1

A Report
On

Death Penalty in
India
PREPARED FOR

Prof. Geetha B.

Submitted By
Anant Chandrasekhar
2015A3PS213G
Kaushik Reddy 2015A4PS384G
Duvvuri Mythreya 2015A4PS342G
Shelly Kothari 2015A3PS246G
Akriti Anand 2015A3PS190G

Table of Contents
Acknowledgments
i
Abstract

...
...ii

List of Illustrations
...iii
1. Introduction...............................................................
...............................
2. History......................................................................
.................................
2.1 History of Death Penalty in
India........................................................
3. Crimes Punishable by
death......................................................................
3.1. Aggravated
Murder.......................................................................
...
3.2. Terrorism related
offences...............................................................

3.3.
Rape..........................................................................
........................
3.4.
Treason.....................................................................
........................
3.5. Military
Offences....................................................................
..........
3.6. Other
offences....................................................................
..............
3.1.1.
Abetting a Capital
Offence........................................................
3.1.2.
Kidnapping...............................................
..................................
3.1.3.
Drug
Trafficking.........................................................
................
3.1.4.
Others......................................................
..................................
3.7. Other offences resulting in
death....................................................
4. Methods of
execution..................................................................
.............
4.1.
Shooting................................................................
............................
4.2.
Hanging.................................................................
............................
5. Death Penalty in Independent
India.........................................................
5.1 Important
Cases........................................................................
........

5.2 Attempts to abolish Death

Penalty...................................................
5.3 Public
Opinion......................................................................
.............
5.4 Significant Changes in the Numbers
Involved..................................
6. Clemency...................................................................
...............................
6.1.
Power of the
President...............................................................
.....
6.2.
Categories of Offenders Excluded from the
Death Penalty..............
7. International Human Rights Bodies and Indias
stance...........................
8. Impacts on the
society.......................................................................
.....
8.1.
On Government
Bodies..................................................................
8.1.1.1.
Clash with Constitutional
Rights...................................
8.1.1.2.
Potential Abuse of
Power.............................................
8.2.
On
Society..................................................................
.....................
8.2.1.1.
Effect on Ordinary
Citizens...........................................
8.2.1.2.
Deterrence.........................................
...........................
9. Conclusion.................................................................
..............................
Appendix
...
iv
References
...v

Acknowledgments
We would like to express our deepest appreciation to all those
who provided us this opportunity to complete this report. A
special gratitude we give to Prof. Geetha B., whose contribution
in stimulating suggestions and encouragement, helped us
coordinate and write this report.
Furthermore we would like to acknowledge with much
appreciation the crucial role of the people who responded to

the survey conducted, taking out time to fill the survey forms
and giving us all required data for analysis.

We are immensely grateful to all involved in this project without

whom it would not have been possible to develop the report in
prescribed time.

Abstract
In this report, the Death Penalty is examined in prodigious
depth. The history, authenticity and the quality of the
punishment have been analysed in great detail.
The History of Capital Punishment has been included in the
report, containing a certain number of relevant historical
occurrences. The evolution of the Death Penalty over history
has been studied, analysed, and presented thus. The history of
the death penalty in India has also been mentioned in the
earlier sections of the report, along with a handful of statistics.
The crimes which come up in the analysis of the death penalty
have been examined in a pronounced manner, containing the
Courts stance of several of them. The crimes which are
currently punishable by death, and the crimes that arent have
been included in this section of the report.
There are two methods of execution being followed in the
Republic of India, namely shooting and hanging. These
procedures along with their history and the corresponding
articles in the Constitution have been described in great detail.
In probably the most informative section in this report, the
death penalty in Independent India has been looked into
thoroughly, along with a flurry of statistics to help complement
the necessary conclusions the reader can draw upon. That the
Supreme Court considers the death penalty to be a weapon
that has to only be used in the rarest of rare cases has been
studied in detail. The important cases drawn from the Death
Penalty Database have been included for the reader to draw
examples from. There have been a lot of attempts from various
individuals as well as organisations to abolish the death
sentence. This has been elucidated in detail. Public opinion
about a handful of issues (the survey of which can be found in
the Appendix) regarding the death penalty has been described.

The President of India has special powers regarding Capital

Punishment, and this power has been elaborated in detail,
under Clemency. There are a bunch of categories of citizens
excluded from the death penalty, mentioned1. Individuals who were below the age of 18 at the time of the
crime.
2. Pregnant women sentenced to death.
3. Individuals who were mentally ill at the time of the crime and
who did not
understand the nature of the act or know that
the act was wrong or against the law.
The stance taken by several organizations around the world
plays a vital part in the functioning and the dispensing of the
death penalty. The United Nations General Assembly adopted a
resolution asking countries that retain the death penalty to
establish a worldwide suspension on executions with a view to
abolishing the death penalty. Further information has also been
provided, along with statistics supporting the same. The Asian
Centre for Human Rights believes that life imprisonment is an
equally effective alternative to death penalty. Amnesty
International, and NGO, opposes the death penalty at all times,
regardless of who is accused, what the crime is, and if the
defendant is innocent or guilty.
The death penalty has a large impact on various functioning
bodies in India. It is a hotcake for debates around the country. It
has been banned in at least 140 countries. There is also the
question of whether the death penalty violates the Indian
Constitution. The answer is no, it does not, for reasons
elucidated in the report. There is also a fear of the potential
abuse of power which comes with the dispensing of the death
sentence. There is no Constitutional definition of rarest of rare.
Examples have been provided to clearly understand the need
for debate. The effect on ordinary citizens is devastating to look
into, as the victims families are also affected by the death
penalty. Afzal Gurus family received a letter containing the

details of his execution 2 days post the execution. One of the

major questions is whether capital punishment is a better
alternative to life imprisonment. One way to answer this
question would be to actually implement the capital
punishment, and to check whether the crime rates are actually
going down. That has already been done, and results show that
deterrence of crime is not the outcome. One of the main
assumptions of the deterrence theory is that the person
committing the crime is a rational decision maker. Conversely,
a great number of offences are committed in a fit of rage or
anger, or are motivated out of heavy emotions such as
revenge. In circumstances such as these, the person
committing the offence is bound to ignore all concerns and go
ahead with the crime anyway, thus rendering the assumption
incorrect.

10

List of Illustrations
1. Figure
1............................................................................
...............
2. Figure
2............................................................................
...............
3. Figure
3............................................................................
...............
4. Figure
4............................................................................
...............

11

1. Introduction
The question about life and death have been intertwined
irrevocably since humans have begun to fully comprehend
both aspects that belong to the universe that we inhabit.
Also since that time was the question of crimes and
punishments, as well as the taking of others lives. Human
civilisation is not a constant and thus far we have separate
routes of dealing with our own problems. However, the very
word civilised bestows an innate restriction on its
adherents. With the formation of uniform Law codes
throughout ancient until modern periods, we have since been

12

dealing with crimes and those committing them in this

civilised manner.
Arguably, the most extreme and final of these punishments
for crimes committed is the Death Penalty. The Death
penalty has been a punishment since ancient times. Crimes
as well as the mode of punishment correlate with the culture
and form of civilisation from which they emerge. Capital
punishment is no exception to this. The arguments for and
against have not changed much over the years .The debate
about capital punishment has assumed itself from the
methods to the very question about its legitimacy and with
regard to basic constitutional rights.

Objective and Scope

The objective of this report is to examine the debate of
capital punishment in the Republic of India and to put
forward conclusions regarding a limited number of aspects of
the death penalty as applied in India. Bearing in mind the
arguments for both sides, this report objectively analyses
and enhances the history, authenticity and quality of capital
punishment. In addition, it takes the opinions from the
populace with regard to this subject and their views on
possible amendments with regard to the death penalty.
The purpose of this report is strictly confined to three major
fields:
a) Research into the history of capital punishment in India
including crimes for which it is awarded and also methods of
execution.
b) To study the opinions of the citizens of India with respect
to the presence and current status of Capital Punishment in
the country.

13

c) To put forward certain concisions with regards to Capital

Punishment in India, based on research done and the
opinions of the people of India.
The scope of this report is limited to that of India. While the
report does tread briefly upon other civilisations and nation
states in terms of history of capital punishments, however
the majority of this report assumes the position of capital
punishment as sentenced and dealt with in India.

Methodology of data collection

The methodology of data collection includes references from
many internet databases and websites, as well as through an
online questionnaire. People from age groups ranging from
teenagers to elder citizens come under this survey, and it
also includes people from various professions and diverse
fields of research and application.

Significance
This report signifies the present mind-set of the people
towards the sentencing of the death penalty and the various
impacts its mere presence can have on the mind-sets of
people, including criminals themselves. It can prove to be
capable of imbibe certain awareness to the populace
regarding crimes and their erstwhile punishments, including
the death penalty.

14

2. History
Capital punishment, death penalty or execution is a
government mandated and enforced punishment by death. It
has been used by all societies, governments, nation states
and Empires. Written records of death penalties have been
recorded since the beginning of history. Historically the
methods of execution are as varied as they are today,
historical methods include breaking wheel, boiling to death,
flaying, slow slicing, disembowelment, crucifixion,
impalement, crushing, burning, decapitation, scaphism,
necklacing or blowing from a gun. This study is not an
exhaustive of all the methods but covers some of the
important modern methods followed.
In the Ancient World, feuds between two tribes were often
settled by compensation, and as such the people executed
with not have to be the original perpetrator. Ancient
Egyptian, Greek and Roman laws did have death penalties as
a form of punishment for a wide variety of crimes.
In 8th century China, the Tang Dynasty had briefly attempted
to abolish the death penalty only to restore it half a century
later. Only the Emperor could sentence someone to death.
In Medieval Europe, capital punishments were a more
generalised form of punishment. The fear of witches and
witchcraft during this period led to several hundreds of
thousands of women prosecuted and executed. Despite its
wide use, several people called for reforms, their concern
primarily towards innocent people receiving capital
punishment. Islamic states and Empires during this period
also accepted capital punishment. Crimes for which the
death penalty should be given as well as mode of execution
is explicitly stated in Sharia law.

15

During the Industrial age, formation of nation states and the

emerging legal rights movement led to establishment of
modern standing police and justice institutions. The 20 th
century, being a bloody period in history, genocides and
wars led to executions of enemy combatants as well as
civilians. Nazi Germany had hanging, decapitation and death
by shooting as the three forms of death penalty.
Authoritarian states such as Soviet Union and post 1949
China have executed millions as a means of political
oppression.
In the modern era, many First World countries have since
abolished the practice. In the United States, states have
different laws for the method and the practice altogether.
Currently, 36 countries have retained capital punishment
actively, while 103 have abolished it.

2.1 History of Death Penalty in India

The death penalty was a prescribed punishment in Indian
Penal Code (1860), and remained in effect after
Independence. The first hangings to be done in Independent
India was that of Nathuram Godse and Narayan Apte in the
Mahatma Gandhi assassination case. According to official
government figures, 52 people have been executed postIndependence, while unofficial estimates provide a far higher
number. In 1980, the SC ruled that the death penalty should
only be ruled in the rarest of rare cases. At least a 100
people in 2007, 40 in 2006 and 77 in 2005 have been
sentenced to death (but not executed) according to Amnesty
International figures.

16

3. Crimes Punishable By
Death
3.1 Aggravated Murder
Murder is punishable by death as stated in Article 302 of the
IPC, but in the Bachan Singh vs State of Punjab case, the
Supreme Court ruled that the death penalty could be ruled only
in the very rarest of rare cases.

3.2 Terrorism-Related Offenses Resulting in

Death
Using any special category explosive to cause an explosion
likely to endanger life or cause serious damage to property is
punishable by the death penalty.

3.3 Rape
Under the Criminal Law (Amendment) Act, 2013, a person who
in the course of a sexual assault inflicts injury that causes the
victim to die or to be left in a persistent vegetative state is
punishable by death. Repeat offenders of gang rape are also
punishable by death.

3.4 Treason
Waging or attempting to wage war against the
government and assisting officers, soldiers, or members of the
Navy, Army, or Air Forces in committing mutiny are punishable
by the death penalty.

3.5 Military Offences

17

The following offenses, if committed by a member of the

Army, Navy, or Air Forces, are punishable by death:
committing, inciting, conspiring to commit, or failing to
suppress mutiny; desertion or aiding desertion; cowardice;
treacherous acts; committing or inciting dereliction of duty;
aiding the enemy; inducing individuals subject to military law
not to act against the enemy; imperilling Indian or allied
military, air, or naval forces in any way.

3.6 Other Offences Not Resulting in Death

3.6.1 Abetting a Capital Offence
Being a party to a criminal conspiracy to commit a capital
offence is punishable by death.

3.6.2 Kidnapping
Kidnapping or detaining an individual is punishable by death if
the kidnapper threatens to kill or harm the victim, if the
kidnappers conduct makes the death or harm of the victim a
possibility, or if the victim is actually harmed.

3.6.3 Drug Trafficking

If an individual who has been convicted of the commission of,
attempt to commit, abetment of, or criminal conspiracy to
commit any one of a range of offenses related to drug
trafficking (e.g. trafficking of cannabis and opium) commits
another offense related to the production, manufacture,
trafficking, or financing of certain types and quantities of
narcotic and psychotropic substances, he or she can be
sentenced to death.

3.6.4 Others

18

Attempts to murder by those sentenced to life imprisonment

are punishable by death if the attempt results in harm to the
victim.
Calumniation: Providing false evidence with intent or
knowledge of the likelihood that another individual, or a
member of a Scheduled Caste or Tribe, would be convicted of
a capital offense due to such evidence carries the death
penalty if it results in the conviction and execution of an
innocent person.

3.7 Other Offenses Resulting in Death

According to the IPC, committing the following offences can
lead to the guilty being sentenced to death.
If any member of a group commits murder in the course of
committing an armed robbery, all members of the group can be
sentenced to death.
Kidnapping for ransom in which the victim is killed is punishable
by the death penalty.
Being a member of an association or promoting an association
while committing any act using unlicensed firearms or
explosives that results in death, is punishable by death.
Engaging in organized crime, if it results in death, is punishable
by death. Committing, or assisting another person in
committing sati the burning or burying alive of widows or
women is also punishable by the death penalty.
Under the Prevention of Atrocities Act, bearing false witness in
a capital case against a member of a scheduled caste or tribe,
resulting in that person's conviction and execution, carries the
death penalty.
Assisting individuals who are under the age of 18, mentally ill,
mentally disabled, or intoxicated in committing suicide is

19

punishable by the death penalty.

However, whether (or when) these offenses are death-eligible
must be considered in the light of the Indian SCs decision in
Bachan Singh. Courts may interpret Bachan Singh as overriding
other law when sentencing for offenses resulting in
death. However, a recent SC ruling in February 2012 ruled this
provision unconstitutional in light of the judgments in Bachan
Singh v. State of Punjab and Mithu v. State of Punjab. This
suggests that offenses resulting in death are punishable by
death only when they meet the rarest of rare standard laid
out in Bachan Singh.

4. Method of Execution
4.1 Shooting
Shooting as a mode of execution was started in British India
in the middle 1700s. When the government observed the
modes of capital punishment in use, it was found that the
common military mode of capital punishment was flogging to
death. Regarding blowing from a gun as an old Mogul

20

punishment, the government decided to use this technique,

as being, relative to death by flogging, more restraining,
more public and more humane.
Under the 1950 army act both hanging and shooting were
listed as official methods of death penalty in the military
court martial system

4.2 Hanging
The Supreme Court has a history of pondering over the
method to be used in the execution of the death penalty.
However, they finally decided that hanging was the least
inhuman form of execution. So the Code of Criminal
Procedure (1898) called for the method of execution to be
hanging. The same method was implemented in the Code of
Criminal Procedure (1973). Section 354(5) of the above
procedure reads as "When any person is sentenced to death,
the sentence shall direct that the person be hanged by the
neck till the person is dead."

5. Death Penalty in
Independent India
According to a report handed in 13th December, 2012, 477
people were on death row. At least 100 people in 2007, 40 in

21

2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced

to death (but not executed), according to Amnesty
International figures. Between the years 2001 and 2011, an
average of 132 death sentences was given each year.
The last execution in India took place on July 30, 2015. Yakub
Memon was hanged in Nagpur Central Jail. He was convicted of
financing the 1993 Mumabi bombings. His clemency petition
was rejected by Indian President Pranab Mukharjee.
Supreme Court states that death penalty should be used in
rarest of rare cases. Death sentence is the exception while life
imprisonment is the rule. The apex modified the terminology in
Bachan Sing v. State of Punjab and observed-" A real and
abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That
ought to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed.." Later
legislation for drug and atrocity offenses stated mandatory
death penalty and Supreme Court has not declared this
unconstitutional, but Indian courts generally do not apply
mandatory death penalty.

5.1 Important Cases * (Death Penalty

Database)
In Smt. Triveniben vs State of Gujarat the Court reduced
prisoners constitutional protections against cruel and unusual
punishment due to extended stays on death row. The Court
ruled that undue delay in execution of a sentence of death
could be grounds for judicial commutation of the condemneds
sentence. The death-sentenced prisoners have a right to
contest their sentences if they are not executed within 5 years
of sentencing.
In Bombay HC case of India Harm Reduction Network v.
Union of India the court gave the ruling that mandatory death
penalty in case of drug offenses was unconstitutional. While
the Court did not strike down Section 31-A of the Narcotic

22

Drugs and Psychotropic Substances Act of 1985, it did state

that the courts were no longer obligated to hand down the
death penalty for repeat drug offenders under the Act.
In the SC case of Bhagwan Das vs State of Delhi(NCT) the
Supreme Court ruled that the death penalty should be rendered
as punishment in cases of honor killings. The Court reasoned
that doing so would send a clear and deterring message to
those committing such crimes. All persons who are planning to
perpetuate honor killings should know that the gallows await
them, the Court said.
In February 2012, the Supreme Court ruled in State Of Punjab
v. Dalbir Singh that the mandatory death penalty as
punishment for crimes stipulated under article 27(3) of the
Indian Arms Act of 1959 was unconstitutional. Because the
Court ruled against the law, that particular article under the
Arms Act is null and void. The courts can now impose a lesser
sentence.
In Shatrughan Chauhan & Another vs. Union of India &
Others, the Supreme Court of India emphasized the
importance of the clemency process for capital inmates. The
court criticized the executive for its unreasonable delay in
considering mercy petitions of capital inmates on death row.
The court observed that undue, inordinate, and unreasonable
delay in carrying out death sentences causes psychological
torture. The court also denounced other practices, such as
executing individuals with mental illnesses and the use of
solitary confinement. In total, the Supreme Court commuted
15 death sentences.
Just a month later, the Court reaffirmed the decision in V.
Sriharan Murugan v. Union of India & Others. The Court
commuted the death sentences of three inmates because of
the unreasonable delay in considering their mercy petitions, a
delay of more than 11 years. It also rebuffed the argument that
death row inmates had to prove actual harm occasioned by the
delay in order to have their sentences commuted.

23

In Sushil Murmu vs. State of Jharkhand case a young child

was sacrificed before Goddess Kali by the appealant for his
own prosperity. The accused was awarded death penalty by the
SC.
In State of UP vs. Satish case stressing that leniency in
punishing grave crimes would have grave consequences, the
SC awarded death penalty to a man for the rape and murder of
a 6 yr old girl.
In the case of Mohammed Ajmal Mohammed Amir Kasab
vs. State of Maharashtra, Ajmal Kasab a terrorist was
convicted of waging war against India, possession of
explosives, and other charges by Mumbai Special Court on 3rd
May, 2010. On 6th May, 2010 he was given a death sentence
for attacking Mumbai and killing 166 people on 26th November,
2010. He was hanged on November 21, 2012 in Yerwada
Central Jail in Pune. According to reports, Ajmal Kasab, who was
executed in November 2012, only learned of the date of his
imminent execution one day prior.
In all these cases the principle of rarest of rare case was
followed for awarding death penalty which is the judiciarys own
jurisprudence on cases in which death sentence has to be
awarded1. Is there something uncommon about the crime which
makes the sentence of life imprisonment inadequate and
requires death sentence?
2. Are there circumstances of the crime such that there is no
other option but to impose death sentence even after
considering maximum mitigation of punishment in favour
of the offenders?
On 14 August 2004, Dhananjoy Chatterjee was hanged for the
murder (following a rape) of 18-year-old Hetal Parekh at her
apartment residence. Chatterjee, whose mercy plea was

24

rejected on 4 August 2004, was kept at Alipore Central Jail for

nearly 14 years.
Afzal Guru was convicted of conspiracy in connection with
the 2001 Indian Parliament attack and was given death penalty.
Afzal was scheduled to be executed on 20 October 2006, but
the sentence was stayed. He was hanged on 9 February 2013
at Delhi's Tihar Central Jail. There is an argument surrounding
hanging of Afzal Guru, since his family was notified of his death
by letter two days after the execution.
On 5 March 2012 Chandigarh court ordered the execution
of Balwant Singh Rajoana, a convicted terrorist from Babbar
Khalsa, for his involvement in the assassination of Chief
Minister of Punjab Beant Singh. The sentence was to be carried
out on 31 March 2012 in Patiala Central Jail, but the Centre
stayed the execution due to worldwide protests by Sikhs that
the execution was unfair and a violation of human rights.
As of January 2013, some Pakistanis and Sri Lankans were
reportedly awaiting execution on death row.
By the end of 2011, there were 12 women on death row. One
womans death sentence was commuted in 2014 by the
Supreme Court in Shatrughan Chauhan & Another vs. Union of
India & Others. Seema Gavit and Renuka Shinde are the only
two women in India on death row, whose mercy pleas were
rejected by the President Pranab Mukharhjee after the Supreme
Court of India confirmed their death sentence.
About 26 mercy petitions are pending before the president,
some of them from 1992. These include those of Khalistan
Liberation Force terrorist Devinder Pal Singh Bhullar, the cases
of slain forest bandit Veerappan's four associates for killing 21
policemen in 1993; and Praveen Kumar for killing four members
of his family in Mangalore in 1994. Till July 2015,
President Pranab Mukherjee has rejected 24 mercy pleas

25

including that of Yakub Memon, Ajmal Kasab, Afzal Guru. On 27

April 1995, Auto Shankar was hanged in Salem, Tamil Nadu.
Before the mercy petitions are considered to be rejected by the
President, the prisoner and the petitioners are supposed to be
informed of the decision. Once an execution date has been set,
the prisoner and his relatives are to be notified. Such policies
ensure that the prisoner and relatives are able to make use of
judicial methods to further stay or commute a pending
execution.
While Indias law prohibits sentencing death to juveniles, it has
not always been followed because of difficulty in determining
the age of the individuals who were not registered at birth and
incompetence of defence attorneys.
Ramdeo Chauhan (alias Raj Nath Chauhan) was convicted and
sentenced in March 1998 for the 1992 murder of four members
of a family for whom he worked as a domestic servant. There
was strong evidence that Chauhan was 15 years old at the time
of the crime. The Juvenile Justice Act requires that children
under 16 years of age be tried by a Juvenile Court, which
Chauhan was not. The Gauhati High Court ruled in August 2011
that Chauhan was indeed a juvenile at 15 to 16 years of age at
the time of the offense. Medical tests to determine his age were
conducted in 2003, five years after his initial
imprisonment. Because of his age at the time of the crime, the
case would thus fall under the Juvenile Justice Act, 1986 and
2000. The maximum sentence for a juvenile under the Act is
three years in an observation home, not in prison. After
spending almost two decades behind bars, Chauhan is now a
34-year-old free man.

5.2 Attempts to abolish Death Penalty

Several legislative attempts to abolish the death penalty in
India have failed. Before Independence a Bill was introduced in
the 1931 Legislative Assembly to abolish the death penalty for

26

penal code offences. The British Home Secretary at the time

however rejected the motion. The Government of Independent
India rejected a similar Bill introduced in the first Lok Sabha.
Efforts were also made in Rajya Sabha to move resolution for
abolition of death sentence in 1958 and 1962 but were
withdrawn after some debate. The Law Commission in its
Report in 1967 and in 1971 concluded that the death penalty
should be retained and that the President should continue to
possess powers of mercy as India couldnt risk the experiment
of abolition of capital punishment..
Although in the last report of Law Commission of India that was
turned in on August 31, 2015, it took a new stand to abolish
death penalty. This time, the Commission feels that the time
has come for India to move towards abolition of the death
penalty. However, three members of the commission did not
sign the report and instead submitted dissent notes to the
chairman of the commission, Justice A P Shah, arguing for
retention of death penalty. Two of these three members were
representing the Ministry of Law and Justice.
The report says that not only does death penalty undermine
the communicative aspect of the punishment, with respect to
the offender, but also fails to communicate gravity of the
crimes to the society. When killings are carried out by a state,
it undermines the communicative aspect by justifying what it
seeks to condemn. It also devalues life in the eyes of the
common person which further empowers offenders, the report
says.
Stating the opinion that death penatlty acts as a better option
than life imprisioment is wrong, the report argues that
offenders do not look up the law to find the penalty that they
might suffer and that a large number of crimes are committed
in a fit of rage or anger, or when the offender is clinically
depressed, or are motivated out of strong emotions such as
revenge or paranoia. In circumstances such as these,
deterrence is unlikely to operate since the actor is not likely to

27

give due weight, or even a cursory consideration to what

penalties might be imposed on him/her subsequently; the focus
being on the emotion driving his/her state of mind. Thus, it
concludes that the existence of a criminal justice system to
punish criminal conduct is by itself a deterrent. In terrorism
related cases, the commission in its report, cited examples from
various cases which prove that death penalty often makes the
offenders martyrs.

5.3 Public Opinion

However the society at large remains divided in their opinion
regarding death penalty.

Occupation

4% 4%
11%
14%

67%

Student

Govt.
Employee

Private

Self-employed

Other

Age Group
13-17 yrs
6% 8%

18-22 yrs
23-35 yrs

20%

35-50 yrs
7%

>50
59%

I
n the survey conducted by us, majority of the people are
against abolishment of death penalty. The participants were
from age groups 16-60 year, 67% percent belonging to the
category student.
Figure 1: Age group of people Figure 2: Occupation of people
surveyed.
surveyed.

28

90

85

80
70
60
50
40

38

36
27

30

30

26
18

20

Strongly Disagree

24

22
14

10

10
0

26

25

26
13

Strongly Agree

Death Penalty is a cruel Punishment

Life Imprisonment is better than death penalty
Abolishment of death penalty would lead to a decrease in crime rate

Figure 1: Opinion polls regarding death penalty.

Out of 140 respondents, 38 people disagree that death penalty
is a cruel punishment while 24 people feel the contrary. The
remaining respondents do not have such strong views though
majority is still in the favour of death penalty.
A significant number of people have neutral opinions on the
debate if life imprisonment is better than death penalty.
However number of people believing life imprisonment is better
than death penalty still number less than those who do not.
It was surprising to find that despite the overall inconclusive
result of the first two findings, 85 out of 140 respondents
strongly disagree that abolishment of death penalty would do
any good in bringing down the crime rate. The general opinion
of the people leans towards making an example out of criminals
to discourage such crimes.

29

Human Trafficking

Child Abuse

Treason

Series 2

Rape

20

40

60

80

100

120

No. of people

Figure 2: Crimes for which death penalty should be

mandated for other than murder.
In the light of recent publicised murders and rape cases, 99
people who participated in our survey vehemently believe that
death penalty should be mandated for rape cases, followed by
child abuse and human trafficking among others.

5.4 Significant Changes in the Numbers

Involved
The latest executions broke with a trend inclining towards the
abandonment of the death punishment. According to figures,
India had around 140 executions per year between 1954 and
1963. Between 1996 and 2000, this rate was roughly 1
execution per year; between 1998 and 2007, there was only
one execution. Over the last 20 years, India has continued to
reduce the number of executions it has carried out. In recent
years, very few people have been executed. However, the
scope of the death penalty according to the law has expanded
over time. For instance, new anti-terrorist legislation since the
1990s has included the death penalty. In early 2013, the death

30

penalty was expanded to certain instances of rape. Following

the brutal gang rape and murder of a 23-year old woman in
December 2012, a wave of protests erupted throughout the
country calling for harsher and swifter punishments for rape,
which had previously been punished with 7 to 10 years
imprisonment.

6. Clemency
6.1 Power of the President
The present day constitutional clemency powers of the
President and Governors come from the Government of India
Act 1935 but, unlike the Governor-General, the President and
Governors in India do not have any entitled clemency powers.
The Governor has the power to grant pardons and to commute,
suspend or remit the sentence of any person convicted of any
offence against any law which is under the Jurisdiction of the
executive power of the State. The jurisdiction of the state
extends to matters with respect to which the legislature of the
State has the power to make laws. However, they do not have
the power to grant pardons to convicts who were sentenced to
death.
The Indian Constitution states the power on the President to
grant pardons and commute sentences in the following cases:
In all cases where the sentence is by a Court Martial.
An all cases where the sentence is for an offence against
any law relating to a matter in the jurisdiction of the
executive power of the Union extends.
In all cases where the sentence is a sentence of death.

31

The pardoning power is in disagreement of the law, that is if

laws could always be overseen so they would be just in every
circumstance to which they are applied, there would be no
need for the pardoning power. Therefore, the power to pardon
is meant to be used in those situations where it would not be in
the interest of justice to strictly apply the law even if the
situation calls for it.
Executive clemency exists to give aid from unjustifiable
severity or a mistake in the operation or enforcement of the
criminal law. The direction of justice by the Courts is not always
right or understanding of circumstances, which may lighten the
guilt. It is a power entrusted to the Executive for special cases.

Before the Indian Constitution was formed:

Before the Indian Constitution was formed, the law of pardon in
British India was the same as in England since the sovereign of
England was the sovereign of India. They gave this power to
suspend, remit or commute sentences of death, to the Crown or
by entrustment to Governor-General.

6.2 Categories of offenders excluded from

the Death Penalty
1. Individuals who were below the age of 18 at the time of
crime cannot be executed.
2. Pregnant women sentenced to death must be granted
clemency.
3. Individuals who were mentally ill at the time of the crime and
who did not understand the nature of the act or know that the
act was wrong or against the law cannot be held criminally
liable.

32

7. International Human Rights Bodies

and Indias Stance

7.1 Resolution by the United Nations

The United Nations General Assembly adopted a resolution
asking countries that retain the death penalty to establish a
worldwide suspension on executions with a view to abolishing
the death penalty.
As of 2004, a total of 118 countries (including Canada, Mexico,
Russia, South American nations and most European nations)
have abolished the death sentence completely. Of these, 80
countries and territories have abolished the death sentence for
all crimes, fifteen countries have abolished the death sentence
for all but exceptional crimes (such as wartime crimes) and 23
countries retain the death penalty in law but have not carried
out any executions for the past ten years or more and are
believed to have a policy of not carrying out executions.

33

India is, however, one of the 59 nations that retain the death
penalty along with China, USA, Japan and some other countries.
Even though India opposed that resolution and was also among
the top countries to hand out death sentences, only very few
were actually carried out. In the last 10 years 1,303 death
sentences were handed out but only 3 were executed.

7.2 Asian Centre for Human Rights

Asian Centre for Human Rights believes that life imprisonment
is an equally effective alternative to death penalty, among
others, because in a series of judgments the SC has clarified
that imprisonment for life means imprisonment for the
whole of the remaining period of the convicted persons natural
life subject to remission by the government. Therefore, the
fear that the convicts will pose a threat to the society if not
given death penalty stands eliminated. Further, there is no data
to show that any convict on death row whose sentence has
been commuted to life imprisonment was released by the
Government of India.

7.3 View of Amnesty

Amnesty International, an NGO, which fights for the basic
human rights of every one, says that some countries execute
people who were below 18 years old when the crime was
committed, others use the death penalty against people who
have mental problems. Before people die they are
often imprisoned for years on death row, not knowing when
they will be executed, or whether they will see their families
one last time. Even though in India it is not the case, Amnesty
opposes the death penalty at all times, regardless of who is
accused, what the crime is, and if the defendant is innocent or
guilty.

34

8. Impact of the Death Penalty on

Various Bodies

Todays debate over capital punishment has its origin in 1764

when the Italian law-expert, Cesare Beccaria, published his
thesis, An Essay on Crimes and Punishments. In it, Beccaria
argued that rethinking the death penalty was vital to a societys
progress from brutality to civilised development.
The goals of any punishment were twofold: to daunt the future
directive of crimes, which the death penalty definitely did not
achieve, according to numerous studies, and to reform the
wrongdoers, which the death penalty decidedly cannot achieve,
for obvious reasons.

35

Some opinions tend to state that violent punishments set a

harmful model for society, and that the government should take
only the actions necessary to defend the society from
reprobates.

8.1 On Government Bodies

8.1.1 Clash with Constitutional Rights
The sentence for death is a hot cake for intense debates in view
of the fact that it has been banned in at least 140 countries
because its cited as inhuman and out-dated. A decision to
abolish the death penalty could be taken either by keeping
aside the public view or the sentence could be handed out by a
judge after taking into account the views of the community.
Both the proposals seem farfetched in the current scenario.
Now, there is the question of whether the Death Penalty
violates the Indian Constitution.
The answer is no. It does not. Heres why:
Article 21 of the Indian Constitution states that no person shall
be dispossessed of his life or individual liberty except according
to procedure recognised by law.
In Maneka Gandhi vs Union of India, 1978, however, the
SC assimilated the American law of "due process" in the
right to life. Consequently, the sphere of Article 21 got
expanded to include:
Personal liberty to not just include a mere physical limit
but also a host of rights that touch upon human livelihood.
Existence of a mere procedure is no longer sufficient to
take away life or liberty but the procedure must also
satisfy the requirements of natural justice.
As a result, if the death punishment were to be dispensed, it
would be legal only if:

36

There is a valid law: The Indian Penal Code delivers for

punishments for offences; only certain serious offences
are punished with death or life imprisonment.
The law provides for a method: The method is included
in the Code of Criminal Procedure (CCPr) and instructs
a specific procedure for investigation, trial, judgment
and appeals; the Indian Evidence Act complements this
procedure with rules regarding evidence and other
relevant case material contributing to the investigation
sphere.
The procedure is just, fair and reasonable: The Code of
Criminal Procedure and the Evidence Act coupled with
landmark judicial decisions have established a
procedure that:
1. Adequately safeguards individual liberty against unjust
actions by the police.
2. Provides a fair chance to the defendant to present his
case.
3. Awards a reasonable punishment to the accused for his
offences, i.e. a death penalty is only awarded in cases
that fall into the category of "rarest of rare.
The death penalty does not violate Article 21 because the
procedure through which it is dispensed is just, fair and
reasonable.

8.1.2 Potential Abuse of Power

Only in the rarest of rare cases, murder convicts are given the
death penalty.
There is no constitutional definition of rarest of rare. It
depends upon facts and conditions of a particular case,
viciousness of the crime, demeanour of the offender, criminal

37

history, chances of reforming and integrating him into the

society, etc.
The interest of retaining such an irreversible punishment has to
be respected in this context of a criminal justice system that is
both imperfect and open to manipulation.
One example highlights this concern. In the Akshardham
Temple Blasts of 2002, 33 people were killed and about 85
injured. Adambhai Sulemanbhai Ajmeri and 5 others were
arrested for this attack. They were tried for various offences,
including under the Prevention of Terrorism Act. Three of the
accused were given the death sentence by the trial court. The
High Court upheld their conviction and sentence.
On appeal before the SC, the Court not only found all of the
accused innocent and acquitted them, but also expressed
anguish about the incompetence with which the investigating
agencies conducted the investigation of the case of such a
grievous nature, involving the integrity and security of the
Nation. Instead of booking the real culprits responsible for
taking so many precious lives, the police caught innocent
people and got imposed the grievous charges against them
which resulted in their conviction and subsequent sentencing.
This was, therefore, not a case of an error in investigation, but
of a complete fabrication by the police department. Despite
this, two tiers of courts were committed beyond reasonable
doubt that all of the accused were guilty as charged.
Regrettably, this is not a one-off case. In multiple cases, the SC
has found that the accused were not only convicted, but also
condemned to death on the basis of false and fabricated
evidence generated over influenced investigations, or through
the negligence and cold-heartedness by the various officials in
the criminal justice system, including the police, prosecution
and lower courts.

38

In theory, parity before the law is guaranteed in constitutions

and in international treaties all over the world, which is great if
it would work well. But it doesnt for most cases. Several
studies have found that in Capital Punishment cases, the
probability to be convicted is much higher for the poor, less
educated, ethnic minorities and religious minorities, as
compared to the advantaged individuals who have been
accused of similar offences. Also, the death penalty may be
used for political reasons as well.
The bottom line is that there is a potential abuse of power
being carried out in situations like these, which warrants a need
for a better system in place to decide the punishment a convict
deserves. The definition of the rarest of rare is not entirely
clear, and is subject to variance depending on the judiciary
officials in charge of the case.

8.2 On Society
8.2.1 Effect on Ordinary Citizens
Death penalty should be imposed only when the collective
morality of the society is shocked enough that the society will
expect the judiciary to inflict the death penalty irrespective of
their personal opinion as regards desirability of otherwise of
retaining death penalty, said the SC in Bachan Singh Vs. State
of Punjab.

The crime has to be viewed from various perspectives manner

of instruction of murder, motive for charge of murder, antisocial or socially objectionable nature of crime and scale and
personality of the murder victim.

The victims families are also affected by the death penalty. It is

a traumatizing experience for them, as they endure a pile of

39

emotions for years to come. They have to cope not only with
the loss of the person but also must come to terms with how
the victims life was ended. It is often forgotten that the
prisoners condemned to die are not only murderers but also
sons, brothers, fathers, and/or husbands.

8.2.2 Deterrence
The evidence for capital punishment as a uniquely effective
deterrent to murder is especially important, since deterrence is
the only proper justification for the death penalty to be in
practice.
One of the major questions is whether capital punishment is a
better alternative to life imprisonment.
An attitude is taken by many that the capital punishment is
unlikely to deter terrorists, since the majority of the lot are on
suicide missions (they are willing to give up their lives for their
cause), and also, there are other reasons why the capital
punishment might in fact increase radical attacks. The death
penalty is often implored by terrorists, since upon death, they
receive enough attention, thus drawing attention to their
political aims, which is on their terrorist agenda.
One of the main assumptions of the deterrence theory is that
the person committing the crime is a rational decision maker.
Conversely, a great number of offences are committed in a fit
of rage or anger, or are motivated out of heavy emotions such
as revenge. In circumstances such as these, the person
committing the offence is bound to ignore all concerns and go
ahead with the crime anyway, thus rendering the assumption
incorrect.

40

9. Conclusion

From the study of history, we can observe the prevalence of

capital punishment since time immemorial, which includes
death by hanging the offender in public, lethal injections,
electrocution etc.
The recent cases of capital punishment sends a message that
India is not willing to take a soft line on capital crimes and
judiciary shall work in its own way irrespective of whosoever is
involved.
The debate now assumes even greater importance in light of
the fact that various International Human Rights Bodies
condemn death penalty and have appealed to India abolish the
death penalty.
The issues are if the death penalty reduces or contains terror
attacks, or if abolishing the death penalty would bring down
acts of terror in India. The answer to both questions is
probably not.
Therefore, this complex issue must be seen from every angle
including human rights, social justice, legal justice, right to live,
social deterrence, ethics and morality. Society is continually
evolving, and therefore the definition and interpretation of all
the above factors will vary from country to country region, and

41

from time to time, and therefore, its interpretation will always

remain subjective. What feels just in one society, may seem
otherwise to another.

The general consensus of the people surveyed by us, favor

death penalty as the only method to punish capital offenses.
Society has to decide on which pan of the scale should it lean
on retribution and punishment on one side or reform and
forgiveness on the other? Whose perspective should society
take into account, the convict, or those of the victim and their
families? That question still remains unanswered.

Appendix
Questionnaire
1. What age group do you belong to?
a. 13-17
b. 18-22
c. 23-35
d. 35-50
e. >50
2. Choose your occupation.
a. Student
b. Self employed
c. Govt. Employee/Clerical
d. Private
e. Other
3. Is any close friend/relative of yours working in a law-related
field?
a. Yes
b. No
4. Rate the following statements on the scale of 1 (strongly
disagree) to 5(strongly agree).

42

(a) The death penalty is a cruel punishment.

(b) Abolishment of the death penalty would lead to a
decrease in the crime rate.
(c)The death penalty induces a sense of fear into the
criminals, thus preventing serious crimes.
(d) The punishment of life imprisonment is favourable
over the death penalty.
(e) Prolonged delay of execution must be stopped.
5. What crimes do you feel the death penalty must be mandated
for other than murder?
a. Rape
b. Treason
c. Child Abuse
d. Human Trafficking
e. Other
6. Name an alternative to the death penalty.

43

References
1. Hood and Carolyn Hoyle. The Death Penalty: A
Worldwide
Perspective,Oxford
University
Press,2008
2. https://en.wikipedia.org/wiki/Capital_punishment
(April
12, 2016)
3. www.deathpenaltyinfo.org (April 10, 2016)
4. www.deathpenaltyinfo.org/articles-death-penalty
(April
15,2016)
5. www.factslides.com/s-Death-Penalty (April 16, 2016)
6. http://www.civilserviceindia.com/subject/Essay/capitalpunishment1.html (April 15, 2016)
7. http://www.deathpenaltyworldwide.org/country-searchpost.cfm?country=india (April, 20, 2016)
8. http://www.deathpenaltyinfo.org/facts-about-deterrenceand-death-penalty
9. https://www.deltacollege.edu/org/deltawinds/DWOnline04/t
hedeathpenalty.html
10.
https://www.amnesty.org/en/what-we-do/deathpenalty/
11.
https://www.quora.com/Doesnt-the-death-penaltyviolate-article-21-ofthe-Indian-constitution
12.
http://lawcommissionofindia.nic.in/reports/Report262.pdf
13.
http://deathpenalty.procon.org/view.resource.php?
resourceID=1715

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