Constitutionality of Capital Punishment and the Legal and Ethical

Issues: A Jurisprudential Analysis

Project Submitted on Jurisprudence-I

Submitted to:
Mr. Mohammad Atif Khan
Assistant Professor of Law
Faculty of Jurisprudence

Submitted By:

Harsh Mawar
Roll No. 61, Semester V, Section A
B.A. LL.B. (Hons.)

Submitted on: September 3, 2019

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Atal Nagar, Chhattisgarh (492002)
 Acknowledgements

I, Harsh Mawar, would like to take up this opportunity to thank all those who have stood by
me throughout the duration of this project and helped me in completing it.

Foremost my teacher and mentor Mr. Mohammad Atif Khan. I thank him for his faith in me to
provide me with such a topic of research. His constant guidance at every step and keen attention
to detail has been elementary in the completion of this project.

The college administration and staff had no less a part in this job. The value of their support
cannot be expressed in mere words.

Finally, I would like to thank God for his benevolence and grace in enabling me to finish this
task. I express my heartfelt gratitude to everyone involved,

Thank You,

Harsh Mawar

Semester – V (A), Batch XVII,

Roll No. – 61

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 Contents
Acknowledgements ..................................................................................................................ii

Introduction .............................................................................................................................. 4

Research Methodology ............................................................................................................ 6

Objectives of the Study ........................................................................................................... 6
Review of Literature ............................................................................................................... 6
Nature & Methodology of the Study ...................................................................................... 7
Hypothesis .............................................................................................................................. 7
Sources of data ....................................................................................................................... 7
Research Questions ................................................................................................................ 8
Chapterization........................................................................................................................ 8
Mode of Citation .................................................................................................................... 8
Scope & Limitations of the Study ........................................................................................... 8

History of Capital Punishment……………………………………………………………...9

Constitutionality of Death Penalty………………………………………………………….11

The Legal and Ethical Aspect……………………………………………………………....13

The International Scenario…………………………………………………………………15

Conclusions………………………………………………………………………………..…17

Suggestions.............................................................................................................................. 17

Bibliography ........................................................................................................................... 18

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 CHAPTER I: INTRODUCTION

“Death Penalty is a symptom of a culture of violence, not a solution to it.”

-Salil Shetty, Secretary General of Amnesty International

There has been a long quest of human beings to curb and control deviance and promote
conformity to normative behaviour in human culture since times immemorial. Various ways and
means have been attempted in this direction. The criminologists, jurists, sociologists and legal
professionals have dealt with various aspects of the crime and the penal systems. Death penalty
is one of the most debated1, ancient forms of punishment in almost every society. The Merriam
Webster dictionary defines Capital Punishment as the practice of killing people as punishment
for serious crimes. It can only be used by a state, so when non-state organisations speak of
having 'executed' a person they have actually committed a murder.2
“Death penalty is irrevocable; it cannot be recalled. It extinguishes the flame of life forever
and is plainly destructive of the right to life, the most precious right of all, a right without
which enjoyment of no other rights is possible.”3
Debates surrounding the death penalty centre on religious, ethical, political, legal and utilitarian
issues. The phrase 'capital punishment' comes from the Latin word for the head. A 'corporal'
punishment, such as flogging, takes its name from the Latin word for the body. Capital
punishment is used in many countries around the world. According to Amnesty International as
at May 2012, 141 countries have abolished the death penalty either in law on in practice.4
India is one of the 78 retentionist countries which have retained death penalty on the ground that
it will be awarded only in the ‘rarest of rare cases’ and for ‘special reasons’. Though what
constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the
legislature or by the Supreme Court.
At its very core, the argument against death penalty comes down to the manner in which we
understand crime and those who commit crimes. Do we view crime purely as actions of
“inherently bad” people, i.e. attribute responsibility exclusively to the individual (and nothing
else)?

1
Should capital punishment be abolished? The Times of India, June 27, 2004.
2
BBC- Introduction to Ethics at http://www.bbc.co.uk/ethics/capitalpunishment/intro.shtml
3
Justice PN Bhagwati in Bacchan Singh v. State of Punjab, 1982 AIR 1325
4
Death Sentences and Execution, Report by Amnesty International
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Socialisation as a factor
It is impossible to view crime as something that only “inherently bad” people do and the view
that the task of criminal law is to take away “inherently bad” people from our midst is untenable.
The cliché that we are all products of our circumstances has much to offer here. This is not to
suggest the absolute lack of individual agency in the things we do but rather to argue that the
reasons why we do the things we do is influenced by a lot more than just individual will. In that
context, a four-year-old being raped and murdered, or raping and mercilessly killing members of
a caste or religious group because of visceral hatred are all events that challenge our humanity.
The point is that there is a process of socialisation that contributes to an individual’s thinking
that he can rape a woman, insert a rod into her and leave her on the street to die or that he can
have such intense hatred for people of other communities that they should be stripped, paraded,
raped and murdered.5

5
Should we Do away with Capital Punishment?, Anup Surendranath, The Hindu, May 11, 2017
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 Research Methodology

Objectives of the Study

The objectives of this project are:

• To study the concept of death penalty and its purpose.
• To check the constitutional validityof death penalty.
• To study the case by case development on jurisprudence of Capital Punishment.

To study the legal and ethical aspect of death penalty with focus on various theories of purpose
of criminal law

Review of Literature

• Gopal Krishna Gandhi; Abolishing the Death Penalty: Why India Should Say No to
Capital Punishment; Aleph Book Company

o In Abolishing the Death Penalty: Why India Should Say No to Capital

Punishment, Gopalkrishna Gandhi asks fundamental questions about the ultimate
legal punishment awarded to those accused of major crimes. Is taking another life
a just punishment or an act as inhuman as the crime that triggered it? Does
having capital punishment in the law books deter crime? His conclusions are
unequivocal: Cruel in its operation, ineffectual as deterrence, unequal in its
application in an uneven society, liable like any punishment to be in error but
incorrigibly so, these grievous flaws that are intrinsic to the death penalty are
compounded by yet another—it leaves the need for retribution (cited as its
primary ‘good’) unrequited and simply makes society more bloodthirsty.

• Phil Porter, "The Economics of Capital Punishment"

o In this online essay, Phil Porter argues that the death penalty is an inefficient
method of deterring crime. He also notes that the death penalty is fallible (a
substantial number of innocent people have been convicted), and has historically
been applied in a discriminatory manner.

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 • Law Commission Report, No. 262, The Death Penalty, Law Commission of India
o In recognition of the fact that the death penalty is an issue of a very sensitive
nature, the Commission decided to undertake an extensive study on the issue. The
report has closely analysed the constitutionality and in length it has discussed
various other aspects. The committee also have forwarded few recommendations.

Nature & Methodology of the Study

The nature of the study in this project is doctrinal and is primarily descriptive and analytical.
This project is largely based on primary sources of data such as cases and reports of committees,
however secondary & electronic sources of data have been referred to a great extent. Books,
case laws, journals & other reference as guided by faculty of Jurisprudence are primarily used
for the completion of this project.

Hypothesis

“An eye for an eye, will make the whole world blind”. Life is precious. Any erroneous decision
by the judiciary may result in irreversible loss. The death penalty breaches two essential human
rights: the right to life and the right to live free from torture. Both rights are protected under the
Universal Declaration of Human Rights, adopted by the UN in 1948

Sources of data

This project is work in descriptive and analytical in approach, which I have followed thereby
putting heavy reliance on: (i) Primary sources: Conventions, Case laws etc. and (ii)Secondary
sources: websites and other web sources. The primary sources will look in to International case
laws, Governmental websites etc. The Secondary sources will look into blogs as well as
websites, newspaper reports etc.

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Research Questions

• How Death penalty has been modified in different courses of time?

• What is the stand of constitution in the matter of Capital punishment ?

• Is Capital punishment legally or ethically right ?

Chapterization

This project has been divided into 5 chapters. Chapter 1 comprises of Introduction and Research
Methodology. Chapter 2 gives a brief development of capital punishment. Chapter 3 includes
the constitutional validity of Death sentence and also evaluates case by case development of
death penalty jurisprudence. Chapter 4 details the legal and ethical aspect of capital punishment.
A brief overview of various theories of purpose of criminal law has been given. Chapter 5
discusses the International scenarion with respect to Capital Punishment. At last Chapter 6
concludes this project along with suggestion and references.

Mode of Citation

Sources and authors have been cited according to Bluebook 19th edition mode of citation.

Scope & Limitations of the Study

A lot of ink has been spilled with regard to a review or criticism regarding Capital Punishment.
Capital Punishment has been a bone of contention for a very long time. Various articles and
reports have been published on various aspects of capital punishment. This research paper aims
at compiling and analysing death penalty from all the important aspect.Due to paucity in time
and resources the author has dealt in brief the concept of capital punishment and the
development of this form of punishment. With respect to the constitutionality and jurisprudential
analysis detail research has been done.

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 Chapter II: History of Capital Punishment

The death penalty was prescribed for various crimes in Babylon at least 3700 years ago. Some
of the ancient society imposed it only for the most heinous crimes and some imposed it for
minor offences. For example, under Rome’s law in the 5th century BC, death was the penalty for
publishing ‘insulting songs’ and disturbing the peace of the city at night.6 Under Greece’s
Draconian Legal Code in the 7th century B.C., death was the punishment for every crime.
Beginning in ancient times, the executions were frequently carried out in public. Public
executions provided benefits for everyone. For the surviving victims of the condemned
criminals, the execution provided the grim satisfaction of witnessing the final punishment of
those who had wronged them. For the authorities, the executions served as graphic
demonstrations of their determination to protect the public safety. Public executions even helped
the authorities to do their jobs serving as grisly object lessons for potential wrongdoers.

The extent or the nature of the punishment depended much on the social standing of the criminal
as on the nature of the crime. The commoners were executed much more often than nobles.
Minorities and foreigners were treated more harshly than members of the dominant group. The
methods of execution were also varied. The common modes of inflicting death sentence on the
offender were drowning, burning, stoning, beheading etc. At present the common modes of
execution of death are asphyxiation, shooting and hanging. The method of execution by
electrocution was first used at Auburn State Prison in New York in 1890 and is now extensively
used as modes of execution extensively throughout USA. The method of hanging the prisoner
till death is commonly used mode in most of the countries. In India public hanging is held to be
unconstitutional.7

• Indian Scenario

Constituent Assembly Debate

Between 1947 and 1949 various questions around the Judge centric nature of the death penalty,
arbitrariness in imposition, its discriminatory impact on people living in poverty and

6
Death Penalty: The Case of Life v. Death, Leonard A Stevens (McCan & Geoghegan, 1978)
7
Lachma Devi v. State of Rajasthan (1986) Cri LJ 364
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the possibility of error.8 An early attempt at abolition of the deathpenalty took place in pre-
independent India, when Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the
death penalty for IPC offences in 1931. However, this was defeated.9
Dr. Ambedkar was personally in favour of abolition. However, he suggested that the issue of the
desirability of the death penalty be left to the Parliament to legislate on. This suggestion was
eventually followed.
Legislative Backdrop
At independence, India retained several laws put in place by the British colonial government,
which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian Penal
Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be imposed under the law,
including death. Capital Punishment as a form of punishment in various provisions of Indian
Penal code, Arms Act, Narcotic Drugs and Psychotropic Substances Act etc.

Chapter III: Constitutionality of Capital Punishment

Constitution is regarded as the supreme law of the land. Part III of the Indian Constitution
consists of Fundamental Rights which by various judicial pronouncement is now considered as
the ‘Basic Structure of the Indian Constitution’.
Article 21 of the Indian Constitution titled ‘Protection of life and personal liberty’ says:
“No person shall be deprived of his life or personal liberty except as according to procedure
established by law”.
This article of the Constitution enshrines the Right to Life guaranteed to every individual in
India. The constitutional validity of capital punishment has been called into question several
times in the India judiciary and this section shall try to examine those several occasions.

Justice A.K Ganguly has termed the award of Death Penalty as ‘barbaric, anti-life, undemocratic
and irresponsible’ He cautioned that a judge before giving death penalty, a judge must be
extremely careful and weigh “mitigating and aggravating circumstances”10
Article 21 permits the state to take away life of a person only through the procedures established

8
Constituent Assembly Debates on 3 June, 1949, Part II available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm
9
Law Commission of India, 35th Report, 1967, at para 12, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
10
Death penalty "barbaric, anti-life": SC judge, Times of India, Nov 15, 2011
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by law. Through judicial pronouncements, it has been accepted that the term “procedure
established by law” envisages just, fair and reasonable procedure.
The question of constitutionality of death penalty has been raised before the Honourable
Supreme Court in many cases. In the case of Jagmohan Singh v. State of Uttar Pradesh 11, the
constitutional validity of death penalty was upheld by the Supreme Court by a unanimous
decision of five judge bench.
In the case of Rajendra Prasad v. State of Uttar Pradesh12, Justice Krishna Iyer said that death
penalty directly affects the life of the people guaranteed under Art. 21. To impose death penalty,
two requirements must be fulfilled:
1. Special Reasons must be recorded for imposing death penalty.
2. Must be imposed only in Extraordinary circumstances.

The question was once again considered in the case of Bachan Singh v. State of Punjab by a
bench of five judges. Judges considered the social, ethical and even spiritual aspect of death
penalty while upholding its constitutional validity. In Bachan Singh, the Court adopted the
‘rarest of rare’ guideline for the imposition of the death penalty, saying that reasons to impose or
not impose the death penalty must include the circumstances of the crime and the
criminal.However, Justice Bhagwati recorded a dissenting note wherein he gave arguments
against death penalty and stated that since death penalty is irrevocable, miscarriage of justice is
irrevocable. He was guided by the principle that hundred guilty persons may escape but no
innocent person should be convicted.
However, chance of erroneous conviction in India is very low since there are various levels of
appeal. Apart from this the power of pardon, remission and commutation of sentence vested in
the Governor and the President acts as another safeguard against any erroneous judicial decision.

11
AIR 1973 SC 1947
12
AIR 1979 SC 1916
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In 1983, the Supreme Court was confronted with the mandatory sentence of death enacted in
Section 303 of the IPC in the case of Mithu v. State of Punjab13. The Court held that the
mandatory death sentence was unconstitutional, stating: A standardized mandatory sentence, and
that
+too in the form of a sentence of death, fails to take into account the facts and circumstances of
each particular case.
In the case of Sher Singh v. State of Punjab, Chief Justice Chandrachud expressing the view of
the three judges held that death sentence is constitutionally valid and permissible within the
rules of constraint laid in Bacchan Singh case.
Public hanging was held to be unconstitutional in the case of Lachma Devi v. State of
Rajasthan14

Principle of Rarest of Rare Case

Capital punishment is awarded only in the rarest of the rare case. This determination is very
difficult. There was a lack of uniformity as to what will constitute the rarest of the rare case.
Finally in the case of Macchi Singh v. State of Punjab15 apex court laid down few principles
which are to be borne in mind while giving a decision:
• Is there anything uncommon about the crime that renders life imprisonment inadequate
and calls for a death sentence?
• Such circumstances are there that no alternative other than death penalty remains

13
(1983) 2 SCC 277
14
(1986) Cri LJ 364
15
AIR 1983 SC 957
.

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 Chapter IV: Legal and Ethical Issues

Death penalty – A jurisprudential analysis

1. Theories of punishment

With change in the social structure the society has witnessed various punishment theories and
the radical changes that they have undergone from the traditional to the modern level and the
crucial problems relating to them. In the words of Sir John Salmond -The ends of criminal
justice are four in number and with regard to the purposes served by them; punishment can be
divided as under: Deterrent theory Since the Code of Hammurabi in Babylone the ancient
history of Punishment before all things was deterrent, and the chief end of the law of crime is to
make the evil-doer an example and a warning to all that are like-minded with him. One of the
primitive methods of punishments believes that if severe punishments were inflicted on the
offender it would deter him from repeating that crime. The ancient history of Punishment before
all things was deterrent, and the chief end of the law of crime is to make the evil-doer an
example and a warning to all that are like-minded with him. One of the primitive methods of
punishments believes that if severe punishments were inflicted on the offender it would deter
him from repeating that crime.
• Retributive theory

The most stringent and harsh of all theories retributive theory believes to end the crime in itself.
This theory underlines the idea of vengeance and revenge rather than that of social welfare and
security. Punishment of the offender provides some kind of solace to the victim or to the family
members of the victim of the crime, who has suffered out of the action of the offender and
prevents reprisals from them to the offender or his family.
• Preventive theory

Unlike the former theories, this theory aims to prevent the crime rather then avenging it.
Looking at punishments from a more humane perspective it rests on the fact that the need of a
punishment for a crime arises out of mere social needs that is, while sending the criminals to the
prisons to prevent the offender from doing any other crime and thus protecting the society from
any anti-social elements.
• Reformative theories

The most recent and the most humane theory, of all theories is based on the principle of
.

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reforming the legal offenders through individual treatment. Not looking to criminals as inhuman
this theory puts forward the changing nature of the modern society where it presently looks into
the fact that all other theories have failed to put forward any such stable theory, which would
prevent the occurrence of further crimes. Though it may be true that there has been a greater
onset of crimes today than it was earlier, but it may also be argued that many of the criminals are
also getting reformed and leading a law-abiding life all together. Reformative techniques also
possess some elements of deterrent techniques.
Arguments for death penalty Incapacitation of the criminal Capital punishment permanently
removes the worst criminals from society and should prove much cheaper and safer for the rest
of us than long term or permanent incarceration. It is self evident that dead criminals cannot
commit any further crimes, either within prison or after escaping or being released from it.16
Cost
Money is not an inexhaustible commodity and the state may very well better spend our (limited)
resources on the old, the young and the sick rather than the long term imprisonment of
murderers, rapists, etc.17
Retribution
Execution is a very real punishment rather than some form of reformatory punishment, the
criminal is made to suffer in proportion to the offence. Although whether there is a place in a
modern society for the old fashioned principal of ‘lex talens’ (an eye for an eye), is a matter of
personal opinion. Retribution is seen by many as an acceptable reason for the death penalty.
Deterrence
It is hard to prove one way or the other because in most retentionist countries the number of
people actually executed per year (as compared to those sentenced to death) is usually a very
small proportion. It would, however, seem that in those countries (e.g. Singapore) which almost
always carry out death sentences, there is generally far less incidence of crime, because of fear
psychosis in the society. This tends to indicate that the death penalty is a deterrent, but only
where execution is an absolute certainty. Statistics were kept for the 5 years that capital
punishment was suspended in Britain (1965-1969) and these showed a 125% rise in murders that
would have attracted a death sentence. Whilst statistically all this is true, it does not tell one how
society has changed over nearly 40 years. It may well be that the murder rate would be the same
today if we had retained and continued to use the death penalty. It is impossible to say that only
this one factor affects the murder rate. In 1995, Singapore hanged an unusually large number of
16
David Anderson, “The Death Penalty – A Defence”, http://www.yesdeathpenalty.com/argument_1.htm
17
Phil Porter, The Economics of Capital Punishment, Clarendon Press, 1998
.

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7 murderers with 4 in 1996, 3 in 1997 and only one in 1998 rising to 6 in 1999 (3 for the same
murder)18 Singapore takes an equally hard line on all other forms of crime with stiff on the spot
fines for trivial offences such as dropping litter and chewing gum in the street, caning for males
between 18 and 50 for a wide variety of offences, and rigorous imprisonment for all serious
crimes.

2. Ethical Issues
The world’s religious communities are divided on the death penalty. Despite a seemingly
unambiguous commitment to non-violence (or “Ahimsa”) in both Hinduism and Buddhism,
scholars within those traditions continue to debate the permissibility of lethal punishment. The
Old Testament enjoins us to take an “eye for an eye” – the principle of lex talionis – while the
New Testament exhorts us to “turn the other cheek”. And while Islam is generally regarded as
compatible with the death penalty, the Quran’s emphasis on forgiveness suggests that Muslims
should sometimes respond to evil with mercy, not retaliation.
While many European countries urge an ethic of rehabilitation in their criminal justice systems,
many jurisdictions in the United States stand firmly in favour of capital punishment for serious
crimes. Even a federal jury in Massachusetts, a liberal bastion, recently doled out the death
penalty to the sole surviving perpetrator of the Boston marathon bombing. And while the United
Kingdom abandoned the death penalty in 1964 – the year of the last executions – nearly half of
the British public favours a reintroduction of it (though that figure has been dropping steadily).
We will not make progress in the public debate about the death penalty unless we realise that it
is only one element in a much bigger controversy: about the point of punishment itself. As The
Conversation invites us to rethink the death penalty over the next few weeks, we must not
conduct this discussion in a vacuum. Considering the three main families in the philosophy of
punishment can help us organise our conversation.

18
Death Penalty Information Centre, “Facts about Deterrence and the Death Penalty”,
http://web.amnesty.org/pages/deathpenalty (visited on 28/12/06)
.

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 Chapter V: The International Scenario

UN Secretary-General Ban Ki-moon’s remark reflects the global trend away from capital
punishment. More and more Member States from all regions acknowledge that the death penalty
undermines human dignity, and that its abolition, or at least a moratorium on its use, contributes
to the enhancement and progressive development of human rights.
More than 160 Members States of the United Nations with a variety of legal systems, traditions,
cultures and religious backgrounds, have either abolished the death penalty or do not practice it.
Yet, prisoners in a number of countries continue to face execution.

The Office of the High Commissioner for Human Rights, with its mandate to promote and
protect all human rights, advocates for the universal abolition of the death penalty. The UN
Human Rights Office argues this position for other reasons as well, including the fundamental
nature of the right to life; the unacceptable risk of executing innocent people; and the absence of
proof that the death penalty serves as a deterrent to crime.
In line with General Assembly resolutions calling for a phasing out of capital punishment , the
UN Human Rights Office supports Member States, civil society and other stakeholders
campaigning for a moratorium on the death penalty and ultimately its abolition worldwide.
Internationally, countries are classified on their death penalty status, based on the following
categories:19
1. Abolitionist for all crimes

2. Abolitionist for ordinary crimes20

3. Abolitionist de facto21

4. Retentionist

19
Report of the Secretary-General, E/2015/49 [advance, unedited version] at page 4; Annex II, Amnesty
International, Death Sentences and Executions in 2014, ACT 50/001/2015.
20
Capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing
the death penalty, Report of the SecretaryGeneral, E/2015/49 [advance, unedited version] at page 4
21
Annex II, Amnesty International, Death Sentences and Executions in 2014, ACT 50/001/2015.
.

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The international framework
From the early 1960s, although a majority of countries still used the death penalty, the draftees
of the International Covenant on Civil and Political Rights (ICCPR) had already begun moves
for its abolition in international law.
Although Article 6 of the ICCPR permits the use of the death penalty in limited circumstances,
it also provides that “nothing in this article shall be invoked to delay or to prevent the abolition
of capital punishment by any State Party to the present Covenant.”
Safeguards guaranteeing protection of the rights of those facing the death penalty
In 1984, the UN Economic and Social Council adopted Safeguards guaranteeing protection of
the rights of those facing the death penalty.
Second Optional Protocol to ICCPR, aiming at the abolition of the death penalty
In 1989, 33 years after the adoption of the Covenant itself, the UN General Assembly adopted
the Second Optional Protocol to the ICCPRthat gave abolition decisive new momentum.
Member States which became parties to the Protocol agreed not to execute anyone within their
jurisdictions.
UN General Assembly resolutions
In a series of four resolutions adopted in 2007, 2008, 2010, 2012 and 2013, the General
Assembly urged States to respect international standards that protect the rights of those facing
the death penalty, to progressively restrict its use and reduce the number of offence which are
punishable by death.

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 CONCLUSION

Sanction is an essential ingredient of law. Punishment is a social custom and institutions are
established to award punishment, after following criminal justice process. Governments prohibit
taking life, liberty or property of others and specify the punishments, threaten those who break
the law. Death penalty in India is not completely abolished but given in rarest of the rare cases
which in my opinion must be retained for incorrigibles and hardened criminals but its use
should be limited to rarest of rare cases so as to reduce the chances of arbitrariness in judicial
process and failure of Justice
As a society we find ourselves in a strange bind — on the one hand seeking more violent and
harsher punishments for certain crimes and at the same time struggling with rampant impunity
for certain others. Justice is not served in either situation. To tweak Martin Luther King’s words,
the arc of the moral universe must bend towards a more empathetic version of justice rather than
a retributive. The state cannot seek to take life because it has an equal commitment to everyone
within its fold. When a crime is committed, the perpetrator is not the only one breaking the
social contract. Obviously the state has failed to protect the victim and society but at the same
time it has also failed the perpetrator in equal measure albeit in a different way. At the risk of
repetition, it is not to suggest that the perpetrator has no individual responsibility but that we
must also recognise the failure of society and state one

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 SUGGESTIONS

a) It is recommended that measures like provisions for police reforms, witness protection
scheme and victim compensation scheme should be taken up expeditiously by the
government.

b) Although there is no valid penological justification for treating terrorism differently from
other crimes, concern is often raised that abolition of death penalty for terrorism related
offences and waging war, will affect national security. However, given the concerns raised
by the law makers, there is no reason to wait any longer to take the first step towards
abolition of the death penalty for all offences other than terrorism related offences. It is
recommends that the death penalty be abolished for all crimes other than terrorism related
offences and waging war.

c) A more rational, principled and informed debate on the abolition of the death penalty for all
crimes should happen.

d) Further, it is sincerely hoped that the movement towards absolute abolition will be swift and
irreversible.

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 Bibliography

Books
1. Usha Ramnathan, The death penalty in India: Down a slippery slope (Penguin Book
Ltd.,2010)
2. Mario Marazziti, World religions and the death penalty, (Oxford University Press, 1987)
3. Paul Bhatti, Towards a moratorium on the death penalty(Boston: Little Brown & Co.
1951).
4. Ganendragadkar P.B, Law, Liberty and Social Justice, (Universal Publishing House,
1996)

Journals and Articles

1. Moving Away from Death Penalty: Arguments, Trends and Perspectives, United Nation
Human Rights Office of the High Commissioner
2. Report No. 262 on Death Penalty (2015), Law Commission of India

Internet Sources
1. www.academia.org
2. www.heinonline.org
3. www.jstor.com

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