India is a developing country but India is lagging behind to preserve
justice. There is lacuna in our criminal justice system, as so many cases are
still pending without trial. Our parliament makes laws to curtail the crime in
our society or to reduce the crime rate. Punishment simply means when a person
breaches the law and has to be punished for wrongdoing. All punishments are
based on the same proposition i.e. there must be a penalty for wrongdoing.
There are two main reasons for inflicting the punishment. One is the belief that
it is both right and just that a person who has done wrong should suffer for it;
the other is the belief that inflicting punishment on wrongdoers discourages
others from doing wrong. Capital punishment is the most serve form of
Capital punishment is always considered as one of the tortures punishment. This
article mentioned three theories namely, reformative theory and preventive
theory. This article has detailed view about the capital punishment in India and
also the methods of execution in India.
Capital punishment is the legal killing of a person who has committed a serious
crime. Capital punishment means state take life of the individual, state using
authority and power to snatch the live and liberty of individual who has
committed a grave offence. Death penalty is mentioned 13 places in Indian Penal
Code. The constitution of India provide under article 21 that no one can curtail
life and liberty of any individuals except the procedure established by the
law[i]. A person can be deprived his life even under capital punishment only if
the is law which is just, fair and reasonable.
Supreme court rule that the article 21 does not get violates because of death
sentences[ii], there is exist a proper procedure and that procedure is fair and
non- discriminatory because of this procedure state have power to snatch the
life of individuals therefore capital punishment are constitutional [iii] is
this country. Supreme Court gives a landmark judgment in case of Bachan Singh
vs. State of Punjab
[iv] that death punishment is given in the rarest of the
In Machhi Singh vs. state of Punjab
[vi] SC rule death penalty should be
given only when the option of awarding the sentence of life imprisonment is
"unquestionably foreclosed". Supreme court held two test need to be performed to
determine the rarest of the rarest doctrine test no. one- is there something
uncommon about the crime that if we give life imprisonment to the offender would
leads to miscarriage the law and justice and test number two is the
circumstances in the crime which render the life imprisonment as inadequate even
after the judges maximum weight age to the mitigating circumstances which speak
in favors of accused.
The crime was committed in the horrific manner if the life imprisonment was
awarded to the accused it should be travesty to the justice. Judge will have to
draw a balance sheet between aggravating circumstances and mitigating
circumstances. The 262nd report of the Law Commission titled The Death
Penalty[vii] which had recommended abolishing the death penalty in the country.
In February 2013 Justice radhakrishna pronounced a judgment and mention that the
judge have no discretionary power in matter to the rarest of rare cases but
depends upon society abhorrence for certain crime. By hanging some individuals
the state reinforces a belief that bad things happen to bad people and good
things happen to good people. A guilty people deserve to be punished in
proportion to the severity of their crime.
For deterrence we need to capital punishment but we all are aware of the one
rule of life- what does dead can never be alive again. Only nature has the right
to take and give life, if someone is awarded life capital punishment, and then
there is a violation of his natural right. The aim of penal system to punish
accused to reform the accused person, if judiciary gives death sentence then the
question arises how he will improve?
Through the reformation process the judiciary is trying to reform the person
which mean to change the criminal character of a person so the in the future the
person should not commit any offence. There is no sufficient proof to show that
death penalty operate as a greater deterrence than the life imprisonment that
means it is not possible to prove that death penalty greater deterrence than
life imprisonment or death penalty can discourse more that what life
imprisonment can do.
In a subsequent occasion the judgment which was passed is a mistaken conclusion
in that case death penalty is irretrievable the person is no more than the
judiciary cannot ratify its mistake because death sentence is irreversible.
There are three theories of punishment Retributive, Deterrent and Reformative.
When the punishment is governed by feeling of revenge eye for eye it's called
distributive form of punishment.
Deterrence means to deter someone from committing a certain act, so it is
believed that if capital punishment is given it will have deterrence effect on
other it will reduce the future crime. Reformation theory we often use with
Gandhi's theory, virtue is knowledge. Socrates said that if people have the true
knowledge, knowledge of ethnic, knowledge of what is right or wrong they will
not commit error.
Plato was the first western philosopher who attempted a systematic study of
society held that the state's most important function is pedagogic. No one
commits crime knowingly; people commit crime due to ignorance. Even those person
who think that they are doing right thing by committing the crime for example
who think that they are doing the right thing in the interest or to impress the
god and commit the terrorist act even such person are ignorant they do not know
true knowledge that committing the crime is not satisfied their soul and they
are under the illusion or they are being brainwashed.
If a person has true knowledge that this particular act is wrong then that
person will never commit crime, so somewhere the people commit the heinous crime
it is not just the fault of that particular person it is fault of society, as
well as state that not able to educate people about the right and wrong conduct.
Capital punishment is always considered as one of the tortures punishment. In
context to India, India is still having the system of capital punishment.
However unlike many other countries around us like china, Iran, Pakistan etc,
the number of capital punishment in India is quite less. Justice P.N. Bhagwati
said that death penalty in its actual operation is discriminatory for it
strikes mostly against the poor and deprived. The reasons include lack of
adequate legal assistance to the marginalized.
As per judicial doctrine capital punishment only given in the rarest of the rare
cases[viii]. People they abhor that retribution should not basic of any
punishment some people believe that deterrence has no empirical basic that
people are really deter by the capital punishment and some people are believe in
reformative approach. We cannot completely ignore retributive punishment because
retributive basic means revenge.
Revenge is to be seen also from the perspective of the family of the bereaved
and nothing can feel the vacuum when the members of the family lose their life
because of failure of law and order. We are all living being and revenge is very
natural sentiment there is something to compensate the loss to the family of
bereaved. We cannot ignore the perspective of the family who has lost their dear
In India still is we lack the robust criminal justice system, India has not yet
implemented the police reforms recommended by the Supreme Court. there is a
possibility that the innocent persons may wrongly convicted now because of our
criminal justice system is yet not robust and so if innocent person is given
capital punishment it will tend to amount to be the murder by the state which is
not acceptable in any modern society.
We need the institution robustness of our criminal judicial system it is
essential that we should replace the capital punishment with life imprisonment.
The state should think about the continuation because life is one such thing
which cannot be given back hence considering the state of criminal justice
system. in India it is much better if we shift capital punishment into the life
imprisonment fine so life imprisonment gives an opportunity that in future if
somebody is found innocent we can correct our mistake and as well as we are also
giving an opportunity of reforming as Gandhi said hate the sin and not the
sinner and even life imprisonment can also heal the element of revenge or can
also serve this revenge element of punishment it serves the reformative element
and directly or indirectly it can also serve the deterrence angle and it saves
India's estate from committing any such crime and it enhances or it will upgrade
India's stature in the community of the nations and it will strengthen India's
the candidature even for the permanent seat of U.N security council so
imprisonment is going to be a win-win situation, it will take into account the
current realities and it also provides the benefits and addresses the concerns
of the various stakeholders in the system. Judiciary in India continues the
capital punishment as deterrence.
However there is no logic between reduction in the crime and deterrence, up till
now there is no empirical basis to support the deterrence theory. In India to
deter the person with respective to capital punishment was not fully sound
because of Supreme Court of India also given the doctrine of capital punishment
only in rarest of the rare case.
If a criminal know that capital punishment is rarest of the rare it will hardly
act as deterrence. Reformation of the soul should be the aim undoubtedly because
somewhere a person commits a crime it is not just that person committing a crime
but man is not abstract individual man lives in a society and somewhere the
social cultural environment also is responsible.
- Articles 21 of the Constitution.
- Triveniben vs. State of Gujarat, A.I.R. 1989 S.C 142
- Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947.
- Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C 898
- Death Sentence: A Critical Analysis. http://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%204.pdf