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Capital Punishment: A Critical Analysis

Updated: Jun 21, 2020

Author: Sonali Sharma

Student (III Year, B.A.,LL.B), Fairfield Institute of Management and Technology, (GGSIPU)

“Death penalty is the number one killer of killers”

-Mokokoma Mokhonoana

Capital punishment is also known as death penalty, is a government sanctioned practice whereby a person is put to death by the state as a punishment for a crime. The sentence ordering that someone be punished in such a manner is referred to as a death sentence is known as execution. A prisoner who has been sentenced to death and is awaiting execution is referred to as condemned, and is said to be on the jurisdiction, but commonly include serious offences such a murder, mass murder, aggravated cases of rape, child rape, child sexual abuse, terrorism, treason, espionage, sedition, offence against the state, such as attempting to overthrow government, piracy, aircraft hacking, drug trafficking, drug dealing, and drug possession, war crimes, crimes against humanity and genocide and in some cases, the most serious act of recidivism, aggravated robbery and kidnapping.

Early death penalty laws

The death penalty is practiced in just handful of countries, including the United States, Saudi Arabic, China, Iran, and Egypt. Within the U.S, some states have banned or limited its use. And while it remains controversial, particularly within the context of access to quality defense counsel, death penalty used to be much more widespread than it is today.

The Code of Hammurabi to Roman law

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 sentence were carried out by such means as crucifixion, drowning, beating to death, burning alive and impalement.

The Draconian Code of Athens, in 7th century B.C, made death the lone punishment for all crimes (hence the use of the term “draconian” to describe particularly harsh penalties). It may have been a myth, but legends has it that the Draconian Code was written in blood instead of ink.

Death Penalty laws in Great Britain

In the tenth century A.D., hanging became the usual method of execution in Britain. In the following century, William the conqueror have not allow person 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 were 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 increased throughout the next two centuries. By the 1700s, over 200 crimes were punishable by death in Britain, including theft, cutting down tree, and robbing a rabbit warren. However, due to the severity of the death penalty, many juries would not convict defendants if offenses weren’t serious. Such practices led to early reform of Britain’s death penalty laws. From 1823 to 1837, the death sentence was eliminated for over half of the crimes previously punishable by death.

History of Death Penalty laws: Early United States

The early history of death penalty laws in the United States begins during colonial times, where criminal punishments varied quite a bit. The first known execution in the “New World” was in the Jamestown colony in present day Virginia in the early 17th century. Offenses such as stealing grapes, trading with Native Americans, or striking one’s mother or father were punishable by death in some colonies.

Pennsylvania ended death penalty for all offenses but first degree murder in 1794, while Michigan abolished capital punishment for all crimes but treason in 1846. However, most states maintained the death penalty until public support sharply declined in the 1950s.

History of Death Penalty laws: Modern United States

The U.S Supreme court banned the death penalty nationwide in 1972, ruling that it was arbitrary and discriminatory as applied at the time. But just four years later, the court reversed this decision, thereby allowing states to reinstate capital punishment as long as they corrected the problems cited by the court in the earlier decision. This led to some reforms, including automatic appeals of death sentences and efforts to reduce sentencing disparities.

But in the 21st century, a growing number of states began to implement moratoriums or statutory bans on the death penalty, including New York, Maryland, and Illinois. Furthermore, exoneration of death row inmates through DNA evidence has continued to shift public opinion away from support of the death penalty.

Landmark Case:

In the case of FURMAN V. GEORGIA [i] the court found that the death penalty was being imposed in an unconstitutional manner, on the grounds of cruel and unusual punishment in violation of the eighth amendment to the United States Constitution. The Supreme Court has never ruled the death penalty to be pre se unconditional. However, Justice Stewart took view that the death penalty serves a deterrent as well as retributive purpose.

Capital Punishment in India

Capital Punishment is a legal penalty in India. According to the research published by National law University, Delhi on the death row convicts since 2000 had found that of the 1617 prisoners sentenced to death by trial courts in India, capital punishment was confirmed only in seventy-one cases. NLU Delhi confirmed 755 executions in India since 1947. National Law University, Delhi examined 1414 prisoners who were executed, in the available list of the convicts hanged in post- independence since 1947.

According to the report of the Law Commission of India (1967), the total number of cases in which the death sentence was handed down in India from 1953-63 was 1410.

In December 2007, India voted against a United Nation General Assembly Resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting the UN Assembly draft resolution seeking to end the institution of capital punishment globally.

On 31st August 2015, the Law Commission of India submitted a report to the government which recommended the abolition of capital punishment for all crimes in India, excepting the crime of waging war against the nation or for terrorism- related offences. The report cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect on criminals.


In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 (IPC), which listed a number of capital crimes. It remained in effect after independence in 1947. The first hanging in independent India was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi Assassination case on 15th November 1949.

Provision in India

In India Article 21 of the Constitution titled ‘Protection of life and personal liberty’ says:

No person shall be deprived of his life or personal liberty except as according to procedure established by law.

The Indian Penal Code, 1860 awards death sentence as a punishment for various offenses. Some of these capital offences under the IPC are punishment for:-

• Criminal conspiracy (Section 120B)

• Murder (Section 302)

• Waging or attempt to wage war against the government of India (Section 121)

• Abetment of mutiny (Section 132)

• Dacoity with murder (Section 396)

The Indian Constitution has provision for clemency of capital punishment by the president. Once the session court has awarded death sentence to a convict in a case, it must be confirmed by High Court. Even after that, the convict may prefer an appeal to Supreme Court. If this also fails the accused has the option of submitting a ‘mercy petition’ to the president of the India and the Governor of the State.

Article 72 of the Indian Constitution which says:-

“Power of the President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases:-

• The president shall have 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.

Similarly, the pardoning powers of the governor of a state are mentioned in Article 161.

Landmark cases dealing with the death penalty in India

In the case of JAGMOHAN SINGH V. STATE OF U.P [ii] which was the first case dealing with the question of constitutional validity of capital punishment in India. The counsel for the appellant, in this case, put forward three arguments which invalidate section 302 of IPC.

• Execution takes away all the fundamental rights guaranteed under clause (a) to (g) of sub clause (1) of Article 19 and therefore, the law with regard to capital sentence is unreasonable and not in the interest of the general public.

• The discretion invested in the judges to impose capital punishment in preference to imprisonment for life.

• He contended, the uncontrolled and unguided discretion in the judges to impose capital punishment or imprisonment for life is hit by Article 14 of the constitution because two persons found guilty of murder on similar facts are liable to be treated differently one forfeiting his life and the other suffering merely a sentence of life imprisonment.

Lastly, it was contended that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life. The trial under the Criminal Procedure Code is limited to the question of guilt. In the absence of any procedure established by law in the matter of sentence, the protection given by Article 21 of the constitution was violated and hence for that reason also the sentence of the death is unconstitutional.

After looking into the arguments the five judge bench upheld the constitutionality of the death penalty and held that deprivation of life is constitutionality permissible for being recognized as a permissible punishment by the drafters of our constitution.

Section 354 (3) was added to the Code of Criminal Procedure, 1973 which clearly laid down that in conviction for cases which are punishable either with death or life imprisonment, the judgment shall state the reason for award of the punishment and in the event that it is death sentence mention the special reasons for that decision. This made the lesser punishment the rule and death penalty the exception as opposed to the previous situation. Also in 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR).

Article 6(2) of the ICCPR says: “In the countries which have not abolished the death penalty, sentence of death may be imposed only 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 of the Prevention and Punishment of the Crime of Genocide”.

Justice Krishna Iyer gave and opine in the case of RAJENDRA PRASAD V. STATE OF UTTAR PRADESH [iii]. However, Justice Sen in his dissenting judgment cited his concern over the wide scope for interpretation of Section 302 of the IPC and Section 354 of the CrPC left to the judiciary. He said in this case “it is not necessary for this court to attempt to analyze the substantive merits of the cases for and against the death penalty for murder.

MITHU V. STATE OF PUNJAB [iv] was another case where the mandatory death sentence under section 303 was declared unconstitutional and hence invalid. The section was based on the logic that any criminal who has been convicted for life and still can kill someone is too cold-blooded and beyond reformation, to be allowed to live. The judges in mithu’s cases held that section 303 violated the Article 14 and 21 of our Constitution and so it was deleted from the IPC.

T.V VATHEESWARAM V. STATE OF TAMIL NADU [v] and SHER SINGH V. STATE OF PUNJAB [vi] the Supreme Court was faced with the question of delay in execution of the death sentence and whether a prolonged delay was reason enough to commute the death sentence to life imprisonment. While the first case laid down that such a situation gave reason enough for the convict to invoke section 21 and get the lesser punishment, the majority in the latter case differed on this point


The Law Commission in its 262nd report has called for the abolishment of the death penalty in all cases except for those relating to terror cases. This was in the wake of the hanging of Yakub Abdul Razak Memon who was hanged on the early morning hours of 30th July 2015 in spite of his advocate trying to stay the execution and convert it into a life sentence. Legislation enacted by Tripura Assembly has called for the abolishment of the death penalty in India. Also, certain guidelines have to be laid down as to the execution of death warrants within a specified time limit. In case there is an unconditional delay, then provision must be made whereby the mental condition of the convict, his death sentence can be converted into life imprisonment. Execution to death must not be for political purposes.


When a criminal commits a capital crime, they should suffer a punishment which equals the crime and it is thought that the worst punishment possible is the death penalty since it does not remove a criminal’s physical freedom by imprisoning them, it removes their psychological freedom by withdrawing their choice to live.


[i] Jaghmohan Singh v. State of Uttar Pradesh (1973 1 SCC 20)

[ii] Furman v. Georgia (408 U.S 238)

[iii] Rajendra Prasad v. State of Uttar Pradesh

[iv] Mithu v. State of Punjab (1980 2 SCC 684)

[v] T.V Vatheeswaram v. State of Tamil Nadu (1983 AIR 361), 1983 SCR (2)348

[vi] Sher Singh v. State of Punjab (1983) AIR 465, 1983 SCR (2) 582

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