School of Law, Christ University, Bengaluru.

SUBJECT- PRINCIPLES OF CRIMINAL LAW

C.I.A.-III SUBMISSION
Criminal law and the dilemma of capital punishment
Date- 7 September, 2015
Submitted to: Ms. Hiwarale Mangala Gajanan

Submitted byName: Somashish

Class: V B.A. LL.B.
Section: A
Year: 2015
Registration No.:1316057

Criminal law and the dilemma of capital punishment

Introduction
The recent case of Yakub Memon v. State of Maharashtra1 witnessed much
controversy of the applicability and relevance of the death penalty in the
criminal justice system. Apart from the fact that many people raised specific
objections like the inadequacy of the trial of the accused, many general
objections to death penalty were raised by pro-abolitionists. In substance the
debate over capital punishment has been brought back to the fore because of
this controversy.
In this article a collective analysis of the criminological theories relevant to the
capital punishment debate, judgements of the Supreme Court of India and
recommendations of a recent report of the Law Commission of India has been
made. On the basis of such analysis it is argued that the criminal law has moved
from a deterrence-based justification to a reformative-restrictive approach to the
death penalty. The clear evidence of this approach comes from the rarest-ofthe-rare, delay, and rehabilitation doctrines of capital punishment evolved
by the Supreme Court. There is an overall consensus that the death penalty is to
be applied restrictively. However, there has not been any indication toward a
complete abolition of capital punishment.
It is also argued that in the current circumstances facing the criminal justice
system there is a strong case for retaining the status-quo on the capital
punishment. These circumstances include inter alia the rise in incidents of
crimes against women and continuing terrorism. The existence of a backlog
ridden judiciary implies that the fear induced by the provision of death penalty
is necessary to elicit deterrence.2 Complete abolition of the capital punishment
is not an option.

W.P. (CRL.) No. 2346 /2015. (Supreme Court of India)

Press Trust of India, More Than 3 Crore Court Cases Pending Across Country,
http://www.ndtv.com/india-news/more-than-3-crore-court-cases-pending-across-country709595
2

Theories on the Capital punishment3

The Retributive theory of punishment4 requires that punishment for illegal acts
should be proportionate to the committed illegal acts. In this sense the
retributive theory demands that punishments be awarded taking into account the
crime committed by criminals. There is complete emphasis on looking
backwards into the past criminal act and determine the punishment which is
deserved by the accused. There is no scope for looking forward into the potential
activity/behaviour of the accused at a future time.
In the tenets of this theory the criminal is punished in terms of what he/she
rightfully deserves for commission of a crime. However this is subject to the
public laws and procedural justice. Therefore the theory is not in favour
vengeance. Instead, as Michael Moore explains, the punishment awarded is an
act of criminal justice. Although any private party may injure someone in
vengeance to any degree he/she is satisfied, the retributive theory requires the
criminal justice system to punish an accused only to the extent he/she deserves.
Keeping the tenets of the theory intact, death penalty would be justified in
crimes where the causal result of the criminal act was death of the
corresponding victim. Therefore offences like homicide, murder (arguably,
abetment of the same), rape-and-murder would definitely call for the death
penalty for a convict. Arguably, offences like grievous hurt or rape could also
call for death sentence if the corresponding victim is practically rendered
lifeless, so as to be alive only in terms of a beating heart without any other bodily
capacity. Currently national security threats from terrorism and waging war are
also considered capital offences. This could also be justified in terms of this
theory. The possible deaths of numerous lives in a country when such offences
are committed would justify the same.

THOM BROOKS, PUNISHMENT 15-18, 35, 51 (Routledge, 1st ed. 2012); LILI SCHERDIN, CAPITAL
PUNISHMENT 273-91 (Ashgate, 1st ed. 2014).
4
BROOKS, Supra note 2; Autri Saha & Pritika Rai Advani, The Death Penalty: A new
Perspective, 2 NUJS L. REV.669 (2009); Krishna Iyer J., Death Sentence on Death Sentence,
THE INDIAN ADVOCATE: JOURNAL OF THE BAR ASSOCIATION OF INDIA: V. XVIIIII: 28: (JanJune, 1978), as cited in Dr. A. Krishna Kumari, Role of Theories Of Punishment In The Policy
Of Sentencing,
http://works.bepress.com/cgi/viewcontent.cgi?article=1006&context=krishnaareti (Last visited
on January 6, 2010).

In this manner retributivists justify the death sentence in cases of offenders

who in fact deserve such sentence considering the degree of their crime. This
theory is dismissive of pardons/mercy on offenders. Even if pardoning an
offender were to be beneficial, the retributive theory holds that the sanctity of
the justice system depends on proportionate punishments to offenders.
Therefore, the retributive theory and its supporters worldwide support the
capital punishment and vehemently oppose an abolition. Death penalty is
viewed as a potent instrument of social control for the criminal justice system.
The Deterrence theory5 declares that the primary purpose of punishments is to
ensure that crime becomes less frequent, if not completely eliminated. This
theory has been supported by thinkers as old as Plato and among the new
enlightenment thinkers, David Hume. Unlike the retributive theory, the
deterrence supporters view the case of every offender from the prism of a social
calculus of harms and benefits. Therefore the offender is not viewed solely from
the perspective of his illegal act which he commits in the past. The potential
deterrence for the future which could be attained by punishment is of
paramount importance for such thinkers.
The support for the death penalty voiced by the deterrence theory is not based
on any proportionality or character of the offence. Rather the emphasis is laid
on punishing crimes on the basis of the quantum required for deterrence. Each
individual would be incentivised to not commit a crime, if the pain inflicted in
punishment is too great for him to derive any benefit from the crime. On this
basis the deterrence theory supports the death penalty as a means to set the right
quantum of deterrence on crimes which are in the most vital interest of the
society to prohibit.
The Deterrence theory relies on a widely shared assumption that the practice
of punishment has an absolute deterrence value, in the sense that crime and
disorder would substantially increase if the practice were to be abolished. On
this basis, the deterrence theory says that death penalty would cause a
substantial prevention of the crimes which attract it.

BROOKS, Supra note 2; Autri Saha & Pritika Rai Advani, The Death Penalty: A new
Perspective, 2 NUJS L. REV.669 (2009).

The Reformative theory6 declares that punishment should aim at the

reformation of offenders and assist their transition from criminal to law abiding
citizens. Such rehabilitation is successful when criminals consciously choose to
reject crime. This theory rejects the death penalty on the ground that it provides
to scope for rehabilitation. The reformative theory supports complete abolition
of the death penalty in the law.
According to this theory, death penalty is viewed as a premeditated form of
killing which is carried out in the name of punishment.7 It is barbarous in
nature since all the methods of execution involve a great amount of pain to the
person being executed; hence it is believed that till such advanced technology
has not developed that the execution can be carried out in an immediate and
painless manner, death penalty should not be administered.8 It is also believed
that death penalty does not serve as an instrument of deterrence which is
regarded as its main objective by the proponents of death penalty. 9 Death
penalty is therefore futile and this is evidenced by the fact that its abolition has
had no such adverse impact on the crime rates of the countries which have
abolished it.10 Further, it also denies the possibility of rehabilitation and
reformation of the criminal. Death penalty runs the risk of irrevocable error11

BROOKS, Supra note 2; Autri Saha & Pritika Rai Advani, The Death Penalty: A new
Perspective, 2 NUJS L. REV.669 (2009).
7
See Taylor v. Crawford, 487 F.3d 1072, 1081 (8th Cir. 2007) (The infliction of capital
punishment is itself a deliberate act, deliberately administered for a penal purpose); See also
Amnesty International, Human Rights v. The Death Penalty: Abolition And Restriction In Law
And Practice, AI Index: ACT 50/13/98, December 1998; Autri Saha & Pritika Rai Advani, The
Death Penalty: A new Perspective, 2 NUJS L. REV.669 (2009).
8
Dawinder S. Sidhu, On Appeal: Reviewing The Case Against The Death Penalty, 111 W. VA.
L. REV. 453, 2009; Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective, 2
NUJS L. REV.669 (2009).
9
Lawrence Katz et al., Prison Conditions, Capital Punishment, and Deterrence, 5 AM. L. &
ECON. REV. 318, 330-32 (2003) as cited in Richard B. Roper, The Death Penalty at The
Intersection Of Reality And Justice, 41 TEX. TECH L. REV. 15; Autri Saha & Pritika Rai Advani,
The Death Penalty: A new Perspective, 2 NUJS L. REV.669 (2009).
10
Amnesty International, The Death Penalty: Questions And Answers, AI Index: ACT 51/
002/2007, April 2007. (In Canada, for example, the homicide rate per 100,000 population fell
from a peak of 3.09 in 1975, the year before the abolition of the death penalty for murder, to
2.41 in 1980, and since then it has declined further. In 2003, 27 years after abolition, the
homicide rate was 1.73 per 100,000 population, 44 per cent lower than in 1975 and the lowest
rate in three decades. Although this increased to 2.0 in 2005, it remains over one-third lower
than when the death); Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective,
2 NUJS L. REV.669 (2009).
11
Amnesty International, The Death Penalty: Questions And Answers, AI Index: ACT 51/
002/2007, April 2007; Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective,
2 NUJS L. REV.669 (2009).

as many are denied the opportunity of a fair trial or they grapple with issues
relating to inadequate legal representation.12
Following this theory, according to reports of Amnesty International, 131
countries have abolished the death penalty in law or practice, 66 other countries
and territories retain and use the death penalty.13 Remaining 17 Countries that
allow the death penalty are therefore, now in the minority.14
Governments of various countries have not merely limited themselves to
rooting out capital punishment from their own judicial systems but have also
contributed towards launching a global movement for the eradication of death
penalty.15 This consensus was first acknowledged in the Universal Declaration
of Human Rights16 (hereinafter UDHR) adopted by the UN General Assembly
in 1948. Article 3 of UDHR says that everyone shall have the right to life.17 It
was further elaborated in Article 5 that no one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.18
At the UN, evidence of this international trend further manifested itself
through the International Covenant on Civil and Political Rights (hereinafter
ICCPR).19 Paragraph 2 of Article 6 establishes the existence of abolitionist
countries and invokes a relatively high standard for the imposition of the death
penalty. The international trend disfavoring capital punishment is also evident
in the Second Optional Protocol to the ICCPR,20 providing for total abolition of

12

Id.
Amnesty International, The Death Penalty: Questions And Answers, AI Index: ACT
51/002/2007, April 2007; Autri Saha & Pritika Rai Advani, The Death Penalty: A new
Perspective, 2 NUJS L. REV.669 (2009).
14
Id.
15
Amnesty International, The Death Penalty: Questions And Answers, AI Index: ACT 51/
002/2007, April 2007; Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective,
2 NUJS L. REV.669 (2009).
16
Universal Declaration of Human Rights, G.A. Res. 217A (III), UN Doc. A/810 (December
12, 1948); Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective, 2 NUJS L.
REV.669 (2009).
17
Article 3 states Everyone has the right to life, liberty and security of person.
18
See Article 5; Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective, 2
NUJS L. REV.669 (2009).
19
International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, S. Exec.
Doc. E, 95-2 (1978), 999 U.N.T.S. 171, 175 (March 23, 1976); Autri Saha & Pritika Rai Advani,
The Death Penalty: A new Perspective, 2 NUJS L. REV.669 (2009).
20
GA Res. 44/128, Annex, 44 UN GAOR Supp. (No. 49) at 207, UN Doc. A/44/49 (1989).
(The Preambulatory clause states that abolition of the death penalty results in enhancing human
dignity and progressive development of human rights and that all measures of abolition of the
13

the death penalty which was adopted by the UN General Assembly in 1989. In
Europe, the capital punishment has been abolished by all EU countries except
in cases of war crimes.21
The United States is the only significant western nation retaining the death
penalty. Many countries have come together in supporting these international
initiatives for the universal abolition of death penalty emphasizing on its
flagrant violation of human rights. Article 37(a) of the UN Convention on the
Rights of the Child22 adopted by the UN General Assembly states, Neither
capital punishment nor life imprisonment without possibility of release shall be
imposed for offences committed by persons below eighteen years of age.23
These treaties and covenants ascertain that there is a growing consensus among
the international community against the administration of death penalty in most
parts of the world.
In the succeeding section, it is sought to be argued that criminal justice system
in India has moved from a deterrence-based conception of the death penalty as
the rule and life sentence as the exception, to the rehabilitative concept of
rarest of rare dictum. In fact, there has been a shift towards a rehabilitation
theory which is also supported by a delay doctrine which provides relief to
sentenced convicts for commutation of death sentence to imprisonment.
Indias tryst with the Death penalty
The Supreme Court of India has long been aware that Indias maintenance of
the death penalty stands in stark contrast to international norms. Therefore, the
courts have sought to soften Indias death penalty stance to more closely align
it with international standards. Yet the Court has been unwilling to end it
entirely. There are legitimate concerns of national security, terrorism, and

death penalty should be considered as progress in the enjoyment of the right to life); Autri Saha
& Pritika Rai Advani, The Death Penalty: A new Perspective, 2 NUJS L. REV.669 (2009).
21
Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective, 2 NUJS L. REV.669
(2009).
22
Convention on the Rights of the Child, U.N. GAOR, 44th Sess., UN Doc. A/44/49
(November 20, 1989), Article 37; Autri Saha & Pritika Rai Advani, The Death Penalty: A new
Perspective, 2 NUJS L. REV.669 (2009).
23
Amnesty International, International Standards on the Death Penalty, AI Index: ACT 50/
001/2006, January 2006; Autri Saha & Pritika Rai Advani, The Death Penalty: A new
Perspective, 2 NUJS L. REV.669 (2009).

heinous crimes against women which require this retention.24 The Court has
tried to avoid egregious applications of the death penalty by ensuring procedural
safeguards.
In 1973 in the case of Jagmohan Singh v. State of UP25 (hereinafter
Jagmohan) it was contended that death sentence infringes all freedoms
guaranteed under Article 19(1)(a) to (g) and that the unguided judicial discretion
was in violation of Article 14 of the Constitution; also since no procedure was
prescribed in the Code of Criminal Procedure (hereinafter CrPC) for
determining whether life imprisonment or the death penalty are to be awarded,
it was in violation of Article 21. All arguments were rejected and the Court
upheld the constitutional validity of death-sentence. The constitutionality of the
death penalty continued to be challenged in later cases.
In Ediga Anamma v. State of Andhra Pradesh26 the Court declared that the
crime committed is not the sole criterion of determining the punishment but
various other factors like gender, age, socio-economic background and psychic
compulsions should also be taken into account while deciding on death penalty.
In Rajendra Prasad v. State of U.P.,27 the Court held that special reasons for
imposing death penalty must relate not to the crime but to the criminal. Death
was to be awarded only when security of state, public order compelled the
course.28 It was also held that life imprisonment would be a better alternative
than death penalty since it has the potential to reform the criminal. Thirdly, India
ratified the ICCPR, thereby committing itself to progressive abolition of death
penalty. The constitutional validity of death penalty under 302 of the Indian
LAW COMMISSION OF INDIA, 35th Report, 1967, Indian Penal Code, 69 (Having regard to
the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity
in the level of morality and education in the country, to the vastness of its area, to the diversity
of its population and to the paramount need for maintaining law and order in the country, at the
present juncture, India cannot risk the experiment of abolition of capital punishment); See,
PUCL v. Union of India, (2004) 9 SCC 580.
25
AIR 1973 SC 947.
26
AIR 1974 SC 799.
27
(1979) 3 SCC 746.
28
Id., 79, (To my mind, it is ultimately a question of respect for life and human approach to
those who commit grievous hurts to others. Death sentence is no remedy for such crimes. A
more humane and constructive remedy is to remove the culprit concerned from the normal
milieu and treat him as a mental case. I am sure a large proportion of the murderers could be
weaned away from their path and their mental condition sufficiently improved to become useful
citizens) (per V.R. Krishna Iyer, J.).
24

Penal Code (hereinafter IPC) and 354 (3) of Cr.P.C. was upheld. The Court
held, A real and abiding concern for the dignity of human life postulates
resistance to taking a life through laws instrumentality. That ought not to be
done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed.
In Deena v. Union of India,29 the Court held that hanging is not a cruel
method of execution and not in violation of Article 21 of the Constitution. In
Attorney General of India v. Lachma Devi30 Supreme Court expressly
prohibiting public hanging. In Allauddin Mian v. State of Bihar,31 the Court
held that as a general rule, the trial courts after recording the conviction
should decide sentencing at a future date and call upon both the prosecution
as well as the defence to place the relevant material. A lesser sentence
should be preferred.
The constitutionality of the death penalty was again challenged in the case of
Bachan Singh v. State of Punjab32 because the CrPC was re-enacted in 1973
and 354(3) was added, thereby making the death sentence the exception and
not the rule as far as punishment for murder is concerned. The Maneka Gandhi
judgement was another reason. In the case of Bachan Singh v. State of Punjab
and Machhi Singh v. State of Punjab,33 the Court held that death sentence
was to be the exception and not the rule. The court also laid down that the
sentencing court had to consider:
Was there something uncommon about the crime, which calls for a death
sentence?
Are the circumstances of the crime such that there is no alternative, but to
impose a death-sentence?
Whether the crime was indeed such as to be considered rarest of the rare?

29

AIR 1983 SC 1155.

AIR 1986 SC 467.
31
AIR 1989 SC 1456.
32
AIR 1980 SC 898.
33
AIR 1983 SC 957.
30

In both the cases of Jagmohans case and Bachan Singhs case, the Court gave
way to the legislative wisdom by not striking down the death penalty. In some
way it acknowledged the reformation and rehabilitation of the delinquent as one
of the goals of punishment. Later, in Swamy Shraddananda v. State of
Karnataka34 it was said that if the Court finds that if the case falls short of the
rarest of rare category and is reluctant to award the death penalty and life
sentence usually of 14 years is grossly inadequate, then the Court can award
life sentence beyond 14 years. These were significant achievements of the
abolitionists.35
In Panchhi v. State of Uttar Pradesh36 the Supreme Court declared, It may
be that the (brutal) manner in which a murder was perpetrated not the
sole criterion for judging whether the case is one of the rarest of rare cases
as indicated in Bachan Singhs case. In Anshad v. State of Karnataka37 the
Supreme Court stated that the courts are expected to exhibit sensitivity in the
matter while awarding sentences. All mitigating and aggravating factors
must be accounted.
In Mithu v. State of Punjab38 the Court declared 303 of the IPC as
unconstitutional. 303 was struck down as arbitrary for assuming that life
convicts are more dangerous than other humans and hence should be treated
differently violating rights under Article 14 and Article 21 of the Constitution
and took away the punitive discretion of the court.
The case of Santosh Bariyar v. State of Maharashtra39 was a murder case in
which four accused were convicted by the trial court. The petitioner was
sentenced to death. The Court refused to uphold death penalty, and laid down
the rehabilitation doctrine. Thus, for award of death penalty, it must be
proved by leading evidence that there is no possibility of rehabilitation of
the accused and that life imprisonment will serve no purpose. The Court

34

AIR 2008 SC 3040.

Dr. S. Muralidhar, Hang Them, Hang Them Not: India Travails with the Death Penalty, 40
J.I.L.I. 143(1998).
36
AIR 1998 SC 2726.
37
(1994) 4 SCC 381.
38
AIR 1983 SC 473.
39
(2009) 6 SCC 498.
35

observed that the accused were not professional killers, they did not have any
criminal history and committed the crime solely out of the motive of collecting
money.
Further, the delay doctrine has been declared in Shatrughan Sinha v. Union
of India40 by which a prolonged, excess delay by the President to decide
mercy petition is a firm ground for commutation of sentence to life
imprisonment on writ petition made by the convict.
Recently released 262nd Report of the Law Commission on the Death Penalty
has recommended that the death penalty should be abolished for all crimes
except terrorist offences and waging war against country. It has recommended
that the options are many - from moratorium to a full-fledged abolition bill.
The Law Commission does not wish to commit to a particular approach in
abolition. All it says is that such a method for abolition should be compatible
with the fundamental value of achieving swift and irreversible, absolute
abolition.41 The recommendations support death for those convicted in terror
cases and for waging war against the country because valid concern is often
raised that abolition of capital punishment for terror-related offences and
waging war will adversely affect national security.42
Conclusion
Indias law recognises an overall consensus that the death penalty is to be
applied restrictively. However, there has not been any indication toward a
complete abolition of capital punishment. It is also argued that in the current
circumstances facing the criminal justice system there is a strong case for
retaining the status-quo on the capital punishment. These circumstances include
inter alia the rise in incidents of crimes against women and continuing
terrorism. The existence of a backlog ridden judiciary implies that the fear
induced by the provision of death penalty is necessary to elicit deterrence.
Complete abolition of the capital punishment is not an option.

40

WRIT PETITION (CRIMINAL) NO. 55 OF 2013. (Supreme Court of India, Judgement dated
January 21, 2014).
41
LAW COMMISSION OF INDIA, 262nd Report, 2015, The Death Penalty, 217.
42
LAW COMMISSION OF INDIA, 262nd Report, 2015, The Death Penalty, 211-217.

Nevertheless adequate procedural safeguards in the form of rarest-of-therare, delay, and rehabilitation doctrines of capital punishment evolved by
the Supreme Court. This means that death penalty will not only be applied
sparingly but also with great care and caution keeping in mind reform and
rehabilitation and the past and future circumstances of the criminal.