Death penalty also known as capital punishment is one of the most controversial aspects of the criminal law. With the emergence of human rights jurisprudence in 20^th and 21^st century, the voice against death penalty has strengthened all across the world. While increasing number of countries are doing away with capital punishment, still many have faith in the deterrence effect of death penalty and have kept it in their law books.

But the question arises as to why the international human rights activists hold the death penalty as abhorrent to basic human rights? What all challenges in the working of the legal systems makes awarding punishments prone to errors and often have arbitrariness involved in it? What is the legal position of capital punishment in India?

Before we dwell into these questions lets have a look at what all are the theories of punishments which have existed and continue to exist to which different legal systems look forward to.

Theories of punishment

1. Deterrent or preventive theory believes that punishment is given so that a potential criminal can learn a lesson and not commit the same crime again. This theory is utilitarian in nature and hopes to control crime rates so that people have a feeling of security. Jeremy Bentham was the proponent of this theory.

Many countries such as India and USA believe this theory and hence awards death sentence to create deterrent effect.

• Retributive theory of punishment believes that punishment is given because it is deserved and no other reason. The principle of justice says that if a right act is awarded then wrong act must be punished. Punishment is the fruit of evil deed.

Aristotle and Hegel were proponents of this theory.

• Reformative or educative theory of punishment believes that the purpose of punishment is to reform the criminal. Most of the crimes are committed due to mental deficiency or insanity or physiological defect. Therefore, the criminal ought to be cured and ought to be reformed. Plato is the father of reformative theory.

Global perspective on death penalty

As of 2022, 55 countries retain capital punishment (60% of world’s population live in these countries) such as India, Pakistan, China, Bangladesh, Iran, Saudi Arabia, USA.

About 109 countries have completely abolished the capital punishment for all crimes while seven countries have abolished it for ordinary crimes while maintaining it for special circumstances such as war crimes.

Amnesty International declares that the death penalty breaches human rights and that right to life and right to live free from torture or cruel and inhuman punishment is protected by Universal Declaration of Human Rights .

Article 2 of Charter of Fundamental Rights of the European Union prohibits the use of capital punishment. United Nations has adopted about eight non-binding resolutions calling for global moratorium on use of death penalty.

As we have seen above that increasing number of states are doing away with capital punishment but Indian still retains it in its statute books. Let’s have a look as to why India still retains this form of punishment and how courts have developed jurisprudence around it.

Indian legislations providing for capital punishments

Article 21 of the Indian constitution says that “no person shall be deprived of his life and personal liberty except according to the procedure established by law”. This means that the state can not take  a person’s life except through the legal system provided the procedure is just and reasonable.

Various provisions of Indian Penal Code(IPC) and other legislations provide for death penalty.

1. Section 120B of IPC – Person who is party to criminal conspiracy to commit an offence punishable with death.
2. Section 121 of IPC– Waging or attempting to wage war, or abetting waging of war against Government of India.
3. Section 132 of IPC– Abetment of mutiny in armed forces, if mutiny is committed in consequence thereof.
4. Section 302 of IPC-Punishment for murder.
5. Section 376A of IPC-Punishment for causing death or resulting in persistent vegetative state of the victim of rape.
6. Section 376ABof IPC – Punishment for rape on woman under 12 years of age.
7. Section 376DB of IPC– Punishment for gang rape on woman under 12 years of age.
8. Section 31A of Narcotics Drugs and Psychotropic Substances Act
9. Prevention of Sati Act– inducement, convincing or abetting any act of Sati.

This list is not exhaustive.

According to the Annual Statistics Report 2022, published by Project 39A, a study conducted by National Law University Delhi, at the end of the 2022, about 539 prisoners were on death sentence in India, the highest since 2016. The major factor for peak is that in 2022, trial courts imposed 165 death sentences, the highest in two decades.

Although the death sentences have increasingly being imposed in India but the jurisprudence around it has developed over decades in leading judgements of the higher courts particularly the Supreme Court.

Judgements leading to development of death penalty jurisprudence in India

During the initial years of constitution, death penalty was seen as a normal punishment for murder. But later discretion was conferred on session court judges to award either life sentences or capital punishment. In 1973 Cr.P.C was amended which directed that special reasons shall be shown if the session judges impose death penalty.

Various judgements have established certain criteria to be fulfilled before death sentences can be imposed.

1. Bachan Singh v. State of Punjab (1980)[1]

It is one of the leading cases on capital punishment jurisprudence in India. The court refused to declare the death penalty as unconstitutional but ruled that death penalty can only be imposed in rarest of rare cases in which the alternative sentence of life is reasonably foreclosed .

The court also established the notion of aggravating and mitigating factors to be considered while awarding capital punishment.

Mitigating factors which can be considered for granting lower punishment or life sentence include:

1. mental illness or emotional instability
2. age of the accused, too young or old persons not to be given death sentence.
3. likelihood of the accused to be reformed.
4. accused was under the duress of another person’s superiority
5. likelihood that the accused would not commit criminal acts that would pose a threat to the society.
6. accused was mentally defective and the said defect impaired his capacity to appreciate the criminality of his conduct.

Aggravating factors that would support the application of death penalty.

1. if the murder involves extreme inhumanity.
2. repeat offences
3. if there is something unusual about the crime that makes a life sentence insufficient and necessitates the death penalty.
4. circumstances of the crime are such that there is no other option than to inflict the death penalty, even after giving the most weight to the mitigating circumstances.

A balance sheet of aggravating and mitigating circumstances to be constructed to determine whether justice will be served if a sentence other than death is imposed.

• Machhi Singh v. State of Punjab (1983)[2]

In this case Supreme Court established certain standards for awarding of capital punishment.

1. the death sentence is an exception rather than the rule. Death sentence only to be imposed when life imprisonment appears to be insufficient in the light of the circumstances of the crime.
2. death penalty can be imposed when the murder is committed in extremely brutal manner so as to arouse the indignation of the society.
3. the circumstances of the offender and the crime to be considered before deciding on the death penalty.
4. only in most serious circumstances of extreme culpability, the death sentence to be awarded.
5. the balance sheet of aggravating and mitigating circumstances to be made before deciding on the death sentence.

• Rabindra Kumar Pal v. Republic of India (2011)[3]

 Whether a case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating and mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence.

• Gurvail Singh v. State of Punjab (2013)[4]

Rarest of rare test depends on the perception of the society and not judge centric, while applying this test the court has to look into variety of factors like society abhorrence , extreme indignation and antipathy to certain types of crime like rape and murder of minor girls, old and infirm women with disabilities.

Problems with death penalty

The proponents of the death penalty often argues in favor of the utility of the death sentence . According to them death penalty stands on the footing of theory of retribution as people should get what they deserve in proportion of severity of their crime.

Proponents also have faith in the deterring effect of the capital punishment.

But the increasing amount of legal research and data points against the utility of capital punishment. Inherent deficiencies in the functioning of the legal systems and considering the human biases, the time has come to have a serious debate on whether India should do away with it.

1. Not a deterrent – Data of National Crime Records Bureau has shown the increase in number of crimes committed.

The criminal law (Amendment) Act of 2018 enhanced the punishment for sexual offences against children. But according to NCRB data the percentage of POCSO cases out of total cases of crime against children increased from 31.94% in 2019 to 36.73% in 2020.  This clearly shows the limitation of deterrence effect of capital punishment.

• Disproportionate effect on socio economically backward population-According to the National Law University Delhi’s Death Penalty Report 2016, about 75% of all convicts sentenced to death in India are from socio economically backward categories such as Dalits, OBCs, religious minorities. Illiteracy and poverty results in inadequate legal assistance which often results in conviction.
• Arbitrariness- Criminal law is full of technicalities and gives discretion to the judges in variety of situations. Personal biasness of judges affecting the awarding of sentence cannot be ruled out. Liberal awarding of death sentences is often seen in lower courts.
• Delay in executions- Inordinate amount of delay has been seen in the disposal of mercy petitions pending with the President and Governor. This delay creates a situation of torture for the convict.

In Sriharan v. Union of India,2014[5], the court held that the exorbitant delay in the disposal of mercy petition renders the process of execution of death sentence arbitrary, whimsical and capricious and inexecutable.

• Loopholes in investigations- Much depends on the kind of investigation is done by agencies. With lack of proper forensic scientific investigations, the risk of an innocent being convicted is high. State of poor investigation by police was seen in the case of Ayushi Talwar murder case.
• Against human dignity- Every human being has right to life and state cannot take that life. Death penalty infringes a person’s right against torture and is inhumane. It degrades the basic dignity of a human being.
• Against India’s international obligations – Presence of death penalty in Indian statutes is seen by international community as against India’s commitments to human rights.

India has yet not ratified UN Convention against Torture which has often created hindrances against extradition of criminals from foreign lands to India.

Way forward towards alternatives

As we move forward as a developed society having regard to human rights, we need to find more humane alternatives  to death penalty. The focus of our legal system needs to shift towards reformative penalties for crimes. Many suggestions are noteworthy for this aspect.

1. 262^nd report of Law Commission of India- submitting its report in 2015 the Commission concluded that the death penalty does not serve the penological goal of deterrence anymore than the life imprisonment. It fails to achieve any constitutionally valid penological goals.

The commission also concluded that in focusing on death penalty as an ultimate measure of justice to victims, the restorative and rehabilitative aspects of justice are lost in sight. It was also concluded that extremely uneven application of Bachan Singh has given rise to a state of uncertainty in capital sentencing law which falls foul of due process and equality provision. Therefore, the regulation attempted by this judgement has failed to prevent death sentences from being arbitrary and there exists no method to remove this arbitrariness.

The report also sheds light on the exercise of mercy petitions under Article 72 and 161 of the Constitution and how this exercise has failed to act as the final safeguard.

The commission recommended that death penalty should be abolished for all offences except terrorism related offences. Death penalty for terrorism related offences is retained keeping national security related concerns in mind.

The commission also called for victim compensation and protection for witnesses.

• Reforming legal system- certainty of punishment rather than severity acts as a better deterrent. Reducing delays in pronouncement of decisions and proper scientific investigations by police is a way forward. Victim compensation and witness protection will increase number of convictions.
• Life imprisonment- Life imprisonment without parole or commutation for heinous offences can be considered as a good alternative to death penalty. Stricter application of conditions for premature release while dealing with heinous crimes.
• Focus on reformation – a study into the childhood experiences and upbringing of the accused, mental health history and likelihood of past traumatic experiences combined with other social and cultural factors needs to be considered while attempting reformation of the convicts. Experts in field of sociology, psychiatry and anthropology can be indulged.  

Conclusion Society has come a long way from inflicting inhuman punishments like beheading or limb chopping to more humane form of punishments. An empathetic society will always consider the human rights of every person even if they are in conflict with law. With its strong record of protecting human rights and its global ambitions, India needs to say goodbye to death penalty and focus more on reformative type of justice system. Its high time that debate on alternatives to death penalty takes pace and we create a more humane and empathetic society where violence doesn’t become a tool to give justice to victims.

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[1] Bachan Singh v. State of Punjab, A.I.R 1980 S.C 898 (India)

[2] Machhi Singh And Others vs State of Punjab, 1983 A.I.R 957

[3] Rabindra Kumar Pal v. Republic of India, A.I.R 2011 S.C 1436 (India)

[4] Gurvail Singh alias Gala v. State of Punjab, A.I.R 2013 S.C 1177 (India)

[5] Sriharan alias Murugan v. Union of India & Ors. – (2014) 4 SCC 242(India)

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Author: Lalit Yadav

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