International Journal of Pure and Applied Mathematics

Volume 119 No. 17 2018, 1325-1338

ISSN: 1314-3395 (on-line version)
url: http://www.acadpubl.eu/hub/
Special Issue
http://www.acadpubl.eu/hub/

Can Capital Punishment Ever be Justified: A Critical

Study
1
P. Shanthini and 2M. Kannappan
1
Saveetha School of Law,
Saveetha Institute of Medical and Technical Sciences,
Saveetha University,
Chennai.
shanthiniparama@yahoo.com
2
Saveetha School of Law,
Saveetha Institute of Medical and Technical Sciences,
Saveetha University,
Chennai.
kannappanm.ssl@saveetha.com

Abstract
The concept of death sentence has been a subject matter of debate for
long period of time in and across the world. Majority opinion of public is
that death penalty must be abolished as it violates the Human Rights at
large. Modern jurists are of the opinion that if killing is wrong, nothing can
make it right either the legal or social sanction . If it is wrong for a man to
kill another man, so it is even for the State to do. It is debated that death
penalty has had no visible effect as a deterrent and has utterly failed to
reduce the number of murders, which, accordingly makes the inflection of
capital punishment completely useless. The death penalty or the capital
punishment is terrible in listing itself and when it is used for someone of
horrify all those whose hear this word. In this paper the researcher tries to
analyse the historical background of death penalty in India and origin of
death penalty in Arab countries. And to study the alternative to capital
punishment and religious views on capital punishment and role of Human
Rights commission in execution of death sentence.
Key Words:Death penalty, human rights commission, murder, execution,
non governmental organisation.

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1. Introduction
All kinds of punishments are based on the same proposition that is there must
be a penalty for doing something wrong or an act which is prohibited by law.
There are two main reasons for inflicting the punishment on the offenders or
wrong doers. First reason is that the belief it is both right and just that a person
who has done wrong should suffer for what he has done; the other reason is the
belief that inflicting punishment on wrongdoers discourages and creates fear in
minds of other from doing wrong. The capital punishment or death penalty also
rests on the same proposition as other punishments but is inflicted on wondrous
only in cases of rarest of raw crimes. The debate on capital punishment is the
most controversial debate, keeping in mind the situation that has been brought
about by today. Capital punishment is the integral part of the Indian criminal
justice system. Due to Increasing strength of the human rights movement in
India, the existence of death penalty is questioned as immoral and is considered
as violative Of fundamental rights. Capital punishment, which is also called as
death penalty, is execution of an offender sentenced to death by court of law
after conviction for a criminal offense. The Capital punishment must be
distinguished from the extrajudicial executions which is carried out without
following due process of law. The term death penalty is used interchangeably
with the term capital punishment, though the imposition of penalty is not always
followed by execution, because of the possibility of commutation to life
imprisonment . (Dhar, n.d.). The term death penalty stands for the most severe
kind of punishment. Death penalty is the punishment which is awarded for the
offences which are considered to be most heinous, grievous and detestable
crimes against humanity. The definition and extent of these crimes vary from
country to country, state to state, age to age, and the manner of implication of
capital punishments also differs. Capital punishment is the most extreme
punishment available and also a unique form of punishment which is followed
in almost all the countries in the world to punish an offender or wrongdoer
(Heilbrun, Dvoskin, & Marsh, n.d.). Death penalty was very surprisingly first
banned in Israel. There are many countries in and around the world where the
infliction Of has not been banned and many use it only in extreme cases. Death
sentence are still a matter of major debate. Death penalty has been a subject
matter of debate for long now, and across the world public opinion is in favour
of abolishing it, as it is increasingly seen as a barbaric measure to check crime
(Gregory, 2011) . The author had tried to study the history of capital
punishment in India. To know about the various offences for which capital
punishment is awarded in arab countries. To study the various religious views
on capital punishment. Aim of the paper is to study the role of Human Rights
Commission.
Hypothesis

The human rights commission and other NGOs stand as an obstacle in

executing the death sentence by judiciary in India .

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2. Methodology
Present study is a doctrinal study and is based on secondary sources which
includes E Sources, Books, Journals, Research articles, newspaper etc.

3. Review of Literature
The jurisdiction of courts in executing the death sentences and conformation of
death sentences, Pardoning power of the President, and suggest alternative
measures instead of capital punishment (Kumari & Kumari, 2007) . The
constitutional validity of death sentence, judicial application of death penalty
and also deals with the landmark case of Bachan Singh vs. Union of India
(Johnson, n.d.). The law commission report deals with history of death penalty
in India, a international trends in death penalty, penological justifications of
death penalty, sentencing in capital offences (Hiremath, 2003) various aspects
of capital punishment, methods of capital punishment and capital punishment in
various countries (Johnson & Zimring, 2009). History of capital punishment,
death penalty under Indian Penal Code, execrations of death sentence,
constitutional validity of death sentence (Nuemat & Ghnaimat, 2017) .
Historical background of death penalty, religious views on death sentence ,
methods of capital punishment and arguments in favour and against of capital
punishment (Chandra, 2010) . The constitutional validity of death sentence, life
imprisonment as an alternative to death sentence, birth of doctrine of rarest of
rare cases, Test of reasonableness of capital punishment, Role of Presidents
(Noorani & South Asia Human Rights, 2012). The article deals with various
decided case laws such as Jagmohan Singh vs. state of U.P, Rajendra Prasad vs.
State of U.P, Bachan Singh vs. State of Punjab, Machi Singh Vs. State of
Punjab (Kaur & Verma, 2012; Noorani & South Asia Human Rights, 2012).
The jurisdiction of courts in executing the death sentence, confirmation of death
penalty, Pardoning power of President and alternative measures to capital
punishment (Huston, 1946). An interesting argument whether death penalty
should be banned or not and constitutional validity of death penalty, reasons for
abolition of death penalty (Pannick, 1982). A constitutional debate over the
abolition of death penalty in India, constitutional validity of rarest of rare
doctrine, and also deals with judicial process (Bindal & Raj Kumar, 2013) .
India among all country which stands in favour of death penalty it is
increasingly finding itself in the margins of the world politics and international
standards on this issue. India gave reasons for this retention position(Sato,
2013) Various references from Supreme Court previous law commission reports
history of death penalty in India, penological justification of death penalty
sentencing in capital offences (Law Commission of India, 2003) . The book ask
some fundamental questions about the ultimate legal punishment awarded to
those accused of major offences (Gandhi, 2016). Reena Mary deals with social
exclusion marginalisation and antecedents to death penalty, death penalty is
constructed account by state machinery and prisoners on death row (Allen &

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Jackson, 1997) Prof.Andrew Novak deals with the development of Human

Rights and capital punishment as well as those exploring the counters of
competitive criminal justice (Novak, 2016). N.Prabha Unnithan brings together
the driverseset of 32 academics from India the US And UK who have authored
19 chapters on many aspects of crime and justice in India (Johnson, n.d.). A
very recent brutal gang rape of a eight year old child in Jammu and Kashmir
and the author have highlighted that a law should be passed to make death
penalty mandatory for those raping minor (Noorani & South Asia Human
Rights, 2012). Many the experts opinion which says that child sex abuse is a
complex crime, murder, the Societal taboo under reporting and hostility to the
victim can lead to law conviction rates (Maheshwari, 1967). A very recent gang
rape of an eight year old child in Jammu and Kashmir and provision of death
penalty for raping minors below 12 years will deter such heinous crimes in the
country (Winter, 2008)

4. Historical Background of Capital

Punishment in India
In all most all the parts of the world death sentence was in existence from the
ancient period. During the primitive conditions of society death due to violence
was an ordinary phenomena. Tribal warfare were often the very conditions of
existence. In such conditions life was very cheap, the concept of personal
vengeance dominated the theme of punishment. The Death and exile were two
principal devices which was used to eliminate the dangerous elements from the
group. Thus death sentence in those days was considered to be the quickest
mode of retribution as well as deterrence. Robertson Smith has stated that, "in
an early society, we may safely affirm that every offence to which death is
attached was viewed primarily as a breach of Holiness, for example, marrying
within the kin and incest, are branches of the holiness of the tribal blood which
would be supernaturally avenged, if men overlooked them. Capital punishment
is the strictest penalty which was awarded. The Punishment, as a rule, by and
large, depends upon the degree of culpability of an criminal act and the danger
posed by it to the society and also the depravity of the offender. The risk of
penalty is the cost of crime which the offender expects. When the sufferings is
high enough, relative to the benefit which the crime is expected to yield, it will
deter a considerable number of people and prevent them from committing the
same crime. This is true in respect of the crimes which is punishable by
awarding death sentence. The Fact that is undoubtedly admitted is that the
death sentence is justified only in extreme cases in which a high degree of
culpability is involved in causing grave danger to the society. During the
ancient period or primitive society the feelings of retaliation used to be very
high and to pay in the same coin by the kith and kin of the victim was regarded
as an honourable act and the respect which was given for life was not upto the
mark and the society was not developed into a body of responsible citizens, but
when the societies have come under the organization of State and when the

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State has assumed the role of guardian to people, it has the duty to answer and
satisfy the wounded feelings of the family members of the victim or the
convicted person who as been murdered by punishing appropriately the
murderer who had no regard for the life of the victim. Moreover, the State has
to and can ensure security to people only by punishing the guilty or wrongdoer.
It is true that the Hammurabi code “eye for an eye” cannot be the vision of
modern penology but at the same time modern penology should take note of the
point that those who have taken the mission of committing murders for gain and
bodily lust (rape resulting in death) and thereby endanger the lives of others
cannot expect to enjoy life and smile in jail.

Pre-Constitutional History and Constituent Assembly Debates

An early attempt for abolition of the capital punishment took place during the
pre-independent India, when Shri Gaya Prasad Singh attempted to introduce a
Bill abolishing the capital punishment for offence mentioned under Indian Penal
Code in the year 1931 but this was defeated. During the same period, in the
March 1931, following the execution of Bhagat Singh, Sukhdev and Rajguru by
the British government, the Congress party moved an resolution in its Karachi
session, which included a demand for the abolition of the capital punishment.
The India’s Constituent Assembly Debates between 1947 and 1949 also raised
questions around the judge-centric nature of the capital punishment and
involvement of arbitrariness in infliction of the punishment, and its
discriminatory impact on people living in poverty, and the possibility of error.

5. Religious Views on Death Penalty

In India, Death sentence is as old as the Hindu society. It was prevalent during
in India from the time immemorial. The references about death penalty in our
ancient scriptures and law books. The Hindu law givers did not find anything
abhorrent in awarding death sentence to wrongdoers, they have justified it in the
cases involving serious offences against the individuals and the state.
Generally, the death penalty was always accompanied with an infliction of
torture and was applied indiscriminately to all the offenders. During the ancient
Indian civilization knew of death sentence its desire at some point of time in
history has been affected because of "The people who were most truthful, soft
hearted and benevolent and to them vocal remonstrance sufficed. But due to the
failure of these measures corporal punishment and death sentence were inflicted
on wrongdoers in order to protect the society from violent criminals." Even
during the Buddhist age when Ahimsa was the basic rule of conduct, the
principle was not applied in the realm of penology. King Ashoka did have
allowed capital punishment. During the 4th century B.C., the science of
penology was fully developed as a subject of study and statecraft in India.
Kalidasa has beautifully stated that the need of punishment of those who deserve
it as necessary for preservation. This idea was also reflected in the Mahabharata
which stated that "if by destroying an individual or a whole family, the kingdom

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become safe and danger-proof it ought to be done (in the interest of Society)
“According to Narada wicked people should be punished by the king. A fire is
not polluted by burning, in the same way a king will not get polluted by
inflicting punishment on criminals. Brihaspati clearly stated that when the
safety of many could be ensured by destroying a single offender, his execution
was productive of religious merit. The Capital punishment and corporal
punishments was regarded as the two effective measures to ensure law and
order in the society (Hiremath, 2003)

6. Under Muslim Laws

The concept of crime and punishment is not new in the society and can be
traced back to unwritten history, though much of it has reached us through the
revealed sacred books and the written laws over a period of 35 centuries or
more. According to Mohammedan law, punishment should always be deterrent.
If An accused is found guilty he must be punished at a public place in order to
open the eyes of other potential criminal. Islamic law has prescribed that death
sentence must be awarded to premeditated murder. This point is stated through
verse 179 Sura II from the Holy Quran. "On wise person (here is safety for
your lives in death penalty and we hope that you would never violate and would
always abide by this law of tranquility. "Punishment is an natural reaction
which directly follow a physical injury caused to any living creatures as a
natural defence or resistance to the wound and pain. Aggression against any
human being, the crime of adultery, rape and defamation, the crime against
property are crimes specified in both the revealed doctrines and the laws made
by man both of which are oriented towards the -welfare of mankind, and the
social system and implementation of right and justice. Punishment for the
commission or the omission of acts prescribed under law and duties which are
commanded by Allah and is oriented towards the extended welfare, with which
the Islamic doctrine is concerned for the good of humans and to protect the
human beings and defend it from evil deeds by specification of the acts which
require implication of penalties against the offenders. First Category Of crimes :
Crimes with an impact on social lives of the people. Under this, fall the
category of crimes that badly affect the society at large. And These are further
subdivided into two types. First Kind of Crime includes those Crimes affecting
the social existence comprise offences liable to hudood which means
punishments ordained by Allah. Thus whoever is guilty of any one of these
offence shall be punished with the corresponding 'had' regardless of the victim's
which is nothing but the aggrieved party's opinion and personality of the
offender. Second Type of Crime is, the crimes affecting the social life consists
of offences includes qisas and diyat. Such offences often constitute cases of
homicide and infliction of wound whether willful or unintentional which are as
under: (1) Intentional or felonious homicide. (2) Suspected willful homicide. (3)
Unintentional homicide. (4) Wounding intentionally. (5) Wounding
unintentionally (Sharma & Bajpai, 2015)

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7. Origin of Capital Punishment in Arab

Countries
The concept of Capital punishment is a legal penalty in the United Arab
Emirates, but it is rarely carried out in the country. Under the Emirati laws,
various crimes carry the death penalty, and the only method of execution is
through firing squad. Current Emirate law allows the death penalty for apostasy
from Muslim, treason, murder, rape, theft extortion, aggravated forms of
robbery, kidnapping, terrorism, and drug trafficking, but death sentences are
frequently commuted to life sentences. In the year 1995, Sarah Balabagan, an
Filipino worker, caught the attention of most of the people living in the UAE.
She was reported to have murdered her own employer in his Al Ain house, but
she has always maintained that she only killed her employer in exercising self-
defence in order to protect herself when he tried to rape her. After sometime the
UAE president got himself involved in the case, Balabagan was set free, but
was asked to pay compensation. she deported back to her country and her right
to remain in the country was cancelled. On the day of May 20, 2015, Jennife
Dalquez, from General Santos City, Philippines, was punished by infliction of
death sentence by an Al Ain court for killing her employer on December 7,
2014. But She claimed to have stabbed her employer in self-defence when he
attempted to rape her now an appeal against her sentence with the help of the
Philippine embassy has been filed which Is still pending before the court. In the
month of June 2015, the Federal Supreme Court Of Abu Dhabi sentenced an
Emirati woman, Alaa Bader al-Hashemi, to death for the murder of Ibolya Ryan
and planting a "handmade bomb" in an Egyptian-American doctor's home in
Abu Dhabi. The Emirate woman committed the said crime in the month of
December 2014 and was executed at dawn on July 13, 2015. This is the only
case where a prisoner has been executed within such a short time frame and this
is one of the few cases of a woman being executed (“Judicial caning, Arab
Emirates, Oct 1995 - CORPUN ARCHIVE aeju9510,” n.d.)

The procedure for Death penalty in Saudi Arabia is governed by Mohammedan

law, and are based on religious interpretation and also on Sharia principles. In
Saudi Arabia, the conviction for murder requires a proof beyond a reasonable
doubt (Deokin Lee & Lee, 2010). Moreover the minimal weight is granted to
the circumstantial evidence; the bulk of evidentiary support for a conviction is
drawn from witnesses and confession. Although the principle followed in Saudi
Arabia is that a person is “innocent until proven guilty,” there is no
constitutional right to the jury trial for murder; a panel of three judges acts as an
sole fact finder. In Saudi executions are performed publicly through
decapitation, as the principle behind such execution is to teach the community a
“lesson.”

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8. Constitutional Validity of Death

Sentence in India and Role of National
Human Rights Commission
Constitution of India is an amalgam of many constitutions which means Indian
constitution includes the principles adopted from various constitutions such of
America, Britain and Japan. Many main provisions in the constitution of India
guaranteeing the right to life has been borrowed from the American constitution
and the Japanese constitutions. The right to life is not something that is created
or even confed by the constitution. The constitutional provision is only an
evidentiary value. Allan Gledhill has stated that In some of older countries the
right to life and liberty receives more effective protection from the
constitutional principles than they do in countries with constitutions elaborating
the right. The right to personal liberty enjoyed by the citizens of India is not
remarkably less than that is being enjoyed by a citizen of any other
parliamentary democracy. In a case of murder for which punishment is
prescribed under Section 302 of the IPC, the judges can choose between death
sentence and imprisonment for life. They enjoy a wide discretionary power to
that effect, but the discretion is not totally unqualified. The question of life and
death is left to the discretion of a judge. It is at this point the constitutionality of
laws providing Death Penalty becomes question. In addition to that, the Indian
constitution guarantees to every citizen a fundamental right to life and personal
liberty subject to its deprivation by the procedure form violates the citizen's
right to life. Further the provision under Art. 14 of Constitution provides
“equality before law and equal protection of the laws", which means that all the
persons are equal before law and has to equally protect the law. The concept of
equality incorporated under Art. 14 of Indian constitution finds echo in the
preamble to the constitution. Thus the Capital sentence, is therefore, an
antithesis of one's right to life

Rarest Of The Rare- Meaning And Concept: (Test of reasonableness of

Capital Punishment in India)

The Protagonists of an "eye for an eye" philosophy demand "death for death”
but The Humanists, on the other hand say that press for the other which means
death in no case. A principle has been developed in the case of Bachan Singh
v/s State of Punjab wherein the 'rarest of rare case’, the formula for imposing
death penalty in a murder case which has been upheld by the Supreme Court .

The constitutional validity of the death sentence was challenged from time to
time in numerous number of cases starting from Jagmohan Singh v. State of U.P
where the Supreme Court has rejected the argument that the death sentence is
the violation of the “right to life” which is guaranteed under article 21 of
constitution of India. In another case of Rajendra Prasad v. State of UP, Justice
Krishna Iyer has empathetically stated that death sentence is violative of articles

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14, 19 and 21 of Indian constitution, But a year later in the landmark case
of Bachan Singh v. State of Punjab, a majority of 4 to 1 (Bhagwati
J.dissenting) the Supreme Court has overruled its earlier decision given in
Rajendra Prasad case. It is expressed that the view that death Sentence , as an
alternative punishment to murder is not an unreasonable punishment and hence
it is not violative of articles 14, 19 and 21 of the indian constitution. The
Hon’ble Supreme Court in the case Of Machhi Singh v State of Punjab laid
down the broad outlines of the circumstances when death sentence should be
imposed on the offenders.

Similarly in various cases the Hon’ble Supreme Court has given its views on
death sentence and on the constitutional validity of infliction of death penalty.
But the punishment is still used in India, few years back the death penalty was
given to Mohammad Ajmal Kasab. The Pakistani gunman was convicted in the
Year 2008 who was involved in the Mumbai attack was sentenced to death by
hanging and after a long discussion, politics and debate and was finally hanged
on 21 November 2012. Next in the row of infliction of death penalty is Afzal
Guru, who was convicted in the Year 2001 for his involvement In the
Parliamentary attacks was also hanged after a long political discussion on 9
February 2013 (G & Sreeparvathy, 2013).

9. National Human Rights Commission

The UN Commission on Human Rights formulated that the Universal
Declaration of Human Rights (UDHR). The principles of UDHR was adopted
by the United Nations General Assembly in the year 1948. But the UDHR was a
nonbinding resolution, but is now considered to have acquired the force of
international customary which may be invoked in appropriate circumstances by
national and other judiciaries (Murthy, 2013). The UDHR urges member
nations to promote a number of human, civil, economic and social rights. The
adoption of the Universal Declaration is a significant international
commemoration marked each year on 10 December, and is known as Human
Rights Day or International Human Rights Day. The theme of this year’s
Human Rights Day – “Human Rights 365” encompasses the idea every day is
Human Rights Day and everybody at all times is entitled to the full range of
human rights (Inam, 2010) ) The Commission performs the following
functions, namely:

Inquire, suo motu or on a petition presented to it by a victim or any person.

1. violation of human rights – this is extremely obvious.
2. negligence in the prevention of such violation, by a public servant.
3. intervene in any proceeding involving any allegation of violation of
human rights pending before a court with the approval of such court.
4. visit, under intimation to the State Government, any jail or any other
institution under the control of the State Government, where persons are
detained or lodged for purposes of treatment, reformation or protection

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to study the living conditions of the inmates and make

recommendations.
5. review the safeguards provided by or under the Constitution or any law
for the time being in force for the protection of human rights and
recommend measures for their effective implementation.
6. review the factors, including acts of terrorism that inhibit the enjoyment
of human rights and recommend appropriate remedial measures.
7. study treaties and other international instruments on human rights and
make recommendations for their effective implementation.
8. undertake and promote research in the field of human rights.
9. spread human rights literacy among various sections of society and
promote awareness of the safeguards available for the protection of these
rights through publications, the media, seminars and other available
means.
10. encourage the efforts of non-governmental organisations and institutions
working in the field of human rights.

10. Conclusion
India has not witnessed any movement for the abolition of death sentences . But
it does not mean that no attempt was made for the abolition of death penalty.
Many number of attempts have been made to get rid of this kind of extreme
penalty. The constitutional validity of death sentence has been challenged in a
number of cases and this has been challenged on a number of grounds. The
controversy of death penalty has assumed a new significance introduced by the
Supreme Court Of India in the interpretation of Article 21 of Indian
Constitution. The epoch making and precedent shattering decision of Maneka
Gandhi Vs Union of India has laid down the doctrine of reasonable procedure
for the deprivation, of life and personal liberty that is no person can be deprived
of right to life and personal liberty except the procedure established by law. The
Supreme Court held that the procedure for the derivation of life and personal
liberty must be fair, just and reasonable and not fanciful, oppressive or arbitrary.
Thus it is clear from the study that not only Human rights Commission and
other NGO stand as an obstacle in executing the death sentence by judiciary.

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