Capital Punishment and its Pitfalls


Every society sets certain norms for the people to follow and if anyone deviates from such norms then he will be punished by society. Austin considered sanction as a vital and essential ingredient of law. It is only through sanction that obedience to the law can be secured from the people. Sanction can be understood as inflicting pain or injury upon the wrongdoer. This is in a way can be called or regarded as punishment. The punishment is inflicted upon the criminal or the offender who has committed a wrong. This deters not only the person who has committed a wrong but also others from committing the crime.

There exist various theories of punishments based on which an offender is punished[i]:

  • Retributive theory: The offender must receive as much pain and suffering as he has inflicted. Teeth for teeth and an eye for an eye are the basic principles of this theory.
  • Deterrent theory: The objective of this theory is that the punishment which is imposed on the individual deters the offender from repeating the same course of conduct so that it does not affect the person and his personal belongings.
  • Reformative theory: This theory provides that the offender should be reformed. The motives behind the act committed must be examined and a way out should be found so that the offender gets back to the mainstream.
  • Preventive theory: The object of this theory is that the crime must be prevented. This can happen only when the activities of the offender are kept in check. This theory is another form of deterrent theory. One is to deter the individual from committing the crime and the other is to prevent the crime.
  • Expiatory theory: According to this theory, the offender shall pay the blood money for the sin he has committed. The concept behind this theory is that the offender will serve the victims and their dependents to compensate the deprivation which will, in turn, lead to the cleansing of the heart.

In the history of punishments, capital punishment has always occupied a very significant and crucial place. Etymologically, the word ‘ capital ‘ is derived from the Latin word ‘ capitalis’ which means ‘concerning the head’. Therefore, when a person is subjected to capital punishment, it means to lose one’s head[ii].

The objective of Capital Punishment is two-fold:

  • By putting the offender to death, it may instil fear in the minds of the other people in society and can be considered as a lesson and a deterrence;
  • If the offender is an incorrigible criminal, then punishing death may result in the prevention of the repetition of the crime permanently.

Judicial Perspective:

The judiciary has dealt with this aspect in several landmark cases some of which are discussed below:

In StateofUttarPradeshv. M.K. Anthony[iii]:

The accused killed his ailing wife as he was not able to provide the money for her operation. He also killed his two children as there would be no one to care for them after the Mother. The crime committed by the man was due to poverty and not because of his desire for vengeance or gain. In these circumstances, the Supreme Court held that life imprisonment and not capital punishment shall be imposed on the offender.

In BachanSingh v. StateofPunjab[iv]

The Supreme Court was encountered with a question that whether death penalty imposable for certain offences under the Indian Penal Code is Constitutionally valid. By four-to-one majority, the Supreme Court ruled that the death penalty is constitutionally valid and does not constitute an ‘unreasonable, cruel or unusual punishment’. The majority pointed out that the death penalty shall be imposed in rarest of rare cases and only for special reasons.

Pre-planned, calculated, cold-blooded murder has always been regarded as one of an aggravated kind. In Jagmohan Singh v. State of Uttar Pradesh[v], it was reiterated by the Court that if a murder is “diabolically conceived and cruelly executed”, it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated by V.R. Krishna Iyer, J., in Ediga Anamma v. State of Andhra Pradesh[vi] case, in these terms:

“The weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence”.

Contentions regarding Capital Punishment:

  • Deterrent Effect:

The opponents who are against capital punishment are of the view that it is inhumane and criticise it for its irreversibility. Unlike, life imprisonment, capital punishment will not allow the Judiciary to correct its error of Judgement. There have been arguments against Capital Punishment that it has not served its deterrent object at all. In some of the states of the United States of America, where the death penalty has been abolished, there are fewer cases of the serious nature as compared to other states where it is still retained. If capital punishment has the deterrent effect, then the crimes in former states would have increased and in the latter, it would have decreased.

  • Retribution:

Some of the supporters are of the view that it is morally justified to impose capital punishment. Immanuel Kant has been of the view that every murderer deserves to die because the loss of life is incomparable to any jail term[vii].

Abolitionists are of the view that retribution is simply revenge and cannot be condoned or accepted.

  • Human Rights Violation:

Detractors of capital punishment are of the view that Capital Punishment is the worst violation of Human Rights. Right to life is the most important right and capital punishment violates it.

Amnesty International holds the view that the death penalty breaches human rights particularly right to life and right to live free from torture or cruelty, inhuman or degrading treatment or punishment. Both of the Rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948[viii].

Our Constitution, under Article72, provides the President with the ‘pardoning power’, wherein the President may grant pardons, respites or remissions of punishment or to suspend the sentence of any person convicted of any offence including the punishment for death.

Aggravating and Mitigating circumstances:

When the courts are faced with a question of imposing the death penalty, certain circumstances, which may be aggravating or mitigating are to be kept in mind while dispensing with justice. The shocking nature of the crime or the number of murders committed is not the criterion. It is said that the focus has now completely shifted from the crime to the criminal. “Special reasons” necessary for imposing death penalty “must relate not to the crime as such but to the criminal”.

The Court shall keep in mind the following aggravating circumstances to conclude to impose the penalty of death in its discretion[ix]:

  1. if the murder has been committed after previous planning and involves extreme brutality; or
  2. if the murder involves exceptional depravity; or
  3. if the murder is of a member of any of the armed forces of the Union or a member of any police force or 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 the murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
  4. if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had assisted a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.

The Court formulated the following mitigating circumstances that are to be kept in mind while exercising their discretion when imposing the death penalty[x]:

  1. That the offence was committed under the influence of extreme mental or emotional disturbance.
  2. The age of the accused and if the accused is too young or too old, he shall not be sentenced to death.
  3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
  4. The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
  5. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
  6. That the accused acted under the duress or domination of another person.
  7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

Contemporary Scenario:

Law Commission of India in its Thirty-Fifth Report, 1967 cited the following reasons for retention of death sentences[xi]:

Capital Punishment acts as a deterrent.

  • Dangerous Criminals need to be eliminated to protect society.
  • If incorrigible offenders and criminals are not hanged, they are likely to repeat their crime when they will be released.

 The following justifiable reasons and arguments may be advanced for the abolition of death sentence:

  1. It is revengeful.
  2. Death Sentence is unjust for the family of the offender.
  3. It is immoral and society has no right to take life that is incompatible with Modern Morality and Human Rights.

The certainty of Punishment is more important than the severity of Punishment otherwise death penalties will not get desired results. The major drawback lies in the ‘ execution ‘ of a death sentence. Various factors such as appeal, revision, mercy petition and the pardoning power of President have contributed in diminishing the deterrence of death and has ultimately become Constitutional grounds for converting death sentence to life imprisonment.

All these factors became the major reasons for the delay in execution of death penalty for the convicts of Nirbhaya, even though they had brutally gang-raped and murdered her and this fact was in the full public domain. They exploited every available loophole in the system and managed to get adjournment after adjournment and Tarikh pe Tarikh delaying the execution of the sentence and with it belittling our justice dispensation system every time the execution of death sentence was postponed despite issuance of black warrants. Nirbhaya got justice nearly after 7 years of fighting in the court. The delay in justice mechanism can be considered as the main reason for the death penalty not appropriately working as the deterrent to the heinous crimes.

Conclusion & Suggestions:

 Capital Punishments has its pros and cons which exist in society. But, it is important to realise that it is not the severity of punishment with which we can deter the crimes but it is about the fact that how certain the punishment is. Speedy trials and less time-consuming court procedures can be considered as a vital characteristic in dispensing justice. The pace at which the finality is given to the death sentence and it is executed rather than being kept pending for time immemorial enmeshed in bureaucratic red-tapism decreases the significance of the death punishment severely and undermines its ability to act as a deterrent for the society which is the main reason for its continuance.

The swift execution of the death sentence in Ajmal Kazab case and Afzhal Guru case, to some extent, restored the heft associated with the death sentence but the continuous adjournments in Nirbhaya’s case which were relayed live by the media virtually killed the profile of death sentence. This segment of the criminal justice calls for significant reforms in as much as a time limit must be fixed within which a mercy petition can be filed with the President, time is taken by the appropriate government to refer it to the comments to the home department, the home department reverting to the President with the recommendations of the cabinet for appropriate action within the stipulated time and President deciding it within the time fixed.

Further, if there are more than one accused the time limitation to file mercy petition should run concurrently and simultaneously for all accused person and if any of the accused people fail to file mercy petition, it should be presumed that he is not willing to exercise that right and he has abandoned his right. Consequential and necessary amendments in the Code of Criminal Procedure, 1973 are urgently and mandatorily required.

  • Following is the Research Postulate and research question forming part of my Research.:

Q1. Whether the Capital Punishment is required in the Indian legal system or not?

Q2. Whether the Capital Punishment has served as an adequate deterrent in Indian Legal System?



[iii] AIR 1985 SC 48

[iv] AIR 1980 SC 898

[v] 1973 AIR 947

[vi] 1974 AIR 799




[x] Ibid.

[xi]Law Commission of India’s Thirty-Fifth Report on “The Capital Punishment.” pp. 53-66

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