CONSTITUTION

Delay In Execution Of Death Penalty

SUB
MIT
TED
BY:
Umair Ahmed Andrabi

Section-B

BA.LLB (Hons.) 4thSem.

Faculty of Law, Jamia Millia Islamia
 ACKNOWLEDGEMENT
It gives me a great pleasure to present this project on the topic “DELAY IN EXECUTION
OF DEATH PENALTY” strictly in manner under the guidance of our learned Professor, Dr.
Asad Malik.

I have made sincere efforts to make the assignment more meaningful, complete, compact and
comprehensive. It’s a great pleasure to bring my feeling into notice and practice .At last I
give him special regards for the valuable suggestions and efforts without which this
assignment could not have been completed.

With Regards,

Umair Ahmed Andrabi

 Contents

Introduction-Death penalty

History

Rarest of the rarest case

Legality of Death Sentence

Reasonableness of Death Sentence

Whether death Penalty serves any penological purpose?

When can Death Sentence be granted

Judicial Discretion

Need For Guidelines

Death Sentence For The Offence Of Rape

Mitigating Circumstances

Conviction of a minor

Conviction Of A Pregnant woman

Lesser Sentence To Co- Accused

Delay in execution of the death sentence

Reasons the death penalty should be abolished

Arguments for and Against the Death Penalty

INTRODUCTION-DEATH PENALTY

The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in
"the rarest of rare cases."

Capital crimes are murder, gang robbery with murder, abetting the suicide of a child or insane
person, waging war against the nation, and abetting mutiny by a member of the armed forces.

Since 1989, the death penalty has also been legal for a second offense of "large scale
narcotics trafficking". In recent years the death penalty has been imposed under new anti-
terrorism legislation for people convicted of terrorist activities. Recently the Indian Supreme
Court in SwamySharaddananda v. State of Karnataka1 made imposing the death penalty even
harder. The judgement holds that the “rarest of the rare” test prescribed in Bachchan Singh’s
case was diluted in the Machchi Singh case. The judgement then goes on to say that the
“rarest of the rare” must be measured not only in qualitative but also in quantitative terms.

India's top court has recommend the death penalty be extended to those found guilty of
committing so-called "honour killings" with the Supreme Court stating that honour killings
fall within the "rarest of the rare" category and deserves to be a capital crime.

1
2007 SC 649
HISTORY

official government statistics claim that only 57 people had been executed since
independence, but the People's Union for Civil Liberties cited information has suggested that
the total number of executions since independence may be as high as 3,000 to 4,300.About 29
mercy petitions are pending before the president, some of them from 1992. These include that
of three assassins of Rajiv Gandhi (in a bombing which caused 14 other deaths),
Khalistan Liberation Force terrorist Davinder Singh Bhullar who was convicted for killing
nine persons and injuring 31, the cases of slain forest brigand Veerappan's four associates—
Simon, Gnanprakasham, MeesekarMadaiah and Bilvendran—for killing 21 policemen in
1993 ; Gurdev Singh, Satnam Singh, Para Singh and Sarabjit Singh, given death penalty for
killing 17 persons in a village in Amritsar in 1991 ; and one Praveen Kumar for killing four
members of his family in Mangalore in 1994. Many more are on death row after having been
sentenced to die by lower courts, but on appeal most of them are likely to be commuted to
life imprisonment by the State High Courts or the Supreme Court of India. that due to the
absence of sentencing guidelines in what constitutes "rarest of the rare", in some less
gruesome murders, the lower courts have awarded death sentences possibly due to poor
defence presented by the lawyers of the economically backward.

The death penalty is carried out by hanging. After a 1983 challenge to this method, the
Supreme Court ruled that hanging did not involve torture, barbarity, humiliation, or,
degradation. Mohammad Afzal (Afzal Guru) was convicted of conspiracy in connection
withthe 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 October 20, 2006, but the sentence was stayed.
The Afzal case remains a volatile political issue.

On May 3, 2010, AjmalKasab was found guilty of numerous charges and was sentenced to
death on 4 counts. On Thu, May 6 02:18 PM a Mumbai Special Court, which conducted the
trial of 26/11 terror strikes, announced the death penalty for Ajmal Amir Kasab, the lone
surviving terrorist. The sentencing by Judge M L Tahiliyani makes Kasab the 52nd person on
death row in India. Kasab was handed capital punishment for killing 72 people and waging
war against the state.

In its recent judgment in MullaVs. State of UP, the Supreme Court has continued with the
trend of emphasising the extremely limited scope of the rarest of rare doctrine first
formulated in Bachan Singh. Justice Sinha's contribution to the death penalty debate, where
he repeatedly emphasised the fundamental precondition in Bachan Singh---that rarest of rare
case will be one where 'the alternative option [of life imprisonment] is unquestionably
foreclosed.' We have also previously looked at his landmark judgment in SantoshBariyar in
some detail. Justice Sathasivam's judgment in Mulla seems to be informed by a similar spirit.
A few extracts from the judgment follow:

The following propositions emerge from Bachan Singh case

1. Punishment of death need not be inflicted except in gravest cases of extreme

culpability.
2. Before opting for the death penalty the circumstances of the `offender' also require
to be taken into consideration along with the circumstances of the `crime'.
 3. Life imprisonment is the rule and death sentence is an exception.In other words
death sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of
the crime, and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant circumstance.
4. A balance sheet of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances have to be accorded full weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.

This Court in Bachhan Singh's v. State of Punjab (supra) has held that:"A real and abiding
concern for the dignity of human life postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed."Therefore, it is open for the court to grant a death
penalty in an extremely narrow set of cases, which is signified by the phrase `rarest of the
rare'. This rarest of the rare test relates to "special reasons" under Section 354(3).
Importantly, as the Court held, this route is open to the Court only when there is no other
punishment which may be alternatively given. This results in the death penalty being an
exception in sentencing, especially in the case where some other punishment can suffice. It
was in this context that the Court had noted:"The expression "special reasons" in the context
of this provision, obviously means "exceptional reasons" founded on the exceptionally grave
circumstances of the particular case relating to the crime as well as the criminal"

 Rarest of rare cases

To decide whether a case falls under the category of rarest of rare case or not was completely
left upon the court's discretion. However the apex court laid down a few principles which
were to be kept in mind while deciding the question of sentence. One of the very important
principles is regarding aggravating and mitigating circumstances. It has been the view of the
court that while deciding the question of sentence, a balance sheet of aggravating and
mitigating circumstances in that particular case has to be drawn. Full weightage should be
given to the mitigating circumstances and even after that if the court feels that justice will not
be done if any punishment less than the death sentence is awarded, then and then only death
sentence should be imposed.

The principles laid down by the apex court in Machhisinghv. State of Punjabwere reiterated
in it's latest judgment in SushilMurmu Vs. State of Jharkhand:"In rarest of rare cases, when
the collective conscience of the community is so shocked that it will expect theholders of the
judicial power center to inflict death penalty irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty, death sentence can be awarded.” The SC
has also discussed such circumstance in various cases.These circumstances include:

1. Murder committed in an extremely brutal, grotesque, diabolical , revolting or

dastardly manner so as to arouse intense and extreme indignation of the community.
2. Murder for a motive which evinces total depravity and meanness.
3. Murder of a Scheduled cast or Scheduled tribe- arousing social wrath
4. Bride burning/ Dowry death.
5. Murderer in a dominating position, position of trust or in course of betrayal of the
motherland.
 6. Where it is enormous in proportion.
7. Victim- innocent child, helpless woman, old/infirm person, public figure generally
loved and respected by the community.

If upon taking an overall view of all the circumstances and taking in to account the answers
to the question posed by way of the test of rarest of rare cases, the circumstances of the case
is such that death penalty is warranted, the court would proceed to do so.
Another factor which unfortunately has been left out in much judicial decision-making in
sentencing is the socio-economic factors leading to crime. We at no stage suggest that
economic depravity justify moral depravity, but we certainly recognize that in the real world,
such factors may lead a person to crime. The 48th report of the Law Commission also
reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt,
but they may amount to mitigating circumstances. Socio-economic factors lead us to another
related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to
note that a criminal who commits crimes due to his economic backwardness is most likely to
reform. This court on many previous occasions has held that this ability to reform amount to
a mitigating factor in cases of death penalty.
Legality of Death Sentence

In Jagmohanv. State of U.P the question of constitutional validity of Sec. 302, I.P.C. was
discussed in detail by the SC. Apart from the constitutional validity, the SC also discussed
position in other countries, the structure of Indian Criminal law, various policies and bills
proposed in the parliament , the extent of Judicial discretion etc. On the question of
constitutional validity the Court observed:"TheCr.P.C. requires that the accused must be
questioned with regard to the circumstances appearing against him in the evidence . He is
also questioned generally on the case and there is an opportunity for him to say whether he
wants to say ....... In important cases like murder, the Court always gives a chance to the
accused to address the Court on the question of Sentence. Under the Cr.P.C. after convicting
the accused, the Court has to pronounce the sentence according to law.........." On all these
grounds the SC rejected the argument that under Sec. 302, I.P.C., life of convictis taken
without any procedure established by law & therefore, it violates Art. 21 of the constitution.
Thus, the SC settled this controversy long back in 1973. However even after Jagmohan's case
this question came up again and again.

The SC reviewed Jagomhan's Case in the case of Bachan Singh Vs. State of Punjab because
after Cr. P.C. 1973 , death sentence ceased to be the normal penalty for murder [ 354 (3)].
Another reason was that Maneka Gandhi's case gave a new interpretation to Art. 14,19 and 21
and their interrelationship . Main issues before the SC were constitutional validity of Sec. 302
of the I.P.C .as well as constitutional validity of Sec. 354 (3) of Cr.P.C.
Reasonableness of Death Sentence

The SC in the case of Bachan Singh Vs. State of Punjab observed- ".......if not withstanding
the view of the abolitionists to the contrary , a very large segment of people, the world over,
including sociologists , legislature , Jurists , judges and administrators still firmly believe in
the worth and necessity of capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India, contemporary public opinion canalized
through the peoples representatives in parliament, has repeatedly including the one made
recently to abolish or specifically restrict the area of death penalty, if death penalty is still a
recognized legal sanction for murder or some types of murder in most of the civilized
countries in the world , if the farmers of the Indian constitution were fully aware of the
existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th
report and subsequent reports of law commission suggesting retention of death penalty, and
recommending revision of the Cr.P.C. and the insertion of the new sections 235 (2) and 354
(3) were before the Parliament when it took up revision of the Cr.P.C., it is not possible to
held that the provision of death penalty as an alternative punishment for murder, in sec. 302,
Penal Code is unreasonable and not in the public interest. The impugned provision in Sec.
302 , violates neither the letter nor the ethos of Article 19" . [ Para 132]

 Whether death Penalty serves any penological purpose?

The SC in the case of Bachan Singh v. State of Punjab considered a no. of opinions from all
over the world. Out of them, the opinion of Sir James Fitziames Stephen, the great Jurist, who
was concerned with the drafting of I.P.C. is very important to mention-

" No other punishment deters man so effectually from committing crimes as the punishment
of death” . This is one of those propositions which is difficult to prove simply because they
are in themselves more obvious than any proof can make them. In any secondary punishment,
however terrible, there is hope, but death is death, it's terrors cannot be described more
forcibly. " These views are very strong answers to the people who oppose death punishment
with the arguments that it does not serve penological purpose”.

 When can Death Sentence be granted ?

As have been stated earlier, after Cr.P.C. , 1973, death sentence is the exception while life
imprisonment is the rule. Therefore, 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.."

Judicial Discretion

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 sections, by virtue of their
very wordings itself, provide for a discretion which is to be vested in the courts to decide
 the quantum of punishment. So the ultimate judicial discretion to decide whether death
sentence is to be imposed or not , have 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. There is also a
debate going on, about the extent of this judicial discretion.

 Wide discretion

In Jagmohan's Case the SC held :-

" The structure of our criminal law which is principally contained in the IPC and the CR.P.C.
undertakes the policy that when the legislatures have defined an offence with clarity and
prescribed the maximum punishment, therefore a wide discretion in the matter of fixing the
degree of punishment should be allowed to judges." Thus the SC was in favour of wide
discretion to be given to judges for deciding the degree of punishment.However, this vide
direction was restricted by section 354(3) of Cr.P.C. 1973 which laid down the law that for
death sentence special reasons are to be recorded , meaning thereby , that death sentence is to
be imposed in special cases only.

In a case the court observed :

" The discretion to impose the sentence of death or life imprisonment is not so vide after all
section 354 (3) has narrowed the discretion . Death sentence is ordinarily ruled out and can
only be imposed for special reasons Judges are left with the task of discovering ' Special
reasons'.

In the case of Dalbir Singh v. State of Punjab the court expressing its concern for the way in
which this discretion was being used ." Notwithstanding the catalogue of grounds warranting
death sentence as an exceptional measure, 'life' being the rule , the judicial decisions have
been differing (and dithering) at various levels with the result the need for a through re-
examination has been forced on courts by counsel on both sides" . .

In Bachan Singh's case this problem was solved by the apex court itself to a very large
extent.The court observed:" It is imperative to voice the concern that courts, aided by the
broad illustrative guidelines indicated by us, will discharge the onerous function with
evermore scrupulous care and humane concern, directed along with high road of legislative
policy outlined in Sec. 354(3)....."

Need For Guidelines

A brief analysis of the cases decided by the SC. Regarding the question of death sentence
over last 25 years will reveal how differing/dithering the judgments have been.

 In Kurami alias Muthav. State of Tamil Nadu , the accused was a poor agriculturist
and had a wife and five children to support, but considering the murder of two persons
as brutal the death sentence was confirmed but this case was before Bachan Singh's
case, and till that time the principle of aggravating and initiating circumstances was
not laid down.
 While, in a brutal and dear case of bride burning the S.C. observed:
"From the judgment of the High Court, it is apparent that death sentence is awarded
more out of anger than on reasons.... Judicial discretion should not be allowed to be
 swayed by emotion and indignation. Ultimately the death sentence was commuted to
life imprisonment."
 In 1994, while deciding the case of Anshadv. State of Karnataka, the SC Commuted
death sentence to life imprisonment while the accused was convict of a brutal,
diabolical murder. The sentence was commuted because the SC felt that there are
chances of reformation of accused. With due respect to the court's view, it is
submitted that there still remains a question creating doubts on such judgments as to
how to judge the chances of reformation of an accused in a particular case. However,
it can be done on the line of SC's judgment in Javed Ahmed Abdul Hamid passawav.
State of Maharastra on this case. The death sentence of accused was affirmed in 1983,
but later, on the basis of serious atonement, the SC commuted the sentence to life
imprisonment.
 Then comes the very important case of Mohd. Chaman v. State (N.C.T.) of Delhi . In
this case a one and half year old girl was raped by the accused, and because of the
henious act, she sustained serious injuries and died. H.C. confirmed the death
sentence awarded by the sessions Court. But the Hon'ble SC commuted the death
sentence into life imprisonment, observing :- "The crime committed is undoubtedly
serious and heinous and the conduct of the appellant is reprehensible . It reveals a
dirty and prevented mind of a human being who has no control own his carnal
desires.... We are not persuaded to accept that the case can be called one of the ' rarest
of rare cases' deserving death penalty. We find it difficult to hold that the appellant is
such a dangerous person that to spare his life will endanger the community. It is our
considered view that the case is one in which a humanist approach should be taken in
the matter of awarding punishment " on the question of extent of judicial discretion,
the court observed :

"Such standardization is well nigh impossible. Firstly degree of culpability cannot be

measured in any case. Secondly criminal cases cannotbe categorized there being infinite ,
unpredictable and unforeseeable variations . Thirdly in such categorization, the sentencing
procedure will cease to be judicial. And fourthly , such standardization or sentencing
discretion is policy matter belonging to the legislature beyond the courts functions" .

Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be
said that such wide discretion has resulted into enormously varying judgments, which does
not portray a good picture of the justice delivery system. What is needed to be done; therefore
; is to revise and review the guidelines and principles laid down in cases like Bachan Singh or
Machhi Singh, or if it is felt that these guidelines still stand firm and fit perfectly in the
present social scenario, then these guidelines have to be strictly complied with, so that the
persons convicted for offence of similar nature are awarded punishments of identical degree.

The Indian Supreme Court had another opportunity to rectify its position, when the case of V.
MohiniGiriv. Union of India2 was argued before it in 2002. In this case the petitioner had
sought "the issuance of a guideline as to what should be the appropriate approach in the cases
where one of the judges in the Bench of this Court while hearing an appeal against death
sentence, acquits the accused person". The Apex Court declined issuing such a guideline
arguing that it would curtail the judicial discretion of the bench.

2
2002 AIR SCW 5306
Delay in execution of the death sentence

Delay in execution of death sentence is a factor which may be taken into consideration for
commuting the sentence of death to life imprisonment.

In the case of SmtTrivenibenv.State of Gujaratthe Supreme Court held that "....undue long
delay in execution of the death sentence will entitle the condemned person to approach this
court will under Art 32, but this court will only examine the nature of delay caused and
circumstances ensued after sentence was finally confirmed by the judicial process…..No
fixed period of delay could be held to make the sentence of death in executable.
Reasons why the death penalty should be abolished:

It is a complex issue and it is difficult to point to any single fact or argument as the most
important.

Executions are carried out at staggering cost to taxpayers:

It costs far more to execute a person than to keep him or her in prison for life. A recent New
Jersey Policy Perspectives report concluded that the state's death penalty has cost taxpayers
$253 million since 1983, a figure that is over and above the costs that would have been
incurred had the state utilized a sentence of life without parole instead of death. "From a
strictly financial perspective, it is hard to reach a conclusion other than this: New Jersey
taxpayers over the last 23 years have paid more than a quarter billion dollars on a capital
punishment system that has executed no one," the report concluded. Michael Murphy, former
Morris County, NJ prosecutor, remarked: "If you were to ask me how $11 million a year
could best protect the people of New Jersey, I would tell you by giving the law enforcement
community more resources. I'm not interested in hypotheticals or abstractions, I want the
tools for law enforcement to do their job, and $11 million can buy a lot of tools."
There is no credible evidence that capital punishment deters crime:

Scientific studies have consistently failed to demonstrate that executions deter people from
committing crime anymore than long prison sentences. Moreover, states without the death
penalty have much lower murder rates. The South accounts for 80% of US executions and
has the highest regional murder rate.

Millions currently spent on the death penalty could be used to assist the families of murder
victims.

Many family members who have lost love ones to murder feel that the death penalty will not
heal their wounds nor will it end their pain; the extended process prior to executions can
prolong the agony experienced by the family. Funds now being used for the costly process of
executions could be used to help families put their lives back together through counseling,
restitution, crime victim hotlines, and other services addressing their needs.

Life Without Parole is a Sensible Alternative to the Death Penalty

In every state that retains the death penalty, jurors have the option of sentencing convicted
capital murderers to life in prison without the possibility of parole. The sentence is cheaper to
tax-payers and keeps violent offenders off the streets for good. Unlike the death penalty, a
sentence of Life Without Parole also allows mistakes to be corrected. There are currently
over 3,300 people in California who have received this alternative sentence, which also has a
more limited appeals process last approximately 3 years. According to the California
Governor's Office, only seven people sentenced to life without parole have been released
since the state provided for this option in 1977, and this occurred because they were able to
prove their innocence.
Recent cases

DhananjoyChatterjee alias Dhanavs State of West Bengal &Ors..

The appellant, DhananjoyChatterjee was found guilty of offences punishable under Sections
376, 302 and 380 of the Indian Penal Code by judgment and was awarded death sentence by
the session judge, confirmed by the High Court .A special leave petition was filed by the
appellant .Leave was granted but the appeal was dismissed by the supreme court.

SushilMurmuVs. State of Jharkhand

A young child of 9 years was sacrificed before Goddess Kali by the appellant for his own
prosperity is what the prosecution alleges.Thesupreme court awarded death penality to the
accused.

State of U.P.V Satish

Stressing that leniency in punishing grave crimes would have serious consequences the
supreme court has awarded the death penality to a man for the rape and murder of a six year
old girl.

Arguments against death panelty

Those who oppose the death penalty argue their position with statements such as:

 Although the act of murder is horrific and inexcusable, executing the killer does
nothing to bring the person back.
 It often costs more to execute a criminal than it would to keep him/her alive in jail.
 It is irrational to assume that a criminal is going to consider the consequences of his
actions before committing a criminal act.

The risk of executing the innocent precludes the use of death penalty- Innocence

The death penalty alone imposes an irrevocable sentence. Once an inmate is executed,
nothing can be done to make amends if a mistake has been made. There is considerable
evidence that many mistakes have been made in sentencing people to death. Since 1973, at
least 121 people have been released from death row after evidence of their innocence
emerged. During the same period of time, over 982 people have been executed. Thus, for
every eight people executed, we have found one person on death row who never should have
been convicted. These statistics represent an intolerable risk of executing the innocent. If an
automobile manufacturer operated with similar failure rates, it would be run out of business.

Our capital punishment system is unreliable. A recent study by Columbia University Law
School found that two thirds of all capital trials contained serious errors. When the cases were
retried, over 80% of the defendants were not sentenced to death and 7% were completely
acquitted.

Many of the releases of innocent defendants from death row came about as a result of factors
outside of the justice system. Recently, journalism students in Illinois were assigned to
investigate the case of a man who was scheduled to be executed, after the system of appeals
had rejected his legal claims. The students discovered that one witness had lied at the original
trial, and they were able to find the true killer, who confessed to the crime on videotape. The
innocent man who was released was very fortunate, but he was spared because of the
informal efforts of concerned citizens, not because of the justice system.

Society takes many risks in which innocent lives can be lost. We build bridges, knowing that
statistically some workers will be killed during construction; we take great precautions to
reduce the number of unintended fatalities. But wrongful executions are a preventable risk.
By substituting a sentence of life without parole, we meet society's needs of punishment and
protection without running the risk of an erroneous and irrevocable punishment.

Once an inmate is executed,nothing can be done to make amends if a mistake has been
made!

The death penalty is applied unfairly and should not be used..- Arbitrariness and
Discrimination

In practice, the death penalty does not single out the worst offenders. Rather, it selects
an arbitrary group based on such irrational factors as the quality of the defense
counsel, the county in which the crime was committed, or the race of the defendant or
victim.

Almost all defendants facing the death penalty cannot afford their own attorney. Hence, they
are dependent on the quality of the lawyers assigned by the state, many of whom lack
experience in capital cases or are so underpaid that they fail to investigate the case properly.
A poorly represented defendant is much more likely to be convicted and given a death
sentence.

With respect to race, studies have repeatedly shown that a death sentence is far more likely
where a white person is murdered than where a black person is murdered. The death penalty
is racially divisive because it appears to count white lives as more valuable than black lives.
Since the death penalty was reinstated in 1976, 202 black defendants have been executed for
the murder of a white victim, while only 12 white defendants have been executed for the
murder of a black victim. Such racial disparities have existed over the history of the death
penalty and appear to be largely intractable.

It is arbitrary when someone in one county or state receives the death penalty, but someone
who commits a comparable crime in another county or state is given a life sentence.
Prosecutors have enormous discretion about when to seek the death penalty and when to
settle for a plea bargain. Often those who can only afford a minimal defense are selected for
the death penalty. Until race and other arbitrary factors, like economics and geography, can
be eliminated as a determinant of who lives and who dies, the death penalty must not be used.

Death penalty is racially divisive because it appears to count white lives as more
valuable than black lives..
The death penalty is not a deterrent because most people who commit murders either do not
expect to be caught or do not carefully weigh the differences between a possible execution
and life in prison before they act. Frequently, murders are committed in moments of passion
or anger, or by criminals who are substance abusers and acted impulsively. As someone who
presided over many of Texas's executions, former Texas Attorney General Jim Mattox has
remarked, "It is my own experience that those executed in Texas were not deterred by the
existence of the death penalty law. I think in most cases you'll find that the murder was
committed under severe drug and alcohol abuse."

There is no conclusive proof that the death penalty acts as a better deterrent than the threat of
life imprisonment. A survey of the former and present presidents of the country's top
academic criminological societies found that 84% of these experts rejected the notion that
research had demonstrated any deterrent effect from the death penalty .

Once in prison, those serving life sentences often settle into a routine and are less of a threat
to commit violence than other prisoners. Moreover, most states now have a sentence of life
without parole. Prisoners who are given this sentence will never be released. Thus, the safety
of society can be assured without using the death penalty.

Death penalty is, at best, is no more of a deterrent than a sentence of life in

prison !

Retribution is another word for revenge. Although our first instinct may be to inflict
immediate pain on someone who wrongs us, the standards of a mature society demand a more
measured response.

The emotional impulse for revenge is not a sufficient justification for invoking a system of
capital punishment, with all its accompanying problems and risks. Our laws and criminal
justice system should lead us to higher principles that demonstrate a complete respect for life,
even the life of a murderer. Encouraging our basest motives of revenge, which ends in
another killing, extends the chain of violence. Allowing executions sanctions killing as a
form of 'pay-back.'

Many victims' families denounce the use of the death penalty. Using an execution to try to
right the wrong of their loss is an affront to them and only causes more pain. For example,
Bud Welch's daughter, Julie, was killed in the Oklahoma City bombing in 1995. Although his
first reaction was to wish that those who committed this terrible crime be killed, he ultimately
realized that such killing "is simply vengeance; and it was vengeance that killed Julie....
Vengeance is a strong and natural emotion. But it has no place in our justice system."

The notion of an eye for an eye, or a life for a life, is a simplistic one which our society has
never endorsed. We do not allow torturing the torturer, or raping the rapist. Taking the life of
a murderer is a similarly disproportionate punishment, especially in light of the fact that the
U.S. executes only a small percentage of those convicted of murder, and these defendants are
typically not the worst offenders but merely the ones with the fewest resources to defend
themselves.

Allowing executions sanction killings as a form of ‘pay back’.

BY KILLING THE WICKED, THE KING KILLS A LARGE NUMBER OF
INNOCENT MAN!!

THE SIN THAT IS COMMITTED BY KILLING ONE WHO DOES NOT DESERVE
TO BE KILLED IS AS GREAT AS THE SIN OF NOT KILLING ONE WHO
DESERVE TO BE KILLED. MAHABHARAT!!

Arguments in favour of death panelty

1. The Supreme Court of India ruled in 1983 that the death penalty should be imposed
only in "the rarest of rare cases."
2. Capital crimes are murder, gang robbery with murder, abetting the suicide of a
child or insane person, waging war against the nation, and abetting mutiny by a
member of the armed forces.
3. Since 1989, the death penalty has also been legal for a second offense of "large scale
narcotics trafficking". In recent years the death penalty has been imposed under new
anti-terrorism legislation for people convicted of terrorist activities. Recently the
Indian Supreme Court in Swamy Sharaddananda v. State of Karnataka made
imposing the death penalty even harder. The judgement holds that the “rarest of the
rare” test prescribed in Bachchan Singh’s case was diluted in the Machchi Singh
case. The judgement then goes on to say that the “rarest of the rare” must be measured
not only in qualitative but also in quantitative terms.
4. India's top court has recommend the death penalty be extended to those found guilty
of committing so-called "honour killings" with the Supreme Court stating that
honour killings fall within the "rarest of the rare" category and deserves to be a
capital crime.

History-:

Official government statistics claim that only 52 people had been executed since
independence, but the People's Union for Civil Liberties cited information has suggested
that the total number of executions since independence may be as high as 3,000 to 4,300

About 29 mercy petitions are pending before the president, some of them from 1992. These
include that of three assassins of Rajiv Gandhi (in a bombing which caused 14 other
deaths), Khalistan Liberation Force terrorist Davinder Singh Bhullar who was
convicted for killing nine persons and injuring 31, the cases of slain forest brigand
Veerappan's four associates—Simon, Gnanprakasham, Meesekar Madaiah and
Bilvendran—for killing 21 policemen in 1993 ; Gurdev Singh, Satnam Singh, Para Singh
and Sarabjit Singh, given death penalty for killing 17 persons in a village in Amritsar in
1991 ; and one Praveen Kumar for killing four members of his family in Mangalore in
1994.[5]

Many more are on death row after having been sentenced to die by lower courts, but on
appeal most of them are likely to be commuted to life imprisonment by the State High
Courts or the Supreme Court of India.
that due to the absence of sentencing guidelines in what constitutes "rarest of the rare",
in some less gruesome murders, the lower courts have awarded death sentences possibly
due to poor defence presented by the lawyers of the economically backward.

The death penalty is carried out by hanging. After a 1983 challenge to this method, the
Supreme Court ruled that hanging did not involve torture, barbarity, humiliation or
degradation.

Mohammad Afzal (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 October 20, 2006, but the sentence was stayed. The Afzal case
remains a volatile political issue.

On May 3, 2010, Ajmal Kasab was found guilty of numerous charges and was sentenced to
death on 4 counts.

on Thu, May 6 02:18 PM A Mumbai Special Court, which conducted the trial of 26/11 terror
strikes, announced the death penalty for Ajmal Amir Kasab, the lone surviving terrorist. The
sentencing by Judge M L Tahiliyani makes Kasab the 52nd person on death row in India.
Kasab was handed capital punishment for killing 72 people and waging war against the state.

Arguments in favour of Death penalty

1. An eye for an eye!

2. Society should not have to pay for someone so dangerous that they can never
return to live around normal people.
3. The threat of execution is enough to make criminals think twice about
committing a capital crime.

It prevents future murders- Deterrence

1. Society has always used punishment to discourage would-be criminals from
unlawful action. Since society has the highest interest in preventing murder, it
should use the strongest punishment available to deter murder, and that is the death
penalty.

2. If murderers are sentenced to death and executed, potential murderers will think twice
before killing for fear of losing their own life.

3. Hence, the threat of the death penalty may deter some murderers who otherwise might
not have been deterred. And surely the death penalty is the only penalty that could
deter prisoners already serving a life sentence and tempted to kill a guard, or
offenders about to be arrested and facing a life sentence. Finally, the death penalty
certainly "deters" the murderer who is executed.

4. Strictly speaking, this is a form of incapacitation, similar to the way a robber put in
prison is prevented from robbing on the streets. Vicious murderers must be killed to
prevent them from murdering again, either in prison, or in society if they should
 get out. Both as a deterrent and as a form of permanent incapacitation, the death
penalty helps to prevent future crime.
Since society has the highest interest in preventing murder, it should use the strongest
punishment available to deter murderer

A Just society requires death penalty for the taking of a life.-Retribution

1. When someone takes a life, the balance of justice is disturbed. Unless that balance
is restored, society surrenders to a rule of violence. Only the taking of the
murderer's life restores the balance and allows society to show convincingly that
murder is an intolerable crime which will be punished in kind.

2. Retribution has its basis in religious values, which have historically maintained that
it is proper to take an "eye for an eye" and a life for a life.

3. Although the victim and the victim's family cannot be restored to the status which
preceded the murder, at least an execution brings closure to the murderer's
crime (and closure to the ordeal for the victim's family) and ensures that the
murderer will create no more victims.

4. For the most cruel and heinous crimes, the ones for which the death penalty is
applied, offenders deserve the worst punishment under our system of law, and that is
the death penalty. Any lesser punishment would undermine the value society
places on protecting lives.

5. Robert Macy, Attorney of Oklahoma City, described his concept of the need for
retribution in one case: "In 1991, a young mother was rendered helpless and made
to watch as her baby was executed. The mother was then mutilated and killed. The
killer should not lie in some prison with three meals a day,clean sheets, cable TV,
family visits and endless appeals.

FOR Justice to prevail, some killers just need to die!

1. If it can be shown that someone is innocent, surely the president can use the
pardoning power. Hypothetical claims of innocence are usually just delaying
tactics to put off the execution as long as possible.
2. Given our thorough system of appeals through district and appelate courts, the
execution of an innocent individual today is almost impossible. Even the theoretical
execution of an innocent person can be justified because the death penalty saves lives
by deterring other killings.
3. Moreover Article 226,227,136,137 and 32 of the Indian Constitution is regarding
judicial review and prevents from miscarriage of justice...
4. Even if the death penalty punishes some while sparing others, it does not follow that
everyone should be spared. The guilty should still be punished appropriately, even
if some do escape proper punishment unfairly.
5. High paid, skillful lawyers should not be able to get some defendants off on
technicalities.
6. The existence of some systemic problems is no reason to abandon the whole
death penalty system.
In its recent judgment in Mulla v State of UP, the Supreme Court has continued with the
trend of emphasising the extremely limited scope of the rarest of rare doctrine first
formulated in Bachan Singh.

This blog has noted Justice Sinha's contribution to the death penalty debate, where he
repeatedly emphasised the fundamental precondition in Bachan Singh---that rarest of rare
case will be one where 'the alternative option [of life imprisonment] is unquestionably
foreclosed.' We have also previously looked at his landmark judgment in Santosh Bariyar in
some detail. Justice Sathasivam's judgment in Mulla seems to be informed by a similar spirit.
A few extracts from the judgment follow:

38. The following propositions emerge from Bachan Singh case

(i) of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the `offender' also require to be
taken into consideration along with the circumstances of the `crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death
sentence must be imposed only when life imprisonment appears to be an altogether
inadequate punishment having regard to the relevant circumstances of the crime, and
provided, and only provided, the option to impose sentence of imprisonment for life cannot
be conscientiously exercised having regard to the nature and circumstances of the crime and
all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be accorded full weightage and a just balance
has to be struck between the aggravating and the mitigating circumstances before the option
is exercised.

39. In order to apply these guidelines inter alia the following questions may be asked and
answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death
sentence even after according maximum weightage to the mitigating circumstances which
speak in favour of the offender?

43. This Court in Bachhan Singh's case (supra) has held that:
"A real and abiding concern for the dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed."

44. Therefore, it is open for the court to grant a death penalty in an extremely narrow set of
cases, which is signified by the phrase `rarest of the rare'. This rarest of the rare test relates to
"special reasons" under Section 354(3). Importantly, as the Court held, this route is open to
the Court only when there is no other punishment which may be alternatively given.
This results in the death penalty being an exception in sentencing, especially in the case
where some other punishment can suffice. It was in this context that the Court had noted:

"The expression "special reasons" in the context of this provision, obviously means
"exceptional reasons" founded on the exceptionally grave circumstances of the
particular case relating to the crime as well as the criminal"
54. Another factor which unfortunately has been left out in much judicial decision-making in
sentencing is the socio-economic factors leading to crime. We at no stage suggest that
economic depravity justify moral depravity, but we certainly recognize that in the real world,
such factors may lead a person to crime. The 48th report of the Law Commission also
reflected this concern. Therefore, we believe, socio-economic factors might not dilute guilt,
but they may amount to mitigating circumstances. Socio-economic factors lead us to another
related mitigating factor, i.e. the ability of the guilty to reform. It may not be misplaced to
note that a criminal who commits crimes due to his economic backwardness is most likely to
reform. This court on many previous occasions has held that this ability to reform amount to
a mitigating factor in cases of death penalty.
Conclusion
In India the present position regarding death sentence is quite a balanced one. But the wide
judicial discretion given to the court has resulted into enormously varying judgment, which
does not portray a good picture of the justice delivery system. What is needed to be done is
that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly
complied with, so that the person convicted for offence of similar nature are awarded
punishment of identical degree.
Bibliography

 Books Referred
 Administration of Criminal Justice by Dr. N.K.Chakrabarti
 A Theory of Justice by John Rawls

 Websites Referred

 www.LegalServiceIndia.com

 www.Findarticles.com

 www.Lawctopus.com