SEMINAR FILE

SUBJECT: CLINICAL LEGAL EDUCATION

TOPIC: CAPITAL PUNISHMENT(PROS AND CONS). WHEN
AND WHY IT CAN BE JUSTIFIED

SUBMITTED TO: SUBMITTED BY:

Ms. Pinky Bangarh Gursimran walia
(1507002027)
BCOM LLB 9thsemester
 INDEX
 Acknowledgement
 Introduction
 Definition Of a Death Sentence
 Position Of Death Penalty In India
 Crimes Punishable by Death Penalty in India
 Methods of Execution to Death
 The Validity Of a Death Sentence
 Delay in Execution of Death Sentence
 Case Laws
 List of the Pros of the Death Penalty
 List of the Cons of the Death Penalty
 Statistics Conclusion
 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher Ms. Pinky Bangarh as who
gave me the golden opportunity to do this wonderful project on the topic (Capital punishment
pros and cons. When and why it ca be justified), which also helped me in doing a lot of Research
and I came to know about so many new things I am really thankful.
 1

Introduction
Through the passing centuries, we have seen the rise and fall of various dynasties but the only
thing common between them was their use of death penalty as a means of administering justice.

If we look at the time of the Mauryan Dynasty, the principal followed to punish a person was an
eye for an eye, a hand for a hand, etc. The later dynasties followed different types of
punishments such as dragging the body by a horse, cutting of head or any body part, stamping by
an elephant which was very brutal in nature. In the world perspective, the criminal laws
regarding death penalty were first codified by King Hammurabi of Babylon. There were other
forms of death penalty which were prevalent in the world such as guillotining in France,
beheading in middle-east countries, execution by electrocution in Russia, etc. But in the present
era with codified laws and awakened conscience, is death penalty still really the best option of
punishment? Despite many organizations protesting for the abolishment of a death sentence, it is
still being carried out in different countries. The UN in its Charter of Rights has declared death
penalty or capital punishment as a crime against humanity and had also asked its member
countries to get abolish it. One of the member countries of the UN – India, has still not got rid of
capital punishment even though the Constitution of India has stated that the government has no
right to take the life of any person as per article 21. Consequently, India’s international stand on
the Moratorium on death penalty both at the General Assembly and at the Human Rights Council
has always been against the resolution saying, it goes against the statutory law of the country
where an execution is carried out in the “rarest of rare” cases.
 2

Definition Of a Death Sentence

A death sentence is a legal process where a person is put to death by the state as a punishment for
a crime committed by him. The judicial decree that someone should be punished in this manner
is called a death sentence, while the actual process of killing the person is called an execution.
Crimes that can result in a death penalty are known as capital crimes or capital offenses. The
term capital has a Latin origin from the term capitalist, literally “regarding the head”. It refers to
a sentence that condemns a convicted defendant to death. It is also an affliction or a situation that
is considered to be fatal; also a prognosis of death.
 3

POSITION OF DEATH PENALTY IN INDIA

Article 21 of the Constitution of India guarantees to its citizens the right to life and personal
liberty which includes the right to live with dignity. According to this article, no person shall be
deprived of his life and personal liberty except according to the procedure established by law.
This means that a person’s life and personal liberty can be disputed only if that person has
committed a crime. Therefore the state may take away or abridge even right to life in the name of
law and public order following the procedure established by law. But this procedure must be
““due process.1

The Supreme Court declared that section 303 is unconstitutional because it is not in tune with
articles 14 and 21 of the constitution.2

In India, non-governmental organizations are fighting against inhuman, degrading and cruel
punishment and protection of human rights. Although judiciary has evolved the principle of
“rarest of rare cases” and has indicated that it is with special reasons that death penalty must be
imposed in cases of exceptional and aggravating circumstances where offenses are very grave in
nature, the application of the principle itself, as evident from a plethora of cases, is in violation of
Constitutional provisions. Justice V.R. Krishna Iyer, an eminent jurist and former judge of the
Supreme Court of India was himself against death sentence. According to Justice Iyer, life is
given by God and can be taken away by God himself. The state does not have the right to take
away a person’s life. Execution by state amounts to inhumanity. He further stated that Gandhi’s
country must set an example by abolishing death penalty. Even if supported by a judicial
decision, the state must not hang a person. The law commission , in its 35th report(1967)
observed that having regard to the conditions in india , to the variety of the social upbringings of
its people , to the disparity in the level of morality and education in the country, to the vastness
of its area and to the paramount need for maintaining law and order in the country at the present
juncture . India cannot risk the ablotion of capital punishment .The law commission strongly
feels that capital punishment acts as an effective deterrent which is important object and even if
all objects were to be kept aside .The supreme court observed that it is incoorect to say that
capital punishment did not serve any purpose. It has a strong deterrent effect .3

1
Maneka Gandhi vs union of india (1978)
2
Mithu v the state of Punjab (2001)
3
Bachan singh v state of Punjab (1979) 4
 Crimes Punishable by Death Penalty in India

1) Aggravated Murder

Under Article 302 of the Indian Penal Code, murder is a punishable offense. Similarly,
in Bachan Singh Vs State of Punjab(1980), The supreme court of India held that death penalty
can only be said to be constitutional when it was applied as an exceptional penalty in the rarest of
the rare cases.

The instances of murder when a death penalty can be awarded are-

(i) A death penalty can be awarded to a group even if one of the members of the gang in the
process of doing an armed robbery commits a murder(Section 396 of IPC,1860)

(ii) When a person is kidnapped for ransom and the kidnapped person gets killed, it is punishable
by death penalty. (Section 364A of IPC,1860)

(iii) Membership of an association and using of guns or ammunition which results in the death of
a person will be awarded a death penalty(Article 6 of The Unlawful Activities (Prevention)
Amendment Ordinance,2004 )

(iv) Being engaged in any kind of organized crime activities which results in the death of a
person shall be punished with death penalty (State Laws)

(v) The act of Committing or assisting someone in committing sati is an act punishable by death
itself(Article 4(1) of The Commission of Sati (Prevention) Act)

2) Terrorism-Related Offenses
The usage of any explosive of a special category which is likely to endanger the lives of people
or cause serious damage to property is an offense punishable by death (Section 3(b) of the
Explosive Substances (Amendment) Act,2001)

3) Aggravated Rape

(i) A rapist who during the course of the crime causes the death of the victim or causes the victim
to be left in a “persistent vegetative state” shall be punished by death under the Criminal Law
(Amendment) Act, 2013.

(ii) Following the Nirbhaya Gang Rape case in 2012, repeated gang rapes were also held to be
punishable by death under Section 9 of the Criminal Law (Amendment) Act 2013.

(iii) The rape of a 8 year old Kashmiri girl i.e Asifa Bano case caused the amendment in the
Criminal Law (Amendment) Ordinance, 2018 which said that the death penalty may be imposed
for the rape of girls under 12 years of age, and the minimum punishment is 20 years in prison,
along with a fine.

4) Treason

The act of Waging or attempting to wage war against the government and assisting officers,
soldiers, or members of the Navy, Army, or Air Forces in committing mutiny are punishable by
the death penalty. (Article 121 and 136 of the Indian Penal Code,1860)

5) Kidnapping

The unlawful detaining or kidnapping of a person is an act punishable by death even if the
kidnapper only threatens to harm the victim or actually does so. (Article 364 A of the Indian
Penal Code)

However, whether (or when) these offenses are death-eligible must be considered in the light of
the Indian Supreme Court’s decision in Bachan Singh Vs State of Punjab(1980)
 6

Methods of Execution to Death

The various types of methods of execution are as follows:

1. Death by burning: This type of execution was seen in the famous situation of Joan of
Arc who was sentenced to death by burning on the ground that she was a witch.
2. Wheel: The process can include rolling a wheel full of spikes on top of a person or
attaching a person to a wheel and roll him down a hill.
3. Execution by firing: The most common form of execution during World War II
whereby a firing squad is called and then the accused person is tied to a pole and then
fired upon.
4. Headman’s Axe: This is the method by which the head is placed on a wooden
platform and the executioner chops off the head of the convict by the use of an axe.
5. Guillotining: Another common form of execution seen in the French Revolution. Dr.
Joseph Guillotine was the person who invented this method whereby the accused
person’s head was placed in a round hole on a wooden block and a blade is dropped
cutting the person’s head.
6. Gas chambers: The most common form of execution seen in Nazi Germany whereby
the enemies of Adolf Hitler were sent to concentration camps. They were sent to
chambers where toxic gas is to be released killing the people.
 7

The Validity Of a Death Sentence

In India, death penalty is handed out by the method of hanging by the neck. This method has
been in practice ever since the British times and has not been abolished till date. Section 53 of
the Indian Penal Code 1860 provides for a death sentence and section 368 of the Code of
Criminal Procedure provides power to High Courts to confirm death sentences. Death penalty is
handed out in cases known as rarest of the rare cases i.e. those cases in which the collective
conscience of the community is so shocked that it will expect the judiciary to deliver death
penalty on the accused. The Indian Supreme Court has stated that cases in which a murder is
committed in its extreme state can be put under the purview of rarest of rare cases.

In the case of , the Supreme Court made the decision that mandatory death penalty is
unconstitutional in nature. While. Although the consequent legislation for drug and criminal
offenses prescribes a mandatory death penalty, the Supreme Court has not expressly struck down
death penalty as unconstitutional. Also, Indian courts have not actually applied the mandatory
death penalty for these crimes4. Similarly, in The supreme court of India held that death penalty
can only be said to be constitutional when it was applied as an exceptional penalty in the rarest of
the rare cases.5
4
Mithu v. State of Punjab(2001),
5
Bachan Singh Vs State of Punjab(1980),

8
 Delay in Execution of Death Sentence
Delay in the execution of a death sentence should be a reasonable factor enough to be considered
for reducing the sentence from death penalty to life imprisonment keeping in mind the mental
agony inflicted on the accused during the tenure. The Supreme Court has repeatedly held that
excessive delay in executing the death penalty, leaving the condemned prisoner to suffer a
“dehumanizing effect” of “facing the agony of alternating between hope and despair” renders the
capital punishment too inhuman to be inflicted, thus entitling the prisoner to the lesser sentence
of a life term. According to the latest data, the delay in the trial of death row convicts makes the
very punishment of death penalty ineffective and instead increases the torture inflicted on the
convict and his family.

By the end of December 2017, there were said to be 371 convicts waiting on the death row in
India with the oldest case from 1991 which is 27 ago according to the death penalty report
published on January 2018. Still, only four of the convicts on death row were executed in the last
thirteen years with one being a rapist of a minor child and the other three convicted of terrorism
crimes. According to the law commission of India report of 2015 on death penalty, Death row
prisoners still continue to face long delays in trials, appeals and thereafter in executive clemency

According to a study carried by the center on death penalty, the average time faced for trials by
the 373 convicts facing death row was 5 years. Of 127 prisoners, the trial time faced was more
than 5 years and of 54 convicts it continued for more than 10 years. The delay was extreme to
such a limit that a convict in one case had spent 21 years on death row waiting for execution. On
May 4, 2018, the Supreme Court upheld its verdict on awarding the death penalty to two of the
four convicts accused in the Nirbhaya gangrape and murder case. The last time an execution was
carried out was in the year 2015 when Yakub Memon was convicted after being found guilty of
being involved in the Mumbai Terrorist in the year 1993 which had killed 257 people.
 9

Case Laws
In the case , Justice Bhagwati in his dissenting opinion stated that death penalty is necessarily
arbitrary, discriminatory and capricious. He further stated that it was indeed the poor who are
subjected to the gallows and the rich and the affluent usually escape from its clutches. This is
indeed a gross violation of Articles 14 and 16 of the Constitution 6. In the death penalty was again
challenged for the reliance placed in Bachan Singh case in the 35th Law Commission Report but
the court turned it down stating that the time was not right for hearing such a plea. Also, the plea
to consider hanging till death as barbaric and dehumanizing was rejected7.

In the recent judgment in , the Supreme Court of India has laid down certain guidelines as to how
death penalty can be converted into a life sentence8.

The death sentence of the killers of Rajiv Gandhi was reduced to a life sentence by the Supreme
Court of India.9
6
Bachan Singh vs State of Punjab(1980),
7
Shashi Nayar vs Union of India(1991),
8
Shatrughan Chauhan Vs. Union of India(2014),
9
Union of india vs sriharan (2015)
 List of the Pros of the Death Penalty
1. It is a way to provide justice for victims well keeping the general population safe.
There is an expectation in society that you should be able to live your life without the threat of
harm. When there is someone who decides to go against this expectation by committing a violent
crime, then there must be steps taken to provide everyone else the safety that they deserve.
Although arguments can be made for rehabilitation, there are people who would continue their
violent tendencies no matter what. The only way to keep people safe in those circumstances, and
still provide a sense of justice for the victims, is the use of the death penalty.
2. It provides a deterrent against serious crimes.
The reason why there are consequences in place for criminal violations is that we want to have a
deterrent effect on specific behaviors. People who are considering a breach of the law must see
that the consequences of their actions are worse if they go through without action compared to
following the structures society.
Although up to 88% of criminologists in the United States report that capital punishment is not
an effective deterrent to homicide, the fact that it can prevent some violence does make it a
useful structure to have in society.

3. It offers a respectful outcome.

Two critical elements of justice in modern societies involve punishments for criminal behavior
that do not involve cruelty or unusual circumstances. That structure has led the United States to
implement capital punishment which involves lethal injections. Although some regions struggle
to purchase the necessary drugs to administer this consequence, the process of putting someone
to sleep before they stop breathing in their heart stops beating eliminates the pain and negative
outcomes associated with other execution methods.
Modern processes are much more compassionate compared to hanging, firing squads, or other
gruesome methods of taking a life under the law.

4. It maintains prison populations at manageable levels.

Over 2 million people are currently part of the prison population in the United States. About one
in five people currently in jails across the country are awaiting trial for charges that they face.
That is about the same amount of people who are labeled as being violent offenders. By
separating those who are convicted of a capital crime, we create more room for the individuals
who are willing to work and rehabilitation programs to better their lives in the future. This

10
structure makes it possible to limit the financial and spatial impacts which occur when all serious
crime requires long-term prisoner care.
5. It offers society an appropriate consequence for violent behavior.
There are times when rehabilitation should be the top priority for criminals. Then there are times
when violent conduct is the preferred behavior for a criminal. By keeping capital punishment as
an option within society, we create an appropriate consequence that fits the actions taken by the
criminal. The death penalty ensures that the individual involved will no longer be able to create
havoc for the general population because they are no longer around. That process creates peace
for the victims, their families, and the society in general. 11
List of the Cons of the Death Penalty
1. It requires one person to kill another person.
In an op ad published by the New York Times, S. Frank Thompson discussed his experience in
executing to inmates while serving as the superintendent of the Oregon State Penitentiary. He
talked about how the death penalty laws forced him to be personally involved in these
executions. He came to a point where on the moral level, life had to either be honored or not. His
job requires him to kill someone else. Whether someone takes at life through criminal means, or
they do so through legal means, there is still an impact on that individual which is unpredictable.
2. It comes with constitutional defects in the United States.
In the 1970s, the Supreme Court of the United States effectively punted the idea of having
capital punishment being legal to the states. The goal was to create a system where there would
be limitations on the suffering of a prisoner sentenced to death row by allowing states to create
their own laws and procedures.
After four decades of surveys, studies, and experiences with the death penalty, there are three
specific defects which continue to exist. There is unreliability in the systems that are used to put
prisoners to death, we have delays that can last for 20 years or more before initiating a sentence,
and the application of capital punishment is arbitrary. That is why many places have simply
abandoned its use.

3. It does not have a positive impact on homicide rates.

The United States implement it the death penalty 35 times in 2014. Crime statistics for that year
indicating that there were 14,000 murders committed. Any criminal caught facing a consequence
that involved spending their life in prison would find that outcome to be far more devastating
than the idea that they might be put to death one day after they grow old. People who don’t think
that they’ll be cut for their actions don’t really care what the law has to say because they don’t
expect to ever spend time in jail in the first place.
Statistics on crime actually show that when the death penalty is abolished, replaced with a
guaranteed life in prison, there are few were violent acts committed which put a person’s life at
risk.

4. It creates a revenge factor, which may not best serve justice.

No one can blame families were victims for wanting justice. There is enough justification
because of their pain and loss to even understand concepts like vengeance. The problem that we
have with the death penalty, however, is that it implements only one form of justice. You’re
creating within society this idea that if you do something to me, I get to do the exact same thing
back to you.
The purpose of justice is to create a circumstance where there is a legitimate high ground for
morality. If we permit the state to kill people as a consequence for their own murderous
decisions, then we devalue life itself. Just because we have the law on our side does not mean
putting someone to death is a decision which is morally correct.

12

STATISTICS
In the year 1995 a total number of 13 death penalty were executed. In the year 1996 and 1997, 1-
1 each death penalty was executed. In the year 1998, 3 death penalty were executed . From the
year 1999 to the year 2003 no death penalty was executed. In the year 2004, only 1 death penalty
was executed, and the from the year 2005 to 2011 no death penalty was executed. In 2012 only 1
death penalty was executed and same in the year 2013 only 1 death penalty was executed, in
2014 no death penalty was executed, in 2015 only 1 death penalty was executed, and from the
year 2016 till present no death penalty has been executed.
 13

Conclusion
Therefore death penalty is itself an offense against humanity. God has given us life and no state
has the right to take it. Thus the process of death sentence should be declared unconstitutional
and as an offense against human rights. The government must take into consideration the
negative aspects of sentencing to death and must take steps to delete such provisions relating to
death sentence away from the law. The process of death sentence is long and therefore the
convicted prisoners undergo both physical as well as mental torture. This causes them to literally
beg for death. Such a situation must not be faced by any human being, be it a convict or not.
Although actual executions of convicts punished with death penalty are decreasing in number,
yet a lot has to be done to fasten the procedure for those waiting on death row and also comply
with India’s international commitments.
14