CHAPTER 1

SYNOPSIS

1.1 INTRODUCTION

“The death penalty is not about whether people deserve to die for the crimes they commit. The
real question of capital punishment in this country is, Do we deserve to kill?”
― Bryan Stevenson, Just Mercy: A Story of Justice and Redemption

Everyday most of the people around the globe are executed and sentenced to death by the
particular government in power in the form of punishment for a series of crimes. The series of
crimes may include Murder, Homicide, rape, some crimes are also drug related offences and in
some other countries it may also include crimes which may involve terrorism.

Most of the countries around the world execute people who are under the age of 18 years or
those people who are minor, who not have not attained the age on major, if they are found to
commit a heinous crime. It is also found that few countries issues capital punishment to those
people who are mentally disable , suffering from mental illness. And several other people are
offered death penalty due to unfair trials.

All this punishment are in clear violation of international laws and standards, most f the people
who are found to be guilty of a crime spend most of the years on death row not knowing when
their time is near or whether they will see their families or not.

The capital punishment or the death penalty clearly breaches the human rights in particular the
right to life and the right to live peacefully from the cruel tortures and inhuman treatment in the
form of punishments. Both the rights are protected under the Universal Declaration of Human
Rights adopted by the 1948.

From the date of establishment of the international community, it has introduced several policies
for the ban of the use death penalty, the adopted protocols that includes protocol to the
international covenant on Civil and political rights at the abolition of the death Penalty ,
concerning the abolition of death penalty also new policies like the European Convention on
Human Rights for the abolition of the death penalty have been introduced, and The Policy to the
American Convention on Human Rights to Abolish the Death Penalty.

The international law has defines that the use of the capital punishment must be limited to a
certain extent, that is it should be use only for the most heinous crimes that includes intentional
killing and also it argue upon the fact that issuing a death penalty to a person is never an answer.

The awarding of capital punishment to the under aged people or the people who have not
attained the age of 18 years is prohibited under the International Human Rights law, yet it is
found that most of the countries breach this law and executes juvenile defendants. Such
execution have increased in the coming year and is spreading to most of the countries.
However, their significance goes beyond their number and calls into question the commitment of
the executing states to respect international law.

Since 1990 it has been documented that 145 executions of child offenders in 10 countries: China,
the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, South Sudan, Sudan,
the USA and Yemen.

Several of these countries have changed their laws to exclude the practice. Iran has executed
more than twice as many child offenders as the other nine countries combined. At the time of
writing Iran has executed at least 97 child offenders since 1990.

Most of the great minds view death penalty as a symptom of a culture of violence, not a solution
to it, awarding death penalty won’t do any justice but increase more people to do it a proper
education is required among the youths .

Execution is the ultimate, irrevocable punishment: it is viewed as mistake are irrecoverable and
cannot be reversed back, the risk of executing an innocent person can never be eliminated. Since
1973, for example, more than 160 prisoners sent to death row in the USA have later been
released from death row on grounds of innocence. Others have been executed despite serious
doubts about their guilt.

Death penalty cannot be viewed as a punishment also it cannot be used as a tool of weapon. Most
of the countries view death penalty as way to avoid crime and avoid people from committing
crime .and there has not been a strong evidence which proves that crimes has not been reduced in
spite of introduction capital punishment.

It is often used within skewed justice systems. It has been observed in many cases that people
around the globe have been convicted in grossly unfair trials, on the basis of torture-tainted
evidence and with inadequate legal representation . in some countries death sentences are
awarded as the mandatory punishment for certain offences, meaning that judge are not able to
consider the situations of the event of crime or of the defendant before sentencing.

In most of the countries it is found that the death penalty awarded is discriminatory. The weight
of the death penalty is disproportionally carried by those with less advantaged socio-economic
backgrounds or belonging to a racial, ethnic or religious minority. Most of the people around th
globe are unfairly tried by the court due to lack of financial ability to hire a good lawyer and so
the decision is given against them . This includes having limited access to legal representation,
for example, or being at greater disadvantage in their experience of the criminal justice system.

In few countries the capital punishment is used as a political tool to satisfy the upper class
society. The authorities in some countries, for example Iran and Sudan, use the death penalty to
punish political opponents.

International law has been invoked by human rights attorneys, foreign governments, the U.S.
executive branch, and domestic and international tribunals considering the legal claims of death
row inmates. The death penalty act as a ground for litigation that draws upon international
 norms, and there is a rich jurisprudence developing in foreign courts, international tribunals, and
UN treaty bodies. One potential international challenge to the administration of the death penalty
involves the extended incarceration of individuals on death row awaiting execution. This issue is
discussed in the paper presented by Philip Sapsfo [1]

A lot of moments during the 19th century arose for the abolition of the punishment of death
penalty since it was used without and proper procedure and without any authority. There was no
proper provision established for awarding capital punishment. A lot of American intellects were
influenced by Beccaria, which was the first ever attempt for the reform of death penalty in U.S.
this occurred when Thomas Jefferson introduced a bill to revise Virginia’s death penalty laws.
The bill contained that the capital punishment should be used only for heinous crimes which
involves crimes of murder and treason but unfortunately it was defeated by only vote.[2]1

OBJECTIVES OF THE STUDY

 Study the history behind the death penalty.

 To study the procedure of Death Penalty and on what basis it is granted.
 To study the contradictions of human rights along with death penalty.
 To study and compare the capital punishment of India with different countries.
 To study the advantages and disadvantages of capital punishment.
 To study the reason for the failure of reduction of crimes in spite of Death penalty.

SCOPE OF THE STUDY

The scope the study with special reference to laws and amendments made into the criminal
justice system is chosen for research. The study is made to protect the concept of Human Rights
which has been introduced in the Indian Constitution. The study is made to analyse how the
capital punishment is in contravention with the provisions of Human Rights.

SIGNIFICANCEOF THE STUDY

The researcher intends to highlights and address the issue of death penalty or capital punishment
and its clash against the human rights.
The study will also provide for the solution to curb the practice of capital punishment the
researcher has analysed the procedure and provision of death penalty and how it contradicts the
provision of human rights.
The study will provide the reader an easy comparative study of death penalty in India with
different countries.
1
2.https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/the-abolitionist-
movement
HYPOTHESIS OF THE STUDY

Death penalty being primitive in nature, and against human rights, and cannot be considered as
appropriate punishment in today’s times.

METHODOLOGY

The present study is a doctrinal research means a research which has been carried out on legal
provisions by analysing the existing statutory provisions and case studies by applying the
reasoning. The study is doctrinal in nature, the doctrinal research is carried out by legal laws and
concept by way of analysing the existing statutory provisions by applying the reasoning power.
The doctrinal research solely depends upon the secondary source of data and not on the field
work

LIMITATION OF THE STUDY

To study the provisions of death penalty, case laws under the criminal justice system.
My researcher is limited to death penalty and its provisions in india and also its comparative tudy
among different countries i.e. U.S.A. , China,

SCHEME OF THE STUDY

Chapter 1
This chapter deals with a brief introduction of death penalty and meaning of death penalty.
It also deals with the scope of the study, the significance of the study, the scope of the study , the
hypothesis of the study, the objective of the study, the limitations of the study and the
methodology of the study.

Chapter 2

This chapter deals with the origin of death penalty and its evolution with time. It also deals with
the practice of death penalty during the ancient time in India and how the practice of capital
punishment has changed with time. The chapter also contains the practice of death penalty
during the British era.

Chapter 3
Chapter 3 mostly deals with the provisions of death penalty, it also covers the procedural
functions of death penalty , by focusing majorly on the framework of capital punishment in India
and recent amendments made to its framework.
Chapter 4

Chapter 4 mostly consists of death penalty and its procedural framework under the Indian
judicial system , this chapter covers the death penalty under the Indian system. The chapter also
consist of comparative study made by comparing the death penalty in India with various other
countries. The comparative study reveals the types of death penalty and is framework practiced
among different countries!

Chapter 5

Chapter 5 deals with the international organisations that have been set up for the protection of
Human Rights. It deals with how the provisions of death penalty have been clashing with the
provisions of human rights

Chapter 6

This chapter deal with the observation and conclusion that the researcher has come upon.
That is the main reasons why death penalty should be abolished that it harms the provisions of
human rights

LITERATURE REVIEW

1. https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-
the-death-penalty
 CHAPER 2

2.1 HISTORY OF DEATH PENALTY

The principal built up capital punishment laws date as far back as the Eighteenth Century B.C. in
the Code of King Hammurabi of Babylon, which arranged capital punishment for 25 unique
wrongdoings. Capital punishment was likewise some portion of the Fourteenth Century B.C's.
Hittite Code; in the Seventh Century B.C's. Draconian Code of Athens, which made passing the
main discipline for all violations; and in the Fifth Century B.C's. Roman Law of the Twelve
Tablets. Capital punishments were done by such methods as torturous killing, suffocating,
pounding the life out of, consuming alive, and impalement.

In the Tenth Century A.D., hanging turned into the typical technique for execution in Britain. In
the next century, William the Conqueror would not permit people to be hanged or in any case
executed for any wrongdoing, with the exception of in the midst of war. This pattern would not
last, for in the Sixteenth Century, under the rule of Henry VIII, upwards of 72,000 individuals
are assessed to have been executed. Some regular strategies for execution around then were
bubbling, consuming at the stake, hanging, decapitating, and drawing and quartering. Executions
were done for such capital offenses as wedding a Jew, not admitting to a wrongdoing, and
injustice.

The quantity of capital violations in Britain kept on ascending all through the following two
centuries. By the 1700s, 222 violations were deserving of death in Britain, including taking,
chopping down a tree, and burglarizing a bunny warren. In light of the seriousness of capital
punishment, numerous juries would not convict respondents if the offense was not genuine. This
lead to changes of Britain's capital punishment. From 1823 to 1837, capital punishment was
killed for more than 100 of the 222 wrongdoings deserving of death. (Randa, 1997) [2]

[2] https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-history-of-the-
death-penalty
2.2EVOLUTION OF DEATH PENALTY IN INDIA
Capital punishment or the death penalty is the most noteworthy level of discipline that can be
granted to a person under any correctional law in power in any piece of the world. The death
penalty is the lawful strategy of the state in which it practices its capacity to take a person's life.
It has been in presence since the origin of the State itself. In the British time, there have been
innumerable cases of Indians being hanged after preliminary or even before it. The beginning of
Independence achieved another time in the legal arrangement of India. It was as an unmistakable
difference to the British Judicial framework in which the Indians barely had any entrance to
equity, or the hour of domains and realms before it when the leader of a specific state or realm
was its definitive power and the wellspring of all equity wherein their announcements verbatim,
were embraced as the rule that everyone must follow. The ruler, in this way had the ability to
sentence any man to death whoever may the individual in question be, even spontaneously.

After 1947, India turned into a popularity based state, and the arrangement of granting capital
punishments too changed radically. The Indian Penal Code as per the arrangements revered in
the Constitution of India given to granting of the death penalty for certain particular offenses.

Workmanship. 21 of the Constitution, which certifications to each resident the crucial right to
life, additionally explicitly expresses, "no individual will be denied of his life or individual
freedom with the exception of as indicated by methodology set up by law." This implies by no
means your entitlement to live will be detracted from you aside from by the due system set up by
law, that is the state can remove your life through the given procedure of law on the2 off chance
that it esteems fit. Not all offenses are deserving of death, actually, a large portion of the
organizations don't evoke the death penalty; rather, it is held for the most intolerable of
wrongdoings.

As indicated by the Indian Penal Code alongside different acts eleven offenses submitted inside
the region of India are deserving of death:

2
The sacred legitimacy of capital punishment has been tested ordinarily. It was first tested in
Jagmohan v. Province of Uttar Pradesh[3] in which the Hon'ble Supreme Court maintained its
legitimacy

expressing that the death penalty itself was not irrational fundamentally nor was its annulment in
the open intrigue and henceforth not violative of the Art. 19 of the Constitution. It has been
tested commonly since yet the choice has stayed same.

Before giving a decision on whether capital punishment ought to be canceled, scarcely any
things should be considered. Despite the fact that India has up to now, stood immovably behind
holding the death penalty, the legal executive spares it for the intolerable of wrongdoings and it
happens on incredibly uncommon events. On the off chance that we consider, the quantity of
individuals who were granted capital punishment and the quantity of individuals who were really
executed, the numbers justify itself with real evidence. In the most recent decade, there have
been just 3 executions, and all the three were of fear based oppressor cases. In Bacchan Singh v.
The province of Punjab [4], the Hon'ble Supreme Court made it sufficiently certain that capital
punishment must be granted in the 'rarest of uncommon' cases which shows the characteristic
expectation of the court to limit the act of granting the death penalty however much as could
reasonably be expected. This judgment turned into a benchmark for all the courts in India on
which they were to base their choices of giving death penalties in situations where the liable had
submitted a capital offense

3
[3] Jagmohan v. State of U.P. {1973 SCC [CRI] 169}

[4]Bachan Singh vs. State of Punjab (1980) 2 SCC 684

2.3 DEATH PENALTY IN INDIA DURING BRITISH RULE

In view of examination into subjective reactions to the death penalty in mid twentieth-century
Bńtain, this article looks at how letter journalists to the Home Office developed envisioned
networks corresponding to capital cases. It reveals a move in these reactions from making good,
nearby networks in the period 1930-45 , when most letter authors had an individual association
with the censured, to the production of the envisioned national network from the late 1940s
onwards, when most journalists according to prominent cases were not associated with the
denounced. These post-war letters uncover how implications of Britishness, especially according
to the significant image of British equity', were haggled comparable to capital[5]

The present legal arrangement of India was not an unexpected creation. It has been developed as
the aftereffect of moderate and progressive procedure and bears the engraving of the diverse time
of Indian history. The period which in any case, have had the best effect on the current
framework are those closest to the present occasions and it isn't astonishing that the period going
before and following the down of autonomy, all the more especially that one after the coming
into power of the constitution have been the best trim elements. Organization of equity is one of
the most basic elements of the state.

4
[5] the british journal of criminology vol.54 no.5 (September 2014) published by Oxford University Press
On the off chance that men were divine beings and heavenly attendants, no law courts would
maybe be fundamental however and, after its all said and done the cynics may allude to the fights
among divine beings, especially with regards to goddesses.

For what it's worth, we find that however man might be a little lower than the blessed
messengers, be has not yet shed off the beast. Not far underneath inside the man, there hides the
animal and the beast is adept to loosen up on events, To check and control that savage and to
forestall degeneration of society into a condition of like the devil, we need the standard of law.
We additionally need the standard of law for rebuffing all deviations and breaches from the set of
principles and standard of conduct which the network talking through its agents has
recommended as the rule that everyone must follow. Being human, questions will undoubtedly
emerge among us. For the settlement of those debates, we need rules as laws and discussions to
change the wrongs as courts. Laws and courts have constantly gone together. There is a nearby
nexus between them; neither one of the courts can exist without the laws or laws without the
courts[8].

2.4 DEATH PENALTY DURING MUGHAL ERA

Execution by elephant was a typical technique for the death penalty in South and Southeast Asia,
especially in India, where Asian elephants were utilized to pulverize, dissect or torment hostages
in open executions. The creatures were prepared and flexible, ready to murder unfortunate
casualties quickly or to torment them gradually over a drawn out period. Most regularly utilized
by eminence, the elephants were utilized to imply both the ruler's outright force and his capacity
to control wild creatures.

5
[8] 1 S.D. Sharma, Administration of Justice in Ancient India, New Delhi: Harman Publishing House, 1988, p.170.22
Seeing elephants executing hostages both frightened and pulled in light of a legitimate concern
for European explorers and was recorded in various contemporary diaries and records of life in
Asia. The training was in the end stifled by the European realms that colonized the area in the
eighteenth and nineteenth hundreds of years. While basically kept to Asia, the training was
periodically received by Western forces, for example, Ancient Rome and Carthage, especially to
manage mutinous warriors. [9]

During the Mughal period, "it was a typical method of execution in those days to have the guilty
party stomped all over by an elephant."[10] Captain Alexander Hamilton, writing in 1727,
depicted how the Mughal ruler Shah Jahan requested a culpable military administrator to be
conveyed "to the Elephant Garden, and there to be executed by an Elephant, which is figured to
be a dishonorable and horrible Death".[10]

The Mughal Emperor Humayun requested the devastating by elephant of an imam he

erroneously accepted to be disparaging of his rule. Some rulers likewise received this type of
execution for their own amusement. Another Mughal ruler, the sovereign Jahangir, is said to
have requested countless crooks to be squashed for his diversion.

The French voyager François Bernier, who saw such executions, recorded his disappointment at
the joy that the head got from this brutal punishment.[Nor was squashing the main technique
utilized by the Mughals' execution elephants; in the Mughal sultanate of Delhi, elephants were
prepared to cut detainees to pieces "with pointed sharp edges fitted to their tusks". The Muslim
explorer Ibn Battuta, visiting Delhi during the 1330s, has left the accompanying onlooker record
of this specific kind of execution by elephants

(lit. Review – executedtoday.com – mughal empire)

6
[9] Jack Weatherford-Genghis Khan, p.116

[10] ^Natesan, G.A. The Indian Review, p. 160

2.4 HISTORY OF DEATH PENALTY IN AMERICA

"The death penalty" is another articulation for "capital punishment," the legitimate execution of a
lawbreaker. The word capital originates from the Latin word for head. In old occasions, the death
penalty was frequently completed by executing. This strategy has never been utilized in
America. In any case, crooks have been executed by shooting, hanging, electric shock, poison
gas, and deadly infusion. Today, all states with capital punishment utilize deadly infusion. A few
states, be that as it may, permit one of these different techniques as a choice.

In the American states, legitimate executions occurred as ahead of schedule as 1630. As in

England, capital punishment was forced for some, wrongdoings, even minor ones, for example,
picking pockets or taking a portion of bread. During the 1800s in England, for instance, 270
violations were capital offenses, or wrongdoings deserving of death. A huge number of
individuals now and again went to open hangings. Step by step, in any case, England and
America decreased the quantity of capital offenses, until the primary spotlight was on first-
degree murder — murders demonstrating pondering, determination, and deliberation. They
likewise moved executions inside the dividers of detainment facilities to take out the scene of
open executions.

During the 1800s, numerous individuals in America and Europe started to restrict capital
punishment. Michigan canceled it in 1845 and Wisconsin entered the Union in 1848 without a
capital punishment in its resolutions. The development against capital punishment developed
more grounded after World War II, particularly in Europe, where many were exhausted of such a
great amount of murdering during the war. Individually all the Western European countries and
Canada got rid of the death penalty, until the United States was the last Western popular
government that despite everything executed lawbreakers.

(lit. Review – history of death penalty in America, published by constitutional rights foundation)
Seventeen American states, primarily bunched in the Midwest and Northeast, have restricted
executions. New York, which had restricted capital punishment 30 years prior, restored it in
1995. However, the New York Court of Appeals struck down the law in 2004, and the state
governing body has would not pass another capital punishment law. New Jersey (2007), New
Mexico (2009), Illinois (2011), and Connecticut (2012) as of late joined the positions of states
without the death penalty. Also, in 2011, the legislative head of Oregon reported a ban on capital
punishment in that state while he stayed in office.