EFFECTIVENESS OF CAPITAL PUNISHMENT IN INDIA: ANALYSIS
1.1 Legal Methods
Academic Year (2022-2027)
Semester:
Submitted by:
Utpal jiwane
UID:UG22-121
Submitted to:
Dr. Himanshu Pandey
(Professor of Law)
[Link] Verma
(Assistant Professor of legal methods)
Prof. Abhirup Das
(Assistant professor of legal methods)
Maharashtra National Law University,
Nagpur
TABLE OF CONTENTS
Sr no. Particulars Pg no.
1. Abstract 3
2. Introduction 3
3. Aim and Objective 4
4. Research Question 4
5. Research Methodology 4
6. Capital punishment in India 5
7. Theories of punishment 6
8. Analysis 7
9. Hypothesis 8
10. Suggestions 9
11. Conclusion 10
ABSTRACT
The question of the death penalty is widely debated around the World. It has always been up for
criticism right from how the death penalty is administered in India by hanging the person till they
die to its constitutionality. The constitution of India does not take an explicit stance on death
penalty; it neither supports nor abolishes it, but it does assume the existence of death penalty.
Article 134 says that individuals punished by death have right to appeal the supreme court, also
article 72 allows the president to pardon them. The demand to abolish death penalty has also
been around forever even before the constitution came into existence; in fact, some members of
the constituent assembly also demanded abolition of the death penalty during these debates. Now
while the constitution did not abolish death penalty as we know but the matter did come up
before the Supreme Court which ruled the death penalty is constitutional but it clarified that it
can be awarded only in the rarest of the rare cases (Bachan Singh v State of Punjab, 1980). This
project paper provides a thorough overview of the Indian death penalty and its effectiveness.
1. INTRODUCTION
The death penalty, often known as the capital punishment, is the harshest penalty a person
can receive under any criminal statute in force. It is the legal process by which a state uses
its authority to take someone's life. Despite being legal, it hasn't often been put to the vote
in India. The Indian Penal Code allows for the imposition of the death penalty for a number
of certain crimes in accordance with the rules entrenched in the Indian Constitution. Every
citizen is guaranteed the fundamental right to life under Article 21 of the Constitution,
which also explicitly stipulates that “no person shall be deprived of his life or personal
liberty except according to the procedure established by law.” that is, if the state sees fit, it
may take your life through the established legal process. Not all crimes are punishable by
death; in fact, the majority of legal systems reserve the death penalty for the most heinous
of offences. Apart from the disagreement over the number of executions, the issue of the
death penalty itself has been in the spotlight for decades. The current criminal justice
system has angered a number of human rights and civil liberties organizations, and their
complaints are not restricted to just one nation. Several well-known international human
rights organizations, like Amnesty International and the European Centre for Human Rights
(ECHR), have been working tirelessly to abolish the death sentence worldwide for all
crime. There is agreement to end the death penalty permanently inside the United Nations
as well as among other international organizations. Despite the continuous discussions and
arguments that are taking place both inside and outside the nation, India has up till now
maintained a clear position in the international arena on the issue of the legality of the death
sentence.
2. AIM AND OBJECTIVES
To study about the capital punishment in India.
To study the different theories of punishment.
To analyze effectiveness of capital punishment.
To critically understand whether or not India should abolish death penalty.
3. RESEARCH QUESTION
1. Which crimes entail capital punishment in India?
2. Does it really help in preventing heinous crimes?
3. Is death penalty a justifiable punishment?
4. Should death penalty be abolished in India?
4. RESEARCH METHODOLOGY
The research method used here is doctrinal, It involves secondary data which is based on the
existing case laws, facts, studies from different sources like articles, books, journals and
online database.
CAPITAL PUNISHMENT IN INDIA
In India, the death sentence is an accepted form of punishment. The death penalty is a crucial
component of the Indian criminal justice system. Capital offences or capital crimes are crimes
that carry the death sentence. The two execution techniques used in India are hanging and
shooting. The mode of execution in the civil court system is hanging, as stated in the Criminal
Procedure Code. However, both hanging and shooting are recognized as acceptable methods of
death in the military court-martial system according to the Army Act of [Link] Indian Penal
Code imposes death penalties for a number of offences, such as criminal conspiracy, murder, war
against the government, aiding a mutiny, dacoity with murder, and anti-terrorism. Although there
are some exceptions like, minors at the time of the offence, pregnant women, and those with
mental illnesses are prohibited from being put to death. When the court determines that life in
prison would not be sufficient in the circumstances of the case, the death penalty is then
imposed. . An individual who has been found guilty and sentenced has the option to appeal both
the conviction and the sentence. A higher court will hear the case, which may ultimately reach
the Supreme Court. The appeals process can take two to three years. If all else fails, one may
request pardon from the Indian president, who can only act after consulting the Indian cabinet
(Majumder, 2005)1. The President of India has the authority to pardon or lighten the sentence of
a person who has been convicted under Article 72. The Governors of every State have a
comparable and equivalent power under Article 161, but only the President has the authority to
pardon and exonerate someone of accusations. The recommendations of their separate Councils
of Ministers bind both President and the Governor.
The 262nd Report of the Indian Law Commission made the recommendation to eliminate the
death sentence for all offences other than those connected to terrorism in order to protect national
security.2 The Law Commission came to the conclusion that India couldn't risk the "experiment
of abolition of the death penalty" in its last assessment in 1967. The Panel, however, declared in
2015 that "the commission considers that the time has come for India to proceed towards
abolition of the death penalty."3
1
[Link]
2
Report No. 262, The Death Penalty, Law Commission of India, 2015.
3
Ibid.
THEORIES OF PUNISHMENT
A person may be subjected to several forms of punishment. First, we must comprehend the
theories underlying the punishment in order to comprehend them. The four main conceptions of
punishment are as follows.
1. Deterrent theory- The word "DETER" in the deterrent theory of punishment refers to
refraining from engaging in any wrongdoing. This theory's major objective is to "deter"
(or prevent) offenders from attempting new crimes or committing the same ones again in
the future. As a result, it says that the goal is to prevent crime by creating fear; by
punishing the offender, one sets an example for others or the entire society. That simply
means that , if anybody commits any crime and is severely punished, it may result in the
people in the society becoming aware of the harsh punishments for particular types of
crimes and, as a result, refraining from committing any crimes or wrongdoing as a result
of this fear in their minds.4
2. Preventive theory - By immobilizing the offenders, the preventive philosophy of
punishment aims to stop future offences. The primary goal of the preventive philosophy
is to temporarily or permanently change the offender. According to this view, offenders
are sentenced to death or life in prison, among other severe penalties. Death penalty is
also based on this theory. Preventive hypothesis is used in India.5
3. Reformative theory - According to reformative theory, the goal of punishment must be
to transform the criminal through an individualization method, it entails the change of
criminals and a belief in reeducating and reforming them. This theory contends that
criminal behavior is influenced by the physical or psychological condition of the offender
as well as the environment and circumstances that exist in society. The criminal is
therefore viewed as a patient. As a result, punishment is not employed to get back at the
offender or to torture or harass them. According to reformative theory, punishment has
more of a rehabilitative effect than a deterrent. The purpose of punishment is to make the
offender more human so that he can once again become a normal, law-abiding member of
society. The focus is on the offender and his mentality rather than the offence itself, the
harm caused, or the potential deterrent effect of the penalty.
4. Retributive theory - According to the retributive justice doctrine, those who violate the
law need to experience consequences for their actions. In other words, if someone does
harm to another individual or society, they too should suffer the consequences of their
actions. In a retributive system, punishment is proportionate to how serious the offence
was that was done. Retribution basically implies that the culprit is made to pay for his
actions. However, the state believes that inflicting harm on the criminal is vital to stop
4
Anthony Ellis, The Philosophical Quarterly (1950-) Vol. 53, No. 212 (Jul., 2003), pp. 337-351.
5
Singh, Rajat. “A Comparative Study on Capital Punishment in India - the Daily Guardian.” The
Daily Guardian, 15 Jan. 2022, [Link]/a-comparative-study-on-capital-
punishment-in-india.
revenge. The retributive philosophy overlooks the reasons why a crime occurred and does
nothing to address those reasons.6
ANALYSIS
According to Death penalty Annual statistic report 2021(project 39a), the research conducted by
National law University, Delhi and National Crime Record Bureau, we can analyze the
effectiveness of capital punishment in India. Some of the findings of the report were-
Socio economic factor-According to official statistics, 74.1% of Indian death row
inmates are economically vulnerable based on their employment and property ownership.
It is asserted that perpetrators from racial and ethnic minorities and those from lower
socioeconomic origins are targeted more frequently than those from wealthy
backgrounds.7
Educational background- 23% of those who received death sentences had never
attended school. A startling 61.6% of those who had been given the death penalty had not
finished their secondary education, while another 9.6% had rarely went to school but had
not even completed their primary school education. Six of the 12 female inmates had
never gone to school.8
Caste and religion- In India, backward classes and religious minorities make up 76%
(279 convicts) of the death row inmates. The unequal effects of the death sentence on
vulnerable and marginalized groups must find a prominent position in the discussion on
the death penalty, even when the intention is undoubtedly not to imply any causative
relationship or direct discrimination. While 24.5% of Indian death row inmates are
members of Scheduled Castes or Scheduled Tribes (SC/ STs),9
Innocent execution - Torture of prisoners while they are being held in custody
frequently leaves gaps in legal processes. Behind the scenes, there is much more
suffering that destroys prisoners beyond repair and compels them to abandon their claim
of innocence, which in turn leads to execution of innocent prisoners. In a 2012 letter to
the President, 14 retired justices noted that since 1996, the Supreme Court has incorrectly
sentenced 15 persons to death, of whom two were hung. 10 The Supreme Court
acknowledged that it had sentenced 15 persons in error during a 15-year period in 2009.
6
Hugo Adam Bedau, Retribution and the Theory of Punishment, The Journal of Philosophy
Vol. 75, No. 11 (Nov., 1978), pp. 601-620 (20 pages)
7
“Project 39A.” Project 39A, 25 Oct. 2022, [Link].
8
Ibid.
9
Supra Note 7.
10
“You Were Wrong, My Lords.” You Were Wrong, My Lords - Telegraph India,
[Link]/7-days/you-were-wrong-nbsp-my-lords/cid/1314002. Accessed 6 Nov.
2022.
It was 25% mistake rate, which would mean that every fourth individual receiving a
death sentence.
Sexual violence Cases- Approximately 65% of all death sentences handed down in 2020
contained cases of sexual assault, according to the Death Penalty in India: Annual
Statistics 2020 Report by Project 39A of the National Law University, Delhi. The widely
held assumption that the death sentence would serve as a deterrent and help eradicate
rapists from society may not be as straightforward as it first appears. On the other hand,
there is no solid evidence from statistics collected throughout the world that the death
sentence lowers crime, particularly rape. However, it does more harm than good. For
instance, a data from the National Crime Record Bureau 11 from 2018 indicates that the
majority of offenders in recorded rape cases were known to the victim. The victim knew
the perpetrators in almost 93.9% of cases of rape, according to the data. In addition,
relatives or friends made up around 56.21 percent of all offenders. So if a family member
is the perpetrator of the rape the death sentence would be a barrier to reporting such
incidents since it would put the victim's relatives under more strain. It increases the
likelihood of greater violence, including murder, because criminals may try to kill the
victim in order to avoid being caught or reported if they believe they will receive the
death sentence as punishment. Therefore, it is evident that the use of the capital
punishment as a penalty may have consequences and would ultimately jeopardize the
concept of victim protection.
HYPOTHESIS
Let’s assume that capital punishment has a deterrence effect on the criminal. But according to
statistical data, the death sentence doesn't seem to deter people who commit significant violent
crimes. There is absolutely no proof that the death sentence in India helps to prevent or reduce
violent crime. Since 2013 (Section 376A of the IPC), the death penalty has been authorized in
rape cases. Despite this, rapes continue to occur, and in fact, their intensity has multiplied. The
Home Ministry's statistics show that despite the decline in executions in India, there hasn't been a
noticeable rise in the levels of common crime and violence. This forces one to consider whether
the death sentence is a powerful deterrence to crime. According to the results of a UN survey,
there is no scientific evidence to support the claim that executions have a stronger deterrent
effect than life in prison. Increasing the chances of detection, arrest, and conviction is essential
for effective deterrence. So the hypothesis turns out be a failure.
11
“राष्ट्रीय अपराध रिकॉर्ड ब्यूरो.” राष्ट्रीय अपराध रिकॉर्ड ब्यूरो, 10 July 2022,
[Link]/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Table%203A.4_0
Suggestions
In its 262nd report, the Law Commission has proposed that all crimes in India be exempt from
the death penalty, with the exception of those involving acts of terrorism or the crime of waging
war against the nation. The death penalty was abolished by 140 other countries for the fact that it
was used arbitrarily and improperly, and that it had no visible deterrent impact on criminal
behavior. Here are some suggestions that the state should enforce instead of sentencing for death
penalty.
Life imprisonment- The prospect of change is the main argument in favor of choosing a
different punishment than the death sentence. After doing time in jail and having their
freedom severely restricted, criminals might modify their behavior. Also, the offender's
rehabilitation should be given more attention. Prisons ought to put their attention on
figuring out what the fundamental reasons are for committing crimes and working to
address those.
Criminal justice system - It is important to remember that enhancing the efficiency of
the criminal justice system, in particular the Police, is an effective alternative to the death
penalty. The criminal justice system will function more effectively if there is effective
policing and a decrease in the amount of time required for the inspection and filing of the
report to the magistrate. Crime may be decreased when it is directed in crime hot zones
by deploying surveillance cameras and patrol officers. Additionally, it reassures the
people when it indicates that the policeman is acting and hence can deter criminals.
Education- State should focus more on education. The idea that education has an impact
on crime is the idea that increasing crime prevention is the most effective way to reduce
crime, and that education is the best way to do this.
Judicial reformation - The constitutional requirements of equality, justice, and fairness
are not upheld by the death sentence statute and practice in India. Lawmakers, academics,
social activists, and even the judges themselves have all voiced strong disagreement with
the notion that the convict's life hinges on the makeup of the bench. According to a
Frontline article on research comparing the conviction rates of three Supreme Court
justices, judges' preferences have a role in whether or not they sentence someone to
death. In India, the Bachan Singh principles have been arbitrarily applied, and generally,
the use of the death sentence by individual judges is still plagued with arbitraryness,
prejudice, caprice, and error. Thus there is need of judicial reformation.
Pornography- There is just no way to predict whether viewing pornography would
inspire someone to commit rape, murders, or any other crime. However, a review of 33
research revealed12 that access to both violent and non-violent porn increased aggressive
behaviour, including the desire to carry out violent fantasies and real violent attacks.
12
Scot B. Boehringer, “Pornography and sexual aggression”,Vol.15 ed.1994,pp.289-304
Conclusion –
When the accused is given the death penalty, it is no longer just a punishment; rather, we are
killing the person in the name of justice and the law. Murdering someone is wrong because it
shows a lack of respect for human life. Limiting the use of the death penalty does not indicate
that the criminal is being supported. When capital punishment is implemented, it denies the
degree to which a person's life may have altered; for this reason, popular governments across the
world embrace the reformative theory of punishment rather than the deterrent theory of
punishment. Even the most heinous criminal, however, is still a person with typical human
values. As a result, everyone should be respected. Using the rules and regulations that we have
established for ourselves as individuals, we have no right to decide who is permitted to live and
who gets the chance to die. Unquestionably, a criminal has to pay for his wrongdoings, but the
focus should be on putting an end to the crime rather than the offender. We regard ourselves as a
"socialized society," but we execute someone else in the sake of achieving justice. The death
penalty is an outdated, inhumane idea that should be abolished since it includes the killing of a
person, which is wrong because life is valuable and dying is inevitable. Reformative theory
offers an advantage over deterrence theory because it gives people an opportunity to improve,
which can transform their lives and give them a chance to reintegrate into society. Democracies
should thrive more on reformative theory than deterrent theory.