SHOULD INDIA ABOLISH CAPITAL PUNISHMENT?

Human life is perhaps the most precious gift of the nature, which many describe as
the Almighty. This is the reason why it is argued that if you cannot give life, you do not have the
right to take it. Many believe that capital punishment should not be imposed irrespective of the
nature and magnitude of the crime. Others think that death penalty operates as a strong
deterrent against heinous crimes and there is nothing wrong in legislative prescription of the
same as one of the punishments. The debate on this issue became more intense in the second
part of the 20th century and those belonging to the first school of thought succeeded in
convincing the governments of about 140 countries to abolish death penalty.
-

G.S. Singhvi, J. in Devender Pal Singh Bhullar v. State of NCT of Delhi,1

DEATH PENALTY: A GLOBAL PERSPECTIVE

Article 3 of the UDHR guarantees to everyone the right to life, liberty and security of the
person and Article 5 of UDHR mandates that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Article 6 of ICCPR lays down that the countries
which have not yet abolished death penalty may restrict its application to the most serious
offences and the same shall be avoided in cases of persons below 18 years of age and pregnant
women. The Second Optional Protocol to ICCPR is specifically aimed at the abolition of death
penalty and has been ratified by 75 countries. India is not a signatory to the Optional Protocol II
to ICCPR.
Today, 136 out of the 192 UN member states have abolished the death penalty in law or
practice.2 While the whole world is moving towards an abolitionist trend, there are a few
exceptions like China, Iraq, Iran, and Afghanistan. As per the Amnesty International Report,
China conducts thousands of executions in a year, which is more than the rest of the world put

1 WP (Crl.) No. 86 of 2011.

2 http://www.amnesty.org/en/library/asset/ACT51/005/2010/en/fa7c0d85-f217-42d1a6b7-0f3c2037aa6b/act510052010en.html.
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together. Iran and Iraq conducts hundreds of executions per annum. Iran stands second highest in
executions followed by China, most of which are for drug related crimes.
DEATH PENALTY IN INDIA
Death penalty is prescribed as a punishment for nine offences in IPC including murder
under S.300 of Indian Penal Code, three anti terror laws and eleven special statutes. Mandatory
death sentence is prescribed in India in three special laws including a drug related offence 3.
Mandatory death sentence which precludes the possibility of a lesser sentence being imposed
regardless of the circumstances is inconsistent with the prohibition of cruel, inhuman or
degrading treatment or punishment.4It is a matter of great dismay that the Parliament has not
taken any step towards the repeal or amendment of these provisions even after the Supreme
Court ruling5 which declared S.303 of Indian Penal Code ultra vires on the ground that
mandatory death penalty precludes the discretion of the judges to impose a less severe
punishment where situation demands so.
India remained seemingly abolitionist in practice since 2004 post execution of Dhananjay
Chatterjee for alleged rape and murder of a fourteen year old girl. However, the recent
executions of Ajmal Kasab and Afsal Guru demonstrate a change in trend. The recent executions
were conducted in a secretive manner. The public were not informed of the date of execution and
even the dead bodies were not returned to the family members. In resolution 2005/59 the UN
Commission on Human Rights called upon all states that still maintain the death penalty "to
make available to the public information with regard to the imposition of the death penalty and to
any scheduled execution. However, the state action is one justifiable in statecraft, though not in
law.

3 Arms Act 1959, Narcotic Drugs and Psychotropic Substances Act 1985 and Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act 1989
4 Extra judicial, summary or arbitrary executions: Report of UN Special Rappoorteur, UN Doc.
E/CN.4/2005/7, 22 December 2004, para. 88
5 Mithu v. State of Punjab, 1983 (2) SCC 277.
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1973 witnessed two major strides in the field of death sentence in India. The
constitutionality of death penalty was upheld for the first time by the Supreme Court in
Jagmohan Singh v. State of UP.6 It also saw the adoption of the new Code of Criminal Procedure
which made life imprisonment the rule and death penal an exception. Post 1973, it is mandatory
for the judges to give a pre-sentence hearing and they should give special reasons in the
judgement for awarding death penalty over life imprisonment.
The ruling of the Supreme Court in Bachan Singh v. State of Punjab7 has limited the
application of death penalty in the rarest of the rare cases. The aggravating and mitigating
circumstances in relation to the crime and criminal shall be taken into account before imposition
of the death sentence. The dilution of the Bachan Singh standard was judicially attempted in
Ravji Ram Chandra v. State of Rajasthan8 where a two-judge bench ruled that it was "the nature
and gravity of the crime but not the criminal, which are germane for consideration of appropriate
punishment in a criminal trial." This decision formed the precedent for at least six judgements,
convicting nine persons with capital punishment. This dilution of the standard gave rise to severe
criticism within and outside the judiciary. The Supreme Court corrected its stand in 2009 in
Santosh Kumar Bariyar v. State of Maharashtra9, followed by two more such correctives in 2010
and 201110. Despite these correctives, fourteen retired judges of the Supreme Court and the High
Courts across the country signed up separate letters under the auspices of Justice P.B. Sawant, to
the President pointing out that the death sentences given to these nine persons by various twojudge benches of the SC were "contrary to the binding dictum of rarest of rare" propounded in
the 1980 five-judge bench verdict in Bachan Singh v. State of Punjab11 and appealed the
President to commute their death sentence to life imprisonment. Such letters are unique and not
6 AIR 1973 SC 947.
7 AIR 1980 SC 898.
8 1996 (2) SCC 175.
9 Crl. Appeal No. 452 of 2006.
10 Dilip Tiwari v. State of Maharashtra, (2010) (1 SCC 775); Rajesh Kumar v. State (2011) 13 SCC
706.
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common a practice in the Indian judiciary. Such letters do not have any legal validity, but can
very well act persuasively and constitutes expert opinions for the purpose of determining the
clemency petitions.
The Law Commission of India, in its 35 th Report, concluded that having regard, to the conditions
in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level
of morality and education in the country, to the vastness of its area, to diversity of its population
and to the paramount need for maintaining law and order in the country, at the present
juncture, India cannot risk the experiment of abolition of capital punishment.

CAPITAL PUNISHMENT- AN EVALUATION

The rarest of the rare standard is a waterline which lacks precision and is wholly left to
the subjective discretion of the judges. Though the criteria to determine rarest of the rare cases
are laid down in Machi Singh,12 it is not very clear. The two judge Bench of the Supreme Court
in a 2013 judgement13 commuted the death penalty awarded by the lower courts to a man
accused of raping his minor daughter and killing both wife and child, stating that though the
crime is gruesome and grotesque it could not be classified could not be classified as rarest of
the rare cases, which poses this question as to whether this doctrine can ever be understood
objectively.14 A study of the Supreme Courts judgements from 1950 to 2006 15 by Amnesty

11 Supra n.7
12 Machi Singh v. State of Punjab, 1983 SCR (3) 413. The distinguishing factors of the rarest of the rare
case are: (1) Is there something uncommon about the crime which renders the sentence of imprisonment
for life inadequate and calls for a death sentence? (2) Is the crime such that there is no alternative but to
impose death sentence even after according maximum weightage to the mitigating circumstances which
speak in favour of the offenders?
13 Mohinder Singh v. State of Punjab, Crl. Appeal No. 1278-1279 of 2010.
14 Vanya Kumar, Capital Punishment and the Cultural Discourse of Feminity in the Offence of Rape.
2013 CLCSLR VOL.1 ISSUE 1, p.1.
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International and Peoples Union of Civil Liberties disturbingly highlights that the cases in which
the death penalty was imposed is often undistinguishable from those in which it was commuted.
Justice A.P Shah commented in one of his interviews given to Amnesty International,
Here one hardly finds a rich or affluent person going to the gallows. 16 Death penalty strikes
mostly against the disadvantaged sections of society, showing its arbitrary and capricious nature thus rendering it unconstitutional. The former President of India, Sri. A.P.J. Abdul Kalam also
held a similar opinion. He studied the history of 20 death row convicts and concluded that only
poorest of the poor are sentenced to death. As Justice V.R. Krishna Iyer has rightly said, the
white-collar criminals and the corporate criminals whose wilful economic and environmental crimes
inflict mass deaths or who hire assassins and murder by remote control are not swallowed by the
gallows. Historically speaking, capital sentence perhaps has a class bias and colour bar, even as
criminal law barks at both but bites the proletariat to defend the proprietariat17

Moreover, conviction of an innocent person in the current legal scenario is a real live
possibility rather than a remote far-fetched one. Any person who has handled criminal cases,
particularly murder cases, will be able to testify from his personal knowledge to serious
miscarriages of justice on account of misinterpretation of facts, tremendous diversity of
conflict in the matter of legal interpretation. In India, in one High Court, in the case of two
people where one inflicts a fatal injury while the other holds the deceased, both might be
sentenced to death, while in another High Court, one might be sentenced for murder while
the other may only be fined for having committed simple hurt.18

15 Amnesty International and Peoples Union of Civil Liberties, Lethal Lottery: The Death Penalty in
India, 2008, available at http://www.amnesty.org/ar/library/asset/ASA20/007/2008/en/16f59d0b-15fc11dd-8586-f5a00c540031/asa200072008eng.pdf.
16 Available at http://www.amnesty.org/en/library/asset/ASA20/023/2013/en/8c5f2fd2-9c2f-411c-9947a4c725748a33/asa200232013en.pdf.
17 Rajendra Prasad v. State of UP, (1979) 3 SCC 646, 675.
18 Constituent Assembly of India, Vol. 8, 3 June 1949.
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Justice A.P. Shah lists out five reasons why India should abolish death penalty. Whether
an accused is sentenced to death or not is an arbitrary matter and depends on a number of factors,
ranging from the competence of the legal representation to the interest of the central government
in a particular case and the personal predilections of the judges. It is beyond any shred of doubt
that in India, it is the judges subjective discretion that eventually decides the fate of an accused.
Also, confessions and witness testimonies play a more vital role in India than in many other
countries, given that forensic and other scientific evidence are not so frequently adopted here.
Most death sentences are awarded on circumstantial evidence alone. Even the use of
professionally trained witnesses by the police is common.19
Many people who support death penalty claims that punishment should be proportionate to the
crime and the trauma of the victim should also be taken note of. Some argue that reforming a
hard core criminal is a remote possibility and that criminals pose a huge financial burden to the
state. Moreover, there is no alternate method to deal with dangerous criminals who pose a threat
to the security of the state.
However, it is not the gravity of punishment, but the certainty of punishment that deter a
person from committing a crime. Steps shall be taken to fill up the lacunas in Indian judicial
system and strengthen the investigating agencies. Let us give up this chance game which if lost,
the harm done cannot be undone.

19 Supra n.15
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