Is it time for India to do away with the death penalty?



The death penalty is also known as capital punishment, is a legal punishment in India. It is a high degree punishment that is awarded to an individual. The word capital punishment consists of decapitation, which means to cut the upper part of the body. In this punishment, the state is authorised to take the life of any person. In ancient times, the Kings generally awarded this punishment to an individual for any heinous crime committed so that no other person could dare to do it again. During the reign of King Ashoka, the severity of punishment remains unchanged. Even in the greatest epic, Mahabharata, there is a description of this type of harsh punishment. Even in modern times the great philosophers like Plato also supported this punishment to make society crime-free.


In the contemporary world, majorly all countries have included this provision in their statutes. In India, there is the Indian Penal Code which contains many provisions with regards to capital punishment. In India, till 2020, a total of 404 prisoners were punished with death sentences.

Now the question arises why should it be abolished or why should it be retained? Many experts have given their points of view concerning both statements. Those who favoured the abolition of the death sentence say that it is an old practice of barbaric society. It must not be given in a modern civilised state. Another reason is that many times crimes are committed due to financial reasons and poverty and this method of punishment will not solve anything.


How many times a person is given the death penalty due to a mistake made by the judges? Also, if a person wants to change, he cannot. Moreover, many times one could find that the person accused by the court is the sole breadwinner of his house. After the sentence, many families are left to fend for themselves. Those who favour the retention of capital punishment say that generally death penalty is awarded to a person who committed a higher crime. Where there is no chance that one could reform his ways. Only the death sentence is needed to stop similar future criminal activities. Some say that the offenders involved in crimes against their motherland shall be punished with the death sentence. It is also argued that such a sentence is a denial of human rights and sends wrong messages that killing is acceptable under certain circumstances.


In this changing scenario, the countries are changing their mode of awarding punishments to offenders, and they are leaving the practice of capital punishment even in the most heinous cases. Amnesty International Data suggests that the number of countries which have formally abolished the death penalty had been steadily increasing from 48 in 1991 to 106 in 2017. However, no other nation has banned the death penalty in 2019 and 2020.


Hoowever, Amnesty says that almost 142 countries have either abolished the death penalty in law or practice.

  1. In 1990 the German Democratic Republic united with the Federal Republic of Germany, where it was abolished in 1949.

  2. Slovenia and Croatia abolished the death penalty while still being republics of the Socialist Federal Republic of Yugoslavia. The two republics became independent in 1991.

In the 6th UN Congress, on the Prevention of Crime and Treatment of Offenders, held at the Carcass in 1980. A discussion on the issue of the death penalty was held. Both sides put forth their points very emphatically. However, most of the delegation did not agree to the suggestion put forth by the abolitionist countries. In this resolution, India opposed it as it went against statutory legislation and sovereign power.


A thought strikes our minds that what is the position of capital punishment in India? India retained the death penalty for murder in the Indian Penal Code, 1861, even after independence in 1947. Even during the meeting of the constituent assembly, many members have also proposed to delete the provision from the Indian Constitution. After the making of the constitution, in the next two decades, private member bills were introduced in both Lok Sabha and Rajya Sabha to abolish this penalty. However, none of them passed. In India, the death penalty is awarded for the most heinous and grievous crimes. It is not given for any ordinary crime because Article 21 of the Indian Constitution safeguards the right to life and liberty of individuals.


The nature of offences for which this punishment is advanced is murder, dacoity with murder, and anti-terrorism. In India, the Indian Penal Code provides for the death penalty under Sections 121, 132, 194, 302, 305, 307, and 396. Life imprisonment is a rule, while that sentence is an exception. Section 354(3) of CrPC, 1973, says "when the conviction is for an offence punishable with death or in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for sentence awarded and in case of sentence of death, the special reasons for such sentence." As a safeguard against any arbitrary summary trial in such cases, the Code of Criminal Procedure lays down an elaborate procedure regarding the imposition of the death penalty. Section 366(1) provides that the court passing a death sentence must submit the proceedings to the High Court for confirmation. In Banchan Singh v State of Punjab, it was held that capital punishment will be only given in the "rarest of rare" cases.


In India, only the president has the power to confirm mercy in case of the death penalty. When any session court has given the death penalty it must be confirmed by the High Court. Even if a person files an appeal in a Supreme Court, and Supreme Court also convicted them, he may submit a mercy petition to the President of India. Under Article 72 of the Indian constitution, the president has the power to grant pardons, reprieve, respite or remission of punishment or to suspend, remit or reduce the sentence of any person who has been committed an offence.


Should capital punishment be abolished in India? Till now, India has not abolished capital punishment. However, the debate is inclining towards abolition in light of the changing circumstances of national and international. Following the 262nd report of the law commission that came out in August 2015, the debate on the death penalty in India has gathered more streams. The death sentence could be abolished and imparted in cases of terrorism and waging war against the state to safeguard national security. In 1967, the opinion of the law commission was different. It said that "India could not risk experimentation of abolition of capital punishment." However, this time "the commission feels that the time has come for India to move towards abolition of the death penalty."

Reasons were stated by the law commission of India:

  1. times have changed;

  2. it is not a deterrent anymore;

  3. sentencing is arbitrary;

  4. administration of capital punishment is vulnerable to misapplication;

  5. mercy powers have failed to act as the final safeguard against the miscarriage of justice;

  6. long delays in trials and appeals and the execution are almost torture; and

  7. one hundred and forty countries have already abolished it.

Why is India still unable to abolish the death penalty? In this technological world, people face many issues, whether it is mental, physical, or psychological. Moreover, in underdeveloped countries, people are unable to fulfil their needs due to a lack of money and basic amenities. It led to a feeling of inferiority and created a sense of anger and desire for things. It makes a path to crime in a very heinous way.


In daily life, we come across many rape victims. A rape victim is not just raped, but her body is torn apart by a beast. The most famous cases among these cases are the Nirbhaya gang rape and the Vishakha case. In these cases, crimes committed were horrific and beyond the definition of a crime. We can not acquit such criminals in society. They act like acid that destroys every part of society. These types of crimes and incidents forced the Indian judiciary to prevent the abolition of the death penalty.

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