International Journal of Law and Legal Jurisprudence Studies

Death penality :(Abhiwaqti Trivedi Institution ,School of Law, Christ University, Bangalore Year: 3rd BA.LLB)


“For decades the death penalty has been an emotional and almost unmentionable issue that has affected people in a myriad of different ways.” This research paper deals with the inter-relation between the intensity of the crime committed and the punishment conferred upon the criminal. . The issue of capital punishment has generated a considerable debate over the year’s and the arguments for and against its imposition have not changed much over the decades.

This paper will also differentiate between how the death penalty should be administered and how it is administered in reality. The methodology adopted in this paper mainly comprises of comparison done on the basis of administering the practice of capital punishment between different countries. The ideas highlighted in this paper are based on legal, socio-political and psychological aspects related to capital punishment. The essay also reflects the reasoning behind abolishing the concept of brutal punishment and favoring it in various countries.

Murder is a crime that takes away the life of another human. This act needs to be punished not with a simple sentence in a comfortable prison, but in an effective manner, which gives the society the message that it is living in a just world. If capital punishment is taken away, there will be no effective justice system and crimes against innocent citizen will continue. Therefore, capital punishment should be awarded with absolute fairness. Neither race, money, authority, nor any other trivial factor should have any influence upon the facts of the case. If there is a doubt about a man’s guilt, he should be given the benefit of doubt and his life should be spared. Hence, only heinous acts and rarest of the rarest cases should be awarded with death penalty. 


Capital punishment is defined as the penalty of death for the commission of a crime. The term ‘capital punishment’ is originated from the Latin word ‘caput’, meaning ‘head’. It initially referred to death by decapitation. Death penalty laws were first introduced in Eighteenth Century BC. in the Code of King Hammaurabi of Babylon, and these laws of death penalty were  codified for 25 different crimes. In those times death sentences were carried out by means of crucifixation, drowning, beating to death, burning alive and impalement. In the Tenth Century AD., hanging became the usual method of execution in Britain and it influenced America’s use of the death penalty more than any other country. In England, during the 17th and 18th Century, people had a passion for watching public execution. During French Revolution, executions in Paris were witnessed by many including female Jacobins.

Today, 83 countries continue to impose death penalty, but the actual number of countries which execute the prisoners in any one year is much smaller. India has retained the act to impose death penalty through Article 21 of the Constitution of India that empowers the State to deprive any person of the right to life, provided that it is done by a procedure established by law. Section 53 of the Indian Penal Code includes ‘death’ as one form of punishment that may be imposed for an offence. The 35th Law Commission Report recommended death penalty to be retained, and that the executive should continue to possess power of mercy. The Criminal Procedure Code provides under Section 354(3) that the judgment recording conviction for an offence punishable with death should state specific reasons for pronouncing such sentence.

The adoption of the Second Optional Protocol to the International Covenant on Civil and Political Rights in 1989 aimed at abolition of the death penalty and that it was a clear recognition by the international community of the need to eliminate the practice of capital punishment, totally and globally. India has ratified the United Nations International Covenant on Civil and Political Rights by which it has committed itself to a policy for the abolition of the death penalty. Thus, Death sentence has become an exception but not the rule. Hanging is the only methods used in India, other countries employ methods like lethal injection, gas chambers, beheading, shooting, and electrocution besides hanging. Under Indian law, death penalty can be imposed for murder, gang robbery with murder, abetting suicide of a child or insane person, waging war against the Government and abetting mutiny by a member of the armed forces.

Among the problems with capital punishment is the ever-present possibility of executing an innocent person. Whether an innocent person has actually been executed during the modern era of capital punishment is debatable. From 1973 through June 2007, 124 people in 25 states had been released from death rows because of evidence of their innocence.[1] But Cathleen Burtnett on the other hand considers, as how the society deals with the reintegration problems of death row inmates who have been exonerated and released from prison with just a bus ticket and suit of clothes because the legal system is not set up to take responsibility for their predicament. Burnett points out the inadequacies of the three options currently available to the exonerated.[2]

The role of psychologists and forensic psychology, have also been given an equally important position as law, to trace the legitimacy of capital punishment in developing countries. The non-application of the aforesaid discipline may result in devastating consequences where the criminal and not the crime are eliminated.

“Crime is widely prevalent in the world. Criminal have become a part of our lives. Does this mean we permit them to become the darkness of our society? No, absolutely not. Eliminating crime and criminals is our responsibility. It is very essential to bring the accused to a just punishment. The debate on capital punishment has been concrete over past few decades still nothing could emerge. Some hold the view that the present legislations on capital punishment are serving the purpose well while others perceive that they are not.”[3]

Death Sentences Should Be Retained Or Repealed

Exponents of utilitarianism i.e. Bentham and Cesare Beccaria insisted that the punishment is an evil. Therefore, punishment that is just and reasonable must be inflicted to curb the menace of crime. The march of ‘Human civilization’ reduced the number of crime punishable with death, which were about 200 by the end of 18th century.[4] Consequently in USA, only crime of treason was awarded as punishable with death penalty.

Cesare Beccaria, the Italian philosopher and reformer, was the first to propose that death penalty should be abolished.[5] Ever since then there has been important and ceaseless debate on the subject. The US Supreme Court has declared it to be contrary to the spirit of 8th amendment being cruel, unusual and barbarous. A viewpoint put forward by the abolitionist to minimize it recourse. In India, Capital Punishment is now confined to only six principle offences. It was further contended by the Abolitionists that the death penalty is inherently immoral because governments should never take human life, no matter what the provocation.[6] Andcapital punishment is immoral in principle, and unfair and discriminatory in practice. No one deserves to die. In civilized society, we reject the principle of literally doing to criminals what they do to their victims: The penalty for rape cannot be rape, or for arson, the burning down of the arsonist’s house. We should not, therefore, punish the murderer with death. Capital punishment is a barbaric remnant of uncivilized society.[7]

On the other hand there is a widespread public support for death penalty. The advocates of retention of capital punishment hold the opinion that these punishments have deterrent effect on the criminals. Their contention is based on the argument that abolition of capital punishment would unleash criminal who are presently restrained to do so due to fear of the execution. In a nutshell, main arguments of retentionists are:

  1. It is more effective than any other penalty in deterring from murder. Society has always used punishment to discourage would-be criminals from unlawful action. Since society has the highest interest in preventing murder, it should use the strongest punishment available to deter murder, and that is the death penalty. If murderers are sentenced to death and executed, potential murderers will think twice before killing for fear of losing their own life.[8]
  2. It is more economical than imprisonment. It is better to execute a criminal for his heinous crime rather than housing him for life and bearing his necessities which could otherwise be used for a person in need and who in return can contribute to the society.
  3. It is necessary to restrain the public from lynching criminals. It is often seen, whenever a criminal is let off from being punished for his brutal act, the society themselves tries to punish such individuals or the victims and their family members are encouraged to take revenge.
  4. It is the only penalty with certitude. Because those who are sentenced to life imprisonment generally procure pardon in sympathy.
  5. Finally death penalty assures safety of the society by eliminating these criminals.

On the other, those who condemn the death penalty say that the death penalty is not more effective than imprisonment as a deterrent that it does not at all promote mob rule, that it degrades the natural respect for human dignity of life further it tends to promote killing, that error of justice is irreparable, and that it has incalculable adverse effect on the prisoners on whom it is inflicted.

Next, it is argued that capital punishment brutalizes human nature but the converse is also true. Brutality, like other vivid concepts is not an absolute one. Capital punishment is the reaction against certain type of brutalities committed by some of the human beings. Hence, de-brutalization of human nature      could be made possible by retention of capital punishment. Abolitionists argue that death sentence is irrevocable State terrorism, as there may be instances of innocent beings hanged. Another aspect is that the lost, least and lowliest run the risk of capital punishment. Though, heavy burden of proof on the prosecution militates against such chances. Both the arguments have some bearing but on a careful scrutiny they point out the defects in the system of administration of justice and not in the capital punishment as such.

In this background, debate regarding retention of death penalty has been going on for quite sometimes now. A bill to this effect was introduced in the house; which was later on rejected. In Rajya Sabha also a resolution was moved for abolition of death penalty in 1958 and in 1962. But was withdrawn each time after a pandemonium in the House. For civilised countries like India, there are added reasons for abolition where the judicial process takes unduly long time and where the poor hardly get any worthwhile support through legal assistance. The case against hanging, as summed up by The Economist, is that it is not only “unthinkable for a civilised nation” but “less useful for a society that wishes to deter crime”.







Mentally ill people are not to be judged by the same rules as the mentally fit. Prisoners evaluated medically unfit for execution must undergo psychiatric treatment until their mental health is restored.[9] The issue of capital punishment has produced considerable controversy in society with regard to both its effectiveness as a deterrent and the ethics of its use[10]. There is nothing new about the medical profession’s participation in executions. Doctors and other professionals have been present at, and have had roles in, official executions for centuries. As an example, the guillotine was invented by a physician who opposed the death penalty and thought the guillotine a more humane method of killing. Further, a commission of American doctors opposed execution by hanging in 1887 because it frequently prolonged suffering, and recommended more humane forms of killing, favoring electrocution[11]. The death penalty is still an issue for medical professionals. Physicians and other medical personnel are reported to take part in the execution process by examining prisoners prior to execution, by staying in the death chamber, and by monitoring the prisoners’ condition either during electrocution or lethal injections and advising whether or not to continue the execution. Often they have been charged with functions such as examining the prisoners[12] or placing a mark on the chest of the prisoner before shooting[13]. doctors may be called on to participate in executions by, among other things, determining fitness for execution, giving technical advice, prescribing, preparing, and administering or supervising the injection of poison and making medical examinations during the execution in order to advise continuation of the execution if the prisoner is not yet dead[14].

One basic principle of forensic psychiatry is that it is morally unjust to evaluate and judge mentally ill persons by the same legal rules as people who are mentally fit, punishing them for acts which are a consequence of their disorder. The function of the psychiatrist is that of providing the court with a medical answer to whether any significant psychiatric disease or mental deficiency is present. The verdict ‘guilty but insane’ is a legal task and has yielded protection against the imposition of a death sentence[15]. From a legal point of view[16] two areas of concern are raised by psychiatric participation. The first concerns the examination of the defendant without making reasonable efforts to assure that he has full understanding of the significance of this examination that is the examiner’s opinion as to his dangerousness. Traditionally, this problem has been approached by asking whether the subject has any right to refuse co-operation. From an ethical point of view it is offensive to encourage a criminal defendant, especially one who is unaware of the true nature of the situation, to participate in an interview the end result of which may be to cause him to be put to death. It may thus be concluded that no prosecution psychiatric testimony should be admitted on the death penalty issue if that testimony is based upon an interview with the defendant unless it is shown that prior to the interview the defendant recognized his privilege against self-incrimination. The second area of concern is the inadequate cross examination of psychiatric testimony presented in capital trials. Lawyers provided for defendants by the court may fail to cross-examine witnesses or present contrary testimony by other psychiatrists. Furthermore one should be concerned with the quality of the psychiatric examinations and testimonies. Of major concern here is whether psychiatrists are particularly qualified to give opinions on future dangerousness.[17]




In India, though the test of insanity in criminal law is based on the rigid principles of McNaughten’s case[18], death sentence is normally avoided in case of offenders not being legally insane, but mentally insane viz. psychosomatic disorders. Very often an argument is advanced by the abolitionists that many murders are committed in the heat or the moment. However, in such cases death penalty is not awarded. ‘Grave and sudden, provocation and killing in the heat of passion are considered as culpable homicides as falling within the ambit of exception one or four of Section 300 of the Indian Penal Code and the maximum penalty for it is life imprisonment. Otherwise also, Courts have discretion not to give death sentence in a case of murder and give lesser sentences of life due to presence of some mitigating extenuating circumstances.

It may be pointed out in this connection that under Section 367(5) of the Criminal Procedure Code, as it stood before the 1955 amendment, the normal rule was to sentence the accused to death on a conviction for murder and to impose the lesser sentence of imprisonment for life to be recorded in writing. That provision was effected and today under the Criminal Procedure Code of 1973, the Court has to elaborate special reasons for awarding capital punishment.

The Major argument for abolition is that there is no evidence to support the deterrent theory of capital punishment. Statistics establish that the overwhelming majority of killers commit the offence in momentary aberration. Majority of them are perfectly ordinary people without criminal record. Most of the killings are for personal and emotional reasons like anger, jealousy and quarrels. Many of the killers feel terribly abashed after committing the act and few of them commit suicide later. It is vehemently argued that even in these extreme cases of professional criminals the cause of deterrence is served as much by long imprisonment, as by death sentence.

A large number of eminent psychiatrists from London institute of Psychiatry arrived at some important conclusions against capital punishment. They contend that prisons are already packed to the limit because of a mistaken approach to penology. Executions dehumanize the prisoner. The condemned persons are also termed as victims and gain the support, more than the victims of crime.

The Law Commission of India emphasizes that the risk of abolition of capital punishment cannot be undertaken at this junction as under:

“The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human being must be borne in mind. It is difficult to rule out the validity of or the strength behind many of the arguments for abolition. Nor does the Commission treat lightly the argument based on irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment and the strong feeling shown by certain sections in stressing deep questions of human values.”[19]

Indian criminologist started surveying the pros and cons by collection of preliminary data study about the socio-economic and psychic factors of criminals leading to commission of capital crimes. Buddha, Jesus and Gandhi considered capital punishment as killing by authority of law. “Karuna” should crop forth in the minds of judges. It is a harsh reality that capital sentence fall on the socially, mentally and economically backward people and on the brave and bold crusaders, reformists and revolutionaries. Justice Douglas observed that it is the poor, the powerless, and the pale that were executed.

V.R. Krishna Iyer, J. reiterated by categorically holding: “The future belongs to life, not to death. Even if a battle is lost, the war may still be won, but never surrender where man is on the cross. Where divinity is in jeopardy, values await crucifixion.” Again V.R. Krishna Iyer, J. in Rajendra Prasad case[20] adopted the meaning of penal statutes to changing social milieu[21]

“The Indian Penal Code fabricated in the imperial foundry well over a century ago has not received anything but cursory parliamentary attention in the light of the higher values of the National Charter which is a testament of social justice. Our Constitution respects the dignity and, therefore, the divinity of the individual and preservation of life, of everyone’s life. So the Court must permeate the Penal Code with exalted and expanded meaning to keep pace with constitutional values and the increasing enlightenment of informed public opinion. A nineteenth century text, when applied to twentieth century conditions, cannot be construed by signals from the grave. So, while courts cannot innovate beyond the law, the law cannot be viewed as cavemen’s pieces. The penological winds of change, reflected in juristic debates, bills for abolition of death penalty in Parliament and the increasing use of clemency and commutation by the highest executive, must affect the living law of statutory application.

The position thus emerges proves that death sentence is not in conformity to the constitutional philosophy. The passage in Bachan Singh case[22] reads thus: (SCC p. 751, para 209)

“It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The Indian Penal Code (Amendment) Bill, 1978 in clause 125 has proposed the idea of two degrees of murders, namely, the lower degree or the general murders for which the maximum punishment would be imprisonment for life and higher degree murders for which maximum punishment would be death penalty. Murders under the following situations would be considered as higher degree murders:

“(2) Whoever commits murder shall —

(a) If the murder has been committed after previous planning and involves extreme brutality; or

(b) If the murder involves exceptional depravity; or

(c) If the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed

(i) While such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of such murder he was such member or a public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973 or had rendered assistance to a Magistrate or police officer demanding his aid or requiring his assistance under Section 37 or Section 129 of the said Code; or

(e) If the murder has been committed by him, while undergoing sentence of imprisonment for life, and such sentence has become final.”

In India the deterrent line has been best advocated in the Thirty-fifth Report of the Law Commission which opined for the retention of death penalty mainly in view of its deterrent effect in these words:

“Experience of other countries could not be conclusive for India. Need for deterrent control provided by capital punishment is greater in various classes of society. There is greater danger in India of increase in violent crimes if capital punishment is abandoned, particularly in respect of professional criminals.”


The capital punishment debate is not about what murderer’s deserve, but rather about how society should express and defend its fundamental values. The most fundamental argument for discontinuing the death penalty is that society can best express the seriousness of its commitment to the sanctity of human life by abstaining from taking it, despite having justifiable cause. To respect human life precisely where its bearer has forfeited personal claim to that respect would be society’s ultimate statement both of the sanctity of life and of kind of society it wants to be. Undeniably, the reciprocity of killing as punishment for murder in its own way takes life very seriously; but two side’s effects undercut its impact. Achieved reciprocity implies a new equilibrium, a state of justice achieved or restored, but the taking of an innocent life cannot be compensated. Murders should never be allowed the comfort of illusion that they can pay for their crime.

The criminal-justice system is quite imperfect as a mechanism for determining guilt and innocence, “Law and order” advocates are more than ready to grant this generalization with respect to the all-too frequent case of guilty parties going free, but inevitably it happens occasionally in the opposite direction as well. The burden of proving guilt “beyond reasonable doubt” is far from absolute as a protection against the accidents for incriminating circumstance. It is sad enough when any conviction and imprisonment is belatedly recognized as mistaken, for society cannot ever redress the injustice of incarcerating an innocent person. Pain and humiliation cannot be reversed nor can the last years of freedom be restored. Both the arguments made by retentionists as well as abolitionists are empirically weak but emotionally strong. Only thing can be observed in present scenario that it should be awarded to rarest of the rare cases. Where the act is heinous and dreadful for the society to bear in such type of crimes the Criminal should be executed and sentenced with death penalty.


[1] Death penalty information centre, 2007, United States.

[2] Cathleen Burnett, Chapter 4, “Making it Work: Compensation for Wrongfully Convicted,” The Death Penalty Today, edited by Robert M. Bohm.

[3] Jon Yorke in his Article, “The European Union Strategy against the Death Penalty- From Internal Renunciation to Global Ideology”.

[4] Jack Donnelly,General Counsel for the Center for Law and Accountability, in his Article, “Human Rights And The Dialogue Among Civilizations”

[5] Cesare Beccaria, in his famous study on Crime and Punishment in 1764.

[6] Bruce Fein, JD, General Counsel for the Center for Law and Accountability, in an American Bar Association website article titled “Individual Rights and Responsibility – The Death Penalty, But Sparingly” (accessed June 17, 2008),

[7] The American Civil Liberties Union (ACLU), in an Apr. 9, 2007 website section titled “The Death Penalty: Questions and Answers,”

[8] Michigan State University and Death Penalty Information Center, 2000

[9] Marianne Kastrup , Psychiatry and the Death Penalty. Journal of Medical Ethics, Vol. 14, No. 4 (Dec., 1988), pp. 179-183

[10] Amnesty International, Canadian Section Medical Network. Health care and human rights. Toronto: 1987, 5,1.

[11] Curran W J, Casscells W. The ethics of medical participation in capital punishment by intravenous drug injection. New England journal of medicine 1980; 302: 226-230.

[12] Hussain A H, Tozman S. Psychiatry on death row. Journal of clinical psychiatry 1978; 39: 183-188.

[13] Dix G E. Psychiatrie testimony in death penalty litigation. Bulletin of the American Academy of Psychiatry Law. 1977; 5: 287-293.

[14] Amnesty International, Canadian Section Medical Network. Health care and human rights. Toronto: 1987, 5,1.

[15] Reich W. Psychiatric diagnosis as an ethical problem. In: Bloch S, Chodoff P, eds. Psychiatric ethics. Oxford: Oxford University Press, 1981.

[16] Appelbaum P S. Competence to be executed: another conundrum for mental health professionals. Hospital and community psychiatry 1986; 37: 682-684.

[17] Ibid.

[18] 10 Cloth and Fin 200 (1843)

[19]  35th Report of Law Commission of India.

[20]  Rajendra Prasad v. State of U.P., (1979) 3 SCC 646

[21] SCC p. 674 & 668, paras 71 & 50

[22]  Bachan Singh vState of Punjab, (1980) 2 SCC 684