Capital Punishment: Revisiting the Abolition-Retention Debate

"A society which felt neither anger nor indignation at outrageous conduct
would hardly enjoy an effective system of law" - Salmond.
The clemency petition filed by convicted terrorist Mohammed Afzal Guru has
obtained a large amount of attention in the media. Mercy plea advocated by
the Jammu and Kashmir Chief Minister and the coalition partner of his
government, not to talk of the violent public protests in the Kashmir valley
has polarized the whole country into Kasmiris on one side and rest of India
on the other side. All this has given rise to a debate over issues
1. Whether death penalty be abolished?
2. Whether Afzal Gurus case satisfies the relevant legal tests incorporated
under law and laid down in various judicial decisions?
3. Whether the provision of death penalty as an alternative punishment for
murder, in sec. 302, Penal Code is not in the public interest?
4. Whether the provisions of section 302 of I.P.C. are against the ethos of
Article 19 as well as 14?
From the time immemorial this has for long remained a controversial
question both at national and international level. The issue has been
tirelessly debated on national as well as international level but nothing
conclusive has come out till now. No doubt the problem is of serious nature
but the difficulty involved should not deter us from venturing into the pros
and cons involve in the question. The opinion of intellectuals such as Legal
Philosophers, Jurists, Judges, and other social scientists stands divided. In
many countries capital punishment is an integral part of criminal justice
system and it has remained to be accepted form of justice through the ages
though its form may have been different because of reasons of geography,
culture, and the passing of time.
The Indian jurisprudence is a blend of reformative and deterrent theories.
While the punishments are to be imposed to deter the offenders, it is also
inalienable part of Indian penal jurisprudence that the offenders should be
given opportunity for reformation. Bearing in mind these fundamental tenets,
the legislatures drafted Sec. 354 (3) of the CR.P.C. This subsection basically
lays down that special reasons are to be recorded by the Court for imposing
death punishment in capital offences. Thus, the position of law after Cr.P.C.
1973 became that the general rule was life imprisonment while the death
sentence was to be imposed only in special cases.
Crime has rightly been described as an act of warfare against the community
touching new depths of lawlessness. The object of imposing deterrent
sentences is threefold:

(1) To protect the community against callous criminals for a long time.
(2) To administer as clearly as possible to others tempted to follow them into
lawlessness on a war scale if they are brought to and convicted, deterrent
punishment will follow, and
(3) To deter criminals who are forced to undergo long-term imprisonment
from repeating their criminal acts in future. Even from the point of view of
reformative form of punishment "prolonged and indefinite detention is
justified not only in the name of prevention but cure. The offender has been
regarded in one sense as a patient to be discharged only when he responds
to the treatment and can be regarded as safe"1for the society.
Hobbes asserted that every man had under the natural order has the right of
repraisal for wrongs done to himself or anyone else. Then he said that social
contract had left this right to the sovereign while taking it away from
everyone else. Kant viewed that every political society had a duty to enforce
retributive justice. Rousseau felt that the subject ought not to complain if the
sovereign demanded the subjects life. He considered death as a proper
punishment, if the criminal was beyond redemption. "A society which felt
neither anger nor indignation at outrageous conduct would hardly enjoy an
effective system of law" (Salmond).
England abolished death penalty by murder 2. In spite of the Murder
(Abolition of Death Penalty) Act, 1965 in England death sentence can be
lawfully imposed in cases of high treason, setting fire to Queens ships,
arsenals etc and in piracy with violence. In the Soviet Union Death Penalty
was abolished in May 1947 and in May 1950 it was reintroduced for Treason,
espionage and sabotage and in 1954 for intentional homicide under
aggravating circumstances. French Penal Code of 1810 as amended in 1959
retained Death Penalty 3. Death Penalty has been retained by the prepatory
draft for the revised Penal Code of Japan4, though it should be invoked with
great caution5. This points out towards the fact that most of the nations are
reluctant to do away with the Death Penalty.
One of the arguments of abolitionists is that death penalty is against Hindu
Philosophy but this will not stand the scrutiny of mythological texts. The
imposition of death penalty in India: appears to go back to ancient times
according to the countrys epics and mythology: stories abound in our
mythology of the destruction of demons who, became a deadly menace to
the life, property and authority of mortals and the divine race alike; tales of
Hiranyakashyapu, Bali and Mahishasura etc. No doubt religion preaches
against killing of human being but that presupposes an ideal society and if
we cannot provide ideal conditions then we cannot of particular aspect in
isolation. The statistics, which talks of absence of any relationship between
death penalty and occurrence of crime, cannot be straightway trusted for
such an important policy decision as that of death penalty. The statistics

derived from a quantitative method may not be an appropriate method to

judge the basic truth about the qualitative aspects of those results
Retributive character: - The punishment is retributive in character. The
object of sentencing should be to see that the crime does not go unpunished
and the victim of crime as also the society has the satisfaction that justice
has been done to it lest it may lead to Lynch Law. There have been instances
where victims relative killed the accused. Criminal Law has its origin in
vengeance. Punishment mechanism revolves around the satisfaction of lawabiding persons anger. Anger is not always bad but it is the indifference of
community towards the circumstances, which is more harmful. One of the
purposes of law is to calm the communitys anger by punishing the criminal.
Anger which is not selfish like greed or jealously is socially constructive and
when it erupts for right cause it should be rewarded. Punishment is primarily
satisfaction of private revenge and at the same time an emphatic
denunciation of the crime by the society. Any civilized society which shies
away from showing righteous indignation has nothing to distinguish it from
maim soul The Criminal Law stands to the passion of revenge in much the
same relation as marriage to sexual appetite6. Retributive punishment tends
to control recidivism.
The theory of deterrent punishment draws its inspiration from the hedonistic
philosophy of Beccarias classical school of criminology. A rigorous and
maximum punishment as against a moderate and lesser punishment helps to
prevent the commission of a crime. For the incorrigibles and habitual and
hardened criminals death penalty is best suited and it is the only method
teaching hardened criminals. The incorrigible and hardened criminal as a
rotten limb of the society must be eliminated. The prevalence of recidivism
offers a serious stumbling block to a too ready acceptance of the idea of
readily achieved reformation. The recidivist becomes the criminal who after
having experienced rehabilitation treatment returns to crime and ultimately
to prison again to be rehabilitated further. Making murder a safer proposition,
a less deadly proposition for the killer will have a hostile effect on society.
The capital punishment is an effective tool to curve the grave wrong
act such as of killing and it can also be instrumental in preventing
society from becoming ever more imperfect than it need be.
Previous efforts to abolish the Death Penalty
Legislative attempts to abolish the death penalty in India have failed. Before
Independence a private Bill was introduced in the 1931 Legislative Assembly
to abolish the death penalty for penal code offences. The British Home
Secretary at the time however rejected the motion.
The Government of independent India rejected a similar Bill introduced in the
first Lok Sabha . Efforts were also made in Rajya Sabha to move resolution
for abolition of death sentence in 1958 and 1962 but were withdrawn after

some debate.
The Law Commission in its Report presented to the Government in 1967 and
to the Lok Sabha in 1971 concluded that the death penalty should be
retained and that the executive (President) should continue to possess
powers of mercy.
The issue of constitutional validity of Sec. 302, the SC in Jagmohan V/s State
of U.P. Apart thrashed out I.P.C. in detail from the constitutional validity, the
SC also discussed position in other countries, the structure of Indian Criminal
law, the extent of Judicial discretion etc.
It was held in Jagmohan Singh v. State of U.P.7 that death sentence act as
deterrence but as token of emphatic disapproval of the crime by the society,
where the murder is diabolical in conception and cruel in execution and that
such murderers cannot be simply wished away by finding alibis in the social
maladjustment of the murderer. Expediency of transplanting western
experience in our country was rejected, as social conditions and so also the
general intellectual levels are different. The court referred to the 25th Report
of the Law Commission of India, in which it was stated that India cannot risk
the experiment of abolition of capital punishment. The fact that the
possibility of an error being committed in the matter of sentence can be
corrected by appeals and revisions to higher courts was relied upon.
The approach of our Supreme Court in the matter of death sentence is
cautious as well as restrictive which is in consonance with the modern and
liberal trends in criminal jurisprudence. The doctrine of Rarest of Rare
evolved by the apex Court reflects the humanist Jurisprudence. There have
been ample instances where the Supreme Court has restricted the use and
imposition of death penalty only to cases coming with in the category of
rarest of rare. Under sec 354(3) of the Criminal Procedure Code, 1973 a new
provision has been introduced to say that 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 reason for
the sentence awarded and in the case of sentence of death, the special
reason for such sentence.
Rarest of rare cases
Whether a case falls under the category of rarest of rare case or not, for that
matter the Apex court laid down a few principles for deciding the question of
sentence. One of the very important principles is regarding aggravating and
mitigating circumstances. Court opined that while deciding the question of
sentence, a balance sheet of aggravating and mitigating circumstances in
that particular case has to be drawn. Full weightage should be given to the
mitigating circumstances and even after that if the court feels that justice
will not be done if any punishment less than the death sentence is awarded,
then and then only death sentence should be imposed.

In Machhi singh vs. State of Punjab8 the court laid down: - "In order to apply
these guidelines inter-alia the following questions maybe asked and
answered:
(a). Is there something uncommon about the crime, which renders sentence
of imprisonment for life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but
to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favor of the offenders?"
Aggravating Circumstances

Mitigating circumstances

1. Murder committed in an extremely brutal, grotesque,

diabolical, revolting or dastardly manner so as to arouse
intense and extreme indignation of the community.
2. Murder- for a motive, which evinces total depravity
and meanness.
3. Murder of a Scheduled cast or Scheduled tribearousing social wrath (not for personal reasons).
4. Bride burning/ Dowry death.
5. Murderer in a dominating position, position of trust or
in course of betrayal of the motherland.
6. Where it is enormous in proportion.
7. Victim- innocent child, helpless woman, old/infirm
person, public figure generally loved and respected by
the community.

1.That the offence was committed under the influence of

extreme mental or emotional distribution;
2. If the accused is young or old, he shall not be
sentenced to death.
3. The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
4. The probability that the accused can be reformed and
rehabilitated; The state shall by evidence prove that the
accused does not satisfy the conditions (3) and (4)
above.
5. That in the facts and circumstances of the case, the
accused believed that he was morally justified in
committing the offence.
6.That the accused acted under the duress of domination
of another person.
7. That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.

Where two members of an unlawful assembly went forward to deal with their
target by disposing him of and, on being not able to get him, gunned down
his two young girls whom they chanced to spot on way back, the Supreme
Court held that it was not one of those "rarest of rare" cases in which death
penalty would be warranted 9.
Supreme Court in Dhananjoy Chatterjee v. State of W.B.10 held that the
measure of punishment in a given case must depend upon the atrocity of the
crime; the conduct of the criminal and the defenseless and unprotected state
of the victim. Imposition of appropriate punishment is the manner in which
the courts respond to the society's cry for justice against the criminals.
Justice demands that courts should impose punishment fitting to the crime
so that the courts reflect public abhorrence of the crime. The courts must not
only keep in view the rights of the criminal but also the rights of the victim of
crime and the society at large while considering imposition of appropriate
punishment.

As already stated that opinion on Capital Punishment stands divided and

large segment of population including notable penologists, judges, jurists,
legislators and other enlightened people still believe that death penalty for
murder and certain other capital offences does serve as a deterrent and a
greater deterrent than life imprisonment. Courts must administer shock
therapy to deter certain crimes, as threat of death to the offender may still
be a promising strategy in some frightful areas of murderous crime. Death
penalty serves as a deterrent as well as retributive. Only penalty of death,
will provide maximum deterrence. No other punishment deters men so
effectually from committing crimes, as the punishment of death. Death is
death, its terrors cannot be described more forcibly. Prima Facie, the penalty
of death is likely to have a stronger effect as a deterrent to normal human
behaviour than any other form of punishment, though it is difficult to unravel
the innermost recesses of the minds of potential murderers. The truth is that
some crimes are so outrageous that society insists on adequate punishment,
because the wrongdoer deserves it, irrespective of whether it is a deterrent
or not. If accepted that death penalty have no deterrent effect then it will be
most illogical and irrational to ask for continuances of a scheme of penalties
for lesser offences against society. How can lesser punishment have a
deterrent effect when the severest in the scheme of penalties have no such
effect?
Some of the observations made by the apex court in Bachan Singh's case are
worth mentioning. On the question of reasonableness of death penalty, the
SC observed- "...if not withstanding the view of the abolitionists to the
contrary , a very large segment of people, the world over, including
sociologists , legislature , Jurists , judges and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of
society, if in the perspective of prevailing crime conditions in India,
contemporary public opinion canalized through the peoples representatives
in parliament, has repeatedly including the one made recently to abolish or
specifically restrict the area of death penalty, if death penalty is still a
recognized legal sanction for murder or some types of murder in most of the
civilized countries in the world , if the farmers of the Indian constitution were
fully aware of the existence of death penalty as punishment for murder,
under the Indian Penal Code, if the 35th report and subsequent reports of law
commission suggesting retention of death penalty, and recommending
revision of the Cr.P.C. and the insertion of the new sections 235 (2) and 354
(3) were before the Parliament when it took up revision of the Cr.P.C.
Further the opinion of Sir James Fitziames Stephen, a great Jurist, who was
concerned with the drafting of I.P.C. is very important to mention- " No other
punishment deters man so effectually from committing crimes as the
punishment of death. This is one of those propositions which is difficult to
prove simply because they are in themselves more obvious than any proof
can make them. In any secondary punishment, however terrible, there is

hope, but death is death, it's terrors cannot be described more forcibly. "
These views are very strong answers to the people who oppose death
punishment with the arguments that it does not serve penological purpose.
Constitutional validity of death sentence
In the case of Jagmohan V/s State of U.P . the question of constitutional
validity of death punishment was challenged before the SC, it was argued
that the right to live was basic to freedom guaranteed under Article 19 of the
constitution . The S.C. rejected the contention and held that death sentence
cannot be regarded as unreasonable per se or not in the public interest and
hence could not be said to be violative of Article 19 of the constitution.
In Bachan singhs case it was categorically opined by the Apex court ..it is
not possible to held that the provision of death penalty as an alternative
punishment for murder, in sec. 302, Penal Code is unreasonable and not in
the public interest. The impugned provision in Sec. 302 , violates neither the
letter nor the ethos of Article 19" . [ Para 132]. Sarkaria J. delivered the
judgment for majority discussed all these issues at length, and the SC, with
the majority of 4:1 rejected the challenges to the constitutionality of sec.302
I.P.C.
Indispensability of Capital Punishment in India
Life imprisonment in our country is not of much significance as it can be
substantially reduced (limitation is that it cannot be reduced below 14
years). Life imprisonment under no circumstances should be reduced as it is
in most heinous crimes that the sentence life imprisonment is awarded. Even
if this is accepted still there are other valid objections. Death penalty cannot
be removed or abolished on humanitarian grounds or on the grounds of other
alternative mode of punishment are available. A killer who is a perpetrator of
others right to live cant claim to have an inviolable right to live. The focus
should be on the mischief flowing from what the criminal has done to his
victim and those near and dear to him and greater attention be paid to
victimlogy and therefore to the retributive aspect of punishment. The
abolitionist needs to shift their focus from criminal to victim, as a killer is a
proven enemy of society. Even if option to decide on death penalty or life
imprisonment is to be given it should be left to the victims family who have
suffered due to the killer and know more about cruelty than the abolitionists.
The demand of abolition of death penalty is a demand in wrong direction and
represents a trend reversal when society is considering the issue whether
mercy killing be accepted or not. Death penalty to a killer is a sort of mercy
to an ailing society, which wants to get rid of its enemy. The process of
reformation of criminals with an unascertained record would entail a great
risk as a sizable number of criminals instead of being reformed may be
encouraged to commit offences after offences and become a serious and
horrendous hazard to the society. The question, therefore, is--should the
country take the risk of innocent lives being lost at the hands of criminals

committing heinous crimes in the holy hope or wishful thinking that one day
or the other, a criminal, however dangerous or callous he may be, will reform
himself, Valmikis are not born everyday and to expect that our present
generation, with the prevailing social and economic environment, would
produce Valmikis day after day is to hope for the impossible.
Even for the sake of argument if it is accepted that capital punishment has
no deterrence then it means that criminal is not afraid of death and it will be
difficult for the state to keep such a person in prison after all it is the fear of
death that keeps a criminal in jail. After all criminal facing life imprisonment
need a single chance to set himself free for taking a revenge from adverse
witnesses and the prosecution who according to him were responsible for
sending him to jail. Judge may also become the victim of his anger. As there
is a saying so long as there is life, there is scope for irrepressible hope and
hope for a break for freedom. A prisoner serving life imprisonment can go on
a killing spree and there can be no further punishment from the punishment
he is already facing. One important question that arises is shall we sacrifice
the lives of future victims in order to spare the life of a murderer. Argument
that goes against death penalty is that the societies do not have the right to
take anyones life since it cannot give life then why to kill soldiers of enemy,
terrorist. One may say what is the need of providing arms to security forces if
no human being can be deprived of his/her life whatever may be the
circumstances. Prima Facie, the penalty of death is likely to have a stronger
effect as a deterrent to normal human behavior than any other form of
punishment, though it is difficult to unravel the innermost recesses of the
minds of potential murderers.
The conditions prevailing in some western countries that have abolished
death penalty are incomparable with India. In abolitionist States even the
most notorious criminals are effectively segregated from civil society for the
rest of their natural life.
Contrastingly, in India life sentence can be reduced to 14 years. Our prison
system is inadequate and unable to hold capital offenders for longer periods
as in most western countries. How many times we have read the reports in
newspaper about recovery of cell phones from prisons and many criminals
find it suitable to operate from jails as they are protected from their rival
criminals.
Conclusion:"Each extreme is a vice; virtue lies in the middle" - Aristotle
The death penalty is a part of Indian law, and unless it is altered by legal or
constitutional amendment, it is a given which every judge of every Indian
court is bound to apply, whenever the relevant legal test are fulfilled.

The Indian jurisprudence is a blend of reformative and deterrent

theories. While the punishments are to be imposed to deter the offenders, it
is also inalienable part of Indian penal jurisprudence that the offenders
should be given opportunity for reformation. Bearing in mind these
fundamental tenets, the legislatures drafted Sec. 354 (3) of the CR.P.C. This
subsection basically lays down that special reasons are to be recorded by the
Court for imposing death punishment in capital offences. Thus, the position
of law after Cr.P.C. 1973 became that the general rule was life imprisonment
while the death sentence was to be imposed only in special cases.
Prima facie, the penalty of death is likely to have a stronger effect as a
deterrent to normal human being than any other form of punishment, though
it is difficult to unravel the innermost recesses of the mind of the potential
murderers. The truth is that some crimes are so outrageous that society
insists on adequate punishment, because the culprit deserves it, irrespective
of weather it is a deterrent or not. Retribution is still a socially acceptable
function of punishment. The instinct for retribution is part of the nature of
man. Retribution and deterrence are not two divergent ends of capital
punishment. They are convergent goals, which ultimately merge into one.
Death penalty to a killer is a sort of mercy to an ailing society, which wants
to get rid of its enemy. Anger which is not selfish like greed or jealously is
socially constructive and when it erupts for right cause it should be
rewarded.
Even for the sake of argument if it is accepted that capital punishment has
no deterrence then it means that criminal is not afraid of death and it will be
difficult for the state to keep such a person in prison after all it is the fear of
death that keeps a criminal in jail. The abolitionist needs to shift their focus
from criminal to victim, as a killer is a proven enemy of society.
If the law is not enforced then cure is enforcement, not repeal. If
death penalty is an evil it is a necessary evil and a criminal chooses
this voluntarily.
***
References:# The Death Penalty: Morally Defensible - by Casey Carmical
# Information on Death Penalty - by Bikram Jeet Batra
# Capital punishment: revisiting the abolition-retention debate by British Council India
Legal news
# Death Penalty- Case for Its Abolition - by Monica Sakhrani, Maharukh Adenwalla
# Consultation Paper on Modes of Execution of Death Sentence and Incidental Matters
Published by 35th Law Commission of India
# Death Penalty Useless - by Patrick Murphy U.S.A. Today, 23 Feb. (1995)
# Two Dozen Mercy Petitions Pending - The Hindu, Oct. 9, 2006,
# Doing Away with the death Penalty - By Promod Nair

# Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.
# Universal Declaration of Human Rights.
# International Covenant on Civil and Political Rights.
# www.unitedhumanrights.com
# www.webster.com
# http://www.hindu.com/2006/10/09/stories/2006100916471400.htm
# http://www.carmical.net/articles/deathpenalty.html