CAPITAL PUNISHMENT IN INDIAWITH REFRENCE TO CASE LAWS

SUBJECT: CRIMINOLOGY

SUBMITTED TO – Mrs. VARA LAXMI MAM

SUBMITTED BY – DHANVANTH KOTA

SEMESTER- VIII, SEC-B

ROLL NO: 2015060

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISHAKHAPATNAM

 CERTIFICATE

This is to certify that Dhanvanth Kota, a student of Semester VII, Damodaram

Sanjivayya National Law University, has successfully completed the research on “CAPTIAL
PUNISHMENT IN INDIA WITH REFERENCE TO CASE ANALYSIS ,– under the guidance of
Prof: VARA LAXMI. During the year 2020-21.

Signature of the student

Signature of the Teacher

ACKNOWLEDGEMENT

I am grateful to our CRIMINOLOGY Prof: VARA LAXMI. For his valuable guidance,
significant suggestions and help for accomplishing this project regarding “CAPITAL
PUNISHMENT IN INDIA WITH REFERENCE TO CASE ANALYSIS”. I have tried my best to
collect information about the project in various possible ways to depict clear picture about the
given project topic.
CONTENTS

 INTRODUCTION
 POSITION IN USA
 POSITION IN UK
 POSITION IN INDIA
 LANDMARK JUDGMENTS WITH REFERENCES TO CAPITAL PUNISHMENT
 SUITATION WHERE THE APPLICATION OF DEATH SENTENCE THROUGH CASES
 CONCLUSION
 ABSTRACT

Death Penalty is a process where a crime so grievous has been committed that the state
condemns the act by sentencing the convicted to death. It is only applied in cases where the
crime is of such nature that it cannot be vitiated without a penalty of death. It has existed since
time immemorial, the first recorded instance being that of Hammurabi in the 18th Century B.C.

In the recent past, however, many western cultures have abolished this practice, considering it
grossly inconsistent with human rights requirements. The U.K. and France have both completely
abolished the system, after various succeeding abolitionist movements. The US, however, due to
a fragmented judiciary, has differing opinions on the issue, varying state-by-state. The Federal
US government, however, does use the death penalty, although only in extraordinary cases.

In India, the Bachan Singh case laid down the “extraordinary circumstances” which define
whether or not death sentence was required in the said case. The grievousness of the cause of
murder in itself is not a sufficient grounds to pass capital punishment. The writer has gone into
detail on the various technicalities and safeguards applied before awarding a death sentence.

HYPOTHESIS: - Death Penalty acts as a good deterrence in the present world but it should not
be inflicted as a regular course of punishment as it is an extreme measure it should only be give
in rare circumstance as there is one principle in criminal law which says that punishment should
be proportionate to the crime committed or act done.

RESEARCH QUESTION: - 1. What is status of death penalty in India?

2. What is different opinion presented by the courts over period of time?

RESEARCH METHODOLOGY: - The researcher will use Doctrinal method as the scope of
topic is narrow and is based on the set principle of law researcher will refer to books and internet
sources for research.
INTRODUCTION

Death Penalty can be defined as the lawful infliction of death as a punishment for a wrongful act.
In this paper the scope and validity of death penalty in the context of the Indian judiciary shall be
discussed. Firstly we shall look at the advent of death as a punishment for crimes and how it has
evolved in several other judicial systems all over the world. In this context the common
arguments relating to death penalty put forwards by the abolitionists and retentionists shall be
discussed.  Then importance has been given to the Indian context and the various statutes in
India dealing with Capital Punishment. This shall be followed by a brief of some of the most
famous and important cases relating to the subject matter decided by the Indian Courts. The aim
of this paper is to give the readers a clear understanding of the position of the Indian courts in
regard with awarding of capital punishment.

What is Death Penalty?

The death penalty is a legal process whereby a person is put to death by the state as a punishment
for a crime. The judicial decree that someone be punished in this manner is a death sentence,
while the actual process of killing the person is an execution. There has been a global trend
towards the abolition of capital punishment; however, India has not adopted this position. What
makes this form of punishment different from the others is the obvious element of irreversibility
attached to it. A man once executed for a crime can never be brought back to life. So if any error
has crept in while deciding on a matter, this error cannot be rectified at a later stage.

The death penalty has existed since antiquity. Anthropologists even claim that the drawings at
Vallaloid by prehistoric cave dwellers show an execution. Death penalty may have its origins in
human sacrifices. Capital punishment can be traced back as early as 1750 B.C, in the lextalionis
of the Code of Hammurabi. The Bible too set death as punishment for crimes such as magic,
violation of the Sabbath, blasphemy, adultery, homosexuality, bestiality, incest and rape. Plato
too discussed the scope of death penalty at length in his Laws.1

During the middle ages, the death penalty was characterized by particular brutality. Famous
thinkers like Grotius, Thomas Hobbes and John Locke were also supporters of this form of
1
https://englishlegalhistory.wordpress.com/2013/06/01/history-of-capital-punishment/
punishment. The trials by fire, water etc followed during the 1600’s can be said to be a form of
capital punishment.2

The modern abolitionist movement started with the works of great Italian criminologist,
CesareBeccaria which convinced many statesmen of the uselessness and inhumanity of capital
punishment. During the discussions on adoption of French Penal Code in 1791 there was
vigorous debate for abolishment of death penalty. In the 19 th century the abolitionist movement
grew with eminent jurists like Bentham and Romilly supporting such ideas. Michigan in 1846
became the first state to abolish capital punishment followed by Venezuela and Portugal in 1867.
As a goal for civilized nations, abolition of death penalty was promoted during the drafting of the
Universal Declaration of Human Rights in 1948.3

Capital punishment, also called death penalty, execution of an offender sentenced to death after
conviction by a court of law for a criminal offense. Capital punishment should be distinguished
from extrajudicial executions carried out without due process of law. The term death penalty is
sometimes used interchangeably with capital punishment, though imposition of the penalty is not
always followed by execution (even when it is upheld on appeal), because of the possibility of
commutation to life imprisonment. The term "Capital Punishment" stands for most severe form
of punishment. It is the punishment which is to be awarded for the most heinous, grievous and
detestable crimes against humanity. While the definition and extent of such crimes vary from
country to country, state to state, age to age, the implication of capital punishment has always
beenthe death sentence. By common usage in jurisprudence, criminology and penology, capital
sentence means a sentence of death.4

A careful scrutiny of the debates in British India's Legislative Assembly reveals that no issue was
raised about capital punishment in the Assembly until 1931, when one of the Members from
Bihar, Shri Gaya Prasad Singh sought to introduce a Bill to abolish the punishment of death for
the offences under the Indian Penal Code. However, the motion was negatived after the then
Home Minister replied to the motion. The Government's policy on capital punishment in British
India prior to Independence was clearly stated twice in 1946 by the then Home Minister, Sir John

2
Death Penalty Methods from Ancient Times Until Today, Louie Jerome
3
History of Capital Punishment, Samon Jones
4
Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
Thorne, in the debates of the Legislative Assembly. "The Government does not think it wise to
abolish capital punishment for any type of crime for which that punishment is now provided".5

Capital Punishment is currently practiced in 58 countries, including USA, Japan, Belarus, Cuba,
and Singapore. As of 2012 there are 97 abolitionist states. According to Amnesty International
the worst offenders in 2012 were China (1000+ deaths), Iran (314+) and Iraq (129+). The
organisation confirmed 1, 722 death sentences and 682 executions (excluding China) in 2012. In
Europe however it is now a virtually extinct phenomenon with the exception of the Republic of
Belarus. According to a study about two-thirds of the countries have either abolished capital
punishment outright or have not actually executed any death sentences in the last ten years.[iii]

 Position in the United States

Capital punishment was suspended in the United States from 1972 through 1976 primarily as a
result of the Supreme Court’s decision in Furman v.Georgia6. In this case, the court found that
the death penalty was being imposed in an unconstitutional manner, on the grounds of cruel and
unusual punishment in violation of the Eighth Amendment to the United States Constitution. The
Supreme Court has never ruled the death penalty to be per se unconstitutional. In Furman V.
Georgia however Justice Stewart took the view that death penalty serves a deterrent as well as
retributive purpose.

The Court in Gregg v. Georgia7 upheld a procedure in which the trial of capital crimes was
bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury decides
the defendant’s guilt; if the defendant is innocent or otherwise not convicted of first-degree
murder, the death penalty will not be imposed. At the second hearing, the jury determines
whether certain statutory aggravating factors exist, and whether any mitigating factors exist, and,
in many jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate
penalty – either death or life in prison, either with or without parole.

5
http://www.britannica.com/topic/capital-punishment
6
408 U.S 238
7
428 U.S 153.
Position in the United Kingdom

Around the 17th century Death penalties were one of the most commonly meted out punishments
in the UK. The common law in those days was called “Bloody Code” because at one point there
were up to 220 offences which were punishable by death, including “being in the company of
Gypsies for one month”, “strong evidence of malice in a child aged 7–14 years of age” and
“blacking the face or using a disguise whilst committing a crime”. The Murder (Abolition of
Death Penalty) Act 1965 suspended the death penalty in England, Wales and Scotland (but not in
Northern Ireland) for murder for a period of five years, and substituted a mandatory
sentence of life imprisonment. After this even though death penalty still remained part of the
legal framework it was implemented in few exceptional cases only. Finally on 20 th May 1998 the
House of Commons voted to ratify the 6th Protocol of the European Convention on Human
Rights prohibiting capital punishment except “in time of war or imminent threat of war.” In
October 2003 the UK prohibited capital punishment in all cases. 8 The last execution in England
was carried out in August 1964. Allen and Evans were both tried together at Manchester Crown
Court in June 1964, for the capital murder of John West (murder in the course or furtherance of
theft). During the trial, the judge posed the question to the jury of whether it was Allen or Evans
who committed the murder. The jury found both men guilty of murder, and they were both
sentenced to death by hanging. After that the country has not seen any case of execution though
some people were awarded the death sentence they were all reprieved at a later stage. Thus, we
see the transition in common law from aggressively handing out death sentences to completely
abolishing capital punishment.

Position in India

 In India Article 21 of the 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.9

8
The Shadow of the Gallows: The Death Penalty and the British Labour Government, 1945-51, VICTOR BAILEY
9
Constitution of India
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 paper shall try to examine those several occasions.10

The Indian Penal Code, 1860 awards death sentence as a punishment for various offences. Some
of these capital offences under the IPC are punishment for criminal conspiracy (s. 120B), murder
(s. 302), waging or attempting to wage war against the Government of India (s. 121), abetment of
mutiny (s.132), dacoity with murder (s. 396) and others. Apart from this there are provisions for
death penalty in various legislations like the NDPS Act, anti – terrorism laws etc-.

The Indian Constitution has provision for clemency of capital punishment by the President. Once
the Sessions Court has awarded death sentence to a convict in a case, it must be confirmed by the
High Court. Even after that the convict may prefer an appeal to the Supreme Court. If this also
fails the accused has the option of submitting a ‘mercy petition’ to the President of India and the
Governor of the State. Detailed instructions regarding procedure to be observed by the states for
dealing with petitions for mercy from or on behalf of convicts under sentence of death and with
appeals to the Supreme Court and applications for special leave to appeal to that court by such
convicts are laid down by the Ministry of Home Affairs.

In this respect we may refer to Article 72 of the Constitution of India which says:

“Power of President to grant pardons, etc, and to suspend, remit or commute sentences in
certain cases-

(1)  The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence                     

(a)  in all cases where the punishment or sentence is by a court Martial;

(b)  in all cases where the punishment or sentence is for an offence against any law relating to a
matter to which the executive power of the Union extends;

10
Article 21 of Indian Constitution
(c) in all cases where the sentence is a sentence of death

(2)  Nothing in sub clause (a) of Clause (1) shall affect the power to suspend, remit or commute a
sentence of death exercisable by the Governor of a State under any law for the time being in
force.”

Similarly the pardoning powers of the Governor of a State are mentioned in Article 161. These
provisions ensure that the accused is sentenced to death only after there is no room for error left.
The culprit gets multiple avenues to appeal and now life imprisonment has become the rule while
death sentence is the exception.11

For offences where the death penalty was an option, Section 367(5) of the CrPC 1898 required
courts to record reasons where the court decided not to impose a sentence of death: If the
accused is convicted of an offence punishable with death, and the court sentences him to any
punishment other than death, the court shall in its judgment state the reason why sentence of
death was not passed. In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly
altering the position of the death sentence. The death penalty was no longer the norm, and courts
did not need special reasons for why they were not imposing the death penalty in cases where it
was a prescribed punishment.

The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several changes were
made, notably to Section 354(3):

When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons
for the sentence awarded, and, in the case of sentence of death, the special reasons for such
sentence.

This was a significant modification from the situation following the 1955 amendment (where
terms of imprisonment and the death penalty were equal possibilities in a capital case), and a
reversal of the position under the 1898 law (where death sentence was the norm and reasons had
11
Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases The
Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to
suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter
to which the executive power of the State.
to be recorded if any other punishment was imposed). Now, judges needed to provide special
reasons for why they imposed the death sentence.

Discussion of Landmark cases dealing with Death Penalty in India

In the case of Jagmohan Singh v. State of U.P12 which was the first case dealing with the
question of constitutional validity of capital punishment in India. The counsel for the appellant in
this case put forward three arguments which invalidate section 302 of the IPC. Firstly that
execution takes away all the fundamental rights guaranteed under Clauses (a) to (g) of Sub-
clause (1) of Article 19 and, therefore the law with regard to capital sentence is unreasonable and
not in the interest of the general public. Secondly that the discretion invested in the Judges to
impose capital punishment is not based on any standards or policy required by the Legislature for
imposing capital punishment in preference to imprisonment for life. Thirdly, he contended, the
uncontrolled and unguided discretion in the Judges to impose capital punishment or
imprisonment for life is hit by Article 14 of the Constitution because two persons found guilty of
murder on similar facts are liable to be treated differently one forfeiting his life and the other
suffering merely a sentence of life imprisonment. Lastly it was contended that the provisions of
the law do not provide a procedure for trial of factors and circumstances crucial for making the
choice between the capital penalty and imprisonment for life. The trial under the Criminal
Procedure Code is limited to the question of guilt. In the absence of any procedure established by
law in the matter of sentence, the protection given by Article 21 of the Constitution was violated
and hence for that reason also the sentence of death is unconstitutional.

After looking into the arguments the five judge bench upheld the constitutionality of death
penalty and held that deprivation of life is constitutionally permissible for being recognized as a
permissible punishment by the drafters of our Constitution.

 Law Commission Report –

No discussion on the validity of capital punishment in India can be complete without going
through the fine details of the Law Commission Report, which was relied upon by the judges in
the case of Jagmohan too. The Law Commission of India, after making an intensive and
12
1973 AIR 947
extensive study of the subject of death penalty in India, published and submitted its 36th Report
in 1967 to the Government.13 After examining, a wealth of evidential material and considering
the arguments for and against its retention, that high-powered body summed up its conclusions at
page 354 of its Report, as follows:

The issue of abolition or retention has to be decided on a balancing of the various arguments for
and against retention. No single argument for abolition or retention can decide the issue. In
arriving at any conclusion on the subject, the need for protecting society in general and
individual human beings must be borne in mind.

It is difficult to rule out the validity of the strength behind many of the arguments for abolition
nor does the Commission treat lightly the argument based on the irrevocability of the sentence of
death, the need for a modern approach, the severity of capital punishment and the strong feeling
shown by certain sections of public opinion in stressing deeper questions of human values.14

Having regard, however, to the conditions in India, to the variety of the social upbringing of its
inhabitants, to the disparity in the level of morality and education in the country, to the vastness
of its area, to diversity of its population and to the paramount need for maintaining law and order
in the country at the present juncture, India cannot risk the experiment of abolition of capital
punishment.

In the case of EdigaAnamma v. State of Andhra Pradesh15 which followed Justice Krishna Iyer
commuted the death sentence to life imprisonment by citing factors like age, gender, socio-
economic background and psychic compulsions of the accused. It was laid out in this case that
apart from looking into the details of the crime and deciding based on the extent of violence
committed the judges should also look into the criminal and his condition or haplessness while
committing the crime. Justice Krishna Iyer in support of the life imprisonment over capital
punishment said:

“A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so
we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending
13
1967
14
Law Commission of India, 35th Report, Volume Two.
15
1974 AIR 799.
the deterrent creed and accenting the trend against the extreme and irrevocable penalty of
putting out life.”

These cases were followed by three important developments. Section 354 (3) was added to the
Code of Criminal Procedure, 1973 which clearly laid down that in conviction for cases which are
punishable either with death or life imprisonment, the judgment shall state the reasons for award
of the punishment and in the event that it is death sentence mention the special reasons for that
decision. This made the lesser punishment the rule and death penalty the exception as opposed to
the previous situation. Also in 1979 India ratified the International Covenant on Civil and
Political Rights (ICCPR).16

Article 6(2) of the ICCPR says:  “In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious crimes in accordance with the law in
force at the time of the commission of the crime and not contrary to the provisions of the present
Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.”

Sub- section 5 of the same Article says that no sentence of death shall be imposed on anyone
under the age of 18 years and none can be carried out on pregnant women. Thus, India was now
committed to progressive abolition of death penalty. Another major development was the
Maneka Gandhi case17 which held that every law of punitive detention must pass the
reasonability test obtained from the collective reading of the “Golden Triangle” i.e. Articles 14,
19 and 21.

Justice Krishna Iyer reiterated a similar opinion in the case of Rajendra Prasad v. State of Uttar
Pradesh18. However Justice Sen in his dissenting judgement cited his concern over the wide
scope for interpretation of the Section 302 of the IPC and Section 354 of the CrPC left to the
judiciary. He said in this case “It is not necessary for this Court to attempt to analyse the
substantive merits of the cases for and against the death penalty for murder. It is in my view,
essentially, a question for the Parliament to resolve and not for this Court to decide.”

16
Supra note 12.
17
1978 AIR 597.
18
1979 AIR 916.
The case of Bachan Singh v State of Punjab19 again brought up the question of validity of
capital punishment. This was the case that gave birth to the “rarest of the rare cases” doctrine and
still remains one of the most important cases in this subject. The 5 judge bench said :

“A real and abiding concern for the dignity of human life postulates resistance to taking a life
through law instrumentality. That ought not to be done except in rarest of rare cases where the
alternative opinion is unquestionably foreclosed.”

In this case not only the constitutional validity of death penalty but also the validity of Section
354(3) on the grounds that it gives unguided discretion to the Court and allows death sentence to
be arbitrarily awarded was questioned. The majority were of the view that neither Article 19 nor
21 is violated by capital punishment. The fact that our Constitution makers were fully cognizant
of the fact that death sentence may be given in certain extreme crimes is proven by the existence
of provisions for appeal (Article 134) and Pardoning power of the President (Article 72).  It was
also laid down that for ascertaining the existence or absence of “special reasons” in a case, the
Court must pay due regard to both the criminal and the crime equally. The aggravating or
mitigating factors need to be looked into. Things like age, mental condition, age of the accused
and if the act was done under the command of a superior must be taken into consideration while
deciding the punishment.

Justice Bhagwati alone dissented in this case but the issue was that his judgment came only 2
whole years after the verdict had been declared. So, some of the essential arguments that he
made against death penalty never came to the limelight. According to him “Unfettered and
uncharted discretion conferred on any authority, even if it be the judiciary, throws the door open
for arbitrariness, for after all a judge does not cease to be a human being subject to human
limitations when he puts on the judicial robe and the nature of the judicial process being what it
is, it cannot be entirely free from judicial subjectivism.” And this very principle he believed
clearly violates Article 14 which guarantees equality before law. Also it violates Article 1920 and
19
AIR 1980 SC 898
20
Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
21 as there are no procedural as to when the state has the power to take away the life and
personal liberties of a person in such cases. Justice Bhagwati not only talks about the brutality
and indiscretion that accompanies death penalty but also with logic and statistical data shows us
how capital punishment doesn’t succeed in attaining any of the three penological
goals( Reformation, retribution and deterrence). It is obviously impossible to reform a person
who is dead and the retribution theory also does not hold ground according to him such a
punishment is based purely on emotions of vengeance and revenge which should be curtailed in
a civilised society. Last is the Deterrence theory, which most retentionists assume is the most
crucial reason for not abolishing capital punishment. They believe that legally sanctioned death
of the culprit would dissuade others from doing the same. However Justice Bhagwati cites
various eminent criminologists and statistics of other countries which prove that there is no
increase in the crime rate even when capital punishment is abolished and no decrease when the
court awards death sentence for a crime.

In Triveniben V. State of Gujarat21it has been held that a person sentenced to death is also
entitled to procedural fairness till his last breath of life. Art 21 demands that any procedure
which takes away the life and liberty of such person must be reasonable, just and fair. Undue
delay in disposal of mercy petition by the President would certainly cause mental torture to the
condemned prisoner and therefore would be volatile of Article 21. A condemned prisoner has to
suffer a degree of mental torture even though there is no physical mistreatment and no primitive
torture. He may be provided with amenities of ordinary inmates in the prison/ but nobody could
succeed in giving him peace of mind. In such a situation, the court will examine the delay factor
in the light of the circumstances of the case and in appropriate cases commute death sentence to
the sentence of life imprisonmentthe constitutionality of death penalty was re-affirmed by the
court.
Om Prakash vs. State of Haryana,22that imposition of death sentence on accused, a boy of 19
years, was excessive when two co-accused who were alleged to instigate the accused to fire the
deceased, were given benefit of doubt.

(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business
21
1989 AIR 1335.
22
1970 CriLJ 737.
Dhananjoy Chatterjee Alias Dhana v. State of W.B 23was the only person who was judicially
executed in India in the 21st century for a crime not related to terrorism. The execution by
hanging took place in Alipore Central Correctional Home, Kolkata, on 14 August 2004. He was
charged with the crimes of rape and murder of Hetal Parekh, a 14-year-old school-girl. The
execution stirred up public debates and attracted immense attention from media. Dhananjoy was
convicted on the basis of circumstantial evidence, maintaining innocence throughout his trial and
imprisonment, which lasted for more than 14 years

Mithu v. State of Punjab24 was another case where the mandatory death sentence under Section
303 was declared unconstitutional and hence invalid. The section was based on the logic that any
criminal who has been convicted for life and still can kill someone is too cold blooded and
beyond reformation, to be allowed to live. The judges in Mithu’s case held that Section 303
violated the Articles 14 and 21 of our Constitution and so it was deleted from the IPC.

In the subsequent cases of T.V Vatheeswaram v. State of Tamil Nadu25and Sher Singh v. State
of Punjab26the Supreme Court was faced with the question of delay in execution of the death
sentence and whether a prolonged delay was reason enough to commute the death sentence to
life imprisonment. While the first case laid down that such a situation gave reason enough for the
convict to invoke section 21 and get the lesser punishment, the majority in the latter case differed
on this point.

In the case of Macchi Singh v. State of Punjab27in order to further elucidate the “rarest of the
rare rule”, situations where the application of death sentence could be justified Justice M.P
Thakkar gave the following illustrations:

 I Manner of Commission of Murder

When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or

dastardly manner so as to arouse intense and extreme indignation of the community. For
instance,
23
1994 SCR (1) 37
24
1983 AIR 473.
25
[1979] S.C.R 392.
26
1983 AIR 465.
27
1983 AIR 957
(i) When the house of the victim is set aflame with the end in view to roast him alive in the
house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring
about his or her death. (iii) When the body of the victim is cut into pieces or his body is
dismembered in a fiendish manner.

II Motive for Commission of murder

When the murder is committed for a motive which evinces total depravity and meanness. For
instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold
blooded murder is committed with a deliberate design in order to inherit property or to gain
control over property of a ward or a person under the control of the murderer or vis-a-vis whom
the murderer is in a dominating position or in a position of trust, (c) a murder is committed in the
course for betrayal of the motherland.28

III Anti Social or Socially abhorrent nature of the crime

(a) When murder of a Scheduled Caste or minority community etc., is committed not for
personal reasons but in circumstances which arouse social wrath. For instance when such a crime
is committed in order to terrorize such persons and frighten them into fleeing from a place or in
order to deprive them of, or make them with a view to reverse past injustices and in order to
restore the social balance.29

(b) In cases of ‘bride burning’ and what are known as ‘dowry-deaths’ or when murder is
committed in order to remarry for the sake of extracting dowry once again or to marry another
woman on account of infatuation.

IV Magnitude of Crime

When the crime is enormous in proportion. For instance when multiple murders say of all or
almost all the members of a family or a large number of persons of a particular caste,
community, or locality, are committed.

28
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp. 17-18.
29
Indian Express, New Delhi, dated 27.5.2015.
V Personality of Victim of murder

When the victim of murder is (a) an innocent child who could not have or has not provided even
an excuse, much less a provocation, for murder, (b) a helpless woman or a person rendered
helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the murderer is in
a position of domination or trust30 (d) when the victim is a public figure generally loved and
respected by the community for the services rendered by him and the murder is committed for
political or similar reasons other than personal reasons.

In Allauddin v. State of Bihar31, Justice Ahmadi said that “Where a sentence of severity is
imposed, it is imperative that the Judge should indicate the basis upon which he considers a
sentence of that magnitude justified. Unless there are special reasons, special to the facts of the
particular case, which can be catalogued as justifying a severe punishment the Judge would not
award the death sentence. It may be stated that if a Judge finds that he is unable to explain with
reasonable accuracy the basis for selecting the higher of the two sentences his choice should fall
on the lower sentence.”

Kehar Singh v. Union of India32is the famous case where the assassins of Indira Gandhi were
sentenced to death. Kehar Singh was part of the conspirators who planned the murder and did not
actually commit the act. The court held that even this was enough to fall in the rarest case
criteria. This was a widely controversial decision. Later in State of Maharashtra v. Sukhdeo
Singh33the judges awarded death sentence to the two persons accused for the murder of General
Vaidya.

Death sentence was awarded to the accused in LaxmanNaik v. State of Orissa34accused of

sexually assaulting his 7 year old niece. The evidence recorded and the degree of injuries of the
victim according to the judges were sufficient to prove the gross brutality with which the rape
and murder had been committed and hence it was a case fit to fall under the category of the
“rarest of rare” cases.

30
http://www.allsubjectjournal.com/archives/2015/vol2issue4/PartK/62.pdf
31
1989 AIR 1456
32
1989 AIR 653
33
1992 AIR 2100
34
1995 AIR 1387.
Panchhi and Ors. v. State of  Uttar Pradesh35later held that brutality in the act of murder is not
be the sole criterion while deciding if the crime falls under the “rarest of rare” doctrine as laid
down by the case of Bachan Singh. In SwamyShraddhananda @ MuraliManohar Mishra v.
State of Karnataka36the court for the first time identified the dilemma judges face because the
term for life sentence after remission usually was cut down to 14 years. This was in some cases
considered to be grossly inadequate and so the Court held that in some such cases it can order
that the convict shall not be released for the rest of his life. So it was held that executive
clemency doesn’t mean that the Court cannot award imprisonment beyond 14 years.

One of the most recent cases which many abolitionists in India consider to be a major step
towards the possible abolition of death penalties in India is that of Santosh Kumar Bariyar v.
State of Maharashtra37The bench comprising Justices S.B. Sinha and Cyriac Joseph ruled that
previous judgments of the Court, in which 13 death sentences were validated, were rendered per
incuriam, or in other words were rendered in ignorance of the law laid down in Bachan Singh’s
case. In this case the accused along with three others kidnapped a person and demanded a
ransom of Rupees 10 lakhs. Eventually they killed him and cut his body into pieces and disposed
them in different places. In spite of the brutal execution of the murder the judges were convinced
that the ‘mitigating circumstances’ in this case were sufficient to exclude it from the bracket of
“rarest of rare” cases. The Court observed that the accused were not professional criminals with a
long past criminal record, that they did what they did with the sole motive of collecting money.
So the Court held that there is a chance of reform and rehabilitation of the accused and for the
sake of that possibility granted them the lesser sentence of life imprisonment.

These are in brief some of the landmark cases which grappled with the question of death penalty
and other issues stemming from it. India in the recent years has seen a number of high profile
cases with death penalties being carried. In 2012 Indian courts suffered from two noteworthy
embarrassments. Fourteen retired Judges asked for thirteen cases of the death penalty to be
commuted after admitting the original sentence was handed down per incuriam (out of error or
ignorance). In the same year it was revealed that president PratibhaPatil had, during the course of
her five-year term, commuted the sentence of a rapist who had died five years previously. Events
35
1998 CriLJ 3305.
36
AIR 2008 SC 481
37
AIR 2009 (6) SCC 498
like these are a severe jolt to the judiciary. It was after incidents like these that the protest against
capital punishment gained more momentum. The taking away of someone’s life due to the error
of judgement of the judiciary is injustice of the most grotesque kind.

An unofficial eight year tussle came to an end last year when the first of two executions took
place. Mohammad Ajmal Amir Kasab, convicted of involvement in the 2008 Mumbai gun attack
was hung 21st November 2012. Then in February 2013, Muhammad Afzal – convicted of plotting
the 2001 attack on India’s Parliament was executed. The quick succession of the two executions,
coupled with the Supreme Court’s ruling in regards to capital punishment earlier this year, has
raised the awareness of controversy surrounding India’s penal system. The verdict of the Delhi
rape38 case was announced recently. The judges awarded death sentence to the four accused and
a 3 year imprisonment to the juvenile. This decision has reignited the debate on death penalty.
The Indian Government had passed an ordinance which applied the death penalty in cases of
rape that leads to death or leaves the victim in a “persistent vegetative state” on 3 February 2013,
in response to public outcry over the Delhi gang-rape. A lot of legal scholars believe that
hanging of the culprits in this case is not going to make the country any safer for women or
reduce the number of sexual crimes on women. Additional Sessions Judge YogeshKhanna while
delivering the judgement said that the incident had evoked nationwide rage and the brutality with
which the offence was committed cannot be ignored. “There should be exemplary punishment in
view of the unparalleled brutality with which the victim was gang raped and murdered, as the
case falls under the rarest of rare category. All be given death,” the court said while reading out a
portion of the order. On a rather dramatic note the Defence counsel A P Singh said after the
verdict was announced that he will move high court only “if no other rape takes place in next two
months after this verdict”.

“If the country wanted this case to be a deterrent, I will wait for two months to see the crime
scene. If no rape takes place due to death being given in the instant case, I will give in writing
that my clients be hanged,” he said.

38
State Through Reference vs Ram Singh & Ors.
Indian courts sentenced 1,455 prisoners to death between 2001 and 2011, according to the
National Crime Records Bureau. During the same period, sentences for 4,321 prisoners were
commuted to life imprisonment.

There are 477 people on death row. Many have been there for years. Human rights groups have
been alarmed, however, by the vigour with which President Pranab Mukherjee, who was sworn
into office in July 2012, has acted in clearing the backlog of clemency pleas. He has rejected 11,
confirming the death penalty for 17 people.

Conclusion

 In view of the above discussions we can see that India’s thinking on the capital punishment is
still quite muddled up. It is not just a debate of legality and constitutionality of the death penalty
but also the moral and social aspects that are related to this controversial topic that have lead to
extensive confusion in this respect. Keeping away the question of law, the question of death
penalty has to take into considerations factors such as public sentiments on one hand and tussle
with the moral issue of the “eye for an eye” principle on the other. Also it is known to us that
error in making judgements is only humane and sometimes giving someone a second chance is
like giving them a bullet again because they missed you the first time.

In the end I would like to end with two suitable quotes which would give the readers two divisive
aspects of death penalty to mull over. The first is one by Bernard Shaw, an Irish playwright and
a co-founder of the London School of Economics:

“Criminals do not die by the hands of the law. They die by the hands of other men. Assassination
on the scaffold is the worst form of assassination because there it is invested with the approval
of the society…..Murder and capital punishment are not opposites that cancel one another but
similars that breed their kind.”

And the second one is by Margaret Thatcher, Prime Minister of the UK (1979 -1990) :

“If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of
murderers. If we fail to execute murderers, and doing so would in fact have deterred other
murders, we have allowed the killing of innocent victims. I would much rather risk the former.
This, to me, is not a tough call…..All over the country news stories bemoan and hype the
countdown to execution number 1000, but where are the stories regarding the ripple effect of the
heinous crimes that these murderers were executed for committing? ”

Maybe there is no real right or wrong answer to the issue of capital punishment, or maybe if
there is the society in our country need to develop to a level where the answer becomes clear to
us. Until then what is required is a careful examination of facts and evidence by the judiciary in
every such sensitive case to avoid any possibility of error. Also, India lacks an authentic
statistical database of the number of convicts being sentenced to death and executed in relation
with various other factors which would give us a clearer picture of what needs to be done ahead.