their lives.

The life of the offender is terminated by hanging him or through other comparable techniques. While
some nations impose the death penalty for crimes that seen as inhumane, there are still some, including
United States Citizens, who think that the death penalty is an egregious violation of person’s human
rights and does not serve the goal of reformation.

Because even the accused is regarded to be covered by the Human rights law of that particular state,
several jurisdictions currently grant life imprisonment to offenders who have committed heinous
crimes. This is done in order to safeguard the accused’s right to life. Additionally, the UN and other
welfare groups oppose the death penalty since it gives the offender a free pass from all his
wrongdoings through the straightforward and painless punishment of death, rather than serving the
intended purpose of punishing him.

Concerns about the death penalty being handed down primarily based on the crime component while
ignoring the accused have been voiced over the past few years. This indicates that the circumstances of
the accused were not appropriately taken into account when the death penalty was awarded; just the
brutality of the crime was taken into account. Many accused people come from disadvantaged
backgrounds and lack adequate legal counsel, making it difficult for any aspects of their lives to be
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brought up in court. The Supreme Court has brought up this matter repeatedly, and it is currently
considering establishing rules for examining the process of imposing death sentences as well.

OTHER ALTERNATIVES INCLUDE

1. Life Imprisonment Without Parole

Although capital punishment is the toughest form of punishment, a criminal must still be punished for
the offence he commits. One of the options may be life imprisonment without parole, which means the
offender would be imprisoned for the rest of his life without the possibility of parole, which would
allow them to leave the prison only after serving a portion of their term. Prisoners can also be
sentenced to an indeterminate length of imprisonment, in which the prisoner is condemned to prison
for a set period of time but is only guaranteed release after a review.

2.Usage Of Resources Towards Rehabilitation

Another option is to move resources away from the death penalty and toward rehabilitation
programmes or support for both victims and convicts.

3.Occupation Without Remuneration

As death penalties are only used in the most extreme circumstances involving the most heinous
offences, the punishment should be served equally but not lead to someone’s death. In such instances,
the inmates could be hired for low-wage occupations, increasing productivity while also helping the
economy in some way.

Cleaning roadways, building sites, secretarial work, and other such duties should not be paid. This
might be beneficial to both the economy and the government because they would receive free labour,
achieving two goals: making criminals face harsher penalties and saving money to invest in health or
education sectors.

SUMMARY: CONCERNING THE DEATH SENTENCE

1. Unfair to those who are innocent: The fact that innocent individuals can occasionally be
executed makes the death sentence unfair as well. People end themselves on death row for a
variety of reasons, such as not having the money to file an appeal, having a weak defences, not
having enough money, or belonging to a minority group in politics or race. The "goal oriented"
nature of utilitarian philosophy can result in erroneous executions, particularly in terrorism
situations where unfair trials and forced confessions are frequent occurrences. Undermining
international norms, special or military courts established by counterterrorism laws have
occasionally sentenced civilians to death.
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2. The Indian Constitution's "Article 21" guarantees the right to life:- Every human life is
valuable. Among all rights, the most fundamental is the right to live. It shouldn't be simple for
any state to take it away. The Indian Constitution's fundamental right to life is also violated by
the death sentence. Article 21 of the Indian Constitution stipulates that an individual's "Right to
Life" cannot be taken away from them unless due process has been followed. The use of new
rules or evidence in a case is similarly limited when the death sentence is applied.

3. Rehabilitation: The death penalty does not help a prisoner get better or return to society.
Restoration is the goal of rehabilitation. A criminal may be helped and changed via counselling
and training, and their life won't be squandered.

4. The data does not support the effectiveness of deterrence: It's possible that some of the
executed were incapable of being dissuaded due to mental health issues or other defects.
Although 2013 saw the introduction of Section 376A of the IPC, which calls for the death
penalty in rape cases, rapes yet occur and have become more savage. Therefore, the death
sentence works well to discourage crime. There is no evidence to support the idea that the
death sentence acts as a deterrent. Social scientists have demonstrated that there is no deterrent
effect of the death sentence, and that public place.

5. Retribution is Immoral: Those who are against the death penalty believe that retribution is
morally repugnant and that it is merely a sanitized version of vengeance (a desire for revenge).

6. Penalty Procedures: The Indian Constitution stipulates that state-approved executions must
be as comfortable and painless as possible, yet there isn't a simple way to make this happen.
The most often used method, lethal injection, has generated criticism because of botched
executions.

In 2014, 43 minutes after the first injection, an apparent heart attack occurred in an ex-prisoner
from Oklahoma.

INDIA REFUSES TO ABOLISH DEATH PENALTY

March 9, 2023

Despite detractors who argue there is no evidence to support this belief, many people think the death
penalty is necessary to prevent people from committing significant crimes. In India, there are relatively
few executions, even though they are legally legal.
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Last month, a special court in the state of Uttar Pradesh in northern India handed down death sentences
to seven men convicted of being "Islamic State" (IS) operatives.

The men were arrested in 2017 after officials received information about the group's plan to carry out
attacks in different parts of the South Asian country. They were charged for terror activities, including
a bomb blast on a train earlier that year.

A spokesperson for India's National Investigation Agency told the media that the group had undergone
"online radicalization" and was aiming to promote IS ideology in India.

While the National Investigation Agency termed the judgment as "another milestone," the death
penalty has been a much debated theme in the country.

By coincidence, the same day the men were sentenced, the UN High Commissioner for Human Rights
Volker Türk demanded that all nations work harder toward abolishing capital punishment, which
continues to be implemented in 79 countries around the world.

"If we maintain this momentum to eradicate this inhumane punishment once and for all, we can weave
a thread of dignity back into the fabric of our societies," he said.

Long-running debate around India's death penalty

Indian courts can impose capital punishment for crimes such as murder, child sexual violence and
terrorism, among others 1980 marked a crucial point in the debate around the death penalty. That year,
a trial court in the state of Punjab sentenced to death a man named Bachan Singh for the murder of
three men.

Singh appealed to the high court of the state, which upheld the sentence. Then he approached the
Supreme Court of India, asking it to examine the constitutionality of capital punishment in a case that
led to a landmark ruling.

Subsequently, a five-judge bench was appointed, which laid out a framework and guidelines to be
considered when sentencing someone to death in India.

Gaps in the sentencing framework

The Bachan Singh case led to the establishment of the "rarest of rare" doctrine, meaning that courts
should only impose the death penalty in exceptional cases.

The guidelines also required trial courts to consider both a crime and a convicted person's life
circumstances — such as their age, family background, socioeconomic status and mental health
problems — before deciding on a sentence.
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Furthermore, they stipulated that a death sentence should be handed down only if a state can prove that
a convict is beyond reform.

Despite the guidelines' emphasis on reformative justice, many questions were still left unanswered.

There was no clarity on who should collect evidence on the life circumstances of a convicted person or
who should submit it in court, and how much time the data collection should take or how a court
should assess the life circumstances.

Research conducted by Project 39A, a legal research, pro bono litigation and public engagement
center, revealed that the life circumstances of the accused had not been not considered in 66.7%
of the trials that had resulted in 306 death sentences between 2018 and 2020.

Observers have said the handing down of death sentences is thus inconsistent, arbitrary and potentially
discriminatory as sentencing can fall prey to the bias and prejudices of a judge.

In 2022, for the first time in 42 years, the Supreme Court acknowledged the gaps in the current
sentencing framework and put together another constitutional bench to resolve them.

But as the Supreme Court seeks ways to reform death penalty sentencing, trial courts across India
continue to hand down capital punishment.

Last year saw 165 death sentences — the highest number in over two decades.

The "Death Penalty in India: Annual Statistics Report 2022" revealed that by the end of last year, 539
people were on death row in India, the highest number since 2004.

Not enough support?

In 2015, the debate around the death penalty in the country gained momentum. After conducting a
detailed study, a Law Commission report called for its abolition, except for in terrorism-related cases.

According to the research, the death sentence violates both Article 21 (right to life) and Article 14
(right to equality before the law) of the Indian constitution, making it illegal.

"The restorative and rehabilitative aspects of justice are lost sight of," According to the report.

The Indian Home Ministry requested responses from state governments in 2018 over a plan to do away
with the death sentence.

Just two of the 14 states that replied were in favor of abolishing the death penalty. The remaining 12
claimed that in order to prevent people from committing violent and dangerous crimes, the death
sentence is necessary.
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Rights groups and activists have said, however, that evidence from around the world shows that the
death penalty has no unique deterrent effect on crime.

CONCLUSION

The concept of capital punishment is centuries old and has been used in every community throughout
history. Despite the fact that times have changed and society has progressed, this practice is being
carried out in the twenty-first century. The most severe type of punishment for the most heinous
crimes, such as murder, rape, waging war, and acts of terrorism, is a capital penalty, which is only
applied in the rarest of circumstances. The death penalty is when a person’s life is taken away because
of a crime he has committed. Although it is still used in society today, it has been eliminated in the
majority of countries.

For years, capital punishment has been a contentious issue not only on a worldwide level but also on a
national level in India. As the death penalty is painless and speedy, it serves to preserve resources that
might otherwise be wasted or could be employed elsewhere if wrongdoers were just imprisoned or
confined behind bars. Given that India’s prisons are currently overcrowded, their basic needs for
survival consume a significant portion of the economy. Since convicts have human rights, it is the
government’s responsibility to protect them. The primary goal of the death sentence is deterrence, that
is, to prevent an individual from committing a similar crime in the future, as well as to deter others
from doing so by displaying severe repercussions. There are extremely few opportunities to avoid the
repercussions of wrongdoing.

The fact that Article 21 of the Indian Constitution, which stipulates, “No person shall be deprived of
his life or personal liberty…”, is a contradiction to the approval of a death sentence because taking
someone’s life is against Article 21 of the Constitution.

Due to the difficulty of seeking justice in a country like India with so many cases awaiting, there have
been instances where innocent persons have been sentenced to death. Rehabilitation is required in
addition to the goals of prevention and deterrence. A criminal’s opportunity of rehabilitation is taken
away when he or she is sentenced to death. This type of punishment is akin to putting a full halt to an
individual’s life. It’s also worth noting that while death penalties should reduce the number of crimes
committed, crime rates have risen in recent years, along with the severity of offences.
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As a result, based on the statistics, the motivation for capital punishment appears to be ineffective.

A sentence like capital punishment should be substituted by alternatives like those stated above in a
country like India, where the Constitution protects the human rights of 1.3 billion people. Although
capital punishment is terrible, it can also be ineffectual, resulting in the deaths of innocent individuals.
Since god gave us life, only god, not the state, has the authority to take it away from us. Taking all of
this into account, new appropriate regulations should be created to ensure the successful execution of
alternatives to capital punishment, as well as advice from professionals.

Unless it's mandated by law, everyone should always keep in mind that "NO ONE HAS RIGHT TO
TAKE AWAY ONE'S LIFE." The current state of affairs and issues surrounding the death penalty are
largely the result of an oversight regarding the nature of crime. It is brought up whether the death
penalty is still appropriate. Most nations have abolished the death penalty, yet it should be noted that in
a society where each person stands for themselves, the death penalty is still required. Severe
punishment is required to ensure that society's peace, quiet, and order are not compromised as well as
to deter future offenders. The State cannot jeopardize thousands of lives merit to reside in a
community of civilized people. The death penalty must therefore remain in place.