India being a democratic country is still a developing country. At the same
time, the crime rates in India is increasing at a higher pace. There are lots of
legislation in India to stop and control crimes, even though the crime rates are
increasing because the punishments are not sufficient for the crimes. The
punishment should be severe to reduce the crime rate. All punishments are based
on the same motive to give penalty for the wrongdoer. There are different kinds
of punishment in India such as capital punishment, life imprisonment,
Capital punishment is known as the most severe form of punishment. This article
explains two major theories related to capital punishment, namely reformative
theory and preventive theory. In this research the researcher also explained
about rarest of rare cases. This article mentioned about abolitionist and
retentionist countries, also capital punishment in ancient India. This article
has a detailed view about the capital punishment in India and also the methods
of execution in India.
All punishments are based on the same proposition i.e. there must be a penalty
for wrongdoing. There are two main reasons for inflicting the punishment. One is
the belief that it is both right and just that a person who has done wrong
should suffer for it; the other is the belief that inflicting punishment on
wrongdoers discourages other from doing wrong. The capital punishment also rests
on the same proposition as other punishments.
is the coercion used to enforce the law of land' which acts as
one of the pillars of modern civilization. It is the duty of the State to punish
the criminals in order to maintain law and order in the society. In the past,
there wasn't any specific law or order for such crimes and the quantum and
extent of punishment was largely dependent on the King. With time modern
theories of punishment were developed and voluntary submission of our rights and
power to maintain law and order was given to state.
The most brutal or we can say the highest punishment awarded in present time is
Capital Punishment'. Capital punishment is the punishment which involves legal
killing of a person who has committed a certain crime prohibited by the law.
Capital punishment is also known as Death Penalty' which is sanctioned by the
government in which a person is put to death by the state as a punishment for
the crime he committed.
Thus, philosophy behind the concept of punishment is not only to provide justice
to the aggrieved but besides this to maintain security and safety in the
society, to punish a criminal is not only to give torture to him or to
humiliate, but there is a higher objective to be achieved and that is to
establish a peaceful society. The concept of Punishment under modern
jurisprudence is usually associated with the law of crimes.
Society at any stage of its growth has never been free from the problem of
crime. It is inevitable since; some violation of the prescribed code of conduct
is bound to occur. Crime in society is universal and is inseparable. [i] Lack of
punishment creates a society which is incapable of maintaining civil order and
citizen's safety. So punishments must be imposed on law violators.
Law exists to bind together the community. It is sovereign and cannot be
violated with impunity.
Roscoe Pound observes; “Law is the body of principles recognized or enforced
by public and regular tribunals in the administration of justice”
A Global Background Of Capital Punishment
Some of the major questions arising in the minds of modern penologists are
whether capital punishment or death penalty should be abolished or not. There
are several states which are more inclined towards abolishing the death penalty
while others prefer not to. For example, states like India, China and United
States of America prefer dealing with the death penalty for certain crimes while
states like United Kingdom and Canada have abolished it altogether.
Before dealing with the topic, it would be pertinent to explain the concept of
punishment. Punishment depends on the crime committed and the reason behind the
punishing the offender is to stop him or deter members of the society from
committing the same crime again.
Currently 55 out of 196 nations of the United Nations Organization practice
capital punishment as one of the form of the punishment. 105 nations out of 141
nations have abolished capital punishment completely.
Ancient & Medieval Legal History Of Inflicting Capital Punishment:
The history of States enacting capital punishment goes back thousands of years
to the Babylonian Empire in 1800 BCE. Throughout history, capital punishment
has been inflicted in various forms including but not limited to beheading,
flaying, burning, throwing down steep rocky cliffs, crushing the head by an
The Hammurabi Code of the Babylonian Empire in 1800 BCE prescribed capital
punishment for about 20 different crimes including theft and perjury. Ancient
Greece employed Draco's law of death penalty for all crimes, thus also giving
literature the word “Draconian” meaning extremely harsh.
During the Medieval period, public execution was considered as an accepted form
of punishment in Europe, with beheading being the most common and replaced by
hanging in the 10th Century AD.
Modern Legal History Of Inflicting Capital Punishment:
Modern legal history of death penalty laws can be traced back to Britain.
England, in 1668, had about 50 offences for which the punishment was death.
By the start of the 18th Century, this number rose to 222 crimes and included
critagemes like making counterfeit stamps, felling of trees, stealing, robbing,
From the 18th Century, however, the trend in England was to avoid the death
penalty and juries preferred to award transportation to American colonies. This
was helped by the Transportation Act, 1717 which regulated the system of
transporting criminals to work in American colonies with a term of indentured
The Judgment of Death Act, 1823 followed this trend of avoiding awarding capital
punishment and made it discretionary for all the crimes save for murder and
treason. By 1861, the number of crimes punishable with death were brought down
to just 5 and included treason, espionage, murder, piracy and arson in royal
dockyard. Later, in 1868, public executions came to be banned.
Throughout the 18th and 19th Century, various European nations started
abolishing capital punishment for various offences. In Britain, it wasn't until
1965 when the Murder (Abolition of Death Penalty) Act, 1965 was passed that
death penalty for the crime of murder came to be replaced with a sentence of
life imprisonment. By 1998, death penalty was completely abolished in United
The Legislations Of Capital Punishment In India:
India has, since the ancient times, had in its laws punishment b death. One of
the more bizarre forms of capital punishment included being crushed by an
elephant and was known as gungarao
. The Manusmriti prescribed death
penalty for murders so as to refrain people from committing the act and to
prevent a state of anarchy. During the Mughal period, offenders were dressed in
buffalo skin and made to stand in the sun; the shrinking hide eventually led to
the death of the offender who died in great agony.
All these practices were stopped under the British legal administration with
hanging being the only form of inflicting capital punishment. The Indian
penal code (IPC) of 1860 prescribed death as the punishment for various crimes
during the colonial era. It wasn't until 1931 that the issue of capital
punishment was raised in the Legislative Assembly. This was done by Shri Gaya
Prasad Singh, who wished to abolish the death penalty for offences under the IPC.
However, his motion was never passed.
The Constituent Assembly Debates dealt with the question of capital punishment
by questioning its judge-centric nature, the effect of the punishment among the
families of the poor, the possibilities of error and its arbitrariness.
Pandit Thakur Das Bhargava commented during the debates on the capital
punishment about the possibility of error where he stated that a person doesn't
usually get justice in the courts and gave examples of cases of riots where it
is often difficult to hold specific people liable. According to him, all person
sentenced to death should get to be able to appeal the sentence as a matter of
Dr. B.R. Ambedkar, the chairman of the Draft Committee of the Constituent
Assembly, favored abolishing the capital punishment. He said that to end this
controversy it's important to abolish death sentence and also stated about the
principle of non-violence which has been followed by the nation for so long.
After independence, capital punishment was sustained for various crimes under
the Includer of Code of Criminal Procedure (CrPC) of 1898, courts were required
to state reasons in their judgments if they provided a punishment other than
capital punishment for offences where capital punishment was an option under
Section 367(5). The said section was repealed by the Parliament in 1955.
The 1955 Amendment Act also amended the IPC by substituting the punishment of
“transportation for life” with “imprisonment for life”. This Amendment was
important as it signaled that capital punishment was not the norm.
The re-enacted CrPC, 1973 brought another reform in the death penalty laws.
Under the amended Section 354(3), the courts now had to state special reasons
for awarding a sentence of death. There has, thus, been a change in the
attitude towards inflicting death penalty. The judgments of the courts of India
give us an insight into the direction which India is taking regarding its death
What Gave Sanction To The Death Penalty
If we take a closer look at history, we can see that what enabled capital
punishment to become popular as a means of punishing the offender are the
various theories of punishment. These theories directly reflect the thought
processes behind supporting a punishment as harsh as the death penalty. These
Deterrence Theory: This theory aimed to deter or prevent a person from doing a crime or
repeating it in the future. To enable this deterrence, harsh punishments are
imposed by law so that a lesson or message can be sent to the other members
of the society regarding the consequences of committing the same crime.
The deterrence theory has two components: (a) punishment is awarded to the
offender to prevent him/her from repeating the offence, and (b) presuming
that the other people would not commit the same crime due to the fear of the
punishment that would be awarded.
The deterrence theory kept a check on the numerous crimes in the ancient and
the medieval period and is still popular today. Deterrence has been taken as
one of the most common rationale expressed for capital punishment. Specific
deterrence is a kind of deterrence which aims to stop convicted offenders
from committing a crime again. Invoking a death penalty serves as specific
deterrence as the executed offender will not be able to harm society
However, the most common reason for the theory to prevail is the assumption
of the people's fear of death more than the fear of being imprisoned. For
this theory to work, it is to believe that nothing can be more sacred to a
person than that person's life. It believes that while a person would be
willing to accept a lesser form of penalty for a crime, he would not be
willing to lose a life as penalty for the crime committed.
Retributive Theory: The basis of this theory is the principle of “Lex talionis” which is a Latin
for the principle of “an eye for an eye”. Retribution means inflicting
punishment on the person as means of vengeance for committing a wrongful
act. Thus, the objective of this theory is to take revenge and not reform
The idea behind this theory dates back to the earliest civilizations of
human history with the Hammurabi Code of the Babylonian Empire stating that
if man breaks the bone of another, his bones shall also be broken.
Under this theory, there is a sense of moral responsibility. Thus, for
example, if a person steals, he or she is morally responsible for stealing
and because of this moral responsibility, he or she deserves punishment.
Retributivists believe in the punishment being proportional to the offence.
However, applying this theory strictly leads to counter-intuitive
complications. For example, it leads to judgment that robbers should be
robbed, arsonists must have their houses burned down and rapists should be
Preventive Theory: The aim of the theory is to prevent the crime itself. It does this by
keeping the criminal away from the society to prevent future crimes. Death
penalty and life imprisonment are justified under this theory since they
intend to keep the offender from entering the society again.
Prevention has always been the principle aim of punishment. Even if
punishment intends to inflict pain or loss on te offender, it would almost
always aim to send a message to society about not repeating the same offence
and consequences which repeating it would entail.
With the death penalty, the criminal is permanently disabled from committing
any other crime. There is an assurance that the offender will not be able to
harm society again.
The Indian Courts' Changing Attitude On Death Penalty
In 1973, the case of Jagmohan Singh v. State of U.P
. was the first in
several to challenge the death penalty laws in India. It was argued that the
death penalty violated Article 14, 19 and 21 of the Constitution of India. It
was also argued that the courts had unguided discretion in awarding the death
penalty. What is interesting is that a decision of the US Supreme Court, in
Furman v. Georgia, was also cited by the Petitioners.
The case of Furman was a 1972 case in the US Supreme Court wherein the Court
struck down all the schemes imposing capital punishment by holding that the
death penalty was the constitution of a cruel punishment and violated the
Constitution. However, this was merely a moratorium which lasted until 1976 when
another judgment of the US Supreme Court in Gregg v. Georgia reversed the
earlier decision of the court and held that the imposition of the death penalty
does not automatically violate the Eighth and the Fourteenth Amendment of the US
Constitution, as was previously held in the Furman's case
In Jagmohan, rather than following the principles of the Furman case which
came before it, the Supreme Court held the death penalty as a permissible
punishment which didn't violate the Constitution. The Court also said that the
judges are given wide discretion in fixing the degree of a punishment due to the
futility of laying down specific standards in criminal law. However, it should
be kept in mind that this case came before the re-enacted CrPC, 1973 which made
granting the death penalty an exception.
The question of what are “special reasons
” for the passing of sentence of
death under Section 354(3) of the CrPc, 1973 arose in the case of Rajendra
Prasad v. State of Uttar Pradesh. The Court held that the special reasons
under Section 354(3) relate to the criminal and not to the crime itself. It also
said that the retributive theory is no longer valid and that deterrence makes
deprivation of life practicable. The case of Dalbir Singh v. State of Punjab
relied on Rajendra Prasad's decision to confirm a death penalty to two people
who brutally shot and murdered three people.
However, in the same year in 1979, another bench of the SC noted the Rajendra
Prasad case to be contrary to the Jagmohan case in Bachan Singh v. State of
. This case was then referred a Constitutional Bench which
culminated in the landmark 1980 case of the same name (Bachan Singh).
In this case, the death penalty was challenged as being inhuman, cruel and
degrading. It was argued that the main objective of giving a punishment is to
reform and rehabilitation and not retribution. It was also argued that the
purpose for which the death penalty was enforced, that of deterrence, had not
been proven to be effective.
Out of the five judges in the case, four held the death penalty to be
constitutional. The court said that the reasons for implicating a criminal to
the death sentence should include both the circumstances of the crime and the
criminal thus overruling the Rajendra Prasad case and affirming the Jagmohan
This case has been considered a landmark as the Court for the first time
clarified and laid down the principle that the death sentence should only be
awarded in the “rarest of rare” cases. It is quoted as saying:
A real and abiding concern for the dignity of human life postulates resistance
to taking a life through law's instrumentality. That ought not to be done save
in the rarest of rare cases when the alternative option is unquestionably
Prior to 1983, mandatory death sentences were awarded for certain crimes. The
case of Mithu v. State of Punjab
 held that mandatory death sentence
is unconstitutional since it does not take into account the various
circumstances of each case. By making the sentence mandatory for a class of
persons, the Court said, the law effectively deprives the said class of their
opportunity to be heard and neither is the court then obligated to perform its
duty under Section 354(3) to record special reasons before executing a sentence
In the case of Deena v. Union of India
, the constitutionality of the
death penalty was challenged but the court rather than delving into this
question the court instead went into the question of whether execution by
hanging was constitutionally valid. Holding that hanging does not involve
humiliation, barbarity or torture, the court rejected the constitutional
challenge to the method of hanging.
In T.V. Vatheeswaran v. State of Tamil Nadu
, it was held by the
Supreme Court that delaying the sentence of death by more than two years results
in the violation of Article 21. However, the court also held in Sher Singh v.
State of Punjab, that a delay in enforcing the sentence of death was not
entitle or convict to quash the sentence of death.
The 35th Report of the Law Commission in 1967 recommended that capital
punishment be retained as it said that India could not risk experimenting with
abolishing the death penalty. This report was cited in Bachan Singh and the
case of Shashi Nayar v. Union of India
 sought to challenge Bachan
Singh for placing reliance on the report from 1967, arguing for the abolishment
of death penalty. However, the SC at the time refused to hear further on the
issue due to the unstable law and order situation within the nation in 1991.
Thus, the issue remained at bay for some more time and subsequent cases followed
the ratio in Bachan Singh. Under the IPC, death penalty is awarded for 12
different offences from treason to perjury causing death of an innocent. Section
364A states that any person who kidnaps or abducts another for ransom from the
Government shall be punished with the death penalty. The case of Vikram Singh
v. Union of India
 was faced with the uestion that Section 364Ais
unconstitutional, since Section 364A awards death penalty for a non-homicidal
crime which shouldn't warrant such an extreme punishment. The SC however, denied
the Petitioner's arguments and, upholding Section 364A, said that the death
penalty is only awarded in the rarest of rare cases.
The Necessity Of Capital Punishment:
The death penalty has been in practice for several years and many of the
societies around the world adopted it as to create a deterrent effect in the
minds of people. The sole purpose of death penalty was to create fear in the
minds of people and at the same time to eliminate the crime. 
In the modern reformative era, the retributive principle of tit for tat' does
not serve any purpose in fact it somehow promotes people to take revenge and
which leads to crime happening on the daily basis. For example, property belongs
to father but after his death two brother fight for it due to unequal
distribution of property. Therefore, retribution can only cause more harm rather
than serving good for the society.
The Convention of against Torture and Cruel, Inhuman or Degrading Treatment or
Punishment does not consider imposing death penalty as a form of cruelty. India
has ratified the ICCPR and is signatory to the Torture Convention but has not
ratified it. The death penalty has been enforced in India even before
independence and continued even after India was free on the colonial rule.
Suggested Measures And Conclusions:
Several judges, both from India and outside, have condemned the death penalty
and termed it as a failed experiment. Justice Bhagwati and Justice Krishna
Iyer have time and again rose up against the death penalty in their judgment
while the ex-Chief Justice of India, Y.V. Chandrachud, who formed a part of the
majority bench in Bachan Singh's case
, altered his views on the death
penalty after his retirement and remarked that it both fails to deter criminals
and insert fear into the minds of the criminals from committing a crime punished
We all can learn from the European Union in the way it deals with nations still
retaining the death penalty as a way of reminding them that the death penalty is
a practice which has reached its time to go. The EU has a ban on trading goods
which can be used for execution of individuals or even their torture.
constantly voiced its reservations with regard to the death penalty in
international forums such as the United Nations. 
An irreversible and violent act of punishment, we have seen why the capital
punishment is irrational in nature. Spilling the blood of another man no way
justifies how what the state only leads to the creation of more victims of
legally sanctioned murder. We should all remember that killing the criminal does
not kill the crime.
Written By: Falguni Agrawal,
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Student 2nd Year, B.B.A. LL.B, New Law
College, Bharati Vidyapeeth, Pune
E-mail Address: [email protected]
, Phone no: 7049930716