List of Sub-Topics:

• Introduction
• Methods of Capital Punishment
• Provisions of Capital Punishment under IPC
• Offenders Exempted from Capital Punishment
• Constitutionality of Capital Punishment
• Evolution of Legal Interpretation of Death Penalty
• Arbitrariness and Discrimination in Sentencing
• International Standards and Abolitionist Trends
• Public Opinion and Political Considerations
• Merits and Demerits of Capital Punishment
• Clemency or Pardoning
• Alternate to Capital Punishment
• Law Commission of India’s Report on Death Penalty
• Conclusion

Capital punishment, also called death penalty, execution of an offender sentenced to death after conviction by a court of law for a criminal offense. Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. Thus, capital punishment is the legal sanction of putting a person to death by the state as a punishment for a crime. It is typically reserved for the most serious offenses, such as murder, treason, espionage, and crimes against humanity. The decision to impose the death penalty is typically made by a court of law following a legal process that includes a trial, appeals, and review procedures.

The rationale behind capital punishment varies across different legal, cultural, and philosophical perspectives. Some proponents argue that it serves as a deterrent to crime, provides justice to victims and their families, and upholds the moral order of society. Others contend that it is inherently unethical, violates the fundamental right to life, and runs the risk of irreversible miscarriages of justice. The use of capital punishment is a subject of intense debate globally, with significant disparities in its application and acceptance across different countries and regions. Some nations have abolished the death penalty altogether, while others retain it as a legal punishment for certain offenses. Additionally, there is ongoing scrutiny of the fairness, effectiveness, and human rights implications of capital punishment, contributing to continued discourse and activism surrounding its abolition. The question of abolition of death sentence was raised by Shri Gaya Prasad Singh who introduced the bill regarding this. Later after independence in the year 1956 Shri Mukand Lal Agarwal a congress member introduced a first bill to abolish death penalty.

Methods of Capital Punishment:

Capital punishment, also known as the death penalty, has been executed through various methods throughout history and across different jurisdictions. The methods have evolved over time, and their use often depends on legal, cultural, and practical considerations. Here are some of the methods of capital punishment:

The methods of carrying out capital punishment have evolved over time and vary among jurisdictions, including hanging, shooting, lethal injection, electrocution, gas chamber, and decapitation.

• Hanging: This is one of the most traditional methods of execution. The person to be executed is typically placed on a platform with a noose around their neck, and the platform is then dropped, causing the person to be hanged until death. Hanging has been widely used historically and is still practiced in some countries today. In India hanging is the only method of capital punishment.
• Shooting: Execution by firing squad involves a group of individuals, typically armed with rifles, who simultaneously shoot the convicted person. This method has been used by military and civilian authorities in various countries.
• Lethal Injection: Lethal injection involves the administration of a series of drugs that are intended to induce death. The drugs typically include an anaesthetic, a paralytic agent, and a substance that stops the heart. Lethal injection has become one of the most common methods of execution in many jurisdictions due to its perceived human nature, although controversies surrounding its administration and effectiveness have arisen.
• Electrocution: Execution by electrocution involves the use of an electric chair or other apparatus to administer a lethal electric shock to the condemned person. This method has been used historically in some countries and states within the United States, although its use has declined over time.
• Gas Chamber: In execution by gas chamber, the convicted person is placed in a sealed chamber into which a lethal gas, such as hydrogen cyanide or a mixture of chemicals, is released. The person inhales the gas, leading to death. Gas chambers have been used in the past but are now rarely used due to concerns about their humaneness.
• Decapitation: Decapitation involves the removal of the convicted person’s head from their body, usually through the use of a sharp instrument such as a guillotine. While historically used in some countries, decapitation is now largely obsolete as a method of execution.
• Stoning: Execution by stoning involves the public hurling of stones at the convicted person until they are dead. This method has been used in some countries, particularly in regions where certain interpretations of religious law are enforced.

These are some of the main methods of capital punishment that have been employed throughout history and across different cultures. The choice of method often reflects a society’s values, legal system, and practical considerations regarding the administration of justice.

Provisions of Capital Punishment under IPC:

Under the Indian Penal Code, The capital punishment may be awarded for offences under sections 121, 132, 194, 302, 305, 307, 364-A, 376 – E, and 396 of the IPC. In addition to the above, the death penalty can also be imposed under Ss. 34, 109, 120-B, and 149 of IPC.

• Section 121: Under this section a person is awarded capital punishment for attempting to wage war, or abetting the waging of war against the Government of India.
• Section 132: Under this section a person is awarded capital punishment for abetting mutiny, or attempting to seduce a soldier, sailor, or airman from his duty.
• Section 194: Under this section a person is awarded capital punishment for giving or fabricating false evidence with intent to procure a conviction of a capital offense.
• Section 302: Under this section a person is awarded capital punishment for murder.
• Section 305: Under this section a person is awarded capital punishment for abetment of suicide of child or insane person.
• Section 307: Under this section a person is awarded capital punishment for attempting to murder another person and in such attempt doing any act towards the commission of the offense.
• Section 364A: Under this section a person is awarded capital punishment for kidnapping for ransom.
• Section 376A: Under this section a person is awarded capital punishment for rape that results in death or a permanent vegetative state of the victim.
• Section 376 E: Under this section a person is awarded capital punishment for repeat rape offenders.
• Section 396: Under this section a person is awarded capital punishment for dacoity with murder.

Other Acts in which Capital Punishment is Prescribed:

• Any person involved in the commission of Sati directly or indirectly is subject to the death penalty under the Commission of Sati (Prevention) Act, 1987.
• Based on previous convictions, Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) has introduced the death penalty for providing financial support or taking part in the production or sale of narcotics or psychoactive substances in a predetermined amount (e.g., opium 10 kg, cocaine 500 g, etc.).
• Under the Scheduled Castes And Scheduled Tribes (Prevention of Atrocities) Act, 1989, forging evidence that leads to the conviction and execution of an innocent member of a scheduled caste or tribe is punishable by death.
• Under Army Act, 1950; Air Force Act, 1950 and Navy Act, 1957, various offences committed by members of the military forces under these Acts,  may be punishable by death.

The court is not bound to award a death sentence in the above cases, but it may do so. S. 303 of the IPC was the only section by which the award of the death sentence was compulsory. In Mithu v. State of Punjab, AIR 1983 SC 4731 case, the Supreme Court struck down S.303 by terming it as unconstitutional.

Category of Offenders Exempted from Capital Punishment:

• Under Section 21, Juvenile Justice Act, 2015, no minor in conflict with the law shall be sentenced to death. It gives the minor in conflict with law a chance to improve.
• According to Section 416 of the CrPC, 1973 if the high court finds that a woman who has been awarded the death sentence is pregnant then such sentence can be postponed or commuted to life imprisonment. The reasoning behind this is that hanging a pregnant woman kills both the pregnant woman and the child in her womb. The unborn child in the woman’s womb has not committed any wrongdoing and does not deserve to die for what the woman did.
• In Shatrughan Chauhan v. Union of India, 2014 (3) SCC 1 case, the Court held that anyone who is intellectually disabled or challenged may fall under the category of offenders who are exempted from the death penalty. If a person committing a serious crime is unable to comprehend the nature and consequences of their actions, this is sometimes referred to as having an intellectual disability. Because of their intellectual disability, someone with a criminal record might not be aware of the specifics of their crime. Consequently, the intellectually disabled were added to the list of criminals who were exempted from the death penalty by lawmakers.

Constitutionality of Capital Punishment:

The constitutionality of capital punishment in India has been a subject of debate and scrutiny due to its implications on human rights and the principles of justice enshrined in the Indian Constitution. Some provisions associated with capital punishment are as follow:

Right to Life (Article 21):

The right to life is one of the fundamental rights guaranteed by the Indian Constitution under Article 21. Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The right to life under the Indian Constitution, enshrined in Article 21, has significant implications for the issue of capital punishment. While the Constitution does recognize the right to life, it also allows for the deprivation of life in accordance with the procedure established by law. While the Indian Constitution recognizes the right to life, it also allows for the imposition of capital punishment under specific circumstances.

• The right to life under Article 21 requires that any deprivation of life must occur through a fair and just legal process. This means that individuals facing capital punishment are entitled to procedural safeguards, including the right to a fair trial, legal representation, and the opportunity to present evidence and arguments in their defence.
• The right to life acts as a safeguard against arbitrary state action, including the imposition of the death penalty. Courts have emphasized that capital punishment should not be arbitrarily imposed but should be reserved for the “rarest of rare” cases where the crime is exceptionally heinous and the convict’s culpability is beyond doubt.
• The Indian judiciary has interpreted the right to life in a manner that upholds human dignity. In the context of capital punishment, courts have recognized the importance of treating individuals on death row with dignity and respect, even as they face the ultimate penalty.
• The Indian judiciary plays a crucial role in reviewing the constitutionality and legality of capital punishment. Courts carefully examine each case to ensure that the imposition of the death penalty is consistent with constitutional principles, including the right to life and due process.
• While capital punishment remains legal in India, there are growing abolitionist trends globally, driven by concerns about human rights, the risk of miscarriages of justice, and the irreversible nature of the death penalty. The right to life under the Indian Constitution is viewed in the context of evolving international norms and standards regarding capital punishment.

However, the right to life imposes important constraints on the application of the death penalty, requiring adherence to due process, fairness, and considerations of human dignity. This provision of Article 21 has been interpreted by courts to uphold the legality of capital punishment as long as it is carried out according to due process. The issue of capital punishment continues to be a complex and contentious one in India, with ongoing debates about its morality, effectiveness, and compatibility with constitutional principles.

In Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947case, where the Appellant was awarded the death under Section 302 of the Indian Penal Code, 1860. The death sentence was challenged because it violates Articles 14, 19, and 21. But the five-judge bench of the Supreme Court held that Right to life is not violated while giving the death sentence as long as the penalty or punishment given is in accordance to laws and public policy. It was also observed that the court is declaring the punishment with regard to foreseeing the facts and circumstances so there comes no question of challenging the argument on the basis of Article 14. This case was decided prior to insertion of Section 354(3). Though the constitutional validity of the death sentence was upheld in the said case, yet the circumstances wherein it should have been awarded was not discussed and elaborated. Later it was seen that it was all in hands of court to either award death penalty or life imprisonment for the offence of murder.

In Rajendra Prasad v. State of UP, AIR 1979 SC 916 case, the Supreme Court agreed that the death penalty deprives the accused of his right to life and other fundamental rights, it is violative of Articles 14,19and 21.  The Supreme Court ruled that the death penalty would be inappropriate unless it has been proved in the Court that the defendant poses an ongoing serious risk to social security. As per the opinion of Justice Krishna Iyer, three types of criminals should get the death penalty which include, white collar crimes, to eliminate a dangerous killer who may harm the society, and for crimes against social disorder. The top Court then ordered that the death penalty imposed on an accused for a murder conviction under Section 302 of the IPC (Indian Penal Code) did not abuse the basic feature of the Constitution. He mentioned two things that he considered to be must require while imposing a death sentence which is (a) The special reason should be recorded for imposing the death penalty in a case. (b) It must be imposed only in extraordinary circumstances.

In Deena Dayal v. Union of India, AIR 1983 SC 1155 case, the constitutionality of the death penalty was once again challenged on the grounds that hanging by a rope violates Article 21 because it is barbaric, inhumane, and cruel. The Supreme Court determined that hanging is an appropriate and fair method of execution within the constraints of Article 21 and is therefore constitutional.

In Mohammed Ajmal Mohammad Amir Kasab vs. State of Maharashtra, (2012) 9 SCC 1 case, Kasab was found guilty of committing 80 offences, those included murder and waging war against India along with other crimes like possessing explosives, and other charges. The primary argument during the court proceedings was whether the accused (Kasab) went through fair trial or not. This question was fairly answered during the proceedings as Kasab was initially assigned with a lawyer from Pakistan as per his demand. Moreover, the top Court also provided him with the lawyer but it was fully the appellant’s wish whether to take or not. Therefore, there was no violation of the provisions of the constitution. Moreover, the top Court ensured that the appellant was provided the equitable death sentence as he was accused of a hideous crime of killing innocent people. Some other arguments in this case include, little time allowed to the lawyer for preparation, waging war against the government of India and conspiracy. The Supreme Court awarded five death penalties and five life imprisonments to the accused because of his unacceptable and hideous crimes. His hanging took place on 21/11/12 within the premises of Yerwada Central Jail in Pune.

Judicial Review:

Judicial review under the Indian Constitution is a crucial mechanism through which the judiciary ensures that laws, actions, and decisions of the executive and legislative branches of government conform to constitutional principles and do not violate fundamental rights. In the context of capital punishment, judicial review plays a significant role in scrutinizing the imposition and execution of death sentences to ensure compliance with constitutional norms and procedural fairness.

• The Indian Constitution vests the power of judicial review primarily in the Supreme Court and the High Courts. Courts exercise this power to examine the constitutionality of laws, including those related to the imposition and execution of the death penalty.
• The right to life and personal liberty guaranteed under Article 21 of the Indian Constitution is a fundamental right. Courts use judicial review to ensure that the imposition of capital punishment does not violate this fundamental right and is consistent with due process and fair trial standards.
• Courts engage in comprehensive reviews of death penalty cases to assess the legality, fairness, and proportionality of the sentence. This includes examining the evidence presented during trial, assessing the conduct of the trial proceedings, and considering mitigating factors that may warrant leniency.
• The Supreme Court of India has established the “rarest of rare” doctrine as a guiding principle for the imposition of the death penalty. According to this doctrine, capital punishment should be reserved for the most egregious and exceptional cases where the crime is of an extraordinary nature and the convict’s culpability is beyond doubt. Courts apply this doctrine through judicial review to determine whether the death penalty is warranted in a particular case.
• In conducting judicial review of death penalty cases, courts consider mitigating factors such as the offender’s age, mental health, socio-economic background, and prospects for rehabilitation. Courts may commute death sentences to life imprisonment based on these considerations.
• Judicial review ensures that procedural safeguards are observed throughout the capital punishment process, including at the trial, appellate, and executive stages. Courts scrutinize the adherence to legal procedures and principles of natural justice to prevent miscarriages of justice and ensure fairness in the imposition of the death penalty.

Judicial review under the Indian Constitution serves as a bulwark against arbitrary or unconstitutional applications of capital punishment. It safeguards fundamental rights, promotes fairness and justice, and ensures that the death penalty is imposed and executed in accordance with constitutional principles and procedural safeguards.

Doctrine of Rarest Rare Case:

In Bachan Singh v. the State of Punjab, AIR 1980 SC 898 case, the five-judge bench of the Supreme Court held that the death penalty was reasonable; therefore it does not violate Articles 14, 19 and 21 of the Indian Constitution. In this case, the bench reversed the judgment delivered in the Rajendra Prasad case by a majority ratio of 4:1. Majority opinion of the bench stated that the principle of awarding death penalty is applicable only in ‘rarest of rare cases’. The dissenting opinion by Justice Bhagwati stated that “the death penalty is not only unconstitutional because it violates Articles 14 and 21 but also undesirable from several points of view.” The Supreme Court order for the case was, “In accordance with the majority opinion the challenge to the constitutionality of Section 302 of the IPC in so far as it provides for the death sentence as also challenge to the constitutionality of Section 354(3) of the Code of Criminal Procedure, 1973 fails and is rejected. The Writ petitions and other connected matters may now be placed for hearing, in the usual course, before the division bench for consideration of the individual cases on merits, in the light of the principles enunciated in the majority judgment.”

In this case the Supreme Court formulated certain broad illustrative guidelines and said it should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely upon the court’s discretion to reach this conclusion. However, the apex court also laid down the principle of weighing, aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the top court held, may be asked and answered. First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?

The Court also said that: “….for persons convicted of murder, life imprisonment is a rule and death sentence is an exception. A real and abiding concern for dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when alternative option is unquestionably foreclosed.”

In Machhi Singh vs. the State of Punjab, AIR 1983 SC 957 case, where a total seventeen people were murdered in succession in five different villages in Punjab on August 12, 1977. The primary issue addressed in this case was “Whether a death penalty could be given to the accused (Macchi Singh) and other convicts by applying ‘rarest of the rare cases. Justice MP Thakkar reached a conclusion and stated that “Death penalty is to be awarded only in the rarest of rare cases.” In addition to this, the Court also highlighted different guidelines of the circumstances in which death penalty or capital punishment can be imposed on the accused.

• Manner of commission of murder (victim’s body cut into pieces, victim’s house is set on fire to roast him alive, or victim is subjected to inhumane torture and cruelty leading to death),
• motive of the murder (evinces depravity and meaness),
• magnitude of crime (single murder, multiple murders or genocide),
• anti-social or socially abhorrent nature of crime (murder of minority community or scheduled caste nor for personal reasons but for social wrath or bride burning for dowry or remarriage), and
• victim’s personality (innocent child, helpless women, public figure, etc.)

These are the five circumstances on the basis of which decision would be taken, whether to give death punishment or not. This case laid down the wider perspective that the death penalty need not be imposed except in the “gravest of cases of extreme culpability” 

In Mithu v. State of Punjab, 983 (2) SCC 277 case, the Supreme Court in a historical judgment of the full bench, declared Section 303 of the IPC as unconstitutional and violative of Article 14 and 21 of the Constitution. It held that: “We Strike down Section 303 of the Penal Code as unconstitutional and declare it void. It is needless to add all cases of murder will now fall under Section 302 of the Penal Code and there shall be no mandatory sentence of death for the offence of murder.”

In Mukesh & Anr. v. State for NCT of Delhi (Nirbhaya Case) Criminal Appeal No. 1554 of 2015 case, where a 22 year-old girl was beaten brutally, gang raped by the accused and tortured to extent that it resulted in her death, all this was done in a private bus in which she was travelling. The Supreme Court held that the hideous crime was committed in connivance and collusion of six who were on a notorious spree running a bus, showcasing as a public transport, with the intent of attracting passengers and committing crime with them.” Justice R. Banumathi stated that “There is not even a hint of hesitation in my mind with respect to the aggravating circumstances outweighing the mitigating circumstances and not find any justification to convert the death sentence imposed by the courts below to ‘life imprisonment for the rest of life.” All four convicts were ordered to be executed.

Evolution of Legal Interpretation of Death Penalty:

The evolution of legal interpretation under the Indian Constitution, particularly concerning capital punishment, reflects a dynamic process shaped by constitutional principles, judicial activism, societal values, and international human rights norms. Here’s a brief overview of the evolution of legal interpretation under the Indian Constitution and its implications for capital punishment:

• Adoption of the Constitution (1949-1950): The Indian Constitution came into effect on January 26, 1950. It enshrined fundamental rights, including the right to life and personal liberty under Article 21. However, at this stage, capital punishment was not explicitly addressed in the Constitution.
• Initial Interpretation (1950s-1960s): In the early years after independence, the Indian judiciary interpreted the right to life broadly, emphasizing procedural fairness and due process. Capital punishment was viewed as an exceptional measure to be used in the “rarest of rare” cases where the crime was heinous and the convict’s guilt was established beyond doubt.
• Development of Judicial Activism (1970s-1980s): The 1970s and 1980s witnessed a period of judicial activism in India, with the Supreme Court asserting its authority to protect fundamental rights and promote social justice. In the case of Bachan Singh v. State of Punjab (1980), the Supreme Court upheld the constitutional validity of the death penalty but introduced the “rarest of rare” doctrine to guide its imposition.
• Expansion of Fundamental Rights (1990s-2000s): During the 1990s and 2000s, the Indian judiciary expanded the scope of fundamental rights, including the right to life under Article 21. Courts interpreted the right to life to encompass not only the right to survival but also the right to live with dignity, privacy, and liberty, influencing the scrutiny of capital punishment cases.
• Heightened Scrutiny of Capital Punishment (2010s-present): In recent years, there has been heightened scrutiny of capital punishment in India. The Supreme Court and High Courts have increasingly emphasized the need for strict adherence to procedural safeguards, consideration of mitigating factors, and the application of the “rarest of rare” doctrine in death penalty cases.
• Trends toward Abolition and Reform: While capital punishment remains legal in India, there have been growing calls for its abolition or reform. Public discourse, civil society activism, and international human rights standards have influenced debates surrounding the death penalty, prompting discussions about its morality, efficacy, and fairness.
• Continued Judicial Review: Judicial review of capital punishment cases remains a central aspect of legal interpretation under the Indian Constitution. Courts continue to assess the constitutionality, proportionality, and fairness of death sentences, reflecting evolving societal attitudes and legal principles.

Thus, the evolution of legal interpretation under the Indian Constitution has shaped the application and scrutiny of capital punishment in India. While the death penalty remains a legal sanction, the judiciary’s commitment to protecting fundamental rights and promoting justice has led to ongoing debates and reforms regarding its use and implementation.

Concerns of Arbitrariness and Discrimination in Sentencing:

One of the primary criticisms of capital punishment in India is its potential for arbitrariness and discrimination, particularly in its application across different states and socioeconomic backgrounds. There have been instances where individuals from marginalized communities or with limited access to legal representation have been disproportionately sentenced to death.

• There is often inconsistency and arbitrariness in the application of capital punishment, both within and across jurisdictions. Factors such as the personal biases of judges, disparities in legal representation, and variations in trial procedures can contribute to inconsistent sentencing outcomes.
• There is evidence to suggest that capital punishment disproportionately affects marginalized and vulnerable groups, including minorities, the poor, and those with limited access to legal representation. Racial, ethnic, religious, and socioeconomic biases may influence the likelihood of being sentenced to death.
• The application of capital punishment can vary significantly depending on the jurisdiction or region within a country. Certain areas may have higher rates of capital convictions and executions compared to others, raising questions about fairness and consistency in the administration of justice.
• Implicit biases, including racial and gender biases, can influence decision-making processes in capital cases. Judges, jurors, and other actors within the criminal justice system may harbor unconscious prejudices that affect their judgments and contribute to discriminatory outcomes.
• The quality of legal representation is a crucial factor in determining the outcome of capital cases. Defendants who cannot afford competent legal counsel may be at a disadvantage during trial proceedings, increasing the risk of wrongful convictions and unjust sentences.
• Individuals who belong to multiple marginalized groups, such as racial or ethnic minorities who are also economically disadvantaged, may face compounded discrimination in capital cases. Inter sectionality exacerbates the risk of unfair treatment and disparate outcomes in the criminal justice system.

Addressing concerns of arbitrariness and discrimination in capital punishment requires comprehensive reforms aimed at promoting fairness, equity, and due process. This includes improving access to legal representation, implementing measures to mitigate bias in trial proceedings, and fostering greater transparency and accountability within the criminal justice system. Additionally, some advocate for the abolition of capital punishment altogether as a means of eliminating the inherent risks of arbitrariness and discrimination in its application.

International Standards and Abolitionist Trends:

India is a signatory to international human rights conventions that advocate for the abolition of the death penalty. While it has not abolished capital punishment, there is pressure from international bodies and civil society organizations to reconsider its use in light of evolving human rights standards.

• The International Covenant on Civil and Political Rights (‘ICCPR’) is one of the key documents discussing the imposition of death penalty in international human rights law. The ICCPR does not abolish the use of the death penalty, but Article 6 contains guarantees regarding the right to life, and contains important safeguards to be followed by signatories who retain the death penalty
• The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty is the only treaty directly concerned with abolishing the death penalty, which is open to signatures from all countries in the world. It came into force in 1991, and has 81 states parties and 3 signatories.
• Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the Child (‘CRC’) explicitly prohibits the use of the death penalty against persons under the age of 18. As of July 2015, 195 countries had ratified the CRC.
• The Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (‘the Torture Convention’) and the UN Committee against Torture have been sources of jurisprudence for limitations on the death penalty as well as necessary safeguards. The Torture Convention does not regard the imposition of death penalty per se as a form of torture or cruel, inhuman or degrading treatment or punishment (‘CIDT’). However, some methods of execution and the phenomenon of death row have been seen as forms of CIDT by UN bodies.
• In the evolution of international criminal law, the death penalty was a permissible punishment in the Nuremberg and Tokyo tribunals, both of which were established following World War II. Since then, however, international criminal courts exclude the death penalty as a permissible punishment.

Of the treaties mentioned above, India has ratified the ICCPR and the CRC, and is signatory to the Torture Convention but has not ratified it. Under international law, treaty obligations are binding on states once they have ratified the treaty. Even where a treaty has been signed but not ratified, the state is bound to “refrain from acts which would defeat the object and purpose of a treaty”

Public Opinion and Political Considerations:

Public opinion in India regarding capital punishment varies, with some segments of society supporting its retention as a deterrent to serious crimes. Public opinion and political considerations play significant roles in shaping the discourse surrounding capital punishment in many countries, including India. Political considerations also play a significant role in shaping the discourse surrounding the death penalty, with political parties often taking differing positions on its abolition or retention.

• Public opinion on capital punishment can vary widely depending on cultural, religious, social, and historical factors. In India, public opinion regarding the death penalty is diverse, with some segments of society supporting its retention as a deterrent to serious crimes, while others advocate for its abolition on moral, ethical, or human rights grounds.
• Political parties and leaders often take differing positions on the issue of capital punishment based on ideological beliefs, electoral considerations, and public sentiment. Some political parties may support the retention of the death penalty as part of their law-and-order agenda, while others may advocate for its abolition as part of a broader human rights or criminal justice reform platform.
• The enactment, amendment, or repeal of laws related to capital punishment is influenced by political dynamics within legislative bodies. Debates over capital punishment legislation may reflect competing values, interests, and priorities among lawmakers, as well as broader societal attitudes and pressures.
• Judicial decisions regarding capital punishment can also be influenced by political considerations, including judicial philosophies, ideological leanings, and public perceptions of the judiciary’s legitimacy and independence. Courts may be sensitive to public opinion and political pressures when adjudicating capital cases, although they are expected to uphold constitutional principles and the rule of law.
• India is a signatory to international human rights conventions that advocate for the abolition of the death penalty. Political considerations may come into play when India engages with international human rights bodies and organizations, balancing domestic priorities with international commitments and obligations.
• The media plays a significant role in shaping public opinion and political discourse on capital punishment through news reporting, commentary, and analysis. Media coverage of high-profile capital cases, advocacy campaigns, and public debates can influence public perceptions and political decision-making on the issue.

Thus, the interplay between public opinion and political considerations is complex and multifaceted when it comes to capital punishment in India. While public sentiment and political dynamics may influence policy decisions and legal outcomes, the issue of capital punishment also raises fundamental questions about justice, human rights, and the rule of law that transcend partisan politics and popular opinion.

Merits and Demerits of Capital Punishment:

Merits of Capital Punishment:

Capital punishment, or the death penalty, has been a topic of debate for centuries, with proponents and opponents presenting various arguments. Here are some of the potential merits that proponents often associate with capital punishment:

• Deterrence: One of the primary arguments in favour of capital punishment is its perceived deterrent effect on crime. Proponents argue that the fear of facing the death penalty may deter individuals from committing serious offenses, thereby contributing to public safety and crime reduction.
• Retribution and Justice: Capital punishment is often viewed as a means of achieving justice and providing retribution for heinous crimes. Supporters argue that certain crimes are so severe that they warrant the ultimate punishment, and that executing offenders is a way of ensuring that justice is served for victims and their families.
• Public Safety: Advocates of capital punishment argue that executing dangerous criminals removes them from society and prevents them from committing further acts of violence or harm. This perspective prioritizes public safety and protection from individuals deemed irredeemably dangerous.
• Closure for Victims’ Families: Capital punishment is sometimes seen as providing closure and a sense of justice for the families and loved ones of victims. For some, the execution of the perpetrator may bring a sense of vindication and resolution to the pain and trauma caused by the crime.
• Legal and Moral Authority of the State: Proponents of capital punishment assert that the state has a legitimate authority to administer justice and maintain law and order. In cases of serious crimes, the state’s ability to impose the death penalty is seen as a demonstration of its commitment to upholding the rule of law and protecting its citizens.
• Expresses Societal Values: Supporters of capital punishment argue that its retention reflects societal values and norms regarding accountability, personal responsibility, and the severity of certain crimes. They believe that abolishing the death penalty would undermine these values and diminish the seriousness of capital offenses.

Demerits of Capital Punishment:

Capital punishment, or the death penalty, is a controversial practice that has been criticized on various grounds by opponents. Here are some of the key demerits associated with capital punishment:

• Irreversibility: One of the most significant criticisms of capital punishment is its irreversibility. Once an individual is executed, there is no way to undo the decision if it is later discovered that the person was innocent or wrongly convicted. The risk of executing innocent individuals raises serious ethical and moral concerns.
• Risk of Miscarriages of Justice: The criminal justice system is not infallible, and there have been numerous cases of wrongful convictions and miscarriages of justice in capital cases. Factors such as flawed evidence, coerced confessions, inadequate legal representation, and systemic biases increase the risk of wrongful executions.
• Disproportionate Impact on Marginalized Groups: Capital punishment has been criticized for disproportionately affecting marginalized and vulnerable groups, including racial and ethnic minorities, the poor, and individuals with mental illness or intellectual disabilities. Research indicates that systemic biases and disparities in the criminal justice system can result in unequal treatment and discriminatory outcomes in capital cases.
• Lack of Deterrence: The deterrent effect of capital punishment is a subject of debate among researchers and policymakers. Many studies have found little to no evidence that the death penalty acts as an effective deterrent to crime. Factors such as the uncertainty of detection, the severity of punishment, and socio-economic conditions are believed to have a more significant influence on criminal behaviour than the threat of execution.
• Violation of Human Rights: Capital punishment is viewed by many as a violation of the fundamental right to life and the prohibition against cruel, inhuman, and degrading treatment. International human rights bodies and organizations advocate for the abolition of the death penalty, citing concerns about its irreversibility, arbitrariness, and lack of humaneness.
• Economic Costs: The administration of capital punishment involves substantial financial costs, including expenses related to legal proceedings, appeals, and incarceration. Maintaining death row facilities and conducting executions can be financially burdensome for governments, particularly at a time when resources could be allocated to more pressing social and economic needs.
• Impact on Mental Health: The process of awaiting execution and the prospect of facing death can have severe psychological and emotional consequences for individuals on death row, as well as their families and loved ones. The mental health toll of prolonged incarceration and the stress of facing imminent execution are significant concerns associated with capital punishment.

Thus, the demerits of capital punishment raise fundamental questions about the morality, fairness, and efficacy of the death penalty as a form of punishment. These concerns have fuelled ongoing debates and advocacy efforts aimed at promoting alternatives to the death penalty and advancing principles of justice, human rights, and dignity.

Clemency or Pardoning Power of the President and Governors:

After all the remedies under the judicial system are exhausted, a person on death row has the last remedy to knock at the doors of the first citizens of the country and seek pardon in the form of mercy petition which must be addressed by the convict either through authorised representative or himself from the prison. The Constitution under Article 72 and 161 confers the power on the President and the Governors, respectively, to suspend, remit or commute sentences in certain cases. The ‘mercy jurisdiction’ of the President and the Governors to reduce or rescind punishment becomes operative only after the courts have delivered conviction and passed sentence.

Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence where the sentence is a sentence of death. The President cannot exercise his power of pardon independent of the government. Rashtrapati Bhawan forwards the mercy plea to the Home Ministry, seeking the Cabinet’s advice. The Ministry in turn forwards this to the concerned state government; based on the reply, it formulates its advice on behalf of the Council of Ministers. Although the President is bound by the Cabinet’s advice, Article74 (1) empowers him to return it for reconsideration once. If the Council of Ministers decides against any change, the President has no option but to accept it.

Under Article 161, the Governor in India too has pardoning powers. The President can grant pardon in all cases where the sentence given is the sentence of death but the pardoning power of the Governor does not extend to death sentence cases. The power of the President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.

In Shatrughan Chauhan v. Union of India, 2014 (3) SCC 1 case, the Supreme Court has recorded that the Home Ministry considers the following factors while deciding mercy petitions:

1. Personality of the accused (such as age, sex or mental deficiency) or circumstances of the case (such as provocation or similar justification);
2. Cases in which the appellate Court expressed doubt as to the reliability of evidence but has nevertheless decided on conviction;
3. Cases where it is alleged that fresh evidence is obtainable mainly with a view to see whether fresh enquiry is justified;
4. Where the High Court on appeal reversed acquittal or on an appeal enhanced the sentence;
5. Is there any difference of opinion in the Bench of High Court Judges necessitating reference to a larger Bench;
6. Consideration of evidence in fixation of responsibility in gang murder case;
7. Long delays in investigation and trial etc.

However, when the actual exercise of the Ministry of Home Affairs (on whose recommendations mercy petitions are decided) is analysed, it is seen that many times these guidelines have not been adhered to. Writ Courts in numerous cases have examined the manner in which the Executive has considered mercy petitions.

In Dhananjoy Chatterjee vs State of West Bengal, 1994 SCC (2) 220 case, the Supreme Court has ruled that the President has to act on the advice of the Council of Ministers while deciding mercy pleas.

In Kuljeet Singh alias Ranga v. Lt. Governor of Delhi, AIR 1982 SC 774 case, where in a petition of seeking to declare that the President had transgressed his executive power to grant clemency in exercise of the power under Article 72 of the Constitution, by refusing to grant clemency to him, the Supreme Court- after discussing the power of the President to commute the sentence of death dismissed the petition.

In Mohinder Singh v. State of Punjab, AIR 1965 SC 79 case the Supreme Court held that while the mercy petition is pending before the President of India, the Supreme Court has no jurisdiction to hear any application for stay on execution as it is not maintainable. The President of India has to be approached for a stay of execution.

Alternate to Capital Punishment:

In Swamy Sharddananda v. State of Karnataka, (2008) 12 SCC 288 case the Supreme Court laid the foundation of the emerging penal option in following terms: “The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then should the Court do? If the Court’s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years’ imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years’ imprisonment would amount to no punishment at all.

Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases …….”

The observations in Swamy Shraddhanand case have been followed by the Court in a multitude of cases such as Haru Ghosh v. State of West Bengal (AIR 2009 SCW 6007), State of Uttar Pradesh v. Sanjay Kumar (AIR 2012 SCW 5157), Sebastian v. State of Kerala, Gurvail Singh v. State of Punjab where full life or sentence of determinate number of years has been awarded as opposed to death penalty.

Law Commission of India’s Report on Death Penalty:

The Law Commission of India in its 262nd Report (August 2015) recommended that death penalty be abolished for all crimes other than terrorism related offences and waging war. Complete recommendations of the Report are as follows:

• The Commission recommended that measures suggested that police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
• The march of our own jurisprudence — from removing the requirement of giving special reasons for imposing life imprisonment instead of death in 1955; to requiring special reasons for imposing the death penalty in 1973; to 1980 when the death penalty was restricted by the Supreme Court to the rarest of rare cases – shows the direction in which we have to head. Informed also by the expanded and deepened contents and horizons of the Right to life and strengthened due process requirements in the interactions between the State and the individual, prevailing standards of constitutional morality and human dignity, the Commission felt that time has come for India to move towards abolition of the death penalty.
• Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security. However, given the concerns raised by the law makers, the Commission did not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offences other than terrorism related offences.
• The Commission accordingly recommended that the death penalty be abolished for all crimes other than terrorism related offences and waging war.
• Further, the Commission sincerely hopes that the movement towards absolute abolition will be swift and irreversible.

Conclusion:

In conclusion, while capital punishment remains constitutionally permissible in India, its continued application is subject to ongoing debate and scrutiny. The evolving interpretation of constitutional provisions, concerns about arbitrariness and discrimination, and international human rights standards all contribute to the complex landscape surrounding the legality and constitutionality of the death penalty in India.

It is true that the ambit of capital punishment may be found fundamentally under Article 21 of the Constitution, it is also true that many countries have such provisions in their constitutions or in their law, which allow for the use of death penalty. It is certainly true that the majority of these countries and the vast majorities of the world’s democratic countries have abolished the death penalty in law. Constitutional challenges come in many forms to the death penalty, however, and it is clear that challenges regarding its constitutional validity are not limited to death penalty’s ‘right to life’ under Article 21 of the Constitution of India. As former Chief Justice of India P.N Bhagwati stated that: “Death penalty does not serve any social purpose or advance any Constitutional value and is totally arbitrary and unreasonable so as to be violative of Articles 14, 15, 21 of the Indian Constitution…..”. Therefore we can say that, Indian judiciary is moving away from the implementation of capital punishment as there is a greater emphasis on alternative modes of punishment and the international legal developments which are against the such punishments.