Death Penalty:: Abolition or Retention

NAME- PRASHANT KUMAR MISHRA;
ROLL NO.-18213208058;
CLASS- LL.M. (3 YEARS), 2ND SEMESTER;
SUBJECT- LAW AND JUSTICE IN GLOBAL WORLD(YLM-201);
TEACHER- DR. ANUPAM JHA;
DEATH PENALTY : ABOLITION OR RETENTION.
INTRODUCTION
Death penalty is a well recognized retributive form of punishment in the

world. However last several decades are evident of how majority of the
countries of world has abolished death penalty. Some has abolished it in
practice and some has abolished it for ordinary crimes but majority of it
abolished it in totality.
1
Countries like United Kingdom, AUSTRALIA, SOUTH AFRICA,
SWITZERLAND, ITALY, FRANCE, GERMANY, CANADA etc, are the main
abolitionist countries who abolished it from all crimes.
Countries like BRAZIL, CHILE, ISRAEL, PERU, SALVADOR, has abolished

death penalty from ordinary crimes.
Countries like India, United State of America, Bangladesh, Pakistan,

North Korea, China, Palestine ,Qatar, Afghanistan, Egypt are retentionist
of capital punishment for ordinary crimes.
In India, Article 21 of the constitution of India,1950 provides that “ No

person shall be deprived of his life and personal liberty except according
to procedure established by law”. which means state can not take away
life and liberty of any person except by well recognised legal procedure
provided that the procedure must be just, fair and reasonable. And the
Phrase ‘Any Person’ as exists in art.21 includes both citizen and foreigner.
So Right to life and liberty under Article 21 is equally applicable to both
citizen and alien. The Death penalty is one of the highest punishment
recognised under section 53 of Indian penal code 1860. In Indian penal
code 1860, Sections
( 121,132,194,195A,302,305,307,364A,376A,376E,376AB,376DB,396)
provides for death penalty. What is noticeable is that, in all sections
death penalty is an alternative form of punishment. There is nothing like
imposition of mandatory death sentence in case of commission of any
offence. There are 22 other Special and local laws like The Air Force Act
1950, Army Act 1950, The scheduled Castes and Scheduled tribes Act
1989 etc. In which death penalty has been recognised. The apex court in
Mithu vs State of Punjab1, struck down section 303 of IPC 1860, on the
ground that it provides for mandatory imposition of death penalty, if the
offence murder is committed by offenders who is serving life
imprisonment. Apex court declared it, violative of Article 14 and Article
21 of Indian constitution on the ground that the procedure recognised
1 AIR 1983 SC 473.
2
under sec.303 for deprivation of life is unfair and unjust. Section 354(3)
of Criminal Procedure Code 1973 provides for giving of special reason for
awarding Capital Punishment, means there should be something more
than ordinary for awarding death penalty. The problem in case of
awarding death penalty is that there is no established legislative
procedure which governs that in which case death penalty should be
awarded. It totally becomes Judge centric. Judges decide in which case
death penalty should be awarded and in which case it should not.
Awarding death penalty becomes solely the matter of judicial discretion
without any procedural backing. When we talk about abolition or
retention of death penalty then it becomes necessary to go into the
question that what are the purposes it serves?, Whether it has effective
deterrent effect or not?, Whether the procedure through which it is
awarded is just, fair and reasonable?, Does it involve the risk of hanging
innocent person?, and whether it is necessary to have death penalty in
developing countries like India for its security and integrity?. Many times
death penalty has been questioned on the ground that it does not
include any reformation and also it has no effective deterrent effect.
And if we see the nature of death penalty then we found that it is
retributive in nature which becomes an obsolete concept. An ear for an
ear and an eye for an eye is no more exisits in any civil society. And on
the other hand it is also to be considered that how to control the
inhuman and barbaric activities of criminals who are threats to any
peace loving society.
HISTORY OF DEATH PENALTY IN INDIA-
There are many cases in which Supreme court of India has taken into
consideration the pros and cons of imposing death penalty. Apex Court
in Shankar kisanrao khade vs State of Maharashtra2, express its
concern on lack of coherent and consistent purpose for awarding death
penalty and granting clemency. And called for intervention of law
2 AIR (2013)5 SCC 546.
3
commission of India on the point that whether it is deterrent
punishment or retributive in nature.
Constitutionality of Death penalty-

Jagmohan Singh vs State of U.P3, the constitutionality of death penalty
has been questioned first time in this case. It was contended that death
penalty is violative of Articles 14,19,and 21 on the ground that since it
extinguishes the life of the criminals so it deprives the criminals from
exercising its freedoms provided by Article 19(1)(a-g), so it is an unfair
denial of rights provided by constitution of India. The U.S.A Supreme
Court Case of Furman vs Georgia4 was also referred which declared
death punishment unconstitutional, Since the case was of year
1973( before enactment of Cr.P.C,1973) then death penalty was rule and
life imprisonment was exception. Apex Court denied to declare it
unconstitutional.
In Bachan Singh vs State of Punjab5, again the constitutionality of
capital punishment comes into question and again Apex Court denied to
declare it unconstitutional. But what is noticeable in this case is that
Justice P.N Bhagwati has given dissenting opinion. He was of the view
that the discretion vested in judges is arbitratry and unguided, it is
without laying down any policy so it may discriminate without reason.
It was held in this case by majority that the death penalty can be
awarded only in “rarest of rare” cases. And it was also held that
following are the circumstances which are relevant in determining
Rarest of Rare cases:
(1) Death penalty can be awarded only in cases of gravest form of
extreme culpability;
(2) Before awarding death penalty both the crime and criminal must be
taken into consideration;
(3) Life imprisonment is rule and death sentence is an exception;
3 AIR (1973), S.C 947.

4 408 U.S.A 238 (1972).
5 (1980) 2 SCC 684.
4
(4) Both the aggravating and mitigating circumstances has to be
considered before awarding death penalty.
In Machhi Singh vs State of Punjab6, the ratio was same as in bachan

Singh case.
In Furman vs Georgia the U.S.A Supreme court laid down certain

mitigating circumstances, which are as follows:
(1) Murder should be committed without pre-meditation;
(2) That the accused is of young age;
(3) That there is possibility of reformation of accused;
(4) That the accused is not a habitual offender;
(5) No previous conviction.
In Dhananjoy Chatterjee vs State of West Bengal7, the offender

Dhananjay chatterjee was a Security Guard of an Apartment. He was
accused of rape and murder of a resident of apartment named Hetal
Parekh, a 14 years old student of seventh class.The trial court awarded
him death sentence on the ground that the case of accused falls under
rarest of rare category. And the same was confirmed by high court and
on appeal the Supreme Court also confirm the same. The sentence was
questioned by many law professors and legal scholars on the ground
that there was no direct evidence against the accused. The accused was
sentenced only on the basis of circumstantial evidence. Moreover, the
accused also spent 14 years in jail. And some people also contend that
the governor and president has not considered mitigating circumstances
while rejecting mercy petition.
6 (1983) 3 SCC 470.

7 (1994) SCR 137.
5
ARGUMENTS IN FAVOUR OF ABOLITION OF DEATH PENALTY:-
(1) Death Penalty is incompatible with human rights laws and

International laws- India is signatory of International Covenant on Civil
and Political Rights(ICCPR), first global instrument which aimed at
abolishing death penalty. But India is not signatory of Optional
Protocol-2. Articles 6(2),6(4),6(5) of ICCPR by and large provides for
moratorium or abolition of death penalty. At present 168 countries
including India are parties to ICCPR. And in 1996, UNHRC recommended
India for abolition of capital punishment.
(2) Death Penalty does not deter crime effectively and there is no
possibility of reformation of Accused- If we go to facts and figures then
we find that death penalty does not have much deterrent effect. In 2014,
2015, 2016 respectively (33,981), (32,127),(30,450) murder cases has
been registered. There is no reduction in murder offence. And once
accused is eliminated by hanging then at the same time the possibility of
reformation of accused person also extinguishes.
(3) The risk of executing innocent person exists in any justice system and
arbitrary application of death penalty can never be ruled out- in India,
there is an uncontrolled and unguided discretion vested in judges
regarding imposition of death penalty ,which may result in executing
innocent person. It is moral standard of judges which governs judicial
discretion and many cases happened in India which shows the
arbitrariness and non application of mind.
(4) Judiciary is giving a lot of subjective interpretation and in the course

of that it is formulating itself super legislative- the duty of judges is to
interpret the law not to legislate it. And in case of death penalty it is
judges who are formulating in which cases death penalty should be
awarded and in which it is not. And the judges differ from case to case
the basis on which it should be awarded.
6
(5) the pardoning power of president and governor is also backed by
strong political motive.
ARGUMENTS IN FAVOUR OF RETENTION OF DEATH PENALTY:-
(1) Capital punishment plays an effective role in prevention of crime.
(2) Requirement of Special reason as mandated under section 354(3)

Cr.P.C 1973, is a check on judges discretion.
(3) It is not mandatory form of punishment, it is an alternate form of

punishment and exercised only in exceptional circumstances.
(4) Death penalty has a bright history in India. It shows that death
penalty has been awarded only in exceptional circumstances and in case
of gravest nature;
(5) Capital Punishment is necessary to deal with terrorists and fear of

death is greatest fear;
(6) Various checks on death penalty such as requirement of special

reason, review petition, mercy petition etc. Which diminishes the
chances of executing innocent persons.
(7) Death punishment is constitutionally valid as observed by apex court

in Jagmohan and Bachan Singh case.
7
CERTAIN POINTS OF CONSIDERATION:-
(1) If a person is held guilty and sentenced to death and consequently

hanged and later found innocent or it is found that the circumstances
were not exactly the same as presented before court then how it can be
remedied. Can court give him life again? Is it possible?.
(2) What if Nirbhaya Gang rape happened in any remote rural or tribal
area or in any north east state. Does the matter gained same media
attention and the accused has been treated as same?
(3) Once a death penalty always a death penalty. And suppose if one
becomes the victim of political ill will, then his life cant be restored back;
CONCLUSION-
In India there are very less number of offences in which
death penalty as a punishment has been provided for. And there is no
provision which provides for mandatory punishment of death penalty, it
is in an alternative form. And if we see the history of executions in India
then we find that in twenty first century(from 1995-2018) twenty two
offenders were given death penalty. And after Dhananjay Chatterjee,
three executions have been taken place I.e Ajmal Kasab(2012), Afzal
guru(2013) and Yakub Memon in 2015 and all three were terrorists.
Whose job was only to destroy the very essence of India. The judges
awards death penalty in exceptional circumstances and very cautiously.
8
And there are so many checks on the power of judges. So we can say
that as criminal system exists in India, there are very less chances almost
none of executing any innocent person. On the basis of aforementioned
facts and figures and considering the society of India, in my opinion, for
security of India and for establishing a peaceful society and to deal with
terrorists, criminals effectively, punishment of death penalty can play a
very effective role. And as of now it should be retained but it should be
subject to periodical review. In future, India may think of its abolition for
its citizens and substitute it with rigorous life imprisonment which
means remaining part of natural life.

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NAME- PRASHANT KUMAR MISHRA;

DEATH PENALTY : ABOLITION OR RETENTION.

Death penalty is a well recognized retributive form of punishment in the

Countries like BRAZIL, CHILE, ISRAEL, PERU, SALVADOR, has abolished

Countries like India, United State of America, Bangladesh, Pakistan,

In India, Article 21 of the constitution of India,1950 provides that “ No

1 AIR 1983 SC 473.

HISTORY OF DEATH PENALTY IN INDIA-

2 AIR (2013)5 SCC 546.

Constitutionality of Death penalty-

3 AIR (1973), S.C 947.

In Machhi Singh vs State of Punjab6, the ratio was same as in bachan

In Furman vs Georgia the U.S.A Supreme court laid down certain

In Dhananjoy Chatterjee vs State of West Bengal7, the offender

6 (1983) 3 SCC 470.

(1) Death Penalty is incompatible with human rights laws and

(4) Judiciary is giving a lot of subjective interpretation and in the course

ARGUMENTS IN FAVOUR OF RETENTION OF DEATH PENALTY:-

(1) Capital punishment plays an effective role in prevention of crime.

(2) Requirement of Special reason as mandated under section 354(3)

(3) It is not mandatory form of punishment, it is an alternate form of

(5) Capital Punishment is necessary to deal with terrorists and fear of

(6) Various checks on death penalty such as requirement of special

(7) Death punishment is constitutionally valid as observed by apex court

(1) If a person is held guilty and sentenced to death and consequently

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