21BAL080 - Abhishek Nenuji - Blog On Death Penalty in India

CRITICAL ANALYSIS OF DEATH PENALTY IN INDIA
-Abhishek Nenuji (21BAL080)

2nd Year Student, B.A. LL.B. (Hons.)
Institute of Law, Nirma University
________________________________________________________________
Introduction:
In India, there are two aspects, which contribute to the motive behind giving a person the
punishment they need. One of these aspects is that the offender needs to feel the pain and
suffering the punishment is intended to cause and the other one is to punish wrongdoers or
encouraging others to do the right thing by imposing penalties on wrongdoers rather the
punishment is required to legitimize authority and punish the offender for committing the
offence/crime.
The death penalty has been an issue of controversy and incongruity not only in the Indian
Judiciary, but also in most of the advanced countries for a long time in fact, especially
concerning about its execution.
The state's authority is established and questioned when the death penalty is executed, it is an
influential case to look at rather when it comes to establishing and questioning authority. The
Indian Constitution spares the President the power to veto or exonerate the death penalty in
the event there is sufficient reason.1
In India, the most genuine and frightful offences or crimes receive the death penalty. Death
Penalty is often given to individuals convicted of murder, theft with murder, or when
individuals take up arms against the administration. The court determines whether or not life
detainment is still needed in the case after hearing whether there is any reason to believe that
life detainment is longer needed.2
Historical Background of Death Penalty:
Death Penalty is a sanction that is ancient in terms of its use as a method of penalty rather to
sanction arrestees, defendants, and convicts for thousands of years. In virtually every country
1
Constitution of India,1949.
2
Rai, Diva. "Overview and Analysis of Capital Punishment in India." IPleaders, 24 July 2019.
in the world, there are mechanisms in place that allow for capital punishment to be used in
certain instances. Civilizations throughout time have abandoned capital punishment as a
means of justice and the time period of capital punishment was continued rather remain as it
is- it was never dismissed.3 Executions for treason, murder, sexual assault and arson were
fairly common in ancient Greece. In 621 BC, the laws of Draco formed the basis of the
extensive use of Death Penalty, through which Plato made a point that death penalty should
be used as not able to be reformed. Though Roman citizens could be exempted from the
death penalty, it was also used for a wide variety of offenses during the Roman Republic.4
The finding of support comes in the observation. Which was made by Sir Henry Marine, who
made his point that "Roman Republic did not abolish death sentence though its non-use was
primarily directed by the practice of punishment or exile and the procedure of questions".
The current scenario of Death Penalty in India:
Supreme Court on Legitimacy of Death Penalty in India

The Constitution of India furnishes an assurance that people have the right to life and along
with right to liberty. Article 2 of the Indian constitution is one of the fundamental provisions.
No individual shall be deprived of his life or personal liberty except as determined by
procedures established by law. This indicates that if a procedure is lawfully fair and valid
then after it has been legally construed. In the case of Jagmohan Singh vs State of Uttar
Pradesh (1973), then in the case of Rajendra Prasad vs State of Uttar Pradesh (1979), and
finally in the case of Bachan Singh vs State of Punjab (1980), the Apex Court, by way of its
decision, ruled the death penalty to be constitutional. If a fair death sentence is set according
to the law, and if the procedure is provided by the law, it can be awarded to a convict.
Additionally, the courts only follow this "rarest of rare" case procedure in the "most serious
of cases" and then grant "special reasons" for the sentence.
Critical Analysis:
In India, the death penalty is mostly given for commission of heinous rather brutal offences.
The President of the India has the authority or power to grant clemency/mercy in death
3
Dr. Shubhash C. Gupta, Capital Punishment in India, (2000).
4
Capital Punishment, Britannica.
penalty cases. As it turns out, the high court is required to affirm when a death sentence has
been given by Sessions Court. If the convict does not succeed in appealing their conviction at
the Supreme Court of India, then after their appeal is unsuccessful, the convict may file a
clemency rather mercy petition before president of India and he can furnish it by applying his
discretionary power, which the constitution of India prescribes.
Society should preserve the capital punishment to safeguard itself from criminals. The main
objective in carrying out death penalty is to content society's feelings of odium rather hatred
towards crimes. The state of the government relies on removing the criminals from the
society and the mercy petitions by president and by the governor should always be rejected.
The current state of government be sure of on crimes being prosecuted and removed via the
president's and governor’s mercy or clemency petitions.
As with any topic, there are two sides to the argument, and the debate over death penalty can
be seen as one with pros and cons. The state's let down to attain prevention formerly by the
menace of the death penalty proved an admission of the fact that the state couldn't hold the
death penalty over the individual. To each one of us, a criminal is also a human being, and
they can be rehabilitated. Death Penalty is fierce and harsh.
Conclusion:
The preamble implies that India is a self-governed democratic nation where the public's
influence is maintained, with the advantage of people at large remaining unchanged. It can be
said that the act of executing someone is an offense to humanity. Therefore, there would be
in favor of public welfare if the death penalty is declared unlawful since it is a serious
offence against human rights. The steps have to be taken by the government by deleting such
provisions of death penalty and must be taken into consideration as a negative aspect of
sentencing someone to death. The convicted prisoners have to face both physical and mental
torture if they found convicted and thereafter, once they get convicted, the process of death
penalty is so long, this thing makes them hopeless to beg for death. No human being should
have to face such situation, whether he is offender or not. Even though the number of actual
executions of offenders sentenced to death is declining, much remains to be done to speed up
the process for those awaiting execution and to comply with India's international
commitments.
References:
1. Arya Mishra, Capital Punishment in India, ipleaders, (July 24, 2019),
https://blog.ipleaders.in/capital-punishment-2/
2. Satish Kumar, Death Sentence in India-IPC-Death Penalty, legalserviceindia,
https://www.legalserviceindia.com/articles/dsen.htm#:~:text=Indian%20Penal%20Co
%20de%2C%201860,person%2C%20Dacoity%20with%20murder%20etc.
3. Anand Amit and Steven Abraham, Abortion of Death Penalty in India: A case study,
Thelawblog, (Sep 3, 2020), https://thelawblog.in/2020/09/03/abolition-of-death-penalty-in-
india-a-case-study/

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CRITICAL ANALYSIS OF DEATH PENALTY IN INDIA

-Abhishek Nenuji (21BAL080)

Historical Background of Death Penalty:

The current scenario of Death Penalty in India:

Supreme Court on Legitimacy of Death Penalty in India

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