The Need for Abolition of Death Penalty

By Satya Vrat Yadav, UPES, Dehradun

Editor’s Note: The death penalty is one of the most debated issues in criminal law. The Supreme Court has laid down the rarest of the rare doctrine which says that death penalty should be an exception, rather than the rule. In the recent judgment of Shatrughan Chauhan, the court specified several grounds on which death penalty could be commuted to life imprisonment. However, it must be realised that capital punishment is ultimately nothing but state-sponsored killing and therefore, it is high time that a country like India, which guarantees the right to live with dignity, abolishes it.” 


Indian judiciary has expressed its view regarding death penalty by ruling in Bacchan singh vs. State of Punjab[i] that the death penalty must be restricted to the “rarest of rare” cases. This view of Supreme Court was taken to minimize the use of capital punishment to penalize the criminals.

The Court noted: “…. in settling the level of discipline or settling on the decision of sentence for different offenses, including one under Section 302 of the Penal Code, the court ought not bind its thought “chiefly” or just to the circumstances associated with the specific wrongdoing, additionally give due attention to the circumstances of the criminal”[ii].

That aspect of Rarest of rare doctrine, which needs serious consideration, is interpretation of latter part of the dictum – ‘that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.’ Bachan Singh suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose. Death punishment qualitatively stands on a very different footing from other types of punishments. It is unique in its total irrevocability[iii].

In Santosh Kumar Bariyar vs. State of Maharashtra[iv], the Supreme Court said: “The rarest of rare dictum serves as a guideline in enforcing Section 354(3) and entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death penalty as the favoured penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.”

Constitution clearly states in Article 21 that no person shall be deprived of Right to life unless done following due process of law; but Capital punishment denies due process of law. Its imposition is always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

Therefore through litigation, legislation and commutation, there is a need to foster a renewed public outcry against this barbarous and brutalizing institution, and seek the abolishment of capital punishment.

In Saibanna vs. State of Karnataka,[v] Saibanna was a life convict. While on parole, he killed his wife and daughter. The Supreme Court sentenced him to death on a reasoning which effectively made death punishment mandatory for the category of offenders serving life sentence.

However, it is pertinent to note that the Supreme Court had in Mithu vs State of Punjab,[vi] already struck down Section 303 of the Indian Penal Code, which provided for mandatory death punishment for offenders serving life sentence. The reason was that if the death sentence is mandatory, then it is meaningless to hear the convict on the question of sentence, and it becomes superfluous to state the reasons for imposing the sentence of death.

In Saibanna, the court was doubtful whether a person already undergoing imprisonment for life could be visited with another term of imprisonment for life to run consecutively with the previous one. Rather than resolving this doubt through constitutional means, the Supreme Court opted for the easy way out by imposing death penalty on Saibanna. In Bariyar, therefore, the Supreme Court declared its own ruling in Saibanna as being inconsistent with both the Mithu and Bachan Singh judgments and, as a result, per incuriam. Of the 13 convicts who have been identified in the judges’ appeal, Bantu’s death sentence was commuted by President Pratibha Patil in June this year. Another convict, Ankush Maruti Shinde, has been declared a juvenile and has been removed from death row. Dayanidhi Bisoi’s death sentence was commuted to life imprisonment by the Governor of Odisha in 2003. President Pratibha Patil commuted the death sentences of Sattan and Upendra in July 2011.

Arguments Against Death Penalty

Some of the important points due to which capital punishment is opposed by nations, NGOs and individuals are-

  1. Unlike many other punishments, loss suffered by death penalty irreversible, but can never ignore high risk of convicting the wrong person and executing the innocent.
  2. Death penalty is actually deprivation of person from the fundamental right provided by constitution to the accused, which is right to life.
  3. A murder trial normally take more time and money than any other trail, and when such trial has chances of death penalty, then courts takes even more time to be sure for the real conditions and these expenses are paid up actually by taxes that are paid by the taxpayers of the country.
  4. Bhagwati has pointed on August 16 1982, “Capital punishment has a class complexion and is imposed randomly and disproportionately on the poor and uneducated”.
  5. The cases of death penalty cause extra appeals and consume more time that normally required deciding a case and this is caused due to endless appeals and additional procedures that are being followed up by the court.

World Wide Views

(1)The mandate of the National Human rights Commission established under the Human Rights Protection Act of 1993 provides a lens through which the situation can be better understood- “Murder is abhorrent and demonstrates a lack of respect for human life and so a policy of state killing is immoral. It epitomizes the brutality of violence rather than the reason as the solution to solve social difficult problems.”

(2)The International Convention on Civil and Political Rights, to which India is a party and which has been ratified by 144 states, encourages the abolition of Death Penalty.

(3)The 2nd Protocol to the International Convention on civil and Political Rights adopted by the United Nations General Assembly with its Resolution on 44/128 of 15th December 1989 is the world’s first pact of universal scope at ending Death penalty.

(4) Half of the countries in the World have abolished it either by law or in practice.

(5)The General Assembly of the United Nations resolved in 1971, “In order to fully guarantee the right to life provided in Article 3 of the UDHR, the number of offences for which capital punishment may be imposed should be progressively restricted, stressing desirability of abolishing of this punishment in all countries.”


Opposing the death penalty does not indicate a lack of sympathy for murder victims. On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. Even the vilest criminal remains a human being possessed of common human dignity Therefore one should respect each and every human being.

Death penalty epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many family members of victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these members have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

We cannot lose sight of the enormity and gravity of a criminal’s crime. A criminal has to pay for his crime. But as a society we want to kill crime and not the criminal. A policy of life imprisonment without the possibility of a parole would be a much humane punishment.

Recently, in the case of Shatrughan Chauhan vs. Union of India[vii], a three-judge bench of the Indian Supreme Court delivered a landmark judgment on the death penalty holding, in particular, that an excessive delay in carrying out the death sentence was an essential mitigating factor in a plea for commutation. In doing so, it overruled its own 2013 judgment in Bhullar vs. NCT[viii].

In Bhullar, the Supreme Court held that delay need not be a ground for commutation, relying on a previous judgment.[ix] The Court drew a distinction between ordinary capital crimes and capital crimes under terrorism statutes (at issue in Bhullar). It held that because of the serious nature of the crimes involved, an excessive delay in processing a death row convict’s mercy petition need not be a ground for commuting the death sentence to life imprisonment. Thus, the Court effectively held that the nature of the capital crime determined the due process treatment that the convict was entitled to.

In Shatrughan Chauhan, the Supreme Court comprehensively rejected this reasoning. It held that Bhullar judgment had overlooked Triveniben’s majority judgment’s contrary stance that a delay in carrying out the death sentence was, indeed, one ground for commutation; and thus, the Court held Bhullar to be per incuriam.

The Court, however, refused to provide a specific time after which a delay would render commutation necessary, and held that each case would be adjudicated on its own merits. In essence, the court thus made delay an essential mitigating factor.

At the heart of the argument is the idea that keeping a death row convict under the shadow of death for years is a form of cruel, inhuman and degrading punishment that no civilized society (whether or not it allows capital punishment) should inflict upon human beings.

The inevitable mental agony that accompanies waiting for an inevitable death, demeans individual dignity. Insofar as the Court has interpreted Article 21’s guarantee of the right to life to include treating all individuals with dignity, the judgment reaffirms the humanism that is the foundation the Constitution, and that whatever the crime might have been, human beings continue to have a legitimate claim to be treated with dignity under the Constitution.

The Court further held, referring to a copious body of foreign law and international law, that insanity was a ground for commutation-this is justified by our basic, intuitive notion that persons in a democracy ought to suffer penalties and burdens only to the extent that they are responsible for the actions that they undertake – and that punishment must respond not just to the nature of the crime, but to the ability of the actor to understand or comprehend the nature of his actions.

The Shatrughan judgment is a progressive step in Indian death penalty jurisprudence. Perhaps it is best to leave the last word to the Court, in its penultimate paragraph, suggesting not just that the death penalty should be administered humanely, but that the very idea of State-sanctioned killing of human beings has no place in a civilized democracy: “Remember, retribution has no Constitutional value in our largest democratic country.”

Edited by Kudrat Agrawal

[i] (1980) 2 SCC 684.

[ii] Id.

[iii] (2009) 6 SCC 498.

[iv] Id.

[v] 2005 (3) SCR 760.

[vi] 1983 SCR (2) 690.

[vii] Writ Petition (Criminal) No. 55 OF 2013.

[viii] Writ Petition (Criminal) D.No. 16039 of 2011.

[ix] Triveniben vs. State Of Gujarat, (1989) 1 SCJ 383.

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