Professional Documents
Culture Documents
VALIDITY OF
CAPITAL PUNISHMENT
Submitted to:
Submitted by:
Vivek Rai
Roll No.147
Semester IX
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Acknowledgements
On the completion of this project I find that there are many persons to whom I would like to express
my gratitude, since without their help and co-operation the success of this educative endeavour
would not have been possible.
I welcome this opportunity to express my sincere gratitude to my teacher and guide Mr. Sandeep
Suman, who has been a constant source of encouragement and guidance throughout the course of
this work.
I am grateful to the IT Staff for providing all necessary facilities for carrying out this work. Thanks
are also due to all members of the Library staff for their help and assistance at all times.
I am also grateful to my best friend Pooja Singh for being helpful in her difference and for her
constant support.
Vivek Rai
(Researcher)
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Objectives
To understand the meaning of Capital Punishment and its Constitutionality.
Research Methodology
The methodology adopted in this research work is based on SECONDARY sources of
information like books, journals, etc. The present research work contains a critical analysis and
a detailed study of the topic CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT
IN INDIA.
This research work contains elaborated theoretical research, an overall study of the topic and in
depth and in depth web browsing.
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Table of Contents
Introduction.............................................................................................................5
Meaning of Capital Punishment..............................................................................5
Capital Punishment in various countries...............................................................7
Capital Punishment under various legislations in India......................................9
Abolition of Capital Punishment............................................................................10
Constitutional validity of Capital Punishment.....................................................15
No chance for Injustice...........................................................................................17
Principle of rarest of rare........................................................................................20
Recent rarest of rare cases of Capital Punishment..............................................21
Conclusion..............................................................................................................22
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INTRODUCTION
All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing.
Most systems of religion or ethics teach that bad actions lead to bad consequence. 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. The death penalty also rests on the same
proposition as other punishments. Because of its drastic and irrevocable nature, it is even more open
to debate over its fairness, appropriateness and effectiveness than other punishments. The
proponents of death penalty believe that it is an effective way to stop crime. They focus on the death
penalty as a deterrent or something that will stop or lesson crime. They believe that the death
penalty brings the most justice to the victim of a heinous crime.
Death penalty has been a mode of punishment since time immemorial. The arguments for and
against has not changed much over the years. Crimes as well as the mode of punishment correlate to
the culture and form of civilization from which they emerge. At this point of time when the issue
[whether capital punishment must be abolished or not] is still raging, it will be appropriate to
remind ourselves as to how the legislatures and the apex Court have dealt with this issue every time
it has come up before them. Another issue is regarding the extent of judicial discretion.
1 http://oxforddictionaries.com/definition/english/capital%2Bpunishment
2 http://www.legal-explanations.com/definitions/capital-punishment.htm
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as on the nature of the crime. The commoners were executed much more often than nobles.
Minorities and foreigners were treated more harshly than members of the dominant group. The
methods of execution were also varied. The common modes of inflicting death sentence on the
offender were drowning, burning, boiling, beheading, hurling the offender from rock, stoning,
strangling, impelling, amputating, shooting by gun or starving him to death. Hanging and beheading
were the most common methods of execution in Europe and Great Britain. At present the common
modes of execution of death sentence are asphyxiation, electrocution, guillotine, shooting and
hanging. The method of execution by electrocution was first used at Auburn State Prison, New York
on 1890 and is now being extensively used in USA, UK, USSR, Japan and other European
countries. The use of Guillotine for execution was introduced in France in 1792. The method of
hanging the condemned prisoner till death has been commonly in use in almost all the countries
since ages. In India public hanging is now held to be unconstitutional5.
president9.
Mode of Execution:
The execution of death sentence in India is carried out by two modes namely hanging by neck till
death and being shot to death. The jail manuals of various States provide for the method of
execution of death sentence in India. Once death sentence is awarded and is confirmed after
exhausting all the possible available remedies the execution is carried out in accordance with
section 354(5) of the Code of Criminal Procedure1973 i.e. hanging by neck till death. Section
354(5) of Code of Criminal Procedure says, When any person is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is dead. It is also provided under The Air Force
Act, 1950, The Army Act 1950 and The Navy Act 19572 that the execution has to be carried out
either by hanging by neck till death or by being shot to death.
Countries whose laws do not provide for the death penalty for any crime:
Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Belgium, Bhutan,
Bosnia-Herzegovina, Bulgaria, Burundi, Cambodia, Canada, Cape Verde, Colombia, Cook Islands,
Costa Rica, Cote D'Ivoire, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Dominican
Republic, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau,
Haiti, Holy See, Honduras, Hungary, Iceland, Ireland, Italy, Kiribati, Kyrgyzstan, Liechtenstein,
Lithuania, Luxembourg, Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia,
Moldova, Monaco, Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand,
Nicaragua, Niue, Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania,
Rwanda, Samoa, San Marino, Sao Tome And Principe, Senegal, Serbia (including Kosovo),
Seychelles, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, TimorLeste, Togo, Turkey, Turkmenistan, Tuvalu, Ukraine, United Kingdom, Uruguay, Uzbekistan,
Vanuatu, Venezuela.
2.
Countries whose laws provide for the death penalty only for exceptional crimes such as crimes
under military law or crimes committed in exceptional circumstances:
Bolivia, Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan, Latvia and Peru.
3.
ABOLITIONIST IN PRACTICE:
Countries which retain the death penalty for ordinary crimes such as murder but can be considered
abolitionist in practice in that they have not executed anyone during the past 10 years and are
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believed to have a policy or established practice of not carrying out executions. The list also
includes countries which have made an international commitment not to use the death penalty:
Algeria, Benin, Brunei, Burkina Faso, Cameroon, Central African Republic, Congo (Republic of),
Eritrea, Gambia, Ghana, Grenada, Kenya, Laos, Liberia, Madagascar, Malawi, Maldives, Mali,
Mauritania, Morocco, Myanmar, Nauru, Niger, Papua New Guinea, Russian Federation, South
Korea, Sri Lanka, Suriname, Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia.
4.
RETENTIONIST:
Countries and territories that retain the death penalty for ordinary crimes:
Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize,
Botswana, Chad, China, Comoros, Democratic Republic of Congo, Cuba, Dominica, Egypt,
Equatorial Guinea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica,
Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Mongolia, Nigeria, North Korea,
Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and
the Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand,
Trinidad And Tobago, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen,
Zimbabwe.
DEBATE OVER ITS ABOLITION AND RETENTION:
An eye for an eye will make the whole world blind.
---Mahatma Gandhi
UNITED NATIONS VIEW:
The United Nations High Commissioner for Human Rights called a meeting in early July to
commemorate the fifth anniversary of the General Assemblys vote in favor of a moratorium on the
death penalty. The Secretary-General, Ban Ki-moon, delivered some remarks in which he reminded
listeners that more than 150 countries have either abolished capital punishment or restricted its
application. Some 32 states retain the death penalty in case of drug-related crimes and last year only
20 countries actually conducted executions. In the United States, 17 states have done away with the
death penalty.
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The right to life is the most fundamental of all human rights. It lies at the heart of international
human rights law. The taking of life is too absolute, too irreversible, for one human being to inflict
it on another, even when backed by legal process. Where the death penalty persists conditions for
those awaiting execution are often horrifying, leading to aggravated suffering.
Information
concerning the application of the death penalty, including secret trials and executions, is often
cloaked in secrecy. And it is beyond dispute that innocent people are still put to death.
The United Nations system has long advocated abolition of the death penalty. Yet the death penalty
is still used for a wide range of crimes that do not meet that threshold.
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11 Law Commission of India, 35th Report Volume I-III (Capital Punishment) September
1967,Ministry of Law, Government of India
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Non-violence:
reformation of the mind and spirit. Where it was the opinion that only God could take away life
given by him. Therefore a murderer should be sent to a penitentiary and there given every chance of
reforming himself.
5. Irrevocable: Capital punishment is irrevocable. If an innocent person is sentenced to death and
executed, the greatest injustice results. When as a result of an erroneous conviction, a man is sent to
prison, he can be compensated. But death admits of no compensation.
6. Unjust: The sentence of death injures the family of the offenders, and thus imposes suffering on
persons who have done nothing to deserve the suffering.
7.
Unequal application: Death penalty is applied unequally. Some persons who have not
sufficient financial means to defend themselves or are morally unable to do so, suffer.[31] The
penalty, therefore, which should be the expression of absolute justice, often leads in practice to
injustices against individuals.
8.
An eye for an eye: It will suffice to note that the system of individual revenge is no longer
recognized. The punishment should not be given to any offender having this principle in the mind.
12 Law Commission of India, 35th Report Volume I-III (Capital Punishment) September
1967,Ministry of Law, Government of India
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13 http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401179_1_death-penalty-scjudge-the-rarest-of-rare-category
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The question of constitutional validity of death penalty has been raised before the Supreme Court of
India more than once. In case of Jagmohan Singh v. State of Uttar Pradesh14, the constitutional
validity of death penalty was upheld by the Supreme Court by a unanimous decision of the five
judges composing the Bench.
In case of Rajendra Prasad v. State of Uttar Pradesh15, Krishan Iyer J. said that death penalty
directly affects the life of the people guaranteed under Article 21 of the Constitution. But it has been
provided by law and there is nothing like due law in Article 21. Therefore, it is valid. He further
said that to impose death penalty the two things must be required:
The special reasons should be recorded for imposing death penalty in a case.
The death penalty must be imposed only in extraordinary circumstances.
The question was again considered by a five judges Bench in case of Bachan Singh V. State of
Punjab16, particularly in view of certain observations of Krishan Iyer J. In Bachan Singh case
judges considered the social, ethical and even spiritual aspect of death penalty while upholding the
constitutional validity thereof.
But by a majority of four to one, Bhagwati J. in Bachan Singh case recorded a dissenting note.
Bhagwati, J. in his dissenting judgment has given a number of reasons for holding that death
penalty is not only unconstitutional being violative of articles 14 and 21 but also undesirable from
several points of view". One of the reasons given by him is that death penalty is irrevocable because
the execution of the sentence of death in such a case makes miscarriage of justice irrevocable.
He referred to the Book Death Penalty in America by Hugo A. Bedau which catalogues 74 cases in
which it has been responsibly charged and in most of them proved beyond doubt that persons were
wrongly convicted and executed though innocent. It is no doubt true that conviction and execution
of an innocent man for murder shocks the human conscience and it is also true that human judgment
is not infallible but I may respectfully point out that the criminal law in our country is heavily
loaded in favor of the accused and an erroneous conviction is not at all possible. In England and
America the trial is by jury and it may with utmost honesty more readily record an erroneous
verdict of guilty than a judge. A jury is very much influenced by the consideration that the interests
14 AIR 1973 SC 947
15 AIR 1979 SC 916
16 AIR 1980 SC 898
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of the society demand that no offender who perpetrates a shocking crime should escape the clutches
of law and the punishment he deserves. A judge's approach in our country is more cautious. He is
guided by the principle that hundred guilty persons may escape but not one innocent person should
be convicted.
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Even Krishna Iyer J. who strongly advocated the social and human aspect of law conceded in
Rajendra Prashad's case that death penalty may be legally permissible when he can never be
reformed.
Moreover, the Criminal Law provides ample safeguards. Under section 354(3) of the Code of
Criminal Procedure the Court has to give special reasons for awarding the death penalty. Section
235(2) provides a hearing after conviction on the question of sentence. Hanging of a murderer gives
no pleasure to a judge. He merely discharges a painful duty while awarding the death sentence in
the interests of the society. We can, therefore, repose trust in the judges that they would discharge
this onerous function with scrupulous care and human concern bearing in mind that imprisonment
for life is the normal penalty for murder while death penalty is to be awarded only where the
offender appears to be extremely depraved and a potential menace to society. So far as the
constitutional aspect is concerned very cogent reasons are given in the majority judgment for
upholding the constitutional validity of death penalty.
To sum up, there can be no doubt about the constitutionality of the death penalty in our country. As
regards its propriety in a particular case the matter has to be left to the discretion of the judge who
has to bear in mind that normally imprisonment for life is the appropriate sentence for murder under
section 302 IPC, particularly in the case of a woman. In the case of adult males death sentence may
be awarded in cases where the murder and the entire circumstance of the case show that he is a
potential menace to the society. The question of propriety of death penalty in a particular case has to
be judged not merely from the point of view of the accused; the interests of the community as a
whole must also be taken into consideration.
Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher
Singh v State of Punjab17 held that death sentence is constitutionally valid and permissible within
the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.
The challenge touching the constitutionality of the death sentence also surfaced in Triveniben v
State of Gujarat18 and the Supreme Court asserted affirmatively that the Constitution does not
prohibit the death penalty.
hanging by rope is in operation in large parts of the civilized world and there is a responsible body
of scientific and legal opinion which holds that hanging by rope is not a cruel mode of executing the
death sentence.
Public- Hanging:
Another question was arisen before the Supreme Court in Lachma Devi v. State of Rajasthan
whether for the execution of death penalty public hanging is constitutional or not?
For answering this question Supreme Court adopted liberal view and held that public hanging is not
prescribed in the prison rules therefore it is unconstitutional.
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Conclusion
In the wake of above discussion and ground realities of present day world following conclusions
can be drawn:
The opposition to abolition of the death penalty stems from the myth that it will lead an increase in
the number of murders. The fact is that in the state of Travancore there were 162 murders between
1946 and 1950 when the death penalty was not in force, But in the five years from 1950 when it
was re-imposed. There were 967 murderers. It has been argued that it is not possible to fight such
crimes by framing law. What we need is to target the root of crime.
Even Krishna Iyer J. conceded in Rajendra Prashads case that death penalty may be awarded where
the killer is such a monster or a beast that he can never be reformed. Criminals, who can be hired to
kill anyone or to throw a bomb in a crowd killing many innocent men, women and children, deserve
no sympathy. We cannot ignore the interests of the community or the country while considering
whether death sentence would be appropriate in a particular case. So far as juveniles are concerned
they have to be dealt with under the appropriate Acts for juvenile offenders and there is no question
of awarding death sentence in their case.; Thus, after taking into consideration the interests of the
individuals on the one hand and interests of the community on the other, it would be highly
imprudent to abolish the death penalty.
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REFERENCES
BOOKS REFERRED
1. Mr. Gaur K.D, Indian penal code, fourth edition 2009, pg no. 492.
2. Law Commission of India, 35th Report Volume I-III (Capital Punishment) September
1967,Ministry of Law, Government of India.
3. Bring Back the Death Penalty, U.S. News & World Report (April 1976); reprinted in The
Death Penalty, ed. Irwin Isenberg (New York: H.W. Wilson, 1977), 133
WEBSITES REFERRED
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5.
http://oxforddictionaries.com/definition/english/capital%2Bpunishment.
http://www.legal-explanations.com/definitions/capital-punishment.htm
http://www.localhistories.org/capital.html
http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html
http://articles.timesofindia.indiatimes.com/2011-11-15/india/30401179_1_death-penalty-scjudge-the-rarest-of-rare-category
6. http://indiatoday.intoday.in/story/delhi-court-sentences-five-of-a-family-to-death-for-honourkilling/1/223521.html
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