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Riddhi Tulshian 81002140052

SVKM’S
NMIMS SCHOOL OF LAW

A PROJECT SUBMITTED ON –

CONSTITUTIONAL VALIDITY OF DEATH PENALTY


IN INDIA

RIDDHI TULSHIAN
BBA LLB (HONS.)
ROLL NO – A056

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A PROJECT SUBMITTED ON;


CONSTITUTIONAL VALIDITY OF DEATH PENALTY IN INDIA
IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE
MARKING SCHEME, FOR TRIMESTER I OF 2014-2015, IN THE
SUBJECT OF GENERAL ENGLISH
SUBMITTED TO FACULTY:
MS. KAUSHALYA RAJPUROHIT
FOR EVALUATION

SUBMITTED BY:
RIDDHI TULSHIAN
BBA LLB (HONS.)
ROLL NO – A056

RECEIVED BY: ____________________________


ON DATE: __________ TIME: _________

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TABLE OF CONTENTS

SR. PARTICULARS PAGE


NUMBER NUMBER
1. Abbreviations 4
2. Table of Cases 5
3. Table of Statutes 5
4. Research Methodology 6
5. Introduction 7-9
6. Literature Review 10
7. Discussion 11-17
8. Case Laws 18-19
9. Conclusion 20
10. Suggestions 21-22
11. Bibliography 23

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ABBREVIATIONS

SC – Supreme Court

AIR – All India Report

UOI- Union of India

CJ- Chief Justice

HC- High Court

E.g. – Example

J. – Justice

IPC- Indian Penal Code

CrPC- Criminal Procedure Code

Prof. – Professor

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TABLE OF CASES
 Rajendra Prasad vs. The State of Uttar Pradesh
 Bachan Singh vs. State of Punjab, 1980
 Mithu vs. State of Punjab
 Ramnaresh and Ors. Vs. State of Chhattisgarh, 2012
 Santosh Kumar SatishbhushanBariyar vs. State of Maharashtra

TABLE OF STATUTES
THE INDIAN PENAL CODE, 1860
THE CRIMINAL PROCEDURE CODE, 1973
CONSTITUTION OF INDIA
COMMISSION OF SATI (PREVENTION) ACT, 1987

THE SCHEDULED CASTES AND THE SCHEDULED TRIBES


(PREVENTION OF ATROCITIES) ACT, 1989

THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES (NDPS)


ACT, 1989

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RESEARCH METHODOLOGY

AIM & OBJECTIVE OF THE STUDY


The aim of the study is to give knowledge about the laws relating to death penalty and its
constitutional validity in India. The objective of the study is to bring to the light the crimes that
lead to capital punishment. The main objective is to show the arguments relating to the existence
of death penalty and how capital punishment still holds validity in the Indian Constitution even
after much criticism.

SCOPE OF STUDY
The study primarily focuses on the rule as it is developed in the common law system and its
implications on India. Its secondary focus also deals with the situations prevailing in countries
around the world.

SIGNIFICANCE OF THE STUDY


The study is significant as it helps us to know about the crimes which lead to death sentence. The
study contains certain national as well as international cases which shows how the wrong doers
in the world were punished and how it affected the families of those who were hanged.

LIMITATION OF THE PROJECT


The project fails to conduct a primary research thorough examination, interviews and surveys
due to lack of time and vague understanding. The research of the project limits to book and
internet content.

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“An eye for an eye will make the whole world blind.”
-Mahatma Gandhi

INTRODUCTION

MEANING OF CAPITAL PUNISHMENT


According to the Oxford Dictionary, Capital Punishment is the legally authorized killing of
someone as punishment for a crime.1 Capital Punishment is the death sentence awarded for
capital offences like crimes involving multiple murders, repeated crimes, planned murder; rape
and murder, etc wherein the criminal provisions consider such persons as gross danger to the
existence of the society and provide death punishment.2 Death penalty is a legal process where a
person is put to death by the state as a punishment for a crime.

GENERAL OVERVIEW
The history of Capital Punishment is as old as that of mankind. In the Western world the first
instance is that of “The Law of Moses", inflicting death for blasphemy. By 1179 B.C. murder
was considered to be a capital crime among Egyptians and Greeks. In India, the Indian Epics
namely, the Mahabharata and the Ramayana also contain references about the offender being
punished with vadha-danda which means amputation bit by bit. Fourteen such methods of
amputating the criminals to death are known to have existed. This illustrates that every country
in the world, Capital Punishment has been in existence since times immemorial.
In the beginning, offences against religion and morality attracted Capital Punishment. However,
the primitive societies soon grew up into kingdoms and consequently criminal law also changed
quickly. Offences against the King were considered more serious both in the East as well as the
West. Thus, the political offences were also added to the moral and religious offences and
Capital Punishment was prescribed for such offences also. With the advancement of civilization
and advent of industrialization, Capital Punishment was prescribed for offences against property
and also the human body. Now, in the modern world, capital offences further covered drug-
trafficking, hijacking the airplanes, bribery etc., Some Muslim countries like Saudi Arabia even
want to add "artificial insemination" to the list of capital offences.
Retentionists of Capital Punishment argue that Capital Punishment is necessary to maintain
peace in the world since it acts as a deterrent to potential offenders. In the beginning, public
opinion was also in favor of Capital Punishment in preference to life imprisonment. On the other
hand abolitionists argue that Capital Punishment failed as a deterrent and no major work of any
researcher ever proved its efficacy. Further they maintain that it is an inhuman punishment
arbitrarily imposed on the minority, the uneducated, the poor and the downtrodden. The conflict

1
http://www.oxforddictionaries.com/definition/english/capital+punishment
2
http://www.legal-explanations.com/definitions/capital-punishment.htm

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of opinion between the retentionists and abolitionists over Capital Punishment generated a debate
throughout the world about the utility of Capital Punishment in the modern world, where great
importance is attached to basic human freedoms. At the International level, every instrument
dealing with human rights such as Universal Declaration of Human Rights, International
Covenants on Civil and Political Rights etc., were very critical about the Capital Punishment
and suggest an alternative punishment to death penalty.

CURRENT SCENARIO OF DEATH PENALTY IN INDIA


India stands poised between the global trend to end the death penalty and those nations that
continue to execute. Like many of the diminishing number of nations that still apply the death
penalty, over the last two decades, India has reduced the number of executions carried out.
The Indian judiciary has ruled that the death penalty for murder must be restricted to the “rarest
of rare” cases, but this instruction has been contradicted by the legislature increasing the number
of offences punishable by death. The death penalty is mandatory under two of the relevant laws,
the IPC and the CrPC. Death sentences have been imposed on people who may have been
children at the time of the crime, and on people suffering from mental illness. There are grave
concerns about arbitrariness and discrimination in the processes that lead to people being
sentenced to death. Such factors would render India’s use of the death penalty to be in violation
of international laws and standards.
Amnesty International is urging the Government of India to declare an immediate moratorium on
executions with a view to abolishing the death penalty. As an emerging global and regional
power and a party to the International Covenant on Civil and Political Rights and other
international human rights treaties, India has an opportunity to exercise regional leadership and
to strong signal of its determination to fully uphold human rights by abolishing the death penalty.

HISTORY OF DEATH PENALTY IN INDIA


About 26 mercy petitions are pending before the President, some of them since 1992. These
include those of Khalistan Liberation Force terrorist-Davinder Singh Bhullar, the cases of slain
forest brigand Veerappan's 4 associates—Simon, Gnanprakasham, MeesekarMadaiah and
Bilvendran—for killing 21 policemen in 1993; and the case of Praveen Kumar for killing four
members of his family in Mangalore in 1994. On 27 April 1995, Auto Shankar was hanged in
Salem, Tamil Nadu.

At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced
to capital punishment (but not executed). No official statistics of those sentenced to death have
been released.

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Afzal Guru was convicted of conspiracy in connection with the 2001 Indian Parliament attack
and was sentenced to death. The Supreme Court of India upheld the sentence, ruling that the
attack "shocked the conscience of the society at large." Afzal was scheduled to be executed on 20
October 2006, but the sentence was stayed. Guru was hanged on 9 February 2013 at Delhi's
Tihar Jail.

On 3 May 2010, a Mumbai Special Court convicted Ajmal Kasab of murder, waging war on
India, possessing explosives, and other charges. On 6 May 2010, the same trial court sentenced
him to death on four counts and to a life sentence on five other counts. Kasab was sentenced to
death for attacking Mumbai and killing 166 people on 26 November 2008 along with nine
Pakistani terrorists. He was found guilty of 80 offences, including waging war against the nation,
which is punishable by the death penalty. Kasab's death sentence was upheld by the Bombay
High Court on 21 February 2011 and by the Supreme Court on 29 August 2012. His mercy plea
was rejected by the president on 5 November and the same was communicated to him on 12
November. On 21 November 2012, Kasab was hanged in the Yerwada Central Jail in Pune.

On 5 March 2012, a sessions court in Chandigarh ordered the execution of Balwant Singh
Rajoana, a terrorist from BabbarKhalsa, convicted for his involvement in the assassination of
Punjab Chief Minister BeantSingh. The sentence was to be carried out on 31 March 2012 in
Patiala Central Jail, but the Centre stayed the execution on 28 March due to worldwide protests
by Sikhs that the execution was unfair and amounted to a human rights violation.

On 13 March 2012, a court in Sirsa, Haryana, condemned to death the 22-year-old Nikka Singh
for raping and strangling to death a 75-year-old woman on 11 February 2011. "The imposition of
the death sentence was most appropriate in this case. The court has held that it was a cold-
blooded murder and where rape was committed on an innocent and hapless old woman," said
NeelimaShangla, the Sirsa additional district and sessions judge. "The rape and cold-blooded
murder of a woman, who was of grandmother’s age of the accused, falls in the rarest of the rare
case." The court held that Nikka Singh was a "savage" whose "existence on earth was a grave
danger to society" as he had also attempted to rape two other village women.

In June 2012, it became known that Indian president Pratibha Patil near the end of her five-year
term as president commuted the death sentence of as many as 35 convicts to life, including four
on the same day (2 June), which created a storm of protest. This caused further embarrassment to
the government when it came to light that one of these convicts, BanduBaburaoTidke—
convicted for the rape and murder of a 16-year-old girl—had already died five years previously
from HIV.

As of 11 February 2013, there are 476 convicts on death row in India. States with the maximum
number of prisoners on death row are Uttar Pradesh (174), Karnataka (61), Maharashtra (50) and
Bihar (37).

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LITERATURE REVIEW

 Justice A.K.Ganguly, SC
Justice A.K.Ganguly of the Supreme Court has termed the award of death sentence as
‘barbaric, anti-life, irresponsible and undemocratic’ which is “legal” in the prevailing
judicial system. The doctrine of the crime falling in the ‘rarest of rare’ category in
awarding the death penalty was a “grey” area as its interpretation depended upon
individual judges. He cautioned that before giving death penalty, a judge must be
“extremely careful” and weigh “mitigating and aggravating circumstances”.3
According to him, capital punishments are at the discretion of the judges and they are to
decide whether the case is rarest of the rare or not. Hence they must be very careful in
sentencing someone to death as it is a responsibility they have to fulfill very effectively.
He also feels that the prevailing system of death penalty destroys democracy and is an
irresponsible decision since every citizen has a right to life and this law is contradicting
it.

 Babasaheb Ambedkar
Babasaheb Ambedkar, the architect of The Constitution, admitted in the Constituent
Assembly that people may not follow non-violence in practice but “they certainly adhere
to the principle of non-violence as a moral mandate which they ought to observe as far as
they possibly can.” With this in mind, he said, “the proper thing or this country to do is to
abolish the death sentence altogether.”

 Shibbanlal Saxena
On June 3, 1949, Professor Shibbanlal Saxena, a freedom fighter who had been on death
row for his involvement in the Quit India Movement, spoke in the Constituent Assembly
of how he had seen innocent people being hanged for murder during his days in prison.
Proposing the abolition of the death penalty, he said that the avenue of appealing to the
Supreme Court “will be open to people who are wealthy, who can move heaven and
earth, but the common people who have no money and who are poor will not be able to
avail themselves” of it.

3
http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401179_1_death-penalty-sc-judge-the-rarest-of-
rare-category

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DISCUSSION

The Supreme Court of India, as the highest Judicial Tribunal of the country, has given its
authoritative decisions on various points of law from time to time. The apex court has examined
the constitutional validity, procedure and many other issues related to death sentence and
delivered its valuable verdict on numerous occasions in last 50-60 years. The constitutionality of
death penalty has been questioned before the Supreme Court several times on the ground that it
contravenes provisions incorporated in Indian Constitution. However, the Court has made it clear
many times that the imposition of death penalty is not opposed to the supreme law of the land.
Bhagwati, J., is of the opinion that Sec. 302 of the I.P.C. in so for as it provides for imposition of
death penalty as an alternative to life sentence is ultra vires and void as being violative of Article
14 and 21 of the constitution since it does not provide any legislative guidelines as to when life
should be permitted to be extinguished by imposition of death sentence.
Now comes the question as to when should the courts be inclined to inflict an accused with death
sentence. By virtue of section 354(3) of CrPC. it can be said that death sentence be inflicted in
special cases only. The apex court slightly modified this terminology in Bachan Singh's Case 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...”
For all the offences, in which death sentence is the punishment, it should be noted that it is not
the only punishment, it is the extreme punishment. Thus, these sections, by virtue of their very
wordings, provide for a discretion which is to be vested in the courts to decide the quantum of
punishment. So, in its ultimate judicial discretion, power to decide whether death penalty is to be
imposed or not, has been vested in courts right from the inception of Penal Code in 1860.
However, the manner of exercising this discretion has undergone various changes with the
changing time and evolution of new principles formulated through judicial pronouncements. The
guidelines have been specified from time to time to restrict the arbitrary use of this extreme
penalty and to guarantee free trial. Articles 72 and 161 of the Constitution confer power on the
President and governors of states to entertain the mercy petition of death convicts and grant
pardon. The Supreme Court through its pronouncements has defined the scope of such executive
clemency and set aside all the possibilities of its arbitrary use. Much more than that, it affirms
that the pardoning power of the President and the governors are subject to judicial review and
cannot be exercised due to political reasons or on the basis of caste.

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INDIAN PENAL CODE AND CRIMINAL PROCEDURE CODE


As far as India is concerned, the provisions relating to Capital Punishment are embodied in the
Criminal Procedure Code and the Indian Penal Code. Indian Penal Code is the substantive law,
which states the offences, which are punishable with death sentence. Criminal Procedure Code is
the procedural law, which explains the procedure to be followed in death penalty cases. The
substantive law of India viz., Indian Penal Code was enacted in the year 1860. Though very few
Amendments are made here and there, in total it remains unchanged, whereas Criminal
Procedure Code was amended substantially once in 1955 and reenacted in 1972. Though
majority of the provisions remain unchanged Section 235(2) and Section 354(3) underwent a
major change. The present chapter mainly deals with the substantive and procedural laws
pertaining to Capital Punishment. It is also proposed to discuss the power of the executive to
grant pardon and commute death into life imprisonment as provided under the Indian
Constitution. A major amendment took place in the Codes in 2013, namely The Criminal Law
(Amendment) Act, 2013. It is an Indian legislation which provides for amendment of the Indian
Penal Code, Criminal Procedure Code and Indian Evidence Act on laws related to sexual
offences. It was promulgated in the light of the protests in the 2012 Delhi gang rape case.

CAPITAL OFFENCES UNDER INDIAN PENAL CODE


The Indian Penal Code provides for the imposition of Capital Punishment in the following cases:
Section 121 provides that whoever wages war against the Government of India or attempts to
wage such war, or abets the waging of such war, shall be punished with death or imprisonment
for life and shall also be liable to fine.
The offence under Section 121 is a capital offence because it threatens the very existence of an
organized Government, which is essential for the protection of human life.
Section 124-A provides death penalty for sedition. The line dividing preaching disaffection
towards the Government and legitimate political activity in a democratic set-up cannot be
precisely drawn. Where the legitimate political criticism of the Government in power ends and
disaffection begins, cannot be ascertained with precision. The demarcating line between the two
is very thin. What was sedition against the Imperial Rulers May today pass of as legitimate
political activity in a democratic set-up under our libertarian Constitution? The interpretation has
to be moulded within the letter and spirit of our Constitution.4
According to Section 132 whoever abets the committing of mutiny by an officer, soldier, sailor
or airman, in the Army, Navy, or Air Force of the Government of India, shall, if mutiny be
committed in consequence of that abetment, be punished with death or with imprisonment of life,
or imprisonment of either description for a term which may extend to ten years, and shall also be

4
RatanLal and DhirajLal: Law Of Crimes: 398 (1995)

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liable to fine. Section 132 is also a capital offence, because it aims at the destruction of the very
forces, which are intended to protect the machinery of the State.
Sections 121, 124-A and 132 prescribe death penalty for the offences intended to affect the
stability, political independence and territorial integrity of the Nation.
Section 194 aims at the persons who give or fabricate false evidence with intent to procure
conviction of capital offence to innocent persons. It runs thus: "Whoever gives or fabricates false
evidence, intending thereby cause, any person to be convicted of an offence which is capital by
the law for the time being in force in India shall be punished with imprisonment for life or with
rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
And if an innocent person be convicted and executed in consequence of such false evidence, the
person who gives such false evidence shall be punished with either death or the punishment
herein before described." Section 194 part II is punishable with death on the logic that the person
concerned gave false evidence with the intention of or knowledge of likelihood of deprivation of
innocent human life.
Section 302 of Indian Penal Code is the most important section in the jurisprudence of Capital
Punishment. It prescribes death sentence for the offence of murder. But the section gives
discretion to the sentencing judge by prescribing life imprisonment as an alternative punishment
though the authors of the Code prescribed death as a punishment, they are convinced that it
ought to be sparingly inflicted. They also observed "Though the sentence consequent upon a
conviction of murder must be death, if there exists any grounds for mercy, that circumstance will
have to be considered by the Government or its executive minister, and all that a Court of Justice
can do is to submit a recommendation after passing the sentence of law."
According to Section 307, "whoever does any act with such intention or knowledge, and under
such circumstances that, if he by that act caused death, he would be guilty of murder, shall be
punished with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be
liable either to imprisonment for life, or to such punishment as is herein before mentioned. When
such an attempt is made by a life convict, he may, if hurt is caused, be punished with death."
The offence under Section 307 is one where the attempt is not successful; the disregard of the
sanctity of human life is, however, transparent here also. But, the sentence of death can be
awarded only when hurt is caused and the person offending is already under life imprisonment
sentence. The last requirement is merely an illustration of the proposition that the law has not
ruled out the consideration of the individual.5
The reasoning, which applied for holding section 303 as unconstitutional, would have applied
with same force to the last part of Section 307 also, and the same, if it had left no discretion with
the Judge, would have met the same fate. Fortunately, however, the provision for the Capital

5
Law Commission of India: Thirty-Fifth Report: 35 (September-1967)

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Punishment, in that section is not mandatory but spells out its desirability. The word "may be" is
indicative only of a desirable course.6
The last capital offence in the order in Indian Penal Code is Section 396. It runs thus: "If any one
of five or more persons, who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be punished with death, or imprisonment
for life, or rigorous imprisonment for a term which may extend to ten years and shall also be
liable to fine." The offence under Section 396, is a specific case of vicarious liability in respect
of the sentence of death, but even here it would be difficult to discuss the principle of protection
of human life: the section requires that there must be five or more persons who are conjointly
committing dacoity and that one of such persons must commit murder in so committing dacoity.
Joint liability under this section does not arise unless all the persons conjointly commit dacoity
and the murder was committed in so committing dacoity.7
The Indian Penal Code provides death penalty in three distinct patterns. Sections 303 and 307
relate to two offences for which the death penalty is the only form of punishment. Section 302 is
the second pattern where death penalty is with only one alternative which is life imprisonment.
The third pattern is followed in respect of other offences cited above, where death penalty is the
maximum to be applied along with wide range of other minimum sentences. In respect of the
rules or guidelines for the operation of the choice out of the range of sentences the penal code is
fairly bold. The question of when or why the death penalty should be imposed is left to judicial
discretion in every case.8 Guided by missiles with lethal potential in unguided hands, even
judicial, is a grave risk where the peril is mortal though tempered by the appellate process.9

PROVISIONS UNDER CRIMINAL PROCEDURE CODE


The Criminal Procedure Code, 1973 provides a new provision in Section 235(2) at the stage of
sentencing.10 The object of this provision is to give a fresh opportunity to the convicted person to
bring to the notice of the court in awarding appropriate sentence having regard to the personal,
social and other circumstances of the case.11
The accused may have some grounds to urge for giving him consideration in regard to the
sentence such as that he is breadwinner of the family about which the court may not be made
aware of during the trial.12 The social compulsion ,the heredity, the retributive instinct to seek an
extra legal remedy to a sense of being wronged, the pressure of poverty, the lack of means to be
educated in the difficult art of an honest living, the parentage - all these and similar other

6
Chaturvedi and Chaturvedi: Theory and Law of Capital Punishment: 50 (1989).
7
Bhupendra Singh v. State of Punjab: 1969 Cri.L.J. 6S.C.
8
Pande, B.B: "Face to Face with Death": Supreme Court Cases: 124 (1986)
9
Rajendra Prasad v. State of Uttar Pradesh: AIR 1979 S.C. 916.
10
Section 235 (2): If the accused is convicted, the judge shall Unless he proceeds in accordance with the provisions
of Section 360, hear the accused on the question of sentence, and then pass Sentence on him according to law
11
Ram NathIyer,P: Code of Criminal Procedure: 1865 (1994)
12
Subhash C. Gupta: Capital Punishment in India: 119 (1986)

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considerations can, legitimately and hopefully, tilt the scales on the propriety of sentence. The
mandate of Section 235(2) must therefore be obeyed in its letter and spirit.13
The ultimate shift in legislative emphasis is that, under the New Criminal Procedure Code, 1973,
life imprisonment for murder is the rule and Capital Punishment the exception - to be resorted to
for reasons to be stated as per Section 354(3) of Criminal Procedure Code.14 "
Section 354(5) of Criminal Procedure Code deals with the execution of death penalty. It
provides that "when any person is sentenced to death, the sentence shall direct that he be hanged
by the neck till he is dead." Even if it is not mentioned so also, there is no difficulty. The High
Court has to confirm the death sentence imposed by the Sessions Court.
Section 366 of Code Criminal Procedure insists upon the confirmation of death penalty by the
High Court. The first provision of this particular section states, “When the Court of Session
passes a sentence of death, the proceedings shall be submitted to the High Court, and sentence
shall not be executed unless it is confirmed by the High Court.”15
Section 368 of Criminal Procedure Code empowers the High Court to confirm sentence or annul
conviction. It envisages "In any case submitted under Section 366, the High Court - (a) may
confirm the sentence, or pass any other sentence warranted by law, or (b) annul the conviction,
and convict the accused of any offence of which the court of session might have convicted him,
or order a new trial on the same or on amended charge, or (c) may acquit the accused person;
Provided that no order of confirmation shall be made under this section until the period allowed
for preferring an appeal has expired, or, if an appeal is presented within such period, until such
appeal is disposed of."
Section 369 of the Code prescribes that either confirmation of the sentence or new sentence is to
be signed by two judges of High Court. It runs thus: "In every case so submitted, the
confirmation of the sentence, or any new sentence or order passed by the High Court, shall when
such Court consists of two or more Judges, be made, passed and signed by at least two of them."
Section 413 deals with the execution of order passed under Section 388: It reads "When in a case
submitted to the High Court for the confirmation of a sentence of death, if the Court of Session
receives the order of confirmation or other order of the High Court thereon, it shall cause such
order to be carried into effect by issuing a warrant or taking such other steps as may be
necessary."
The above mentioned are few of the major sections of the Criminal Procedure Code relating to
Capital Punishment. There a lot more sections that deal with capital punishment namely Section
415, 416, 433, 432,416,414, etc.

13
Dagduv.State of Maharashtra: AIR 1977 S.C.1579.
14
EdigaAnnamma v. State of Andhra Pradesh: AIR 1974: S.C. 799
15
Masalti v. State: AIR 1965 S.C. 202

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DEBATE OVER RETENTION AND ABOLITION OF DEATH


PENALTY

ARGUMENTS FOR RETENTION OF DEATH PENALTY


 Capital Punishment acts as a deterrent- If the death sentence is removed, the fear that
comes in the minds of the people committing murder will be removed. “Do we want
more of murders in our country or do we want less of them?”16 All sentences are awarded
for the protection of the society, so that every individual lives in peace. Capital
punishment is necessary for this security.17 The fear of being hanged prevents a person
from committing heinous crimes which is a step forward in keeping the nation safe.
 Elimination of the criminals- Death Penalty is the only means of eliminating the
offender who puts public peace into danger by committing certain dangerous forms of
crime. 18
 Possibility of repeated crimes- Society must be protected from the risk of a second
offence by a criminal who is not executed and may be released. After release he may
commit the same crime again.19
 Condition in India- In countries where capital punishment has been abolished, the figure
of homicide is very low; four in a million or even less than that.20 In India the figure of
homicide is huge and abolishment of death penalty will further aggravate it.
 Saving of funds- Money of citizens should not be spent on maintaining people who
cause harm to them. The tax payers should not be called upon to pay for the maintenance
of anti-social criminals for an indefinite or a very long period.
 Proportionate to crime- The punishment should bear a just proportion to crime. Thus
capital punishment is the only fit punishment for those who have deliberately violated the
sanctity of human life.
 No miscarriage of justice- If there is miscarriage of justice in one or two cases, the
higher courts can be approached. The whole machinery of the Government will be there
to protect the life of an innocent person.
 It marks the reprobation of society-Capital punishment marks the society’s detestation
and abhorrence. Capital Punishment marks the detestation and abhorrence of the taking
of life and its revulsion against the crime of crimes. It is supported not because of a desire
for vengeance, but rather as the society's reprobation to the grave crime of murder. 21

16
By Late Shri GovindBallabh Pant, Minister of Home Affairs, Rajya Sabha Debate, 25 th April 1958
17
Late Shri Datar, Minister of State in the Ministry of Home Affairs, Rajya Sabha Debate, 25 th April 1958
18
U.N. Publication, page 59, paragraph 216
19
Ceylon Report, Summary of arguments, page 39, under “long term effects”
20
Smt. Violet Alva, Rajya Sabha Debate,8th September 1961, col. 3817
21
Law Commission of India: Thirty Fifth Report: Para 55: (1967)

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ARGUMENTS FOR ABOLITION OF DEATH PENALTY


 Religious, moral and ethical values- The abolitionists point to the fifth commandment
in support of their argument. "Thou shall not kill" and to Christ’s appeal in the Sermon
on the Mount. "Do good to those who hate you." In Mahabharata also, Satyaketu,
Dyumatsena's son was against Capital Punishment. He protested against the mass scale
executions ordered by his father and argued that destruction of human life can never be
justified on any ground.22 Life is a precious gift of God. God, who gives the life, alone,
has the right to take it back. Any agency including the judiciary should not execute this
right. Father of the Indian Nation- Mahatma Gandhi also reiterated the same thing long
back. "God alone can take life. Because, He alone gives it. Destruction of human life can
never be a virtuous act.”23
 Capital Punishment is barbarous- Capital Punishment is a cruelly callous investment
by unsure and unkempt society in punitive dehumanization and cowardly strategy
based on the horrendous superstition that cold-blooded human sacrifice by professional
hangman engaged by the state will propitiate the Goddess of Justice to bless Mother
Earth with crimeless society.24 Execution brutalizes those involved in the process.
 Right to life and the State-Every individual is entitled to have his rights and each
individual has a responsibility to protect those rights for all others. Life is a universal
human right. To put off such a right by the State diminishes the basic concept of the
dignity of the individual, and this dignity is an inalienable right. Article 21 of The Indian
Constitution provides every citizen of the country with the right to life and personal
liberty. The abolitionists say that capital punishment is violative of this fundamental right
and hence should be abolished.
 Capital Punishment is not a deterrent- Studies and researches show that it has been
concluded that ," violent crime follows a curve that is a function of social and economic
conditions and the evolution of the moral values of society at a given moment. It is
unaffected by the existence or absence of Capital Punishment. In other words the death
penalty does not reduce crime, nor does its abolition increase it."
 Capital Punishment rules out the possibility of reformation- Every saint has a past
and every sinner a future. Never write off the man wearing the criminal attire but remove
the dangerous degeneracy in him, restore retarded human potential by holistic healing of
his fevered, fatigued or frustrated inside and by repairing the repressive, though hidden,
injustice of the social order which is vicariously guilty of the criminal behavior of many
innocent convicts. Law must rise with life and jurisprudence responds to humanism.25

22
Mahabharata: Shanti Parva: Chapter CCLXVII, Verses- 4-13
23
Krishna Iyer.J. “ Death Sentence on Death Sentence” The Indian Advocate: Journal of the Bar Associate of India:
VXVIII 34 (Jan-June ,1978) See also Gollanz: Capital Punishment the Heart of the Matter: p. 9 (1955)
24
Ibid
25
Krishna Iyer.J. “ Death Sentence on Death Sentence” The Indian Advocate: Journal of the Bar Associate of India:
VXVIII 34 (Jan-June ,1978)

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CASE LAWS

 Bachan Singh v. State of Punjab26

In this case, the Supreme Court by 4 : 1 majority has overruled Rajendra Prasad’s
decision and has held that the provision of death penalty under Section 302 of
I.P.C. as an alternative punishment for murder is not violative of Article 21.
Article 21 of the Constitution recognizes the right of the State to deprive a person
of his life or personal liberty in accordance with reasonable, just and fair procedure
established by law. In view of the constitutional provision by no stretch of
imagination it can be said that death penalty under Section 302, I.P.C. either per
se, or because of its execution by hanging constitutes an unusual, cruel or
unreasonable punishment. The death penalty for the offence of murder does not violate
the basic feature of the Constitution. The International Covenant on Civil and Political
Rights to which India has become party in 1979 do not abolition of death penalty in all
circumstances. All that it requires is, that (1) death penalty should not be
arbitrarily inflicted, (2) it should be imposed for the most serious crimes. Thus
the requirements of International Covenant is the same as the guarantees and
prohibitions contained in Article 20 and 21 of our Constitution. The I.P.C. prescribes
death penalty as an alternative punishment only for heinous crimes. Indian Penal
Laws are thus entirely in accord with international commitment.

 Rajendra Prasad v. State of U.P.27


Krishna Iyer, J., held that capital punishment would not be justified unless it was shown
that the criminal was dangerous to the society. He held that giving discretion to the Judge
to make choice between death sentence and life imprisonment on ‘‘special reason" under
Section 354 (3) of Cr.P.C. would be violative of Article 14 which condemns arbitrariness.
He pleaded for the abolition or the scope or Section 302, I.P.C. and Section 354 (3)
should be curtailed or not is a question to be decided by the Parliament and not
by the Court. It is submitted that minority judgment is correct because after the
amendment in the Cr.P.C. and the decision in Jagmohan Singh's case the death
penalty is only an exception and the life imprisonment is the rule. The discretion
to make choice between the two punishments is left to the Judges and not to the
Executive.

26
AIR 1980 SC 898
27
AIR 1979 SC 916.

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 Rampal Pithwa Rahidas v. State of Maharashtra ,199428


In this case the trial court had sentenced eight people to death. The High Court upheld the
sentences of five of them, but the Supreme Court acquitted them all, noting that the main
evidence against them was not trustworthy. The Court noted sarcastically that the main
witness's memory constantly improved (his testimony at the trial three years after the
incident was observed to be far more detailed than his confessional statement recorded a
few days after the incident). The Court concluded that the witness was pressured by the
police to give evidence because “the investigation had drawn a blank and admittedly the
District Police of Chandrapur was under constant attack from the media and the public.”

 Sudama Pandey and others v. State of Bihar,199129


In this case the trial court had sentenced five people to death for the attempted rape and
murder of a 12-year-old child, the High Court had commuted the sentences, but the
Supreme Court noted that it was unfortunate that the High Court did not also properly
review the evidence. Acquitting the accused, the Supreme Court noted that both the trial
court and the High Court had committed a serious error by appreciating circumstantial
evidence, resulting in a miscarriage of justice.

 Devinder Pal Singh v. State, N.C.T. of Delhi and anr.30


Devinder Pal Singh Bhullar was sentenced to death by a designated court in 2001 under
the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA) after being found
guilty of involvement in the 1993 bombing of the Youth Congress Office in Delhi, which
led to the deaths of many persons. The prosecution’s case was that he had voluntarily
confessed to his role in the bombing to the police. The prosecution relied almost solely on
this alleged confession by the accused, which he subsequently retracted. The Supreme
Court, sitting as a court of first appeal under the TADA, confirmed the death sentence in
2002.
In a dissenting judgment, Justice Shah of the Supreme Court recommended acquittal of
the accused, doubting the veracity and voluntary character of a confessional statement
made to a police officer. Justice Shah concluded that there was no evidence to convict
Bhullar and that a dubious confession could not be the basis for awarding the death
sentence. But the majority bench, upholding the sentence, merely suggested that such
concerns could be taken into account by the executive during their decision on clemency.
Devinder Pal Singh Bhullar’s mercy petition remains pending before the President. He is
currently on death row in Tihar Jail, Delhi.

28
1994 Supp (2) Supreme Court Cases - SCC 478
29
AIR 2002 SC 293
30
2002 5 SCC 234

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CONCLUSION
In India, the provision for death sentence still prevails as part of criminal jurisprudence but the
Supreme Court of India has repeatedly asserted that it should be imposed only in the rarest of
rare case. The highest Judicial Tribunal of the country has given from time to time authoritative
pronouncements and made it clear that the provisions for death sentence are not violative of
Articles 14, 19 and 21 of the Constitution. Thus, the provisions dealing with death sentence are
not opposed to the Constitution, but care must be exercised in every case to look into the
circumstances of the case, facts and the nature of the crime for making choice between the
imposition of death penalty and the award of the sentence of life imprisonment. However, the
death penalty should be imposed only in accordance with the procedure established by law.
For all the offences, in which death sentence is the punishment, it may be noted that it is not the
only punishment, it is the extreme penalty. Thus, these provisions, by virtue of their very
wordings, provide for a discretion which is to be vested in the courts to decide the quantum of
punishment. Now comes the question as to when should the courts be inclined to inflict death
sentence to an accused? By virtue of section 354(3) of Cr.P.C. it can be said that death sentence
be inflicted in special cases only. The apex court modified this terminology in Bachan Singh's
Case 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...”
A person sentenced to death is entitled to procedural fairness till his last breath of life. Article 21
demands that any procedure which takes away the life and liberty of such person must be just,
fair and reasonable. Undue delay in execution of death sentence due to delay in disposal of
mercy petition would certainly cause mental torture to the condemned prisoner and, therefore,
would be violative of Article 21. In such a situation, the Court examines the delay factor in the
light of the circumstances of the case and in appropriate cases commute death sentence to life
imprisonment sentence. Now, a constitutional bench of the Supreme Court has ruled that an
unduly long delay in execution of the sentence of death would entitle an approach to the Court,
but that only delay after the conclusion of the judicial process would be relevant, and that the
period cannot be fixed.
The executive can exercise the pardoning power at any time after commission of an offence,
either before legal proceedings are taken or during their pendency or either before or after
conviction. A pardon is an act of grace and, therefore, it cannot be demanded as a matter of right.
By ruling that the exercise of the President’s power under Article 72 will be examined on the
facts and circumstances of each case the Supreme Court has retained the power of judicial
review even on a matter which has been vested by the Constitution solely in the Executive. Thus,
if the pardoning power has been exercised on the ground of political reasons, caste and religious
considerations it would amount to violation of the Constitution and the Court will examine its
validity.

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SUGGESTIONS
In the last decade death penalty has become a subject-matter of intense focus in the Supreme
Court. The Apex Court on various occasions has wrestled with the disparate application of law
on death penalty and constitutional fairness implications of the same. A systematic study which
would address the queries and concerns of Courts and also presents an international perspective
on the issue is much needed. The Court in some of these cases has specifically requested the Law
Commission to undertake research in this behalf.
To voice my opinions on this matter, I feel that capital punishment is a very subjective matter.
India, having a population of more than a billion, has diverse views on the existence of capital
punishment.
In India, propounding of the “rarest of rare” standard as a rigorous test to be fulfilled in all cases
where the Courts award death sentence has in its heart the conception of death penalty as a
sentence that is unique in its absolute denouncement of life for a penal purpose. As part of this
characterization of death penalty standing in its own league, the Court devised one of the most
demanding and compelling doctrines in law of crimes as existing in this country. Emergence of
the “rarest of rare” dictum was very much the beginning of constitutional regulation of death
penalty in India.
In the last decade, the Supreme Court has revisited the theme of constitutional regulation of
death penalty multiple times. The comments made by the Supreme Court in this behalf indicate a
degree of anxiety felt by the Court in dealing with the issue of death penalty. It is also to be
noted that in the last few years, Supreme Court has entrenched the punishment of “full life” or
life sentence of determinate number of years as a response to challenges presented in death cases.
In my opinion, death penalty is a punishment that must be inflicted upon criminals who have
committed a very heinous crime against the society and possess a further threat to the entire
nation. It may be said that it reduces the chance of reformation but crimes like rape and murder
which shake the very foundations of humanity, should be punished severely. Also changing of
death penalty sentences into life imprisonment imposes the burden on the government to support
the existence of the criminal. Hence, death penalty should be imposed only in rarest of the rare
cases as stated by the Supreme Court.
The following arguments strengthen my support for the existence of capital punishment-
a) Capital Punishment acts as a deterrent for future crimes
b) Retribution through death penalty is the most effective means of achieving justice for
the victim and provide closure to the victim/victim's family and society
c) Capital Punishment ensures that the convicts are never released back into society as
they may pose a threat in future

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d) Capital punishment reduces the chances of convicts escaping from prison


e) Those accused of capital crimes do not deserve an opportunity for reformation
f) The severity of a crime should mandate an equally severe punishment
g) Capital Punishment ensures jails are not overpopulated/overcrowded as the current
prison infrastructure is inadequate to accommodate too many prisoners for life
h) Capital Punishment may impose less financial burden on the State as the cost of
imprisoning someone for life may be higher

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BIBLIOGRAPHY

Websites Referred:
www.jgenerator.com
www.economictimes.com
www.eastasiaforum.org
www.epw.in
www.merinews.com
www.indiankanoon.com
www.lawlex.org
www.lawcommissionofindia.nic.in
www.deathpenaltyinfo.org
www.indialawyers.wordpress.com

Newspapers referred –
The Hindu
The Times of India
Economic Times

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