Capital punishment
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This article, by Aksshay Sharma, Department of Laws, Panjab University, Chandigarh, deals with why capital punishment should be abolished. The article also discusses the Law Commission report on Death Penalty and Project 39A of National Law University (NLU), Delhi. Project 39A comprehensively discusses the issues with respect to the death sentencing system by the courts of Madhya Pradesh, Delhi and Maharashtra. This article also attempts to delineate as to why the death penalty should be abolished in India.


Capital punishment is the practice of killing a person as a form of punishment for a particular offence after conducting a proper legal trial by the courts. It can only be done by a legitimate state authority with the sanction of the Judiciary, so when non-state organisations,in the name of capital punishment execute a person they have actually committed a murder. It is usually used as a punishment for particularly serious types of the offence like Murder, Mutiny etc., but in some countries treason, types of fraud, adultery and rape are categorised as crimes involving capital punishment. It can include death by administering a lethal injection, electrocution, shooting, decapitation of the head, but almost all nations now prefer death by hanging. Capital punishment itself is cruel, inhuman and degrading, and this is the reason 140 nations have abolished it. In Furman v. Georgia the United States Supreme Court declared the death penalty to be unconstitutional as being cruel and an unusual punishment.

Reasons for alternatives to the death penalty

In Bachan Singh v. State of Punjab (1980) Supreme Court said that The real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. The 21st Law Commission of India chaired by Justice A.P. Shah submitted its 262nd report on 31st August 2015. The Law Commission recommended “swift” abolition of death penalty except in terror-related cases. It said that the death penalty does not serve the penological goal of deterrence any more than life imprisonment. The report said that the method for abolition should be swift, irreversible and absolute abolition. Even the 20th Law commission in its report asked for the abolition of the death penalty in all respects in the very near future.

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According to Project 39A the procedure followed by courts in awarding Death Penalty has multiple flaws;

  • Problems with the Sentencing procedure: Trial courts rely heavily on aggravating circumstances of the crime to reach an outcome. The report says that “ a reading of 215 trial court judgements across three states suggested an overwhelming reliance on aggravating circumstances of the crime to impose a death sentence”. This is in contrast to the Supreme Court’s decision in the Bachan Singh case. In Bachan Singh, the court ruled that “aggravating circumstances must outweigh mitigating circumstances for imposition of the death penalty” and mitigating circumstances must be given a “liberal and expansive interpretation”.

In some cases, mitigating factors were not even considered at all. In Sevaka Perumal, Etc vs State Of Tamil Nadu (1991) Court dismissed the mitigating factors and held that these compassionate grounds would always be present in most cases and are not relevant for interference.

Aggravating circumstances are those factors which contribute to offenders culpability (blameworthiness). This results in harsher punishment for a particular offence. Mitigating circumstances are those factors which contribute to the lessening of punishment, like past criminal record, first time offender, the sole breadwinner of a family.

  • Crime-centric focus: The report warns against the increased crime centric focus of all courts while deciding on imposition of the death penalty. According to the report, courts have steadily drifted towards considering “nature of the crime” for death sentencing.

Bachan Singh required consideration of aggravating and mitigating circumstances of the crime as well as the criminal. 

However, Machhi Singh case court introduced the concept of “collective conscience” in the sentencing framework. It laid down 5 categories which according to court were enough to outrage the collective conscience, these include:

  • Motive of crime;
  • Manner of commission of the crime;
  • Anti-social or socially abhorrent nature of the crime;
  • Magnitude of crime; 
  • The personality of the victim.

These categories point towards consideration of the nature of the crime for the imposition of a death sentence, which was expressly rejected by the court in Bachan Singh. The court said that the death sentence is to be given “only in the gravest cases of extreme culpability” after considering the aggravating and mitigating circumstances in a case and giving due consideration to the “circumstances of the offence, as well as the circumstances of the offender”.

According to 21st Law Commission, the way judges have invoked the categories in Machhi Singh said that once an offence falls within any of the 5 categories then it becomes a rarest of the rare case thus deserving the punishment of death penalty. Machhi Singh and other cases involving offences punishable by death, the courts have focused only on the circumstances, manner, nature and the motive for the crime, without taking into account the circumstances (situations under which he committed the crime) of the criminal or the possibility of reform. This aspect completely ignores the possibility of reformation of the criminal, because in many cases extreme circumstances force a person to a life of crime.

It is worth noting that after Bachan Singh, specific crimes were considered for mandatory imposition of death penalty like death by Policeman in Police Custody (Mehboob Batcha & Ors vs State Rep. By Supdt. Of Police), Honour Killing (Bhagwan Dass vs State (NCT) Of Delhi).

  • Inordinately long duration: According to the Death Penalty India report (2016), time spent by convicts under a death sentence is usually between 8-11 years, making the convict undergo an experience, which itself is a kind of punishment. Prolonged detention to await execution of a sentence of death is a violation of Right to life under Article 21 of the Constitution of India. It is unjust, unfair and unreasonable. Due-process of law must be followed not just during the adjudication process but also in the execution of a sentence imposed by a court. Further, the time for completion of legal proceedings in case of prisoner’s sentence to death is also extremely long. According to the death penalty report (2016), the average duration in Trial court is 5 years.

The pendency of legal proceedings in Court for more than 5 years has been considered as a violation of “speedy justice” under Article 21 of Indian Constitution, by the National Court Management Systems Committee of the Supreme Court of India.

A similar tradition has been witnessed in deciding mercy petitions also. According to Law Commission of India, while talking on the abolition of the death penalty said that when a convict on the death penalty has already spent a considerable amount of time in prison before his mercy plea is to be finally decided by the President then such delay becomes a strong factor for deciding whether the prisoner still deserves the additional punishment of execution or not. Thus the commission considered long incarceration of death row convicts as a punishment in itself.

In the Shatrugan Sinha case one Gurmeet Singh was arrested in October 1986, and convicted and sentenced to death by the trial court in July 1992. The High Court confirmed his death sentence in March 1996, and the Supreme Court upheld the conviction and death sentence in September 2005. The convict’s mercy petition was decided on 1st March 2013.By this time he had spent 27 years in Custody out of which about 21 years were after the imposition of the death sentence. This factor of long delay was ignored and his mercy petition was rejected. However, The Supreme Court in Shatrughan Chauhan commuted the death sentence of Gurmeet Singh on the grounds of the inordinate time taken by the executive in the disposal of his mercy petition.

  • Problems with the Sentencing framework: The interpretation and use of Bachan Singh doctrine in the Supreme Court have resulted in significant deviation, error and arbitrary application of the death penalty. According to Project 39A, a different interpretation of the Bachan Singh case has led to the foreclosing of the alternative option of life imprisonment.

The courts while imposing the death sentence have to record special reasons to justify the imposition of the death penalty under, Section 354(3) of Cr. P.C. In Bachan Singh, the court said that rigid formulation of special reasons would be impracticable as “judges would not be able to consider the variations in culpability”. Thus court laid down very broad guidelines, such as death sentence to be given only in “rarest of rare cases” and that the determination of aggravating and mitigating circumstances is to be based on “well-recognised principles”. But the court did not specify the rarest of rare cases and well-recognised principles. The report says that this incoherence has led to a “near collapse of Bachan Singh Doctrine.

The Law Commission in its 21st report said that the application of the death penalty is “subjective and arbitrary” in nature. It said that the rule of “the rarest of rare cases” as laid down in Bachan Singh case has been applied variedly and inconsistently by the courts and thus the imposition of the death sentence or its commutation “depends on the personal predilection of judges constituting the bench”.

This uneven application of Bachan Singh has resulted in a state of uncertainty in capital sentencing law in India which is a violative constitutional due process under Article 21 and against the equality principle.

  • The death penalty has failed to be a deterrent: According to retentionists death penalty falls under preventive or deterrent theory of punishment. According to the 35th Report of Law Commission of India, the deterrent aspect of capital punishment i.e imposing death penalty will deter other from committing it, was its “most important object”, saying it constituted as “its strongest justification”.

The death penalty has been described as Legal vengeance, “Legal vengeance solidifies social solidarity against lawbreakers and hence it is legally justified”2. Supporters of the death penalty call it a necessary evil. According to James Fitzjames Stephen” no other punishment deters men so effectively as the punishment of death”. It is because of this he provided for a death sentence. However, this fallacy that cruller punishments deter crime doesn’t take into account that there are complex social and economic factors that drive crime rates, and secondly, that criminals don’t often plan on getting caught or think through all the consequences of their actions.

  • Discriminatory: According to 2016 Death penalty report 74% of persons on the death penalty are from Economically weaker sections and the majority of these never attended school. Thus it can be deduced that Socioeconomic background and circumstances are factors that force a criminal to commit a crime. Thus the purpose of law should be to eliminate these factors. People who do not have sufficient financial means or those who for some other reason cannot fight the cause (case) to the last, suffer, and that the law proves to be unjust to them. 

  • Not a modern form of punishment: The death penalty is usually regarded as effective in states with skewed justice systems. In many cases according to Amnesty International, people are executed after being convicted in grossly unfair legal trials, on the basis of torture-tainted evidence and without adequate legal representation. In some countries like in Myanmar, Niger, Nigeria, Pakistan, Palestinian Authority, Qatar, Saudi Arabia death sentences are imposed as the mandatory or default punishment for certain offences. This implies that a Judge is not able to consider the circumstances of the crime and circumstances of the offender before imposing the punishment of the death penalty. Courts are not required to take into consideration the circumstances of the offence or the characteristics of each individual offender and the offender is simply sentenced to death without the application of any mitigating circumstances.

In the case of Furman v. Georgia, 408 U.S. 238 the U.S.Supreme Court declared that under the imposition and carrying out of the death penalty constitutes as cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the U.S. Constitution. These serious issues and considering the possibility of miscarriage of justice resulting in death, Civil rights organisations like amnesty international, the United Nations and many rights activists are clamouring for abolishing the death penalty. These groups in law are termed as abolitionist. Right to life and its various aspects in India guaranteed under article 21 of the Constitution. Death Penalty is a unique punishment. a death sentence deprives a person of the opportunity to reform themselves. Moreso it also destroys families when their sole breadwinner is sent to the gallows. It hampers their children’s education and upbringing as well.

Alternatives to capital punishment

No human being should be regarded as beyond improvement and should therefore always have the prospect of being released. – Dirk van Zyl Smit

The fundamental reason for adopting an alternative to the death penalty is the possibility to reform. Often offenders barring hardcore criminals or history sheeters repent after spending time in prison and having their liberty severely curtailed. This can be gauged from offenders behaviour in prison, his attitude towards inmates and prison authorities. 

  • Life imprisonment: An effective alternative to Death Penalty is life imprisonment. This includes Imprisonment until the natural death of a convict, with no possibility of release i.e. without parole. This is sometimes called life without parole (LWP). Similarly, there can be life imprisonment with the possibility of parole. Rationales advanced for life imprisonment, as a form of the most severe punishment, includes deterrence, retribution, restoration and incapacitation (stopping an offender from reoffending in the interests of public protection). 

However, even Life imprisonment is unnecessarily punitive in many cases, especially in cases of non-violent crimes, and does not satisfy the principle of proportionality. LWOP, in particular, raises issues of cruel, inhuman and degrading punishment and undermines the right to human dignity by taking away the prospect of rehabilitation.

Therefore LWOP also attracts similar objections as the death penalty as it undermines the inherent right to life. To lock up a prisoner and take away all hope of release is to resort to another form of a death sentence. Prisoners can leave prison only after they die. LWOP does not respect the inherent human dignity of the offender.

  • Long-term Imprisonment: Another variant of life imprisonment is the long-term sentence for a fixed number of years like 40 years in Croatia, after which the prisoner is released either with or without further restrictions (such as requirements to report to the police at regular intervals). Brazil, Colombia, Croatia, El Salvador, Nicaragua, Norway, Portugal and Venezuela also have no life sentence. However, prisoners in these countries may serve long prison sentences, which can even exceed the minimum terms that must be served in some other countries for persons sentenced to life.

  • An indeterminate term of imprisonment: Another alternative is to sending an offender to prison to serve a minimum number of years and after serving that period they can be considered for release, but the review does not guarantee a release This means that in effect prisoners stay in prison until they are considered safe to be freed, and are not given a release date. This thus involves the discretion of authorities, which might lead to unintended negative consequences. 

Prolonged detention without any hope of release results in de-socialisation, the loss of personal responsibility, an identity crisis and an increased dependency on the penal institution, will reform, especially when the offender shows apparent repentance, apart from susceptibility to mental illness, including depression and suicidal tendencies.

According to the Sentencing Project, crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be incompatible with modern principles on the treatment of prisoners and thwart the reintegration of offenders into the society as a normal person.

The sentencing project describes “a life without parole” as a “death by another name”. According to Article 10(3) states ICCPR The essential aim of the penitentiary system i.e. the prison system of a nation shall be the reformation and social rehabilitation of the offender. Thus Life-imprisonment should be subject to review of some sort.

  • Release with restrictions: If an offender is released the offender may subsequently be subjected to supervision for a limited or lifelong period. Failure to comply with supervision conditions can lead to the convicted person being returned to prison, to serve a prison sentence until the end of natural life or until a review of his conduct by appropriate authorities. Eg. According to Article 110(3) of Rome Statute individuals sentenced to life imprisonment by the International Criminal Court will not be considered for a conditional release unless they have served for 25 years of their life imprisonment.

  • Preventive Detention: Preventive Detention Means a person detained to prevent him from committing a crime. Norway has a maximum sentence of 21 years but, it can hold offenders beyond that time in preventive detention. Such detention is imposed in those cases where it is suspected that the offender could pose a particularly high risk to the public following release. It may be limited to cases where a serious violent or sexual offence was committed in the first place, and the preventive element of the sentence must (in several jurisdictions) be included in the original sentence. This form of imprisonment should not be confused with pre-trial preventive detention, where a person is imprisoned without having previously been convicted of an offence.

In Norway, once someone sentenced to preventive detention has completed a minimum term of imprisonment (between 10 and 21 years), a review is conducted and the sentence extended by five years if deemed necessary for protecting the public. This process is repeated every five years, with the possibility that some prisoners may be held for the rest of their lives.


It is worth noting that effective alternative to capital punishment is to improve the working of the criminal justice system, particularly the Police. Effective policing and reduction in time taken for investigation and presentation of the report before the Magistrate will contribute to efficient working of the criminal justice system. Furthermore, the focus should be more on reforming the offender. Prisons should focus on identifying the underlying causes to commit a crime and work towards improving those. Eg-If the poor economic condition was a factor to commit a crime then prisons must start skill training or vocational education, so as to make the offender lead a dignified life.


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