SEMINAR PAPER, ON THE TOPIC OF ,

“CAPITAL PUNISHMENT V. LIFE IMPRISONMENT”

SUBMITTED /PRESENTED TO: DR. PROF . S.C.ROY

(ASSOCIATE FACULTY FOR CRIMINOLOGY)

ON, THE 18TH OF NOVEMBER, YEAR 2010.

CHANAKYA NATIONAL LAW UNIVERSITY

PRITHVI SREERAMANENI (42), RAHUL ANAND (47), RAHUL VARDHAN (48),

SHAILENDRA PAL SINGH RATHORE (61)
I
 STRUCTURE

AIM & OBJECTIVE

The researcher has attempted to gain an understanding of functionalities of the forces and
theories governing the implications of capital punishment and life imprisonment, within the
purview of Indian legal system as well as international legal practices.

SCOPE & LIMIT

The scope encompasses within itself the basic understanding and need for repealing of laws
propagating capital punishment.

METHODS & ANALYSIS

The methodology sought to be adopted for the purpose of this paper is largely doctrinal and
analytical.

SOURCES O F DATA
The researcher has relied on both primary and secondary sources of data. The library and
online database materials are extensively used to bring out this paper.

RESEARCH QUESTION
The main research objective is to critically examine role played by interpreting authorities in
identification of “rarest to the rarest crime”, its justification and subsequent application. Also
the pivotal aspects of life imprisonment over capital punishment that is a imperative
alternative to capital punishment through what means/theories

MODE O F CITATION
The Blue Book Mode (Cambridge Mode of Citation) has been adopted uniformly throughout
the course of the research paper.

II
 ACKNOWLEDGEMENT

I TAKE THIS OPPORTUNITY TO EXPRESS MY HUMBLE GRATITUDE AND PERSONAL REGARDS TO PROF.
S.C.ROY FOR INSPIRING ME AND GUIDING ME DURING THE COURSE OF THIS PROJECT WORK AND ALSO

FOR HIS COOPERATION AND GUIDANCE FROM TIME TO TIME DURING THE COURSE OF THIS PROJECT WORK

ON THE TOPIC “CAPITAL PUNISHMENT V. LIFE IMPRISONMENT ”

“I EXPRESS MY GRATITUDE TO THE FACULTY OF, ‘CRIMINOLGY’ FOR

THE CONCEPTS GIVEN BY HIM IN THE SUBJECT WHICH HAS BEEN
THE BASE FOR THIS SMALL PIECE OF WORK.”

YOURS S INCERELY,

GROUP NO.8
PRITHVI SREERAMANENI , RAHUL ANAND, RAHUL VARDHAN, SHAILENDRA PAL SINGH RATHORE

III
 T A B L E O F C O N T E N T S

I. I n t r o d u c t i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

II. T h e n a t u r e o f C a p i t a l P u n i s h m e n t . . . . . . . 2-21
2.1 Theologies of Capital Punishment...............................................................3-9
1) The rise of abolitionist movement
2) Theories of Punishment
3) Deterrent Theory
4) Retributive Theory
5) Preventive Theory
6) Reformative Theory
2.2 Race and death Penalty..............................................................................9-12

2.2.1 A Social Dominance Theory Explanation

2.2.2 The reality today

2.3 An Unequal Field: The Poor and the Death penalty.............................12-15

2.3.1 Poverty as a Factor in Sentencing: Mulla Vs State of UP

2.4 The Trial of Saddam Hussain..................................................................15-19

2.4.1 The Importance of Saddam‟s Trial

2.4.2 Capital Punishment as an option

(1) Offence under International Law no penalty under domestic law

(2) Penalty according to underlying Crimes

(3) Following International Precedents

2.5 Barely Conceded Murder: The Death Penalty and the Mentally
Retarded............................................................................................................19-21

III. C o n s t i t u t i o n a l V a l i d i t y o f C a p i t a l
P u n i s h m e n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23

IV. C r i t i c a l A n a l y s i s o f I n d i a n L a w i n t h e
V e r g e o f I n t e r n a t i o n a l I n s t r u m e n t . . . . . . . . . . 24-29

V. A r g u m e n t s ag a i n st D eat h P e n a l t y . . . . . . . . . . 29-34

5.1 Death Penalty and Human Rights.............................................................30-34

IV
 5.1.1 Defining Death Penalty in terms of Human Right

5.1.2 International Norms Regarding Death Penalty

(1) Universal Declaration of Human Rights.

(2) International Covenant on Civil and political right (1966).

(3) International treaties providing for abolition of Death Penalty.

(4) Second optional protocol to the international covenant on civil and

political rights:
(5) Protocol to the American convention on Human Rights.
(6) Protocol No.6 to the European Convention on Human Rights.
(7) Protocol No.13 to the European Convention on Human rights.
VI. C o n c l u s i o n s a n d S u g g e s t i o n s . . . . . . . . . . . . . . . 35-37
VII. B i b l i o g r a p h y . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI-XI

V
 I. Introduction

“I am a human being and nothing pertaining to human is alien to me”

-Karl Marx

The death penalty has been, and continues to remain, a contentious issue in the field of
criminal law and sentencing. Its supporters cite it as a vital tool in combating crime especially
stressing on its value as a deterrent, its utility as a retributive tool and the inadequacy of life
imprisonment for punishing somebody who has extinguished another life. 1 Its opponents
critique it as an anomaly from medieval times, cruel and barbaric in practice. Other
frequently levelled criticisms include the arbitrary manner of its imposition, the inherent
irony in the State emulating the murderer‟s actions and the impossibility to make amends
should proof of innocence be found later on.2 These concerns have been the primary reason
behind the recent abolitionist trend in the world. 3 The European Union has taken the lead in
this field having abolished it totally. 4

More than half of the world‟s population however still lives in countries that retain the death
penalty. 5 A major criticism levelled against the death penalty is the amount of discretion
vested in the judges during sentencing. 6 It is argued that the judge‟s personal beliefs, and not
the writ of the law, that decides who shall live or not.7 Capital punishment offers a form of
direct democracy that is scarcely found in any other sphere of public policy. 8 Judges drawn
from the ranks of the commons make the decision to take or spare the life of a convict on

1
See, inter alia, The Criminal Legal Justice Foundation‟s reasons for retaining the death penalty, Available at
<http://www.cjlf.org/deathpenalty/DPinformation.html>, Last accessed on the 11th of April 2010
2
For a non exhaustive list of the criticisms, see the Amnesty International Report on Death Penalty Worldwide,
Available at <http://www.amnesty.org/en/death-penalty>, Last accessed on the 11th of April, 2010
3
Abolitionist and Retentionist Countries in the World-A Report by Amnesty International, Available at
<http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries> Last accessed on the 11th of
April, 2010
4
Article 2 of the Charter of Fundamental Rights of the European Union, It reads “Everyone has the right to life;
No one shall be condemned to the death penalty or executed”
5
Supra, n.3
6
Supra, n.2
7
Jagmohan Singh v. State of UP , (1973) 1 SCC 20, Arguments on behalf of the plaintiff
8
Christopher Z. Mooney and Mei Hsein Lee, The Influence of Values on Consensus and Contentious Morality
Policy: US Death Penalty Reform, 1956-82, Journal of Politics, Vol.62, No.1, 225 (2000)
VI
death row, thus directly translating their personal beliefs into public policy. 9 Such beliefs may
take the form of arbitrariness in the best and outright bias in the worst. 10

This project aims to examine the veracity of this claim. It shall look at how markers like a
person‟s class, race and mental health affect his chances of being put to death. The term
disadvantaged has been therefore given wide latitude. While not exclusively India-centric,
this project also includes a study of a recent judgment of the Supreme Court of India that for
the first time considered an accused person‟s socio-economic status as a mitigating factor
during a death sentence hearing.

II. The Nature of Capital Punishment

The issue of arbitrariness in the imposition of death penalty has achieved prominence in the
discourse on death penalty since Furman v. Georgia.11 In this landmark case, the Supreme
Court of the US came around to the belief that for the vast majority of the people „eligible‟
for the death penalty, a select few were chosen to be executed on no distinguishing grounds. 12
This was a restatement of the „procedural argument‟ claim put forward by the abolitionists. 13
Even if one were to assume that certain killers need to be executed, no procedural system can
possibly identify all of them. 14 A brutal murder may see the perpetrator sentenced to death
while in an equally heinous crime the Court may find life imprisonment to be sufficient. This
holds true not only for the United States but also for India.15 The importance of this discretion
to the Supreme Court of India may be judged from their decision in Mithu v. State of
Punjab16 where the Court struck down S. 303 of the Indian Penal Code that provided for a
mandatory death sentence for murder committed by a life convict on, inter alia, it infringing

9
Barbara Norrander, The Multi Layered Impact of Public Opinion on Capital Punishment Implementation in the
American States, Political Research Quarterly, Vol.53, 773 (2000)
10
Supra, n.7
11
408 US 238 (1972)
12
CHARLES BLACK JR., CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND
MISTAKE 20 (1981)
13
W. BOWERS, LEGAL HOMICIDE 28 (1984)
14
Ibid
15
See, inter alia, Dhananjoy Chatterjee alias Dhana v. State of West Bengal (1994) 2 SCC 220 and Rahul alias
Raosaheb v. State of Maharashtra (2005) 10 SCC 322. Both cases involved rape and murder of minor girls and
the factual matrix too was very similar. While the former resulted in the death sentence being awarded (and
carried out), the latter saw the sentence being commuted to life imprisonment.
16
AIR 1983 SC 473
VII
upon judicial discretion. While general arbitrariness may be excused, if not condoned, 17
arbitrariness arising from bias cannot be.

2.1 Theologies of Capital Punishment

The state has inflicted death as a punishment, on its subjects since the ancient times. These
were times when the state and the dominant religious establishment (in some cases, the
„church‟) were hand-in-glove. Hence, some conduct was interpreted as offence against the
ruler, as well as an offence against God. The separation of the state and religion, in the
Enlightenment years, has seen theories of punishment incorporate many different
perspectives, as why the state punishes, what it seeks to achieve thereby, and hence what
method and procedure criminal punishment should take account off.

Ever since, the debates on penology have consistently questioned the appropriateness of
retribution and societal vengeance as a drive-force behind punishment. Capital punishment is
the lawful infliction of death as a punishment. The Bible prescribes death for murder and
many other crimes including kidnapping and witchcraft. By 1500 in England, only major
felonies carried the death penalty - treason, murder, larceny, burglary, rape, and arson. By
1700, however, Parliament had enacted many new capital offences and hundreds of persons
were being put to death each year.18

Reform of the death penalty began in Europe by the 1750‟s and was championed by
academics such as the Italian jurist, Cesare Beccaria, the French philosopher, Voltaire, and
the English law reformers, Jeremy Bentham and Samuel Romilly. They argued that the death
penalty was needlessly cruel, overrated as a deterrent and occasionally imposed in fatal error.
Along with Quaker leaders and other social reformers, they defended life imprisonment as a
more rational alternative.

17
See for example, Stephen Nathanson, Does it Matter if the Death Penalty is Arbitrarily Administered?,
Philosophy and Public Affairs, Vol. 14, No.2 (1985), p.149-164
18
See http://www.richard.clark32.btinter-net.co.uk/thoughts.html
(visited on 09/09/2010)
VIII
(1) The rise of the abolitionist movement.

In later years, with the progress of the human rights movement worldwide, attention has been
focused on the relative mismatch in power between the state machinery that can lawfully
inflict violence, and the individual offender. The violence of the state machinery- that is
routinely used by law-enforcing agencies like the police is a fact that cannot be denied under
any circumstances.

The fact that racial, gender, communitarian biases that exist within a society get reflected
through state agencies in the procedures of the criminal justice system, is a reality. In light of
these realities, the human rights movements, championed by organizations like the American
Civil Liberties Union, the Amnesty International, and international setups like the European
Union and the UN, have espoused the cause of humane punishment- that at the very outset,
which does not measure punishment against the brutality of the crime, but the aim of
punishment itself. Venezuela (1853) and Portugal (1867) were the first nations to abolish the
death penalty altogether. Today, it is virtually abolished in all of Western Europe and most of
Latin America.

However, the death penalty continues to be commonly applied in other nations. China, the
Democratic Republic of Congo, the United States and Iran are the most prolific executioners
in the world. The lethal injection, which is almost universal in America, is also used
extensively now in China, the Philippines, Thailand and Guatemala. Electrocution and the
gas chamber are used only in America and seem to be disappearing slowly. Stoning for
sexual offences, including adultery, may still occur in some Islamic countries. China, with a
quarter of the world's population, carries out the most executions for a wide variety of
offences. 19 The following table may facilitate the understanding of global trends on abolition
and retention of capital punishment 20:

19
Abolitionist for all crimes: 88 Abolitionist for ordinary crimes only: 11 Abolitionist in practice: 30 Total
abolitionist in law or practice: 129 Retentionist: 68
20
<http://web.amnesty.org/pages/deathpenalty-countries-eng > (visited on 10/09/2010) Table 1
IX
 Table 1.

Abolitionist of Abolitionist in Abolitionist for Retentionist till date

practice Countries
Capital Punishment ordinary Crimes
which retain the
for all Crimes death penalty for only
ordinary crimes
such as murder
but can be
considered
abolitionist in
practice in
that they have not
executed anyone
during the past
10 years.

Andorra, Angola, Algeria, Bahrain, Albania, Argentina, Afghanistan, Antigua

Armenia, Australia, Benin, Brunei Bolivia, Brazil, And Barbuda,
Austria, Azerbaijan, Darussalam, Burkina Chile, Cook Islands, Bahamas,
Belgium, Bhutan, Faso, Central African El Salvador, Fiji, Bangladesh,
Bosnia-Herzegovina, Republic, Congo Israel, Latvia, Peru Barbados,
Bulgaria, Cambodia, (Republic), Gabon, Belarus, Belize,
Canada, Cape Verde, Gambia, Ghana, otswana, Burundi,
Colombia, Costa Grenada, Kenya, Cameroon, Chad,
Rica, Cote D'ivoire, Kyrgyzstan, China, Comoros,
Croatia, Cyprus, Madagascar, Malawi, Congo (Democratic
Czech Republic, Maldives, Mali, Republic), Cuba,
Denmark, Djibouti, Mauritania, Dominica, Egypt,
Dominican Republic, Morocco, Myanmar, Equatorial Guinea,
Ecuador, Estonia, Nauru, Niger, Papua Eritrea, Ethiopia,
Finland, France, New Guinea, Guatemala, Guinea,
Georgia, Germany, Russian Federation, Guyana, India,
Greece, Sri Lanka, Suriname, Indonesia, Iran, Iraq,
Guinea-Bissau, Haiti, Swaziland, Togo, Jamaica,
Honduras, Hungary, Tonga, Tunisia Japan, Jordan,
Iceland, Ireland, Kazakstan, Korea
Italy, (North),
Kiribati, Liberia, Korea (South),
Liechtenstein, Kuwait, Laos,
Lithuania, Lebanon, Lesotho,
Luxembourg, Libya, Malaysia,
Macedonia Mongolia, Nigeria,
(Former Yugoslav Oman, Pakistan,
Republic), Malta, Palestinian
Marshall Islands, Authority, Qatar,
Mauritius, Mexico, Rwanda, Saint
Micronesia Christopher & Nevis,
X
(Federated States), Saint Lucia, Saint
Moldova, Monaco, Vincent &
Montenegro, Grenadines, Saudi
Mozambique, Arabia, Sierra Leone,
Namibia, Nepal, Singapore, Somalia,
Netherlands, New Sudan, Syria,
Zealand, Nicaragua, Taiwan, Tajikistan,
Niue, Norway, Palau, Tanzania, Thailand,
Panama, Paraguay, Trinidad And
Philippines, Tobago, Uganda,
Poland, Portugal, United Arab
Romania, Samoa, Emirates, United
San Marino, Sao States Of America,
Tome And Principe, Uzbekistan, Viet
Senegal, Serbia, Nam, Yemen,
Seychelles, Slovak Zambia, Zimbabwe.
Republic, Slovenia,
Solomon Islands,
South Africa, Spain,
Sweden, Switzerland,
Timor-Leste, Turkey,
Turkmenistan,
Tuvalu, Ukraine,
United Kingdom,
Uruguay, Vanuatu,
Vatican City State,
Venezuela

(2) Theories of punishment

With change in the social structure the society has witnessed various punishment theories and
the radical changes that they have undergone from the traditional to the modern level and the
crucial problems relating to them. In the words of Sir John Salmond -The ends of criminal
justice are four in number and with regard to the purposes served by them; punishment can be
divided as under:

XI
(3) Deterrent theory

Since the Code of Hammurabi in Babylone21 the ancient history of Punishment before all
things was deterrent, and the chief end of the law of crime is to make the evil-doer an
example and a warning to all that are like-minded with him. One of the primitive methods of
punishments believes that if severe punishments were inflicted on the offender it would deter
him from repeating that crime (J. Bentham, the founder of this theory, states: "General
prevention ought to be the chief end of punishment as its real justifycation. If we could
consider an offence, which has been, committed as an isolated fact, the like of which would
never recur, punishment would be useless”). Those who commit a crime, it is assumed, derive
a mental satisfaction or a feeling of enjoyment in the act. To neutralize this inclination of the
mind, punishment inflicts equal quantum of suffering on the offender so that it is no longer
attractive for him to carry out such committal of crimes. The basic idea of deterrence is to
deter both offenders and others from committing a similaroffence.

(4) Retributive theory

The most stringent and harsh of all theories retributive theory believes to end the crime in
itself. This theory underlines the idea of vengeance and revenge rather than that of social
welfare and security. Punishment of the offender provides some kind of solace to the victim
or to the family members of the victim of the crime, who has suffered out of the action of the
offender and prevents reprisals from them to the offender or his family.

(5) Preventive theory

Unlike the former theories, this theory aims to prevent the crime rather then avenging it.
Looking at punishments from a more humane perspective it rests on the fact that the need of a
punishment for a crime arises out of mere social needs that is, while sending the criminals to
the prisons to prevent the offender from doing any other crime and thus protecting the society
from any anti-social elements.

21
See http://www.google.com/search?q=ca- che:rM4Y
qsiMWL8J:www.hrusa.org/thisismyhome/resources/Intro_HR_and_HRE.ppt+Philosophical+and+Legal+found
ation +of+Human+Rights.+ppt.&hl=en&ct=clnk&cd=8&gl=et (visited on 10/09/2010)
XII
(6) Reformative theories

The most recent and the most humane theory, of all theories is based on the principle of
reforming the legal offenders through individual treatment. Not looking to criminals as
inhuman this theory puts forward the changing nature of the modern society where it
presently looks into the fact that all other theories have failed to put forward any such stable
theory, which would prevent the occurrence of further crimes. Though it may be true that
there has been a greater onset of crimes today than it was earlier, but it may also be argued
that many of the criminals are also getting reformed and leading a law-abiding life
alltogether. Reformative techniques also possess some elements of deterrent techniques.

2.2 Race and Death Penalty

The issue of race in the imposition of death penalty is an important one in the US where
available evidence suggests a wide difference in the way Whites and Blacks are treated by the
law.22 Since the death penalty was reinstated in 1976 after Gregg v. Georgia,23 44% of the
convicts executed have been ethnic minorities. This is in contrast to their 30% share in the
population over the same period.24

2.2.1 A Social Dominance Theory Explanation

Social dominance theory is a theory of group relations that states that societies tend to form
group based social hierarchies based on agents like nature of social ideology and aggregated
interpersonal and institutional behaviours. 25 Social dominance theory does not categorize
societies as hierarchical or not so. Instead it views social hierarchy as a continuum along

22
Death Penalty Information Centre, Available at <http://www.deathpenaltyinfo.org/race-death-row-
inmatesexecuted >1976, Last accessed on 11th April, 2010
23
428 US 153 (1976)
24
US Census Bureau-Race, Available on http://factfinder.census.gov/servlet/DTTable?_bm=y&-context=dt&-
ds_name=ACS_2008_1YR_G00_&-CONTEXT=dt&-mt_name=ACS_2008_1YR_G2000_B02001&-
tree_id=306&-
redoLog=false&-all_geo_types=N&-currentselections=ACS_2006_EST_G2000_B02001&-
geo_id=01000US&-
search_results=01000US&-format=&-_lang=en, Last accessed on April 11, 2010
25
F Pratto et al., Social Dominance Orientation: A Personality Variable Predicting Social and Political
Attitudes,
Journal of Personality and Social Psychology (1995)
XIII
which all societies can be located. 26 Therefore there is at least one dominant (or hegemonic)
group that dominates over one or more subordinate groups.27 This theory therefore views
death penalty as much more than a crime control measure. It is also an instrument of social
hierarchy enforcement through institutional discrimination. 28 If the primary function of the
death penalty was indeed crime control, then one would have expected that groups that are
the primary victims of violent crime (viz. the Blacks and the Hispanics) would have been its
most ardent supporters.29 However a trend that has been observed consistently over surveys
through the years is that the Whites are significantly stronger supporters of death penalty than
other ethnic groups.30 Political ideology and the degree of social hierarchy are other factors
that affect the use of death penalty. 31 Political conservatives in general tend to be more
supportive of the death penalty because it will never be equally applied across the social
spectrum and will always be favourably biased towards the dominant sections of the society.
As such it will further promote the cause of social hierarchy. 32 The very same reasons make
the political liberals oppose the death penalty. 33

2.2.2 The Reality Today

The connection between the race of the defendant and the likelihood of his being put to death
was ignored by the US Courts as well as the Academia till the turn of the century. There were
exceptions however. In McCleskey v. Kemp, 34 the US Supreme Court was asked to overturn
the verdict of death passed on the appellant, an African American convicted of murdering a
White police officer, on the basis of a study conducted by Prof. David Baldus that showed
that on an average a Black man accused of murdering a White person stood a risk four times
greater of being executed than if it had been the other way round. 35 In its widely criticized

26
Ibid
27
J. Sidanius and Liu J, The Gulf War and the Rodney King Beating: Implications of the General Conservatism
and Social Dominance Perspectives, Journal of Social Psychology 132 (1992)
28
J. Sidanius et al., The Death Penalty, Capital Punishment and the Beating of Rodney King: A Social
Dominance Perspective, Journal of Social Psychology 112 (1994)
29
Ibid
30
Joe Soss et al., Why do White Americans Support the Death Penalty, The Journal of Politics, Vol. 65, No.2,
397 (2003)
31
Michael Mitchell and Jim Sidanius, Social Hierarchy and the Death Penalty: A Social Dominance
Perspective,
Political Psychology, Vol.16, No.3, 593 (1995)
32
Ibid.
33
Ibid.
34
481 US 279 (1987)
35
David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the Georgia
Experience,
XIV
decision,36 the Court held that a mere discriminatory effect is not enough to hold the
Government guilty of violating the Fourteenth Amendment. A discriminatory act needed to
be proven. The Baldus Study was dismissed as an “inevitable part of the criminal justice
system”.37

Things had largely changed by the advent of the 21st century as a study by Baumgartner
found.38 Race as a factor in the handing out of capital sentences had entered the domain of
public discussion. All the states of Union that still carry out executions have formed
commissions to investigate allegations of such bias.39 As already pointed out, Blacks and
other ethnic minorities are executed in numbers far beyond their proportion in the
population.40 55% of the inmates on the death row in the United States today belong to ethnic
minorities.41 In interracial murder cases while only 15 Whites have been executed for
murdering a person of the other race, no less than 242 Blacks have been executed for the
same offence. 42 Beyond plain statistics, this has been borne out by academic studies as well. 43
All this in a country that is around 70% White! Evidence has also been presented for the
phenomenon of „jury-bleaching‟ where African- Americans are excluded from jury pools by
District Attorneys in capital cases. 44

The American public has come around to accept this interplay between race and the death
penalty as a fact of life. All kinds of racial stereotypes are used by many White Americans to
justify these disproportionate statistics. 45 A perception of discrimination has also taken root
among the African-American population who see the death penalty as a highly racial form of

Journal of Criminal Law and Criminology, Vol.74, No.3, 750 (1983)

36
Anthony G. Amsterdam, Race and the Death Penalty Before and After McCleskey, Columbia Human Rights
Law Review, Vol.39, 34 (2007)
37
Supra, n.30
38
Frank R. Baumgartner et al., An Evolutionary Factor Analysis Approach to the Study of Issue-Definition,
Meeting of the Midwest Political Science Association (2004)
39
Ibid
40
Supra, n.18.
41
Ibid.
42
Ibid.
43
Thomas Keil and Gennaro F Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976-91,
American
Journal of Criminal Justice, Vol.20, No.1, 17 (1995)
44
Mark Peffley and Jon Hurwitz, Persuasion and Resistance: Race and the Death Penalty in America,
American
Journal of Political Science, Vol.51, No.4, 998 (2007)
45
Franklin Gilliam and Shanto Iyengar, Prime Suspects: The Influence of Local Television News on the Viewing
Public, American Journal of Political Science, Vol.44, No.3, 560 (2000)
XV
punishment.46 This finds support in the studies that have shown that while Blacks and Whites
favour equally punitive punishment for criminals, Blacks are far less likely to support the
death penalty out of fear of victimization.47 Put simply, the death penalty is a form of state-
tolerated, if not sponsored, violence perpetrated on the ethnic minorities, one of the faces of
oppression identified by Iris Young.48

2.3 An Unequal Field: The Poor and the Death Penalty 49

Unlike racial discrimination in the imposition of death penalty where an obvious bias sends
ethnic minorities to their deaths, the relationship between poverty and death penalty is a lot
more complex. Class describes an individual‟s position with respect to the central economic
and cultural institutions of society and, in turn, relates that position to the social resources
available to the individual. 50 Keeping this in mind it is perhaps a safe guess to hazard that in
countries that impose the death penalty today, the difference between those who escape the
gallows and those who don‟t is one of wealth. 51

The right to legal representation forms the bedrock of our justice system. However it also
must be recognized at the same time that merely having a lawyer will not do in capital
punishment cases where winning or losing a case is a life or death question. Therefore as
Bright argues, the right to a competent lawyer is essential in such cases.52 The importance of
a competent lawyer is even greater in the adversarial system especially in the US where the
jury system is followed. The poor, who are generally forced to rely on a Court appointed
public defendant, probably have their fate sealed at that stage. The standard of the Public

46
Robert Young, Race, Conceptions of Crime and Justice, and Support for the Death Penalty, Social
Psychology
Quarterly, Vol.54, No.1, 67 (1991)
47
Steven Cohn et al., Punitive Attitudes towards Criminals: Racial Consensus or Racial Conflict?, Social
Problems, Vol.38, No.2, 287 (1991)
48
IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 61 (1990)
49
This segment and the one following it draw heavily on Amnesty International and PUCL, Lethal Lottery-The
Death Penalty in India, May 2008, especially for their India related sections
50
Carroll Serron and Frank Munger, Law and Inequality: Race, Gender…and, of Course, Class, Annual Review
ofSociology, Vol.22, 188 (1996)
51
Jefferey L. Johnson and Colleen F. Johnson, Poverty and the Death Penalty, Journal of Economic Issues,
Vol.35, No.2, 519 (2001)
52
Stephen B. Bright, Race, Poverty, the Death Penalty, and the Responsibility of the Legal Profession, 1 Seattle
Journal of Social Justice, 73 (2003)
XVI
defendants is abysmally low, even in the US. For instance, in the case of Smith v. Kemp, 53 the
lawyers for the defence, unaware of a recent Supreme Court decision 54 that mandated an
adequate representation of women in the jury for the trial to be not violative of the Sixth
Amendment,55 failed to demand the same. His financially better off co-accused‟s lawyers
however did. As it turned out, the latter got a retrial where he was sentenced to life
imprisonment while Smith was sentenced to death. He was executed on December 15, 1983.
A relative deprivation in terms of income leading to a lower standard of legal aid available
becomes an absolute one as the death penalty has no midway. 56

The very scale of such miscarriages of justice is staggering. More than a hundred people on
the death row in Japan are indigents who could not afford their own lawyers and depended on
state supplied legal aid.57 Similarly in Malaysia, more than 270 out of the 300 on death row
fall below the poverty line.58 In Arab Countries, where the victim‟s family may let the
murderer off the hook on his paying the diyat (blood money), the poor are at an obvious
disadvantage owing to their inability to pay.

India has both signed and ratified the International Covenant on Civil and Political Rights.
Article 14(3)(d) of the Covenant states that at the minimum, every accused shall have the
right to legal aid, without payment, if necessary. This is codified in Indian law under Section
304 of the Criminal Procedure Code, 1973. While evidence from the trial court stage is
scarce, there have been many cases where the Supreme Court has lamented either the quality
of, or absolute lack of, legal aid being rendered to the accused.

In Janardan Reddy and ors v The State,59 the Supreme Court while conceding the fact that
the Trial Court should have arranged for some sort of legal aid for the indigent accused,
nevertheless held that the lack of such legal aid would not vitiate the trial.

53
715 F.2d 1459 (11th Cir. 1983)
54
Taylor v. Louisiana, 419 US 522 (1975)
55
The Sixth Amendment to the US Constitution provides for the accused‟s rights during criminal prosecution
56
AMARTYA SEN, DEVELOPMENT AS FREEDOM 89 (1999): Sen argues that being poor in a rich country
is a great capability handicap. More income is needed to buy enough commodities (in this case legal aid) to
achieve the same social functioning. Thus while the rich get away owing to their better lawyers, the poor have
no such luck.
57
IPS Death Abolition Project, Poverty and Capital Punishment Go Hand in Hand, October 17th, 2007.
Available at http://ipsnews.net/news.asp?idnews=39683, Last accessed on 12th April, 2010
58
Ibid.
59
AIR 1951 SC 124
XVII
In Bashira v. State of Uttar Pradesh,60 where a person sentenced to death had had his lawyer
appointed on the morning the witnesses were examined, the Supreme Court ordered a retrial
giving a strict interpretation to procedure established by law. However, barely three years
later, in an almost identical case,61 the Court took the opposite view holding that the
witnesses to be examined were not important.

The litany of cases where poor legal aid led to the accused‟s damnation is a long one indeed.
It is perhaps not surprising given the remuneration of Rs.60 that is paid to senior lawyers who
take up legal aid cases. In Durga Domar v. State of Madhya Pradesh,62 the Court stated that
as the accused had a legal aid lawyer, it is possible that they would have never
communicated! In Sheikh Ishaque and Ors v. State of Bihar,63 the Court castigated the High
Court for upholding a death sentence even when the legal aid lawyer had not made any pleas
regarding the sentence.

2.3.1 Poverty as a factor in sentencing: Mulla v. State of UP64

The accused in this case were charged with the murder of four people, including a woman.
The facts of the case were never in doubt and they were consequently sentenced to death by
the Trial Court. The High Court upheld the verdict leading them to approach the Supreme
Court. Here too their guilt was found to be proven beyond doubt. However the Court took a
novel stance as far as the sentence was concerned. Referring to their “circumstances
generally”, the Court took into account the 48th Law Commission Report that had suggested
that many a times crime is the result of socio-economic factors. While not a justification for
crime, such reasons may be counted among the mitigating circumstances in the Court‟s
opinion. The Court also ventured its opinion that socio-economic emancipation may lead to
the criminal‟s reform. To quote from the judgment, “...they have committed these heinous
crimes for want of money. Though we are shocked by their deeds, we find no reason why
they cannot be reformed over a period of time.” 65

60
AIR 1968 SC 1313
61
Husaina v. State of Uttar Pradesh, AIR 1971 SC 260.
62
(2002) 10 SCC 193.
63
(1995) 3 SCC 392.
64
Criminal Appeal No. 396 of 2008.
65
Ibid, Para 55.
XVIII
The distinguishing facet of this case, thus, is its addition of socio-economic factors to the list
of mitigating circumstances. The „socio‟ bit has been overlooked in the decision as the judges
confined themselves to discussing economic backwardness as a reason for crime. A laudable
observation of the Court was its linking economic poverty with ability to reform. “It may not
be misplaced to note” the Court says, “that a criminal who commits crimes due to his
economic backwardness is most likely to reform.” The implications of this one statement are
indeed far reaching. The motivations for an economic crime for a poor man are usually
procuring basic necessities of life for him and his family. As rightly remarked by the Court,
this fact itself cannot be taken to be an excuse for crime; however it must not be lost sight of
either. Where it becomes relevant is in the matter of sentencing where attempts at reform are
usually very successful with the miserably poor, most of whom are first time criminals,
drawn to crime by necessity. Hanging a person for a hunger induced crime will be as much a
miscarriage of justice as freeing him on the same count. The Court‟s via media of
incarcerating him for a sufficiently long period to serve the ends of justice while at the same
time attempting to reform him is praiseworthy. 66

2.4. The Trial of Saddam Hussain

Brief Facts of the Trial:

Iraqi authorities put Saddam Hussein and seven other former Iraqi officials on trial on
October 19, 2005 four days after the October 15, 2005 referendum on the new constitution.
The first trial of Saddam Hussein began before the Iraqi Special Tribunal on October 19,
2005. In this case Hussein, along with seven other defendants, was tried for allegations of
crimes against humanity with regard to events that took place after a failed assassination
attempt in Dujail in 1982, Hussein and the others were specifically charged with the killing of
143 Shiites. 67 On November 5, 2006, Saddam Hussein was sentenced to death by hanging.
An appeal, mandated by the Iraqi judicial system, followed. However, on December 26,
Saddam's appeal was rejected and the death sentence was given. No further appeals were
possible and sentence was to be executed within 30 days of that date. On 30th December,

66
Abdaal M. Akhtar and Mrinal Meena, To Hang or Not to: A Case Comment on Mulla v. State of UP, AIR
Web Journal, April 2010
(Christian Eckart, “Saddam Hussein‟s Trial in Iraq: Fairness, Legitimacy and Alternatives,
67

A Legal Analysis”, Cornell Law Rev 2006).

XIX
2006 (Id ul-zuha – the Muslim day of forgiveness) Saddam Hussein, embraced the gallows
with face uncovered and Quran in hand at 06:05.68

2.4.1 The Importance of Saddam‟s Trial

With the questioning of Saddam Hussein in front of the Iraqi High Criminal Court, a trial
began that has been labelled by some as “the trial of the century”. 69 Whether this is true or
not, the proceedings in Baghdad received high publicity and were under close scrutiny by
major human rights organizations, legal experts, and indeed the general public. Why does the
trial attract so much attention one may wonder and why do so many people care about
ensuring fair proceedings for an ex-dictator on trial for major human rights violations, a
dictator that himself made extensive use of a special Revolutionary Court guaranteeing fast
executions but by no means due process of law.

The answer to this is two-fold; firstly, there is the hope that this trial might serve as a model
for Iraq and might help to re-establish trust in the judicial system and its protection against
the deprivation of rights which has been strongly eroded by the past 23 years of Saddam‟s
reign and to thereby allow the country a “new start” based on firm legal principles.70
Secondly, by holding Saddam accountable, the current criminal proceedings add another
name to the list of recent precedents in which heads of state had to face charges for violating
international law. The trial might thereby serve as another mosaic stone in establishing the
rule of law and deter others from stepping over the lines drawn by international agreements
and custom in the area of international criminal law71.

2.4.2 Capital Punishment as an Option

68
Issam Saliba, “Comments On The Indictment Of Saddam Hussein”
<http://www.loc.gov/law/public/saddam/saddam_prin.html> (visited on 9/9/2010)]
69
See Michael Scharf, “Grotian Moment: Is the Saddam Hussein Trial one of the most important trials of all
time?” Issue # 10 http://www.law.case.edu/saddamtrial/; “The Trial of the Century”, CBS News, April 22, 2006,
<http://www.cbsnews.com/stories/2003/12/15/news/opinio n/court-watch/main588751.shtml> (visited on
09/09/2010)].
70
Goldstone, “The Trial of Saddam Hussein: What Kind of Court Should Prosecute Saddam Hussein And
Others For Human Rights Abuses?” 27 Fordham Int‟l L.J. 1490, 2003-2004 at 1503-1504
71
See the proceedings against General Pinochet in Spain and Chile, against Slobodan Milosevic in front of the
ICTY, the Ex Rwandan Prime Minister Kambanda in front of the ICTR and now against former Liberian Head
of State Charles Taylor in
front of the Special Court for Sierra Leone
XX
In its closing argument on June 19, 2006, the prosecution in the Al-Dujail trial demanded the
death penalty for Saddam Hussein and three of his co-defendants. This demand and the final
verdict of the Tribunal raise the issue- whether the death penalty was even available under
Iraqi law for the offence of crimes against humanity. Over the last decade, the international
legal community has witnessed the establishment of a variety of international and national
tribunals that have had to come to terms with capital punishment. The latest tribunal formed,
and perhaps the most prominent, is the Iraqi tribunal where Saddam Hussein has been
accused of crimes against humanity, in order to determine whether the Iraqi Special Tribunal
(IST) could actually award the death penalty, the following issues have to be examined:

(1) Offence under international law no penalty under domestic Law.

Saddam Hussein and his co-defendants are charged in the present trial with the international
offense of crimes against humanity. It is not clear whether the charges are based on
international or domestic criminal law. While international criminal law has recognized this
offense for about sixty years, Iraq is yet to incorporate this offense in its domestic law. The
IST was established by the Iraqi law; therefore, matters of jurisdiction and procedure of the
Tribunal should be decided by the Iraqi Penal Code. However, The Iraqi Penal Code does not
include a penalty for the international offense of crimes against humanity as the offense has
not been made a part of the domestic law.

(2) Penalty according to underlying Crimes.

The side arguing for the award of the death penalty stated that the penalties to be applied to
those convicted of committing the international offense of crimes against humanity must be
equivalent to those penalties assigned to underlying crimes which constitute the physical
elements of the international offense, such as murder and rape. Penalties for such crimes
include capital punishment. The logic of this argument is strengthened by virtue of the fact
that it would be hard for the public to accept a decision where a lesser offense, such as
murder, gives rise to capital punishment while a more serious crime, such as the offense of
crimes against humanity, gives rise to only a prison sentence. 72

72
Issam Michael Saliba, “Is The Death Penalty An Option In The Trial Of Saddam Hussein?”
http://www.loc.gov/law/public/saddam/saddam_capi.html (visited on 09/09/2010)
XXI
The opposing argument on this count is that any interpretation suggesting that the penalties
for the international offense of crimes against humanity are those assigned to its underlying
crimes is misconceived on the basis that an international offense is separate and distinct from
its underlying crimes. This argument is supported by the sentencing judgment in The
Prosecutor v. Drazen Erdemovic73 in which the International Tribunal for the former
Yugoslavia rejected the proposition that the penalties for the international offense
of crimes against humanity must derive from the penalties applicable to its underlying crime
(The ICTY held that, “…It might be argued that the determination of penalties for a crime
against humanity must derive from the penalties applicable to the underlying crime. In the
present indictment, the underlying crime is murder …. The Trial Chamber rejects such an
analysis. Identifying the penalty applicable for a crime against humanity – in the case in point
the only crime falling within the international Tribunal's jurisdiction - cannot be based on
penalties provided for the punishment of a distinct crime not involving the need to establish
an assault on humanity…”)

(3) Following International Precedents:

Further the Iraqi Penal Code has a provision which directs the judges to follow the precedents
and penalties imposed by other international criminal tribunals if the penal code has no
relevant provisions. By reviewing the statutes, precedents and penalties of international
criminal tribunals, one would recognize clearly that the death penalty is not permitted in any
of these international forums. As an example, Article 77 of the International Criminal Court
specifically excludes the death penalty as a punishment for crimes against humanity or any
other international offenses. The Court is allowed to only impose imprisonment for a
specified term not to exceed thirty years or a term for life "when justified by the extreme
gravity of the crime and the individual circumstances
of the convicted person."74

Article 24 of the Statute of the International Criminal Tribunal for the Former Yugoslavia
(ICTY) provides that "the penalty imposed by the Trial Chamber shall be limited to

73
Case No. IT-96-22-T, T.Ch. I, Nov. 29, 1996,
<http://www.un.org/icty/erdemovic/trialc/judgement/erdtsj961129e.htm.> (visited on 09/09/2010)
74
Rome Statute of International Court, July 1, 2002, Art. 77, <http://www.icccpi.
int/library/about/officialjournal/Rome_Statute_120704- EN.pdf> (visited on 10/09/2010).
XXII
imprisonment."75 The Tribunal is not authorized, therefore, to impose the death penalty,
regardless of the circumstances and the gravity of the crime. Article 23 of the Statute of the
International Criminal Tribunal for Rwanda, 76 contains a similar provision, which prevents
the trial judges from imposing the death penalty. Article 19 of the Statute of the Special Court
for Sierra Leone provides that "the Trial Chamber shall impose upon a convicted person,
other than a juvenile offender, imprisonment for a specified number of years". 77 Since there
have been no death penalty judgments issued by any international criminal courts subsequent
to those issued by the Military Tribunal of Nuremberg in 1946, it may be argued that the
special court trying Saddam Hussein could not legally impose the death penalty where there
is conviction for crimes against humanity. 78

2.5 Barely concealed murder: The Death Penalty and the Mentally Retarded

“The Death sentence shall not...be carried out on persons who have become insane.”
- Safeguard 3, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death
Penalty, United Nations

The lack of authoritative information on mental retardation means that every year,
retentionist countries around the world execute people who had no idea they were committing
a crime when they did what they did. The American Association on Mental Retardation
defines it as an IQ below 70, limitations in adaptive behaviour (for example interpersonal
communication skills) and evidence that all these became apparent before the age of
eighteen. 79 Stigmatized and shunned by the society, the mentally retarded frequently suffer

75
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc.
S/25704 at 36, Art 24,< http://www1.umn.edu/humanrts/icty/statute.html,> (visited
on 10/09/2010).
76
Statute of the International Criminal Tribunal for the Prose-cution of Persons Responsible for Genocide and
Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and
Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of
Neighboring States, Aug. 14, 2002, Art. 23,= <http://www.ohchr.org/english/law/itr.htm> (visited on
10/09/2010)
77
Statute of the Special Court for Sierra Leone, Jan. 16, 2002, Art.19, ed on 10/09/2010)
78
Issam Michael Saliba, “Is The Death Penalty An Option In The Trial Of Saddam Hussein?”
<http://www.loc.gov/law/public/saddam/sad-dam_capi.html> (visited on 10/09/2010)

79
Diagnostic and Statistical Manual of Mental Disorders-Mental Retardation, Available at
XXIII
from a sense of devaluation. Coupled with the poverty they generally live in, it is the easiest
thing for an ignorant society to condemn them to death.80

The situation in the United States is complex. While the Supreme Court has held in Ford v.
Wainwright,81 that executing the insane is ultra vires the Constitution, it has left the definition
of „insane‟ to the States. This leads to the cases discussed here.

In the case of Horace Dunkin, the fact that he was in special education, had an IQ of 56 and
was impaired in his intellectual functions was never disclosed to the jury by the inefficient
Court appointed lawyers who never bothered going into his school records. The members of
the jury later wrote a letter to the Governor stating that they would have never held him guilty
if they had been properly informed. 82 In the case of James Colburn,83 the prosecution never
disputed the fact that the defendant suffered from paranoid schizophrenia and hallucinations
and had a history of committal to psychiatric clinics. Yet the Court never considered it as
reason enough to not execute him. So unfit was he that he was heavily sedated by anti
psychotic drugs during his trial and spoke nary a word.

The record in India is relatively brighter, at least in the reported cases. Section 84 of the
Indian Penal Code provides insanity as a general defence. The term is vague however and
leaves much to the discretion of the judges who apply it in the way they please.

In Amrit Bhushan Gupta v. Union of India and Ors,84 the Supreme Court rejected a petition
seeking a stay on the execution of a person with schizophrenia by observing that “(we)
assume that at the time of trial, he had been...given proper legal aid...and did not suffer from
insanity.” This was after the High Court as well as an expert committee had unequivocally
voiced their concerns over his mental health.

<http://emedicine.medscape.com/article/289117-overview> Last accessed on 13th April, 2010

80
Ruth Luckasson, The Death Penalty and the Mentally Retarded, 22 Am. J. Crim. L. 276 (1994)
81
477 US 399 (1986)
82
2 Electric Jolts in Alabama Execution, The New York Times, 15th July 1989. Available at
<http://www.nytimes.com/1989/07/15/us/2-electric-jolts-in-alabama-execution.html?pagewanted=1> Last
accessed on 14th April, 2010
83
The Death Penalty as applied in Texas: A Case Study of James Colburn, Available at
<http://www.tcadp.org/uploads/images/mental%20illness/James%20colburn%20Case%20Study.pdf> Last
accessed on 14th April, 2010
84
(1977) 1 SCC 180
XXIV
A miscarriage of justice is however not the only fear of the accused. In many cases where the
High Court or the Supreme Court discharge the defendant under Section 84, they send him to
mental hospital for „treatment‟ where he languishes for years, or even decades, before the
doctor or the Court adjudges him fit to be released. A life term without parole, for ironically
enough, committing no offence under the law.

III Constitutional Validity of Capital Punishment

In India, criminal trial is based on accusatorial system, and accordingly, the accused is
presumed to be innocent unless his guilt is proved beyond reasonable doubt. 85 The burden of
proving guilt lies on the prosecution and not on the accused. To quote Supreme Court
judgment on the Presumption of Innocence:
“It is true that wrongful acquittal are undesirable and shake the confidence of the
people in the Judicial system, much worse however is the wrongful conviction of an
innocent person, the consequences cannot but be felt in a civilized society.”86
Starting from the investigation, during the trial and even after conviction of an accused, there
are elaborate safeguards, which ensures the fulfilment of above principle. 87 Moreover, in

85
See K.M. Nanavati Vs State of Maharashtra, AIR 1962 SC 605; Kali Ram Vs. State of Himachal Pradesh,
1973) 2 SC 808. See Article 14 (2) of International Convenient on civil and Political Rights, 1979.
86
See Dharam Das Vs. State of Uttar Pradesh, (1974) 4SC 267.
87
See Following safeguards are provided under the Indian Evidence Act, 1872 - Under section 54 previous bad
character on an accused is not relevant in criminal trail except in reply; Under Section 24 confession caused by
inducement, threat or promise is irrelevant; Under Section 25 confession to police officer is irrelevant; Under
Section 26 confession caused while in police custody is irrelevant; Under Section 59 and 60 hearsay evidence is
no evidence; Under Section 104 and 105 burden of proof always lies on the prosecution; Under Proviso to
section 162 the statement given to police officer under section 161 of the code of criminal procedure, 1973 can
only be used to contradict the witness and cannot be used for corroboration; Under Section 137, 145 and 146 the
provision for cross-examining the witness produced by the opposite party; under section 165 judge is given
ample power to ensure that fair trail take place and he can ask any question at any time.
Following Safeguards are provided under the constitution of India, 1950- Immunity from double prosecution
under Article 20; Right to life Under Article 21, Right Against Preventive Detention under Article 22, Rights to
Seek Pardon in case of death sentence under Article 72; Right to commute etc., death sentence under Article
161; Right to prefer appeal to Supreme Court if acquittal is reversed into death sentence by the High Court
under Article 134 (a).
Following Safeguards are provided under the Indian Penal Code, 1860: General exceptions are provided under
Chapter-IV from Section 76 to 106; only the gravest form of culpable homicide is defined as murder under
Section 299 and 300; Five exceptions are provided under proviso to Section 300, viz, grave and sudden
provocation, exceeding private defence, murder with consent, murder in a sudden fight in a heat of passion,
murder by public servant exceeding the power given to him by law. Following safeguards are provided under
the code of criminal procedure, 1973 examination of an accused to enable him personally to explain the
circumstances appearing in the evidence against him under section 313; a sentence of death shall not be
executed unless it is confirmed by the high court under section 366; If such confirmation proceedings are
submitted the high court may examine itself or direct further inquiry or the taking of additional evidence Under
XXV
criminal trial the degree of probability of guilt is very higher than civil law. If there is any
slightest doubt on the guilt of an accused, the benefit of it has to be given to the accused,
which might result in his acquittal. As observed by the Supreme Court, if the case is wholly
based on circumstantial evidence, then all the circumstances brought out by the prosecution
must evitable and exclusive, and should point to the guilt of the accused and there should be
no circumstances which may reasonably be considered consistent with. 88

Moreover, in India the capital punishment is constitutionally89 as well as legally valid90

because it is applied in accordance with the procedure established by law. 91 Accordingly, the
State can take action against a person by convicting him/her, but there is a procedure for
conviction of a person and that procedure has to be established by law itself. 92 The discretion
to inflict this extreme punishment depends upon the facts and circumstances surrounding the
commission of each particular offence. The facts and circumstances of one case need not
necessarily be similar or same as another case. So, it is not possible to lay down an
exhaustive list of the cases in which death sentence can be awarded. However, this discretion
has to be applied rationally and judicially i.e., only when the circumstances call for a
deterrent punishment and not otherwise. 93 To quote Supreme Court, it was observed that:
A Balance Sheet of aggravating and mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the aggravating and mitigating
circumstances before the option to award the death sentence is exercised. 94
The Apex Court articulated more limitations on the frequent use of death sentence by laying
down the doctrine of "rarest of rare" cases. Accordingly, this extreme punishment can be

section 367; High court may confirm, annual the conviction or acquit the accused or pass any other sentence
under section 368; An accused can file appeal against his conviction under section 374 and 379.
th
88
Dr. Avtar Singh "Principles of the Law of Evidence",(13 ed) 2002, p.21; Batuk Lal, “ The Law of Evidence”
th
(15 ed.)2001 p.12 .
89
Jagmohan Singh Vs. State of Uttar Pradesh, AIR 1973 SC 947; Gregg Vs. Gerogia, 428 US 195 (1976).
90
Shanker Vs State of Tamil Naidu, 1994, Cr LJ.925
91
According to Article 21 of the Constitution (Protection of Life and Personal Liberty) reads, as "No person
shall be deprived of his right and personal liberty except according to procedure established by law."
92
In Menaka Gandhi Vs. Union of India, (197) 2 SCR 621. The Supreme Court held that the phrase "Procedure
established by law" meant that every law limiting personal liberty had to be "fair, just and reasonable" in both its
procedural and substantive provisions".
93
Eidga Anmma Vs State of Andhra Pradesh, AIR 1974 SC 797; Amba Ram Vs State of Madhya Pradesh, AIR
1976 SC 2196; Balwant Singh Vs State of Punjab, AIR 1976 SC 230.
94
In Macchi Singh Vs State of Punjab, (1983) 3 SCC 470, The Supreme Court held that before awarding death
sentence, the court should look into the manner of the commission of crime, motive, Anti social or socially
abhorrent nature of the crime, magnitude of the crime. Further, the death sentence could be impose only if it is
compelled by the state security, public order and interest of the general public.
XXVI
awarded rarely, only when the culpability assumes the proportion of extreme depravity. This
landmark decision has made “life imprisonment as a rule and death sentence is an
exception. 95 Moreover, death sentence is not the only punishment 96 for murder, but an
alternative one, so it is not unreasonable under Article 14 of the Constitution of India. 97 In
fact, international instrument is abolished death penalty under the optional protocol II of the
ICCPR, as well the Courts in India are not awarding death sentence in all circumstances but
the principle rarest of rare cases is strictly followed and by this way complying the
international law. 98 In this context, it is worth to mention that the 35th report of the Law
Commission of India, which is the basis of retention of capital punishment on the statute
book. It reads as: Having regard to the condition in India, to the variety of social upbringing
of its inhabitants, to the disparity in the level of morality and education, emergence of
terrorism on a large scale in the country and the paramount need for maintaining of law and
order in the country, India cannot risk the abolition of capital punishment. 99

95
Bacchan Singh Vs State of Punjab, AIR 1980 SC Para 199; Jumman Khan Vs. State of Tamil Naidu, AIR
1989 SC 396; Kishor Vs. State of Delhi, 2000 Cr.L.J 756 (SC) Para 13, 14; Om Prakash Vs. State of Haryana,
(1999) 3 SCC 19.
96
Under section 367(5) of the old code of criminal procedure, 1898, a person convicted for murder was to be
sentenced to death as a normal rule and if a lesser punishment was intended to be imposed, special reason were
to be recorded in writing. Accordingly, death sentence was the rule and life sentence was an exception. This
section was amended. According to new section 354 (3) of the Criminal Procedure Code, 1973, if the judge
awards death sentence he has to give special reasons, which means special facts and circumstances justifying
the imposition of this extreme penalty. Now death sentence is an exception and life imprisonment as a rule.
97
According to Article 14 of the Constitution of India, 1950, "the state shall not deny to any person equality
before the law or the equal protection of law within the territory of India."
98
In Bacchan Singh Vs State of Punjab, AIR 1980 SC 898, the apex court held that International law does not
prohibit or abolish death penalty totally but made on option available to the member states to go for abolition
in their countries. Further, Article 21 of the constitution of India and Article 6, clause (1) and (2) of the
international convenient on civil and political rights, 1979 are same. In fact, judiciary in India, is fulfilling its
international obligations as this extreme penalty is not applied in every case, but rarely i.e. it is not arbitrarily
conventions, 1949, provides death penalty but with restrictions; second optional protocol to the international
convention on civil and political rights (adopted by general assembly in 1989) Article 1 provides total abolition
but Article 2 allows state party to retain it if they make reservation to that effect at the time of rectifying or
acceding it, Protocol 6 to the European convention for the protection of Human rights and fundamental
freedom (adopted by council of Europe in 1982) Article provides for abolition of death penalty in peace time
but Article provides that the state party may retain it for crime in a war or threat of war; protocol to the
American Convention of Human rights (adopted by General assembly of the organisation of American States in
1990) Provides abolition of death penalty but allows state party to retain it if they make reservation to that
effect at the time of rectifying or acceding it; Post-World War-II, the statute of Nuremberg and Tokyo Tribunals
provided mandatory death penalty; Article 5 of European convention of Human Rights (1949) provides death
penalty in a time of war. Article 4 of American Convention on Human Rights(1978);Article 6(2)of International
Covenant of Civil and Political Rights(1978).
th
99
35 Report of the Law Commission of India (1967); Shashi Nayar Vs. Union of India, AIR 1992 SC 395.
XXVII
IV Critical analysis of Indian Law in the verge of International Instrument

The careful analysis of the Indian law is revealing, how India is flouting its international
obligations, that capital punishment is awarded not only in the rarest of rare cases but also on
a wide variety of the cases.100 Infact, the doctrine of rarest of rare case is superfluous as it is
vague and incomplete. The Apex Court held that death penalty is awarded in the rarest of
rare cases only but it is not further defined. The judiciary has evolved its own jurisprudence
in evaluating which cases are to be considered as "rare" and which are not on an
inconvincible reasoning. A close analysis of various decisions in which capital punishment
was upheld on the basis of above doctrine would reveal that no uniform guidelines exist for
its application. Its application is largely dependent on the subjective satisfaction of an
individual judge. The quantum of punishment varies according to the nature of a judge. In
other words, subjective satisfaction of a Judge plays an active role in awarding "death" or
"life".

A significant number of legislative acts provides death sentence as an option. Moreover, the
above-mentioned doctrine only covers those offences, which are punishable under Indian
penal code. Therefore, it is inapplicable on those offences, which are covered under the other
acts. In India, special courts also award death penalty summarily. In such cases even the basic
provisions of criminal law has been diluted, for example, presumption of innocence,

100
Under the Indian Penal Code, 1860, the following offences are punishable with death; under section 149 for
abetting any death eligible offence; under section 121 waging war against the government of India; under
Section 132 abetting mutiny actually committed; Under Section 194 Giving or fabrication false evidence upon
which an innocent person suffers death; under section 302 for murder, Under section 303 for murder by a life
convict (now abolished); under Section 305 for Abetment of suicide of a minor or insane or intoxicated person,
under section 307 for attempt to murder by a person under sentence of imprisonment of life, if hurt is caused.
Section 34 of the Army Act, 1950, shamefully abandoning a post; under section 37 for muting, under section 38
for desertion; under section 66 for abetment of offences punishable with death which have been committed. The
Air force Act, 1950, under Section 35 for shamefully abandoning a post; 37 for mutiny; 38 for derision; 68 for
abetment of offences punishable with death. Under the Navy Act, 1956, under Section 35 for failing to prepare
for action against the enemy, Section 36 for discouraging action; Section 37 for desertion a post or sleeping on
watch; section 38 for spying for enemy; section 39 for assisting enemy; section 43 for mutiny; section 44,
seducing Naval personnel from allegiance; section 49 for desertion to the enemy; section 56 for failing to
defends ships etc; section 59 for arson; section 76 abetment of offences punishable with death; similarly death
sentence is also provided under the arms act 1959; under schedule castes and schedule tribes (Prevention of
Atrocities Act); under prevention of terrorism Act, 2002 (now abolished).
XXVIII
confession, burden of proof etc. 101 In fact, the government of India is trying to widening its
scope to less serious offences102 which does not even come within the frame work of rarest
cases and is against international humanitarian law as well. 103 In many acts capital
punishment is mandatory.104 The mandatory nature of the capital punishment offence is the
cannon of criminal jurisprudence as well as the principle of natural justice, Audi Alteram
Partem. It totally excludes judicial discretion, as the court has no other option to impose any
other sentence. Once it is proved that the accused has committed the crime, the court is bound
to award death sentence only and nothing more or nothing less than that. Moreover, in many
cases, the court has applied this extreme punishment for punishing political murders. 105
Conviction of an accused can be solely based on an uncorroborated testimony of an
accomplice who himself is a participant in crime. 106 The court can award death sentence
purely on circumstantial evidence 107 or even on plead guilty of an accused. 108

Though legislation on a specific field is a matter of law and not of prudence, but it has proved
otherwise. It is one of the essential functions of the legislature that decide the category of
cases in which the capital punishment could be imposed. But instead of deciding this crucial
issue the legislature has left this task on the sweet will of the judiciary. Therefore, the court

101
International community on various occasions urged to follow strictly "procedural safeguards" for these
serving death sentences. See, Article 8 of the American Convection of Human Rights; Article 7 of African
Charter on Human and People's Rights; Article 14 of I.C.C.P.R. 1979; The United Nation Economic and Social
Council (ECOSOC) adopted safeguards guarantying protection of the rights of those facing the death penalty,
1984; General Assembly Resolution 2393 (XXII) of 26 Nov. 1968; Resolution 1989/64, adopted on 24th May
1989 and Resolution 1996/ 15 adopted on 23 July, 1996 by the UNECOSOC.
102
See http//web.amnesty.org/report/2006/ind-summary.eng, accessed on 10/09/2010.
103
Various international and regional instruments say that "Death sentence shall be applied only for more
serious crime and it shall not be extended to those crimes to which it does not presently apply." See, Article 4(2)
of American convention on Human Rights; Article 2 of Second Optional Protocol to the ICCPR, 1989; Article 2
of protocol to the American Convention on Human Rights; Article 2 of protocol to the convention oF the
protection of human rights and fundamental freedom; under Article 10 of Arab Charter on Human rights, 1994.
104
Under the Arms Act 1959, who ever uses any prohibited arms which resulted in death of any person; Under
the Schedule Casts and Schedule Tribes (Prevention of Atrocities Act) 1989,whoever fabricates false evidence
which resulted in conviction of an innocent member of a schedule caste etc.; Section 31A of the Narcotic Drugs
and Psychotropic Substance Act 1985 (now abolished), If a person who has been convicted in an offence
relating to narcotic drugs and he subsequently do or attempt to the offence again. Under the commission of Sati
(prevention) Act, 1987,if any person either directly or indirectly abets the commission of sati shall be punished
with death. Similarly death sentence is also mandatory in the Prevention of Terrorism Act (2002)(now
abolished) for causing death by using bombs etc
105
Kehar Singh Vs Delhi Administration, AIR 1988 SC 1183, State Vs. Nalini, 1995 (5) SC 60; It is said that
“Death penalty shall not to be applied for political offences or economic crimes”. See Article 4(4) of American
Convention on Human Rights; Article 11of Arab charter on Human Rights, 1994;un special rapporteur on extra
judicial summary or arbitrary execution, UN document no.e/cn.4/1997/60,24 December 1996.
106
See, Section 114 of Indian Evidence Act, 1872.
107
Dhananjay Chatterjee Vs State of West Bengal (1994) 2 SCC 220; Kehar Singh Vs Delhi Administration,
AIR 1988 SC 1183, State Vs. Nalini, 1995 (5) SC 60.
108
See, section 229, 241 and 252 of the Code of Criminal Procedure, 1973.
XXIX
has a very wide discretion in the matter of fixing the quantum of punishment. Moreover, the
legislature has not provided any guidelines within which this extreme discretion could be
applied. As it was rightly observed by J. Bhagwati, that though the trial system in India is
based on the principle of legal equality before the court, yet it has proved otherwise
particularly under the existing conditions in India. A significant number of accused are
illiterate and poor. They do not afford to engage effluent lawyers for their defence. Moreover,
they do not have the knowledge of law and professional skills to defend themselves before
the court, while an experienced prosecutor conducts the prosecution. Though, the accused has
right to free legal aid at the state expenses, 109 yet this right is of no value if competent lawyers
are not selected to defend him. 110

Justice P.N. Bhagwati also said that in fact, the trial system in India violates the concept of
equality. According to the concept of equality, every body equal before law and has equal
protection of law. The guarantee of equal protection applies against the substantive as well as
procedural law. It includes absence of arbitrary discrimination in the administration of law,
equal treatment in similar circumstances both in privileges conferred and liabilities imposed
by law. In short, all litigants who are similarly situated can avail themselves of the same
procedural rights.111 But the application of death penalty nullifies this concept. Two persons
who are found guilty of murder may be treated differently, one of them may get death and the
other may get only life sentence or pardon or acquittal. So, unguided discretion to award
either of two punishments violated legal equality.

There is no uniformity in the decision of Supreme Court.112 In some cases even the delay of
more than two years in the execution of death sentence was considered so grave that it

109
Article 39A of the Constitution of India, Section 303 and 304 of the Code of Criminal Procedure, 1973;
Hussainara Khatoon Vs. State of Bihar, (1980) ISCC98105, Khatri II Vs State of Bihar (181), SCC 627, The
Legal Service Authority Act, 1986.
110
Mostly free legal aid is provided to an indigent accused by inexperienced lawyers. Who are new entrants at
bar as dealing with complex case would give them exposure before the court. These lawyers lack capability to
deal with complex cases like murders. Moreover, the funds provided to them by the state government is very
insufficient, viz Rs. 300 per hearing. Therefore, they do not pay head to the case. Moreover a mistake committed
by them at the trial stage could be very rarely corrected at the appellate stage. In such a situation the life of an
accused would be jeopardized.
111
State of West Bengal Vs. Anwar Ali, 1952 SC P289.
112
S. Triveniben Vs. State of Gujrat, 1989 CrLJ 870; Javed Ahmed Vs State, 1984 CrLJ 1909 (SC); Madhu
Mehta Vs. Union of India, AIR 1989 SC 2299; Khemchand Vs. State, 1990 SCALE 1; State of U.P. Vs. Samman
Das, 1972 CrLJ 487, State of Maharashtra Vs Mangalya, 1972 CrLJ 570 SC. Vatheeswaran Vs State, 1983
CrLJ 481 (SC) Pratt Vs. Morgen Vs Attorney General of Jamacia (1993) 4 ALL E.R. 769.
XXX
resulted in commutation of death sentence into life imprisonment. But in many other cases
the apex court was not obliged to commute death sentence into life even though there was
delay of more than fourteen years in execution of death sentence. 113 The Supreme Court itself
said that “between the funeral fire and mental worry, it is the latter which is the most
divesting, for funeral fire burns only the dead body while mental worry burns the living one.”
There fore, it can be submitted that too much delay and uncertainty in applying criminal law
would render even the best penal law as useless. Further, though speedy trial in criminal
cases is not a fundamental right of an accused but it is one of the important attribute of a
criminal jurisprudence. As quick sentencing and conclusion of trial within a limited period is
one of the first requirements of criminal justice. So, every effort should be made to avoid
delay in not only during investigation or trial but also in the disposal of mercy petition before
the president.

In India, the only authority that can give pardon114 to an accused in case of confirmation of
death sentence by the Supreme Court is the President of India. He is the only person who has
the exclusive authority to save the life of a convicted prisoner. The object of giving pardoning
power to the President is that “...to correct judicial errors for no system of judicial
administration can be free from imperfection. It is an attribute of sovereignty to release a
convict from a sentence which is mistaken, harsh and disproportionate to the crime .115

Ironically, this sacrosanct purpose itself is of no avail to the accused. The fact is that the
President has to act on the advice of the government in power.116 If he remits the mercy
petition to the government for reconsideration and the government confirms the death
penalty, the President has no power or other option but to confirm the sentence, as he is
bound by the recommendation of government. Further, the decision of the President on the

113
Dhananjay Chatterjee Vs. State of West Beganl (1994) 2 SCC 220 at 239 (even delay of fourteen years in
execution of death sentence was not condoned); See, Manohar herum Shah Vs State, 1973 CL 971 SC; Sher
Singh Vs. State, 1973, CrLJ 803 SC
114
Article 72 of the Constitution of India, 1950, provides pardoning power of President in case of death
sentence; similarly governor has power to commute death sentence under Article 161 of the constitution.
th
115
Durga Das Basu, Introduction to the Constitution of India (18 ed., 1997), p.180 .
116
Article 74 (1) of the Constitution (after 44th amendment, 1978) provides "There shall be a council of minister
at the head to aid and advice the president who shall in exercise of his function, act in accordance with such
advice. Provided that the president may require the council of minister to consider such advice, either generally
or otherwise, and the president shall act in accordance with such advice tendered after such reconsideration."
XXXI
mercy petition is subjected to limited judicial review. 117 It is submitted that the President
should have an unfettered power of pardon in case of mercy petition he should be required to
decide the petition within a limited time without any interference by the executive.

In a murder trial, it is a State who prosecutes against the accused on behalf of the society and
at the same time it is the State which decides that whether mercy petition address to the
President should be allowed or not. It is just mockery of justice and hence submitted that
there should be proper demarcation of the power of executive. Executive should not interfere
within the frame work of judiciary as separation of power is the “basic feature of the
Constitution, 118 and which should be maintained strictly.

Moreover, we can say capital punishment is morally wrong. It is submitted that when the
killing of a human being by another human being is a homicide and therefore punishable than
the killing of a condemned prisoner through the instrumentality of State is also homicide
which should be equally punishable. Judiciary cannot justify its in human act by mere saying
that capital punishment is “according to the procedure establish by law” and it is awarded “to
preserve the public confidence in the judicial system”.

Further, application of this brutal punishment on deterrent theory is baseless. There had been
no relation between the crime rate and the capital punishment. There is no convincing
evidence to show that the crime rate has increased in those countries, which have abolished
capital sentence. It is submitted that brutality or severity of punishment hardly deters. It is the
surety, effectiveness and uniformity of punishment, which deters. Death penalty is not
effective deterrent.119 Moreover, it is not applied uniformly. Further, being an irreversible
punishment there is every chance of mistake in its application. Death sentence leaves no
scope for correction if there is even a slightest mistake in the identity of the accused.

117
S.R. Bommai Vs.Union of India (1994) 3 SCC1. Para 73 held that court can interfere only when the
President's decision is totally irrational, arbitrary, malafide or discriminatory." See, for Pardoning rights of an
accused under Article 6(4) of ICCPR; Article 10 of Arab Charter on Human Rights, 1994; Safeguard 7 of the
Safeguards guaranteeing protection of the Rights of those facing death penalty adopted by UN (ECOSOC) 1984;
Resolution 1989/ 64, adopted on 24th May 1989 by UN, ECOSOC.
118
Keshavanand Bharti Vs. State of Kerala, A.1973 SC 1461.
119
Roger Hood "The Death Penalty" A worldwide perspective (Oxford, third edition, 2002), p.230.
XXXII
Moreover, no body would realize the brutality as his behaviour once he is gone from the
world. Death sentence has been criticized on humanitarian ground as well. 120 Accordingly, no
body is born criminal. It is the circumstances, which may turn a human being into a deadened
criminal. In fact, a human being does not cease to be a human being even if he has committed
a monstrous act, which has shocked the consciousness of society. Crime should be treated as
“Mental disorder, which can be cured not only by brutal punishment but by sympathetic
treatment on the humanitarian ground”. Therefore, reformation and rehabilitation should be
the core purpose of the punishment. Death penalty nullifies such purpose of reformation and
rehabilitation.

V. ARGUMENTS AGAINST DEATH PENALTY

The death penalty is often opposed on the grounds that, because every criminal justice system
is fallible, innocent people will inevitably be executed by mistake, and the death penalty is
both irreversible and more severe than lesser punishments. There is a virtual certainty that
genuinely innocent people will be executed and that there is no possible way of compensating
them for this miscarriage of justice. Often the only people who know what really happened
are the accused and the deceased. It then comes down to the skill of the prosecution and
defense lawyers as to whether there will be a conviction for murder or for manslaughter. It is
thus highly probable that people are convicted of murder when they should really have only
been convicted of manslaughter.121

The death penalty is also most commonly argued to be a violation of the right to life or of the
"sanctity of life." Many national constitutions and international treaties guarantee the right to
life. the right to life demands that a life only be taken in exceptional circumstances, such as in
self-defence or as an act of war, and therefore that it violates the right to life of a criminal if
she or he is executed, since this is purely murder by the State. Critics often hold that, because
life is an unalienable right, the criminal cannot forfeit the right by committing a crime.

120
In Deena Vs. State, 1983 CrLJ 1602 (SC) and In Shashi Nayar Vs. Union of India, AIR 1992 SC 395. The
apex court held that the provision "To be hanged till death" Under Section 354(5) of the code of criminal
procedure, 1973, is not "cruel, in human or degrading method". Whereas Article 5 of Universal Declaration of
Human Rights, 1948 and Article 7 of ICCPR, 1973, Provides, "No one shall be subjected to torture or to cruel,
in human, degrading treatment" meant that execution shall be carved out in such a way to cause the least
possible physical and mental sufferings; See Soering Vs. U.K. (1989) 11 EHRR 439.
121
Stuart Banner, The Death Penalty - An American History, Sweet and Maxwell, New York, 2002, p. 292-293
XXXIII
However gruesome the act of offence may be, most convicts undergo the most harrowing
time, awaiting the outcome of numerous appeals and their chances of escaping execution are
better if they are wealthy or powerful. The psychological agony inflicted on the convict and
his near and dear ones is unavoidable and inhuman. The brutalising effect, also known as the
brutalization hypothesis, argues that the death penalty has a brutalising or coarsening effect
either upon society or those officials and jurors involved in a criminal justice system which
imposes it. It is usually argued that this is because it sends out a message that it is acceptable
to kill in some circumstances, or due to the societal disregard for the 'sanctity of life'. An
extension of this argument is that the brutalising effect of the death penalty may even be
responsible for increasing the number of murders in jurisdictions in which it is practiced.122

There is no such thing as a humane method of putting a person to death. Every form of
execution causes the prisoner suffering, some methods perhaps cause less pain than others,
but be in no doubt that being executed is a terrifying and gruesome ordeal for the criminal.
What is also often overlooked is the extreme mental torture that the criminal suffers in the
time leading up to the execution. 123 What mode of punishment achieves what result on the
psyche of the offender, and what impact (if any deterrent impact at all) it has on the society at
large, is a question to be considered by those resourceful in social analysis. These are
practical dimensions of the criminal justice system that will differ from society to society,
and change over time.

The specific question of legal ethics that I wish to delve into is simply whether it is in
consonance with the role of the modern democratic state, which commits itself to the ethos of
human rights, to inflict lawfully, punishment upon a person that ends his/her life. It may be
variously argued that the prison system is such that life imprisonment rarely achieves
rehabilitation, that life imprisonment is far more debilitating for the psyche of the offender,
than death penalty, which inflicts suffering for a short period.

5.1 Death penalty and human rights

122
Stephen B. Bright, “Will the Death Penalty Remain Alive in the Twenty-first Century?”, Wisconsin Law
Review, Volume 2001. 1(1)
123
Roger Hood, The Death Penalty: A Worldwide Perspective, Clarendon Press, Oxford, 1996
XXXIV
5.1.1 Defining death penalty in terms of human rights
The debate about the death penalty does not usually employ the terminology of human rights.
Nevertheless, the use of the death penalty intersects with international law and is challenged
by it. Hence, international law and an analysis based on human rights are useful means to
address the death penalty issue. The reasons why countries have abolished the death penalty
in increasing numbers vary. For some nations, it was a broader understanding of human rights
(Spain abandoned the last vestiges of the death penalty in 1995 stating that “…the death
penalty has no place in the general penal system of an advanced, civilised society…”
Similarly, Switzerland abolished death penalty because it constituted “a flagrant violation of
the right to life and dignity…”124

Defining the death penalty as a human rights issue is a critical first step, but one resist by
countries that aggres sively use the death penalty. When the United Nations General
Assembly considered a resolution in 1994 to restrict the death penalty and encourage
moratorium on executions, Singapore asserted that “capital punishment is not a human rights
issue”. In the end, 74 countries abstained from voting on the resolution and it failed. 125

However, for an increasing number of countries the death penalty is a critical human rights
issue. In 1997, the U.N High Commission for Human Rights approved a resolution stating
that the “abolition of the death penalty contributes to the enhancement of human dignity and
126
to the progressive development of human rights. This resolution was strengthened in
subsequent resolutions by a call for a restriction of offences for which the death penalty can
be imposed and for a moratorium on all executions, leading eventually to abolition.

Challenging the death penalty is not seen solely as an internal matter among nations. Many
European countries, along with Canada, Mexico and South Africa have resisted extraditing
persons to countries like the United States unless there are assurances that the death penalty
will not be sought. The European Union has made the abolition of the death penalty a
precondition for entry into the Union, resulting in halting of executions in many eastern
European countries which have applied for membership

124
See, Roger Hood, The Death Penalty: A Worldwide Perspective, Clarendon Press, Oxford, 1996
125
Richard C. Dieter, “The Death Penalty and Human Rights: U.S. Death Penalty and International Law”,<
http://www.deathpenaltyinfo.org/Oxfordpaper.pdf,> (visited on 10/09/2010)
126
United Nations High Commission for Human Rights Resolution, E/CN.4/1997/12 (April 3, 1997).
XXXV
5.1.2 International norms regarding death penalty
The right to life is not as inviolable as it might seem at first sight. There are a number of
situations where states may deprive individuals of life itself and to which international human
rights law does not raise an objection. The use of the death penalty is one such example.
Human rights law does not prohibit the use of the death penalty as a punishment for crimes
but does encourage its abolition and seek to limit its use. 127 Critics of the death penalty
commonly argue that the death penalty specifically and explicitly violates the right
to life clause stated in most modern constitutions and human right treaties. Hereunder are
enlisted few of the important international instruments which enshrine this right:

(1) Universal declaration of human rights (1948):

The Universal Declaration of Human Rights (UDHR) is a resolution of the UN General
Assembly and was adopted in 1948. As a resolution, it is not itself formally legally binding
despite common assumptions to the contrary. However, the UDHR did establish important
principles and values which were later elaborated in legally binding UN treaties. Moreover, a
number of its provisions have become part of customary international law. Article 3 of this
Declaration upholds the right to life, liberty and security of the person.[ The article 3 says in
full: "Everyone has the right to life, liberty and security of person."] There is no mention
either that death penalty make an exception to this article or that the article make death
penalty unacceptable.

(2) International Covenant on Civil and Political Rights (1966), Article 6, 4:

This main international treaty on civil and political rights, also known as ICCPR, is very
specific about the right to life and the death penalty: Article 6 reads as follows: “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.”

The ICCPR specifically allows for the implementation of the death penalty and incarceration
as a part of a criminal justice system. Article 6 clause 2 provides that “…In countries which
have not abolished the death penalty, sentence of death may be imposed only for the most

127
William A. Schabas, The Abolition of the Death Penalty in International Law, OUP, Oxford, 1997
XXXVI
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. This penalty can only be carried out
pursuant to a final judgement rendered by a competent court. Clause 4 of the same Article
also states that “... Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may
be granted in all cases.” Article 4 of the ICCPR further asserts that states are not able to
derogate from the article 6 even in times of a public emergency.

(3) International treaties providing for abolition of the death penalty:

The community of nations has adopted four international treaties providing for the abolition
of the death penalty. One is of worldwide scope; the other three are regional. Following are
short descriptions of the four treaties States may become parties to international treaties either
by acceding to them or by ratifying them. Signature indicates an intention to become a party
at a later date through ratification. States are bound under international law to respect the
provisions of treaties to which they are parties, and to do nothing to defeat the object and
purpose of treaties which they have signed

(4) Second optional protocol to the international covenant on civil and political rights:
The Second Optional Protocol to the International Covenant on Civil and Political Rights,
aiming at the abolition of the death penalty, adopted by the UN General Assembly in 1989, is
of worldwide scope. It provides for the total abolition of the death penalty but allows states
parties to retain the death penalty in time of war if they make a reservation to that effect at the
time of ratifying or acceding to the Protocol. Any state which is a party to the International
Covenant on Civil and Political Rights can become a party to the Protocol. (A total of 60
countries have ratified this Protocol till date).

(5) Protocol to the American Convention on Human Rights:

The Protocol to the American Convention on Human Rights to Abolish the Death Penalty,
adopted by the General Assembly of the Organization of American States in 1990, provides
for the total abolition of the death penalty but allows states parties to retain the death penalty
in wartime if they make a reservation to that effect at the time of ratifying or acceding to the
XXXVII
Protocol. Any state party to the American Convention on Human Rights can become a party
to the Protocol. (Currently a total of 8 States have ratified this Protocol).

(6) Protocol No. 6 to the European convention on human rights:

Protocol No. 6 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms ("European Convention on Human Rights") concerning the abolition
of the death penalty, adopted by the Council of Europe in 1982, provides for the abolition of
the death penalty in peacetime; states parties may retain the death penalty for crimes "in time
of war or of imminent threat of war". Any state party to the European Convention on Human
Rights can become a party to the Protocol. (45 Countries have ratified this Protocol)

(7) Protocol No. 13 to the European convention on human rights

Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention on Human Rights) concerning the abolition of the death
penalty in all circumstances, adopted by the Council of Europe in 2002, provides for the
abolition of the death penalty in all circumstances, including time of war or of imminent
threat of war. Any state party to the European Convention on Human Rights can become a
party to the Protocol. (So far, 37 Countries have ratified it).

XXXVIII
 VI. Conclusion and Suggestions
There is one very evident conclusion that can be reached through a study of the death penalty
v Life Imprisonment; it being that the current system of its administration is far from
satisfactory. As detailed earlier, arbitrariness and bias pervade every stage of trial in capital
cases. Two solutions therefore present themselves. Either we abolish the death penalty or its
alternative, life imprisonment. The latter is of course unthinkable as it goes against the
prevailing abolitionist trend in the world. It is perhaps not a surprise that the countries that
make the maximum use of the death penalty have the worst human rights record in the world.
These include China, Saudi Arabia and Iran. The presence of the US as the fourth member of
the quartet says a lot about its adherence to the principle of “Equal Justice before the Law”
embossed on its Supreme Court.

While it has adopted a midway approach between abolition and use of the death penalty,
India‟s record is far from exemplary. It has been pithily summed up by Justice Bhagwati in
his dissenting judgment in the Bachan Singh case as “it is largely the poor and the down-
trodden who are the victims of this extreme penalty. We would hardly find a rich or affluent
person going to the gallows.”128 The father of the Indian Constitution, Dr. B.R Ambedkar had
expressed similar sentiments in the Constituent Assembly debates. 129

Pending the necessary abolition of this barbaric punishment, some remedial measures may be
taken. The precedent set by Mulla v. State of UP is one of such. The plight of the mentally
disabled deserves focus as well. Condemning them to a lifetime in „mental hospitals‟ where
they live in inhuman conditions is hardly the kind of benefit Section 84 of the IPC envisages.
Instead finding them guilty of culpable homicide not amounting to murder and sentencing
them as such (owing to the absence of a specific mens rea) seems a much better option.

128
(1982) 3 SCC 25.
129
The Constituent Assembly Debates, Vol. 8, 3rd June, 1949. Accessible at
<http://parliamentofindia.nic.in/ls/debates/vol8p15b.html> Last accessed on April 14th, 2010
XXXIX
The role of the legal profession in this matter is an important, but ignored one. The people on
trial in capital cases have more at stake than any other person brought before the law. They
face a variety of handicaps-race, gender, class and mental health. To top it all they have a
large section of the society baying for their blood in the name of crime control. Naturally, it is
impossible for the judge (or jury) to remain immune to such public pressure, at least in
practice. As such they need competent lawyers who can help them in overcoming these
adversities, who can educate the public about fair process and who believe in the need for
legal representation of the most vile „criminals‟.

Unfortunately, we have case after case where proper legal aid was not made available to these
unfortunate people on monetary grounds. Representing a poor person whose life is at stake is
looked upon as a sacrifice on the lawyer‟s part as the indigent cannot afford to pay him
astronomical sums. What is needed, but is sadly missing, is a spirit of rebellious lawyering
that strives to empower the disadvantaged.130 Merely proceeding on a client to client basis is
not enough. The entire community affected by the biased manner in which death penalty is
administered needs to be mobilized. This collective belief can then be used to develop a
countervailing power that may take on the established socio-legal structure.

In conclusion we can quote Justice Bhagwati on reformative aspect of punishment. He said,

“Civilization has progressed too far to tolerate the primitive law of a tooth for a tooth and eye
for an eye. Today the accent in penology is more on the reformation rather than retribution or
deterrence. To be condemned prisoner death means liberation from lifelong sufferings. The
capital sentence in reality punishes the dependant, kith and kin of a dead convict, for no fault
of theirs. As we move towards twenty first century, this abominable sentence should be
abolished by law for life is noble, continuing capital sentence is irrational. 131

The criminal trial in India is far from satisfactory regarding the death sentence and therefore,
it needed a sharp revive on the basis of the above said critiques. The various developments in
the international law prompted a new wave of constitutional jurisprudence in death

130
Paul R. Tremblay, Rebellious Lawyering in LAWRENCE A. CUNNINGHAM (ed.) HEIGHTS OF JUSTICE
114 (2006)
131
Nartoem Singh Vs. State of Punjab, AIR 1978 SC 1542.
XL
penalty. 132 In fact, international laws do provide abolition of this extreme penalty totally and
globally. 133 However, the punitive strategy of penal law in India does not reflect the modern
tendency of reformative treatment.134 To quote Manu, the great law giver, on the object of
punishment as under “Punishment governs and preserves life”. 135 It is submitted that life of
persons in the society can be very well preserved by sending the offenders to jail rather than
taking their lives mercilessly. 136

Further, no doubt the judiciary cannot question the wisdom of executive in retaining to the
death penalty on the statute book, but it can certainly “restrict the number of offences on
which death penalty may be imposed” 137 or “establish a moratorium on execution” with a sole
object of deleting this extreme penalty from the statute book. Moreover, it is submitted that
decision of international community should have binding force on the entire world.

132
In an international conference on death penalty in Stockholm, Sweden, in1977, just 16 countries had
abolished death sentence, but today approximately 121countries has abolished it in law or practice.
133
Protocol 13 of the European Convention of Human Rights (adopted in 2002) is the first legal document
which prescribe for the total abolition of death penalty in all circumstances including war; Article 77 of
International Criminal Court, Article24 of International Criminal Tribunal for Former Yugoslavia (1993),
Article
24 of International Criminal Tribunal for Rwanda do not provide death penalty even for the most heinous
th
crime, viz., Genocide; Article 6(6) of ICCPR, see general comments on article 6 of ICCPR adopted at its 378
th
meeting(16 session)on 22 july,1982 by Human rights committee set up under ICCPR,1978.
134
As observed by Krishna Iyer J. while commenting upon the unhappy aspect of our penal system in Shivaji vs.
State of Maharashtra (1973)CRLJ 1753(SC). Further there are 13 judges per million people, 3 Crores pending
cases in the district and subordinate courts, 35.6 lakhs pending cases in high courts, Over 9000 in the Supreme
nd
court (Hindustan Times 2 December 2006 page 10).
135
Institute of Hindu Law (translated by Haughton, G C 1835), Chapter 7, para 18,p 189.
136
“Even the terrorists have the right to life as they are human beings” as rightly said by Jean Allian, class
lectures on human rights law (part 1), 2006, Queen University Belfast, N.I.(UK).
137
See resolution 32/61 adopted on 8 December 1997 by General assembly; resolution 1044(1994) adopted on 4
October 1994 by parliamentary Assembly of Europe; UN High Commissioner for Human Rights, Press
conference at the death penalty information center, 12 October 1999; See http://www.hri.ca/forth record
2002/death chr html.
XLI
 VII B I B L I OGR A P HY

Primary sources

Conventions, Treaties and Statutes

Arab Charter on Human rights, 1994.
Constitution of India
Schedule Casts and Schedule Tribes (Prevention of Atrocities Act) 1989
Indian Penal Code, 1860,
The Navy Act, 1956,
The Army Act, 1950
The Air force Act, 1950,
Law Commission of India: Thirty-Fifth Report: 35 (September-1967)
The United Nation Economic and Social Council (ECOSOC)
International Covenant on Civil and Political Rights, 1966.
Protocol No. 13 to the European Convention on Human Rights.
Protocol No. 6 to the European Convention on Human Rights.
Protocol to the American Convention on Human Rights.
Rome Statute of the International Criminal Court
Second Optional Protocol to the International Covenant on Civil and Political
Rights.
Statute of the International Criminal Tribunal for the Prosecution of Persons
Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations Committed in the Territory
of Neighbouring States.
Statute of the Special Court for Sierra Leone
The Statute of the International Tribunal for the Prosecution of Persons
Responsible for Serious violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia.

XLII
 Universal Declaration of Human Rights, 1948.

Secondary sources

AMARTYA SEN, DEVELOPMENT AS FREEDOM, ALFRED KNOPF, 1999

Basu, D.D: Commentary on the Constitution of India: Vol.E: 255 (1981)

Chaturvedi and Chaturvedi: Theory and Law of Capital Punishment: 50 (1989).

CHARLES BLACK JR., CAPITAL PUNISHMENT: THE INEVITABILITY OF

CAPRICE AND MISTAKE, NORTON, 1981

Subhash C. Gupta: Capital Punishment in India: 124 (1986)

IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE,

PRINCETON UNIVERSITY PRESS, 1990

Chaturvedi, R.G: Judiciary Under Constitution: 23-24 (1978)

Hansaria, B.L: Right to Life and Liberty under the Constitution: 47 (1993).

Ratan Lal and Dhiraj Lal: Law Of Crimes: 398 (1995)

LAWRENCE A. CUNNINGHAM (ed.) HEIGHTS OF JUSTICE, CAROLINA

ACADEMIC PRESS, 2006

Paul R. Tremblay, Rebellious Lawyering in LAWRENCE A. CUNNINGHAM (ed.)

HEIGHTS OF JUSTICE 114 (2006)

Subhash C. Gupta: Capital Punishment in India: 119 (1986)

W. BOWERS, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN AMERICA

(1864-1982), BOSTON NORTHEASTERN PRESS, 1984

XLIII
Durga Das Basu, Introduction to the Constitution of India (18 th ed., 1997), p.180.

Christian Eckart, “Saddam Hussein‟s Trial in Iraq: Fairness, Legitimacy and

Alternatives, A Legal Analysis”, Cornell Law Rev 2006 (32) 13–45.

Dr. Avtar Singh "Principles of the Law of Evidence",(13 th ed) 2002, p.21; Batuk Lal, “
The Law of Evidence” (15th ed.)2001 p.12.

Amnesty International and PUCL, Lethal Lottery: The Death Penalty in India, 2008

Jefferey L. Johnson and Colleen F. Johnson, Poverty and the Death Penalty, Journal
of Economic Issues, Vol.35, No.2, 519 (2001)

Mark Peffley and Jon Hurwitz, Persuasion and Resistance: Race and the Death
Penalty in America, American Journal of Political Science, Vol.51, No.4, 998 (2007)

Michael Mitchell and Jim Sidanius, Social Hierarchy and the Death Penalty: A Social
Dominance Perspective, Political Psychology, Vol.16, No.3, 593 (1995)

Ruth Luckasson, The Death Penalty and the Mentally Retarded, 22 Am. J. Crim. L.
276 (1994)

Stephen B. Bright, Race, Poverty, the Death Penalty, and the Responsibility of the
Legal Profession, 1 Seattle Journal of Social Justice, 73 (2003)

Goldstone, “The Trial of Saddam Hussein: What Kind of Court Should Prosecute
Saddam Hussein And Others For Human Rights Abuses?” 27 Fordham Int‟l L.J.
1490, 2003-2004 1503.

Stephen B. Bright, “Will the Death Penalty Remain Alive in the 21 st Century?”,
Wisconsin Law Review, Volume 2001, no. 1, p - 1.

XLIV
Bhattacharya, S.K: "Issues in Abolition of Capital Punishment": Employment News
Weekly:1 : Dt.21-27, December, 1994.

Phil Porter, The Economics of Capital Punishment, Clarendon Press, 1998.

Roger Hood, The Death Penalty: A Worldwide Perspective, Clarendon Press, Oxford,
1996.

Stuart Banner, The Death Penalty - An American History, Sweet and Maxwell, New
York, 2002.

William A. Schabas, The Abolition of the Death Penalty in International Law, OUP,
Oxford, 1997.

Liptak, Adam. "Does Death Penalty Save Lives? A New Debate." The New York
Times 18 November 2007

“The Death Penalty in The World”, <http://www.derechos.org/dp>

Richard C. Dieter, “The Death Penalty and Human Rights: U.S. Death Penalty and
International Law”,< http://www.deathpenaltyinfo.org/Oxfordpaper.pdf>

“Report by Amnesty International on Death Penalty” <http://web.amnesty/org/report

2006/>ind summary accessed on 4th January 2007.

David Anderson, “The Death Penalty – A Defence”,

<http://www.yesdeathpenalty.com/argument_1.htm.>

Issam Michael Saliba, “Is The Death Penalty An Option In The Trial Of Saddam
Hussein?”<http://www.loc.gov/law/public/saddam/saddam_capi.html.>

Issam Saliba, “Comments On The Indictment Of Saddam Hussein”

<http://www.loc.gov/law/public/saddam/saddam_prin.html.>

XLV
Michael Scharf, “Grotian Moment: Is the Saddam Hussein Trial one of the most
important trials of all time?” Issue # 10, <http://www.law.case.edu/saddamtrial/>

Death Penalty Information Centre, <http://www.deathpenaltyinfo.org/dpicintl.html.

http://web.amnesty.org/pages/deathpenalty-countries-eng>

"BBC - Religion and Ethics - Capital Punishment (Hinduism)." BBC News. 8 April
2008<http://www.bbc.co.uk/religion/religions/hinduism/hinduethics/capitalpunishme
nt.html>

"BBC - Religion and Ethics - Capital Punishment (Islam)." BBC News. 2008 8 April
<http://www.bbc.co.uk/religion/religions/islam/islamethics/capitalpunishment.html

"Capital Punishment Statistics." 2 January 2008. U.S. Department of Justice - Bureau

of Justice Statistics. 2008 5 April <http://www.ojp.usdoj.gov/bjs/cp.htm>.

"CATHOLIC ENCYCLOPEDIA - Capital Punishment (Death Penalty)." Catholic

Encyclopedia. 8 April 2008 <http://www.newadvent.org/cathen/12565a.htm>.

"CBSNews.com - Capital Punishment." CBS News. 2008 April 2008

<http://www.cbsnews.com/htdocs/capital/framesource.html>.

"Conservative vs. Liberal Beliefs." Student News Daily. 5 April 2008

<http://studentnewsdaily.com/conservative_vs_liberal_beliefs.shtml>.

"Crime: 2008 Contenders' Views." OnTheIssues.org. 5 April 2008

<http://www.ontheissues.org/Crime.htm>..

Messerli, Joe. "Death Penalty (Pros and Cons)." 11 November 2007. Balanced
Politics.org. 2008 April 5 <http://www.balancedpolitics.org/death_penalty.htm>.

XLVI