Abstract

Life as a human is precious to one and all. This realization extrapolates its importance to gigantic
heights, sometimes not comprehendible even in words. Now, is it justifiable that such a precious
entity be snatched away from the clutches of an individual, that too by exercising the provisions
of law by using it as an excuse for a legal remedy?
In the 21st century where human rights form a prominent policy of every nation, a major concern
of the United Nations primarily, the existence of something as horrendous as the provision of
death penalty contradicts the belief of human rights wholeheartedly, reducing its position to a
farce at times.
The very structure of death penalty needs to be reviewed in this age of globalization- its legal,
sociological, political and even the psychological aspects. This essay makes an attempt to delve
into the realms of the concept of death penalty and comprehensibly answer whether capital
punishment is justified and required in this modern era, highlighting that such a barbaric act does
not deserve a place in our modern day setup or even if it does, is it really that necessary? Does
taking away a persons life serve justice as it should?

Death Penalty: Contemporary Issues

The modern world claims to be civilized and yet, the most heinous and barbarous activities are a
common part of this modern and civilized society. The law regulates the conduct of the society
and hence even in such times as ours we still have certain barbaric laws to meet rare
circumstances where human behavior can reach such levels so as to be termed as being
diabolical and grotesque. Death Penalty is one such penal provision in law. And due to existence
of such rare human behavior, it has been quite easy for the Supreme Court to uphold the validity
of the Capital Punishment11, but with caution that it should be granted only in rarest of the rare
cases2.
In the words of Oscar Wilde, its clearly illustrated as to how much important life is. He said, To
live is the rarest thing in the world. Most people exist, that is all. Life is the gift of God and so it
should be preserved. Now, when such beautiful lives are taken away from certain people, is it
justified?
Is it correct when people have to surrender the right to breathe, before the time granted by ones
mortality?
Some person in an act of revenge or in a surge of emotions kills someone, whereas some have
murdering as their profession for performing this act, which results in a hefty remuneration. In
all these above mentioned cases, one thing is common- Due to the act of one person, another
losses his life. Now, such an act causes disturbance in the society, disharmony finding its
inception and the sense of latent fear finds a place in the minds of the people. Now in order to
overcome such problems, every State makes such law which binds the people from committing
murder. Hence, the concept of capital punishment found its place in the human society.
Many people advocate their open support for capital punishment. But then, these people fail to
realize that this support arises out of frustrating emotions. However, while dealing with

1 Jagmohan Singh v. State of U.P.,AIR 1973 SC 947 & Bacchan Singh v. State of
Punjab AIR 1987 SC 947
2 Macchi Singh v. State of Punjab AIR 1987 SC 947

something as sensitive as the capital punishment, where a persons life is at stake, judgments and
decisions need to be made, rather dispassionately and pragmatically, essentially.
But there are various other sections of the society who are against capital punishment. They
argue that death penalty is applied arbitrarily and inconsistently. Unfortunately, innocent
people too, have been wrongly convicted and sent to the gallows, tragically being killed by the
State. It must be kept in mind that even a rehabilitated criminal can make a morally viable
contribution to our society.
Hence this debate as to the provision of capital punishments existence goes on.

LEGAL ASPECT

The practice of capital punishment has always been a part of the Indian Judicial system. It was
incorporated onto the IPC (Indian Penal Code) right from the beginning in 1860. Similarly, it
was also present in the Criminal Procedure Code (1898). According to Section 367 of the CrPC,
a person convicted of murder was to be sentenced to death.

The execution of death sentence in India is carried out by two modes namely hanging by neck till
death and being shot to death. . Once death sentence is awarded and is confirmed after
exhausting all the possible available remedies the execution is carried out in accordance with
section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death. It is also
provided under The Air Force Act, 1950, The Army Act 1950 and The Navy Act 1957.
As a law, Article 21 has secured the personal liberty of an individual and gives its word that the
flame of life would never ever douse except according to the procedure established by law.
Maganlal Barela was sentenced to death in 2011 by the M.P. High Court for murdering his five
infant daughters, after a heated argument with his wives over property. Last month, Barelas
clemency petition, the Supreme Court after nearly 18 months, turned down his appeal. It is
unclear how long Rashtrapati Bhavan took to decide Barelas fate but within days of it doing so,

he was served a black warrant and readied for the gallows. The alacrity with which the
establishment pursued his hanging reflects a disdain for his constitutional rights3.

PSYCHOLOGICAL ASPECT

Quoting Sir James Fiziomes Stephen, the Great Jurist

No other punishment deters man so effectually from committing crimes as the punishment
of death. This is one of those propositions which are difficult to prove simply because they
are in themselves more obvious than any prove can make them. In any secondary
punishment, however terrible, there is hope, but death is death, its terrors cannot be
described more forcibly.4

A few think that all offenders are ill and need to be cured but the majority of criminologists
see punishment as a means of educating the offender. .
In Ravji v. State of Rajasthan5, a Division Bench observed that it is the nature and gravity of the
crime but not the criminal, which are germane for consideration of appropriate punishment in a
criminal trial. A dispassionate analysis of criminological jurisprudence would reveal that capital
punishment is justified only in extreme cases in which a high degree of culpability is involved
causing grave danger to society.

3The editorial Board, Justice as a game of chance, The Hindu,

http://www.thehindu.com/opinion/editorial/justice-as-a-game-ofchance/article5019652.ece, last visited July 23, 2013
4MR. JUSTICE MARSHALL, FURMAN v. GEORGIA, 408 U.S. 238 (1972), http://www.univnancy2.fr/CEAA/CRESAB/Marshall.htm, last visited on July 23, 2013

5 Ravji v. State of Rajasthan, 1996 AIR 787, 1996 SCC(2) 175

In Narotam Singh v. State of Punjab6, the Supreme Court has taken the following viewReformative Approach to punishment should be the object of criminal law, in order to promote
rehabilitation without offending community conscience and to secure social justice.

The French writer Albert Camus contended that the convict awaiting death at a certain date
suffers more than his victim did. Suffering is hard to measure and compare. But the alleged
excess suffering of murderers does not argue against the death penalty. A burglar, rapist or
murderer may suffer more, or less, from the penalty than the victim did from the crime. The
penalty is meant to vindicate the social order and not just the suffering of the victim. A murderer
makes life insecure by defying the law. Society denounces his crime and vindicates its law by
executing the murderer regardless of whether the victim did or did not suffer any pain whatever.

The Sociologists suggest that the murderer should be sentenced for life to work and support the
family of murdered person as well as his own. Moreover, such measures would provide the
criminals with an opportunity to reform him. He would be under strict watch and if his conduct is
satisfactory, he may be allowed to return to society as a useful member of it.7

SOCIO-POLITICAL ASPECT

To shut up a man in prison longer than really necessary is not only bad for the man
himself, but also it is a useless piece of cruelty, economically wasteful and a source of loss to
the community.8

Hindu dharma talks of Nark for evil doers, Muslim talks of Jhanum and Christianity talks of
Hell for evildoers but at the same time without any exception, every religion talks of reforms.
6 Narotam Singh v. State of Punjab, AIR 1978 SC 1542, 1978 CriLJ 1612, (1979) 81
PLR 65.
7 http://en.wikipedia.org/wiki/Islam_and_violence last visited on July 23,2013
8 As quoted in Burghess, J.C. in(1897), U.B.R. 330;p.334

Killing human beings in order to solve social problems is deeply uncivilized.

The death penalty is usually defended on two grounds: that it is useful and that it is just.
Usefulness is thought to lie in the exemplary effect of the death penalty-in establishing
dramatically that the society will not tolerate behavior so unforgivably destructive as murderthen there arises the unanswerable question of how a society can teach the killing people is
wrong by itself committing spectacular premeditated violent homicide.

The power of pardon is recognized by almost all civilized countries and therefore provided for as
an act of grace and humanity.9 A question still plagues: Can the power vested in the executive be
misused? This question can be answered through the famous quote Power tends to corrupt and
absolute power corrupts absolutely.10

There is a presumption of misuse of the Clemency Power by the executive, and it will not be
unconstitutional to subject the use of such power by the governor or the President to Judicial
Review. This would especially be better in the Indian System, where politicians are governed by
considerations to influence the vote bank and misuse any and every power given to them. The
judicial institution must protect the interest of the society. Murderers and persons convicted for
waging war against the government of India should not be allowed to go scot free, merely
because of political considerations, when once capital punishment has been given to them.
Justice Kapadia pointed out that Rule of Law is the basis of all the decisions and the rule cannot
be compromised on grounds of political expediency.

This recent decision gains significance in the midst of controversy over clemency plea of
Mohammed Afzal, ordered to be hanged for his role in the December 2001 Parliament attack
case. This decision of the Supreme Court has made it clear that the clemency power given to the
executive is not beyond the judicial review.
9 American Jurisprudence,vol.59, 2nd Edn.pg.5;Corpus Juris Secundum, Vol.67-A,
pg.16 &17
10Lord Acton, Letter to Bishop Mandell Creighton,1887

Ajmal Kasabs death sentence was upheld by Indias Supreme Court on 29th August 2012, and his
mercy petition was reportedly rejected by the President on 5th November. Prior to Kasabs filing
of his petition, 11 mercy petitions from persons on death row were pending before the president.
Kasabs lawyer and family in Pakistan were not informed of the imminent execution, in violation
of international standards on the use of the death penalty.

Ever since the Delhi Gang Rape case, Indias political leadership has been loudly engaged in
what it appears to believe is advocacy of womens right in the main, dramatic but meaningless
calls for mandatory death penalties. The same leaders will, if past record proves a guide, do
absolutely nothing to actually address the problem in its totality.

CONCLUSION

Imposition of death sentence is the paragon of Punishment, which ends a human life; therefore
restrictions have been imposed under the law to give special reasons for awarding the extreme
punishment. These special reasons must relate, not to the crime as such but to the criminal. The
crime may be shocking and yet the criminal may not deserve the death penalty, Justice V.R.
Krishna Iyer commented in Rajendra Prasad v. State of U.P.11

Is the death penalty proper because it is just, irrespective of its usefulness? If that means that the
punishment should be like the crime, then by that principle we would rape rapists and torture
torturers? A civilized criminal justice system does not use so irrational and unacceptable a mode
of selecting punishments. If justice here means that the penalty should be proportional to the
crime, then the principle is sound but does not require support for the death penalty. It means,
rather, that crimes other than murder should be punished less severely. Capital Punishment

11 Rajendra Prasad v. State of U.P.,1979 AIR 916, 1979 SCR (3)78

violates elementary human dignity and human rights and therefore cannot serve the ends of
justice.
The death penalty does not deter crimes and it is uncivilized in theory, unfair and inequitable in
practice. It should be recognized as cruel and unjust punishment. Hence, this practice of death
penalty, should consciously be discontinued in lieu of the fact that any human life is precious and
taking it away is grossly unethical, even that of a murderers.

BIBLIOGRAPHY
BOOKS:
1. Agarwal Nomita, Jurisprudence Legal Theory, Central Law Publication.
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3. Dr. Gupta C. Subash, Capital Punishment, Jnanada Prakash (P & D).
4. Dr. Kumari Krishna Areti, Death Penalty New Dimensions, The Icfai University Press.
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