India is a country which consist of large number of crime and criminals. In India all punishments are based on the motive to give penalty to the wrongdoer. There are two main reasons for imposing the punishment, one is the wrongdoer should suffer and the other one is imposing punishment on wrongdoers to discourage other from doing wrong. There are different kinds of punishment in India based on their offences such as capital punishment, imprisonment, life imprisonment, imprisonment with fine, fine etc.

In this research we will particularly focus on Impact of capital punishment or death penalty in India. Death penalty can be simply referred in simple sense, where the life of a person is taken by the State by following the due procedure of law for the grave offence, which the person has committed. The death penalty is known as capital punishment in India. The death penalty is mentioned in Section 53 of the Indian Penal Code of 1860.

The High Court has the authority to impose the death penalty under Section 368 of the Code of Criminal Procedure. The death penalty is applied in situations where heinous crimes are committed and the public's collective conscience is so shocked by the crimes that it expects the court to execute the offenders, but this death penalty is not new to this contemporary world, where it got its existence from ancient time, which stands to be immortal. It was practiced in all centuries of human life society.

This 21st century has made something special, where it openly confesses that time has come for abolishment of death penalty, by making up satisfactory opinions and arguments and posing certain conditions on which death penalty should be imposed. This has become a debatable issue, where some of the developing countries has made concerned to this issue and has abolished death penalty.

India is a well – known developing country, it didn't sort out any conclusion in abolishment of this capital punishment, but it has given in rarest of rare cases as far as cases are concerned. Though there are many enactments and punishments prescribed in law, concept of death penalty plays a vital role in criminal justice system. Imposing death penalty has led to many issues in current society. Hence, this paper highlights and stretches out the overall view in death penalty as far as India is concerned.

There have been eight executions in India including the 4 convicts of the Nirbhaya Rape case and according to NCRB data there are about 2500 death penalties which have been granted since 2000[1].The use of Death penalty is considered to be constitutionally valid only if it is used in rarest of the rare cases. Deterrence is the face of capital punishment. India is a firm believer in this aspect, while 70% of the countries in the world has already abolished death penalty[2].

Historical Background
The death penalty is an ancient sanction. There is almost no country in the world where the death penalty has never been used. The history of human civilization shows that death penalty has never been desearted as a means of retribution [5]

Under the laws of Draco (fl. 7th century BCE), capital punishment for murder, treason, arson, and rape was commonly utilized in ancient Greece, however Plato thought that it should only be used for the crimes which cannot be corrected. The Romans employed it for a variety of transgressions as well, though citizens were excused for a brief while during the republic[6]

This finds support in the observation made by Sir Henry Marine who stated that "Roman Republic did not abolish death sentence though its non-use was primarily political[7]

Capital Punishment In India

A careful studies and observations of the debates in British India's Legislative Assembly reveals that no issue was raised about capital punishment in the Assembly until 1931, but 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 before Independence was clearly stated twice in 1946 by the then Home Minister, Sir John 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[8]".

At the time of independence, India adopted some British colonial laws. The Code of Criminal Procedure, 1898 (CrPC. 1898') was enacted by the government, and 1860 Indian Penal Code ('IPC'). The IPC specified six punishments, including death, that might be imposed under the statute. Section 367(5) of the CrPC applies to offences where the death sentence is an option. In 1898, courts were obligated to record the reasons why they opted not to impose a penalty.

The Parliament repealed Section 367(5) of the CrPC 1898 in 1955, dramatically affected the law of death penalty. The death penalty was no longer the norm, and judges recognized this. There was no need for specific justifications for not implementing the death penalty in circumstances where the punishment was mentioned in Indian Penal code.

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 justification for the sentence awarded, and, in the case of sentence of death, the special justification should be mentioned.

This was a significant change in the following the 1955 amendment (where terms of imprisonment and the death penalty were both possible in a capital case), and a reversal of the position under the 1898 law (where the death sentence was the norm and reasons for any other punishment had to be recorded). Judges were now required to mention special reasons for imposing the death penalty.

These amendments also introduced the possibility of a post-conviction hearing on sentence, including the capital punishment, in Section 235(2), which states:

If the accused is convicted, the Judge will, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law[9].

Capital punishment is currently accepted as a valid death penalty in India. The death penalty has been declared for heinous crimes. The Indian judiciary asserts this by emphasizing Article 21 of the Indian constitution, which states that "protection of life and personal liberty" is important. This is article is about "No person shall be deprived of his life or personal liberty except in accordance with the procedure established by the Constitution law". According to this article, every Indian citizen has the right to life. In India, the IPC provides for the death penalty as a punishment of Criminal conspiracy, homicide, waging war against the government, mutiny, dacoity with murder, and anti-terrorism are all punishable offenses.

The Indian Constitution according to article 72(1) allows the President to commute capital punishment. When the issue of the death penalty or capital punishment arises, this article comes into play, instigating the judiciary members to re-examine the case and think again before imposing a death sentence or punishment. Furthermore, Article 14 of the Constitution declares "equality before the law and equal protection of the laws," which means that no person shall be discriminated against unless the discrimination is required to achieve equality. The concept of equality incorporated in Art.14 finds echo in the preamble to the constitution.

Capital sentence, it seems, is therefore, an anti-thesis of one's right to life. It is an inseparable fact that there is nothing in the Constitution of India which expressly holds capital punishment as unconstitutional, though there are provisions that suggest that the constitutional scheme accepts the possibility of capital punishment. However, there are several provisions in the constitution such as the preamble, the Fundamental Rights and Directive Principles which can be relied upon for challenging the constitutionality of capital punishment.

Capital punishment in Indian scenario started from Indian penal code, where The Indian Penal Code, 1860 (IPC) is the Public Law and substantive Criminal Law which defines crimes and prescribes punishments. Section 53 of the IPC provides for death sentence and imprisonment for life as alternative punishment.

Is Death Penalty effective for the deterrence of crime?

There are three types of theories behind capital punishment in India:

1. Deterrent theory: Deterrence is a strategy for preventing people from breaking the law by instilling fear or the threat of punishment. The deterrent theory assumes that all people are reasonable and that they would commit a crime only if they believe the benefit they would reap from the crime would outweigh the pain they would feel from the criminal act's consequences. The presumption is that when the penalty is as extreme as death, the deterrent effect is strengthened; no one in their right mind will commit an act that might result in the loss of life; the instinct of self-preservation is innate, biological, and insurmountable under normal circumstances. For deterrence to work, certain prerequisites must be fulfilled:
   • That potential offenders are aware of which crimes are punishable by death;
   • That potential offenders perform a cost-benefit analysis before or while committing the crime and consider the death penalty as a severe and significant cost.
   • The future criminals believe that if they commit the crime, they will almost certainly face the death penalty.
   • That future criminals are risk-averse rather than risk-takers.
   • That future criminals weigh the risks more heavily than the rewards and decide not to commit the crime.
      
2. Fallacies of Knowledge: Knowledge fallacies lead to the belief that criminals are unaware of the consequences of the crimes they plan to commit. As a result, they are not deterred by harsh punishment. Deterrence, on the other hand, suggests that everyone is aware of the legal consequences of committing a crime. There is ample evidence that both the general public and future criminals are unaware of the punishment that could be imposed as according to Project 39A, research report, 17.8% of prisoners who were sentenced to death never went to school, 51.1% did not complete secondary, only 31.2% of prisoners completed secondary or went on to pursue higher education or completed undergraduate, postgraduate, or any professional course, etc. So it can be concluded that only a small number of people were educated. Thus, Knowledge Fallacies go contrary to the assumption.
    
3. Fallacies of Rationality: Deterrence theory is predicated on the premise that future criminals are reasonable decision-makers. However, many crimes are committed in fits of rage or indignation, or by people who are mentally depressed, or by people who are motivated by powerful emotions like vengeance or fear. Deterrence is unlikely to work in these situations because the actor is unlikely to offer due weight, or even a cursory consideration, to the consequences that may be levied on him/her as a result of his/her actions; the emphasis is on the emotion that is driving his/her state of mind.

Preventive theory:

The preventive principle aims to deter a crime by immobilising the perpetrator and to take steps that the accused person does not repeat the crime after the enjoyment of Punishment.

The following is a list of the different types of preventive punishment:

• By instilling a fear of retaliation
• By preventing the criminal from committing any other crime, either permanently or temporarily.
• Through re-education and/or reformation. As stated earlier that fallacies on knowledge and rationality are just assumptions so it can be concluded that the death penalty is not in accordance with the above three points.

Reformative Theory:

The idea behind the principle of punishment is not only to offer justice to those who have been wronged, but also to uphold society's protection and safety. Punishing a criminal does not only mean torturing or humiliating him; there is a greater goal to be accomplished, which is to create a peaceful society. This is known as reformative theory. He may have committed a crime in unusual circumstances that would never happen again.

As a result, during his imprisonment, an attempt should be made to transform him. The aim of punishment should be to motivate the offender to change himself. During his incarceration, he must be educated and taught some art or business so that when he is released, he will be able to restart his life.

Project 39A[12], a research project undertaken by NLU Delhi, has collected data on death penalty cases in 2019. The session court sentenced 102 people to death; the high court confirmed 26 death penalties, 56 were commuted, 32 were acquitted, and 15 were remitted; and the Supreme Court confirmed 6 death penalties, 10 were acquitted, 17 were commuted, and 2 were remitted.

As a result, only 6 death penalties have been upheld by the Supreme Court. A total of 42 death penalties have been overturned by both the high court and the supreme court, which is a significant amount. If these cases had not been contested in higher courts, innocent persons may have been convicted. So, it is necessary to have a chance to appeal to the accused, as the session courts are not so accurate.

The death penalty is the process by which an individual's life is taken away. As a result, imposing the death penalty is neither a quick nor simple process. As the Indian Criminal Justice system is based on the belief that 'A Hundred Guilty Should Be Acquitted But One Innocent Should Not Be Convicted' and The harsher the punishment, the more the evidence'. After examining the preceding tables and statistics, the time it takes for death penalty cases, and the process for filing a review. There is a petition and a curative petition. As a result, the debate in India regarding death penalty should not be restricted to executions; it should also include the length of time it takes to get a fair trial and the protocols.

It indicates that a convict's death sentence can be commuted to a protracted process because there is an obligatory provision for appeal in high courts, a provision for appeal in the Supreme Court, and then the accused have the opportunity to file a petition in the Supreme Court Before the governor or president, file a mercy petition, followed by four petitions. As a result of the death sentence trials, many additional trials have been delayed, and the number of cases has increased rather than declines.

The National Judicial Data Grid says (NJDG)[13], as of December 26, there are already 26603243 criminal cases pending in India. 2020.Furthermore, a study by the Death Penalty Report[14]reveals that ten of the eleven nations that impose the death penalty have abolished the death penalty have shown a fall in crime rate. It's also fascinating to look at how long it takes for court proceedings to be concluded in cases where individuals have been sentenced to death. The cost of the criminal justice system on inmates and their families must be weighed when considering the consequences of lengthy court proceedings.

Moreover, there were only 5 execution of death penalty from 2000-2015, where 2063 were sentenced to death by trial courts. It can be noted that a very small number are executed, so the question arises if the death penalty is not going to be executed even after a long procedure, then what purpose is it serving, also it is not a deterent factor. Hence, death penalty does not reduce crimes.

Capital punishment on rarest of rare case-it is just and fair?

The constitutionality of the death penalty was challenged in numerous cases.

In Jagmaohan singh v. state of Uttar Pradesh[15]
A five-member The Supreme Court bench ruled unanimously that the death penalty was constitutional and did not violate Articles 14, 19, and 21 of the Constitution. Because no protocol was provided, the validity of the death penalty was questioned in this case on the grounds that it violated Articles 19 and 21. It was argued that the process described in the Cr. P.C. only applied to determining guilt and excluded the application of the death penalty.

The Supreme Court declared that the judicial process must be followed before deciding to execute someone. It was mentioned that the judge considers the facts, the evidence, and the type of offense committed when deciding whether to apply the death penalty or the life sentence.

In case Rajendra prasad v. state of Uttar Pradesh[16] The death penalty violates articles 14, 19, and 21 of the Constitution, according to Justice Krishna Iyer. He continued by saying that two requirements had to be met in order for the death penalty to be implemented:

• The unique rationale for using the death penalty in a case had to be documented;
• The death penalty should only be applied in exceptional situations.

The topic was revisited in Bachan Singh v. State of Punjab[17] case, one of the most significant cases raising the legitimacy of the death penalty, gave rise to the idea of the "rarest of rare cases." This was the case that gave rise to the doctrine of the "rarest of the rare cases" and continues to be the subject of discussion regarding whether the death penalty is consistent with Article 21 of the Constitution.

While upholding the death penalty, the Supreme Court stated that it is incompatible with a genuine and unwavering respect for human life to take a life through the use of the legal system. That should only be done in extremely rare circumstances, such as when there is no doubt that the other option is closed off. Judges have always wondered under what conditions the death penalty can be applied? what crimes are punishable by it? and what constitutes a crime?

While upholding the death penalty, the Supreme Court stated that it is incompatible with a genuine and unwavering respect for human life to take a life through the use of the legal system. That should only be done in extremely rare circumstances, such as when there is no doubt that the other option is closed off. Judges have always wondered when and under what circumstances the death penalty can be applied, what crimes are punishable by it, how much of an impact it has on the punishment, and whether the victim will receive justice.

It was also established that the Court must give equal weight to the criminal and the crime when determining whether or not there are "special reasons" in a given case. Investigating the aggravating or mitigating factors is necessary. When determining the appropriate punishment, factors such as the accused's age, mental state, and whether or not the act was carried out at the behest of a superior must be taken into account.

In this case, Justice Bhagwati was the only one to disagree, but the problem was that his ruling was rendered just two full years after the verdict was rendered. Thus, a few of his most important objections to the death penalty were never raised. Furthermore, he felt that Article 14, which protects equality before the law, is plainly broken by this very idea.

Furthermore, it is against Articles 19 and 21 because there is no established procedure for when the state may take away someone's life or personal freedoms. In addition to discussing the cruelty and irresponsibility associated with the death penalty, Justice Bhagwati demonstrates through reason and statistical evidence why the death penalty fails to achieve any of the three penological objectives.

Mithu v. State of Punjab[18]
was another instance where the mandatory death penalty under Section 303 was ruled to be invalid due to constitutional violations. The section was founded on the idea that a person too cold-blooded and unreformed to be permitted to live is a criminal who has been given a life sentence and is still capable of killing. Section 303 was removed from the IPC after the judges in Mithu's case ruled that it was unconstitutional under Articles 14 and 21 of our Constitution.

T.V Vatheeswaram v. State of Tamil Nadu[19] & Sher Singh v. State of Punjab[20]
The Supreme Court had to decide whether the long delay in carrying out the death penalty was sufficient justification for commuting it to life in prison. The majority in the second case disagreed with the first, which established that the convict had sufficient grounds to invoke section 21 and receive a lighter sentence in such a circumstance.

Machhi singh v. State of Punjab[21]
In this case seventeen people—men, women, and children were shot down in their homes at night in five separate incidents, and four men received death sentences from both the sessions court and the high court. A family dispute served as the motivation. The death sentences of the three of the four individuals were upheld by the Supreme Court. In order to clarify the "rarest of the rare rule," which outlines circumstances in which the imposition of the death penalty may be appropriate, Justice Thakkar, speaking for the court, felt compelled to try to define the "rarest of rare" case and determine sentence. M.P. Thakkar, the judge, made some remarks.

• Manner of commission of murder
• Motive for the commission of the murder
• Nature of crime
• Magnitude of crime
• The personality of the victim of the murderer

The Rarest of Rare doctrine, which holds that the death penalty should only be applied in rare or extraordinary circumstances where the criminal's life poses a threat to society, lacks a specific legal definition. This doctrine can only be applied in cases where the following elements of the crime are partially considered: the crime's scope, nature, and perpetrator as well as the victim, motive, and mode of crime commission. Only when each of these factors is proven to be true can the death penalty be applied.

Conclusion
I would like to conclude that after doing a research on such a debatable issue that is "Capital Punishment and its deterrent effect or not". "Our country penal code provide for capital punishment for extensive range of offence. But sorrowfully, the death penalty has in no way reduced these crimes in the country. While over 66% of the countries in the world abolishing death penalty, but India still retains it, largely believing it to have a deterring effect. The retaliatory system is based on three major theories of retribution, deterrence and rehabilitation.

Deterrence and retribution, where the society hassle revenge, fail to grant sufficient reasons for the use of the death penalty. It is evident that killing a assassin has not at all stopped from a new killer budding. Furthermore, the death penalty neglects the analysis or reformative theory from the very beginning. India desires to move from a retributive model to reformative-punitive system. Killing is and has never been a elucidation.The answer lies in the efficient system to take in for questioning the perpetrators and efficient prosecution so that no one escapes from the hands of law.

If that happen, life imprisonment will adequately accomplish the deterrence and retributive theory; the death penalty will not serve up any additional rationale. It is high time that India renews its concentration towards the abolishment of the death penalty.

Instead of death penalty there many new forms of punishments are made which have the deter effect also:

1. Externment
2. Compensation to victims of crime
3. Public Censure
4. Community services
5. Disqualification from holding public office and contesting Elections
6. Amputation of limbs in case of Rape

From my point of view to creating a deterrence in people death penalty is not that good option because the one who can take life without thinking it is damn sure that he doesn't scared of death penalty so to create a deter effect in people we should have to choose the multiple approach theory in this theory the offender get insulted in public, and which is more shameful than death penalty and in our country proceedings of awarding punishments are very slow so in order to get immediate relief we have think of these kind of punishments which are deter also.

There are many cases which are brutal but they were not awarded with the death penalty as the only reason given by the judiciary that the accused will not going to harm public at large. Therefore, instead of capital punishment they were awarded with life imprisonment. In case Shiv Balakal v. State of Gujarat[22] where accused was held guilty of committing rape of a teenager girl where court considered it as inhuman but does not provide capital punishment as it stated that the accused was a labour and the facts or circumstances nothing established that it will going to be a trouble maker for the society.

Same as in Absar Ahmad Case[23]where accused chopped his mother head where court held that as this act was committed due to poverty and he is not trouble for society so should be award with life imprisonment. There are many cases discussed above which were favouring public at large

End Notes:

1. 2500 Death Penalties Since the Year 2000, Only 4 Executions
   Sai Vangala-Pavithra M - https://factly.in/2500-death-penalties-since-the-year-2000-only-4-executions/
2. International
   https://deathpenaltyinfo.org/policy-issues/international
3. International covenant on civil and political rights 1979 | Equality and human rights commission.
4. Economic and social council
5. Op. cit. Capital Punishment by Dr Subhash C. Gupta, 2000, p. 1
6. https://www.britannica.com/topic/capital-punishment
7. Op. cit. Capital Punishment in India by Dr Subhash C. Gupta, 2000, p. 1
8. Ibid. pp. 104-105.
9. India. Law Commission of India, Report No. 262 on Death Penalty, August 2015, pp. 17-18.
10. Law Commission of India, "262nd Report on The Death Penalty" (August, 2015)
11. NLU Delhi, "Coverage of project" 23 (2019).
12. NLU Delhi, "Death penalty India report summary" 11, 12 (2019).
13. NJDG Pending Dashboard, India, available at https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard (last visited on October 26, 2023)
14. Study: International Data Shows Declining Murder Rates After Abolition of Death Penalty, USA, available at https://deathpenaltyinfo.org/news/study-international-data-shows-declining-murder-rates-after-abolition-ofdeath-penalty (last visited on October 26, 2023)
15. (1973) AIR 947, SC 541.
16. (1979) AIR SC 916
17. (1980) AIR SCC 898
18. 1983 (2) SCC 277
19. (1983) 2 SCC 68 (Vatheeswaram)
20. (1983) AIR SCC 957.
21. Shiv Balakal v. State of Gujarat AIR 1985 SC 48. Retrieved December 31, 2013 from http://www.indiankanoon.org
22. Absar Ahmed v. State of Bihar AIR 1985 SC 48. Retrieved December 31, 2013 from http://www.indiankanoon.org