Posted on: August 30, 2020 Posted by: admin Comments: 0

Author : Shivika Agrawal, Student at Gujarat National Law University


Death Penalty is a form of punishment, also known as capital punishment. Many philosophers, political thinkers and libertarians over the years have talked about their views on whether capital punishment serves as an effective deterrent. It has widely been criticised over the years because of the drastic approach of imparting justice. This paper analyses whether Capital punishment violates the basic human right to life and tries to establish whether it is pragmatic in practice.


Capital Punishment is defined by the Black’s Law Dictionary as: Punishment of death.[1]

It is administered in cases of heinous crimes. Due to the extreme form of punishment, death penalty is not employed for every offense. Even in India, since 1995, death penalty has been awarded only in sixteen cases. Many scholars say that the retributive form of punishment doesn’t necessarily serve as an effective deterrent due to its gruesome nature. Death penalty falls under the category of incapacitation theory of punishment where the criminal is removed from the society, either through banishment, like in the ancient times or through death, in order to remove the threat.

An adverse ethical judgement is a form of punishment and has essentially a reformative and preventive function.[2] It thus seeks to set an example in the society.


Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status and includes the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more; everyone is entitled to these rights, without discrimination.[3] The ambit of human rights is wide enough to cover all of humanity. It is a violation, therefore, when a person’s life is taken, irrespective of the past deeds of the person.

The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 by General Assembly resolution 217 A (III) as a common standard of achievements for all peoples and all nations and sets out fundamental human rights to be universally protected.[4]

The United Nations Economic and Social Council adopted Safeguards guaranteeing protection of the rights of those facing the death penalty which states that where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.[5] India has therefore adopted the technique of administering death penalty only by hanging, ruling out other options like beheading, the use of gas chambers etc.


Capital Punishment is not a contemporary practice. It finds its roots back to the Hammurabi Code of the Babylonian Dynasty in ancient Greece. It is based on the principle of ‘tooth for tooth and eye for eye’. It was a very common form of punishment, given for even the most trivial crimes. According to the Hammurabi Code, it was employed for at least twenty-five offences including murder, treason, arson and rape, although Plato, an ancient Greek philosopher argued that it should be used only for the incorrigible.[6]

Even in ancient India, the theory of punishment was based on the concept of ‘Danda’ or punishment. It constituted a huge part of ‘Dharma’ or Hindu Righteousness. Expiation was, according to the Vedas, considered to be a retribution from Heaven.[7]

In the Mauryan as well as the Mughal Empire, punishment by death was widely practised. It was carried out by several methods such as crucification, drowning, beating to death, burning the culprit alive and public hanging.[8]

Manu rightly pointed out the Ancient Indian Theory of Punishment as- “Punishments have been prescribed by the sages so the righteousness may not be outraged and unrighteousness may be cured.” The punishment was based on the concept of ‘Karma’ and was applied keeping in mind the principle, ‘what goes around, comes around’.


The people who vouch for and against death penalty can be categorised as retentionists and abolitionists respectively. The main point of contention of retentionists relates to the argument that if capital sentence is taken away, there would be no effective justice system and crimes against innocent people would continue.[9] They believe that it is essential to retain Capital Punishment in order to act as a deterrent.

However, opponents of death penalty claim that it is immoral; even the abolitionists claim that capital punishment violates the condemned person’s right to life and is fundamentally inhuman and degrading.[10]

International tribunals elaborate on the fact that even if a person is charged with the most heinous offence, he or she should not be subject to inhuman or degrading treatment. Majority of the countries in the world have therefore abolished death penalty and embraced life imprisonment as an effective alternative.


Death penalty in India is legalised by section 53 of the Indian Penal Code.[11]

Earlier section 303 of IPC[12] made it mandatory for a person to be punished with death penalty while serving life imprisonment, but it was scrapped in Mithu v. State of Punjab.[13] Later, the Supreme Court in Bachan Singh v. State of Punjab[14] held that capital punishment might be given only in the ‘rarest of rare cases.’ The Court however failed to mention what constitutes the rarest of rare case.

In 1983, the phrase “rarest of rare case” first appeared in the Supreme Court’s decision, Machhi Singh v. State of Punjab.[15] The meaning of the phrase “Rarest of the Rare cases” is that the court while deciding the case in a criminal trial has to see the nature and gravity of the crime to provide the appropriate punishment.

Capital Punishment, while it violates the provisions of right to life and dignity provided in Article 21 of the Constitution of India, is constitutionally valid.[16] Article 21 says, “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” While it may seem that the right to life of the guilty might be infringed, Article 21 does also allow its administration in cases where it is mandated by law.

The Law Commission issued its 35th Report in 1967 where it recommended the retention of the death penalty and suggested the vesting of discretionary powers to the courts claiming that such discretion was necessary, the absence of which, would put the lives of the citizens in danger.[17]

In 2003, the Law Commission issued its 187th Report on the “Mode of Execution of Death and Incidental Matters” addressing the three issues: (a) the method of execution of death sentence, (b) the process of eliminating differences in judicial opinions among Judges of the Apex Court in passing the death sentence, and (c) It is necessary to provide the defendant with the right of appeal in a death sentence.[18] After taking the public opinion and studying the practice on these issues in India and in other countries, the Commission recommended the amendment of Section 354(5) of the CrPC to allow for the lethal injection as a method of execution, in addition to hanging.[19]

The Supreme Court, in its most recent verdict, in the Nirbhaya Rape Case, awarded death penalty to the criminals, stating that “The attitude, perception, the beastial proclivity, inconceivable self-obsession and individual centralism of the six made the young lady to suffer immense trauma…”[20] This was what fulfilled the requirements to be called as a ‘rarest of rare case’.

Another famous example where capital punishment was awarded was in the case of Ajmal Kasab who was condemned under the charges of murder, waging war and other offences.


Capital Punishment does deprive people of the basic right to life. It is so extreme in its nature that it doesn’t leave any scope for retribution of the criminal, and in the event of being found innocent, death penalty also doesn’t leave room for the courts to correct their mistake. It is therefore, just not feasible to punish all perpetrators of crime with death penalty.

Another problem associated with it is that the line between punishment and brutality is very thin. It might very well be used as a tool of oppression.

Awarding death penalties to some and not to some others, for the commission of the same crime, might lead to the arbitrariness of the process and might ultimately make the people lose faith in the judicial authorities. Since ‘rarest of rare case’ hasn’t officially been defined by the Supreme Court, inconsistencies will be inevitable.

While Capital Punishment infringes the right to life, it is important to understand that the nature of crimes today has changed. Some punishments just won’t suffice when it comes to the brutality of the crimes committed. Development of technology, better connectivity and access to other people’s information, has only made the commission of crimes easier. The penal laws have failed to act as a deterrent. In such a scenario, it becomes imperative to retain methods like death penalty as reminders of brutal punishments. However, there is no solid evidence suggesting that death penalty acts as an effective deterrent.[21]

Every punishment is enforced, keeping in mind the two basic ideas:

  1. a) Providing justice to the victim and;
  2. b) To act as an example for the people to deter them from committing similar crimes in the future.

While capital punishment theoretically fulfills both aspects, there is still a big question mark over its practical application.

Thus, the best resort, especially in a country like India, would be to enforce rigorous life imprisonment for even the brutal offences and to reserve the application of capital punishment only for the rarest cases. To enable this, it is essential for the law governing bodies to establish exactly, the parameters which need to be satisfied in order for a crime to be worthy of death penalty. It is also necessary to set precedents of life imprisonment to act as deterrents.


[1] Henry Campbell Black, M.A, Black’s Law Dictionary (4th edn, West Publishing Co. 1968).

[2] Moser, S., Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition (Springer, 1957).

[3] ‘Human Rights’ (United Nations) <> accessed 23 August 2020

[4] ‘Human Rights’ (United Nations) <> accessed 23 August 2020

[5]‘Safeguards guaranteeing protection of the rights of those facing the death penalty’ (United Nations Human Rights Office of the High Commissioner) <> accessed 24 August 2020.

[6] Roger Hood, ‘Capital Punishment’ (2020) Encyclopaedia Britannica, inc. <> accessed 30 July 2020.

[7] Radha Krishna Choudhary, Proceedings of the Indian History Congress (Vol. 10, Indian History Congress 1947) 169.

[8] Mukund Sarda, ‘Capital Punishment: A Violation of Human Rights-A Study’ (2016) SSRN <> accessed 24 August 2020.

[9] Mukund Sarda, ‘Capital Punishment: A Violation of Human Rights-A Study’ (2016) SSRN <> accessed 24 August 2020.

[10] Roger Hood, ‘Capital Punishment’ (2020) Encyclopaedia Britannica, inc. <> accessed 30 July 2020.

[11] Indian Penal Code 1860.

[12] Indian Penal Code 1860.

[13] 1988 (3) SCC 607.

[14] 1982 AIR 1325.

[15] 1983 AIR 957

[16] Shivani, ‘Execution of Capital Punishment in India: Is it a Violation of Haman Rights?’ (2020) IJAR <> 24 August 2020.

[17] Law Commission of India, 35th report, 1967 <> accessed 20 August 2020.

[18]Law Commission of India, 187th report, 2003, <> accessed 20 August 2020.

[19] Shivani, ‘Execution of Capital Punishment in India: Is it a Violation of Haman Rights?’ (2020) IJAR <> 24 August 2020.

[20] Mukesh and Ors. v. State for NCT of Delhi and Ors. [2017] SC 2161, [2017] AIR.

[21] ‘Death Penalty’ (Amnesty International) <> accessed 24 August 2020.

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