IS DEATH PENALTY AN EFFECTIVE CRIME

DETERRENT?
A DISSERTATION SUBMITTED TO

BHARATA MATA SCHOOL OF LEGAL STUDIES ALUVA,

ERNAKULAM, AFFILIATED TO MAHATMA GANDHI
UNIVERSITY KOTTAYAM

APPROVED BY BAR COUNCIL OF INDIA (BCI)

IN PARTIAL FULFILMENT OF REQUIREMENTS

FOR THE AWARD OF
FIVE YEAR INTERGRATED DOUBLE DEGREE
BA.LLB (HONOURS) COURSE

SUBMITTED BY :
FATHIMA BEEVI KI

B.A. LL.B (HONOURS)

REGISTER NUMBER: 193241310137

BHARATA MATA SCHOOL OF LEGAL STUDIES ALUVA, ERNAKULAM

GUIDED BY

MRS. AKSHARA B.

ASSISTANT PROFESSOR

BHARATA MATA SCHOOL OF LEGAL STUDIES, ALUVA, ERNAKULAM

BHARATA MATA SCHOOL OF LEGAL STUDIES, CHOONDY, ALUVA, ERNAKULAM,

AFFILIATED TO MAHATMA GANDHI UNIVERSITY, KOTTAYAM
2019-2024
 IS DEATH PENALTY AN EFFECTIVE CRIME
DETERRENT?
A DISSERTATION SUBMITTED TO

BHARATA MATA SCHOOL OF LEGAL STUDIES ALUVA,

ERNAKULAM, AFFILIATED TO MAHATMA GANDHI
UNIVERSITY KOTTAYAM

APPROVED BY BAR COUNCIL OF INDIA (BCI)

IN PARTIAL FULFILMENT OF REQUIREMENTS

FOR THE AWARD OF
FIVE YEAR INTERGRATED DOUBLE DEGREE
BA.LLB (HONOURS) COURSE

SUBMITTED BY :
FATHIMA BEEVI K.I

B.A. LL.B (HONOURS)

REGISTER NUMBER: 193241310137

BHARATA MATA SCHOOL OF LEGAL STUDIES, ALUVA,ERNAKULAM

GUIDED BY

MRS AKSHARA B.

ASSISTANT PROFESSOR

BHARATA MATA SCHOOL OF LEGAL STUDIES, ALUVA, ERNAKULAM

BHARATA MATA SCHOOL OF LEGAL STUDIES, CHOONDY, ALUVA, ERNAKULAM

AFFILIATED TO MAHATMA GANDHI UNIVERSITY KOTTAYAM
2019-2024
 DECLARATION
I, FATHIMA BEEVI K.I, a student of B.A. L.LB(HONS.) 2019-2024 batch of
Bharata Mata School of Legal Studies Choondy, Aluva, Ernakulam, affiliated to
Mahatma Gandhi University with Register Number: 193241310137 do hereby
declare that this dissertation paper is an original work of mine and is result of my own
intellectual efforts. I have quoted titles of all original sources i.e. original
documents and name of the authors whose work has helped me in writing this
research paper have been placed at appropriate places. I have not infringed copy
rights of any other author.

Date : S/d

Place: FATHIMA BEEVI KI

i
 CERTIFICATE

This is to certify that the dissertation entitled ‘IS DEATH PENALTY AN

EFFECTIVE CRIME DETERRENT?’ which is being submitted by

Ms. FATHIMA BEEVI K.I (Register Number: 193241310137) for the award of the
degree of Bachelor of Laws is an independent and original research work carried out
by her. The dissertation is worthy of consideration for the award of Five Year
Integrated Double Degree B.A. LL.B (HONORS) Course of Bharata Mata School of
Legal Studies Choondy, Aluva, Ernakulam, affiliated to Mahatma Gandhi University,
Kottayam.

Ms. FATHIMA BEEVI K.I has worked under my guidance and supervision to fulfill
all requirements for the submission of this dissertation. The conduct of research
scholar remained excellent during the period of research.

S/d
Date: MRS. AKSHARA B.
Place: ASST. PROFESSOR

ii
 ACKNOWLEDGMENT
I would like to express my sincere gratitude to Mr. P.S. Antony, my faculty in charge,
for his guidance and support throughout the development of my dissertation.
Additionally, I am thankful to my guide, Assistant Professor Akshara B., for her
invaluable assistance and mentorship during this academic journey.

I acknowledge with pleasure the unparalleled infrastructural Support that I have

received from Bharata Mata School Of Legal Studies, Choondy, affiliated to
Mahatma Gandhi University, Kottayam. In fact this work is the outcome of
outstanding support that I have received from the faculties of the college. I find this
opportunity to thank the library staff of the Bharata Mata School Of Legal Studies.

This research work bears testimony to the active encouragement and guidance of a
host of Friends and well- wishers. It would never Have been possible to complete this
study without an untiring support from my family. I am greatly indebted to the
various writers, jurists and all others from whose writings and work I have taken help
to complete this dissertation.

Date: S/d
Place: FATHIMA BEEVI KI

iii
 PREFACE
The question of whether the death penalty acts as a deterrent to crime has ignited
passionate discussions, sparking debates that extend beyond the realms of criminal
justice and into the very fabric of ethical and societal values. This preface seeks to
provide a comprehensive overview of the multifaceted nature of this controversial
topic, delving into the historical, legal, and psychological dimensions that shape our
understanding of the death penalty's potential deterrent effect.

To comprehend the dynamics at play, one must first trace the historical lineage of
capital punishment and its evolution across cultures and civilizations. From ancient
times to modern societies, the imposition of death as a punitive measure has
undergone transformation, reflecting shifts in moral attitudes, legal frameworks, and
societal norms. Examining this historical trajectory lays the foundation for a nuanced
examination of how the perceived deterrent effect has evolved over time.

Legal considerations loom large in any exploration of the death penalty's impact on
deterrence. Legal systems worldwide grapple with defining the boundaries of justice,
weighing the severity of punishment against its purported preventive role. As courts
and legislatures navigate this delicate balance, questions about the efficacy and
morality of the death penalty persist. A closer examination of landmark legal cases,
statutes, and judicial opinions offers insight into the ongoing struggle to reconcile the
desire for justice with concerns about the ultimate consequences of capital
punishment.

Psychological dimensions add an intricate layer to the discourse, with studies

attempting to decipher the intricate interplay between fear of death and criminal
behavior. Scholars and researchers have delved into the psycho social factors that
influence an individual's decision-making process and whether the prospect of facing
the ultimate punishment serves as a deterrent. Yet, the complexity of human behavior
defies easy categorization, leaving room for ongoing inquiry into the psychological

iv
nuances that shape the debate.

Beyond the academic and legal arenas, societal attitudes toward the death penalty also
play a pivotal role in shaping the discourse on deterrence. Public opinion, often
swayed by media narratives and high-profile cases, contributes to the polarized nature
of debates surrounding capital punishment. Exploring the diverse perspectives within
society sheds light on the challenges inherent in reaching a consensus on the death
penalty's effectiveness as a deterrent and the broader implications for communal
values and shared moral compass.

In navigating these dimensions, it becomes evident that the deterrent effect of the
death penalty is a complex and multifaceted issue that defies easy resolution. As we
embark on an exploration of the evidence, arguments, and counterarguments
surrounding this topic, it is crucial to approach the discussion with an awareness of
the ethical, legal, and societal implications inherent in the application of capital
punishment. This preface serves as an invitation to engage in a thoughtful and critical
examination of the deterrent effect of the death penalty, acknowledging the intricate
tapestry of factors that contribute to our understanding of this enduring and divisive
subject.

v
 LIST OF ABBREVIATIONS

AIR All India Report

Etc. Et Cetera
LWOP Life With Out Parole
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Sec Section
UN United Nations.
UOI. Union of India
v. Versus
& And

vi
 TABLE OF CASES

S.No NAME OF THE CASE PAGE

NO.
A
1. Anwar Ahmad v. State of Uttar Pradesh and Anr; 1976 AIR 19
680

2. Ashim Dutta Alias Nilu v. State of West Bengal;1998 (2) 20

CHN 261

B
3. Bachan Singh v. State of Punjab;(1982) 3 SCC 24 1,33,34,45

4. Barendera Kumar Ghosh v. Emperor. (1925) 27 BOM LR 38

148

D
5. Dr. Jacob George v. State of Kerala; 1994 SCC (3) 430 5
G
6. Gopal Vinayak Godse v. State of Maharashtra; AIR 1961 SC 85
600

J
7. Jagmohan Singh v. State of Uttar Pradesh;1973 SCR (2) 5 34, 45,
61, 64
K
8. Kartar Singh v. State of Punjab; 1994 SCC (3) 569 58

M
9. Malleshi v. State of Karnataka; AIR 2004 SC 4865 41

vii
10. Maru Ram v. Union of India; (1981) 1 SCC 107 85

11. Mir Hasan Khan & Others v. State; AIR 1951 Pat 60 85

12. Mithu v. State of Punjab; 1983 AIR 473 39, 45

13. Mukesh & Anr v. State For NCT Of Delhi & Ors; (2017) 6 17,19
SCC 1

N
14. Netra Pal v. State (National Capital Territory of Delhi); 2001 42
CriLJ 1669

R
15. Rajendra Prasad v. State of Uttar Pradesh; 1978 AIR 916 57

S
16. Satyam Dubey v. Union of India; 27 October 2020 17

17. Shashi Nayar v. Union of India and Ors; 1992 (1) SCC 96 57

18. Shatrughna Baban Meshram v. State Of Maharashtra; (2021) 71

1 SCC 596

19. Shatrughan Chauhan v. Union of India; (2014) 3 SCC 1 87

20. State of Himachal Pradesh v. Sanjay Kumar; AIR 2017 SC 43

835
21. State of Karnataka v. Sharanappa Basanagouda Aregoudar; 56
2002 AIR SCW 1413
22. State of Kerala v Asafak alam;1385 of 2023 4
23. State of Madhya Pradesh v. Munna Choubey & Anr.; 2005 56
(2) SCC 710

24. State of Madhya Pradesh v. Ram Krishna Balothia; 1995 AIR 57

1198

viii
25. State of Maharashtra v. Chandraprakash Kewalchand Jain; 43, 58
AIR 1990 SC 658

26. State of MP v. Anoop Singh; AIR 2014 SC 770 42

27. State of M.P v. Bala@ Balram, 2005 AIR SCW 4952 55

28. State v. Makwanyane; [1995] ZACC 3 73

29. Surjit Singh v. State of Punjab; 1996 AIR 1388 16

30. Susan Kigula and others v. Attorney General; Constitutional 75

Petition No. 6 of 2003

T
31. Tara Singh V. Territory Of Punjab - AIR 1951 CriLJ 449 38

ix
 TABLE OF CONTENTS

Declaration.............................................................................................................….…i
Certificate..................................................................................................................…ii
Acknowledgment…………..…………...................................................………….…iii
Preface…………..…....................................................…………………………….iv-v
List of Abbreviation...............................................................................................…...vi
Table of cases……………..............................…..............................................…vii-viii

Chapter 1...............................................................................................................…...1
Introduction.............................................................................................................…..1
1.1.Background..............................................................................................…..1
1.2.Significance of study..................................................................................1-2
1.3.Literature review......................................……………………………………........….2-3
1.4.Objectives of study....................................................................................….3
1.5.Research questions.....................................................................................…3
1.6.Hypothesis...............................................................................................…..4
1.7. Scope of the Study....................................................................................4-5
1.8.Proposed methodology...............................................................................5-6

Chapter 2......................................................................................................................7
Theories of Punishment..............................................................................................7-8
2.1 Deterrent Theory.....................................................................................8-12
2.2 Reformative Theory..............................................................................12-14
2.3 Preventive Theory ................................................................................14-16
2.4 Retributive Theory................................................................................16-20
2.5 Expiatory Theory..................................................................................20-21

x
Chapter 3....................................................................................................................22

Capital Punishment : Historical Analysis. .............................................................22-29

3.1 History of Capital Punishment in India................................................29-30

3.2 . Types of Punishments.........................................…............................30-36
3.2.1. Capital Punishment………...………………………….31
3.2.2. Corporeal Punishment…………………………………31
3.2.3. Social Punishment……...………………………..…….31
3.2.4. Financial Punishment………………………………….31

Chapter 4....................................................................................................................37

Legal Framework of death penalty........................................................................37-47

Chapter 5....................................................................................................................48

Exploring deterrent theory: strategies for discouraging Unwanted behaviour.......48-52

5.1 Types of deterrence...................................................................................52
5.2 Deterrent Theory In context of Jurisprudence......................................53-54
5.3 Components of deterrent theory...........................................................54-55
5.4 Capital Punishment and deterrent theory in India................................56-59
5.5 Drawbacks of deterrent theory..............................................................59-61
5.6 The rarest of rare doctrine....................................................................61-64
5.7 Analysis of Constitutional Validity of Rarest of
the Rare Doctrine.......................................................................................64-65
5.8 Rarest of Rare Doctrine in India...........................................................65-66

Chapter 6....................................................................................................................67

Alternatives for death penalty......................................................................................67

6.1 The declining use of death penalty.............................................................67

xi
 6.2 When the states select alternative sanctions to the death penalty.........67-68
6.3 What should a state consider when selecting alternative sanctions to the
death penalty........................................……………………………......68
6.4 Undermining fundamental human rights standards and norms............68-69
6.5 Alternatives for capital punishment......................................................69-76

6.5.1. Life Imprisonment…………………………………….70

6.5.2. Long Term Imprisonment……………………….…70-71
6.5.3. Rigorous Imprisonment……………………………71-72
6.5.4. Double Life Imprisonment…………...……………72-73
6.5.5. An Indeterminate Term of Imprisonment………….73-74
6.5.6. Release with Restrictions…………………………….74
6.5.7. Preventive Detention……………………………….…74
6.5.8. Mandatory and Discretionary Life Sentences……...…75
6.5.9. De Facto Life Sentence……………………….……75-76

Chapter 7....................................................................................................................77

International perspective on death penalty.............................................................77-80

7.1 current extent of death penalty around the Globe.................................81-84

Chapter 8....................................................................................................................85

Conclusion...................................................................................................................85
8.1 Concluding Perspectives.......................................................................85-88
8.2 Suggestions...........................................................................................88-89

Bibliography........................................................................................................xii-xiii

xii
 CHAPTER 1
INTRODUCTION

1.1. BACKGROUND

Death penalty in our country has become an exception because of the concept of rare
of the rarest case phenomena. The principle of the death penalty being practically
applied in the rarest of rare case laid down in the pointer judgment of Bachan Singh v
State of Punjab1 has been interpreted in a different way in a variety of cases. This
paper proposes to scrutinize the purpose of the test of rarest of rare in following cases
and tries to sketch down the modern trend of the death penalty, its usefulness, and its
sound effects on society. Even after ratify the concept of rare of the rarest case death
penalty is not that deter then the solitary confinement or public censure because these
punishment directly harm through mental or physiological way. And we should have
to make fast track court victim can get immediate punishment and in this justice is not
denied also.

1.2. SIGNIFICANCE OF STUDY

Deterrence is probably the most commonly expressed rationale for the death penalty.
The essence of the theory is that the threat of being executed in the future will be
sufficient to cause a significant number of people to refrain from committing a
heinous crime they had otherwise planned. Deterrence is not principally concerned
with the prevention of further killing by an already convicted death-penalty defendant.

1
9 May, 1980, (1982) 3 SCC 24, 1983 1 SCR 145 a

1
That falls under the topic of incapacitation. Deterrence should not be considered in a
vacuum. The critical question is not whether potential criminals will be dissuaded
from killing because they would face the death penalty rather than no punishment at
all. Other punishments such as life without parole might provide equal deterrence at
far less costs and without the attendant risk of executing an innocent person.

1.3. LITERATURE REVIEW

Measuring sentiment on the death penalty is not as easy a task as it might at first
appear. When opinion polls ask respondents whether they support the death penalty,
often no alternative punishments are given, and respondents are left to themselves to
ponder what might happen if a particular inmate were not executed. Often
respondents erroneously believe that absent execution, offenders will be released to
the community after serving a short prison sentence.2 Even the most ardent death
penalty abolitionists might support capital punishment if the alternative was to have
dangerous murderers quickly released from prison. Deterrence theory rests upon the
premise that individuals weigh the costs and rewards associated with alternative
actions, and choose behaviors that yield the greatest gain at the least cost. Thus, crime
occurs when illegal actions are perceived either as more profitable (rewarding) or less
costly (painful) than conventional alternatives. In this context, the purpose of criminal
sanctions is to prevent crime. Crime prevention is achieved through providing a
system of sanctions that (1) convinces would-be criminals that crime does not pay
(general deterrence) and (2) prevents recidivism by teaching a direct lesson to those
who were not deterred (special deterrence). To achieve maximum deterrence,
sanctions must be severe enough to outweigh the benefits derived from crime,
administered with certainty, administered promptly, and made known to would-be
offenders. However, the hypothesized negative effects of these dimensions of
punishment on crime are contingent rather than additive. For example, regardless of

2
See James Alan Fox et al., Death Penalty Opinion in the Post-Furman Years, 18 N.Y.U.
Rev. L. & Soc. CHANGE 499, 513-14 (1990-91); see also William J. Bowers, Capital Punishment
and Contemporary Values: People's Misgivings and the Court's Misperceptions, 27 L. & Soc'Y Rev.

2
their degree of severity, sanctions cannot deter if their level of certainty is zero or near
zero. Deterrence theorists view murder as rational behavior, and assume that in
calculating the gains and losses from killing, potential offenders are aware of the
death penalty and regard it as a more severe sanction than imprisonment. Because the
threat of one's own death presumably outweighs the rewards gained from killing
another, murder is discouraged. In addition, some noted proponents contend that
capital punishment provides an important educative function in society by validating
the sanctity of human life.3

1.4. OBJECTIVES OF STUDY

1. To examine the impact of the death penalty on potential offenders.

2. To identify and analyse the socio-economic factors that may interact with the
deterrent effect of death penalty.
3. To critically analyse the deterrence theory that forms the basis for the claim that
death penalty serves as a crime deterrent.
4. To trace the historical evolution of death penalty as a deterrent.
5. To review empirical studies and case studies that have examined the relationship
between death penalty and crime rates.

1.5. RESEARCH QUESTIONS

1. Whether Capital Punishment in India and its deterrent effect or not ?

2. Whether Death Penalty decrease the number of crimes?
3. Whether the existence or application of Death Penalty has a statistically
significant impact on crime rates in jurisdictions that have implemented it?

3
(Berns, 1979; van den Haag, 1975; van den Haag & Conrad, 1983)

3
1.6. HYPOTHESIS

Following hypothesis was formulated with which the work proceeded:

1. THAT THE DEATH PENALTY DOES NOT EFFECTIVELY DETER

POTENTIAL OFFENDERS
2. THAT MANY COUNTRIES UNDER THE WORLD HAVE ABOLISHED THE
DEATH PENALTY, AND PROPONENTS ARGUE THAT THESE COUNTRIES
HAVE NOT SEEN AN INCREASE IN CRIME RATES AS A RESULT.
3. THAT RESOURCES AND FUNDING SPENT ON IMPLEMENTING AND
MAINTAINING THE DEATH PENALTY COULD BE BETTER UTILIZED IN
CRIME PREVENTION MEASURES, SUCH AS IMPROVING LAW
ENFORCEMENT CAPABILITIES , SOCIAL PROGRAMS , AND
COMMUNITY OUTREACH INITIATIVES

1.7. SCOPE OF STUDY

The scope of the study is to try and find the validity of capital punishment and view
of public on capital punishment in India. India's view on the issue of capital
punishment is still very Topsy-turvy. The debate isn't only regarding the legality of
the punishment however also include social and moral aspects. If the question of law
is kept aside, two views the issue given on the difficulty. The primary view is the
security of society and the public sentiments. The counter view is that it promotes the
principle of "eye for an eye" that can't be accepted in a civilized society. On one hand,
by retaining the death sentence, we might condemn someone to death, who turns out
to be innocent. On the other hand, by giving a second chance to someone, we would
be giving them a bullet to shoot us, just because they missed the primary time. It is

4
still not clear whether capital punishment is valid and necessary. This study tries to
find the answers for the same. The study also aims at presenting the vivid description
of deterrence of death penalty systems of other countries as well

1.8. PROPOSED METHODOLOGY

Methodology applied to conduct this research is content analysis and descriptive

methods. The present study is a doctrinal, non- empirical, descriptive and analytical
approach which includes perusal of mostly published work like researching through
archives of public libraries, published academic journals.

The proposed research will use the following research materials:

 Text books, research papers and reports published by any university, public library
or a government department or ministry will be used as primary sources of
research material.
 The judgments of the different law courts of India and foreign nations, statues and
codes of different countries including India would constitute the primary source of
the research material.
 Research articles and research papers uploaded online by individuals, online blogs
and debates, research work presented in national and international seminars and
debates but not published, political administrative and private papers will be used
as secondary research materials.
 The different manuals, journals, commentaries and digests, observations of the
court judgments, parliamentary debates will also be used as secondary sources for
the purpose of this research work.

In conclusion this dissertation provides a thorough analysis from chapter 2 is dealing

with theories of punishment and chapter 3 deals with capital punishment and its
historical analysis this chapter dealing with the detailed history of capital punishment
and its relevance in India. Chapter 4 deals with legal framework of death penalty in

5
India and it also deals with different provisions related to different crimes. Chapter 5
deals with detailed unveiling of deterrent theory and its various types it also
discussing the relevance of deterrent theory and its impact in India. Chapter 6 deals
with various alternatives to capital punishment and how to implement it effectively.
And chapter 7 deals with international perspectives of death penalty and how various
international organizations and laws looking forward the capital punishment.

6
 CHAPTER 2
THEORIES OF PUNISHMENT

Capital Punishment” or “Death Penalty” is the highest level of punishment awarded

in any society or democracy to maintain law and order. But killing another human
being in the name of justice is no better than murdering someone. We should focus on
eliminating the crime not the criminal. China is the only country in the world where
the practice of death penalty is still at its peak with over 1000 executions every year,
whereas in India the doctrine of “Rarest of the Rare” is followed and often the death
sentence gets commuted to life imprisonment. But still India has executed a total of 4
criminals from the period of 2002 to 2015. Both the countries have various
similarities in the procedure and law of capital punishment, but in China once the
death penalty is awarded it cannot be revoked. This is the reason why United Nation
(UN) opposed the concept of death penalty and stated that “Life is precious, and
death is irrevocable”. Further UN also said that killing another human being in the
name of justice also kills the fact that we are human. We are no one to decide who
gets to live and who gets to die. Therefore instead of hanging someone to death we
should adapt a different approach i.e. the reformative approach so that one could
improve himself and can live peacefully thereafter.

‘Punishment’ is the coercion used to enforce the ‘law of land’ which acts as one of the
pillars of modern civilization. It is the duty of the State to punish the criminals in
order to maintain law and order in the society. In the past, there wasn’t any specific
law or order for such crimes and the quantum and extent of punishment was largely
dependent on the King. With time modern theories of punishment were developed
and voluntary submission of our rights and power to maintain law and order was
given to state. The most brutal or the highest punishment awarded in present time is
‘Capital Punishment’. Capital punishment is the punishment which involves legal

7
killing of a person who has committed a certain crime prohibited by the law. 4

Capital punishment is also known as ‘Death Penalty’ which is sanctioned by the

government in which a person is put to death by the state as punishment for the crime
he committed . The sentence condemning a convicted defendant to death is known as
‘Death Sentence’ and the act of carrying out the death sentence is known as
‘Execution’. Whenever, the court awards a punishment there is a theory or
proposition on the basis of which it passes its Judgment. These theories are known as
‘Theories of Punishment’ and are generally of five types:

2.1. DETERRENT THEORY:

In Deterrent theory of punishment, the term “DETER” means to abstain from doing
any wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals
from attempting any crime or repeating the same crime in future. So, it states that
deterring crime by creating a fear is the objective; to set or establish an example for
the individuals or the whole society by punishing the criminal. That simply means,
according to this theory if someone commits any crime and he/she is punished by a
severe punishment, then, it may result maybe that the people of the society will be or
may be aware of the severe punishments for certain kinds of crimes and because of
this fear in the minds of the people of the society, the people may stop from
committing any kind of crime or wrongful act. Here I used the phrase “may
stop” instead of “will stop”. That means, there is a probability of committing any
crime or repeating the same crime.

The deterrent theory of punishment is utilitarian in nature. For a better understanding

we can say like, ‘The man is punished not only because he has done a wrongful act,
but also in order to ensure the crime may not be committed.’ It is best expressed in the
word of Burnett, J who said to a prisoner:
4
Roger Hood, Capital Punishment, Encyclopedia
Britannica, https://www.britannica.com/topic/capitalpunishment

8
“Thou art to be hanged not for having stolen a horse, but in order that other horses
may not be stolen”.

Through making the potential criminals realize that it doesn’t pay to commit a crime,
the deterrent theory hopes to control the crime rate in the society.

Jurisprudential School of Thought:

The deterrent theory can be related to the sociological school of Jurisprudence. The
sociological school creates a relationship between the society and law. It indicates law
to be a social phenomenon, with a direct and/or indirect connection to society. One of
the main aim of the deterrence is to establish an example for the individuals in the
society by creating a fear of punishment.

The concept of deterrent theory can be simplifying to the research of philosophers

such like Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), Jeremy
Bentham (1748-1832). These social contract thinkers provided the foundation of
modern deterrence in criminology.

In the Hobbesian view, people generally pursue their self-interests, such as material
gain, personal safety and social reputation and make enemies, not caring if they harm
others in the process. Since people are determined to achieve their self-interests, the
result is often conflict and resistance without a fitting Government to maintain safety.
To avoid, people agree to give up their egocentricity as long as everyone does the
same thing, approximately. This is termed as “Social Contract”. According to this
social contract, he stated that individuals are punished for violating the social contract
and deterrence is the reason for it to maintain the agreement between the State and the
people, in the form of a social contract workable.

9
According to Cesare Beccaria, while discussing about punishments, the proportion of
the crime and punishments should be equal for it to serve as a deterrence or have a
deterring value.

According to J. Bentham, who is known as the founder of this theory, a hedonistic

conception of man and that man as such would be deterred from crime if punishment
were applied swiftly, certainly, and severely. But being aware that punishment is an
evil, he says, if the evil of punishment exceeds the evil of the offence, the punishment
will be unprofitable; he would have purchased exemption from one evil at the
expense of another.

From the deterrent theories of Thomas Hobbes, Cesare Beccaria and J. Bentham, we
came to know that the theory of deterrence consists of 3 major components. They are
as follows:

 Severity: It indicates the degree of punishment. To prevent crime, criminal law

must emphasize penalties to encourage citizen to obey the law. Excessively severe
punishments are unjust. If the punishment is too severe it may stop individuals
from committing any crime. And if the punishment is not severe enough, it will
not deter criminals from committing a crime.

 Certainty: It means making sure that punishments must happen whenever a

criminal act is committed. Philosopher Beccaria believed that if individuals know
that their undesirable acts will be punished, then they will refrain from offending
in the future.

 Celerity: The punishment for any crime must be swift in order to deter crime. The
faster the punishment is awarded and imposed, it has more effect to deter crime.

10
Therefore, deterrence theorists believed that if punishment is severe, certain and swift,
then a rational person will measure the gain or loss before committing any crime and
as a result the person will be deterred or stopped from violating the law, if the loss is
greater than the gain.

According to Austin’s theory, “Law is the command of the Sovereign”. In his

imperative theory, he clearly declared three important things, which are as follows:
 Sovereign
 Command.
 Sanction.

Austin’s question is that ‘Why do people follow the rule?’. He believes that people
will follow the law because people have a fear of punishments. On the basis of his
beliefs, we can see a small example over here: When people are biking, they wear a
helmet as per biking rules. Now, we can assume that some people wear helmets
genuinely to save themselves from road accidents but on the other hand, some people
wear helmets because of escaping fines or in fear of cancellation of their biking
licence. So, in that case, they know that if they bike rashly or disobey the biking rules
they will be punished by giving huge a amount of fine or their biking license will be
canceled. So here we can say that the purpose of the deterrent theory is successful and
applied also.

Now, if we go back a little earlier in time, in our Hindu Scriptures we also see that
there were several punishments like public hanging, not only that but also people
were immersed in hot oil or water. Most penal systems made use of deterrent theory
as the basis of sentencing mechanism till early 19th century.

 In England, punishments were more severe and barbaric in nature to

restrict same crime in the future. At the time of ‘Queen Elizabeth I’,
deterrent theory of punishment was applied for restricting future crimes,
even for too little crimes like ‘pickpocketing’.

11
  In India also, inhuman punishments are granted.

According to deterrent theory, the main objective is ‘to deter crime, by creating a fear
or establishing an example to the society.’ Now, death penalty is a severe punishment.
In the Nirbhaya case, the Court gave death sentence to the four convicts for
committing gang rape. We can say that it is a great example for future offenders who
will think about committing a crime like rape in future. So, according to this theory,
after Nirbhaya judgment crimes like rape should not happen. But they are happening
till now. Day-by-day, rape cases are increasing in our society.

In Nirbhaya gang rape judgement, it’s being suggested that justice has finally been
served to “India’s Daughter” and though the decision came after a staggering seven
years, it will help to secure the safety of women and prevent rape cases in the future.
But it seems to further, as starting of the year 2020 has seen a slew of rape cases
continue unabated. As an example, we can see for a recent gang rape case which was
happened at Hathras, Balrampur, on 1st October 2020. So, simply we can see that
there is no improvement through severe punishments also. “Death penalty does not
act as a deter to rape cases”- This is the actual message we have understood. So that’s
why we can say that in today’s generation there is no major implication of ‘Deterrent
Theory of Punishment’.

2.2. REFORMATIVE THEORY:

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the object
of discipline ought to be the change of the crook, through the strategy for
individualization. It depends on the humanistic rule that regardless of whether a
wrongdoer perpetrates a wrongdoing, he doesn’t stop to be a person. In this way, an
exertion ought to be made to change him/her during the time of his/her detainment.
For example, he may have executed bad behavior under conditions which may never

12
happen again. Hence an effort should be made to transform him during the hour of his
confinement. The object of order should be to accomplish the moral difference in the
liable party. He ought to be told and perform some craftsmanship or industry during
the hour of his confinement with the objective that he may have the alternative to start
his life again after his conveyance from jail.

HISTORY OF THE THEORY:

The human development has consistently been administered under the standard of an
incomparable force. The job and type of pre-eminent force has changed throughout a
long term. Beginning from the primitive type of Government to the present just,
republican and different types of Governments, the obligation of the incomparable
authority has changed a lot. The idea of discipline has additionally changed like the
idea of State duty throughout the long term. The idea of discipline relied upon the
premise of religion and the organization of the Kings. During old occasions, the idea
of discipline was retributive premise, where the hoodlums were given uncouth type of
discipline. Afterward, over the entry of ages, the significance of common liberties
expanded which in essence cleared path for the replacement of Retributive hypothesis
by Reformatory and Rehabilitative hypotheses. Under the Reformative and
Rehabilitative hypotheses, the blamed are given such structures for discipline which
would change them and keep them from perpetrating such wrongdoings.

The theory of punishment being followed in India with the goal to change the crooks
as opposed to rebuffing them isn’t that compelling in avoidance of the event of
violations in India. The essential idea of law isn’t to be static, but to be dynamic in
nature. At exactly that point the law will have the option to be successful in all fields
of the general public.

13
THE MAIN PURPOSE REFORMATIVE THEORY:

The reason for this hypothesis of discipline is to make the criminal languish over his
bad behavior. Here the motivation behind the discipline is profoundly customized and
rotates around the mental outlet of the person in question or his family. The primary
reason might be accomplished to parole and probation, which have been
acknowledged as current procedures of improving the guilty parties all around the
globe. Consequently, the backers of this hypothesis legitimize imprisonment not
exclusively to separate hoodlums and kill them from society. Not many of the
advanced reformative procedures of discipline are essentially concocted for the
treatment of guilty parties as per their mental attributes, for example, probation,
parole, uncertain sentence, exhortation and pardon. The reformative techniques have
demonstrated to be valuable in the event of adolescent misconduct, first wrongdoers
and ladies. Sex cases additionally appear to react well to the reformative strategy for
discipline. All the more as of late, the reformative hypothesis is in effect widely
utilized as a technique for treatment of intellectually denied wrongdoers.

2.3. PREVENTIVE THEORY:

Preventive theory of punishment seeks to prevent prospective crimes by disabling the

criminals. Main object of the preventive theory is transforming the criminal, either
permanently or temporarily. Under this theory the criminals are punished by death
sentence or life imprisonment etc.

PHILOSOPHICAL VIEW OF PREVENTIVE THEORY:

Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive
theory of punishment due to its humanizing nature. Philosophy of preventive theory
affirms that the preventive theory serves as an effective deterrent and also a

14
successful preventive theory depends on the factors of promptness. The profounder of
this theory held that the aim of punishment is to prevent the crimes. The crimes can
be prevented when the criminal and his notorious activities are checked. The check is
possible by disablement. The disablement may be of different types. Confining inside
the prison is a limited form of disablement, that is temporary and when it is an
unlimited form of disablement, that is permanent. It suggests that imprisonment is the
best mode of crime prevention, as it seeks to eliminate offenders from society, thus
disabling them from repeating the crime. The death penalty is also based on this
theory. This theory is another form of deterrent theory. One is to deter the society
while another is to prevent the offender from committing the crime. From an overall
study, we came to know that there are three most important ways of preventive
punishment, they are as follows:

 By creating the fear of punishment.

 By disabling the criminal permanently or temporarily from committing any other
crime.
 By way of reformation or making them a sober citizen of the society.

1. In the case Dr. Jacob George v state of Kerala,5 the Supreme Court held that the
aim of punishment should be deterrent, reformative, preventive, retributive &
compensatory. One theory preferred over the other is not a sound policy of
punishment. Each theory of punishment should be used independently or
incorporated on the basis of merit of the case. It is also stated that “every saint has
a past & every sinner has a fortune”. Criminals are very much a part of the society
so it is a responsibility of the society also to reform & correct them and make
them sober citizens of the society. Because the prevention of crime is the major
goal of the society and law, both of which cannot be ignored.

5
1994 SCC (3) 430, JT 1994 (3) 225

15
2. Further in the case Surjit Singh v State of Punjab6:one of the accused, a policeman
entered the house of the deceased with the intention to commit rape but failed to
do so as the as sons of the deceased shouted for help. Another accused suggested
the policeman to kill the deceased. The accused was held liable under section 450
of the Indian Penal Code. While on the contrary, the death penalty or capital
punishment is more of a temporary form of disablement.

2.4. RETRIBUTIVE THEORY:

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people

in the society would perceive it as, is the most basic, yet inconsiderate theory of
inflicting a penal sentence over a perpetrator. It is based on a very small doctrine,
namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’.
Now, if looked at from the perspective of very serious and heinous offence, like the
Delhi gang rape case, people may feel that it is better to inflict such retributive
punishments, so as to ensure that a deterrent is set across the society, in order to
prevent such crimes in the near future.

However, we forget to understand sometimes that always having a retributive

approach will render the society one with a primitive system of justice, where the
Kings or the Judges were considered to be the supreme beings and were provided
with the stature of God Himself (hence the address My Lord) and thus, collapse the
very concepts of the representatives being ‘servants’. Before we move on to a deeper
understanding of the Retributive Theory, we need to understand two very important
doctrines. Let us have a look at them both.

6
1996 AIR 1388, 1996 SCC (2) 336

16
DOCTRINE OF SOCIETAL PERSONIFICATION AND THE DOCTRINE OF
CORRECTIONAL VENGEANCE:

Doctrine of Societal Personification can be stated as - ‘When a member of the society

is subjected to a very heinous crime, as a result of which, the whole society, as if it
were a natural person, considers the offence to be inflicted upon itself, comes to the
defense of that person either by way of demanding justice or by conducting the same
on its own, the society is said to be personified.’

A very self-explanatory doctrine. To be put simply, it means that the society,

whenever a heinous crime of an extreme form is committed, assumes the form of a
natural person and behaves in a collective manner so as to get justice. Eg: The
country-wide protests for the Mukesh & Anr V. State for NCT of Delhi &
Ors7. (NIRBHAYA RAPE CASE), the Satyam Dubey vs Union of India8 (Hathras
rape case), etc.

Doctrine of Correctional Vengeance maybe stated as- ‘When the society, in a fit to get
justice, demands the concerned authorities to inflict vengeful (as painful as the
original act, or even more) punishments upon the victim for creating a deterrent, it is
said to exhibit correctional vengeance.’

‘The concept of retributive justice has been used in a variety of ways, but it is best
understood as that form of justice committed to the following three principles:
1. that those who commit certain kinds of wrongful acts, paradigmatically
serious crimes, morally deserve to suffer a proportionate punishment;
2. that it is intrinsically morally good—good without reference to any other
goods that might arise—if some legitimate punisher gives them the
punishment they deserve; and

7
(2017) 6 SCC 1
8
27 October, 2020

17
 3. that it is morally impermissible intentionally to punish the innocent or to
inflict disproportionately large punishments on wrongdoers.’

The above three principles clarify the needs for retributive justice even further. We
may understand retributive justice in this manner. The place where both Criminal Law
as well as Moral Law meet, is the place where mostly the retributive punishments are
generated.

In fact, although people may classify punishments into seven different types, but in
reality, every punishment, indeed, is retributive in nature. It is very interesting to see
that the damages claimed under Torts, or the remedies sort for environmental
violations, maybe compensatory, but at their hearts, are retributive in nature. Then
why aren’t they labeled as retributive, instead? Well, the answer to the question is
simple. Retributive punishments are somewhat vengeful in their nature (an eye for an
eye). They may not be vengeful always, but maybe merely morally vengeful. When
we say this, it means that although the punishment is not literally the thing that was
originally done by the perpetrator, is still acts as a vengeance by virtue of its
seriousness.

RETRIBUTIVE THEORY AND THE HINDU SCRIPTURES:

The Hindu scriptures, particularly the Ramayana, Mahabharata and the Durga
Saptashati, are primarily based on Retributive Theories but also, depict the ways in
which one should proceed while applying them.

Ramayana- In the Ramayana the whole story began from retribution

itself. Lakshmana cut the nose of Raavan’s sister, because of which he kidnapped Sita.
In order to rescue her and also to avenge her kidnapping, Ram went to kill Raavan.
But, the major difference between the application of the retributive punishment
between the two was that Raavan did not even give Ram a chance to repent for his

18
younger brother’s act, but, Ram gave several chances to Raavan to correct his act.

Mahabharata– Mahabharata, once again, is a very good example of how retributive

punishment should be inflicted. The Pandavas had not started-off with the war right
away. They had sent Shri Krishna as their messenger of peace a number of times to
the Kauravas, but, they did not give in. Mahabharata, especially Shrimad Bhagvad
Geeta, talks about the time when the retributive mode should be used. As we all know
that Arjun was about to leave the battlefield as he was too scared to go against his
own relatives, it was Krishna who said that ‘when all other paths close down, only
then war is to be resorted to. Because if then the person refuses to fight, then it will
inflict gross injustice upon the society at-large.’

Durga Saptashati– In this too, Goddess Durga warns the various demons,
i.e. Mahishasur and Shumbh-Nishumbh, repeatedly, before starting a killer spree upon
them.
1. In the case Mukesh & Anr V. State for NCT of Delhi & Ors9 : This case is
indeed the first and foremost case to be mentioned, while discussing about
retributive justice in India. In this Judgement, the Supreme Court sentenced
four out of six felons involved in the extremely heinous Delhi gang rape case
to death, much to the delight of the society, as they had committed an
extremely gruesome, as well as morally unimaginable crime.

2. In the case Anwar Ahmad v/s. State of Uttar Pradesh and Anr,10 the convicted
had already undergone a six month imprisonment term, before being officially
convicted by the Court. The Court held that since the convict had been
convicted and also, the required ‘blemish’ had also been imposed upon him, it
was not necessary to sentence him again in the name of ‘retributive
punishment’, as it would inflict a very big loss upon the family as well.

9
Supra note 7 at 17
10
1976 AIR 680, 1976 SCR (1) 779

19
 3. Further in the case Ashim Dutta Alias Nilu vs State of West Bengal,11 it was
observed that both deterrent and retributive punishment aim at prevention of
the recurrences of the offences by others passing exemplary punishment for a
particular offence. But the civilization and the societies are progressing rapidly.
There is advancement of science and technology. The literate people and the
experts in different branches of knowledge started thinking in a different way.
Eye for an eye, and tooth for a tooth are no more considered as the correct
approach towards the criminals. Such principle may perpetuate the rule of the
Jungle but cannot ensure the rule of law.

2.5. EXPIATION THEORY:

The word ‘Abolition of Death Penalty’ is one of the most discussed topics in United
Nation (UN) where Death Penalty is considered as a violation of Human Rights. UN
laid more emphasis on Reformative Theory of Punishment rather than the Deterrent
Theory of Punishment. Justice V.R. Krishna Iyer in the case of Rajendra Prasad V.
State of Uttar Pradesh12 commented that- “The special reason must relate, not to the
crime but to the criminal. The crime may be shocking and yet the criminal may not
deserve the Death Penalty13”.

If we take a look at the Theories of Punishment we can say that the Reformative
Theory has its fair share of advantage over Deterrent Theory. Because, in
Reformative Theory there is a ‘Scope of Improvement’ present whereas in Deterrent
Theory this scope is completely absent. In India, the prisoners of Tihar Jail make
‘Essence Sticks’ and ‘DhoopBatti’ which is a good way to make them adjust or
flexible with the society. Whereas, on the other hand in Deterrent Theory there is no
essence of humanity neither it provides the scope for improvement. Death Penalty is a
very serious topic as it means taking away the life of a person which is a very

11
(1998) 2 CALLT 338 HC, 1998 (2) CHN 261
12 1978 AIR 916

20
sensitive issue. This is the reason why questions are raised against countries like
China, India, USA, Arab countries for awarding Death Penalty. Among these
countries China alone carries out maximum number of executions with over 60% in
number. Whereas in India Capital Punishment is given in rarest of rare cases. The
punishment of death is extreme and severe; therefore it should only be used as a last
resort. If we discuss Capital Punishment with the members of our society then we will
be getting two views from it .There will be a section of people who believes that, the
person who has committed the crime deserves to die. Whereas, on the other hand
there will be people with the view that, the person who committed the crime should
be given a second chance, it is not our place to decide who gets to live and who gets
to die. Further, taking awayva life of an individual in the name of law is not justice.

21
 CHAPTER 3
CAPITAL PUNISHMENT - HISTORICAL ANALYSIS

All punishments are based on the same proposition i.e. there must be a penalty for
wrongdoing. There are two main reasons for inflicting the punishment. One is the
belief that it is both right and just that a person who has done wrong should suffer for
it; the other is the belief that inflicting punishment on wrongdoers discourages other
from doing wrong. The capital punishment also rests on the same proposition as other
punishments.

Since the beginning of the civilizations, the capital punishment was very common.
The king can give capital punishment to anyone he wants and there is no one to
question him. In the history, as capital punishment is very common not in India but in
the world. Capital punishment is the death punishment and in the historical times
there were different methods of capital or death punishment and most of those
methods were horrible. On that time, the only reason behind giving the capital
punishment is just to show the absolute power of the king.

The inception of Death Penalty can be traced back to the Code of King Hammurabi of
Babylon, wherein death penalty was codified for 25 different crimes. Except in the
18th Century B.C, we can find instances in Draconian Code in Athens, where Capital
Punishment was a compulsory procedure to be followed for all crimes committed.

Death Penalty was not a punishment awarded simply as a painless and dignified death
but instead it seen as a means to serve punishment through brutal ways such as
burning alive, drowning, beating to death, death, impalement etc. It was only in the
Tenth Century A.D., that hanging was adopted as a customary method of execution in
Britain. Another brutal means of awarding death penalty used was the electric chair.

22
Capital punishment is an ancient sanction. There is practically no country in the world
where the death penalty has never existed. History of human civilization reveals that
during no period of time capital punishment has been discarded as a mode of
punishment14. Capital punishment for murder, treason, arson, and rape was widely
employed in ancient Greece under the laws of Draco (fl. 7th century BCE), though
Plato argued that it should be used only for the incorrigible. The Romans also used it
for a wide range of offenses, though citizens were exempted for a short time during
the republic15. This finds support in the observation made by Sir Henry Marine who
stated that "Roman Republic did not abolish death sentence though its non-use was
primarily directed by the practice of punishment or exile and the procedure of
questions"16.

The first established death penalty laws date as far back as the Eighteenth Century
B.C. in the Code of King Hammurabi of Babylon, which codified the death penalty
for 25 different crimes. The death penalty was also part of the Fourteenth Century
B.C.'s Hittite Code; in the Seventh Century B.C.'s Draconian Code of Athens, which
made death the only punishment for all crimes; and in the Fifth Century B.C.'s
Roman Law of the Twelve Tablets. Death sentences were carried out by such means
as crucifixion, drowning, beating to death, burning alive, and impalement. In the
Tenth Century A.D., hanging became the usual method of execution in Britain. In the
following century, William the Conqueror would not allow persons to be hanged or
otherwise executed for any crime, except in times of war. This trend would not last,
for in the Sixteenth Century, under the reign of Henry VIII, as many as 72,000 people
are estimated to have been executed. Some common methods of execution at that
time were boiling, burning at the stake, hanging, beheading, and drawing and
quartering. Executions were carried out for such capital offenses as marrying a Jew,
not confessing to a crime, and treason. The number of capital crimes in Britain
continued to rise throughout the next two centuries. By the 1700s, 222 crimes were
punishable by death in Britain, including stealing, cutting down a tree, and robbing a

14
Op.cit. Capital Punishment by Dr. Subhash C. Gupta, 2000, p. 1
15
http://www.britannica.com/topic/capital-punishment
16
Op.cit. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1

23
rabbit warren. Because of the severity of the death penalty, many juries would not
convict defendants if the offense was not serious. This lead to reforms of Britain's
death penalty. From 1823 to 1837, the death penalty was eliminated for over 100 of
the 222 crimes punishable by death(Randa, 1997).

Mosaic Law codified many capital crimes. In fact, there is evidence that Jews used
many different techniques including stoning, hanging, beheading, crucifixion (copied
from the Romans), throwing the criminal from a rock, and sawing asunder. The most
infamous execution of history occurred approximately 29 AD with the crucifixion of
Jesus Christ outside Jerusalem. About 300 years later, the Emperor Constantine, after
converting to Christianity, abolished crucifixion and other cruel death penalties in the
Roman Empire. In 438, the Code of Theodosius made more than 80 crimes
punishable by death.

Britain influenced the colonies more than any other country and has a long history of
punishment by death. About 450 BC, the death penalty was often enforced by
throwing the condemned into a quagmire. By the 10th Century, hanging from gallows
was the most frequent execution method. William the Conqueror opposed taking life
except in war, and ordered no person to be hanged or executed for any offense.
However, he allowed criminals to be mutilated for their crimes. During the middle
ages, capital punishment was accompanied by torture. Most barons had a drowning
pit as well as gallows and they were used for major as well as minor crimes. For
example, in 1279, two hundred and eighty nine Jews were hanged for clipping coin.
Under Edward I, two gatekeepers were killed because the city gate had not been
closed in time to prevent the escape of an accused murderer. Burning was the
punishment for women’s high treason and men were hanged, drawn and quartered.
Beheading was generally accepted for the upper classes. One could be burned for
marrying a Jew. Pressing became the penalty for those who would not confess to their
crimes. The executioner placed heavy weights on the victim’s chest. On the first day
he gave the victim a small quantity of bread, on the second day a small drink of bad
water, and so on until he confessed or died. Under the reign of Henry VIII, the

24
numbers of those put to death are estimated as high as 72,000. Boiling to death was
another penalty approved in 1531, and there are records to show some people boiled
for up to two hours before death took them. When a woman was burned, the
executioner tied a rope around her neck when she was tied to the stake. When the
flames reached her she could be strangled from outside the ring of fire. However, this
often failed and many were literally burnt alive17.

In Britain, the number of capital offenses continually increased until the 1700’s when
two hundred and twenty-two crimes were punishable by death. These included
stealing from a house in the amount of forty shillings, stealing from a shop the value
of five shillings, robbing a rabbit warren, cutting down a tree, and counterfeiting tax
stamps. However, juries tended not to convict when the penalty was great and the
crime was not. Reforms began to take place. In 1823, five laws passed, exempting
about a hundred crimes from the death [penalty]. Between 1832 and 1837, many
capital offenses were swept away. In 1840, there was a failed attempt to abolish all
capital punishment. Through the nineteenth and twentieth centuries, more and more
capital punishments were abolished, not only in Britain, but also all across Europe,
until today only a few European countries retain the death penalty18.

The first recorded execution in the English American colonies was in 1608 when
officials executed George Kendall of Virginia for supposedly plotting to betray the
British to the Spanish. In 1612, Virginia’s governor, Sir Thomas Dale, implemented
the Divine, Moral, and Martial Laws that made death the penalty for even minor
offenses such as stealing grapes, killing chickens, killing dogs or horses without
permission, or trading with Indians. Seven years later these laws were softened
because Virginia feared that no one would settle there19.

In 1622, the first legal execution of a criminal, Daniel Frank, occurred in Virginia for

17
p.72; Laurence, op.cit., 4-9.
18
Laurence, 9-14.
19
Kronenwetter, 72-73

25
the crime of theft20. Some colonies were very strict in their use of the death penalty,
while others were less so. In Massachusetts Bay Colony the first execution was in
1630, but the earliest capital statutes do not occur until later. Under the Capital Laws
of New-England that went into effect between 1636-1647 the death penalty was
meted out for pre-meditated murder, sodomy, witchcraft, adultery, idolatry, blasphemy,
assault in anger, rape, statutory rape, man-stealing, perjury in a capital trial, rebellion,
manslaughter, poisoning and bestiality. Early laws were accompanied by a scripture
from the Old Testament. By 1780, the Commonwealth of Massachusetts only
recognized seven capital crimes: murder, sodomy, burglary, buggery, arson, rape, and
treason.

The New York colony instituted the so-called Duke’s Laws of 1665. This directed the
death penalty for denial of the true God, pre-meditated murder, killing someone who
had no weapon of defense, killing by lying in wait or by poisoning, sodomy, buggery,
kidnapping, perjury in a capital trial, traitorous denial of the king’s rights or raising
arms to resist his authority, conspiracy to invade towns or forts in the colony and
striking one’s mother or father (upon complaint of both). The two colonies that were
more lenient concerning capital punishment were South Jersey and Pennsylvania. In
South Jersey there was no death penalty for any crime and there were only two crimes,
murder and treason, punishable by death21.

The first reforms of the death penalty occurred between 1776-1800. Thomas Jefferson
and four others, authorized to undertake a complete revision of Virginia’s laws,
proposed a law that recommended the death penalty for only treason and murder.
After a stormy debate the legislature defeated the bill by one vote. The writing of
European theorists such as Montesquieu, Voltaire, and Bentham had a great effect on
American intellectuals, as did English Quaker prison reformers John Bellers and John

20
Hugo Adam Bedau, The Death Penalty in America (N.Y.: Oxford
University Press, 1982).
21
Phillip English Mackey, Voices Against Death: American Opposition to
Capital Punishment, 1787-1975 (N.Y.: Burt Franklin & Co., Inc., 1976).

26
Howard22.

On Crimes and Punishment, published in English in 1767 by the Italian jurist Cesare
Beccaria, whose exposition on abolishing capital punishment was the most influential
of the time, had an especially strong impact. He theorized that there was no
justification for the taking of life by the state. He said that the death penalty was “a
war of a whole nation against a citizen, whose destruction they consider as necessary,
or useful to the general good.” He asked the question what if it can be shown not to
be necessary or useful? His essay conceded that the only time a death was necessary
was when only one’s death could insure the security of a nation — which would be
rare and only in cases of absolute anarchy or when a nation was on the verge of losing
its liberty. He said that the history of using punishment by death (e.g., the Romans, 20
years of Czaress Elizabeth) had not prevented determined. Men from injuring society
and that death was only a “momentary spectacle, and therefore a less efficacious
method of deterring others, than the continued example of a man deprived of his
liberty.23

England and Canada completed exhaustive studies which were largely critical of the
death penalty and these were widely circulated in the U.S. Death row criminals gave
their own moving accounts of capital punishment in books and film. Convicted
kidnapper Caryl Chessman published Cell 2455 Death Row and Trial by Ordeal.
Barbara Graham’s story was utilized in book and film with I Want to Live! after her
execution. Television shows were broadcast on the death penalty. Hawaii and Alaska
ended capital punishment in 1957, and Delaware did so the next year. Controversy
over the death penalty gripped the nation, forcing politicians to take sides. Delaware
restored the death penalty in 1961. Michigan abolished capital punishment for treason
in 1963. Voters in 1964 abolished the death penalty in Oregon. In 1965 Iowa, New
York, West Virginia, and Vermont ended the death penalty. New Mexico abolished the
death penalty in 1969.
22
Mackey, 7-8.
23
Cesare Beccaria, On Crimes and Punishment, trans. Henry Paolucci
(Indianapolis: Bobbs-Merrill, 1963).

27
Trying to end capital punishment state-by-state was difficult at best, so death penalty
abolitionists turned much of their efforts to the courts. They finally succeeded on June
29, 1972 in the case Furman v. Georgia. In nine separate opinions, but with a
majority of 5-4, the U.S. Supreme Court ruled that the way capital punishment laws
were written, including discriminatory sentencing guidelines, capital punishment was
cruel and unusual and violated the Eighth and Fourteenth Amendments. This
effectively ended capital punishment in the United States. Advocates of capital
punishment began proposing new capital statutes which they believed would end
discrimination in capital sentencing, therefore satisfying a majority of the Court. By
early 1975, thirty states had again passed death penalty laws and nearly two hundred
prisoners were on death row. In Gregg v. Georgia (1976), the Supreme Court upheld
Georgia’s newly passed death penalty and said that the death penalty was not always
cruel and unusual punishment. Death row executions could again begin. Another form
of execution was soon found. Oklahoma passed the first death by lethal injection law,
based on economics as much as humanitarian reasons. The old electric chair that had
not been used in eleven years would require expensive repairs. Estimates of over
$200,000 were given to build a gas chamber, while lethal injection would cost no
more than ten to fifteen dollars “per event.”24

The controversy over the death penalty continues today. There is a strong movement
against lawlessness propelled by citizens’ fears for their security. Politicians at the
national and state levels are taking the floor of legislatures and calling for more
frequent death penalties, death penalties penalty [sic] for more crimes, and longer
prison sentences. Those opposing these moves counter by arguing that tougher
sentences do not slow crime and that crime is little or no worse than in the past. In
fact, FBI statistics show murders are now up. (For example 9.3 persons per 100,000
population were murdered in 1973 and 9.4 persons per 100,000 were murdered in
1992). The battle lines are still drawn and the combat will probably always be

24
Bedau, 17.

28
fought.25
Wilkerson v. Utah 99 U.S.26— Court upheld execution by firing squad, but said that
other types of torture such as “drawing and quartering, embowelling alive, beheading,
public dissection, and burring alive and all other in the same line of…cruelty, are
forbidden.”

Louisiana ex rel. Francis v. Resweber 329 U.S. — On May 3, 1946, convicted

27

seventeen year old felon Willie Francis was placed in the electric chair and the switch
was thrown. Due to faulty equipment, he survived (even though he was severely
shocked), was removed from the chair and returned to his cell. A new death warrant
was issued six days later. The Court ruled 5-4 that it was not “cruel and unusual” to
finish carrying out the sentence since the state acted in good faith in the first attempt.
“The cruelty against which the Constitution protects a convicted man is cruelty
inherent in the method of punishment,” said the Court, “not the necessary suffering
involved in any method employed to extinguish life humanely.” He was then
executed.

3.1. HISTORY OF CAPITAL PUNISHMENT IN INDIA

In the dictionary meaning, the term ‘punish’ means to make someone suffer from a
crime or for an unlawful behavior or the imposition of penalty as punishment for an
offense.

In criminal law, ‘punishment’ means any pain, penalty, suffering inflicted upon a
person by the authority of law and the sentence of the court for some crime
committed by him or for his exclusion of a duty enjoyed by law. The punishment
maintains the law and order, it safeguards the person and the property. The culprit
abstains from wrongdoing for the fright of punishment and therefore, the punishment

25
FBI Uniform Crime Report 1992; The Sentencing Project.
26
130 (1878)
27
459 (1947)

29
and the law are indivisible.

The concept of punishment has also been recognized in the Dharmakshetra. In the
Hindu shastras, the king had the superiority to penalize the wrongdoer or law-breaker
and protect the law follower. Thus, it is clear-out that punishment is one of the oldest
practices of managing crime and criminality. The objective of the punishments and it
makes changes with the converting of times. The procedures for executing the
sentences are also altered and supporting human rights. As we recall our past we have
seen that the death sentence was given for a very small cause but it has been awarded
only in the ‘rare cases’. Even still some societies are there which use ancient forms of
brutal punishment but the punishment has also evolved along with civilization and
has become less brutal.

3.2. TYPES OF PUNISHMENT

In Ancient India

The history of the penal system states that the punishment was twisting, brutal, and
ruthless in nature. The objective of the punishment was deterrence and retribution.
Due to this Penal procedure, the crimes were less in numbers. Such punishments are
categorized under the following:

3.2.1. CAPITAL PUNISHMENT:

Capital punishment means the legally authorized killing of someone as a punishment

of a crime, a death penalty for a crime. In simple words, it means a government-
sanctioned practice where a person is put to death by the state as a punishment for a
crime. In ancient times, capital punishment was executed for every small crime. It is
the most extreme form of punishment. The procedures of execution of the death
penalty have varied from time to time.

30
3.2.2. CORPOREAL PUNISHMENT:

It means a punishment that is intended to cause physical pain on a person. It is also

known as physical punishment. It is a punishment for the violation of law which
involves the infliction of pain on the body. The objective behind corporeal
punishment is not only to punish the offender but also to prevent the repetition of the
offense by such offender or any other person.

3.2.3. SOCIAL PUNISHMENT:

It is a punishment in which a person is restrained to make any kind of contract from

the other persons or to move him at other places where he has no contract with the
other persons can help him in any manner otherwise he is also liable for the
punishment for it.

3.2.4. FINANCIAL PUNISHMENT:

It is also known as imposing for fine. It was the common way of punishment which
was not significant in nature and it was assigned specially for the breach of traffic
rules, revenue laws, and minor crime. It also includes the payment of compensation to
the victims of the crime and also the payment of the costs of prosecution.

India is a nation that comprises of a huge number of wrongdoings and criminals. In

India, all punishments depend on the intention to give punishment for the wrongdoer.
There are two primary explanations behind imposing the punishment, one is the
wrongdoer must suffer and another one is that giving punishment to wrongdoers
demotivates others who are like-minded as the wrongdoer. There are many types of
punishments in India depending on the offence, for example, capital punishment,
detainment, life imprisonment, imprisonment with fine, fine, etc. In this article, the
analyst mainly focuses on the death penalty or capital punishment.

The death penalty is one of the significant parts of the Indian criminal justice system.
Wrongdoings which bring about capital punishment are known as capital crimes or

31
capital offences. The term capital punishment came from the Latin word ‘capitalis’
which signifies ‘regarding the head’. The term capital punishment is otherwise called
the death penalty. Capital Punishment is a process by which an individual is killed by
the State for committing a criminal offence.

The death penalty has been granted for the most heinous offences against humankind.
Death punishment changes with the place, from State to State, and nation to nation.
There are several human right movements which argue that Capital Punishment is
immoral. The Human Rights Organization has contended that the death penalty
influences the individual’s rights. In jurisprudence, criminology and punishment, the
death penalty implies a sentence of death. Indian criminal jurisprudence depends on
the mixture of two theories. The Constitution too offers powers to the President and
the Governor to suspend or pardon capital punishment.

In India, Capital Punishment is granted for the most serious and heinous offences.
The death penalty is given for murder, robbery with murder, waging war against the
legislature and abetting mutiny, etc. Capital punishment is given just when the Court
concludes that life imprisonment is not sufficient, given the circumstance of the case.

Since the colonial era, the death sentence has been used as a form of punishment to
punish offenders. It used to be governed in the most severe and terrible circumstances.
Based on an amalgamation of deterrent and reformative theories of punishment,
Indian criminal law holds that the purpose of punishment is to both in-still fear in
criminals and provide them with the chance to change. In India, there are a variety of
views on the death penalty, with some being in favor and others opposed.

The Indian Constitution guarantees everyone's fundamental right to life, subject to

being deprived of it in accordance with the procedure of law. It has been argued by
abolitionists that the sentence of death in its present form violates the citizen's right to
life. In addition, Article 14 of the Constitution stipulates that everyone is entitled to
"equality before the law and equal protection of the laws," which means that

32
discrimination against anybody is prohibited unless it is necessary to achieve equality.
The preamble to the constitution contains a reference to the idea of equality that is
included in Art. 14. It appears that a death sentence is in direct opposition to a
person's right to life. It cannot be questioned though, that the Indian Constitution does
not expressly forbid the death sentence.

According to Article 21 of the Indian Constitution, "Protection of Life and Personal

Liberty: No person shall be deprived of his life or personal liberty except in
accordance with procedure established by law." It was stated that no one was allowed
to commit suicide unless they followed the legal process. There are still some
significant crimes in India that incur the death penalty. The Supreme Court ruled that
the death penalty is valid in India and should be followed in only "rarest of rare
cases". And also said that it does not violate the Constitution.

One of the most well-known death sentence cases is Bachan Singh v. State of
Punjab28. In this case, the Supreme Court upheld the death penalty's constitutional
legitimacy as an alternative to the life sentence under Section 302 of the Indian Penal
Code 1860 (IPC). The court ruled that Articles 19 and 21 of the Constitution were not
violated by Section 302. The apex court also laid down the doctrine of "rarest of the
rare cases" in awarding the death penalty. For those convicted of murder, life
imprisonment is the rule, and a death sentence is an exception.

The case Machi Singh v. State of Punjab29 , plays a significant role in the legal
system's consideration of the death penalty. The court also tried to determine whether
the crime fell into the category of the "Rarest of the Rare'' cases. The Supreme Court
held that "the rarest of rare dictum serves as a guideline in enforcing Section 354(3)
and establishes the policy that life imprisonment is the rule and death punishment is
an exception" in its conclusion." Section 303 of the Indian Penal Code mandates the
death penalty for any criminals serving life terms.

28
Supra note 1 at 1
29
1983 AIR SC 957

33
In India, there has been much discussion about whether the death penalty should be
retained or abolished. For the first time in India, the Law Commission discussed the
death penalty in their 35th Law Commission Report, which concluded that the death
penalty must be retained in India.

The constitutional validity of the death penalty was challenged from time to time in
numerous cases.
In Jagmohan Singh vs. State of Uttar Pradesh30, the five judge bench of the Supreme
Court, by a unanimous verdict, upheld the constitutional validity of death penalty. The
punishment was not seen violative of Articles 14, 19 and 21. Here, the validity of
death sentence was challenged on the ground that it was violative of Articles 19 and
21 because it did no procedure is provided. It was contended that the procedure
prescribed under Cr. P.C. was confined only to findings of guilt and not awarding
death sentence. The Supreme Court held that the option of death sentence, when
exercised is in accordance with the procedure established by law.

Justice Krishna Iyer, in Rajendra Prasad vs. State of UP31 stressed upon the violative
nature of articles 14, 19 and 21. He further set two conditions for imposing capital
punishment, which were:
 The special reason should be recorded for imposing death penalty in a case.
 The death penalty must be imposed only in extraordinary circumstances.

The question was again considered in Bachan Singh vs. State of Punjab32, The
Supreme Court overruled its earlier decision of Rajendra Prasad case, with a 4-1
majority. It expressed the view that the punishment of death penalty for murder is not
unreasonable and does not violate the articles 14, 19 and 21 of the Constitution of
India. It was in this case where, the principle of awarding death penalty only in the
‘rarest of rare cases’ are propounded. Justice Bhagwati in his dissenting judgment
observed that “death penalty is not only unconstitutional being violative of Articles 14

30
AIR 947, 1973 SCR (2) 541
31
AIR 916, 1979 SCR (3) 78
32
Supra note 1 at 1

34
and 21 but also undesirable from several points of view.”

Further, The Supreme Court in Machhi Singh vs. State of Punjab33 laid down the
broad outlines of the circumstances that may be considered as “rarest of rare cases
deserving extreme penalty”. They are:
1. Manner of Commission of murder – When the murder is committed in an
extremely brutal manner so as to arouse intense and extreme indignation in
the community, for instance, when the house of the victim is set a flame to
roast him alive, when the body is cut to pieces or the victim is subjected to
inhuman torture.
2. Motive – When the murder is committed for a motive which evinces
depravity and meanness eg. a hired assassin, a cold blooded murder to inherit
property, or gain control over property of a ward, or a murder committed for
betrayal of the motherland.
3. Anti-social or socially abhorrent nature of the crime – where a scheduled
caste or minority community person is murdered in circumstances which
arouse: social wrath; or bride burning for dowry, or for remarriage.
4. Magnitude of the Crime – Crimes of enormous proportion, like multiple
murders of a family or persons of a particular caste, community or locality.
5. Personality of victim of murder.
The purpose of giving punishment is to avoid and reduce crime in society. The
heinous crimes for which the punishments are provided cannot fulfill the damage
they caused so, fair and speedy justice should be provided to the victims. The
principle that the innocent should not be punished, should be followed by the court
while awarding punishment. The age-old colonial punishments are not suitable
anymore and the punishments that are available now in India should be implemented
for the wrongdoers in the right manner. The social dimensions related to punishment
and the punishments which were given in ancient India has been evolved as the law
should evolve in accordance with the change in circumstances and there have been
reforms in the criminal justice system of India.
33
AIR 957, 1983 SCR (3) 413.

35
 CHAPTER 4

LEGAL FRAMEWORK OF DEATH PENALTY IN INDIA

The Indian Penal Code contains several crimes that include the death penalty. They
are discussed as follows:

One of the crimes that have been connected to the death penalty is waging war
against India or attempting to do so. Waging war against a country is a crime that is
specifically defined in Section 121 of the IPC. Anyone who attempts to wage war
against India or is successful in waging war may be sentenced to death. Waging, or
attempting to wage war, or abetting waging of war, against the Government of India.
Whoever wages war against the Government of India, or attempts to wage such war,
or abets the waging of such war, shall be punished with death, or imprisonment for
life and shall also be liable to fine. waging war against the government, the
expression waging war here refers to a deliberate and organized attack upon the
government forces and government institutions; the term whoever applies to Indian
citizens as well as foreigners. In other words, making an attempt to conduct an
offence of public nature with the aim to fulfill any criminal purpose against the state,
in this aspect, the intention or the purpose behind the act is taken in consideration and
not the murder or use of force, as such acts disturb the public tranquility, public order
and national integration. Whomsoever tries/attempts to of waging war against the
Government of India shall be punished with death, or imprisonment for life while also
being liable for a fine.

The authors of the Code have deliberately used the expression wages war. The words
seem naturally to import a levying of war by one who throwing off the duty of
allegiance arrays himself in open defiance of his sovereign in like manner and by the

36
like means as a foreign enemy would do, having gained footing within the realm34.
The words mean waging war in the manner usual in war. The expression 'waging war'
is similar to the English law expression levying war. The famous words of Chief
Justice Lord Mansfield in R. v. Gordon35 explain the concept thus:

There are two kinds of levying war : one against the person of the king, to
imprison, to dethrone, or to kill him, or to make him change measures, or
remove councilors; the other, which is said to be levied against the majesty of
the king, or in other words, against him in his regal capacity, as when a
multitude rise and assemble to attain by force and violence any object of a
general public nature, that is levying war against the majesty of the king, and
most reasonably so held, because it ends to dissolve all the bonds of society, to
destroy property, and to overturn government, and by force of arms, to restrain
the king from reigning according to law.

Under this section, it is not necessary that any act or illegal omission should take
place in pursuance thereof, whereas under section 107 abetment includes the
engaging with one or more persons in any conspiracy for doing of a thing, if an act or
illegal omission takes place in pursuance of that of a conspiracy, and in order to the
doing of that thing. In other words except in respect of the offences particularized in
sec.121A conspiracy per se is not an offence.

The position changed in 1913 when the Criminal Law Amendment Act came into
force. It passes an emergency piece of legislation which gave an extended effect to
the law of conspiracy of India. This added two new sections that are sec.120A and
120B of the IPC. It was added in Chapter V which widened the scope of the
conspiracy. The development of Section 121 has provided a literal exposition of the
proverb that One man's terrorist is another man's revolutionary. Before independence,
several freedom fighters were convicted under this Section. The members of the

34
1995 CanLII 3947 (SK CA).
35
JM 1990 CA 104.

37
Indian National Army, who were tried between 1944 and 1946, were also primarily
charged with waging war. Subsequently, however, Section 121 has been employed as
a mace to bring perpetrators of terrorist activities to justice36.

In the case Barendera Kumar Ghosh v. Emperor37:It was stated that Section 121 must
be constructed in such a unique but simplistic way that, in ordinary sense, its ambit is
not necessarily restricted to overt acts including the collection of men, arms and
ammunition. It is vital to establish the fact that there was an attempt to accomplish by
violence, any object of a public nature, striking at the root of the sovereign's authority.
There must have been an insurrection of a general nature, as well as force
accompanying that insurrection.

In the case Mir Hasan Khan & Others v. State38: In this case, it was held that under
section 121 it should be demonstrated that the individual has wanted to possess any
kind of an armory and has utilized the rifles and ammunitions against the State troops,
yet in addition that the seizure of the ordnance was a vital part of an arranged activity.

Further in the case Tara Singh v. Territory Of Punjab39: In this case, it was held that
under section 124A was struck down as illegal being in opposition to the right to
speak freely of speech and expression ensured under Article 19(1)(a). It hence held
that Section 124A is ultra-vires of the constitution as it tries to rebuff simply awful
sentiments against the Government. There have been different ideas to change
section124A to suit the fundamental structure of the constitution which ensures the
right to freedom of speech.

The death penalty has also been associated with the abatement of mutiny. Abatement
of armed rebellion by an officer or member of the army, navy, or air force is specified

36
Chandrachud, Chintan, The Evolution of Section 121 of the Indian Penal Code: From the
Revolutionary to the Terrorist (January 25, 2011). Madras Law Journal (Criminal), Vol. 1, No. 9, 2011.
37
(1925)27BOMLR148
38
AIR 1951 Pat 60.
39
AIR 1951 CriLJ 449.

38
in Section 132 of the I.P.C and accordingly, anyone who abets in the commission of
a mutiny by an officer, soldier, sailor, or pilot in the army, navy, or air force of the
Government of India, so that mutiny will be committed as a result of that complicity,
can be punished by death.

Section 194 of the IPC has been added to the list of crimes punishable by
death. According to Section 194, fabricating evidence is punishable by the death
penalty if it is done to obtain a capital conviction for a crime. A person who commits
such a crime can face the death penalty.

Section 302 of the IPC imposes the death penalty for a person who commits murder.
A death sentence or capital punishment is awarded when a person is guilty of
committing the murder of another person. It is a legal procedure whereby a person is
put to death by the state as a punishment for a dreadful crime like murder. The main
motive behind giving such a serious punishment is to ensure that the person doesn’t
repeat the offence again. In India, the death penalty is given in the “rarest of the rare”
cases. Nevertheless, there are certain hideous crimes for which there is no other
alternative than capital punishment. The death penalty is one of the oldest forms of
punishment, where the offender is executed under due process of law.

In Mithu v. State of Punjab40, the Supreme Court struck down Section 303 of the
Indian Penal Code, which provided for a compulsory death penalty for offenders
serving life imprisonment. The petitioner challenged Section 303 of the IPC. It was
held by the Court that Section 303 violates equality guaranteed under Article 14 of
the Indian Constitution as well as the rights that are conferred under Article 21. This
case also talked about the Law Commission report and Statutes on the mandatory
death penalty. India voted against a United Nations General Assembly resolution to
banish the death penalty in December 2007. India again upheld its decision by voting
against the resolution of the UN General Assembly draft to end capital punishment
globally in November, 2012. India only supported the death penalty for crimes

40
1983 AIR 473, 1983 SCR (2) 690.

39
involving waging war against the nation or offences relating to terrorism. The Law
Commission of India submitted that report to the government on August 31st, 2015.

In State of Kerala v. Asafak Alam41 : Kerala Court Sentences Convict To Death: A

court in Kerala, sentenced to death the man, convicted, in the horrific Aluva child
rape and murder case. Special POCSO (Protection Of Children from Sexual Offences)
court Judge K Soman gave the highest punishment of the land to Asafaq Alam, a
migrant labourer, for raping and killing a 5-year-old girl from Bihar. The prosecution
had argued that the case falls under the rarest-of-rare category and therefore, the death
penalty should be given to the convict. During arguments on sentence, Alam had
claimed in court that the other accused were let go and only he was caught in the case
and, beyond that, he did not make any other submission, the prosecution had said.
The court had found Alam guilty of all 16 offences in the charge sheet. Of the 16, five
offences are punishable by death, the prosecution had said earlier. The minor girl was
brutally raped and strangulated to death on July 28 after she was abducted from her
rented house here. The body of the girl was found dumped in a stack in a marshy area
behind a local market in nearby Aluva and the accused was arrested based on CCTV
visuals.

Assisting or supporting a minor’s suicide has been associated with the death
penalty. Section 305 of the IPC deals with punishment for assisting or supporting a
person under the age of 18 or an intellectually disabled person in committing suicide.
As a result, anyone who commits this crime can face the death penalty.

Kidnapping for ransom or other purposes is a serious offence punishable by death.

Kidnapping a person with the intent to cause them harm or death is specified
under Section 364A of IPC. Any person who commits this crime can face the death
penalty. Section 364A of IPC provides for punishment to the whoever threatens to
hurt or cause death to that person who he has kidnapped or abducted or detained after
kidnapping or abducting in order to compel either the government or some foreign

41
1385 of 2023.

40
state or any other person to do or abstain from doing an act or pay a certain sum of
money. The punishment is death or imprisonment for life, and fine, as mentioned in
Section 364A IPC.

In the case of Netra Pal v. State (National Capital Territory of Delhi),42 the appellant
Netra Pal was known to Master Tanu Johia, a 6-year-old boy. One day he had taken
the boy along with other boys on a joy ride in a Rickshaw. While he dropped the other
boys, he did not drop off Tanu. His mother had thought that Netra Pal would come
back with her son in a while. When he didn’t come back, she told his father. He tried
to find him around the area where they live, but failed to locate them and filed a
police report. The police went to the appellant’s village and found him there along
with the child. He was apprehended and a letter asking for Rs. 50,000 in ransom was
found in his possession. The court held that mere recovery of the letter assumed to
have been written by the appellant demanding Rs. 50000 for the safety and return of
the child is not enough to cover “ to pay the ransom” by itself. Demand by a
kidnapper is an essential ingredient of the offence because, for the purpose of getting
paid ransom, demand must be communicated.

In Malleshi v. State of Karnataka,43Vijaybhaskar was studying in college and living at

his uncle’s place. He used to go to Chitradurga, where his college was, through a bus,
along with another friend. One day when he was waiting to board the bus to go back
to his house, he was called by a man who told him he knew his father. He further
inquired about the college’s fees saying he wanted to enroll his son here. He then led
Vijaybhasker to a jeep informing him that his son is there and made him sit in the jeep.
Then two other men joined him and treated him well till they crossed Chitradurga.
Once they did, they enquired about his father’s phone number and told him that they
want a ransom of Rs. 4,00,000. On the way, they stopped to buy cigarettes. The driver
of the jeep told him to run off. He listened to his advice and found out he was in
Byrapur village. He informed the villagers who caught hold of the abductors and

42
2001 IIIAD Delhi 451, 2001 CriLJ 1669, 91 (2001) DLT 40, 2001 (58) DRJ 716.
43
AIR 2004 SC 4865

41
handed them over to the police. The court held that Vijaybhasker has been abducted
through deceitful means. They further referred to the case of Netra Pal v. State44 and
said that the difference of fact that the abducted person, in that case, was a child and
in the present case is an adult who can look after himself must be mentioned. It was
held that in this case, the demand for ransom had been conveyed to the victim and the
offence was completed. The court further said that it cannot be a straight jacket rule
that the demand for abduction must always be made to the person who is required to
ultimately pay it.

▪︎The following offences were added to the IPC by the Criminal Law (Amendment)
Act of 2013 for which a court may impose the death penalty:

Section 376A of IPC specifies the death penalty for rape that results in death or a
permanent vegetative state of the victim. Section 376A of the Indian Penal Code (IPC)
deals with the offense of causing death or resulting in a persistent vegetative state of a
woman while committing rape. This provision was inserted in the IPC through the
Criminal Law (Amendment) Act, 2013, in response to the public outcry following the
Nirbhaya gang rape case in Delhi. According to Section 376A, if a person commits
rape and in the course of such crime causes the death of the victim or leaves her in a
persistent vegetative state, the offender shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years but which may extend to
imprisonment for the remainder of the offender's natural life or with death. The
provision also mentions that the offender shall also be liable to pay compensation to
the victim or her legal heir. It is important to note that under this provision, the
offense of rape must have been committed, and as a consequence of such rape, the
victim either dies or is left in a persistent vegetative state.

In State of MP v. Anoop Singh,45the Supreme Court held that Section 376A is

applicable only in cases where the woman has died or is left in a persistent vegetative

44
Ibid.
45
AIR 2014 SC 770.

42
state. It further clarified that persistent vegetative state refers to a condition where a
person has lost consciousness and cognitive abilities but remains alive.

In State of Himachal Pradesh v. Sanjay Kumar,46 the Himachal Pradesh High Court
applied Section 376A and upheld the conviction and sentence of the accused who had
raped a minor girl that led to her death. The court held that the punishment prescribed
under Section 376A is commensurate to the gravity of the offense.

In State of Maharashtra v. Chandraprakash Kewalchand Jain,47The Supreme Court

in this case recognized that Section 376A has limited applicability, and it must be
shown that the victim died due to injuries sustained during the act of rape. The court
held that the prosecution must establish that the rape was the proximate cause of the
victim's death.

Under Section 376E, repeat rape offenders may face the death penalty. Section 376E
of the Indian Penal Code (IPC) deals with the punishment for repeat offenders of rape.
It states that a person who has been previously convicted of an offense under Section
376 of the IPC and is subsequently convicted of committing rape shall be punished
with imprisonment for the remainder of that person's natural life or with the death
penalty. It is important to note that Section 376E applies specifically to repeat
offenders, i.e., individuals who have already been convicted of a previous offense
under Section 376 of the IPC which deals with rape. The provision aims to impose
severe punishment on individuals with a history of sexual offenses to deter them from
committing further crimes. Jurisdiction for cases under Section 376E lies with the
Court of Sessions. These courts are established under the Code of Criminal Procedure
(CrPC) in each district and are designated to handle cases under various criminal laws,
including rape and other sexual offenses. The higher judiciary, such as the High
Courts and the Supreme Court, also have the jurisdiction to hear and decide appeals
arising from decisions made by the Court of Sessions in such cases.

46
AIR 2017 SC 835
47
AIR 1990 SC 658.

43
 The Commission of Sati (Prevention) Act, 1987 - 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.

 Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 - Based on

previous convictions, Section 31A of the 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 grammes).

 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
the Act.

 Army Act, 1950; Air Force Act, 1950 and Navy Act, 1957 - Various offences
committed by members of the military forces under military laws like the Army
Act, 1950; Air Force Act, 1950, and Navy Act, 1957, may also be punishable by
death.

Section 396 also provides for the death penalty in cases of dacoity with murder.

The legal framework of the death penalty in India is governed by both constitutional
provisions and statutory laws. The primary legislation dealing with the death penalty
is the Indian Penal Code, 1860 (IPC), while the Code of Criminal Procedure, 1973
(CrPC) and the Constitution of India also play a significant role in laying down the
procedural safeguards and limitations concerning the imposition of the death penalty.
The death penalty in India is awarded in cases of the "rarest of rare" crimes
involving murder. This principle was established by the Supreme Court of India in the

44
landmark judgment of Bachan Singh v. State of Punjab48. The Court held that the
death penalty can only be awarded if the alternative punishment of life imprisonment
is demonstrably inadequate, and if the crime is of an exceptionally heinous nature,
arousing public abhorrence. Article 21 of the Constitution of India guarantees the
right to life and personal liberty. However, it has been clarified that this right is not
absolute and can be curtailed in accordance with the procedure established by law. In
the case of Jagmohan Singh v. State of Uttar Pradesh49, the Supreme Court held that
the death penalty is not unconstitutional and does not violate Article 21 if it is
inflicted for the 'rarest of rare' cases.

The IPC, under Section 302, provides for punishment by death or imprisonment for
life for murder. Section 303 of the IPC, which once mandated the death penalty for
certain offenses, has been held unconstitutional by the Supreme Court in Mithu v.
State of Punjab50. The Court held that the mandatory imposition of the death penalty
violates the right to equality guaranteed under Article 14 of the Constitution. The
CrPC sets out the procedure to be followed in death penalty cases. It provides various
safeguards and guarantees to ensure a fair trial. Section 354(3) of the CrPC requires
that while convicting a person for an offense punishable with death, the court should
state reasons for the awarding of the death penalty instead of life imprisonment.
Section 366 of the CrPC mandates the confirmation of death sentence by the High
Court. In addition to the IPC and CrPC, several other laws address specific aspects of
the death penalty. The Narcotic Drugs and Psychotropic Substances Act, 1985 and the
Prevention of Terrorism Act, 2002 (now repealed) also provide for the death penalty
in exceptional cases involving drug trafficking and acts of terrorism, respectively. The
Juvenile Justice (Care and Protection of Children) Act, 2015 prohibits the imposition
of the death penalty on individuals below the age of 18 years. The Supreme Court,
through various judgments, has laid down guidelines and safeguards to ensure that the
death penalty is imposed in a fair and just manner. For instance, in the case of Machhi

48
Supra note 1 at 1
49
Supra note 30 at 34
50
AIR 1983 SC 473

45
Singh v. State of Punjab (1983)51, the Court outlined various aggravating and
mitigating factors to be considered while deciding whether to award the death penalty.
These factors include the motive behind the crime, the manner of its commission, and
the antecedents of the offender.

Regarding the jurisdiction of the courts, both the trial court and the respective High
Court have jurisdiction in death penalty cases. The High Courts have the power to
confirm the death penalty awarded by the trial court and can also commute the death
sentence to life imprisonment if they find sufficient grounds for doing so. Cases can
be further appealed to the Supreme Court, which has the power to exercise its
jurisdiction under Article 136 of the Constitution and review the imposition of the
death penalty. In conclusion, the legal framework of the death penalty in India is
governed by a combination of constitutional provisions and statutory laws. The Indian
Penal Code, the Code of Criminal Procedure, and various other laws provide for the
awarding of the death penalty in exceptional cases. The Supreme Court, through its
judgments, has laid down guidelines and safeguards to ensure that the death penalty is
imposed in accordance with constitutional principles and the concept of 'rarest of rare'
crimes. The jurisdiction in death penalty cases lies with the trial court, High Courts,
and the Supreme Court.

51
AIR 957, 1983 SCR (3) 413

46
 CHAPTER 5
EXPLORING DETERRENT THEORY: STRATEGIES
FOR DISCOURAGING UNWANTED BEHAVIOUR

In our day-to-day life, we see so many criminal cases happening in our society. But
what is the solution to this? How can we control such crimes in our society? For such
reasons, the deterrent theory comes into place, because it explains how we can create
fear among people before they commit heinous crimes.
Deterrent punishment is considered to be the most important form of punishment. In
medieval times and even in 19th century, mainly deter rent theory was in vogue.

The chief end of this theory is to teach a lesson to the wrongdoer that crime never
pays as it is "a bad bargain" for him. It also sets an example to all members of society
by creating a fear that if they would commit s crime, they would have to pay penalty
for it.

A judge had said, "I do not punish you for stealing the sheep but so that sheep may
not ever be stolen."
Manu also said, "Penalty keeps the people under control. Penalty pro- tests them,
penalty remains awake when people are asleep, so the wise have regarded punishment
as a source of righteousness."

But this theory has been criticised also. It places too much emphasis on the crime
rather than on the criminal. In other words, it considers crime as primary and criminal
as secondary which is not proper. Again, the deterrent theory has never proved to be
effective. In spite of several provisions in penal statutes for punishments, people
commit crimes.

47
It is said that at the time when punishment for pickpocketing was death in public,
pickpockets were seen busy in their "profession" among the crowds gathered to watch
execution of condemned pickpocket. It is also said that excessive and harsh
punishment loses its effect and efficacy in converting "an offender to a non-offender".
Once an offender is punished, deterrent effect loses its rigor. There is every likelihood
that instead of correcting himself, an ordinary offender may turn to be a hardened
criminal.

In the deterrent theory of punishment, the word ‘deterrent’ means to abstain from any
wrongdoing. The main goal of this theory is to deter criminals from attempting to
commit a crime or repeating the same crime in the future. Deterring crime by creating
fear is the main goal. Simply put, according to the theory, if someone commits a
crime, they will be punished with a severe sentence; people will be aware of such
punishments, and because of this fear in people’s minds, people will stop committing
any crime or wrongdoing. , if we go back a little earlier in time, in our Hindu
Scriptures we also see that there were several punishments like public hanging, not
only that but also people were immersed in hot oil or water. Most penal systems made
use of deterrent theory as the basis of sentencing mechanism till early 19th century.

• In England, punishments were more severe and barbaric in nature to restrict same
crime in the future. At the time of ‘Queen Elizabeth I’, deterrent theory of
punishment was applied for restricting future crimes, even for too little crimes like
‘pickpocketing’.

• In India also, inhuman punishments are granted.

But, if we discuss or follow this theory in today’s context, then, it will be very clear
that “deterrent theory” is not applicable at all or it may not be useful enough to
prevent or to deter crimes by creating a fear in the minds of people. We have a very
recent example of why deterrent theory is not successful in the case of “Nirbhaya

48
Rape Case, 2012”. This case is the foremost case to be mentioned while talking about
deterrent theory of punishment. In this judgement, the Supreme Court sentenced four
out of six offenders involved in the extremely heinous Delhi gang rape case to death.
Now, the most important questions are-

• Whether the death sentence to the culprits will act as a deterrent?

• Will the number of crimes against women in our society drop down permanently?
• Specifically, in Nirbhaya judgement, is the aim of deterrent theory fulfilled?

The answers are ‘no’. According to deterrent theory, the main objective is ‘to deter
crime, by creating a fear or establishing an example to the society.’ Now, death
penalty is a severe punishment. In the Nirbhaya case, the Court gave death sentence
to the four convicts for committing gang rape. We can say that it is a great example
for future offenders who will think about committing a crime like rape in future. So,
according to this theory, after Nirbhaya judgment crimes like rape should not happen.
But they are happening till now. Day-by-day, rape cases are increasing in our society.

In Nirbhaya gang rape judgement, it’s being suggested that justice has finally been
served to “India’s Daughter” and though the decision came after a staggering seven
years, it will help to secure the safety of women and prevent rape cases in the future.
But it seems to further, as starting of the year 2020 has seen a slew of rape cases
continue unabated. As an example, we can see for a recent gang rape case which was
happened at Hathras, Balrampur, on 1st October 2020. So, simply we can see that
there is no improvement through severe punishments also. “Death penalty does not
act as a deter to rape cases”- This is the actual message we have understood. So that’s
why we can say that in today’s generation there is no major implication of ‘Deterrent
Theory of Punishment’.

The result of any crime is punishment. The primary purpose of punishment is to

reform criminals and turn them into good-hearted people and make them law-abiding

49
citizens.

The deterrent theory of punishment is utilitarian in nature. To understand better, for

example: ‘This person is punished not only because he has committed an illegal act
but also to ensure that no crime will be committed again.’ By making potential
criminals aware that crime is not worthwhile, the deterrent theory hopes to control the
crime rate in society.

The term ‘deterrent’ has many meanings. Deterrent can be understood as

discouragement, which attempts to stop evil minds from taking wrong and illegal
paths. Out of the five doctrines of criminal jurisprudence, that is, deterrent, retaliation,
prevention, reformation, and expiatory theories; this theory establishes the dire
consequences, i.e., punitive actions against the wrongdoer to curb the menace. Such
actions also deter criminals from committing the crime the next time.

In 2013, an article by Daniel S. Nagin, “Deterrence in the Twenty-First Century52,”

very vividly explains some of the main points of deterrent theory, which can be
summarised as the fear of being caught is far worse than severe punishment. When
the justice system has shown the power to catch criminals, this alone can become a
dreadful psychosis in the hearts of other criminals. Strategies used by police officers,
such as sentinels and hotspot policing, are really effective in overcoming the threat.
The behaviour of criminals is more likely to be affected if they see uniformed police
with handcuffs and guns rather than the strict penal provisions on paper.

It can be seen that the punishment of the death penalty has not been very effective in
deterring society’s most heinous crimes over the years. In the face of the increasing
number of rape cases over the past few decades, it is very frustrating that crime has
not been completely stopped. Some socially rational thinkers might argue that crime
has been stopped to some extent. However, in a civilised society like ours, where we

52
Vol. 42, No. 1, Crime and Justice in America 1975–2025 (August 2013), pp. 199-263.

50
talk about internationalism, social networks at our fingertips, and advances in modern
high-tech science and whatnot, will there be a place for a crime where the very basic
rights of human existence are denied to the better half of society? The continuous
worry about the increased rate of crimes disallows a fearless living to the weaker (yet
stronger) sex of the society. There is no end to this, but the legal system is incessantly
improving its laws, policies, procedures, and interpretations to curb crime and make
our society more civilised and decent. After all, it is only when society is civilised
then the laws on humans will reflect.

5.1. TYPES OF DETERRENCE

There are two types of deterrence: –

 Specific deterrence

This type of deterrence acts on a specific individual. The idea of ​ ​ specific

deterrence is that when a perpetrator is severely punished for his misconduct, he will
not be tempted to commit similar crimes in the future. For example, if an armed
robber is sentenced to 8 years in prison, the specific deterrence makes it less likely
that he will commit another armed robbery when he is eventually released. However,
research shows that the effectiveness of specific deterrents varies from situation to
situation.

 General deterrence

General deterrence is designed to deter the public from committing the same crimes
as those already convicted of such offences. General deterrence is more focused on
teaching lessons to the public and not just individuals accused of a crime. The idea is
that if an individual is severely punished, the public will see the severe punishment
and be dissuaded from engaging in the same or similar activities. A good example is
the death penalty. When a criminal is sentenced to death for a crime, such a sentence

51
prevents the public from committing the same or similar crimes.

5.2. DETERRENT THEORY IN CONTEXT OF JURISPRUDENCE

The concept of deterrent theory can be simplified by the work of philosophers such as
Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), and Jeremy Bentham
(1748-1832). These social contract thinkers give the basis of modern deterrence in
criminology.

In the words of Hobbes, he thought that people generally pursue their own self-
interests, such as material interests, social reputation, etc., and make enemies
regardless of whether they harm others in the process. This often leads to conflict and
resistance as people are determined to pursue their own interests. To elude this,
people agree to let go of their egocentricity until everyone is doing the same thing.
This is called the “social contract.” According to social contract theory, individuals
are punished for breaking the law, and a deterrent is a reason for upholding the
agreement between the state and the people in the form of a social contract.

Cesare Beccaria believed that when discussing punishment, in order to have a

deterrent effect or deterrent value, the proportion of crime and punishment should be
equal. He followed Hobbes and other 18th-century enlightenment writers by arguing
that laws should be judged on their propensity to afford “the greatest happiness
shared by the greatest number.” Since people are usually selfish, they will not commit
crimes if the cost of committing crimes outweighs the benefits of engaging in
undesirable acts. If the sole purpose of punishment is to prevent crime in society,
Beccaria argues, “the punishment is unjust when it is more severe than what is
necessary to achieve deterrence.” Excessive strictness will not reduce crime; in other
words, it only increases crime. In Beccaria’s view, prompt and definitive punishment
is the best way to prevent and control crime; punishment for any other reason is
capricious, redundant, and repressive.

52
Jeremy Bentham, a contemporary of Beccaria, was one of the most prominent
intellectuals of the 18th century. Bentham believed that morality is what promotes
“the greatest happiness of the greatest number,” a common expression of Beccaria. In
Bentham’s view, the duty of the state is to “promote the happiness of society by
punishing and rewarding.” Like Beccaria in Italy, Bentham was concerned about
arbitrary punishment and barbarism found in the criminal codes of his time in
England. He asserts that all punishments are inherently evil unless the punishment is
to avoid a greater evil or to control the criminal’s behaviour. Simply put, the law’s
purpose is to increase people’s happiness and reduce the community’s suffering.
Penalties that exceed those necessary to deter illegal conduct are unreasonable.

5.3. COMPONENTS OF THE DETERRENT THEORY

Severity
Severity indicates the degree of punishment. To prevent any crime, criminal law must
emphasize punishment to encourage citizens to obey the law. The severity of
punishments has long been considered a key factor in deterring criminal behaviour.
As a result, the legislature relies on the use of harsh sanctions to deter crime.
However, until the 1960s, few studies examined the deterrent effect of harsh penalties.
Preliminary research supports the theory that harsh punishments can deter crime.
Multiple studies examining homicide rates have found that the severity of penalties
for homicide acts as a deterrent. When the examination expanded beyond homicide, it
was a different scenario altogether. The severity of the sentence had a positive impact
on crimes such as rape, battery, theft, robbery, and burglary. That is, the severity of
the punishment did not deter crime. If anything, it would have the opposite effect.
Severe penalties can be used for other valuable purposes in criminal justice policy.
They can incapacitate certain people and prevent them from committing crimes for a
certain period of time; they can publicly condemn certain actions; or they may
provide an opportunity to provide rehabilitative treatment. However, some studies

53
have found that harsh penalties rarely, if ever, have a deterrent effect. In essence,
severity includes making a punishment harsh enough that an audience will be fearful
of receiving it. If punishment is too brutal, the crowd may “cry foul” and dissent; if
it’s too lenient, it may not prevent test cheats and pirates from perpetrating their
misdeeds.

Certainty

The certainty of punishment is often considered more important than the severity of
the punishment. Research shows that certainty is a far greater deterrent than severity.
In terms of certainty, subjective certainty is more important than objective certainty.
That is, one’s belief about whether punishment is likely is more important than the
fact that punishment is, or is not, actually likely. This subjective belief may come
from the public, but more often, it comes from personal experience or anecdotal
information from others in the community.
Perceptions of risk can also be influenced by substance use, the presence of peers, and
other situations that affect a person’s emotional responses. As with severity,
increasing the certainty of punishment appears to lead to diminishing returns. As
Becker points out, there is a balance in terms of certainty. Raising the probability of
arrests and convictions to 100% would have huge societal costs, including paying for
a vast police force and giving up personal privacy and freedom.

Celerity

The punishment for any crime must be swift to deter the crime. Celerity, the speed at
which a person is punished for breaking the law, has received the least attention in the
literature. Research suggests that the speed of punishment may not be a deterrent
effect. At least one study showed that individuals prefer to get their punishment over
as early as possible. If this is correct, delayed punishment may be seen as a worse
consequence than immediate punishment.

54
5.4. CAPITAL PUNISHMENT AND DETERRENT THEORY IN
INDIA :

The Supreme Court in State of Karnataka v. Sharanappa Basanagouda Aregoudar

(2002)53 rightly stated that:
“The sentence imposed by the court should act as a deterrent on potential offenders
and should be commensurate with the seriousness of the crime. Of course, when it
comes to sentencing, courts have the discretion to assess a broad and diverse range of
facts that may be relevant for fixing the quantum of sentence, but that discretion must
be exercised with due regard to the wider interests of society, and needless to say,
passing of sentence is probably the most public face of the criminal justice system.
Courts have been reminded of the need to have punishments having a deterrent effect,
especially for certain categories of crimes.”

For example, in the case relating to Section 364A, the Supreme Court ruled that in
cases involving kidnapping for ransom, “although kidnapping did not result in the
victim’s death, the crime required a deterrent punishment. Given the kidnapping of
young children for ransom, the legislature, in its wisdom, provided for stringent
sentences.” On the other hand, action must be taken as harshly as possible, and the
courts are obliged. Protecting society and deterring perpetrators are the express goals
of the law and must be addressed by imposing appropriate penalties. The court, at
first instance, shall consider all relevant facts and circumstances affecting the
sentencing and proceed to impose a sentence according to the seriousness of the
offence.

There is no denying that “punishments should be made according to the gravity of the
crime,” as the Supreme Court observed in State of M.P v. Bala@ Balram (2005)54.

53
2002 AIR SCW 1413
54
2005 AIR SCW 4952.

55
Such an approach is important to establish that a civilised society does not revert to
the days of “eye for an eye and tooth for a tooth.” The lack of just punishment may
prompt victims or their loved ones to seek retaliation, and that is exactly what is being
sought to be prevented by the criminal justice system we have adopted. This
philosophy is embedded in our law and jurisprudence, and it is the duty of the
judiciary to take this into account, the court recalled. The Supreme Court has
repeatedly stated that the sentence must be commensurate with the crime and that it is
the court’s responsibility to impose an appropriate sentence based on the extent of the
crime and the desirability of imposing such punishment.

Amid the chorus of reform measures, the Supreme Court emphasized “deterrent.” For
example, in State of Madhya Pradesh v. Munna Choubey & Anr. (2005)55, the
Supreme Court found that imposing sentences without regard to their impact on social
order may actually be futile in many cases. The social impact of crime, such as crimes
against women, fraud, kidnapping, embezzlement of public funds, treason, and other
crimes of moral corruption, or crimes that have a major impact on social order and
public interests, cannot be ignored, and per se require exemplary treatment. Any
stance that imposes meagre penalties or over-benevolent view because of a lapse of
time in respect of such offences will be counterproductive in the long run and against
societal interests that need to be cared for and strengthened by a string of deterrents
inbuilt in the sentencing system.

According to the deterrent theory, people are punished with the view of conveying a
‘message’ to the rest of society that “it is wrong to act in certain ways, and if a person
behaves in one of these ways and does not obey the law, society will punish him/her
accordingly. The manifestation of social disapproval is punishment.” It is believed
that conveying the message ‘creates a conscious and unconscious suppression of
criminal behaviour.’ In the long run, this has led to the widespread perception of
‘habitual obedience’ at large to the laws that prescribe certain acts by way of meting

55
2005 (2) SCC 710.

56
out punishments. However, many people argue that it is debatable how far
punishment acts as a deterrent among the people in any given society.

For instance, in Shashi Nayar v. Union of India and Ors (1991)56, one of the
arguments put forth against the death penalty because it violates Article 21 of
the Indian Constitution, the death penalty does not serve a social purpose, and the
barbaric penalty of death should not be given to anyone because it has no deterrent
effect. It has been argued that the growing number of cases, despite strict criminal law
provisions, indicates the failure of the deterrent theory.

In the current distress of despair and chaos, if deterrent punishments are not restored,
the country will be in chaos, and criminals will be released, endangering the lives of
thousands of innocent people across the country. Despite all the resources at its
command, it will be difficult for the state to protect or safeguard the life and liberty of
all citizens if criminals are let loose, and deterrent punishment is either removed or
mitigated.

As a result, there is disagreement about the necessity and effectiveness of the theory.
However, in the primacy of punishment in legal thought, the goal remains the
protection of society, and other goals are often secondary in nature when sentences
are being decided.

State of Madhya Pradesh v. Ram Krishna Balothia (1995)57: In this case, the Supreme
Court held that in cases of dowry deaths, the court should not award lesser
punishment based on the socio-economic background or family circumstances of the
accused. The court emphasized that deterrence is an important aspect of punishment
and that treating dowry deaths leniently could encourage the perpetuation of the
heinous crime. This case reinforced the deterrent theory of punishment in cases
involving dowry deaths.

56
AIR 395, 1991 SCR
57
1995 AIR 1198, 1995 SCC (3) 221

57
In the case State of Maharashtra v. Chandraprakash Kewalchand Jain (1990)58:the
Supreme Court confirmed the importance of deterrent punishment in cases of
economic offenses. The court held that the primary purpose of punishment in such
cases is to deter potential offenders and send a strong message to society that
economic offenses will not be tolerated. This case emphasized the need for stringent
punishment to deter white-collar criminals.

Further in the case Kartar Singh v. State of Punjab (1994)59: the Supreme Court dealt
with the constitutionality of the Terrorist and Disruptive Activities (Prevention) Act,
1987 (TADA). The court observed that preventive detention and stringent punishment
are necessary to deter individuals involved in terrorist activities. This case recognized
the importance of deterrence in dealing with terrorism-related offenses.

5.5. DRAWBACKS OF DETERRENT THEORY

The deterrent theory failed because the victims in cases of murder, rape, etc., were
helpless and the accused were not reported. Deterrent theory can only deter those who
are not determined enough to act on their beliefs. Despite all kinds of deterrents,
criminal minds still act on a whim at times. Penalties and sanctions have simply
become mere obstacles that criminals have to overcome. This is clearly not what the
Indian criminal justice system needs. Despite the harsh penalties and fines, the
number of criminal cases has been increasing.

Some major drawbacks are:

Punishment does not create fear in the criminal’s mind once the punishment is over.
This type of punishment does not create fear in the hardened offenders’ minds.

58
1990 AIR 658, 1990 SCR (1) 115
59
1994 SCC (3) 569, JT 1994 (2) 423

58
Arouse sympathy in the minds of the public for criminals.
Example of the deterrent theory of punishment: rape cases continued to rise after the
Nirbhaya verdict in Mukesh & Anr v. State For Nct Of Delhi & Onr
(2017)60. According to the deterrent theory, the main goal is ‘to deter crime by
inciting fear or setting an example for society. Now, the death penalty is a severe
punishment. In the Nirbhaya case, the court sentenced four criminals to death for
gang rape. Although this is a good example for future criminals who would consider
committing crimes such as rape in the future. So, according to this theory, crimes like
rape should not have happened after the Nirbhaya verdict. But they are still happening.
Rape cases in our society are increasing every day. The Nirbhaya gang-rape judgment
was seen as justice for ‘India’s daughter,’ even though the decision came after several
years. But it seems to go further, as rapes continue unabated, more specifically from
early 2020 to 2022. So we can simply see that even harsh punishment does not
improve anything. ‘The death penalty doesn’t stop rape’ – that’s the real message we
get.

Deterrence, also known as preventive punishment, is a concept in criminal law that

aims to deter individuals from committing crimes by imposing penalties or
punishments for their actions. However, there is ongoing debate on the effectiveness
of deterrence as a form of punishment. In India, the Code of Criminal Procedure,
1973 lays down the procedure for carrying out criminal trials, while the Indian Penal
Code, 1860 defines the punishments for various offences. These laws do not
explicitly address the effectiveness of deterrence as a punishment, but they provide
for various forms of penalties depending on the gravity of the offence. Critics argue
that deterrence punishment may not always be effective because:

1. Lack of certainty: Some argue that deterrence fails when the likelihood of
being caught and punished is low. If individuals believe there is a low risk of

60
5 May, 2017

59
 getting caught or if they have successfully evaded punishment in the past,
deterrence may not act as a deterrent.

2. Lack of swiftness: Delayed punishment may diminish its deterrent effect.

When there is a significant gap between the commission of a crime and the
punishment, individuals may not associate the consequence with their actions,
rendering deterrence less effective.

3. Lack of proportionality: Critics contend that the severity of the punishment

should be proportionate to the crime committed. If punishments are
disproportionately harsh, they may not provide effective deterrence. Similarly,
if punishments are perceived as too lenient, they may fail to deter potential
offenders.

4. Individual factors: Some individuals may not be deterred by the threat of

punishment due to psychological, social, or economic factors. For example, an
individual suffering from mental health issues or facing extreme poverty may
find themselves more driven by immediate circumstances than the potential
consequences of their actions.

5.6. THE 'RAREST OF THE RARE' DOCTRINE

In 1980, in the Bachan Singh case the apex court proposed the rarest of rare doctrine
and since then life imprisonment is the rule and death penalty the exception as in
India it is awarded only in the gravest of cases.In the Machhi Singh case, the court
laid down certain criteria for assessing when a case could fall within the purview of
rarest to rarest. The criteria are analyzed below:

60
1) Manner of committing murder - when the murder is committed in an extremely
cruel, ridiculous, diabolical, rebellious or reprehensible manner so as to arouse
intense and extreme outrage of the community; For example,
a. When the victim's house is set on fire with the intention of baking her alive.
b. When the victim is tortured for inhuman acts leading to her death.
c. When the victim's body is mercilessly mutilated or cut into pieces.

2) Motive for murder - When a murder is intended to be a total depravity and

cruelty; For example,
a. A hired killer is killing just for the reward of money.
b. A cold-blooded murder involving a thoughtful design to gain control of property or
some other selfish gain.

3) Socially heinous nature of crime - When a person belonging to a backward class

is murdered. Cases of burning of the bride, popularly known as dowry death, are
also included in this.

4) The magnitude of the crime - when the proportion of crime is very high, for
example, incases of multiple murders.

5) Personality of the Victim of the Murder - When the Victim of the Murder is an
innocent child, a helpless woman or person (due to old age or infirmity), a public
figure, etc.

The scope of the principle of rarest of rare:

In Jagmohan Singh v State of U.P. 197361, the Supreme Court upheld the
constitutionality of the death penalty, holding that it is not merely a deterrent but
marks the rejection of the crime on the part of the society. The Court also felt that
Indians could not afford to experiment with abolishing the death penalty. Again

61
1973 AIR 947

61
constitutionalism was upheld in the case of Bachchan Singh. Thus, the following
propositions emerged from the case of Bachchan Singh:
i. The extreme step of imposing the death penalty need not be applied except in cases
of extreme conviction.
ii. Before opting for the death penalty, the circumstances of the offender should be
kept in mind. (increasing and decreasing conditions)
iii. Life imprisonment is the rule and the death penalty is the exception. In other
words, the death penalty should be imposed only in cases where life imprisonment
proves to be a wholly insufficient punishment in relation to the exact circumstances of
the offence.
iv. There is a need to prepare a balance sheet of all the stimulating and mitigating
conditions and the mitigating conditions should be given full importance so that a
balance can be struck between the two.
Cases in which there was involvement of an unusual offense which is unusual for any
prudent person or any person in the society with a proper mind, as well as for lack of
alternative punishment for the offence, which is equivalent to the Court Later coined
as "rare to rare" condition. The court further widened the scope of rarest to rare by
mentioning five criteria within which the rarest to rarest case was applied.

Establishment of the doctrine

The doctrine of 'the rarest of rare' case was established in the landmark case of
Bachan Singh vs State of Punjab, 1980. Where the constitutional bench raised
question is regard to the constitutional validity of death penalty for murder under
section 302 of IPC,1860 . In Kehar Singh vs Delhi administration, the Apex Court
affirmed capital punishment granted by the trial court and kept up by High Court to
the three appellants Kehar Singh,Balbir Singhand Sawant Singh for planning
conspiracy and attaining murder of Smt .Indira Gandhi under section 302,120B,34
and 109 of IPC,1860.The court held that murder is one of the rarest of rare cases in
which extraordinary punishment is sought for a professional murderer and planner.

62
Dimensions of the doctrine

According to the Supreme Court, the crime must be viewed from different angles
such as the manner of committing the murder, the motive for the murder, the anti-
social or socially abhorrent nature of the crime and the horrors and personally of the
victim of the murder. Generally Courts award life imprisonment to convict in a
murder case. Only in rarest of real cases murder convicts are given death penalty.

Working of the 'Rarest of Rare Doctrine'

The Supreme Court of India formulated the rare to rare cases doctrine in the Bachan
Singh case to guide the discretion of sentencing judges in the choice of life or death
sentences. It did not embellish on what the rarest of rarest cases are. Thus the question
of providing guidelines for judges to exercise their discretion remained unresolved,
leading to more confusion and contradiction in judicial decisions. Ultimately, in the
machhi Singh case the supreme court provided a classification of cases from rarest to
rarest. The essence of earlier judgements in the machhi Singh case which made a
gentle attempt to provide equality of such classification is retained. In the judicial
judgement of Dharm bhagre vs State of Maharashtra Dot had held that the question
of punishment is a matter of judicial discretion. Relevant considerations in
determining punishment include the motive, the magnitude of the crime, and the
manner of its commission. Similarly in the case of Jagmohan Singh vs State of UP.
Justice palekar speaking for a unanimous court,said that the death penalty can be
given where the murder was disabolical in conception and brutal in its execution or
was of a person of high status thereby shaking the society. The intention was to
impose the death penalty in the worst of such cases.

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5.7. ANALYSIS OF CONSTITUTIONAL VALIDITY OF THE

'RAREST OF RARE DOCTRINE'

The validity of the death sentence was sought only because it was under the watch of
the Supreme Court in Jagmohan Singh v State of Uttar Pradesh. Section 302 of the
IPC was tested as a violation of Articles 14, 19 and 21 of the Constitution. The court
upheld the death penalty constitutional and held that the right to life is the setting
stone of opportunity recognized under Article 19 and no law can be sanctioned which
takes away the life of a person except That he is sensible and in open intrigue. As
such, it is difficult to believe that the death penalty was so bizarre or not needed in
broad daylight. If the entire strategy of awarding death sentence to an offender under
CrPC is valid, then the inconvenience of capital punishment as per the technique
created by law cannot be held to be illegal. It was argued that the Supreme Court in
Maneka Gandhi v Union of India62 has given a more explanatory measure to Articles
14, 19 and 21, and through appraisal of their interrelationship in each law of
corrective imprisonment, both in their procedural and considerable approach. Air
should be given. Each of the three articles. In any case, the Court rejected this
argument. It was held that Article 19, not at all like Article 21, does not deal with the
right to life and personal liberty and Section 302 is not appropriate to decide about the
validity of the provisions of the IPC. With respect to Article 21, it was held that in the
said article, the establishing fathers felt the prerogative of the State to deprive any
person of his life or personal liberty in accordance with a just, fair, sensible and
impartial technique established by law. did, and there are some indications in the
Constitution that show that the framers of the Constitution were perfectly sensible
about the existence of capital punishment, for example, entries 1 and 2 in List II,
Article 72(1)(c), Article 161. and Article 34.

1978 AIR 597.

62

64
Requirement of the Doctrine

According to Article 6 of the International Covenant on Civil & Political Rights, by

the General Assembly Resolution 2200A (XXI) of 16th December 1966, every living
being has an inalienable right to life and must not be awarded a death penalty. But
certain countries, that have not yet abolished the culture of Death Penalty can only
pronounce such a judgment “for the most serious crimes in accordance with the law
in force at the time of the commission of the crime and not contrary to the provisions
of the present Covenant and to the Convention on the Prevention and Punishment of
the Crime of Genocide”.

5.8. 'RAREST OF RARE' DOCTRINE IN INDIA

What makes a case the rarest of the rarest is a controversial subject. There is no clear
definition of this principle, though it has been applied considering the extent of the
offense committed by the offender. There are different approaches to the death
penalty in India, they neither support nor avoid the issue altogether by limiting
themselves to the rarest of the rarest. But things got complicated when crime
increased and extreme acts of crime became common. Various criteria have been laid
down by the Supreme Court of India in the Machi Singh case. The death penalty does
not violate the provisions of Article 21 of the Indian Constitution as it states that the
right to life and personal liberty shall be given to any person so much as not to violate
the rights of other people. The Law Commission report in 2015 stated that the
concept of capital punishment should be abolished apart from terrorism-related
offenses in order to protect the nation. Since India only carries out the death penalty
in the rarest of rare cases, the rate of implementation of the death penalty is very low,
as we can see that between 2004–2015 only 4 were executed.

65
 CHAPTER 6
ALTERNATIVES FOR DEATH PENALTY

6.1. THE DECLINING USE OF THE DEATH PENALTY

More and more states are moving towards a future without the death penalty. There
has been a global trend towards the abolition of the death penalty and a restriction in
the use of capital punishment over the last fifty years. At the time of writing
1401states and territories have abolished the death penalty in law or in practice and
582 retain the death penalty. There are 823 states that have ratified international and
regional instruments that provide restrictions on the use of the death penalty and aim
at its ultimate abolition; 22 countries carried out executions in 2013.

6.2. WHEN STATES SELECT ALTERNATIVE SANCTIONS TO

THE DEATH PENALTY

The offences that used to attract the death penalty are often serious and can evoke
public outrage. Offenders are likely to be sentenced to ‘life’, life without the
possibility of parole (LWOP) or to another indeterminate sentence, following the
abolition of the death penalty or implementation of a moratorium. Governments often
try to appease a concerned public by taking a ‘tough on crime’ approach, without
proper consideration of whether the sanction is necessary, proportionate, just or
compatible with international human rights standards. It is often considered a
sufficient benefit if the convicted person’s life has been spared. However, this
viewpoint ignores the dignity of the individual, the rehabilitative goal of
imprisonment and the related ‘right to hope’ that one could one day be released and
make something better of one’s life.

66
Furthermore, states that introduce such alternatives to the death penalty may not have
fully considered the different options available in responding to the most serious
crimes. The harshest sentences are not necessarily the best: particularly where
punishments are arbitrary or selected on purely punitive grounds, they may be
incompatible with states’ responsibilities towards their citizens or obligations under
international law.

6.3. WHAT SHOULD A STATE CONSIDER WHEN SELECTING

ALTERNATIVE SANCTIONS TO THE DEATH PENALTY?

While sentencing usually has a punitive element, the nature of the sentence should be
proportionate to the seriousness of the offence and individualized to the particular
case, including the circumstances in which it was committed. Additionally, and as
stated in the International Covenant on Civil and Political Rights (ICCPR) Article
10(3) and elsewhere: ‘The penitentiary system shall comprise treatment of
prisoners the essential aim of which shall be their reformation and social
rehabilitation’. Sentences should not, therefore, be used to serve wider political
purposes or purely to punish the offender. Effectively locking away offenders for life
and creating the belief that prisons can solve all problems of crime and social control
fails to tackle the structural roots of crime and violence. Sentences should provide the
offender with a meaningful opportunity for rehabilitation and reintegration back into
society, in order to be able to lead law-abiding and self-supporting lives after release.
The UN Crime Prevention and Criminal Justice Branch’s 1994 report Life
Imprisonment makes a number of recommendations for consideration by national
jurisdictions in this regard. The report states that penal policy should only allow for
life imprisonment with the purpose of protecting society and ensuring justice, and
should only be used on offenders who have committed the most serious crimes.

67
6.4. UNDERMINING FUNDAMENTAL HUMAN RIGHTS
STANDARDS AND NORMS

Some state responses to crime, once the death penalty is abolished, can ultimately
undermine fundamental human rights standards and norms. International standards
require that no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment (Universal Declaration of Human Rights Article 5); that all
those detained shall be treated with humanity and with respect for the inherent dignity
of the human person (International Covenant on Civil and Political Rights (ICCPR)
Article 10); and that the treatment of prisoners will have as its essential aim their
reformation and social rehabilitation (ICCPR Article 10(3)). However, life and long-
term prisoners are often subjected to worse conditions and treatment than other
prisoners. The conditions are often highly restrictive and damaging to physical and
mental health, with no effort or willingness to invest in rehabilitation or to consider
alternative sanctions or early release. The length of their sentences can mean that
prison authorities do not see the value in providing rehabilitative programmes for life
or long-term prisoners, as it will be many years or decades before they are released, if
at all. However, such attitudes ignore the fact that keeping people in prison for years
with no meaningful activity will make it harder for them to reintegrate or benefit from
such programmes at a late stage of their sentence. It also risks damaging the mental
health and wellbeing of the prisoner. Being sentenced to prison is punishment in itself:
the conditions of imprisonment and the treatment received in prison must not amount
to further punishment. Separately, there is a new and growing body of jurisprudence
that limits the application of (in particular) LWOP sentences. The UN Convention on
the Rights of the Child states in Article 37(a) that ‘No child shall be subjected to
torture or other cruel, inhuman or degrading treatment or punishment. Neither capital
punishment nor life imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age’. Court rulings in the
USA have held (in 2010 and 2012) that LWOP for offences committed under 18
breaches that country’s constitutional ban on cruel and unusual punishment.

68
6.5. ALTERNATIVES TO CAPITAL PUNISHMENT

The fundamental reason for adopting an alternative to the death penalty is the
possibility to reform. Often offenders barring hard-core criminals or history sheeters
repent after spending time in prison and having their liberty severely curtailed. This
can be gauged from offenders behaviour in prison, his attitude towards inmates and
prison authorities.

6.5.1. LIFE IMPRISONMENT: Section 53 of the IPC is an effective alternative to

Death Penalty is life imprisonment. This includes Imprisonment until the natural
death of a convict, with no possibility of release i.e. without parole. This is
sometimes called life without parole (LWP). Similarly, there can be life
imprisonment with the possibility of parole. Rationales advanced for life
imprisonment, as a form of the most severe punishment, includes deterrence,
retribution, restoration and incapacitation (stopping an offender from reoffending in
the interests of public protection).

However, even Life imprisonment is unnecessarily punitive in many cases, especially

in cases of non-violent crimes, and does not satisfy the principle of proportionality.
LWOP, in particular, raises issues of cruel, inhuman and degrading punishment and
undermines the right to human dignity by taking away the prospect of rehabilitation.
Therefore LWOP (life without parole) also attracts similar objections as the death
penalty as it undermines the inherent right to life. To lock up a prisoner and take away
all hope of release is to resort to another form of a death sentence. Prisoners can leave
prison only after they die. LWOP does not respect the inherent human dignity of the
offender.

6.5.2. LONG-TERM IMPRISONMENT: Another variant of life imprisonment is

the long-term sentence for a fixed number of years like 40 years in Croatia, after
which the prisoner is released either with or without further restrictions (such as
requirements to report to the police at regular intervals). Brazil, Colombia, Croatia,

69
El Salvador, Nicaragua, Norway, Portugal and Venezuela also have no life sentence.
However, prisoners in these countries may serve long prison sentences, which can
even exceed the minimum terms that must be served in some other countries for
persons sentenced to life.

6.5.3. RIGOROUS IMPRISONMENT: Rigorous imprisonment, characterized by

stringent confinement and restrictions, has emerged as a potential substitute,
reflecting shifts in societal values towards more humane and rehabilitative approaches
to criminal justice. The legal frameworks governing the use of the death penalty and
rigorous imprisonment vary across jurisdictions, contributing to diverse perspectives
on the appropriateness of each method. Abolitionist movements have gained traction
globally, prompting many countries to either abolish or impose moratoriums on the
death penalty, aligning with the broader shift towards human rights-based approaches.

Ethical considerations play a pivotal role in the debate, with proponents of the death
penalty emphasizing retribution and the ultimate expression of justice. In contrast,
opponents raise concerns about the sanctity of life, the potential for wrongful
executions, and the broader impact on society's moral fabric. Rigorous imprisonment,
with its emphasis on punishment while preserving life, aligns with a human rights
approach that opposes the irreversible nature of capital punishment. The question of
deterrence and prevention further complicates the issue, with some arguing that the
death penalty serves as a deterrent for potential offenders. However, empirical studies
provide mixed evidence on the effectiveness of capital punishment in deterring crime,
leading to discussions on the merits of rigorous imprisonment as a more humane and
practical alternative.

The global community, influenced by human rights principles, has increasingly

condemned the death penalty, with organizations such as Amnesty International
advocating for its abolition. In this context, rigorous imprisonment gains prominence
as a more humane alternative that respects the fundamental rights of individuals while
still addressing criminal behaviour. International perspectives on the death penalty
vary widely, and the pressure exerted by the global community has led numerous

70
countries to reconsider their stance on capital punishment, viewing life imprisonment
as a more acceptable substitute.

Cost considerations add a pragmatic dimension to the discourse, as the expenses

associated with legal proceedings and maintaining death row facilities contribute to
arguments favouring alternatives like rigorous imprisonment. Proponents of life
imprisonment contend that it is a more cost-effective and sustainable option, allowing
resources to be redirected towards crime prevention and rehabilitation programs that
address the root causes of criminal behaviour. The spectre of wrongful convictions
looms large in discussions surrounding the death penalty, underscoring the
irreversible consequences of capital punishment. Rigorous imprisonment, while not
without its flaws, provides a mechanism for rectifying errors in judgment and offers a
more flexible approach to addressing potential miscarriages of justice.

Public opinion, a dynamic force in shaping criminal justice policies, exhibits a range
of perspectives on the death penalty and rigorous imprisonment. While some
advocate for the retribution and perceived justice offered by capital punishment,
others express reservations about its moral implications and the potential for systemic
biases in its application. Rigorous imprisonment, particularly when coupled with
transparent and fair legal processes, may align more closely with evolving societal
values that prioritize rehabilitation and recognize the potential for individuals to
reform and contribute positively to society.

6.5.4. DOUBLE LIFE IMPRISONMENT: prisoners has also one life to live so
prisoners cannot serve consecutive sentences of life imprisonment. But according to
Supreme court constitutional bench life sentence would be twice or thrice of the
heinous crimes like rape murder, etc. The court said that multiple life imprisonment
will be served consecutively. Chief Justice of India has interpreted the law that in
multiple imprisonment prisoners would be anomalous and irrational. In the case
Shatrughna Baban Meshram v. The State Of Maharashtra 63
In Nagpur city the 21

63
(2021) 1 SCC 596

71
year old man raped her 2 year niece and murdered her. The case was filed in the
Bombay high court. The sentence was the first of its kind, given under Section 376A
of the Indian Penal Code, under an amendment made in light of the gruesome
Nirbhaya rape case in delhi( 2012 Delhi gang rape). The Nagpur bench confirmed the
rare double-death and double-life sentence to the 21 year old man. In the Divison
Bench, comprising Justice Bhushan Gavai and Justice Prasanna Varale confirmed the
verdict of a Yavatmal sessions court sentencing Shatrughan Masaram to death for
raping and murdering his two year child.

6.5.5. AN INDETERMINATE TERM OF IMPRISONMENT: Another alternative

is to sending an offender to prison to serve a minimum number of years and after
serving that period they can be considered for release, but the review does not
guarantee a release This means that in effect prisoners stay in prison until they are
considered safe to be freed, and are not given a release date. This thus involves the
discretion of authorities, which might lead to unintended negative consequences.

Prolonged detention without any hope of release results in de-socialization, the loss of
personal responsibility, an identity crisis and an increased dependency on the penal
institution, will reform, especially when the offender shows apparent repentance,
apart from susceptibility to mental illness, including depression and suicidal
tendencies.

According to the Sentencing Project64, crime prevention policy which accepts keeping
a prisoner for life even if he is no longer a danger to society would be incompatible
with modern principles on the treatment of prisoners and thwart the reintegration of
offenders into the society as a normal person.

The sentencing project describes “a life without parole” as a “death by another

name”. According to Article 10(3) states ICCPR The essential aim of the penitentiary
system i.e. the prison system of a nation shall be the reformation and social

64
One in Five: Disparities in Crime and PolicingBy Nazgol Ghandnoosh, Ph.D. and Celeste
Barry,November 2, 2023

72
rehabilitation of the offender. Thus Life-imprisonment should be subject to review of
some sort.

6.5.6. RELEASE WITH RESTRICTIONS: If an offender is released the offender

may subsequently be subjected to supervision for a limited or lifelong period. Failure
to comply with supervision conditions can lead to the convicted person being returned
to prison, to serve a prison sentence until the end of natural life or until a review of
his conduct by appropriate authorities. E.g. According to Article 110(3) of Rome
Statute individuals sentenced to life imprisonment by the International Criminal Court
will not be considered for a conditional release unless they have served for 25 years
of their life imprisonment.

6.5.7. PREVENTIVE DETENTION: Preventive Detention Means a person

detained to prevent him from committing a crime. Norway has a maximum sentence
of 21 years but, it can hold offenders beyond that time in preventive detention. Such
detention is imposed in those cases where it is suspected that the offender could pose
a particularly high risk to the public following release. It may be limited to cases
where a serious violent or sexual offence was committed in the first place, and the
preventive element of the sentence must (in several jurisdictions) be included in the
original sentence. This form of imprisonment should not be confused with pre-trial
preventive detention, where a person is imprisoned without having previously been
convicted of an offence.

In Norway, once someone sentenced to preventive detention has completed a

minimum term of imprisonment (between 10 and 21 years), a review is conducted
and the sentence extended by five years if deemed necessary for protecting the public.
This process is repeated every five years, with the possibility that some prisoners may
be held for the rest of their lives.

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6.5.8. MANDATORY AND DISCRETIONARY LIFE SENTENCES : Where a
‘life’ sentence is applied, jurisdictions generally make the distinction between a
mandatory and discretionary sentence: offences which automatically carry the
sentence of life imprisonment and those where sentences are subject to the discretion
of the judge, depending on the personal characteristics of the offender, the
circumstances of the case and the gravity of the crime committed. Effectively, a
mandatory sentence is one where judicial discretion is limited by law. Mandatory
minimum life sentences are often reserved for very serious offences such as murder,
as is the case in New Zealand, Germany and the UK. In Canada and many other
countries, other serious offences such as manslaughter, aggravated sexual assault and
kidnapping carry a sentence of life imprisonment, but as one among several possible
sentences. In Kenya, life imprisonment was introduced for offences of rape and
‘defilement’ under the Sexual Offences Act 2006. However, the offences all include a
sentence range, to be determined by the judge, between a minimum sentencing option
and life imprisonment. The reasoning behind mandatory sentencing is that a crime is
considered so heinous that lawmakers seek to ensure a severe minimum sentence
whatever the circumstances, to act as a deterrent against future crimes and to ensure
consistency within a jurisdiction. However, if the court cannot take into consideration
all the circumstances of the offender and case, then it will mean that relevant
mitigating or aggravating factors cannot be taken into account. (Relevant factors may
include the nature and circumstances of the offence, the defendant’s own individual
history, their mental and social problems and their capacity for reform.) It means that
judges cannot use their knowledge of the cases before them and of criminal justice in
general to make decisions that are tailored and proportionate. A court should impose a
life sentence only for the most serious crimes, where there are no significant
mitigating circumstances.

6.5.9. DE FACTO LIFE SENTENCES : Depending on the convicted person’s age

and state of health and the conditions of detention, a long, determinate prison
sentence, or a number of sentences served consecutively, might be considered a de
facto life sentence. This is the case in South Africa, where multiple, determinate

74
sentences can amount to the same or even longer prison terms than life imprisonment;
however, parole must be considered after 25 years. In Uganda, legislation provides
that offenders sentenced to life imprisonment must be released after 20 years.
However, following the abolition of the mandatory death penalty in the case of Susan
Kigula and others v Attorney General65, judges are passing multiple life sentences or
resorting to the use of very long determinate sentences of up to 100 years. In a few
cases they have passed sentences for the natural life of the convict, to which the 20-
year limit apparently does not apply. As of 19 November 2013, seven prisoners were
sentenced for the whole of their natural life (four women and three men). The
offences that carry very lengthy sentences include murder, aggravated robbery, rape,
aggravated defilement and kidnapping with intent to murder. In the USA, in those
states that do not enshrine LWOP sentences in law, judges have implemented it de
facto through the use of consecutive life sentencing. For example, in 2000, a fraudster
in Florida was given a series of consecutive sentences totalling 845 years37 (reduced
to 835 on appeal). The use of consecutive sentences effectively removes the chance
for parole without regard to the crime’s severity. In the state of Wisconsin, the
sentencing judge has the power to set the parole eligibility date, which, in reality,
could be longer than a person’s natural life.38 A similar provision is in force in Alaska.

65
Constitutional Petition No. 6 of 2003.

75
 CHAPTER 7
INTERNATIONAL PERSPECTIVE ON DEATH
PENALTY

Death Penalty and the right to life under international law :It can be noted that, the
most of International/regional human rights instruments discourage the death penalty.
Article 3 and 5 of the Universal Declaration of Human Rights (UDHR) respectively
enshrines the sanctity of human life by affirming that ‘Everyone has the right to life,
liberty and security of person’ and ‘No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.’ Similarly, the United Nations
General Assembly (UNGA) finds death penalty violates both the right to life and right
to free from torture or cruel, inhuman or degrading treatment or punishment.

Thus, Article 6(1) of the international Covenant on Civil and Political Rights (ICCPR)
strongly suggests that abolition of the death penalty is desirable by indicating that
‘Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.’ ICCPR imposes two main
requirements constraining the use of death penalty, namely, the strict due process
requirement on the punishment and prohibition of implementing death penalty on
offenders below eighteen years of age (at the time the crime was committed) and on
pregnant women.

Preamble of the Second Optional Protocol to the International Covenant on Civil and
Political Rights, adopted by the UN General Assembly by resolution 441728 of 15th
December 1989, declares that the abolition of the death penalty contributes to the
enhancement of human dignity and progressive development of human rights. Further,
it states that parties to this convention undertake to ensure that:

76
 1. No one within the jurisdiction of a state party to the present Protocol shall be
executed.

2. Each state party shall take all necessary measures to abolish the death penalty
within its jurisdiction. In addition, the treaties aiming to end death penalty can
be listed as follows; Protocol No. 6 to the European Convention for the
protection of Human Rights and Fundamental Freedoms and the protocol to
the American Convention on Human Rights to abolish the Death Penalty.
Protocol No. 6 calls for the abolishment of the death penalty in times of peace.
The other one calls for total abolishment of the death penalty, but allow to
states to retain penalty in times of war. (Truskett, 2004) Therefore, it is clear
that the right to life is not an absolute right. A person is only entitled to have
his or her right to life protected by law and must not be arbitrarily deprived of
life. This means that there are certain circumstances in which a person may be
lawfully and non-arbitrarily deprived of his or her life.

Further, it is reasonable to argue that the all instruments concerned with the right to
life are ambivalent in their treatment of the problem of when the life of a human
being may be taken. Some documents couple the phrase ‘right to life’ with the term
‘inalienable’ or with ‘inherent’ right. It seems to be self-contradicting because while
they describe the right to life as alienable they permit death penalty under certain
circumstances. (Byrnes, 2007)

Nevertheless, a number of national courts have come to the conclusion that the
imposition of the death penalty under any circumstances amounts to cruel, inhuman
and degrading treatment or punishment. Going beyond the existing state of
international Instruments, which still seems to accept that the death penalty per se is
not cruel, inhuman or degrading treatment, they have been accepted death penalty as
a violation of their national constitutions. (Byrnes, 2007) The most prominent case in

77
this regard is State v. Makwanyane66 This case can be identified as a significant
decision of the South African Constitutional Court on death penalty. Following
statement from Justice Mahomed in this case stated that:

“…The death penalty sanctions the deliberate annihilation of life. As I have

previously said, it is the ultimate and the most incomparably extreme form of
punishment ... It is the last, the most devastating and the most irreversible recourse of
the criminal law involving as it necessarily does, the planned and calculated
termination of life itself; the destruction of the greatest and most precious gift which
is bestowed on all human kind. The deliberate annihilation of the life of a person,
systematically planned by the state, as a mode of punishment, is wholly and
qualitatively different ... it makes every other right ... permanently impossible to enjoy.
Its inherently irreversible consequence makes any reparation or correction impossible,
if subsequent events establish, as they have sometimes done, the innocence of the
executed or circumstances which demonstrate manifestly that he did not deserve the
sentence of death…”
The international perspectives on human rights regarding the death penalty can be
understood by looking at various international instruments and organizations that
advocate for the abolition or restriction of the death penalty. The Universal
Declaration of Human Rights (UDHR), adopted by the United Nations General
Assembly in 1948, emphasizes the right to life and freedom from cruel, inhuman, or
degrading treatment or punishment. While the UDHR does not explicitly address the
death penalty, it can be interpreted as advocating for its abolition based on these
principles.

1. International Covenant on Civil and Political Rights (ICCPR): This treaty,

adopted by the United Nations General Assembly, recognizes the inherent right to
life and provides protections against arbitrary deprivation of life. Article 6(1)
states that every human being has the right to life, while Article 6(2) allows for

[1995] ZACC 3, 1995 (3) SA 391 (CC), 1995 (6) BCLR 665 (CC), [1996] 2 CHRLD 164, 1995 (2)
66

SACR 1 (CC)

78
 the imposition of the death penalty only for the most serious crimes. The Second
Optional Protocol to the ICCPR aims at the abolition of the death penalty.

2. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT): Adopted by the United Nations General Assembly, this
Convention prohibits the use of torture and cruel, inhuman, or degrading
treatment or punishment. While the CAT does not specifically mention the death
penalty, its provisions highlight the importance of upholding human dignity in all
circumstances.

3. European Convention on Human Rights (ECHR): This regional treaty, overseen

by the Council of Europe, safeguards human rights within its member states. The
ECHR, in conjunction with protocol protocols, prohibits the death penalty under
all circumstances.

4. American Convention on Human Rights: This convention, adopted by the

Organization of American States, protects the rights and freedoms of individuals
in the Americas. Protocols attached to the American Convention on Human Rights
restrict or prohibit the use of the death penalty.

5. 5.African Charter on Human and Peoples' Rights: This regional human rights
instrument adopted by the African Union affirms the right to life and prohibits
torture, cruel, inhuman, or degrading punishment. While the African Charter does
not explicitly mention the death penalty, some interpretations argue that its
provisions imply restrictions on the use of capital punishment.

6. United Nations Human Rights Council (UNHRC) Resolutions: The UNHRC has
passed various resolutions calling for a moratorium on the use of the death
penalty and, ultimately, its abolition. These resolutions emphasize respect for
human rights, the right to life, and fair trial standards.

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7.1. THE CURRENT EXTENT OF DEATH PENALTY AROUND
THE GLOBE:

It has been recognized in the previous part of this paper, there is no absolute
prohibition on the imposition of the death penalty binding on all countries under
present international law. Some states have accepted binding treaty obligations not to
impose the death penalty in any circumstances and others have undertaken not to
impose death penalty subjected to the limitations.

However, there is still a minority of states that retain the death penalty. Even for those
states that retain death penalty, there are several constraints on the imposition, such as
the persons on whom it may be imposed and the procedures that must be followed.
The UN Secretary General's report on the death penalty presented to the Human
Rights Council in 2018 states that; "Some 170 States have abolished or introduced a
moratorium on the death penalty either in law or in practice, or have suspended
executions for more than 10 years."67

According to the UN, 23 states carried out at least one execution in the past decade.
(BBC News, 2018) However, Amnesty says that 142 countries have either abolished
the death penalty in law or in practice and that in the past five years 33 countries have
carried out at least one execution. (BBC News, 2018) Amnesty collects its statistics
using official figures, media reports and information passed on from individuals
sentenced to death and their families and representatives. According to those reports,
four countries were responsible for 84% of executions in 2017 (Saudi Arabia, Iraq,
Pakistan and Iran). That doesn't include China, where the statistics are a state secret.
Amnesty estimates that China carries out thousands of executions each
year. .According to the Amnesty International, 2,591 death sentences carried out in 53
countries in 2017. But in some cases the death sentences will be commuted, where
countries are reluctant to enforce the punishment.

67
(BBC News, 2018)

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Although, the death penalty is not imposing on children, there are still a number of
countries which are imposing death sentences on persons who are minors at the time
they committed the crime. For instance, people in South Sudan and Iran were
executed under 18 years of age. (Amnesty International, 2017) The imposition and
execution of the death penalty against people who are under age 18 is a violation of
International Law. Similarly, people with mental or intellectual disabilities were
executed or remand under sentence of death in several countries including Japan,
Maldives, Pakistan, Singapore and USA contrary to the international law.
The methods of execution of offenders vary considerably around the world. They
include beheading, electrocution, hanging, lethal injection, shooting and stoning .

A brief consideration of the positions of other human rights-related international

organisations on the death penalty also reflects a strong trend towards promoting
abolition. Both the Office of the High Commissioner for Human Rights and the High
Commissioner for Human Rights herself are strongly opposed to the death penalty
and promote it abolition. An annual resolution of the Commission on Human Rights
between 1997 to 2005 entitled ‘The Question of the Death Penalty’ called for
abolition by all states. While neither the Commission on Human Rights nor the
Human Rights Committee has asserted that the death penalty is a violation of the right
to life, recent resolutions have moved towards this, and notably the 2005 Resolution
stated that the Committee ‘convinced that the abolition of the death penalty is
essential for the protection of this right [to life]’.49 Louise Arbour has stated that ‘I
sense that this year [2006] there is an opportunity to move towards abolition in some
countries, moratorium in others and transparency in some which still surround the
application of the death penalty with secrecy.’

The UN General Assembly has also reached a majority in opposition to the death
penalty. On 18 December 2007, the UN General Assembly adopted a resolution
supporting a moratorium on capital punishment. 104 countries voted in favour of the

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resolution, with 54 against and 29 abstaining. It was the first resolution of its kind
since attempts to pass similar versions were rejected in 1994 and 1999. The resolution
calls upon all states to establish a moratorium on executions with a view to
establishing the death penalty, to progressively restrict the use of the death penalty
and reduce the number of offences for which it may be imposed, and to refrain from
reintroducing the death penalty where it has been abolished.68 Both current UN
Secretary-General Ban Ki-Moon and his predecessor Kofi Annan promote the
abolition of the death penalty. The UN Secretary-General is responsible for producing
UN Quinquennial Reports on Capital Punishment which detail the imposition of the
death penalty around the world and view the abolition of the death penalty as positive
progress. Upon the passage of the December 2007 Resolution, Ban Ki-Moon stated:
‘This is further evidence of a trend towards ultimately abolishing the death penalty.

International human rights groups are similarly united in their criticism of the death
penalty. Amnesty International, the International Commission of Jurists and Human
Rights Watch have labelled the death penalty a violation of the right to life and the
protection against cruel, inhuman and degrading treatment. 69
The American Civil
Liberties Union believes it to be applied arbitrarily and discriminatorily, and to
constitute cruel and inhuman punishment. The Fédération International des ligues des
Droits de l’Homme considers that all executions are a failure of justice. Throughout
Europe, progress towards the abolition of the death penalty is particularly advanced.
The Council of Europe and the European Union are strongly opposed to the death
penalty, regarding it as a form of cruel and inhuman punishment and torture and
‘which has no legitimate place in the penal systems of modern civilised societies’.70
The EU and the Council of Europe consider the abolition of the death penalty to
‘contribute to the enhancement of human dignity and the progressive development of

68
UN Document A/C.3/62/L.29 (1 November 2007)
69
Amnesty International The Death Penalty (located at http://web.amnesty.org/pages/deathpenalty-
index-eng accessed on 21 February
2007). The Death Penalty: Condemned (International Commission of Jurists: Chatelaine, 2000), 8;
‘The Death Penalty in the United
States of America’ http://hrw.org/campaigns/deathpenalty
70
Supra Note 32, 8.

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human rights’.71Membership of the Council of Europe (since 1994) and the European
Union (since 1998) is conditional upon the abolition of the death penalty.72 The
American Bar Association does not maintain a formal position on the death penalty,
but is strongly in favour of a moratorium in order to review evidence that suggests
that that race, geography, wealth and personal politics can influence every stage of
capital cases.73

71
Declaration by the Presidency on behalf of the EU on the Occasion of the Third World Congress
against the Death Penalty Brussels,
Third World Congress Against the Death Penalty 5863/07 (Presse 14) (Paris, 1 - 3 February 2007),
Available at http://www.consilium. Supra Note 32, 8.
72
Supra Note 32, 6.
73
American Bar Association, Death Penalty Moratorium Implementation Project,

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 CHAPTER 8
CONCLUSION

8.1 CONCLUDING PERSPECTIVES

Capital punishment, also called the death penalty, is the execution of an offender
sentenced to death after conviction by a court of law of a criminal offence. It is the
highest penalty awardable to an accused. Generally, it is awarded in extremely severe
cases of murder, rapes, treason etc. The statistical evidence doesn’t confirm that
deterrence works. Some of those executed may not have been capable of being
deterred because of mental illness or defect. Some capital crimes are committed in
such an emotional state that the perpetrator did not think about the possible
consequences. Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC),
still, rapes continue to happen and in fact, the brutality of rapes has increased
manifold. This compels one to think of the death penalty is an effective deterrent to
crime. Execution of the Innocent: The most common argument against capital
punishment is that sooner or later, innocent people may get killed, because of
mistakes or flaws in the justice system. According to Amnesty International: As long
as human justice remains fallible, the risk of executing the innocent can never be
eliminated. People who oppose Capital punishment are of the view that retribution is
immoral, and it is just a sanitized form of vengeance. Death has been abolished as a
form of punishment in most of the developed countries. The UN Secretary General's
report on the death penalty presented to the Human Rights Council held that "some
170 States have abolished or introduced a moratorium on the death penalty either in
law or in practice, or have suspended executions for more than 10 years". Capital
punishment doesn't rehabilitate the prisoner and return them to society.

The death penalty does not serve the penological goal of deterrence any more than

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life imprisonment. Further, life imprisonment under Indian law means imprisonment
for the whole of life subject to just remissions which, in many states in cases of
serious crimes, are granted only after many years of imprisonment which range from
30-60 years. Gopal Vinayak Godse v. State of Maharashtra74, Maru Ram v. Union of
India75 . In focusing on death penalty as the ultimate measure of justice to victims, the
restorative and rehabilitative aspects of justice are lost sight of. Reliance on the death
penalty diverts attention from other problems ailing the criminal justice system such
as poor investigation, crime prevention and rights of victims of crime. It is essential
that the State establish effective victim compensation schemes to rehabilitate victims
of crime.

At the same time, it is also essential that courts use the power granted to them under
the Code of Criminal Procedure, 1973 to grant appropriate compensation to victims in
suitable cases. The voices of victims and witnesses are often silenced by threats and
other coercive techniques employed by powerful accused persons. Hence it is
essential that a witness protection scheme also be established. The need for police
reforms for better and more effective investigation and prosecution has also been
universally felt for some time now and measures regarding the same need to be taken
on a priority basis.

In the last decade, the Supreme Court has on numerous occasions expressed concern
about arbitrary sentencing in death penalty cases. The Court has noted that it is
difficult to distinguish cases where death penalty has been imposed from those where
the alternative of life imprisonment has been applied. In the Court's own words
"extremely uneven application of Bachan Singh has given rise to a state of
uncertainty in capital sentencing law which clearly falls foul of constitutional due
process and equality principle".

The Court has also acknowledged erroneous imposition of the death sentence in

74
AIR 1961 SC 600.
75
(1981) 1 SCC 107.

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contravention of Bachan Singh guidelines. Therefore, the constitutional regulation of
capital punishment attempted in Bachan Singh has failed to prevent death sentences
from being "arbitrarily and freakishly imposed". There exists no principled method to
remove such arbitrariness from capital sentencing. A rigid, standardization or
categorization of offences which does not take into account the difference between
cases is arbitrary in that it treats different cases on the same footing. Anything less
categorical, like the Bachan Singh framework itself, has demonstrably and admittedly
failed.

Numerous committee reports as well as judgements of the Supreme Court have

recognized that the administration of criminal justice in the country is in deep crisis.
Lack of resources, outdated modes of investigation, over-stretched police force,
ineffective prosecution, and poor legal aid are some of the problems besetting the
system. Death penalty operates within this context and therefore suffers from the
same structural and systemic impediments. The administration of capital punishment
thus remains fallible and vulnerable to misapplication. The vagaries of the system
also operate disproportionately against the socially and economically marginalized
who may lack the resources to effectively advocate their rights within an adversarial
criminal justice system.

Clemency powers usually come into play after a judicial conviction and sentencing of
an offender. In exercise of these clemency powers, the President and Governor are
empowered to scrutinize the record of the case and differ with the judicial verdict on
the point of guilt or sentence. Even when they do not so differ, they are empowered to
exercise their clemency powers to ameliorate hardship, correct error, or to do
complete justice in a case by taking into account factors that are outside and beyond
the judicial ken.

Death row prisoners continue to face long delays in trials, appeals and thereafter in
executive clemency. During this time, the prisoner on death row suffers from extreme

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agony, anxiety and debilitating fear arising out of an imminent yet uncertain
execution. The Supreme Court has acknowledged that an amalgam of such unique
circumstances produces physical and psychological conditions of near-torture for the
death row convict. Shatrughan Chauhan v. Union of India,76

Further, the death row phenomenon is compounded by the degrading and oppressive
effects of conditions of imprisonment imposed on the convict, including solitary
confinement, and the prevailing harsh prison conditions. The death row phenomenon
has become an unfortunate and distinctive feature of the death penalty apparatus in
India. Further, infliction of additional, unwarranted and judicially unsanctioned
suffering on death sentence prisoners, breaches the Article 21 barrier against
degrading and excessive punishment.

In retaining and practicing the death penalty, India forms part of a small and ever
dwindling group of nations. That 140 countries are now abolitionist in law or in
practice, demonstrates that evolving standards of human dignity and decency do not
support the death penalty. The international trend towards successful and sustained
abolition also confirms that retaining the death penalty is not a requirement for
effectively responding to insurgency, terror or violent crime.

8.2 SUGGESTIONS:

I would like to suggest that after doing a research on such a debatable issue that is
“Capital Punishment and its deterrent effect or not”. “Our country penal code provide
for capital punishment for extensive range of offence. But sorrowfully, the death
penalty has in no way reduced these crimes in the country

While over 66% of the countries in the world abolishing death penalty, but India still

76
(2014) 3 SCC 1.

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retains it, largely believing it to have a deterring effect. The retaliatory system is
based on three major theories of retribution, deterrence and rehabilitation. Deterrence
and retribution, where the society hassle revenge, fail to grant sufficient reasons for
the use of the death penalty. It is evident that killing a assassin has not at all stopped
from a new killer budding. Furthermore, the death penalty neglects the analysis or
reformative theory from the very beginning. India desires to move from a retributive
model to reformative-punitive system. Killing is and has never been a elucidation.
The answer lies in the efficient system to take in for questioning the perpetrators and
efficient prosecution so that no one escapes from the hands of law. If that happen, life
imprisonment will adequately accomplish the deterrence and retributive theory; the
death penalty will not serve up any additional rationale. It is high time that India
renews its concentration towards the abolishment of the death penalty

Instead of death penalty there many new forms of punishments are made which have
the deter effect also:
1) Externment
2) Compensation to victims of crime
3) Public Censure
4) Community services
5) Disqualification from holding public office and contest Elections.
From my point of view to creating a deterrence in people death penalty is not that
good option because the one who can take life without thinking it is damn sure that he
doesn’t scared of death penalty so to create a deter effect in people we should have to
choose the multiple approach theory in this theory the offender get insulted in public,
and which is more shameful than death penalty and in our country proceedings of
awarding punishments are very slow so in order to get immediate relief we have think
of these kind of punishments which are deter also.

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 BIBLIOGRAPHY

BOOKS:
 C.K. Takwani, Indian Penal Code (Eastern Book Company, Lucknow, 1st edn.,
2014).
 Justice Asok .K. Ganguly, Landmark judgement that changed India (Rupa
Publications India, 1st edn., 2015)
 Pinky Anand and Gauri Goburdhun, Trials of Truth-India’s Landmark Criminal
Cases (Penguin Books India, Gurgaon, 2018)
 Prof. N.V. Paranjape, Indian Penal Code ( Central Law Publications, Allahabad,
3rd edn., 2016).
 S. N. Misra, Indian Penal Code (Central Law Publications, Allahabad, 21st
edn., 2022)

STATUTES:
 The Indian Penal Code ,1860 (Act no.45 of 1860).

JOURNAL :
 M. Sangeetha, “A Critical Study on Capital Punishment in India” 2 Indian
Journal of Integrated Research in Law (2022).
 Varsha Bharwdaj, “The Deterrent Effect of Capital Punishment” 7 Journal of
Legal Studies and Research (2021).

WEBSITE :
 Death penalty: Is it Deterrent Enough?, available at: https://blog.ipleaders.in
(Last visited on 17 Jan 2024)
 Theories of punishment – a thorough study, available at: https://blog.ipleaders.in
(Last visited on 17 Jan 2024)

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 Human Rights, available at: https://deathpenaltyinfo.org ( Last visited on 17 Jan
2024).

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