Whoever imposes severe punishment becomes repulsive to the people, while he who awards mild punishments becomes contemptible,

but whoever imposes punishment as deserved becomes respectable. Kautiliya Dread of the rod alone restrains the bad, controls the good and makes a nation strong. The king must punish fearlesslyelse the strong would oppress the weakIt is the fear of punishment of the person and of the grave risk of forfeiture of life which restrains section of the population from criminality. Manu INTRODUCTION: The history of Capital Punishment is as old as that of mankind. In the Western world the first instance seems to be "The Law of Moses", inflicting death for blasphemy. By 1179 B.C. murder was a capital crime among Egyptians and Greeks. In India, the Indian Epics namely, the Mahabharata and the Ramayana also contain references about the offender being punished with vadha-danda which means amputation bit by bit. Fourteen such modes of amputating the criminals to death are known to have existed. This illustrates that in every country in the world Capital Punishment existed since times immemorial. In the beginning, offences against religion and morality attracted Capital Punishment. However, the primitive societies soon grew up into kingdoms and consequently criminal law also changed quickly. Whether it was West or East, offences against the King were considered as more serious. Thus, the political offences were also added to the religious and moral offences and Capital Punishment was prescribed for such offences also. With the advent of industrialization and advancement of civilization, Capital Punishment was prescribed for offences against the property and human body. Now, in the modern world, capital offences further covered drug-trafficking, hijacking the airplanes, bribery etc., Some Muslim countries like Saudi Arabia even want to add "artificial insemination" also to the list of capital offences. HISTORY OF CAPITAL PUNISHMENT

In ancient India, which was governed by the tenets of Dharma, capital punishment was imposed on offences such as Theft, robbery, adultery, incest, abduction, the slaying of a Brahmin, drinking, treachery etc. The justice system was caste based and the Brahmins being exempt from the death penalty, it was the lower castes that suffered greatly as a result of it1. The general
1

. R.P. Upadhyay, Death Penalty in India, Criminal Law Quarterly, Vol. 5, 1992.

theories regarding the imposition of such severe punishments as propounded epics such as the Mahabharat and the Ramayanaya are those of deterrence and prevention. If the offenders were leniently let off, crimes were bound to multiply. Therefore evil elements must be removed from society. Further there was an element of purification attached to the imposition of death penalty since an offender who was put to death at the order of the king was believed to have been purified of his crime even though he lost his life in the process2. While capital punishment was carried out in the most brutal of manners during Muslim rule, crime was still regarded to be a private offence and could be compounded by the provision of specific compensation to the victims families3. In the meting out of inhuman punishment, there was no regard paid to the brutality of the methods or the punishment in question, or the inference it would have on Islam in general. Further no consideration was payed to the fact that a civilisation is judged among many other things by the manner in which they treat their prisoners and offenders, convicts etc.4 Under British rule the death penalty was imposed on all citizens save the colonial masters. Little change was made to the criminal justice system and thereby the imposition of capital punishment. However changes that were enacted in the post 1970 period increased the number of capital offences and the arbitrary manner in which punishments were meted out lead to grave injustices being committed against the common man. Intention and not the manner of commission was given priority when deciding on cases. Offences against the state were added to the list of capital offences in the aftermath of the first war of independence. Further a draft penal code was drafted and presented by the Indian Law commission, and the death penalty was advocated for offences against the state, or bearing false witness in order to get a person convicted of a capital offence.

OBJECTIVES OF THE DEATH PENALTY

The imposition of capital punishment and its legitimisation and justification is based on the same broad framework that guides the imposition of punishment under the criminal justice system. The law commission report, while having cited the following objects of capital punishment, deterrence, retribution, disabling, avoidance of lynching and private vengeance, disapprobation by the public and atonement by the offender etc,5 has made it the basis for its recommendation for the retention of the death penalty.
2 3

S. Ayyathurai, Should death penalty Go? Cri. LJ, 2000. U. Vindhya, Death Penalty for rape: Some critical issues, Indian Journal of Human Rights, V.3,

1999. 4 W. Bowers, Capital Punishment and Contemporary Values, Law and Society Review, V. 27, 1993. 5 35th Law Commission Report.

One of the main objectives sought to be achieved by the imposition of the death penalty is that of deterrence. It is hoped that the execution of such a severe form of punishment upon an offender would prove to have a deterrent effect on the criminal tendencies of other like- minded individuals in society. The success of such an effort, according to the law commission report, is due to the inherent desire for life, which exits within every individual. Prevention is another objective of capital punishment since it incapacitates the offender from repeating his offence and thereby providing wider and greater protection to society. It is considered to be a better alternative to life imprisonment since under the latter; the murderer rarely completes his sentence and is often released as a result of pardoning power of the state.6 While retribution was once hailed as another important aspect of the death penalty, it has decreased in importance as a justifiable aim of punishment within the confines of a more evolved criminal justice system. However the prevention of private vengeance etc. by the exacting of punishment by the state has been cited in the Law Commission report as one objective that the imposers of capital punishment seek to achieve.

JUDICIAL TREND REGARDING THE CONSTITUTIONALITY OF THE DEATH PENALTY

In India, criminal trial is based on accusatorial system, and accordingly, the accused is presumed to be innocent unless his guilt is proved beyond reasonable doubt.7 The burden of proving guilt lies on the prosecution and not on the accused. To quote Supreme Court judgment on the Presumption of Innocence: It is true that wrongful acquittal are undesirable and shake the confidence of the people in the Judicial system, much worse however is the wrongful conviction of an innocent person, the consequences cannot but be felt in a civilized society.8 The constitutionality of the death penalty has been challenged in many cases and in responding to the said challenges the Supreme Court has validated the same thereby legitimising its practice. In the case of Jagmohan Singh v. State of U.P.9, the constitutionality of the death penalty was challenged on the grounds of it violating the fundamental rights of a person to life and to be free from all forms of inhuman and degrading treatment as given in Articles 19 &21 of the constitution. Since any law that contradicts part 3 of the constitution is deemed invalid, the death penalty cannot be legitimised by legal sanction. The excessive delegation of legislative power
6 7 8 9

Jeyaseeian, Hang the death penalty: a debate, Legal News and Views, Vol.4, 2000, p.20. K.M. Nanavati Vs State of Maharashtra, AIR 1962 SC 605. Dharam Das Vs. State of Uttar Pradesh, (1974) 4SC 267. AIR 1973, S.C. 947.

was also criticised since there exists no set norms by which the sentence of death could be awarded. The Supreme Court though negativated the aforementioned contentions, and held the view that the death penalty was not unconstitutional. They stated that the framers of the constitution were well aware of the existence of the death penalty and had provided for it in within the constitution. Further they stated that in the event though the law has granted wide discretion the judge to consider the mitigating and aggravating circumstances of each case when awarding sentence, this could hardly be considered discriminatory since there would hardly any two cases in which there existed similar fact situations. The exercise of judicial discretion on well-recognised principles is the safest possible safeguard for the accused. However in the case of Rajendra Prasad v. State of U.P.10, it was held that the death penalty contradicts the rights as given under Art. 14, 19, and 21 of the constitution, and that it would only be justified in the event that the court was certain that the survival of society would be put in danger by an omission to award such a sentence. Justice Iyer in his majority judgement stated that the transfer of power to the judge to decide the special circumstances under which the death penalty could be awarded is violative of Art 14. which condemns arbitrariness. He pleaded that the death penalty be retained with the sole purpose of punishing those premeditated murders as well as white-collar crimes etc. Further it was states in this case that the focus should not be so much on the crime committed or the number of murders involved but rather on the criminal However the Supreme Court rejected the decision of the court in Rajendra Prasads case, in the case of Bachan Singh v. State of Punjab11, in which it upheld the validity of the death penalty, and established the principle that the same should only by imposed in the rarest of rare cases. A few cases can be taken up to display the general trend with regards to Rarest of Rare cases principle after the above judgement. In the case of Gayasi v. State of U.P.12, it was held that offences committed against a public servant on duty must be discouraged and put down with a firm hand. Also in Kuljeet Singh v. Delhi Administration13 the death penalty was awarded on the grounds that professional murderers deserve no sympathy.

EXECUTION OF THE DEATH PENALTY

Several section in the IPC such as 121, 302, 303, and 396, provide for the death penalty and have had their legality validated by the supreme court in light of challenges to the same. While the number of capital offences under the Indian Penal Code has been drastically reduced, the death penalty may be awarded for the following offences: Waging or attempting to wage war against the government of India, (121 IPC)

10 11 12 13

AIR 1979, S.C. 916. AIR 1980, S.C. 898. AIR 1981 S.C. 1160 AIR 1981 S.C. 1572

Abetment of mutiny if mutiny is committed as a consequence thereof. (132 IPC) Giving or fabricating false evidence with the intention of procuring capital punishment

(194 IPC) Committing murder (302 IPC) Committing murder while serving a sentence of imprisonment for life (303 IPC)

Attempt of suicide committed by a child or insane an idiot or an intoxicated person, for attempt by life convict to murder, if hurt is caused and for murder in dacoity. (305 IPC) Section 354 (3) of the Code of Criminal Procedure provides that special reasons should be mentioned when awarding the death penalty. Section 235 of the same code grants that a special hearing for the sentencing of a convicted criminal is essential in a capital trial, thereby providing for greater leniency towards the granting of a lesser sentence to the death penalty. Previously the accused would have to submit any arguments and material regarding the sentence at the trial stage, thereby working on the assumption that he would be convicted. The amendment in the law ensures that a question of sentence arises only once the accused is convicted of the offence. Regarding the commutation of the sentence of death, Section 54 of the Indian Penal Code states that the government may commute the sentence to a lesser punishment without the consent of the offender. Articles 72 and 161 also provide for the granting of reprieves by the head of state for those convicted and sentenced to death.

MITIGATING AND AGGRAVATING CIRCUMSTANCES WHEN AWARDING THE DEATH PENALTY In deciding on the rarest of rare cases in which the death penalty may be imposed on an offender the Supreme Court has formulated certain mitigating and aggravating circumstances which should be considered in the exercise of judicial discretion. There are many circumstances under which the death penalty can be substituted by a lesser punishment. While in some cases the absence of brutality, and premeditation have been grounds for a lessoning of the sentence, the age and the socio economic background of the offender and the relative likelihood of reforming him/her is considered when awarding the death penalty. The role played by the victim in the commitment of the offence is also taken into consideration. Justice P.N. Bhagwati also said that in fact, the trial system in India violates the concept of equality. According to the concept of equality, every body equal before law and has equal protection of law. The guarantee of equal protection applies against the substantive as well as procedural law. It includes absence of arbitrary discrimination in the administration of law, equal treatment in similar circumstances both in privileges conferred and liabilities imposed by law. In

short, all litigants who are similarly situated can avail themselves of the same procedural rights.14 But the application of death penalty nullifies this concept. Two persons who are found guilty of murder may be treated differently, one of them may get death and the other may get only life sentence or pardon or acquittal. So, unguided discretion to award either of two punishments violated legal equality.

CAPITAL PUNISHMENT IS DEGRADING AND FUTILE Punishment for death is degrading after all. If the current standards of review over imposition of death penalty are insufficient, the death penalty should be banned. It is futile to attempt to reconcile in ones mind the abstract justification of death penalty jurisprudence with the pain and suffering of a murder victim. Law cheats morality. Murder and Capital Punishment are not opposites that cancel one another, but similar that breed their kind, when the State itself kills, the mandate "thou shall not kill" looses the force of the absolute. A significant percentage of death-row inmates request the death penalty rather than exhaust their appeals, thereby indicating the desirability of death over imprisonment. The inmates who choose death may simply desire to put an end to the waiting involved. In other words, the inmates might prefer the certainty of immediate death rather than continue to experience anguish through the appeals process while waiting on death row. Most murderers perceive life imprisonment as more severe than the death penalty15.

Death sentence has been criticized on humanitarian ground as well.16 Accordingly, no body is born criminal. It is the circumstances, which may turn a human being into a deadened criminal. In fact, a human being does not cease to be a human being even if he has committed a monstrous act, which has shocked the consciousness of society. Crime should be treated as Mental disorder, which can be cured not only by brutal punishment but by sympathetic treatment on the humanitarian ground. Therefore, reformation and rehabilitation should be the core purpose of the punishment. Death penalty nullifies such purpose of reformation and REHABILITATION.

CRITICAL ANALYSIS OF INDIAN LAW IN THE VERGE OF INTERNATIONAL INSTRUMENT

14 15

State of West Bengal Vs. Anwar Ali, 1952 SC P289. Deserts and Death: Limits on Maximum Punishment: B.S. Pollock; Rutges Law Review: vol. 44 (Summer, 1992 16 In Deena Vs. State, 1983 CrLJ 1602 (SC) and In Shashi Nayar Vs. Union of India, AIR 1992 SC 395.

The careful analysis of the Indian law is revealing, how India is flouting its international obligations, that capital punishment is awarded not only in the rarest of rare cases but also on a wide variety of the cases. Infact, the doctrine of rarest of rare case is superfluous as it is vague and incomplete. The Apex Court held that death penalty is awarded in the rarest of rare cases only but it is not further defined. The judiciary has evolved its own jurisprudence in evaluating which cases are to be considered as "rare" and which are not on an inconvincible reasoning. A close analysis of various decisions in which capital punishment was upheld on the basis of above doctrine would reveal that no uniform guidelines exist for its application. Its application is largely dependent on the subjective satisfaction of an individual judge. The quantum of punishment varies according to the nature of a judge. In other words, subjective satisfaction of a Judge plays an active role in awarding "death" or "life".

In India, the only authority that can give pardon to an accused in case of confirmation of death sentence by the Supreme Court is the President of India. He is the only person who has the exclusive authority to save the life of a convicted prisoner. The object of giving pardoning power to the President is that ...to correct judicial errors for no system of judicial administration can be free from imperfection. It is an attribute of sovereignty to release a convict from a sentence which is mistaken, harsh and disproportionate to the crime.17

Ironically, this sacrosanct purpose itself is of no avail to the accused. The fact is that the President has to act on the advice of the government in power. If he remits the mercy petition to the government for reconsideration and the government confirms the death penalty, the President has no power or other option but to confirm the sentence, as he is bound by the recommendation of government. Further, the decision of the President on the mercy petition is subjected to limited judicial review.18 It is submitted that the President should have an unfettered power of pardon in case of mercy petition he should be required to decide the petition within a limited time without any interference by the executive. In a murder trial, it is a State who prosecutes against the accused on behalf of the society and at the same time it is the State which decides that whether mercy petition address to the President should be allowed or not. It is just mockery of justice and hence submitted that there should be proper demarcation of the power of executive. Executive should not interfere within the frame work of judiciary as separation of power is the basic feature of the Constitution,and which should be maintained strictly. Moreover, we can say capital punishment is morally wrong. It is submitted that when the killing of a human being by another human being is a homicide and therefore punishable than the killing of a condemned prisoner through the instrumentality of State is also homicide which should be equally punishable. Judiciary cannot justify its in human act by mere saying that capital

17 18

Durga Das Basu, Introduction to the Constitution of India (18 ed., 1997), p.180. S.R. Bommai Vs.Union of India (1994) 3 SCC1

th

punishment is according to the procedure establish by law and it is awarded to preserve the public confidence in the judicial system. Further, application of this brutal punishment on deterrent theory is baseless. There had been no relation between the crime rate and the capital punishment. There is no convincing evidence to show that the crime rate has increased in those countries, which have abolished capital sentence. It is submitted that brutality or severity of punishment hardly deters. It is the surety, effectiveness and uniformity of punishment, which deters. Death penalty is not effective deterrent.19 Moreover, it is not applied uniformly. Further, being an irreversible punishment there is every chance of mistake in its application. Death sentence leaves no scope for correction if there is even a slightest mistake in the identity of the accused. Moreover, no body would realize the brutality as his behaviour once he is gone from the world. . CONCLUSION Having examined the nature of capital punishment and the national and international standards attached to its application in the modern context, one cannot help but reach the conclusion that there is nothing worse than the absurdity of a system that allows the law which as an expression of public will, seeks to deter and punish homicide, to order a public rendition of the very brutality that it seeks to oppress. Further such action by the state raises larger issues of the justifiability of the taking of life of certain members of society in order to protect the interest of the group at large. In the words of George Bernard Shaw, it is the deed that teaches not the name we give it. Murder and Capital Punishment are not opposites that cancel each other but similars that breed their kind. In order for punishment not to be in every instance an act of violence of one or many against a private citizen it must be essentially public, prompt, necessary, the least possible in the given circumstances, and proportionate to the crimes dictated by laws. Study of the administration of capital punishment and its consequences has left most people sceptical of the claims of social advantage made on its behalf. Also, elements of arbitrariness and incompetence within the system as well as the existence of certain discriminatory practices, further strengthen the argument against the validity of the death penalty. Thereby one may conclude that the presence of the death penalty as the keystone of the penal system bedevils the administration of criminal justice all the way down the line and is the stumbling block in the path of general reform and in the treatment of crime and criminals. By killing the wicked the king kills a large number of innocent men. Anonymous

19

Roger Hood "The Death Penalty" A worldwide perspective (Oxford, third edition, 2002), p.230.