School of Law, Christ University, Bengaluru.

SUBJECT- PRINCIPLES OF CRIMINAL LAW

C.I.A.-III SUBMISSION

Criminal law and the dilemma of capital punishment

Date- 7 September, 2015

Submitted to: Ms. Hiwarale Mangala Gajanan

Submitted by-

Name: Somashish

Class: V B.A. LL.B.

Section: A

Year: 2015

Registration No.:1316057

Criminal law and the dilemma of capital punishment

Introduction

The recent case of Yakub Memon v. State of Maharashtra1 witnessed much

controversy of the applicability and relevance of the death penalty in the

criminal justice system. Apart from the fact that many people raised specific

objections like the inadequacy of the trial of the accused, many general

objections to death penalty were raised by pro-abolitionists. In substance the

debate over capital punishment has been brought back to the fore because of

this controversy.

In this article a collective analysis of the criminological theories relevant to the

capital punishment debate, judgements of the Supreme Court of India and

recommendations of a recent report of the Law Commission of India has been

made. On the basis of such analysis it is argued that the criminal law has moved

from a deterrence-based justification to a reformative-restrictive approach to the

death penalty. The clear evidence of this approach comes from the rarest-of-

the-rare, delay, and rehabilitation doctrines of capital punishment evolved

by the Supreme Court. There is an overall consensus that the death penalty is to

be applied restrictively. However, there has not been any indication toward a

complete abolition of capital punishment.

It is also argued that in the current circumstances facing the criminal justice

system there is a strong case for retaining the status-quo on the capital

punishment. These circumstances include inter alia the rise in incidents of

crimes against women and continuing terrorism. The existence of a backlog

ridden judiciary implies that the fear induced by the provision of death penalty

is necessary to elicit deterrence.2 Complete abolition of the capital punishment

is not an option.

1 W.P. (CRL.) No. 2346 /2015. (Supreme Court of India) 2 Press Trust of India, More Than 3 Crore Court Cases Pending Across Country,

http://www.ndtv.com/india-news/more-than-3-crore-court-cases-pending-across-country-

709595

Theories on the Capital punishment3

The Retributive theory of punishment4 requires that punishment for illegal acts

should be proportionate to the committed illegal acts. In this sense the

retributive theory demands that punishments be awarded taking into account the

crime committed by criminals. There is complete emphasis on looking

backwards into the past criminal act and determine the punishment which is

deserved by the accused. There is no scope for looking forward into the potential

activity/behaviour of the accused at a future time.

In the tenets of this theory the criminal is punished in terms of what he/she

rightfully deserves for commission of a crime. However this is subject to the

public laws and procedural justice. Therefore the theory is not in favour

vengeance. Instead, as Michael Moore explains, the punishment awarded is an

act of criminal justice. Although any private party may injure someone in

vengeance to any degree he/she is satisfied, the retributive theory requires the

criminal justice system to punish an accused only to the extent he/she deserves.

Keeping the tenets of the theory intact, death penalty would be justified in

crimes where the causal result of the criminal act was death of the

corresponding victim. Therefore offences like homicide, murder (arguably,

abetment of the same), rape-and-murder would definitely call for the death

penalty for a convict. Arguably, offences like grievous hurt or rape could also

call for death sentence if the corresponding victim is practically rendered

lifeless, so as to be alive only in terms of a beating heart without any other bodily

capacity. Currently national security threats from terrorism and waging war are

also considered capital offences. This could also be justified in terms of this

theory. The possible deaths of numerous lives in a country when such offences

are committed would justify the same.

3 THOM BROOKS, PUNISHMENT 15-18, 35, 51 (Routledge, 1st ed. 2012); LILI SCHERDIN, CAPITAL

PUNISHMENT 273-91 (Ashgate, 1st ed. 2014). 4 BROOKS, Supra note 2; Autri Saha & Pritika Rai Advani, The Death Penalty: A new

Perspective, 2 NUJS L. REV.669 (2009); Krishna Iyer J., Death Sentence on Death Sentence,

THE INDIAN ADVOCATE: JOURNAL OF THE BAR ASSOCIATION OF INDIA: V. XVIIIII: 28: (Jan-

June, 1978), as cited in Dr. A. Krishna Kumari, Role of Theories Of Punishment In The Policy

Of Sentencing,

http://works.bepress.com/cgi/viewcontent.cgi?article=1006&context=krishnaareti (Last visited

on January 6, 2010).

In this manner retributivists justify the death sentence in cases of offenders

who in fact deserve such sentence considering the degree of their crime. This

theory is dismissive of pardons/mercy on offenders. Even if pardoning an

offender were to be beneficial, the retributive theory holds that the sanctity of

the justice system depends on proportionate punishments to offenders.

Therefore, the retributive theory and its supporters worldwide support the

capital punishment and vehemently oppose an abolition. Death penalty is

viewed as a potent instrument of social control for the criminal justice system.

The Deterrence theory5 declares that the primary purpose of punishments is to

ensure that crime becomes less frequent, if not completely eliminated. This

theory has been supported by thinkers as old as Plato and among the new

enlightenment thinkers, David Hume. Unlike the retributive theory, the

deterrence supporters view the case of every offender from the prism of a social

calculus of harms and benefits. Therefore the offender is not viewed solely from

the perspective of his illegal act which he commits in the past. The potential

deterrence for the future which could be attained by punishment is of

paramount importance for such thinkers.

The support for the death penalty voiced by the deterrence theory is not based

on any proportionality or character of the offence. Rather the emphasis is laid

on punishing crimes on the basis of the quantum required for deterrence. Each

individual would be incentivised to not commit a crime, if the pain inflicted in

punishment is too great for him to derive any benefit from the crime. On this

basis the deterrence theory supports the death penalty as a means to set the right

quantum of deterrence on crimes which are in the most vital interest of the

society to prohibit.

The Deterrence theory relies on a widely shared assumption that the practice

of punishment has an absolute deterrence value, in the sense that crime and

disorder would substantially increase if the practice were to be abolished. On

this basis, the deterrence theory says that death penalty would cause a

substantial prevention of the crimes which attract it.

5 BROOKS, Supra note 2; Autri Saha & Pritika Rai Advani, The Death Penalty: A new

Perspective, 2 NUJS L. REV.669 (2009).

The Reformative theory6 declares that punishment should aim at the

reformation of offenders and assist their transition from criminal to law abiding

citizens. Such rehabilitation is successful when criminals consciously choose to

reject crime. This theory rejects the death penalty on the ground that it provides

to scope for rehabilitation. The reformative theory supports complete abolition

of the death penalty in the law.

According to this theory, death penalty is viewed as a premeditated form of

killing which is carried out in the name of punishment.7 It is barbarous in

nature since all the methods of execution involve a great amount of pain to the

person being executed; hence it is believed that till such advanced technology

has not developed that the execution can be carried out in an immediate and

painless manner, death penalty should not be administered.8 It is also believed

that death penalty does not serve as an instrument of deterrence which is

regarded as its main objective by the proponents of death penalty.9 Death

penalty is therefore futile and this is evidenced by the fact that its abolition has

had no such adverse impact on the crime rates of the countries which have

abolished it.10 Further, it also denies the possibility of rehabilitation and

reformation of the criminal. Death penalty runs the risk of irrevocable error11

6 BROOKS, Supra note 2; Autri Saha & Pritika Rai Advani, The Death Penalty: A new

Perspective, 2 NUJS L. REV.669 (2009). 7 See Taylor v. Crawford, 487 F.3d 1072, 1081 (8th Cir. 2007) (The infliction of capital punishment is itself a deliberate act, deliberately administered for a penal purpose); See also Amnesty International, Human Rights v. The Death Penalty: Abolition And Restriction In Law

And Practice, AI Index: ACT 50/13/98, December 1998; Autri Saha & Pritika Rai Advani, The

Death Penalty: A new Perspective, 2 NUJS L. REV.669 (2009). 8 Dawinder S. Sidhu, On Appeal: Reviewing The Case Against The Death Penalty, 111 W. VA.

L. REV. 453, 2009; Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective, 2

NUJS L. REV.669 (2009). 9 Lawrence Katz et al., Prison Conditions, Capital Punishment, and Deterrence, 5 AM. L. &

ECON. REV. 318, 330-32 (2003) as cited in Richard B. Roper, The Death Penalty at The

Intersection Of Reality And Justice, 41 TEX. TECH L. REV. 15; Autri Saha & Pritika Rai Advani,

The Death Penalty: A new Perspective, 2 NUJS L. REV.669 (2009). 10 Amnesty International, The Death Penalty: Questions And Answers, AI Index: ACT 51/

002/2007, April 2007. (In Canada, for example, the homicide rate per 100,000 population fell

from a peak of 3.09 in 1975, the year before the abolition of the death penalty for murder, to

2.41 in 1980, and since then it has declined further. In 2003, 27 years after abolition, the

homicide rate was 1.73 per 100,000 population, 44 per cent lower than in 1975 and the lowest

rate in three decades. Although this increased to 2.0 in 2005, it remains over one-third lower

than when the death); Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective,

2 NUJS L. REV.669 (2009). 11 Amnesty International, The Death Penalty: Questions And Answers, AI Index: ACT 51/

002/2007, April 2007; Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective,

2 NUJS L. REV.669 (2009).

as many are denied the opportunity of a fair trial or they grapple with issues

relating to inadequate legal representation.12

Following this theory, according to reports of Amnesty International, 131

countries have abolished the death penalty in law or practice, 66 other countries

and territories retain and use the death penalty.13 Remaining 17 Countries that

allow the death penalty are therefore, now in the minority.14

Governments of various countries have not merely limited themselves to

rooting out capital punishment from their own judicial systems but have also

contributed towards launching a global movement for the eradication of death

penalty.15 This consensus was first acknowledged in the Universal Declaration

of Human Rights16 (hereinafter UDHR) adopted by the UN General Assembly

in 1948. Article 3 of UDHR says that everyone shall have the right to life.17 It

was further elaborated in Article 5 that no one shall be subjected to torture or to

cruel, inhuman or degrading treatment or punishment.18

At the UN, evidence of this international trend further manifested itself

through the International Covenant on Civil and Political Rights (hereinafter

ICCPR).19 Paragraph 2 of Article 6 establishes the existence of abolitionist

countries and invokes a relatively high standard for the imposition of the death

penalty. The international trend disfavoring capital punishment is also evident

in the Second Optional Protocol to the ICCPR,20 providing for total abolition of

12 Id. 13 Amnesty International, The Death Penalty: Questions And Answers, AI Index: ACT

51/002/2007, April 2007; Autri Saha & Pritika Rai Advani, The Death Penalty: A new

Perspective, 2 NUJS L. REV.669 (2009). 14 Id. 15 Amnesty International, The Death Penalty: Questions And Answers, AI Index: ACT 51/

002/2007, April 2007; Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective,

2 NUJS L. REV.669 (2009). 16 Universal Declaration of Human Rights, G.A. Res. 217A (III), UN Doc. A/810 (December

12, 1948); Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective, 2 NUJS L.

REV.669 (2009). 17 Article 3 states Everyone has the right to life, liberty and security of person. 18 See Article 5; Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective, 2

NUJS L. REV.669 (2009). 19 International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, S. Exec.

Doc. E, 95-2 (1978), 999 U.N.T.S. 171, 175 (March 23, 1976); Autri Saha & Pritika Rai Advani,

The Death Penalty: A new Perspective, 2 NUJS L. REV.669 (2009). 20 GA Res. 44/128, Annex, 44 UN GAOR Supp. (No. 49) at 207, UN Doc. A/44/49 (1989).

(The Preambulatory clause states that abolition of the death penalty results in enhancing human

dignity and progressive development of human rights and that all measures of abolition of the

the death penalty which was adopted by the UN General Assembly in 1989. In

Europe, the capital punishment has been abolished by all EU countries except

in cases of war crimes.21

The United States is the only significant western nation retaining the death

penalty. Many countries have come together in supporting these international

initiatives for the universal abolition of death penalty emphasizing on its

flagrant violation of human rights. Article 37(a) of the UN Convention on the

Rights of the Child22 adopted by the UN General Assembly states, Neither

capital punishment nor life imprisonment without possibility of release shall be

imposed for offences committed by persons below eighteen years of age.23

These treaties and covenants ascertain that there is a growing consensus among

the international community against the administration of death penalty in most

parts of the world.

In the succeeding section, it is sought to be argued that criminal justice system

in India has moved from a deterrence-based conception of the death penalty as

the rule and life sentence as the exception, to the rehabilitative concept of

rarest of rare dictum. In fact, there has been a shift towards a rehabilitation

theory which is also supported by a delay doctrine which provides relief to

sentenced convicts for commutation of death sentence to imprisonment.

Indias tryst with the Death penalty

The Supreme Court of India has long been aware that Indias maintenance of

the death penalty stands in stark contrast to international norms. Therefore, the

courts have sought to soften Indias death penalty stance to more closely align

it with international standards. Yet the Court has been unwilling to end it

entirely. There are legitimate concerns of national security, terrorism, and

death penalty should be considered as progress in the enjoyment of the right to life); Autri Saha

& Pritika Rai Advani, The Death Penalty: A new Perspective, 2 NUJS L. REV.669 (2009). 21 Autri Saha & Pritika Rai Advani, The Death Penalty: A new Perspective, 2 NUJS L. REV.669

(2009). 22 Convention on the Rights of the Child, U.N. GAOR, 44th Sess., UN Doc. A/44/49

(November 20, 1989), Article 37; Autri Saha & Pritika Rai Advani, The Death Penalty: A new

Perspective, 2 NUJS L. REV.669 (2009). 23 Amnesty International, International Standards on the Death Penalty, AI Index: ACT 50/

001/2006, January 2006; Autri Saha & Pritika Rai Advani, The Death Penalty: A new

Perspective, 2 NUJS L. REV.669 (2009).

heinous crimes against women which require this retention.24 The Court has

tried to avoid egregious applications of the death penalty by ensuring procedural

safeguards.

In 1973 in the case of Jagmohan Singh v. State of UP25 (hereinafter

Jagmohan) it was contended that death sentence infringes all freedoms

guaranteed under Article 19(1)(a) to (g) and that the unguided judicial discretion

was in violation of Article 14 of the Constitution; also since no procedure was

prescribed in the Code of Criminal Procedure (hereinafter CrPC) for

determining whether life imprisonment or the death penalty are to be awarded,

it was in violation of Article 21. All arguments were rejected and the Court

upheld the constitutional validity of death-sentence. The constitutionality of the

death penalty continued to be challenged in later cases.

In Ediga Anamma v. State of Andhra Pradesh26 the Court declared that the

crime committed is not the sole criterion of determining the punishment but

various other factors like gender, age, socio-economic background and psychic

compulsions should also be taken into account while deciding on death penalty.

In Rajendra Prasad v. State of U.P.,27 the Court held that special reasons for

imposing death penalty must relate not to the crime but to the criminal. Death

was to be awarded only when security of state, public order compelled the

course.28 It was also held that life imprisonment would be a better alternative

than death penalty since it has the potential to reform the criminal. Thirdly, India

ratified the ICCPR, thereby committing itself to progressive abolition of death

penalty. The constitutional validity of death penalty under 302 of the Indian

24 LAW COMMISSION OF INDIA, 35th Report, 1967, Indian Penal Code, 69 (Having regard to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity

in the level of morality and education in the country, to the vastness of its area, to the diversity

of its population and to the paramount need for maintaining law and order in the country, at the

present juncture, India cannot risk the experiment of abolition of capital punishment); See, PUCL v. Union of India, (2004) 9 SCC 580. 25 AIR 1973 SC 947. 26 AIR 1974 SC 799. 27 (1979) 3 SCC 746. 28 Id., 79, (To my mind, it is ultimately a question of respect for life and human approach to those who commit grievous hurts to others. Death sentence is no remedy for such crimes. A

more humane and constructive remedy is to remove the culprit concerned from the normal

milieu and treat him as a mental case. I am sure a large proportion of the murderers could be

weaned away from their path and their mental condition sufficiently improved to become useful

citizens) (per V.R. Krishna Iyer, J.).

Penal Code (hereinafter IPC) and 354 (3) of Cr.P.C. was upheld. The Court

held, A real and abiding concern for the dignity of human life postulates

resistance to taking a life through laws instrumentality. That ought not to be

done save in the rarest of rare cases when the alternative option is

unquestionably foreclosed.

In Deena v. Union of India,29 the Court held that hanging is not a cruel

method of execution and not in violation of Article 21 of the Constitution. In

Attorney General of India v. Lachma Devi30 Supreme Court expressly

prohibiting public hanging. In Allauddin Mian v. State of Bihar,31 the Court

held that as a general rule, the trial courts after recording the conviction

should decide sentencing at a future date and call upon both the prosecution

as well as the defence to place the relevant material. A lesser sentence

should be preferred.

The constitutionality of the death penalty was again challenged in the case of

Bachan Singh v. State of Punjab32 because the CrPC was re-enacted in 1973

and 354(3) was added, thereby making the death sentence the exception and

not the rule as far as punishment for murder is concerned. The Maneka Gandhi

judgement was another reason. In the case of Bachan Singh v. State of Punjab

and Machhi Singh v. State of Punjab,33 the Court held that death sentence

was to be the exception and not the rule. The court also laid down that the

sentencing court had to consider:

Was there something uncommon about the crime, which calls for a death

sentence?

Are the circumstances of the crime such that there is no alternative, but to

impose a death-sentence?

Whether the crime was indeed such as to be considered rarest of the rare?

29 AIR 1983 SC 1155. 30 AIR 1986 SC 467. 31 AIR 1989 SC 1456. 32 AIR 1980 SC 898. 33 AIR 1983 SC 957.

In both the cases of Jagmohans case and Bachan Singhs case, the Court gave

way to the legislative wisdom by not striking down the death penalty. In some

way it acknowledged the reformation and rehabilitation of the delinquent as one

of the goals of punishment. Later, in Swamy Shraddananda v. State of

Karnataka34 it was said that if the Court finds that if the case falls short of the

rarest of rare category and is reluctant to award the death penalty and life

sentence usually of 14 years is grossly inadequate, then the Court can award

life sentence beyond 14 years. These were significant achievements of the

abolitionists.35

In Panchhi v. State of Uttar Pradesh36 the Supreme Court declared, It may

be that the (brutal) manner in which a murder was perpetrated not the

sole criterion for judging whether the case is one of the rarest of rare cases

as indicated in Bachan Singhs case. In Anshad v. State of Karnataka37 the

Supreme Court stated that the courts are expected to exhibit sensitivity in the

matter while awarding sentences. All mitigating and aggravating factors

must be accounted.

In Mithu v. State of Punjab38 the Court declared 303 of the IPC as

unconstitutional. 303 was struck down as arbitrary for assuming that life

convicts are more dangerous than other humans and hence should be treated

differently violating rights under Article 14 and Article 21 of the Constitution

and took away the punitive discretion of the court.

The case of Santosh Bariyar v. State of Maharashtra39 was a murder case in

which four accused were convicted by the trial court. The petitioner was

sentenced to death. The Court refused to uphold death penalty, and laid down

the rehabilitation doctrine. Thus, for award of death penalty, it must be

proved by leading evidence that there is no possibility of rehabilitation of

the accused and that life imprisonment will serve no purpose. The Court

34 AIR 2008 SC 3040. 35 Dr. S. Muralidhar, Hang Them, Hang Them Not: India Travails with the Death Penalty, 40

J.I.L.I. 143(1998). 36 AIR 1998 SC 2726. 37 (1994) 4 SCC 381. 38 AIR 1983 SC 473. 39 (2009) 6 SCC 498.

observed that the accused were not professional killers, they did not have any

criminal history and committed the crime solely out of the motive of collecting

money.

Further, the delay doctrine has been declared in Shatrughan Sinha v. Union

of India40 by which a prolonged, excess delay by the President to decide

mercy petition is a firm ground for commutation of sentence to life

imprisonment on writ petition made by the convict.

Recently released 262nd Report of the Law Commission on the Death Penalty

has recommended that the death penalty should be abolished for all crimes

except terrorist offences and waging war against country. It has recommended

that the options are many - from moratorium to a full-fledged abolition bill.

The Law Commission does not wish to commit to a particular approach in

abolition. All it says is that such a method for abolition should be compatible

with the fundamental value of achieving swift and irreversible, absolute

abolition.41 The recommendations support death for those convicted in terror

cases and for waging war against the country because valid concern is often

raised that abolition of capital punishment for terror-related offences and

waging war will adversely affect national security.42

Conclusion

Indias law recognises an overall consensus that the death penalty is to be

applied restrictively. However, there has not been any indication toward a

complete abolition of capital punishment. It is also argued that in the current

circumstances facing the criminal justice system there is a strong case for

retaining the status-quo on the capital punishment. These circumstances include

inter alia the rise in incidents of crimes against women and continuing

terrorism. The existence of a backlog ridden judiciary implies that the fear

induced by the provision of death penalty is necessary to elicit deterrence.

Complete abolition of the capital punishment is not an option.

40 WRIT PETITION (CRIMINAL) NO. 55 OF 2013. (Supreme Court of India, Judgement dated

January 21, 2014). 41 LAW COMMISSION OF INDIA, 262nd Report, 2015, The Death Penalty, 217. 42 LAW COMMISSION OF INDIA, 262nd Report, 2015, The Death Penalty, 211-217.

Nevertheless adequate procedural safeguards in the form of rarest-of-the-

rare, delay, and rehabilitation doctrines of capital punishment evolved by

the Supreme Court. This means that death penalty will not only be applied

sparingly but also with great care and caution keeping in mind reform and

rehabilitation and the past and future circumstances of the criminal.