Death sentence and

human rights
SUBMITTED TO: Prof. P.K. Mishra
Faculty of- CRIMINOLOGY AND CRIMINAL
JUSTICE ADMINISTRATION
SUBMITTED BY- Rahul Abhishek
Enrolment No. CUSB2013131025

 
 INTRODUCTION
The death penalty is a denial of the most basic human rights; it violates one of the most
fundamental principles under widely accepted human rights law—that states must
recognize the right to life. The UN General Assembly, the representative body of
recognized States, has called for an end to the death penalty and human rights
organizations agree that its imposition breaches fundamental enshrined human rights
norms. Convention is quickly moving towards a position in support of worldwide
abolition.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights
guaranteed by the Universal Declaration of Human Right (UDHR), which the U.S. helped
draft in the aftermath of World War II and adopted in 1948. Under Article 3 of the UDHR,
life is a human right. This makes the death penalty our most fundamental human rights
violation. As long as governments have the right to extinguish lives, they maintain the
power to deny access to every other right enumerated in the Declaration. This first most
central right provides the foundation upon which all other rights rest.
List of some of those countries is given below.
AGAINST DEATH PENALTY
Russia (1999)
Sierra Leone (1998)
Sri Lanka (1976)
Suriname (1982)
Swaziland (n.a.)
Tajikistan (n.a.)
Tanzania (n.a.)
Tonga (1982)
Tunisia (1990)
- Death Penalty Permitted
INDIA,CHINA,IRAQ,IRAN,UNITED STATE,SOUTH SUDAN,SAUDI ARABI
 DEATH PENALTY IN INDIA
The death penalty was codified as part of the Indian Penal Code in 1861. It was not until 1931 that this
was seriously challenged when a member of the Bihar Assembly unsuccessfully sought to introduce a
bill seeking its abolition. Support for the death penalty remained strong. In 1946, on the eve of
Independence, the then Union Home Minister stated that the Government did not think it wise to abolish
capital punishment. Ten years later, when the Government asked the States for their opinion, most of
them expressed support for the death penalty. In its 35th report, produced in 1967, the Law Commission
took the view that capital punishment acted as a deterrent to crime. While it conceded that statistics did
not prove these so-called deterrent effects, it also said that figures did not disprove them either.
There was, however, some unease over the death penalty. One consequence was a change in the law in
1955, which said courts no longer had to explain why they did not award a sentence of death in a case. In
1973, it was provided that while handing down a death sentence, special reasons should be given.
The Supreme Court traditionally has not questioned the death sentence per se. In the Jagmohan Singh
case (1973), it agreed with the Law Commission that capital punishment should be retained.
But subsequent cases such as those of EdigaAnamma (1974) and Rajendra Prasad (1979) saw dissenting
voices being raised in the apex court. These led to a hearing of the Bachan Singh (1980) case by a
Constitutional Bench. The Bench concluded by a four to one vote that the death penalty did not violate
Article 14 or Article 21 of the Constitution. It warned judges not to be bloodthirsty and ruled that the
death penalty should not be imposed, save in the "rarest of rare cases," when the alternative remedy is
unquestionably foreclosed. But some liberal judges tried to develop the alternative by holding that the
convict could invoke Article 21 in the event of the death sentence not being carried out even after two
years and demand that it be quashed.
 However, in the Trivenben (1989) case, the Supreme Court unanimously upheld the death penalty as
constitutional. It held that the delay could only be counted from the day the Supreme Court's judgment
was pronounced — in other words, when the judicial process came to an end. The Court added a caveat
that the time consumed by repeated petitions at the instance of the convicted person should not be
counted or considered a delay.
But the Supreme Court in April 1991 reduced the death sentence that it had confirmed in the 1988 Daya
Singh case — the assassin of the former Punjab Chief Minister, Pratap Singh Kairon — to life
imprisonment because of the delay factor. Strangely, this was done without any examination of the causes
of the delay, apparently in defiance of the 1989 decision.
The death penalty, declared that the courts must reflect public abhorrence of crime, and that when they
award sentences they must not only keep the rights of the accused in mind, but A different reaction was
visible in the Dhanunjoy case (1994). The trial involved the rape and murder of an 18-year-old girl by a
security guard. The Supreme Court, while confirming also the rights of the victims and of society at
large.
This cacophony of differing judicial views is bound to continue so long as the death penalty remains in
the statute book. Each judge, it seems, reaches for his own interpretation of the retributive or reformative
aspect of criminal punishment. So we have confusing signals on the death penalty. Ironically, after the
"rarest of rare" doctrine was propounded in 1980, the Supreme Court confirmed the death penalty in 40
per cent of the cases during 1980-90, whereas it was 37.7 per cent from 1970 to 1980. For the High Court
the figures confirming death sentence rose from 59 per cent in 1970-80 to 65 per cent during 1980-90.
 CONSTITUTIONAL PROVISION FOR
DEATH PENALTY

The Article 21 of the constitution, which deals with the Fundamental Rights of life and liberty,
states “No person shall be deprived of his life or liberty except according to procedure
established by law.” Thus, it can be seen that the death penalty is verily upheld by the Indian
Constitution. However, the same article, rather the same sentence, upholding two views at
opposite ends doesn’t stand too well with the spirit of the constitution. That is, even though it
is logically consistent, it is against the spirit of the Constitution.
Another important provision regarding the capital punishment is the Presidential power of pardon.
This appears in Article 72 and states that “The President shall have the power to grant pardons,
reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence
of any person convicted of any offence….. (c) in all cases where the sentence is a sentence of
death.”
The objective of this article is to ensure that there be an authority beyond the Supreme Court to
help the innocent if in case the Supreme Court, being a human institution has committed an
error.
 TYPES OF PARDON
(I)Pardon- Complete exoneration from punishment.
(ii)Commutation- Means to reduce, to give just next punishment.
(iii)Remission-Nature will not change but quantum of punishment will change.
(iv)Reprieve-culprit cannot be hanged until president has not consented for same.
(v)Respite-Nature will not be changed but quantum of punishment will change.
CASES REGARDING CONSTITUTIONAL VALIDITY
(I). Bhagwati J. in Bachan Singh case recorded a dissenting note. Bhagwati, J. in his
dissenting judgment has given a number of reasons for holding that death penalty is not
only unconstitutional being violative of articles 14 and 21 but also undesirable from several
points of view". One of the reasons given by him is that death penalty is irrevocable because
the execution of the sentence of death in such a case makes miscarriage of justice
irrevocable.(II).The question of constitutional validity of death penalty has been raised
before the Supreme Court of India more than once. In case of Jagmohan Singh v. State of
Uttar Pradesh.
constitutional validity of death penalty was upheld by the Supreme Court by a unanimous
decision of the five judges composing the Bench.
(III). In case of Rajendra Prasad v. State of Uttar Pradesh, Krishan Iyer J. said that death
penalty directly affects the life of the people guaranteed under Article 21 of the Constitution.
But it has been provided by law and there is nothing like due law in Article 21. Therefore, it is
valid. He further said that to impose death penalty the two things must be required:
- The special reasons should be recorded for imposing death penalty in a case.
- The death penalty must be imposed only in extraordinary circumstances.
 
 SECTION REGARDING
DEATH PENALTY
  The Indian Penal Code (IPC) provides for capital punishment for the following offences, or for criminal
conspiracy to commit any of the following offences (Section 120-B):
1. Murder (s.302) and murder committed by a life convict (s. 303).(Though the latter was struck down by the
Supreme Court, it still remains in the IPC)
2. Abetment of a suicide by a minor, insane person or intoxicated person (s.305)
3. Threatening or inducing any person to give false evidence resulting in the conviction and death of an innocent
person (s.195A)
4. Perjury resulting in the conviction and death of an innocent person (s.194)
5. Treason, for waging war against the Government of India (s.121)
6. Abetment of mutiny actually committed (s.132) control of Organized Crime.
7. Attempted murder by a serving life convict (s.307(2))
8. Kidnapping for ransom (s.364A)
9. Dacoity [armed robbery or banditry] with murder (s.396)
Death penalty is also provided under the following special and local laws:
1. Unlawful Activities Prevention Act 1967 (as amended in 2004)
2. Defense and Internal Security of India Act 1971
3. Defense of India Act 1971
4. Commission of Sati (Prevention) Act 1987
5. Narcotic Drugs and Psychotropic Substances (Prevention) Act, 1985, as amended in 1988
6. Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA)
7. Prevention of Terrorism Act 2002 (POTA)
8. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989
9. Explosive Substances Act 1908 (amended in 2001)
10. Arms Act 1959 (amended in 1988)
11. Laws relating to the Armed Forces, for example the Air Force Act 1950, the Army Act
1950 and the Navy Act 1950 and the Indo-Tibetan Border Police Force Act 1992
12. Various states (Andhra Pradesh, Karnataka, Arunachal Pradesh and Maharashtra) have
Acts which entail the death penalty.

 
 ARGUMENTS FOR THE
ABOLITION
 
1. Capital punishment should be abolished because it is a legalized, revengeful and cruel destruction of God’s most
wonderful creation, the human being.
2. Immoral. Capital punishment is morally indefensible. Society has no right to take the life of any person. It is
morally wrong for the State in the name of the law to take the life deliberately. In eliminating the criminals, it
is stated; the State does not erase the crime, but repeats it.
3. Inhuman. Capital punishment is essentially inhuman. Death penalty is a form of cruelty
4. Non-violence. Indian ideology is based on non-violence. Indian tradition is based on reformation of the mind
and spirit. Therefore a murderer should be sent to a penitentiary and there given every chance of reforming
himself.
5. Irrevocable. Capital punishment is irrevocable. If an innocent person is sentenced to death and executed, the
greatest injustice results. When as a result of an erroneous conviction, a man is sent to prison, he can be
compensated. But death admits of no compensation.
Sometimes there may be a mistaken view of the law. Thus, it is argued that a person was sentenced to death in one
Madras Full Bench case, on a confession made by him, to an
investigating officer. Ten years later, the Privy Council, in a similar case, held that this case was wrongly
decided, and that the confessions ought not to have been admitted in evidence.
6. Unjust. The sentence of death injures the family of the offenders, and thus imposes suffering on persons
who have done nothing to deserve the suffering.
7. Unequal application. Death penalty is applied unequally. Some persons who have not sufficient financial
means to defend themselves or are morally unable to do so, suffer. The penalty, therefore, which should be
the expression of absolute justice, often leads in practice to injustices against individuals.
8. An eye for an eye. It will suffice to note that the system of individual revenge is no longer recognized.
The punishment should not be given to any offender having this principle in the mind. The court should
adopt the retributive approach in these cases.
.

ARGUMENTS FOR THE

RETENTION
1. Capital punishment acts as a deterrent. If the death sentence is removed, the feat that comes in the mind of people
committing murders will be removed. “Do we want more of murders in our country or do we want less of them?”
All sentences are awarded for security and protection of society, so that every individual may live in peace. Capital
punishment is needed to ensure this security.
2. Elimination of the criminals. When the public peace is endangered by certain particularly dangerous forms of
crime, death penalty is the only means of eliminating the offender.
3. Possibility of repeated murders. Society must be protected from the risk of a second offence by a criminal who
is not executed and who may be released, after release may commit murder again.
4. Condition in India. In countries where capital punishment has been abolished, the figure of homicide is very
low; four in a million, or even less than that.
5. Public opinion. Public opinion is substantially in favor of capital punishment, and it would be unwise to abolish
capital punishment contrary to the wishes of the majority of the citizens.
6. Prison administration. Keeping murderers alive in the prison greatly complicates the work of prison
administration. If all convicted murderers were imprisoned, safety of the prison staff and the general public from the
dangerous prisoners would be at risk.
7. Saving of funds. Money of the citizens should not be spent on maintaining people who cause great harm. The
taxpayers should not be called upon to pay for the maintenance of anti-social criminals for an indefinite or for a
very long period.
 CONCLUDING REMARKS
Capital punishment is an exception where as life imprisonment is a rule. After independence only 55 persons have
been awarded death penalty from 1995 to 2013 only three persons have been hanged.
As the survey was
conducted in worldwide in which 120 country voted against the motion whereas 21 countries including India
China along with America voted in favour of this motion, death penalty should remain in India. Because crime
is at it’s peak. Death penalty sets an example to society prevent its repetition. Death penalty is not awarded for
every murder .the theory of Rarest of rare is followed in order to award death penalty, but this theory is quite
ambiguous till now. It is totally depends upon the discretion of judges, hence judgments defer from judges to
judges. In India the controversy over death penalty is because Rarest of rare theory is not vivid, there is a need
of improvement in this theory.
According to justice A.K. Ganguly of the Supreme Court has termed the award of death sentence as “barbaric, anti-
life, undemocratic and irresponsible" which is "legal" in the prevailing judicial system. The doctrine of the
crime falling in the 'rarest of rare' category in awarding the death penalty was a "grey" area as its interpretation
depended on individual judges. He cautioned that before giving death penalty, a judge must be "extremely
careful" and weigh "mitigating and aggravating circumstances”.
-Eye for an eye –this seems bit aggressive but when we thing from victim point of view then it somewhat seems
justify. Sometimes people tend to be liberal towards culprit. They have to consider the circumstances of victim
family.
Elimination of the criminals, when the public peace is endangered by certain particularly dangerous forms of crime,
death penalty is the only means of eliminating the offender.
 Referances

CODE OF CRIMINAL PROCEDURE - N.D.BASU

INDIAN PENAL CODE 1860 - S.C.Sarkar
CONSTITUTION OF INDIA, - R.S.Bedi

 https://www.amnesty.org/download/Documents/184000/act500011994en.pdf
 https://ccrjustice.org/files/CCR%20Death%20Penalty%20Factsheet.pdf
 https://thelawbrigade.com/wp-content/uploads/2019/06/Kiran-Kale.pdf
 http://www.journalijar.com/uploads/608_IJAR-30163.pdf
 http://www.fidh.org/-english
Thank you