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Capital Punishment: An Uneasy Relationship Of The Indian Justice System With The Administration Of The Death Penalty

As courts decided the question of capital punishment of convicts of Mukesh & Anr vs state for NCT of Delhi & Ors (2012),[1] Generally known as Nirbhaya rape and murder case. All the convicts were hanged to death on 20th March 2020. The lack of the Indian Justice System to deal with all major crimes equally effectively and therefore the desire for uniformity within the sentencing process by the Court bourgeoned imbalance and criticism for the Indian justice system.

Capital punishment is an old bird in the Indian constitution and numerous sentences have been pronounced by the constitutional courts as the session courts, high courts, and the supreme court. Nathuram Godse [2] and Narayan Apte were the first convicts to be hanged in independent India.

The Indian position on the death penalty has, of late, emerged as an interesting area to check questions regarding legal code within the constitutional framework. While, world-over, there is an unmistakable march of law towards full-fledged abolition or a de facto moratorium on execution, the Indian legislature continues to grope in the dark.

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The need for such criticism is truly relevant because the larger picture gets asymmetric and lop-sided and presents a poor reflection of the system of criminal administration of justice. this is a matter of concern for the Courts and must be remedied.

This paper, accordingly, analyses the fact that imposition of the death penalty in India is as uncertain as in any other system prevalent in other countries is neither in doubt nor in dispute and argues the existence of an uneasy relationship of the Indian justice system with the administration of the death penalty. To do so, the paper searches for the Indian constitution, statutes, criminal code of India (CRPC), Indian penal code (IPC) and various secondary sources to study the association of the Indian justice system with that of the death penalty through analytical methods. Comparisons are done concerning the various landmark cases and the analytical method will come with an outcome of the result done after the research.

The paper proceeds in three sections. The first section establishes capital punishment concerning article 21, as snuggled within the reading of Part III - FUNDAMENTAL RIGHTS of the Indian constitution. The second section discusses capital punishment within the historical framework of the Indian legal system and deliberates on the obligation of the Indian judicial system in the context of the death penalty with the help of the theories of punishment. The last section of this paper discusses and analyses the global trends on capital punishment and compares it with the Indian position with the help of International and Indian statutes and case laws.

A. Liberty Over Barbarism
Barbaric attitude suggests not even a single act that an individual can commit which would make him lose his right to live.'

Capital Punishment is one of the important parts of the Indian criminal justice system. Capital punishment, or execution,' is an institutionalized practice designed for deliberately executing persons in response to misconduct and following an authorized, rule-governed process to conclude that the person is liable for violating norms that warrant execution. The Indian judicial system has struggled with the constitutionality of capital punishment and with delineating the circumstances during which it is to be granted.

A.1. Establishing Capital Punishment
Article 21 of the Indian Constitution No person shall be deprived of his life or his personal liberty except according to the procedure established by law.' [3]

This article of our constitution guarantees to every citizen of India the right to life. The Menaka Gandhi vs Union of India' [4] case asserted that any law that is established under this article (Article21) must be fair and reasonable. This was the grounds for declaring the death penalty as constitutional in 1980 Bachan Singh vs the state of Punjab.'[5] It stated:
- A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.' [6]

It was therefore established that a state for its punitive reasons can make a person or individual deprived of his liberty or life. Here the contention arises, and we can say that a convicted person's life remains in the hands of the court. This lack of an established framework helps to prove that the procedure of law is not fair or just.

While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who commit heinous crimes, the Supreme Court in its judgement too validated the fact that the death penalty is indeed a brutal and barbaric form of punishment and therefore established the rarest of rare doctrine.

Thus, to sum up, it is evident from a study of the above-cited case laws that capital punishment is regarded as constitutional. Thus, the relationship between capital punishment in India is intrinsically related to the Part III FUNDAMENTAL RIGHTS.

A.2. What Law Says
The court has laid down these rules and criteria of giving capital punishment in the cases of heinous crimes. However, the question is whether capital punishment can be done away with in India altogether. The code of criminal procedure explains the procedure under which capital punishment is awarded. Firstly, after Sessions Court's judgment regarding the death sentence shall be submitted to the High Court for confirmation under Section 366.

Then, the court may make inquiries or take into consideration evidence, both existing and additional as provided in Section 367. The High Court then passes the order as per Section 368 which needs to be signed by at least two High Court judges as mentioned in Section 369. In case of conflict in opinion, the case shall be referred to a third judge and his/her opinion shall decide the final decision as per Section 370 read with Section 392 of the Code of Criminal Procedure.

Finally, after the confirmation, or any other decision, it is sent to the Sessions Court by the concerned officer as provided in Section 371 of the Code of Criminal Procedure.

There are two methods of execution in India and they are:
  • Hanging:
    All the death penalties in India are carried out by hanging. After independence, Godse was the first person to be executed in India by the death penalty in the case of Mahatma Gandhi. India's Supreme Court suggested the death penalty should only be imposed on the rarest of rare cases in India.

The primary mode of death sentence as given under Section 354(5) of the Criminal Code of Procedure, 1973:
  • When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.[7]
  • Shooting: Under the 1950 Army Act, both hanging and shooting are listed in the military court-martial system as official methods of execution.

B. Rot In The Root[8]: The Need For Revisiting The Death Penalty
One of the fundamental issues about the judicial condemnation of a man to death is regarding the degree of errors and omissions that the trial process is susceptible to.
Mr Raymond Bonner succinctly commented on the stark reality behind the criminal justice system in America.[9] It is one thing to punish imprisonment wrongly, but it entirely different to wrongly direct the life of a person to be taken.

This is especially to be noted in the context of the appellate courts, which have to make their decision entirely based on the evidence before them and have no scope for probing into the truth outside such evidence. It is in this context that the question of the reliability of the trial process, which has the power to conclude that a person deserves to die, assumes significance. The situation in the United States needs no elaboration. It is a routine matter in that country that people are sentenced and executed after trials riddled with deficiencies and even the United States Supreme Court turns a blind eye towards such cases.

The question is whether we are in a position to say something positive about the Indian judicial system on this count. The answer, unfortunately, would be a big, emphatic no.

When it is an accepted position even in India that trial processes are not immune from errors, mistake, and deficiencies, can we confidently hand the hangman's noose to the trial courts, trusting that they would exercise their discretion to direct the life of the convicts to be taken properly? Does our legal and precedential framework surrounding the imposition of the death penalty possess enough consistency and certainty to prevent injustice in cases of this nature? Again, the answer will have to be rendered in the negative.

It is probably to that end that the imposition of the death penalty in India should be revisited.

Even the former President of India, Mr A.P.J. Abdul Kalam believed that the concept of the death penalty deserves a debate in the Parliament as regards its continued maintenance in the statute books.[10]

B.1. Historical Context
A careful study of debates in British India's legislative assembly discloses that till 1931, nobody raised the issue regarding death punishment. In 1931, Shir Gaya prasad Singh wanted to introduce a bill that wanted to provision of death punishment from the Indian penal code. Nevertheless, the bill was rejected.

The IPC prescribed six punishments that could be imposed under the law:
  • Death
  • Imprisonment for Life
  • Penal Servitude
  • Imprisonment
  • Forfeiture of Property
  • Fine.
In 1955, the Parliament annulled Section 367(5), CrPC 1898 which stated that. 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, as they earlier needed.

The Code of Criminal Procedure was re-enacted in 1973 (�CrPC'), and significant changes were made, particularly to Section 354(3) of CrPC:
-  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.'[11]
This was a noteworthy amendment from The Code of Criminal Procedure sections in 1955 and 1898 Now, judges are required to provide special reasons for why capital punishment is awarded.

B.2. Loopholes in Judicial System
The Bachan Singh case of 1980 is important not only to understand that the bulk of judgments of the Supreme Court about the constitutionality of the death penalty continues to regulate the legality of the matter, with no challenge insight but it is equally significant to comprehend the framework in which the case came up for hearing before a Constitution Bench.[12]

The Supreme Court in Bachan Singh identified the major question to answer was:
whether the sentencing procedure provided for in Section 354(3) CrPC invested the court with unguided and untrammelled discretion and allowed death sentences to be arbitrarily or freakishly imposed.[13]

The judiciary has also been divided on the issue of the desirability of the death penalty.[14] Bhagwati held that not only was the execution against national and international norms and thus unconstitutional, but he also acknowledged that in exercise the execution process created a context of arbitrariness which it had been unsafe to supply powers to any set of judges since a fool-proof manner of administering criminal justice systems could never be developed. [15]

Bhagwati also emphasised on the reality of different attitudes and responses of judges to issues that were brought before them. He pointed out:
The views of judges as to what may be regarded as special reasons are bound to differ from judge to judge depending upon his value system and social philosophy with the result that whether a person shall live or die depends very much upon the composition of the Bench which tries his case and this renders the imposition of death penalty arbitrary and capricious.'[16]

This is a clear recognition of the inherent problems within the administration of criminal justice that render the system of sentencing individuals to death arbitrary. Unfortunately, many of the judges did not support this view and held the death penalty to be constitutional.

Thus, the holistic reading of the constitution's PART V helped to link PART V, PART III and capital punishment and help to understand the overall larger picture.

B.3. Cases Dealing with the Death Penalty in India
  1. MITHU VS STATE OF PUNJAB:[17] under this case supreme court reappealed section 303 of the Indian penal code which pitched for the mandatory capital punishment for the accused.
  2. BACHAN SINGH VS STATE OF PUNJAB:[18] the doctrine of rarest of the rare case was pronounced in this case, which means that capital punishment can be awarded only in the rarest of rare cases.
  3. JAGMOHAN VS STATE OF UP:[19] the first-ever case in India which questioned the constitutional validity of the death penalty.

B.3.1 Incarnation of the doctrine of Rarest of Rare Case
The principle of the rarest of rare' has been decided by the supreme court in the landmark judgment of Bachan Singh vs the State of Punjab.[20] Supreme Court formulated certain guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is indisputably shut.[21]

Section 302 of the Indian Penal Code, 1860 propose the death penalty or life imprisonment as a punishment for murder. the provision of the death penalty as an alternative to murder cannot be deemed in the public interest. The denial of freedom cannot be termed as the direct and unavoidable consequence of law instead it is related to the order of conviction which may or may not come into force. Thus, article 19 of the Indian constitution is not fulfilled in section 302 of IPC.

Supreme Court from Bachan Singh V. State of Punjab improves the statute by the ruling that the death penalty will be awarded only on the rarest of rare crimes, where another remedy is unquestionable.[22]

In 1980 again the constitutionality of the death penalty came as a question before the court in Bachan Singh v. State of Punjab(1980), the Supreme Court emphasized two questions to be considered:
  1. Was there any uncommon about the crime?
  2. Circumstances of crime show its brutality to such an extent that the accused must be penalized with the death penalty. [23]

After this emphasis court describes the doctrine of rarest of rare cases which require uncommon crime and brutal circumstances of the crime. Also, while interpretation of section 354(3) of Cr.PC, under special reason requirement court, concluded that:
- A real and abiding concern for the human life dignity postulates resistance to taking a life through laws instrumentality. That ought not to be done in rarest of rare case when the alternative option is unquestionably foreclosed.'[24]

Honourable court more clarifies the Doctrine of rarest of the rare case from the landmark judgement in Macchi Singh and ors v. the State of Punjab[25], this case reflects the brutality of the crime. The court itself in the position of supporting the public at large whose response is so shocked that they want the award of the death penalty against the accused through the power holder of judiciary irrespective of their personal opinion.[26]

The term rarest of rare focuses to be imposed on an exceptional case with a special reason. This principle has been divided into 2 parts [27] i.e.
  1. Aggravating Circumstances[28]: - A court may impose the death penalty under its discretion if
    • If the murder was pre-planned and involved brutality.
    • Murder involved immorality
    • Murder of an armed force or police officer or any public servant committed with such member on duty.
  2. Mitigating Circumstances[29]: - Court shall take the following circumstances
    • The offence committed under mental or emotional disturbance.
    • Minor shall not be rewarded with capital punishment.
    • Believe that the accused was morally justified while committing an offence.
    • The crime was committed under duress.

      After balancing both aggravate and mitigating circumstances and by following the principal court concluded that in the case of the death penalty, the scope of introduction of new facts or law in that particular case is also limited. If the punishment has been executed, it is irrevocable.
B.4. Resolving the Challenge � Theories of Punishment
The State must punish the criminals to maintain law and order in society. In the past, there was not any specific law or order for such crimes and the quantum and extent of punishment was largely dependent on the King. With time modern theories of punishment were developed and voluntary submission of our rights and power to maintain law and order was given to the state.

Whenever the court awards a punishment there is a theory or proposition based on which it passes its Judgment. These theories are known as: Theories of Punishment' and are generally of five types:
  1. Deterrent Theory: Punishment is a deterrent when it aims to teach a lesson to others.
  2. Retributive Theory: Retribute means to return. The main aim of this theory is to make the convict feel the suffering and pain.
  3. Expiation Theory: Expiatory theory of Punishment is based on the ground of morals. According to this theory repentance or expiration by the offender itself is a punishment.

B.4.1 Criminological Approach of Capital Punishment in India
There are two types of theories of punishment in capital punishment, which India mainly follows:
1. Reformative Theory: an eye for an eye turns the whole world blind' by Mahatma Gandhi. This line is the thrust of the reformative theory of punishment. The aim is to reform the behaviour of the criminals. The thought behind this theory is that no one is a born Criminal. Instead, it is a product of the social, economic, and environmental scenarios. if they are educated and trained, they can be made competent to behave in society. [30]

2. Preventive Theory:  prevention is better than cure,' This theory believes in keeping the offender away from society. The offenders are punished with death, imprisonment of life, etc. [31]

Many countries all around the world have abolished the death penalty and some countries abolished the death penalty for some crimes.
Death Penalty status is classified into 4 categories:
  • Abolitionist for all crimes
  • Abolitionist for ordinary crimes
  • Abolitionist de facto
  • Retentionist

1.Abolished death penalty for all crimes 106
2.Abolished death penalty only for ordinary crimes 8
3.Abolished death penalty in practice 28
4.Retentionist countries 56

C.1 Global Trends
Excluding China, the latest Amnesty report records At least 657 executions were known to have been carried out worldwide in 2019. it can be deduced that the gap between actual executions and people sentenced to death is also increasing. In contrast to the execution figures (657 known executions), at least 2307 people were known to have been sentenced to death in 56 countries in 2019. Amnesty International, in its 2019 report, pegs the number of people sentenced to death at 632 in Pakistan.[32] At least 1,227 new death sentences across 17 countries were known to have been imposed, a 12% increase compared to 2018.[33]

The following figures provided by Amnesty International shed some light on the number of people sentenced to death:
C.2 Indian Position
The Indian position on capital punishment has surfaced as one of the most interesting areas to study within the constitutional framework. world-over, there is an unmistakable march of law towards full-fledged abolition or moratorium on capital punishment, the Indian legislature continues to grope in the dark. [35]

It cannot be ignored that the judiciary has been continuously reviewing the death sentencing provisions from many legislations that prescribed mandatory death sentencing. However, the legislature, it seems, is not able to let go of it.[36]

India has consistently stood against the abolition of capital punishment at the international forums. while voting against the Draft UN General Assembly Resolution for suspending the use of the death penalty in 2010, the Indian justification for the denial vote was that the - " India could not support the draft as it ran counter to its statutory law." [37]

C.2.2 Indian Statues

The overall climate on the issue of the administration of capital punishment has had some particularly significant developments. The death penalty has been practised in India from ancient time. The paper tries to accommodate the arguments which have included the constitutional validity of the punishment and the aspects which have held capital punishment with a tight grip.
After analysing the global trends, it is safe to predict that globally where capital punishment remains in the statute books will be removed with the global movement against the brutal behaviour of the punishment.

The supreme court of India has accepted and acknowledged the fact there is a class bias in capital punishment. In his dissenting judgment in Bachan Singh, Justice Bhagwati commented,
- "death penalty has a certain class complexion or class bias in as much as it is largely the poor and the down-trodden who are the victims of this extreme penalty. We would hardly find a rich or affluent person going to the gallows the judge concluded, There can be no doubt that the death penalty in its actual operation is discriminatory, for it strikes mostly against the poor and deprived section of the community ... this circumstance also adds to the arbitrary and capricious nature of the death penalty and renders it unconstitutional.'

The absence of detailed studies that track discrimination within the criminal justice system more generally and the implementation of the death penalty more specifically, should not be an excuse for ignoring this terrible injustice.[38]

  1. Mukesh & Anr v. State for Nct Of Delhi & Ors., 6 Supreme Court Case part 1 (2017), order dated 5 May 2017.
  2. Nathu Ram V. Godse vs The Crown, criminal law journal 834 (1949),order dated 24 March 1949.
  3. The Constitution of India, article 21.
  4. Maneka Gandhi v. Union of India, 2 supreme court Report 621, (1978).
  5. Bachan Singh vs State of Punjab, 2 supreme court cases 684, (1980), order dated 9 May 1980.
  6. Bachan Singh vs State of Punjab, 2 supreme court cases 684, 730 (1980), order dated 9 May 1980.
  7. The code of criminal procedure, act 354, 5 (1973).
  8. Sinha, S.B. To Kill or Not to Kill: The Unending Conundrum.' National Law School of India Review, vol. 24, no. 1, 2012, pp. 129. JSTOR, Accessed 22 Nov 2020.
  9. In Anatomy of Injustice, Mr. Bonner deals with the case of Edward Lee Elmore, a mentally retarded African American, who was alleged to have raped and murdered one elderly white female and burglarised her residence. in 1982. See State v. Elmore, 308 S.E.2d 781, 785-86 (S.C. 1983) [US Supreme Court]; Elmore v. South Carolina, 476 U.S. 1101 (1986) [US Supreme Court]; Elmore v. Ozmint, 661 F.3d 783 (2011
  10. Death Penalty Only in Extreme Cases: Kalam, , CNN IBN Video Interview, available at http:// -only-in-extreme-cases.
  11. The code of criminal procedure, section 354, sub- clause (3).
  12. Batra jeet. Bikaram, Lethal Lottery: The Death Penalty in India 14 (International Secretariat of Amnesty International. 2008).
  13. Bachan signh v. state of Punjab, Cr.LJ 1, (1982).
  14. Sinha, S.B. To Kill or Not to Kill: The Unending Conundrum.' National Law School of India Review, vol. 24, no. 1, 2012, pp. 129. JSTOR, Accessed 22 Nov. 2020
  15. Batra jeet. Bikaram, Lethal Lottery: The Death Penalty in India,16 (International Secretariat of Amnesty International), 2008.
  16. Batra jeet. Bikaram, Lethal Lottery: The Death Penalty in India 17 (International Secretariat of Amnesty International. 2008
  17. Mithu v. State of Punjab, AIR, SC 473, 1983.
  18. Bacchan Singh v State of Punjab, Cr.LJ at pp. 653- 657 (SC),1980.
  19. Jagmohan Singh v. State of U.P AIR 1973 SC 947.
  20. Bacchan Singh v State of Punjab, Cr.LJ at pp. 653- 657 (SC),1980.
  21. Express Web Desk, SC upholds death sentence for 2012 Delhi gangrape convicts: How they can appeal against it | India News,The Indian Express (last visited in 10 December 2020).
  22. Ibid 8.
  23. Ibid 8.
  24. The code of criminal procedure, section 354, sub clause (3).
  25. Macchi Singh and ors v. State of Punjab AIR 1983 SC 957. 3
  26. Ibid 11.
  27. Ramnares and ors v. State of Chhattisgarh AIR 2012 SC 1357
  28. Mahapatro, S. (2013). Rarest of Rare doctrine and Concept of Social Engineering, Journal of international academic research for multidisciplinary - A global society for Multidisciplinary research. Vol. 1. No. 5. ISSN: 2320  5083
  29. Mahapatro, S. (2013). Rarest of Rare doctrine and Concept of Social Engineering. Journal of international academic research for multidisciplinary - A global society for Multidisciplinary research, Vol. 1. No. 5. ISSN: 2320 -5083.
  30. Snehal, Punishment and Theories of Punishment, legal raj (Dec.10, 2020), Punishment and Theories of Punishment (
  31. Snehal, Punishment and Theories of Punishment, legal raj (Dec.10, 2020), Punishment and Theories of Punishment (
  32. Amnesty International, Death Sentences and Executions in 2019, ACT 50/1847/2020
  33. Amnesty International, Death Sentences and Executions in 2019, ACT 50/1847/2020
  34. Amnesty International Global Report,Death Sentences and Executions 2019, ACT 50/1847/2020, pp.8
  35. Sinha, S.B. To Kill or Not to Kill: The Unending Conundrum.' National Law School of India Review, vol. 24, no.1, 2012, pp. 129. JSTOR, Accessed 22 Nov 2020
  36. Sinha, S.B. To Kill or Not to Kill: The Unending Conundrum.' National Law School of India Review, vol. 24, no. 1, 2012, pp. 129. JSTOR, Accessed 22 Nov 2020
  37. See 65th United Nations General Assembly, General Assembly will Call for All States to Establish a Moratorium on Executions with View to Abolishing Death Penalty , United Nations (November 11, 2010), available at gashc3996.doc.htm.
  38. Sinha, S.B. To Kill or Not to Kill: The Unending Conundrum.' National Law School of India Review, vol. 24, no. 1, 2012, pp. 129. JSTOR, Accessed 22 Nov 2020.

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