This article was written by Yash Bhagwat, a student of Nalsar University of Law.
The Death Penalty, also known as Capital Punishment in some legal systems, is a unique way of punishing the criminal act of some person by eliminating the actor in order to punish him for the commission of his offensive act by ending his life. The Death Penalty, as per Dr. Anup Surendranath, is unique not because of its irreversibility, but because of the fact that it keeps death row inmates in uncertainty and they oscillate between life and death. The threat of death is imminent yet uncertain. In the works of classic jurisprudential authorities like Prof. Stanley and Kenney, it has been observed that any criminal jurisprudence has based itself upon the principles and doctrines of deterrence, retribution, rehabilitation and reformation or a combination of all of them. But, in India, the judicial administration of Death Penalty and its essence fail to serve none. The researcher would like to intimate the reader that the approach towards this research article was undertaken with a neutral view towards the death penalty, however, as the name suggests, the researcher has throughout the article pressed for wiping out and abolishing the penalty of death by analyzing the existing mechanism, pointing out its various flaws and making various suggestions for alternative punishments and architecture. The questions regarding the Death Penalty involve the fundamental question of the authority of the state to take away something which it can never restore. With increasing movements across the globe calling for abolition of this practice, it feels relevant to quote the renowned author Bryan Stevenson here- “The death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, do we deserve to kill?” 
Under the IPC, Death Penalty can be imposed only under the following 11 offences namely murder, abetment of suicide, attempt of murder by life convicts, repeat offenders of rape, mutiny, waging war against government of India, membership of a criminal conspiracy to commit an offence punishable by death, framing innocent persons, rape resulting in death or permanent vegetative state, ransom and committing murder while committing dacoity. After Nirbhaya Rape case, the 2013 Criminal Law amendment provided for the imposition of Death Penalty in cases where rape has led to death or vegetative state of victim, inspite of the Varma Commission opposing it.
Along with these clear legislative provisions under the IPC, the courts have time and again issued certain guidelines, lists and exceptions while addressing issues pertaining to the constitutionality of the death penalty. The constitutionality of the Death Penalty was last challenged in 1980 in the Bachan Singh case where the five judge bench had laid down that the Death Penalty can be imposed only in “rarest of the rare” cases. In India, hanging is the method of executing the Death Penalty, and under the Army Act of 1950, shooting is also recognised as an execution method. The court had previously struck down public hanging as a method of execution holding it to be unconstitutional. Some other countries follow methods like electrocution, beheading, stoning, administering a lethal injection, extreme torture till death, etc.
Reasons for Abolishing the Death Penalty and Potential Hindrances
Several failed attempts have been made to abolish the Death Penalty in India before as well as after independence. The Lok Sabha and Rajya Sabha have debated upon the same but the subsequent resolutions have failed to earn the consent of the majority of our parliamentarians. In order to suggest reforms in the existing machinery of Death Penalty, the obstacles need to be identified and addressed and to facilitate the abolition of Death Penalty, the following judicial obstacles need to be addressed by amending the necessary constitutional and statutory provisions-
Lack of procedural fairness- In India, there is a lack of or in some cases absence of procedural fairness in the judicial discourse around Death Penalty. The procedure established by law and evolved over the course of time is highly unfair against a certain section of the socio-economic society. As per critics, the institution of Death Penalty is nothing but state sponsored violence. However, Extra Judicial Killings and summary executions are legitimized in India (police encounters which authorize the police to shoot at sight and need not necessarily give the criminal a chance to surrender). Thus, a criminal cannot expect procedural fairness in any legally established scenario. For example, in Jammu and Kashmir and in the North East, i.e. the states which are most hit by terrorism, there are not many death row inmates who have been sentenced for terrorist offences. This shows that the state is clearly resorting to extra judicial killings ie encounters. Another example would be of the State of Andhra Pradesh, where 20 Red Sandal Wood smugglers were encountered by the police in a extra judicial killing authorized and sponsored by the state.
Hypocrisy in the discourse- The Death Penalty discourse is used in the political sphere by groups who disproportionately bear the brunt of the institution of Death Penalty itself. For instance, in the Khairlanjee Dalits’ rape and murder case, the Dalit community wanted the imposition of Death Penalty on the upper caste perpetrators. However, the dominant narrative is that Dalits, OBCs and Muslims have been inflicted with systematic violence as most of the death row inmates in India belong to the Dalit community. So, the very victims of the system are demanding the imposition of Death Penalty in two different contexts, and this obstacle needs to be addressed so as to facilitate the abolition of Death Penalty.
Hypocrisy by the courts- Under certain circumstances, the hypocrisy of courts needs to be addressed and rectified. For example, in the Red Fort attack case of Mohd. Arif, it was held that review petition of Death Penalty should be heard in open court while in various other cases in 2015, courts have dismissed criminal appeals by death row convicts in limine, that is, without hearing the merits of the case with just one word written on the top of the case file- “Dismissed”.
Legal representation and free legal aid- Indian criminal justice system provides for legal representation to each and every defendant and this aid is free legal aid, however, this aid is indeed, incompetent and hypocritical. On one hand, a person’s legal counsel can be consulted by him while he is in custody, but free legal aid is given only after 24 hours of being produced before magistrate. No legal representative is provided while the arrested person is in police custody and that, along with the torture of police which is permitted under sec 27 of Indian Evidence Act, 1872 is a lethal combo. 76 % of death row inmates are poor. Still, 65% of them at the trial court stage, have found to sell off everything to hire a private lawyer because as per accounts of various death row inmates, the legal defence lawyer doesn’t even talk with them until a day before the hearing and the lawyer’s questionnaire is superficial which lacks a deeper analysis of the state of mind of the prisoner. Also, the mercy jurisdiction in India is full of hassles and delays and the bias is so widespread that while the Bara massacre victims got their mercy approved after 14 years of their mercy plea, Yakub Memon’s plea was rejected within 24 hours of the clemency petition. Thus, the subjectivity and unreasonable approach of the Executive machinery and judiciary is very biased against the death row prisoners which raises many calls for abolishing the unjust system.
Times have changed- Law Commission of India, in its 35th Report released in 1967 had observed that India cannot afford to take the risk of abolishing the Death Penalty. The reasoning for the same was that India is a vast country with diverse population and so, abolishing the Death Penalty will make the maintenance of Law and order difficult. However, the Law Commission in its 262nd Report published in 2015 clearly indicated that times have changed and it’s time that India abolishes the Death Penalty, except for in cases of terrorism for the sake of national security safeguards. The justifications for the same were that India has experienced judicial development along with economic growth and the international calls and movements for abolition needed to be heeded to.
Arbitrary sentencing- Sentencing of death row prisoners has been highly arbitrary in the past 40-50 years. The focus on the actor and not on the act is indeed, the correct approach undertaken by the judiciary because a straitjacket formula cannot be devised to ensure consistency in similar death penalty cases and thus, differential sentencing on a case to case basis has to be appreciated. However, while appreciating the same, it has to be addressed that judicial discretion has given rise to varied results and thus, the cases of Bachan Singh and Machhi Singh need to be understood thoroughly so that people committing similar crimes get similar punishments, as far as the degree of punishment is considered. Subjectivity creeps in to make the system judge-centric.
Clemency petitions- Clemency petitions or mercy pleas can act like the last resort for the convict to escape a death sentence. However, the gravity of the situation is undermined while considering the mercy pleas. There is a standard set of procedure through which mercy pleas are filed from prisons as well, and in many cases, the death row inmates were not even aware that their mercy please were filed by the prison authorities themselves and sent to the President. The President and Governors, while considering a mercy plea, have various powers like applying fresh evidence, not being accountable to the court of law to justify themselves, etc and so, mercy pleas have been criticised to be arbitrarily disposed off. Violation of procedures and arbitrariness lead to an inconsistency in the various mercy pleas rejected/ accepted by the Executive machinery and thus, inspite of guidelines published by the Ministry of Home Affairs regarding the considerations that have to be taken while addressing mercy pleas, the death row convicts are still denied the rightful procedural justice which they deserve.
Deterrence paradigm- Statistically as well as empirically, the expected effect of deterrence is not visible on the general public as well as on the criminal minds. Since the past 20 years, murder rates have declined along with a corresponding decline in the execution rate as well. In the past 5 years, only 3 executions have taken place in India, on record. So, it can be inferred that Life Imprisonment and Death Penalty have the same effect and there is no specific need for the imposition of Death Penalty if deterrence is the only justification given for death penalties, because as per Indian law, life imprisonment means punishment for whole life, except for certain remissions which are, in a majority of cases, awarded after 30 years of serving time, thus giving the inmate a chance to reform himself.
Retribution paradigm- Criminal law recognises retribution to be an important principle, however, when it crosses its boundaries to enter the territory of vengeance, it loses its essence and violates the basis of criminal justice. The following arguments can rebut the presumption that retribution is achieved through the death penalty. Even the somewhat vengeful purpose of criminal justice of retribution cannot be fully achieved due to the death penalty because in many cases, the death penalty is highly disproportionate to the offence which caused the imposition of death penalty. Analogies can be drawn with the Right to Private Defence, which is a General Defence under sections 96 to 106 of the IPC. The Right to Private Defence can’t be exercised by a person for vengeful purposes as a revenge for the aggressor’s attacks and recourse to public authorities has to be taken because the scheme of “an eye for an eye” has no place in modern jurisprudence and thus, the principle of vengeful retribution, as per the Supreme Court, finds no place in the criminal law system which upholds the constitutions. Also, various human rights organizations have argued that imposing the death penalty on retributive grounds is violative of basic human rights and the concept of revenge cannot be masked to be legal and backed by the criminal justice system.
Incapacitation paradigm- To incapacitate some criminal is to make him incapable of committing offences again. However, ending the life of a person is not the only way of ensure incapacitation, and life imprisonment can be a good alternative. However, addressing the fact that even life convicts have repeatedly committed crimes is necessary and thus, another better alternative can be life imprisonment without the possibility for parole, as followed in the US state of Oregon. Crime is nothing but a deviance from the public order and social morality, which, as assumed by the principles of rehabilitation, is curable and reformable. So, neither the goal of incapacitation is achieved, nor is an opportunity to reform given due to the death penalty.
Systematic discrimination- The discourse around Death Penalty has been plagued by systematic discrimination against certain sections of the society. Some of the statistics from the report by Dr. Anup Surendranath published by the National Law University, Delhi are as follows-
70% of death row inmates are backward classes and/or religious minorities.
95% of the death row inmates who have been convicted for terrorism are either Panchamas/Dalits or Muslims and other religious minorities
95% of trial court convictions imposing death penalty are either commuted to life imprisonment or the convicts are acquitted altogether, by the court of appeal.
Just like various High Courts differ in the amount of compensation dispensed in civil cases even if the facts and circumstances are similar (for example, the Punjab and Haryana High Court is known for awarding exuberant compensatory amounts), similarly, courts across the country have arbitrarily given contradictory decisions in cases with similar offences and thus, the arbitrariness in the system is evident through the various statistics mentioned above. This arbitrariness, coupled with incompetent legal representation in cases of free legal aid leads to the imposition of a disproportionately harsh penalty . The fact that very few death penalty sentences are upheld by the appeal courts is enough to criticize the entire systematic discrimination because there is nothing that can recompense the mental torture, anxiety and agony due to uncertainty that these victims and their families have to undergo.
Flawed justice system- In a system where the police is overworked, the evidence requirement is not stringent enough, the free legal representative for the defendant is incompetent, there is rampant torture in police custody and to top it all off, a lack of human as well as other resources to deal with all such problems, justice is not possible to be served fairly. Right from the stage of arresting to the stage of mercy pleas, the system is ridden with delays, unfair treatment and torture. Death row inmates are often kept in solitary confinement and tortured. Due to lack of communication with the legal representative and lack of knowledge regarding the progress or any developments in his case, the death row inmates are under constant fear and anxiety. Even the act of ‘waiting’ can be considered as torture because long delays in trials and appeals lead to mental agony and anxiousness in the mind of the prisoner. Knowing that death is imminent yet uncertain is some feeling which no human should ever experience. Thus, the Death Penalty does nothing but degrades a system which is already brutal and violent.
Awarding highest punishment argument- Now, as per Justice Scalia in the case of Callins v Collins, capital punishment is imposed so as to satisfy the public uproar and drawing analogies with the Marxian theory, there is a collective consciousness among individuals which can be satisfied/ satiated only by total elimination and destruction of the corrupt practices (proletariats and bourgeoisie) and similarly, this can be seen in the criminal justice system as well that public uproar can be satisfied only by the total elimination of the offender because we cannot eliminate the act/ offence itself as the offender gives essence to offence. It was clearly seen in the Nirbhaya case as well. However, this argument has no ground except for a moral edge and intertwining law and morality can be a big mistake as per the realist and positivist schools of law. Firstly, public opinion should not be the guiding force behind the judgments of the judiciary and giving in to public pressure is not a quality that judges are required to possess. The media and public are not consistent in their cry for justice and thus, the case of Dhananjay Chatterjee v State of West Bengal has been a victim of extensive legal criticism inspite of being hailed by the public. However, it is reasonable enough to address the concerns of the public in grave cases where the entire community has been shocked to its core because of the heinous acts. It was mentioned by various judges of the Supreme Court like J AP Shah that the role of the judiciary in such cases is satisfaction of the public conscience and this satisfaction happens by awarding the highest possible degree of punishment under that particular system of law, and not specifically by death. Now that DP has been in force as the highest punishment in India, it has been ingrained in Indians that this punishment is the highest form of punishment and so, they use both interchangeably which is not a fallacy. However, in a system where life imprisonment for life is the highest punishment which can be awarded, which is seen in over 120 countries along with minor changes like solitary confinement and RI, the public conscience is satiated by awarding that highest punishment and so, awarding highest sentence is a symbolic arrangement that courts have to do for satisfying public uproar.
International discourse- At an international stage, India forms a part of the minority group of retentionists which include China, USA, Saudi Arabia, Iran among others. 140 countries have abolished the Death Penalty in law or in practice, while the remaining 58 have retained the same and some of them are limiting the offences which can attract the death penalty, thereby signifying a shift towards abolition. The international wave towards abolition of death penalty clearly signifies that punishment of death is not a sine qua non for effectively fighting off terrorism and other such offences. India has been rejecting the resolutions of the United Nations from time to time which seek to provide moratoriums on executions in order to abolish the Death Penalty. 38 countries had rejected the resolution while 115 had accepted it, thereby showing the minority to which India belongs.
Socio- economic factors- Socio- economic factors play a major role in the Death Penalty discourse. Poverty, illiteracy, marginalization and systematic discrimination against the socially backward and economically vulnerable classes is rampant in the society and these factors evidently contribute to the commission of offences which attract the Death Penalty, which can be explained with the help of statistics- 23% of death row inmates in India haven’t entered school, while 62% haven’t finished Secondary level education. Inbuilt prejudices in the system lead to disadvantages for the poor and illiterate are not aware of their rights.
Suggestions for Reform
Deterrence- There is no empirical data or statistics which prove the deterrent effect of Death Penalty and Human Rights Organizations in India and abroad have reiterated the same, like the National Academy of Sciences, United Nations Royal Commission of UK, etc. If the aim of a criminal law legislation or system is Deterrence, then Life Imprisonment without the possibility of Parole is a feasible alternative for the death penalty. It means that the convict will be imprisoned for life and the state’s power to pardon or commute his sentence will be stripped off. The convict will not be allowed any kinds of review petitions or parole/ furlough. For example, in the Sriharan case (Rajiv Gandhi’s assassination case), the Supreme Court observed that the High Court and Supreme Court has the power to sentence a person to Life imprisonment excluding the possibility of parole or review or even pardon by state machinery.
Reformation- If the objective of a criminal law legislation is Reformation, then the brutality of the offence should not be the only parameter while judging whether death sentence should be awarded or not. For example, many death row inmates have to wait for 15 odd years, as seen in the Akshardham and Bara massacre cases, in order to get their sentences commuted or even their mercy pleas rejected. Thus, if the legal system imposes the death penalty, there will remain no one to be reformed after the death penalty and so, elimination of the offender will not serve the purpose of the system. Thus, possible alternatives to the Death Penalty can be the establishment of institutions which review the inmates and judge their conduct periodically so as to ascertain the degree of reform in the criminal and thereby, encourage his attempts at reform. The convict should not be deprived of an opportunity to reform himself.
Reforms in the system- One of the major objectives of the criminal justice system is restoration and rehabilitation and in the deliberations around the death penalty giving absolute justice to victims, these aspects of justice often get ignored. The system which is ridden with ailments need to be addressed and rectified on a priority basis. For instance, the fundamental human rights of the victim need to be respected, the investigation and evidence standards need to be improved and the focus of the system should be on crime prevention rather than retribution after the damage is already done. Also, in high profile cases, it has been observed that the rights of victims and witnesses are suppressed and so, adequate victim rehabilitation and compensation should be ensured along with witness protection schemes so as to ensure fair disposal of justice. Increasing the efficiency of the entire system by starting off with police reforms at the initial stage of custody till expeditious and consistent disposal of mercy pleas and witness protection and victim rehabilitation schemes should be undertaken as reform measures by the government, as these steps will supplement the abolition movement to a great extent by making the present existent conditions conducive for change.
Path towards abolition- Our criminal law jurisprudence around Death Penalty has evolved in the past 70 years. It all started in 1955 when the provision which mentioned that ‘special justificatory reasons have to be provided for imposing a life sentence instead of a death sentence’ was removed. Then, after failed attempts of abolition and the Law Commission Report in 1967 which recommended the retention of Death Penalty, the system became more stringent by asking for special justificatory reasons for attracting the death penalty. Then came the Bachan Singh case which allowed the imposition of death sentence only in “rarest of the rare” cases. This unilinear cycle of evolution clearly indicates the path towards which we have to keep moving and thereby, end up abolishing the Death Penalty. The entire dialectical journey has moved from a pro- death penalty stance to an anti- death penalty stance. Today, our fundamental human rights are expansive and are preciously valued and respected and thus, the right to life has to be upheld because the state cannot take away what it cannot restore. Keeping in mind our constitutional morality, all such reforms can lead us to the ultimate aim of abolition of Death Penalty.
Why Should Death Penalty be Abolished in Terrorism Related Offences?
The researcher would now like to deal with the abolition of death penalty even for terror related offences, a recommendation that the 262nd Law Commission report has refrained from taking. Some of the famous and controversial hangings related to terrorist offences in recent past are- In 2012, Ajmal Aamer Kasab was executed for his role in the Mumbai terror attacks, In 2013, Mohd. Afzal Guru was hanged for his contribution to the 2001 Indian parliament attack. In 2015, Yakub Memon was executed for his part in the 1993 Mumbai bombings. The 262nd Law Commission Report has recommended that except for in terrorist offence, Death Penalty should be abolished in all other offences. The prime reason behind this is that terrorist activities are so grave that there is no possibility of reforming the criminal and so, in interests of national security, death penalty should be upheld in terrorist offences. However, it cannot be ignored that most of the terrorist acts are suicide bombers/ actors ready to self -sacrifice, majorly due to religious indoctrination or to fight against an unjust establishment. Thus, the principle of deterrence holds no good in this context. Moreover, an ironic phenomenon is observed in cases of some terrorists, who, instead of trying to avoid and fearing the Death Penalty, solicit the same so as to gain public attention and support from various public groups and organizations, so as to meet their political or religious ends through earning a death sentence, which was seen in an Indonesian case where the death row inmate who had committed a terrorist offence was so happy after hearing the news of his conviction and death sentence that he reacted with a thumbs up sign so as to indicate victory and achievement of his end. Thus, clearly, death sentences do not have the deterring effect that they are supposedly thought to have. Further investigations by various organizations like the ACHR have statistically proven that terrorist activities reduce not when death punishments are stricter, but when peace talks are ongoing. 
In some other scenarios, people who have been executed gain the status of martyrs who fought against injustice by opposing the unjust establishment and died while furthering a good cause of a community. Thus, public perception shifts and they start thinking that the state is their enemy and fighting against the state and dying at the hands of the unjust state for a good cause will bestow martyrdom upon us. So, more people tend to join in these terrorist activities and thus, as seen in the cases of Yakub Memon as well as Afzal Guru, the death penalty can have an unexpected and negative effect as well, instead of deterring. This claim is backed by the very proponent of the deterrence theory, Jeremy Bentham, who says that rebels gain the status of martyrs and so, the very purpose of criminal justice is lost. Lastly, due to hasty and unethical investigation in cases of high national importance and terrorist activities, innocents become victims of the system. For example, the Akshardham case convicts were set free after 14 years as all of them turned out to be innocents. How does the law seek to recompense these innocent souls? There’s no answer which can place them in their original position and make them forget about the years lost and the agony suffered. Thus, it should be fundamentally understood that even terrorists are human beings who deserve equal treatment. Thus, though the costs of abolishing the death penalty are high (common man’s tax money spent on keeping high profile convicts in custody till execution), but the benefits certainly outweigh the cost. The Law Commission has itself conceded that there is no valid justification on penological grounds that can be given to the fact that terrorist offences and offences of waging war against the government should be treated separately, but the only concern is national security. However, only when baby steps are taken towards abolition of death penalty will the steps result in an absolute abolition.
The researcher, who was at a neutral standpoint before starting the research article, has reached a position where he supports the wave towards abolition of death penalty because in this discourse, in order to reach the objectives of our criminal justice system, fundamental human rights have to be respected by adopting a restorative view and rejecting a retributive one. On a moral platform, people want serious offenders to be wiped out from the society but little do they know about the execution theatre and the realities of the structure of the system. In a system where torture is rampant, fundamental human rights are not paid heed to. The various alternatives and reform possibilities suggested in this article like a life imprisonment without a possibility of parole/ review/ pardon can very well serve the purpose of mellowing down the public uproar and disabling the criminal from repeating his acts. A just criminal system treats convicts and victims equally as humans and thus, a system where there an fewer methodical impediments and the death penalty has been abolished will lead to a just and equitable system respecting human life and human rights to the fullest. The Law Commission has expressed its hope that the movement in India towards the abolition of Death Penalty will be irreversible and swift.
Death Penalty Quotes, available at: http://www.goodreads.com/quotes/tag/death-penalty
Offences punishable by death penalty, available at: http://www.deathpenaltyindia.com/sections/. Also, in the case of Mithu Singh v State of Punjab, Section 303 of the IPC was struck down for being unconstitutional which provided for the imposition of Death Penalty to a life sentence convict who commits a murder.
Ram Singh & Ors. vs State Of Nct Of Delhi , SLP (Crl) No. 3119-3120 of 2014
Bachan Singh vs. State of Punjab, 1980 2 SCC 684
Rarest of the rare doctrine, available at: https://www.lawctopus.com/academike/rarest-rare-doctrine-death-penalty/
Abolition of Death Penalty, available at: http://www.legalserviceindia.com/articles/dsen.htm