DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY,
LUCKNOW

ENGLISH:FINAL DRAFT

Topic CAPITAL PUNISHMENT

Submitted To

Submitted By:

Dr. (Mrs.) Alka Singh

Aditya Singh

Asst. Professor (English)

B.A. L.L.B. (Hons.)

Dr. Ram Manohar Lohiya National

IInd Semester

Law University, Lucknow

RollNo: 09
Section-A

TABLE OF CONTENTS

1.
2.
3.
4.
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6.

Introduction
Historical development and its origin
Brief on capital punishment and its application in India and UK
Capital punishment bill 2013-14 UK
Conclusion
Works Cited

INTRODUCTION

Capital punishment or the death penalty is a legal process whereby a person is put to death by
the state as a punishment for a crime. The judicial decree that someone be punished in this

manner is a death sentence, while the actual enforcement is an execution. Crimes that can
result in a death penalty are known as capital crimes or capital offences. The term capital
originates from the Latin capitalis, literally "regarding the head" (referring to execution by
beheading).
Capital punishment should be distinguished from extrajudicial executions carried out without
due process of law. The term death penalty is sometimes used interchangeably with capital
punishment, though imposition of the penalty is not always followed by execution (even
when it is upheld on appeal), because of the possibility of commutation to life imprisonment
(Hood, et al. capital punishment)1
Nearly all countries in the world prohibit the execution of individuals who were under the age
of 18 at the time of their crimes; since 2009, only Iran, Saudi Arabia, and Sudan have carried
out such executions. Executions of this kind are prohibited under international law. Capital
punishment is a matter of active controversy in various countries and states, and positions can
vary within a single political ideology or cultural region.
The doctrine of rarest of rare and its application in particular has resulted in various debates
across the world. A 2008 Supreme Court ruling reiterated precedents set in 1980 and in a
number of other decisions on the death penalty. It said the rarest cases were those in which
the collective conscience of the community is so shocked that it will expect the holders of
the judicial power to inflict death penalty.
Supreme Court of India spelled out what is rarest of rare (SC spells out what is rarest of
rare)2
1 < http://www.britannica.com/EBchecked/topic/93902/capital-punishment>
2 Retrieved from, http://www.telegraphindia.com/1080404/jsp/nation/story_9094126.jsp, on March
12,2015.

Capital punishment could be awarded when a murder is committed in an extremely

brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and
extreme indignation of the community

If the motive betrays depravity and meanness, or if a backward or minority community

member is killed not for personal reasons but to arouse social wrath, the accused should
get death.

Bride burning and dowry deaths including cases where murder is committed in
order to remarry and extract dowry again as well as killing the wife to marry another
woman should attract capital punishment.

If the murder victim is a child, who could not have or has not provided even an excuse,
much less any provocation for the crime.

ORIGIN AND HISTORICAL DEVELOPMENT

The first established death penalty laws date as far back as the Eighteenth Century
B.C. in the Code of King Hammaurabi of Babylon, which codified the death penalty for 25
different crimes. The death penalty was also part of the Fourteenth Century B.C.'s Hittite
Code; in the Seventh Century B.C.'s Draconian Code of Athens, which made death the only
punishment for all crimes; and in the Fifth Century B.C.'s Roman Law of the Twelve Tablets.
Death sentences were carried out by such means as crucifixion, drowning, beating to death,
burning alive, and impalement.
In the Tenth Century A.D., hanging became the usual method of execution in Britain. In the
following century, William the Conqueror would not allow persons to be hanged or otherwise
executed for any crime, except in times of war. This trend would not last, for in the Sixteenth
Century, under the reign of Henry VIII, as many as 72,000 people are estimated to have been
executed. Some common methods of execution at that time were boiling, burning at the stake,
hanging, beheading, and drawing and quartering. Executions were carried out for such capital
offenses as marrying a Jew, not confessing to a crime, and treason.
The number of capital crimes in Britain continued to rise throughout the next two centuries.
By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting
down a tree, and robbing a rabbit warren. Because of the severity of the death penalty, many
juries would not convict defendants if the offense was not serious. This lead to reform of
Britain's death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of
the 222 crimes punishable by death (Introduction to the Death Penalty).3
Execution of criminals and political opponents has been used by nearly all societiesboth to
punish crime and to suppress political dissent. In most places that practise capital punishment
it is reserved for murder, espionage, treason, or as part of military justice. In some countries
3 < http://www.deathpenaltyinfo.org/part-i-history-death-penalty>

sexual crimes, such as rape, adultery, incest and sodomy, carry the death penalty, as do
religious crimes such as apostasy in Islamic nations (the formal renunciation of the state
religion). In many countries that use the death penalty, drug trafficking is also a capital
offence. In China, human trafficking and serious cases of corruption are punished by the
death penalty. In militaries around the world courts-martial have imposed death sentences for
offences such as cowardice, desertion, insubordination, and mutiny.
The use of formal execution extends to the beginning of recorded history. Most historical
records and various primitive tribal practices indicate that the death penalty was a part of
their justice system. Communal punishment for wrongdoing generally included compensation
by the wrongdoer, corporal punishment, shunning, banishment and execution. Usually,
compensation and shunning were enough as a form of justice.
Severe historical penalties include breaking wheel, boiling to death, flaying, slow slicing,
disembowelment, crucifixion, impalement, crushing (including crushing by elephant),
stoning, and execution by burning, dismemberment, sawing, decapitation, scaphism, neck
lacing or blowing from a gun.

BRIEF ON CAPITAL PUNISHMENT AND ITS APPLICATION IN

INDIA AND UK
Many countries have abolished capital punishment; India is one of the many countries which
retains capital punishment for number of serious offences. Capital Punishment has been one
of the most hotly debated topics across the world with everyone chiming in their opinion. The
centre of controversy is whether a country should allow it or it should be banned? Whether it
is morally right to punish a person with a death penalty? Or does it go against ethics of our
society? Many think its vital to punish the terrorists or serious offenders in the case of rape
or murder in harshest way possible and if that involves death penalty then so be it as itll

serve as a strong precedent while the other side think that no one is born a criminal, its the
circumstances which lead them to commit a crime. Reformatories where they are
psychologically treated is always touted as a possible solution.
Despite this debate the application of Capital punishment in a particular case has always been
brought under scrutiny. As mentioned above India retains Capital punishment for number of
serious offences yet the Supreme Court of India has allowed death penalty to be carried out in
only 4 instances since 1995. Under Article 21 of the Constitution of India, no person can be
deprived of his life except according to procedure established by law.
Crimes punishable by death
Court proceedings: The Supreme Court of India ruled in 1983 that the death penalty should
be imposed only in "the rarest of rare cases.
Indian Penal Code, 1860: In colonial India, death was prescribed as one of the punishments
in the Indian Penal Code, 1860 (IPC), and the same was retained after independence.
Sentencing procedures: After the award of the death sentence by a sessions (trial) court, the
sentence must be confirmed by a High Court to make it final.

Once confirmed, the

condemned convict has the option of appealing to the Supreme Court. Where the condemned
prisoner is unable to appeal to the Supreme Court; or where the court either refuses to hear
the appeal or upholds the death sentence, the prisoner also has the option of submitting a
mercy petition to the President of India and the Governor of the State. Detailed instructions
regarding procedure to be observed by the states for dealing with petitions for mercy from or
on behalf of convicts under sentence of death and with appeals to the Supreme Court and
applications for special leave to appeal to that court by such convicts are laid down by the
Ministry of Home Affairs. The Ministry of Home Affairs is neither required by law to publish

a list of pending and processed mercy petitions, nor does it have to disclose the reasons
tendered by the President (Devender Pal Singh Bhullar v. State (NCT of Delhi), (2013) 6 SCC
195). 4
Power of the President: The present day constitutional clemency powers of the President
and Governors originate from the Government of India Act 1935 but, unlike the GovernorGeneral, the President and Governors in independent India do not have any prerogative
clemency powers.
Execution: The execution of death sentence in India is carried out by two modes,
namely hanging by the neck till death and being shot to death.
Hanging: The Code of Criminal Procedure, 1973. Section 354(5) reads as: When any
person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is
dead.
Shooting: The Army Act and Air Force Act provide for the execution of the death sentence
5

Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death

sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950
(Consultation Paper on Mode of Execution of Death Sentence and Incidental Matters, Law
Commission of India). Section 163 of the Act provides for the form of the sentence of death
as:- "In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender
shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to
death.

4 Retrieved from, <http://www.supremecourtcases.com/index2.php?

option=com_content&itemid=99999999&do_pdf=1&id=43381>
5 Retrieved from, http://lawcommissionofindia.nic.in/cpds1.pdf, on March 19, 2014.

Capital punishment in the United Kingdom was used from the creation of the state in
1707. Sir Samuel Romilly, speaking to the House of Commons on capital punishment in
1810, declared that "[there is] no country on the face of the earth in which there [have] been
so many different offences according to law to be punished with death as in England."
Known as the "Bloody Code", at its height the criminal law included some 220 crimes
punishable by death. The Black Act of 1723, created 50 capital offences for various acts of
theft and poaching. Executions for murder, burglary and robbery were common, the death
sentences for minor offenders were often not carried out.
The death penalty was mandatory until the Judgement of Death Act 1823 gave judges the
power to commute the death penalty except for treason and murder. The Punishment of
Death, etc. Act 1832 reduced the number of capital crimes by two-thirds. In 1861, several
acts of Parliament further reduced the number of civilian capital crimes to five : murder,
treason, espionage, arson in royal dockyards and piracy with violence The death penalty
remained mandatory for treason and murder unless commuted. From 1931 pregnant women
could no longer be hanged (following the birth of their child, and in 1933 the minimum age
for capital punishment was raised to 18 under the Children and Young Persons Act 1933.
By 1957 a number of controversial cases highlighted the issue of capital punishment again.
Campaigners for abolition were partially rewarded with the Homicide Act 1957. The Act
brought in a distinction between capital and non-capital homicide. Only six categories of
murder were now punishable by execution:

in the course or furtherance of theft

by shooting or causing an explosion

while resisting arrest or during an escape

of a police officer

of a prison officer by a prisoner

the second of two murders committed on different occasions (if both done in Great
Britain).

THE CAPITAL PUNISHMENT BILL 2013-14

A private member bill or presentation bill was presented to Parliament by Phillip Hollobone a
member of British Conservative Party on 24th June, 2013. The aim of the bill was to bring
back archaic form of punishment that will see people to be put to death for certain crimes.
The bill received its first reading on 24 th June 2013. The second reading of the bill was
scheduled on 24th February, 2014. The bill created a huge a furore in social media and
amongst people who were against a law which would take another human beings life.
Subsequently, the bill was withdrawn and no further progress was made.( Capital Punishment
Bill 2013-14)6

CONCLUSION
The existence of the death penalty in any society raises one underlying question: have we
established our justice systems out of a desire for rehabilitation, or out of a desire for

6 Retrieved from, http://services.parliament.uk/bills/2013-14/capitalpunishment.html, on March 19,

2014.

retribution? What is the purpose of punishment? We take our lead from one major source,
our parentsand they no doubt took their lead from their own parents. When your young
child emulates what he just saw in a Rambo movie, you give him a stern lecture about what is
real and what is not, what is acceptable in real life and what is not. When your child tries
some crazy acrobatic move off a piece of furniture and hurts himself, you might spank him to
be sure that he remembers never to do it again. So when the child grows up, breaks into a
home, and steals electronics, he gets caught and goes to prison. His time in prison is meant to
deprive him of the freedom to go where he wants anywhere in the world, and to do what he
wants when he wants. This is the punishment, and most people do learn from it. In general,
no one wants to go back. But if that child grows up and murders someone for their wallet or
just for fun, and they are in turn put to death, they are taught precisely nothing, because they
are no longer alive to learn from it. We cannot rehabilitate a person by killing him or her.
In a larger sense, capital punishment is the ultimate warning against all crimes. If the
criminal knows that the justice system will not stop at putting him to death, then the system
appears more draconian to him. Hence, he is less inclined to break and enter. He may have
no intention of killing anyone in the process of robbing them, but is much more apprehensive
about the possibility if he knows he will be executed. If murder is the wilful deprivation of a
victims right to life, then the justice systems wilful deprivation of the criminals right to the
same iseven if overly severea punishment which fits the most severe crime that can be
committed. Without capital punishment, it could be argued that the justice system makes no
provision in response to the crime of murder, and thus provides no justice for the victim.( 5
Arguments For And Against The Death Penalty)7

7 < http://listverse.com/2013/06/01/5-arguments-for-and-against-the-death-penalty/>

WORKS CITED
1. Hood, R. capital punishment. Encyclopaedia Britannica. Encyclopaedia Britannica
Online. 12 January 2013. Web. 31 March
2014.<http://www.britannica.com/EBchecked/topic/93902/capital-punishment>.
2. Lahiri, T. Death: What is Penalty the rarest of rare? The Wall Street Journal. 13
September 2013. Web. 31 March 2014.
<http://blogs.wsj.com/indiarealtime/2013/09/13/death-penalty-what-is-the-rarest-ofrare/>.
3. SC Spells Out What Is Rarest of Rare. The Telegraph. 4 April 2008. Web. 1 April
2014. <http://www.telegraphindia.com/1080404/jsp/nation/story_9094126.jsp>.
4. Introduction to The Death Penalty.. Death Penalty Information Centre. n.d. Web. 1
April 2014. <http://www.deathpenaltyinfo.org/part-i-history-death-penalty>.
5. Devender Pal Singh Bhullar v. State (NCT of Delhi), (2013) 6 SCC 195.
6. Mode of Execution of Death Sentence and Incidental Matters. Law Commission of
India. Consultation Paper, n.d. Web. 2 April 2014.
<http://lawcommissionofindia.nic.in/cpds1.pdf>
7. The Human Rights Act 1998 (Amendment) Order 2004, UK.
8. Protocol No. 13 to the Convention for the Protection of Human Rights and
Fundamental Freedoms, concerning the abolition of the death penalty in all
circumstances. Council of Europe.
10 5 Arguments For And Against The Death Penalty. Listverse. 1 June 2013. Web. 4
April 2014. < http://listverse.com/2013/06/01/5-arguments-for-and-against-the-deathpenalty/>.