The death penalty, often known as capital punishment, is the execution of a
person condemned to death after being convicted of a criminal offence by a court
of law. The terms death penalty and capital punishment are frequently used
interchangeably, despite the imposition of the sentence does not necessarily
result in execution due to the possibility of commutation to life imprisonment.
Capital punishment is considered the gravest type of punishment, and it is
provided to those who have committed the type of crime that is grievous, against
humanity, and for which there need to be set an example in society. The
definition, extent, and implication of the term 'capital punishment are
different among countries worldwide, but the one common thing is that it means a
sentence of death.
This is an effort to understand the concept of capital punishment, its
historical background, why it is under a deterrent theory of punishment and
should be imposed or not.
No country around the globe exists where incidents of capital punishment cannot
be traced. The history of human civilization reveals that capital punishment has
been awarded as a mode of punishment during no time period. Historically, the
death penalty was given to pacify the Gods or set an example on the society that
what particular types of crimes are considered anti-social and cannot be
entertained in any form.
A criminal was considered a person who refused to think
what was right and who had willfully chosen to do wrong and outrage his social
groups and the Gods. This was a revenge theory. A person's life deserved to be
forfeited who willfully chose to do wrong and outrage his social groups or
brought profound loss to anyone. Another purpose that could be seen as the
reason for capital punishment is that the death penalty is considered a far more
powerful and effective deterrent than life imprisonment because man fears death
more than imprisonment.
Deterrent is a word that meaning to dissuade
, and it aims to dissuade bad
minds from taking the wrong and illegal path. Among the five theories of
criminal jurists, deterrent, retributive, preventive, reformative, and
expiatory, this particular theory establishes the dreadful consequences, i.e.,
punitive actions against the wrongdoer, in order to curb the threats of would-be
evildoers, and it also deters criminals from committing the crime again.
fear of being caught is considerably more terrifying than the severe punishment,
according to deterrent theory; when the legal system successfully punishes a
criminal, it has demonstrated its power in capturing the criminal. A criminal's
behavior is likely affected by seeing a uniformed policeman with handcuffs and a
pistol rather than the strict penal provisions on paper.
Over the years, the death penalty has not been very effective in deterring the
most heinous crimes in society had it been so there had been only one death
sentence to date for a similar type of offense, drawing the point to the number
of increasing rape cases in the last decades it is very disheartening that a
complete dead stop to this offense has not been achieved.
India is one of the largest countries in the world, which also has numerous
crimes and culprits, and to manage with them, we have veritably strong laws in
India. Though in India, it is given only in the rarest of rare cases. Capital
punishment is described in the Indian Penal Code and the code of criminal
procedure. Capital punishment has been there in India since the very beginning,
and as times passed, its use has been limited.
In India, deciding the case for the death penalty is based on the doctrine of
"rarest of the rare test," which was started in the case of Bachan Singh v/s
State of Punjab
. This means that the death penalty will only be awarded in the
rarest of rare cases. Further, in the case of Macchi Singh & Others v/s State of
- the Three-Judge Bench followed the decision of Bachan Singh.
It stated that only in rarest of rare cases when the collective conscience of
the community is in such a way that it will expect the holders of the judicial
powers to inflict the death penalty, then it can be awarded if the murder is
committed in an extremely brutal, revolting or dastardly manner to arouse
intense and extreme indignation of the community, a murder of a member of a
Scheduled caste is committed which arouse social wrath, in case of Bride
or Dowry Death,
when the crime is enormous in proportion when the
victim of murder is an innocent child, a vulnerable Women or a person rendered
unaided by mature epoch or illness.
In the case of the death penalty, when the punishment of death is awarded, it
also limits the scope of introducing new facts or laws in the case. Once a
penalty has been carried out, it cannot be reversed.
Arguments regarding Capital punishment
The morality of capital punishment and its impact on criminal conduct have long
been a source of heated discussion. People who murder with the intention of
taking another's life, according to supporters of the death penalty, have
forfeited their own right to life. They feel that capital punishment is a
reasonable form of revenge that expresses and reinforces the moral outrage of
not only the victim's family, but all law-abiding individuals.
further argue that capital punishment is intrinsically inhumane and demeaning,
as it violates the convicted person's right to life. Few argue that research has
shown that the capital punishment is not a more effective deterrence than the
alternatives of life in prison or long-term incarceration.
While some proponents
of capital punishment argue that it has a particular deterrent impact on
potentially violent offenders for whom the prospect of jail is insufficient,
others argue that it is ineffective. Those who favour capital punishment think
that rules and procedures may be designed to ensure that only those who deserve
to die are given death penalty.
In India's legal system, the death penalty is enshrined in the Indian penal
code, enabling it to be used only in the most extreme circumstances. The Supreme
Court declared that the death sentence should be reserved for the rarest of
situations. However, it is unclear what constitutes rarest of rare
According to Section 302 of the Indian penal code, anybody who commits murder
faces the death penalty or life imprisonment and a monetary penalty.
Further, according to Section 303 of the Indian penal code, if a person serving
a life sentence commits murder, he would be sentenced to death. The
constitutionality of the capital penalty was questioned under the careful eye of
the Supreme Court in the case of Jagmohan Singh v State of Uttar Pradesh
Articles 14, 19, and 21 of the Constitution were violated by Section 302 of the IPC.
The Court upheld the death penalty as constitutional, holding that the
right to life is the cornerstone of the opportunity established under Article 19
and that no legislation may be sanctioned that takes away a person's life unless
it is reasonable and out in the open publicly.
In India, Protection of life and personal liberty
is Article 21 of the Indian
Constitution. "No person should be deprived of his life or personal liberty
unless in accordance with the method prescribed by law," the article states..
According to this article, every citizen in India is guaranteed the right to
life. In India, the Indian Penal Code (IPC) punishes many offenses with the
death penalty, including criminal conspiracy, murder, waging war against the
government, abetting mutiny, dacoity with murder, and anti-terrorism.
Constitution allows the President to commute the death penalty. Further, Article
134 provides for: In any instance where the capital sentence was inflicted on an
accused in the reversal of an acquittal judgment, an accused has the right to
appeal the high court ruling to the Supreme Court.
The death sentence is frequently considered a measure of retaliation against the
victims or their families for any horrific crimes or inhumane conduct. However,
it is not always possible to use this sentence in every situation when the
general public believes it is the most appropriate penalty. In this sense, it is
difficult to argue that the death sentence was irrational or unnecessary in a
If the whole method for a criminal preliminary under the CrPC
for arriving at a death sentence is valid, then the inconvenience of capital
punishment as enacted by law cannot be considered illegitimate. It was decided
that, unlike Article 21, Article 19 does not deal with the right to life and
individual liberty, and hence is ineffective for determining the legality of
Section 302 IPC's arrangements.
In regard to Article 21, it was determined that
the founding fathers saw the right of the state to deprive an individual of his
life or individual freedom as a just, reasonable, sensible, and fair technique
established by law. There are a few signs in the Constitution that show that the
Constitution's authors were completely aware of the presence of capital
punishment, such as Entries 1 and 2 in List II, article 72(1)(c), and Article
The doctrine of Rarest of the Rare Cases.
Bachan Singh v. the State of Punjab
 was the first case to establish the
doctrine of the Rarest of Rare. In this decision, the Supreme Court sought to
establish a theory specifically for offenses punishable by death to clear up an
ambiguity for courts about whether to use the worst punishment available.
year 2008 is remembered for the case of Prajeet Kumar Singh v. the State of
, in which the Court defined what a "rarest of rare instances" is. Only
"where a murder is performed in a highly violent, deformed, wicked, vile, or
despicable style to elevate acute and great anguish of the community" can a
death sentence be issued, according to the Court.
The rarest of rare dicta
merely acts as a guideline in executing the provisions listed in Section 354(3)
of CrPC and entrenches the principle that life imprisonment is the rule and
death sentence is the exception.
The Supreme Court said in Santosh Kumar
Bariyar V. State of Maharashtra.
According to Article 21 of the Indian
Constitution, no one's 'Right to Life
' may be taken away unless it is done
It has also been suggested that the decisions made in accordance with this law
are made subjectively. For example, when a man hacked off his better half's head
and executed her for the sake of loyalty, the Supreme Court had no hesitation in
ordering it as a rarest of rare instance and mandating death. The decision in Amruta v. State of Maharashtra
 is relevant here as an example of a
circumstance where the Court would not grant death in any case, even though
comparable realities were there, as in the case previously described. The Court
found that a cold-blooded, cruel, and brutal killing of a young woman of
exceedingly young age after committing assault on her deserved to be classified
as the rarest of rare.
The SC upheld the constitutionality of capital penalty by a majority of 4:1, and
a rule was established that capital punishment must be justified explicitly in
the rarest of rare situations. The scope of this manifestation, however, remains
unknown. The Bachan Singh case's
Ratio Decidendi is that death punishment is
holy if it is accepted as an option for homicide and if the typical sentence
suggested by law for homicide is detention for life. This means that death
penalty must be imposed in the rarest of circumstances, if there is no other
India's Stand On Capital Punishment
India retained the 1861 Penal Code, which included the death penalty for murder,
until it attained independence in 1947. During the creation of the Indian
Constitution between 1947 and 1949, some members of the Constituent Assembly
supported abolishing the death penalty, but no such provision was included in
the text. Throughout the next two decades, private member legislation to abolish
the death penalty was introduced in both the Lok Sabha and the Rajya Sabha, but
none of them was enacted.
India voted against a UN General Assembly resolution asking for the death
penalty to be abolished. In November 2012, India reaffirmed its opposition to
capital punishment by voting against a UN General Assembly draft proposal
calling for the death penalty to be abolished.
Bachan Singh v. the State of Punjab
, a landmark decision from 1980, ruled
only in the most exceptional circumstances. The Court was unable to abolish
capital punishment in Indian law. According to Articles 21 and 19 of the Indian
Constitution, the right to life is a basic fundamental right that all people
have. Justice Krishna Iyer declared in Rajendra Prasad v. State of Uttar
 in 1979 that capital punishment violates Articles 14, 19, and 21.
The Supreme Court reversed Justice Krishna Iyer's decision in Bachan Singh v.
State of Punjab
When the death penalty is awarded to the accused, it is more than merely a
punishment; we end or kill a person in the name of justice and law. Opposing the
death penalty does not mean that someone is supporting the criminal. We are no
one to decide who gets to live and who gets to die on the basis of rules and
regulations which we made ourselves. The death sentence is founded on deterrent
theory, which in general sets an example by instilling dread in the minds of
others, although there are undoubtedly other methods to establish a leading
example, such as in reformative theory.
As a civilization, we need to eliminate the offense, not the illegal. A chance
of improvement can change the life of an individual and can offer him a chance
to get back into society, and hence reformative theory has its advantage over
Award Winning Article Is Written By: Ms.Tanushree Kaushik & Mr.Tushar Chauhan
- Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p.1.
- Op. cit. Capital Punishment by Dr. Subhash C. Gupta 2000, p.1.
- Barnes & Teeters, "New Horizons in Criminology" (3rd ed. ) pp. 314-315.
-  INSC 563
- AIR 1983 SC 629
- General Assembly GA/10678 Sixty-second General Assembly Plenary 76th &
77th Meetings". Annex VI. Retrieved 30 July 2013
- General Assembly GA/11331 , Sixty-seventh General Assembly Plenary 60th
Meeting". 20 December 2012. Annex XIII. Retrieved 30 July 2013
- AIR 1980 SC 898
- 1979 AIR 916, 1979 SCR (3) 78
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