Capital Punishment is the severest punishment of all the other punishments
awarded to maintain law and order in the society. It has a long history; it has
been a mode of punishment from the ancient period of the world. Each country has
its own method to impose the capital punishment such as electrocution,
beheading, stoning, shooting and hanging. The arguments against the imposition
of death penalty have not changed much over the years.
They have their own valid
points to prove capital punishment harmful for the society. People who are
against the imposition of death penalty argue that it is against the morality
and follows the revenge factor. Most of the countries have abolished capital
punishment wholly but some have abolished it for specific crimes while
maintaining for special situations such as war crimes.
ICJ and UNGA are also
against the imposition of death penalty. Although most of the countries have
abolished capital punishment but still 60% of the world's population live in
countries where death penalty is retained such as India, China, US and Pakistan.
In India, the capital punishment is given in 'rarest of rare' cases, when the
crime which is committed by the offender is so inhumane in nature that it shocks
the conscience of the society.
This paper discusses about the status of capital
punishment in all over the world. It also explains the laws, amendments related
to the capital punishment made in India. In this paper rarest of rare case has
also explained with the landmark judgments. Comparative analysis of different
countries has done for the clear view with respect in execution of capital
punishment. Opinion of ICJ and arguments of people who are in favour and against
the imposition of capital punishment have mentioned. This article is a detailed
view about contemporary perceptions of capital punishment.
When any person does any wrong, there is a provision of punishment to make the
person realize that he has done something, that he should not do. Even a small
child who doesn't have any intention to do any wrong act gets a punishment from
his mother. So, he can get to know about the difference between a good act and a
bad act, consequences of both is far differing from each other.
possess the same motive i.e. there must be a severe consequence for the offence.
There are two main reasons for inflicting the punishment: One is the belief
which says that offender should suffer, it is right and just to punish that
person; the other is the belief that imposing punishment on wrongdoers
discourages others from doing that wrongful act. Capital punishment also
possesses the same motive.
The term capital came from the Latin word capitalis which means head. Hence,
in a capital crime accused had been punished by beheading. The capital
punishment debate is the most relevant debate in our society. As the human
rights movements are increasing in the countries, the existence of capital
punishment has been questioned as immoral. However, it is an odd argument by
keeping one person alive at the cost of the lives of numerous members of the
society and in fact, which is morally wrong.
This could be seen ever since the society has established, there have been
existence of troublemakers also. To prevent such activities, it was necessary to
punish them so that it could pass a lesson to the society to not create such
nuisance in the society in future and among the punishments death sentence was
the most popular one. Use of death sentence can be dated as far as the
18th century B.C.E. where in the Code of King Hammurabi of Babylon, which
codified capital punishment for 25 different crimes.
The death penalty was also
in the Hittite Code which was in 14th century B.C.E., 17th century B.C.E.'s
Draconian Code of Athens, in which all crime was punishable by death. Until
19th century as there was no developed prison system the criminals were put for
execution more frequently to ensure no overcrowding of the limited cells
available and to ensure not much money is spending on the criminals.
In Pre-modern era the executions were conducted using various torturous and
painful methods like the breaking wheel, sawing, hanging, drawing, and
quartering, burning at the stake, flaying, slow slicing, impalement, boiling
alive and blowing from a gun. Even at the times when human lived together as a
tribe the death sentence was the part of their justice system.
In India before the invasion of British the punishments were given by the king
of the area by giving them what they called danda. It was given to the people
for the violation of Dharma that he or she may have committed. During that time,
the punishment was given depended on what caste the person belonged as when
caste is high then their wealth would be higher and their status also.
chances of getting capital punishment is much lower as they were capable of
giving a huge amount of fine whereas the lower caste people had less money and
so they had higher chances of getting death penalty for the same crime. Later on
for murder, family member of the victim has the option of blood money or he can
kill the murderer same way as he killed the victim. Later on when the East India
Company invaded India they started bringing their own court system in India and
slowly and steadily they created many laws and the IPC (Indian Penal Code) was
one of them acts which specified the crimes that are eligible for the capital
Capital Punishment: Notion and Types
Capital punishment or death penalty is legally killing a person as a punishment
because he has committed a grievous offence. The order passed by the court that
sentence someone with the death penalty is known as a death sentence, and
carrying out this sentence is known as an execution.
A prisoner who is waiting
for his turn to come for his execution is said to be on death row. Crimes those
are codified for the punishment of death penalty are known as capital offences
or capital crimes, and it depends on the jurisdiction, but commonly include
grave and heinous crimes against the person such as murder, child rape, child
sexual abuse, war crimes, terrorism, genocide along with crimes against the
state like attempting to overthrow
government, espionage, treason, piracy and sedition. There are many methods to
carry out executions such as hanging, lethal injections, shooting, stoning,
electrocution and gassing.
There are 55 countries those have retained capital punishment, 109 countries
have completely abolished it de jure for all crimes, and seven have abolished it
for some particular ordinary crimes (while maintaining it for special situations
such as war crimes). Although large number of nations have abolished capital
punishment but over 60% of the world's population live in countries where the
death penalty is retained, such as India, China, USA, Pakistan, Indonesia,
Bangladesh, Egypt, Iran, Nigeria, Saudi Arabia as well as in Japan.
Types of capital punishment
There are many methods of giving capital punishment to the criminals on death
Capital Punishment in India
- Stoning In this method, the criminal is beaten through stones till
death. It seems to be the most painful method of execution as offender dies
slowly bearing with lots of continuous pain.
- Shooting In this method, the criminal is either shot in his/her head
or in his/her chest.
- Hanging In this method, culprit is simply hanged till death.
- Electrocution In this method, the criminal is tied to a chair and a
high voltage current that can have a capacity to kill a man is passed
through the body. This leads to the organ failure especially heart.
- Tranquilization In this method, toxin injections are injected into
culprit's body that takes and he dies within several hours. This gives
criminal slow but painless death.
- Beheading In this method, they used to cut the criminal's head apart
India comes second in the matter of large number of population and this
population is consists of large number of criminals who commits grievous and
heinous crimes such as murder, rape, dacoity and human trafficking. In India all
the punishments are decided on the basis of the intensity of the crime
committed, increment in the imprisonment means the offence committed by the
wrongdoer is more heinous. If the punishment reached to the Capital Punishment
than crime must be of an inhumane nature.
Capital Punishment is one of the important parts of the Indian criminal judicial
system. According to the data on death penalty, more than 752 prisoners have
been executed in India since the independence. First executions of independent
India was of Nathuram Godse and Narain D Apte who were the assassins of Mahatma
Gandhi and they were hanged till death in Ambala Central Jail in Haryana on
November 15, 1949. The last execution was of the four convicts of the Nirbhaya
Gang rape case who were Pawan, Mukesh Kumar Singh, Akshay Kumar Singh and Vinay
Sharma on March 20, 2020 at 5:30 a.m.
Not a single objection was raised up in the British India's Legislative Assembly
about the capital punishment until 1931, when one member of the assembly from
Bihar, Shri Gaya Prasad Singh introduced a bill to completely abolish the
capital sentence for the offences under the Indian Penal Code, 1860. However,
the then Home Minister, Sir John Thorne replied to the motion and clearly stated
twice in the debates of the legislative assembly in 1946 that The Government
does not think that it is wise to abolish capital punishment for any type of
crime for which that death punishment is now provided.
At the time of the independence, India retained most of its laws from the
British colonial government, which included the Code of Criminal Procedure, 1898
(Cr.P.C.1898) and the Indian Penal Code, 1860 (IPC 1860). Section 53 of IPC,
1860 deals with the kinds of the punishments for the offender includes death
Section 367(5) of the CrPC. 1898 states that court shall in its judgment state
the reason and have to keep record of the reasons since why the court decided
not to impose the death sentence if the accused is convicted of an offence
punishable with death. In 1955, the Parliament nullifies Section 367(5), CrPC,
1898, by altering the position of the capital punishment. Now, courts did not
need to record any special reasons to explain why they were not imposing the
death penalty in cases where it was a prescribed punishment.
In 1973, the Code
of Criminal Procedure, 1898 (Cr.P.C.1898) was re-enacted and the numbers of
changes were made, notably to Section 354(3): When the conviction is for crime
which is punishable with death or, in the alternative, with imprisonment for
life or imprisonment for a term of years, the judgment shall give the reasons
for the imprisonment or sentence awarded.
This was a sensible modification from the situation following the 1955 amendment
and a reversal of the position under the 1898 law. Now, judges have to provide
special reasons for why they imposed the death penalty. These amendments also
introduced the possibility of hearing the accused on sentence after the
conviction, including the capital sentence, Section 235(2), states that if the
accused is convicted then the Judge shall, unless he proceeds in accordance with
the provisions of section 360, first hear the accused on the question of
sentence, and then award sentence on him according to law.
Supreme Court on validity of Capital Punishment in India
Article 21 of the Indian Constitution states that No person shall be deprived
of his life or personal liberty except according to procedures established by
law. According to the 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.
While the central government has consistently maintained the capital punishment
in the statute books to act as a warning for those people who are a threat to
the society, even the Supreme Court too has upheld the constitutional validity
of death penalty in rarest of rare cases through its judgments.
First in Jagmohan
Singh vs. State of Uttar Pradesh, 1973
, then in Rajendra Prasad vs. State of
Uttar Pradesh, 1979, and finally in Bachan Singh vs.State of Punjab, 1980, the
Supreme has announced the constitutional validity of the capital punishment. It
said that if death penalty is passed on the offender for the offence which he
has committed and the procedure is a fair, just and reasonable one, then the
death penalty can be awarded to a convict. However, this will only be held in
the rarest of rare cases.
Brief explanation on the criteria for rarest of rare
The principles have been laid down by the top Court in the landmark judgment in
Bachan Singh vs. State of Punjab (1980)
to deter what wouldcome in the rarest of
rare criteria. Supreme Court has laid down certain broad guidelines and said
that capital punishment should be given only when the option of awarding the
sentence of life imprisonment is unquestionably foreclosed. It was left
totally upon the court's discretion to reach this conclusion.
Facts of the case:
The Appellant Bachan Singh was convicted and sentenced for life imprisonment
for his wife's murder. When he got released from the jail after the completion
of his imprisonment, he was living with his cousin Hukam Singh. Once Vidya Bai
wife of Hukam Singh awakened midnight and saw that the Bachan Singh has
inflicting axe blow on her sister's face. On the attempt to stop him she also
got blown on her face and ear with axe leading injuries on her face and ear make
Hukam Singh with Gulab Singh followed him but he ran away. The
Supreme Court by a majority of 4:1 held that the provision of death penalty as
an alternative punishment for murder under section 302 insofar it is neither
unreasonable nor against the public interest. This case comes in the rarest of
rare case as Appellant was dangerous to the society, after his release he has
committed another 2 murders which shows possibility of committing another
heinous crime by him.
To understand the criteria of rarest of rare, we will discuss some more cases of
death penalty execution in India:
In the case of Dhananjoy Chaterjee vs. State of West Bengal
, accused raped a
14-year-old girland murdered her. He was a security guard of a same apartment
where the victim girl was living. According to the final official verdict, it
was proved that he raped her and then choked her to death.
The trial court
awarded him death penalty as a punishment which was confirmed by the High Court
for the offence under section 302 of IPC for the murder of a victim. Supreme
Court dismissed the appeal and said that this rape is most ruthless and comes
under the parameter of the rarest of rareas condition of a body of the deceased
was horrible which shows the brutality of the crime. On his 39th birthday, he was
finally hanged till death in Alipore Central Jail in Kolkata.
In the case of Mohammed Ajmal Amir Kasab vs. State of Maharashtra
, kasab was on
one of the ten terrorists who involved in the infamous 26/11 attack in Mumbai.
He was responsible for the deaths of thousands of people; it harmed the dignity
of individual's right to life.
Supreme Court bench upheld the death penalty on
August 29, 2012. Kasab had filed mercy petition which was rejected by the
President Pranab Mukherjee on November 5, 2012. He was hanged at Yerwada jail in
Pune on November 21, 2012 at 7:30 a.m.
In the case of Nirbhaya Gang Rape
, six men brutally raped a 23-year-old girl in
a bus in Delhi. It was the most heinous crime, whole nation was shocked and in a
terror after the news; and asking for the death sentence for all the accused to
provide justice to the victim.
For the period of two weeks, she had been treated
by the doctors of a Singapore hospital for her serious injuries to her body and
brain but after two weeks she died. Soon after the attack police arrested all
the six suspects. The oldest accused, Ram Singh who was 34-year-old, he was
never convicted as he has committed suicide in prison just after the trial began.
The youngest one was only 17-year-old at the time of incidence he got sentence
for three years in a juvenile correctional facility.
The other four accused were
Ram Singh's younger brother Mukesh Singh, cleaner Akshay Thakur, fruit seller
Pawan Singh and part time gym instructor Vinay Sharma. All the four accused were
hanged till death on March 20, 2020.
Comparative study of different countries
Position of ICJ on Capital Punishment
Capital punishment or death penalty is legal death penalty in the People's
Republic of China. It is mostly given to the offender for the commission of
murder or drug traffickingand executions are carried out by lethal
injection or gun shot. Section 5, Chapter III, Part One of Criminal Law of The
People's Republic of China defines death penalty in China.
By both confirmed and estimated data available, the number of deaths from
capital punishment in China is far higher than any other country, while it is
comparable to Vietnam and Singapore, and lower than several other countries,
including Saudi Arabia, Iran and Iraq. The number of executions has dropped
steadily in the 2000s, and significantly since 2007, when the Supreme People's
Court regained the power to review all death sentences; for instance, the Dui Hua Foundation estimates that China has executed 12,000 people in 2002, 6,500
people in 2007, and roughly 2,400 in 2013 and 2014.
The exact numbers of people
executed in China is classified as a state secret, occasionally death penalty
cases are posted publicly by the judiciary like in the certain high-profile
cases that happen there. Other media, such as Internet message boards, have
become outlets for confirming death penalty cases usually after a sentence has
been carried out. Because of the inaccessibility to official statistics of the
number of executions that occur within the death penalty system, academic
researchers must use data compiled by NGOs such as Amnesty International, which
is the most cited source of reports regarding rates of execution statistics.
In 2009, Amnesty International counted 1718 executions as having taken place
during 2008, based on all information available. Amnesty International
believed that the total figure was most likely to be much higher.
- United Kingdom
In United Kingdom, capital punishment was used as a punishment from ancient
times until the second half of the 20th century. In 1964, Peter Anthony Allen
and Gwynne Owen Evans were the last people executed in Britain who were hanged
on the same day. In 1965, capital punishment was suspended for murder and
finally it got abolished for murder in 1969. In 1965 the suspension of public
execution was a public experiment to see what will happen in such situation and
later it was permanently abolished on 1969.
The capital punishment remained a
legally defined punishment for certain offences such as treason until it was
completely abolished in 1998. In 2004, 13th protocol to the European Convention
on Human Rights was passed and since UK is a party to the convention so it
became binding on it. Protocol was prohibiting the restoration of the death
penalty for as long as the UK is a member to the convention. The Murder
(Abolition of the Death Penalty) Act 1965 is the law under which capital
punishment is abolished currently.
In India, death penalty is a legal punishment and permissible for
some crimes under the country's main substantive penal legislation, the Indian
Penal Code, 1860, as well as other laws. The most recent executions in India
took place in March 2020, four men who committed gang rape and murder of
Nirbhaya in bus hanged in Tihar Prison Complex in Delhi.
There are two modes for the execution of capital sentence which are hanging by
neck till death and shot to death though it is given in only in rarest of rare
cases. Capital Punishment is given as a mode of punishment in many provisions of
the Indian Penal Code 1860, The Arms Act 1959, The Narcotic Drugs and
Psychotropic Substances Act 1985, The Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act 1987,
The Air Force Act 1950, The Army Act 1950 and The Navy Act 1957.
The ICJ has always stands for the abolition of the death penalty everywhere and
supports all actions to achieve this goal. The ICJ considers imposition of death
penalty against the rule of law and humanity. It is an extreme form of cruel and
inhumane treatment and violation of most basic Right to life which is specified
in the Universal Declaration of Human Rights and Article (6) of the
International Covenant on Civil and Political Rights.
Reaction of ICJ on Nirbhaya Case judgment
After the decision has been taken i.e. death penalty to the four convicts in the
Nirbhaya Gang Rape case of 2012, The International Commission of Jurists
condemned the execution of the four convicts and urged Indian government to
abolish death penalty. In a press release, the organisation also said that it
is the duty of the government to introduce systematic changes in the legal
system which would deter violence against women and improve access to justice
The ICJ's Asia Pacific Director Frederick Rawski said that State
sanctioned executions are little more than public theatre that risk
celebrating and perpetuating violence at the expense of the rule of law, and
also said that the imposition of death penalty did nothing to improve the lives
of women. ICJ opposed capital punishment in all cases without exception as a
violation of the right to life and right to get freedom from cruel, inhumane or
Stating the ICJ's opposition to capital punishment, the
organisation called on the Indian government to take immediate steps to abolish
capital punishment from the legal system, as prescribed by repeated UN General
Assembly Resolutions. The Law Commission had recommended abolishing it for all
crimes other than terrorism related crimes and waging war.
The ICJ further added that under the right to life under the International
Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee
has made it clear that crimes not resulting directly in death can never be taken
as the basis for the imposition of the death penalty and India is also a part of
ICCPR. The ICJ is an active campaigner against the capital punishment all over
the world. It has been routinely talked about this issue through various
conferences, meetings and addressed this issue in various countries like
Botswana, India, Liberia and Pakistan and through interventions in various UN
and regional fora.
Pros and cons of Capital Punishment
County, Indiana, prosecuting attorney writes:
'There are some defendants who have earned the ultimate punishment; our society
has to offer by committing murder with aggravating circumstances present. I
believe life sacred. It cheapens the life of an innocent murder victim to say
that society has no right to keep the murderer from ever killing again. In my
view, society has not only the right, but the duty to act in self-defense to
protect the innocent.'
Amnesty International believes:
- Strong deterrent against violent crimes:
'Capital Punishment is more likely to deter more than other punishments because
people fear death more than anything.' said Ernest van den Hang, Professor of
Jurisprudence at Fordham University. The goal of law is to provide deterrence
against the violent crimes so they can set an example in the society of proper
The best method to stop the person from committing a crime is to
show him the fear of consequences of his actions. Like there is a saying that if
people will do any immoral act in the present life then they will go into the
hell after the death, so it prevents people from doing the immoral act as they
have a fear of going into hell. In the same way fear of capital punishment can
prevent a person from committing a violent crime as a losing of one's life is a
greatest fear of an individual. It also acts as a moral to the rest of the
The criminal should be punished with the same intensity of punishment so he
would be able to realize how much loss he has created to the victim, no matter,
even if it is a capital punishment. If the criminal has snatched the peace,
liberty or life of any individual then the justice says that he should also be
deprived of all these facilities so he can realize his offence and victim can be
provided with the justice.
- A sentence of life in prison is disproportionate to the capital
If a convict of a capital crime provides a life imprisonment in a prison, then
it would not a justice provided to the victim and disproportionate outcome of
the action. If the crime committed by him is rigorous then he should also get
the rigorous punishment.
'The death penalty is the ultimate denial of human rights. It is the
pre-meditated and cold-blooded killing of a human being by the state in the name
of justice. I t violates the right to life
It is the ultimate cruel, inhuman and
degrading punishment. There can never be any justification for torture or for
cruel treatment. Both rights are protected under the Universal declaration of
Human Rights, adopted by the UN in 1948'
- Capital Punishment failed to deter violent crimes in many states:
Capital punishment many times does not show its effect on the rates of violent
crimes. Ironically, it has been seen that states with most executions have the
higher murder rates. As capital punishment was created to deter the violent
crimes, law makers felt that people will fear of losing his/her life so it will
prevent from committing violent crimes. But it seems ineffective for the motive
it was created.
- It creates a revenge factor which may not best serve justice:
The theory which demands eye for an eye is the strongest argument of the capital
punishment. How can it be justified if the state would do the same thing which
murderer does, to provide justice? Life is a precious gift of God; no one has a
right to devalue it and it offers the tragic illusion that we can teach that
killing is wrong by killing. Retribution is a positive term of revenge, actually
it is a revenge which is morally wrong and when something is morally wrong, it
cannot be legal.
- The death penalty can execute someone who is possible innocent:
No one can be perfect, everyone makes mistakes. This implies on the judiciary as
well. Their decisions may go wrong at times which lead to the wrongful execution
of innocent people. In this case an innocent person's life is lost which cannot
be reversed back. There have been cases when justice system has introduced false
evidence against the defendants and he got executed. Accused can be coerced to
admit his guilt or witness can be manipulated. Sometimes there is a biased
decision in which all accused of the same crime are not punished equally.
In our opinion, after analyzing pros and cons of capital punishment and looking
at the situation of crime in different countries we can only say that having
capital punishment is right. As even if there is no capital punishment then
there will be no improvement in crime rate but there can be an explosive rise in
crime rate as there will be no fear of death anymore among criminals. Even if
the crime rate is increasing under the fear of capital punishment we cannot
imagine the consequences of removal of capital punishment in such country.
Capital punishment can also provide a form of relief to the families of the
victim and help in removal of pests known as criminals who have already done
something so inhuman which cannot be forgiven and such people cannot be allowed
to move around freely as it will do more harm than good. Also the argument of it
being cruel is invalid as there is no torture involved and in modern time
capital punishment is given in the most humane manner possible.
Moreover, even if we decided to not let the criminal be released there is a
small chance that he might escape from there and moreover if we give them life
time sentence it also means that we are feeding him and giving him a place to
sleep for life time for the crime he has done which is not fair to the victim or
his family. Moreover, in India the capital punishment is given on rarest of rare
cases as it tries to keep the rights and morality of the society intact and it
cannot be questioned as to save one person the whole society cannot be
- India. Law Commission of India, Report No.262 on Death Penalty, August
2015, pp. 17-18
- Op.cit. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
- Jagmohan Singh v. State of U. P. (1973) 1 SCC 20
- Bachan Singh v. State of Punjab (1980) 2 SCC 684
- DhananjoyChatterjee v. State of West Bengal and Ors. (2004) 9 SCC 751
- Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1]
- Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1
- https://www.cusb.ac.in/images/cusb-files/2020/el/law/CAPITAL PENALTY AND
SENTENCING POLICIES_LLM 2nd Sem.pdf
- Ayush Pandita (B.A.LL.B/ Sem. 4th/ Lloyd Law College, Greater Noida)
- Radhika Yadav (B.A.LL.B/ Sem. 4th/ Lloyd Law College, Greater Noida)