Criminal Law Final

D EATH S ENTENCE : P ROCEDURE A ND H UMAN R IGHT P ERSPECTIVE

D EATH S ENTENCE : P ROCEDURE A ND H UMAN R IGHT

P ERSPECTIVE

PROJECT SUBMITTED TO:-

(FACULTY FOR CRIMINAL LAW.)

PROJECT SUBMITTED BY:-

ANAND ABHISHEK

ROLL No. 12

2ND YEAR, 4th SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

C HANAKYA N ATIONAL L AW U NIVERSITY i


TABLE OF CONTENTS:-

Research Methodology………………………………………….……….iii

References………………………………………………………………….iv

I. INTRODUCTION…………………………………………………vII. SENTENCE OF DEATH: LEGISLATIVE AND JUDICIAL

POLICY………………………………………..…………….……vi

III. PROCEDURE FOR IMPOSITION OF DEATH SENTENCE……………………….……………………………….xi

IV. EXECUTION OF DEATH SENTENCE………………………...xiii

V. CONSTITUTIONAL VALIDITY……………………..…………xiv

VI. CONCLUSION…………………………………………...………xvi

World Wide resolutions and Views - An Anachronism……………….

……….….xviii

BIBLIOGRAPHY……………………………………………………………..………….xix

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RESEARCH METHODOLOGY:-

The researcher has adopted a purely Doctrinal method of research as the research

paper discusses the matter in which no field work is required for the same and the

Doctrinal approach is perfectly suited for the same. The researcher has made

extensive use of several libraries, namely, the library at the Chanakya National

Law University, Indian Law Institute, New Delhi, the Indian Society of

International Law library, and also the Internet sources.

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REFERENCES:-

STATUTES-

1. Indian Penal Code.

2. Criminal Procedure Code.

3. Indian Evidence Act.

LIST OF CASES-

1. Krishna Mochi v. State of Bihar AIR 2002 SC 1965.

2. Bacchan Singh v. State of Punjab AIR 1980 SC 898;

3. Macchi Singh v. State of Punjab AIR 1983 SC 957;

4. Shashi Nayar v. Union of India AIR 1992 SC 395. 5. Allauddin Mian v. State of Bihar AIR 1989 SC 1456.

6. Mithu v. State of Punjab, (1983) 2 SCC 277.

7. Jagmohan Singh v. State of Uttar Pradesh(1973) 2 SCR 541

8. Anshad v. State of Karnataka (1994) 4 SCC 381

9. Gyasuddin Khan v. State of Bihar AIR 2004 SC 210.

10. Deena v. Union of India AIR 1983 SC 1155.

11. Jashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 SCC 353;

12. Rajendra Prasad v. State of Uttar Pradesh AIR 1979 SC 916

13. Lichhamadevi v. State of Rajasthan AIR 1988 SC 1785.

14. Lehna v. State of Haryana (2002) 3 SCC 76.

15. Bhupendra Singh v. State of Punjab AIR 1968 SC 1438

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I. THE DEATH PENALTY: INTERNATIONAL AND HUMAN RIGHTS

PERSPECTIVES ON THE FUTURE OF CAPITAL PUNISHNENT

Introduction: The Death Penalty- Ongoing Concerns

Despites continuing International efforts for initiating and implementing policies

aiming at complete abolition or at least at extended moratoriums the death penalty

is still imposed and enforced in various world regions. Today, Europe represents

(besides South America) the only world region where the death penalty has been

eliminated completely.1 With political and economic transition having been

accompanied during the nineties by the process of abolition of the death penalty in

Central and Eastern Europe, Europe at large has become a death penalty-free

zone.

From a European perspective, it is essentially two major world regions where the

death penalty still plays a significant role. In particular, Asia, and here China as

well as United States of America, seem firmly committed to retaining the death

penalty as a response to serious crime. However, Asia at large as well as the

African continent to be places where the death penalty not only is available in

criminal law statutes but is also imposed and enforced.2 Some 84 countries-

according to the latest Amnesty International survey- retained and enforced the

death penalty at the end of 2001. Although this seems now a minority, we have to

consider the size of the populations living under retentionist criminal law regimes.

Approximately 70% of the world population still lives under the rule of death

penalty.

1 See Harris, D: “The Abolition of Death Penalty in European Union States”, in Nowak, M., Xin, C. (Eds.): EU- China Human Rights Dialogue, Proceeding of the Second EU-China Legal Experts Seminar held in Beijing on 19 and 20 October 1998. Wien 2000, pp. 81-87. 2 See for an overview Report of the Secretary- General: Crime Prevention and Criminal justice. Capital Punishment and Implementation of the Safeguards guaranteeing Protection of the Rights of those Facing the Death Penalty. E/2000/3; 31 March, 2000 presenting the 6th quinquennial report on the Death Penalty for the period 1994– 1998.

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Most execution are reported from a minority of the retainist countries, that is

China, Saudi Arabia, Iran and the US. According to Amnesty International

estimates almost 90% of all known executions took place in these four countries.3

II. SENTENCE OF DEATH: LEGISLATIVE AND JUDICIAL POLICY

Death sentence of Dhananjay Chaterjee was executed on 14th

August 2004, and he was hanged till death, after affirmation by

the Supreme Court and rejection of his mercy Petition by the

Hon'ble president. The case against him was that he hit a girl

aged 14 years, brutally on head, and while the girl was dying, she

was raped by the accused. Result: ultimately the girl died. The

session's court considered it as the rarest of rare case. High

Court affirmed the death sentence and the appeal against the

High Courts order was dismissed by the S.C.

While the majority of people in this country welcomed the

execution, there were a few organizations & people who straight

away outlaw capital punishment for any kind of offence and

therefore, they opposed Dhananjay's death sentence as well. All

this opposition led to a big drama before the sentence was

executed and a desperate attempt was made to keep the issue

of death sentence alive.

We as the member of this legal fraternity have seen this question being tossed up a

number of times and every time it has been settled down by the honorable Courts.

None of us would like to go into the debate of " whether capital punishment

should be abolished or not" again. However, at this point of time when the issue is

still raging, it will be appropriate to remind ourselves as to how the legislatures

and the apex Court have dealt with this issue every time it has come up before

them . Another issue is regarding the extent of judicial discretion.

Life imprisonment is the rule and death sentence is an exception and must be

imposed only when life imprisonment appears to be an altogether inadequate

3 Web.amnesty.org/ 80256A2900558068/0/BF41EB80F9D5DEE780256A48005A9B90.

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punishment having regard to the relevant circumstances of the case.4 The

provision for death penalty is constitutional and does not offend the provisions of

the constitution of India,5 and this does not need re-consideration.6

The Indian Penal Code, 1860 (IPC), a major substantive criminal law in India,

provides for sentence of death and imprisonment for life as alternative punishment

for: waging war against the government of India, attempting or abetting thereof; 7

abetting mutiny by a member of armed forces;8 fabricating false evidence leading

to conviction of an innocent person and his execution;9 committing murder;10

abetting suicide of a child, insane or intoxicated person;11 attempting murder by a

person under sentence of imprisonment for life if hurt is caused;12 and committing

dacoity with murder.13 Premised on vicarious liability, the IPC also provides for

death sentence for the acts done in furtherance of common intention;14 or common

object;15 abetment;16 criminal conspiracy;17 and dacoity with murder (if anyone of

the five persons commits murder while committing dacoity).18

It is important to note that there is not a single offence in the IPC which is

punishable with mandatory death penalty19 and in the above mentioned categories

of offences the death sentence only sets the upper limit of punitive strategies. The

judges, in offence punishable with life imprisonment and alternatively with

sentence of death, therefore, have to make a critical choice between the two

permissible punitive alternatives, viz. death sentence and imprisonment for life.

The statutory provisions do not provide any guidelines as to when judges should

4 Macchi Singh v. State of Punjab AIR 1983 SC 957; Krishna Mochi v. State of Bihar AIR 2002 SC 1965.5 Ie offend the Constitution of India arts 14, 19 and 21: see Bacchan Singh v. State of Punjab AIR 1980 SC 898; Shashi Nayar v. Union of India AIR 1992 SC 395.6 Allauddin Mian v. State of Bihar AIR 1989 SC 1456.7 See s. 121 IPC.8 S. 132.9 S. 194, second para.10 S. 302.11 S. 305.12 S. 307.13 S. 396.14 S. 34.15 S. 149.16 Ss 109-115.17 S. 120-B.18 S. 396.19 Supreme Court declared S. 303 of the IPC, providing for mandatory death sentence for murder by a life convict, unconstitutional for not being in tune with Arts. 14 and 21 of the constitution. See, Mithu v. State of Punjab, (1983) 2 SCC 277.

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impose capital punishment in preference to imprisonment for life, or award lesser

sentence of life imprisonment.

The Supreme Court of India in Jagmohan Singh v. State of Uttar Pradesh,20 was,

inter alia, invited to dwell upon the constitutional validity of such a wide

unguided and uncontrolled judicial discretion to make a choice between ‘death’

and ‘life’ of the convict. It was forcefully argued before the five-member Bench

that such discretion results in discrimination and involves arbitrariness vitiating

article 14 of the constitution. The Court rejected the argument and justified such a

wide judicial owing to impossibility of laying down sentencing norms as facts and

circumstances of no two cases are alike and wrong discretion in matter of

sentence, if any, is liable to be corrected by superior courts.

Death sentence may be awarded in rarest of rare cases21 when the collective

conscience of the community is so shocked that it will expect the holders of the

judicial power centre to inflict death penalty irrespective of their personal opinion

as regards the desirability or otherwise of retaining death penalty.22 When a man

becomes a beast and menace to the society, he can be deprived of his life

according to the procedure established by law, as the Constitution itself has

recognized the death sentence as a permissible punishment for which sufficient

constitutional provisions for an appeal, reprieve and the like have been provided

under the law.23

The following circumstances may be considered as the rarest of rare cases where

the death penalty may be imposed, for instance when:

(1) the murder is committed in an extremely brutal, grotesque, diabolical,

revolting or dastardly manner so as to arose the intense and extreme

indignation of the community;

(2) the murder is committed for a motive which evinces total depravity and

meanness;

20 (1973) 2 SCR 541.21 Bacchan Singh v. State of Punjab AIR 1980 SC 898.22 Krishna Mochi v. State of Bihar AIR 2002 SC 1965.23 Ibid (See para 22).

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(3) the murder of a member of scheduled caste or minority community and the

like is committed not for personal reasons but in circumstances which

arose social wrath;

(4) the crime is enormous in proportion;

(5) the victim of murder is:

(a) an innocent child who might not have or has not provided even an

excuse, much less a provocation, for murder;

(b) a helpless woman or a person rendered helpless by old age or

infirmity;

(c) a person vis-à-vis whom the murderer is in a position of

domination or trust;

(d) a public figure generally loved and respected by the community for

the services rendered by him and the murder is committed for

political or similar reasons other than personal reasons.24

These enumerated aggravating circumstances are not exhaustive but are only

broad guidelines and every sentence must be decided on the facts and

circumstances of each case.25 Before opting for death penalty, the circumstances

of the offender also require to be taken into consideration along with the

circumstances of the crime. A balance sheet of aggravating and mitigating

circumstances has to be drawn up in full. In doing soothe mitigating

circumstances have to be accorded full weightage and a just balance has to be

struck between the aggravating and the mitigating circumstances before the option

of sentence is exercised.26 The mandate of the provision of the Constitution of

India27 demands that a death sentence must not be executed in a cruel, barbarous

or degrading manner.28 A provision which provides for a mandatory sentence of

death is unconstitutional.29

Special Reasons For Awarding death Sentence to be Stated

24 Machhi Singh v. state of Punjab AIR 1983 SC 957; Anshad v. State of Karnataka (1994) 4 SCC 381; Krishna Mochi v. State of Bihar AIR 2002 SC 1965.25 Gyasuddin Khan v. State of Bihar AIR 2004 SC 210.26 Machhi Singh v. State of Punjab AIR 1983 SC 957.27 Ie of the Constitution of India art. 21.28 Deena v. Union of India AIR 1983 SC 1155.29 Mithu v. State of Punjab AIR 1983 SC 473.

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Where the conviction is for offence punishable with death or in the alternative,

with imprisonment for life or imprisonment for a term of years, the judgment shall

state the reasons for the sentence awarded and in the case of sentence of death, the

special reasons for such sentence.30 Special reasons mean special facts and

circumstances obtained in the case justifying the extreme penalty.31 The

personality of the offender as revealed by his age, character, antecedents and other

circumstances and the tractability of the offender to reform must necessarily play

the most prominent role in determining the sentence to be awarded.32 The choice

of death sentence has to be made only in the rarest of the rare cases.

Supreme Court in search of Guiding Principles: Factors to be considered for

Choice between Death Sentence and Life Imprisonment

The preceding account unequivocally reveals that death sentence can be inflicted

only in the rarest of rare cases when the ‘alternative option is unquestionably

foreclosed’ and for ‘special reasons’ to be recorded.

However, a survey of reported cases and studies thereof, though scanty, reveal

inconsistent and incoherent judicial behavior in opting for either of the alternative

punishments, i.e., death sentence or life imprisonment, and commutation of death

sentence. Such an inconsistent judicial behavior could be traced either to the

composition of the Benches33 or judicial reaction to the perceived facts and

circumstances of the cases. A study on ‘trends in sentencing and judicial

pronouncement’,34 for example, demonstrates that courts in a number of cases

have justified imposition of death sentence when the murder, according to the

respective judges’ assessment of the facts and their aversion to the nature and/or

modus operandi of the crime was ‘brutal’, cold-blooded’, ‘deliberate’,

‘unprovoked’, ‘fatal’, ‘gruesome’, ‘wicked’, ‘callous’, ‘heinous’, or ‘violent’, etc.

Young age of the offender; delay in final sentence; or delay in execution of capital

sentence; have also been generally accepted as mitigating factors warranting

30 Code of Criminal Procedure 1973 s 354(3). See Jashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 SCC 353; Rajendra Prasad v. State of Uttar Pradesh AIR 1979 SC 916 (special reason necessary for the award of death sentence in the light of Fundamental Rights).31 Lichhamadevi v. State of Rajasthan AIR 1988 SC 1785.32 Lehna v. State of Haryana (2002) 3 SCC 76.33 See, Blackshield A.R.: “Capital Punishment in India”, 2I JILI 137 (1978).34 Raizada:, “Trends in Sentencing: A Study of the Important Penal Statutes and Judicial Pronouncements f the High Courts and the Supreme Court”, (unpublished Ph.D. thesis). See also Bachan Singh, supra n.32.

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commuting the death sentence to life imprisonment. Courts in India, time and

again, have been resorting to the above-mentioned or identical phrases as ‘special

reasons’ to justify imposition of death sentence in preference to life imprisonment

and/or its commutation to life imprisonment. But the ‘special reasons’ justifying

capital punishment, owing to the absence of any legislative and judicial guiding

principles, are bound to vary from judges to judges depending upon his ‘attitude

and approaches; predilections and prejudices; habits of mind and thought, and his

social value system.’35

III. PROCEDURE FOR IMPOSITION OF DEATH SENTENCE

Submission of Death Sentences to high Courts for Confirmation

When a court of session passes the sentence of death, the proceedings shall be

submitted to the High Court, and the sentence shall not be executed unless it is

confirmed by the High Court.36 Where the appeal is by an accused who is

sentenced to death, so that the High Court dealing with the appeal has before it,

simultaneously with appeal, a reference for confirmation of sentence of the capital

sentence under the provision of the Code of Criminal Procedure 1973 relating to

appeals from convictions on a reference for confirmation of the sentence of death,

the High Court is required to proceed in accordance with the provisions of the

Code of Criminal Procedure 1973.37 These provisions make it clear that the duty

of the High Court in dealing with the reference is not only to see whether the order

passed by the session judge is correct, but to examine the case for itself and even

direct a further inquiry or the taking of additional evidence if the court considers it

desirable in order to ascertain the guilt or the innocence of the convicted person.38

In a murder trial, where the accused stands the risk of being subjected to the

highest penalty prescribed by the Indian Penal Code 1860, the judicial approach in

35 See Bachan Singh, ibid.36 Code of Criminal Procedure 1973 s 366(1).37 Ie in accordance with the Code of Criminal Procedure 1973 ss 375 and 376.38 Bhupendra Singh v. State of Punjab AIR 1968 SC 1438 (under the Code of Criminal Procedure 1973 s 376 proviso, no order of confirmation is to be made until the period allowed for preferring the appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of so that, if an appeal is filed by a condemned prisoner, it has to be disposed of before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the high court must keep in view its duty under the Code of Criminal Procedure 1973 s 375 and consequently, the court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death must be confirmed).

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dealing with such cases has to be cautious, circumspect and careful. In dealing

with such an appeals or reference proceedings where the question of confirming a

death sentence is involved, the High Court has to deal with the matter carefully

and to examine all relevant and material circumstances before upholding the

conviction and confirming the sentence of death.

Power of high Courts to enquire further or take additional evidence

Where proceedings for the confirmation of the death sentence are submitted to the

high court, and the court thinks that a further inquiry should be made into, or

additional evidence taken upon, any point bearing upon the guilt or innocence of

the convicted person, it may make such inquiry or take such evidence itself, or

direct it to be made or taken by the court of session.39 Unless the high Court

otherwise directs, the presence of the convicted person may be dispensed with

when such enquiry is made or such evidence is taken.40 Where the enquiry or

evidence, if any, is not made or taken by the High Court, the result of such inquiry

or evidence shall be certified to such court.41

Power of High Courts to confirm sentence or annul conviction

In any case submitted under the provision of the Code of Criminal Procedure

197342 to a high court for the purpose of confirmation of a death sentence passed

by the Court of Session, the high court may (1) confirm the sentence, or pass any

other sentence warranted by law;43 or (2) annul the conviction, and convict the

accused of any offence of which the court of session might have convicted him, or

order a new trial on the same or an amended charge;44 or (3) acquit the accused

person.45 However, no order of confirmation shall be made under the above stated

provision until the period allowed for preferring an appeal has expired, or, if an

appeal is presented within such period, until such appeal is disposed of.46

39 Code of Criminal Procedure 1973 s 367 (1).40 Code of Criminal Procedure 1973 s 367 (2).41 Code of Criminal Procedure 1973 s 367 (3).42 Ie under the Code of Criminal Procedure 1973 s 366.43 Code of Criminal Procedure 1973 s 368(a).44 Code of Criminal Procedure 1973 s 368(b).45 Code of Criminal Procedure 1973 s 368(c).46 Code of Criminal Procedure 1973 s 368 proviso.

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Confirmation or new Sentence to be signed by two Judges

In every case submitted by a court of session for confirmation of death sentence to

a high court, the confirmation of the sentence, or any new sentence or order

passed by the high court, shall, when such court consists of two or more judges, be

made passed and signed by at least two of them.47 Where in any particular, there is

only one judicial commissioner the ultimate judicial authority, and if the

confirmation of the sentence of death has to be made by him, the procedure laid

down must be followed.

Procedure in case of Difference of Opinion

Where any case submitted by a court of session for confirmation of death sentence

to a high court is heard before a bench of judges and such judges are equally

divided in opinion, the case shall be decided in the manner provided by the

provision of the Code of Criminal Procedure 1973.48 However, where one of the

judges constituting the bench, or, where the appeal is laid before another judge

under the above stated provision, that judge, so requires, the appeal shall be

reheard and decided by a larger bench of judges.49

IV. EXECUTION OF DEATH SENTENCE

Execution of Orders passed by High Courts

Where in a case submitted to a high court for the confirmation of death sentence,

the Court of Session receives the order of confirmation or other orders of the high

court thereon, it shall cause such orders to be carried into effect by issuing a

warrant or taking such other steps as may be necessary.50

Execution of Death Sentences passed by high courts in appeal or revision

47 Code of Criminal Procedure 1973 s 369.48 Ie by the Code of Criminal Procedure 1973 s 392: When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion- provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be reheard and decided by a larger Bench of Judges; see the Code Of Criminal Procedure 1973 s 370.49 Code of Criminal Procedure 1973 s 392 proviso.50 Code of Criminal Procedure 1973 s 413.

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Where a sentence of death is passed by the high court in appeal or revision, the

court of session shall, upon receiving the order of the high court, cause the

sentence to be carried into effect by issuing a warrant.51

Where a person is sentenced to death by a high court and an appeal from its

judgment lies to the Supreme Court under the provision of the Constitution of

India,52 the high court shall order the execution of the sentence to be postponed

until the period allowed for preferring such appeal has expired, or if an appeal is

preferred within that period, until such appeal is disposed of.53

Postponement of Capital Sentence on Pregnant Woman

Where a woman sentenced to death is found to be pregnant, the high court shall

order the execution of the sentence to be postponed, and may, if it thinks fit,

commute the sentence to imprisonment for life.54

Execution of death sentence

When an person is sentenced to death, the sentence shall direct that he be hanged

by the neck till he is dead. A session judge must not sentence an accused to

receive the ‘supreme penalty’ or merely sentence a person to be hanging but direct

that the accused be hanged by neck till he be dead. It is the duty of the session

judge to clearly state the mode in which the sentence is to be executed as

described in the Code of Criminal Procedure 1973 and it is not for the high court

to do so in confirmation proceedings. The system of hanging is consistent with the

obligation of the state to ensure that the process of execution is conducted with

decency and decorum without involving degradation or brutality of any kind and

is, therefore, not violative of the provision of the Constitution of India.

V. CONSTITUTIONAL VALIDITY

The question of constitutional validity of Sec. 302, I.P.C. was discussed in detail

by the SC in Jagmohan V/s State of U.P . Apart from the constitutional validity,

the SC also discussed position in other countries, the structure of Indian Criminal

51 Code of Criminal Procedure 1973 s 414.52 Ie under the Constitution of India art 134(1)(a) or (b). 53 Code of Criminal Procedure 1973 s 415(1).54 Code of Criminal Procedure 1973 s 416.

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law, various policies and bills proposed in the parliament , the extent of Judicial

discretion etc. On the question of constitutional validity the Court observed:-

" The Cr.P.C. requires that the accused must be questioned with regard to the circumstances

appearing against him in the evidence . He is also questioned generally on the case and there is an

opportunity for him to say whether he wants to say ....... In important cases like murder, the Court

always gives a chance to the accused to address the Court on the question of Sentence. Under the

Cr.P.C. after convicting the accused, the Court has to pronounce the sentence according to

law.........."

On all these grounds the SC rejected the argument that under Sec. 302, I.P.C., life

of convict is taken without any procedure established by law & therefore, it

violates Art. 21 of the constitution. Thus, the SC settled this controversy long back

in 1973. However even after Jagmohan's case this question came up again and

again.

The next important case, and which can be termed as a milestone in the Indian

Criminal Jurisprudence is the case of Bachan Singh V/s State of Punjab . So

strong were the principles laid down by the apex went in this case that the

principles are being followed even now despite the fact that SC itself has

expressed the need to review criminal jurisprudence from time to time.

Firstly we must understand why Jagomhan's Case was reviewed. After Cr. P.C.

1973 , death sentence ceased to be the normal penalty for murder [ 354 (3)].

Another reason was that Maneka Gandhi's case gave a new interpretation to Art.

14,19 and 21 and their interrelationship . Main issues before the SC were

constitutional validity of Sec. 302 of the I.P.C. as well as constitutional validity of

Sec. 354 (3) of Cr.P.C. .While answering the question of reasonableness of death

penalty, the constitution bench also discussed various other issues. These issues

were :-

Whether death sentence saves any enological purpose?

Views of famous Jurists & sociologists from all over the world.

Various foreign cases and position in other countries.

Circumstances which can aggravate or mitigate death punishment.

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Cases in which the death sentence should be inflicted, and

The extent of judicial discretion and need of guidelines.

J. Sarkaria delivered the judgment for majority discussing all these issues at

length, and the SC, with the majority of 4:1 rejected the challenges to the

constitutionality of Sec. 302 I.P.C. as the 354 (3) of Cr. P.C.

J. Bhagwati was the only one to dissent . He said :-

" I am of the opinion that Sec. 302 of the I.P.C. in so for as it provides for imposition of death

penalty as an alternative to life sentence is ultra vires and void as being violative of Art. 14 and 21

of the constitution since it does not provide any legislative guidelines as to when life should be

permitted to be extinguished by imposition of death sentence".

VI. CONCLUSION

The death penalty since the ages of enlightenment up to today was always an issue

around which basic values and human rights have been controversially discussed.

However, the current status of the death penalty worldwide indicates that there is

still a great need to continue the debate on abolishing or retaining the death

penalty, in particular there is a need to continue this debate from International

discourse on human rights. Developments in international instruments certainly

demonstrate an enormous political will to abolish the death penalty worldwide55

and make the right to life a universally and unconditionally implemented

standard.56

In justifying retention of death penalty, utilitarian considerations, moral aspects

and social attitudes are highlighted.57 Insofar, a mix of preventive and moral

arguments carry the death penalty58 pointing towards the goals of incapacitation,

general deterrence, positive general prevention as well as reducing the risk of

victims taking the law into their own hands.59 Official views on consequences of

55 See with a summarizing account Nowak, M: “ The Death Penalty Under Present International Law”, in Nowak, M., Xin, C. (Eds.): EU- China Human Rights Dialogue.56 See also the Economic and Social Council Resolution 2000/65, adopted April 26, 2000 urging all retentionist states not only to comply with standards and safeguards in implementing the death penalty but to establish moratoriums on executions with a view to completely abolishing the death penalty. 57 Yu Shutong: Le systeme de la Peine Capitale Dand le Drot Penal Chinois. Revue Internationale de Droit Penal. 17 au 22 mai 1988 . 58 (1987), pp. 689- 698.58 Hood, R.: The Death Penalty. A Worldwide Perspective (Oxford, 1996), pp.38- 40.59 Gao Ming Xuan, op. cit., pp. 400- 401.

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abolishing the death penalty associate with abolition an increase in crime, threats

for public safety60 and possible deterioration of the public’s believe in the rule of

law. Similar reservations of the United States of America, however, were judged

to be non-compatible with the goals of the International Covenant by the United

Nations Committee of Human Rights.61

The International development as regards the death sentence also reflects the basic

trend towards restriction and ultimately complete abolition of the death penalty. In

1989, the Assembly of the United nations adopted the 2nd Optional Protocol to the

International Covenant on Civil and political Rights which states that in tho

ountries which do sign the 2nd Protocol, death penalty may not be enforced

anymore. In June 1990, the Assembly of the Organization of American States

adopted the Protocol to the American Convention on Human Rights on the

abolition of the death penalty.62 In this Protocol, member countries are urged to

abolish the death penalty, although an obligation to do so was not introduced. In

1997, the Human Rights Commission of the United Nations adopted a resolution

which demands for a moratorium on the death penalty and consideration of

complete abolition of the death penalty.63

Reforms in criminal justice system have been a matter of frequent review and

debate in India. The Law Commission of India64 as well as other Commissions65,

from time to time, has suggested a number of proposals for reforms in the

administration of criminal justice. Most of the suggestions, predominantly loaded

with the idea of fair, efficient and human administration of criminal justice, not

only insist for review of some of the fundamental principles of administration of

criminal justice and suggest appropriate amendments to the substantive and

procedural laws but also recommend restructuring and redefining of operational

60 Wie, L, : The 1997 Criminal Code of the People’s Republic of China (Buffalo, New York, 1998), p.12.61 Hood, R. : “ Capital Punishment”, in Tonry, M. (Ed.): The Handbook of Crime and Punishment (New York, Oxford, 998), pp. 739-776, p.743.62 See Nowak, M, : “The Death Penalty Under Present International Law”, in Nowak , M., Xin, C. (Eds.): EU- China Human Rights Dialogue. Proceedings of the Second EU- China Legal Expert Seminar held in Beijing on 19 and 20 October, 1998, pp. 68-77.63 For a complete review see Hood, R.: “Capital Punishment”. In Tonry, M. (Ed.): The Handbook of Crime and Punishment, New York, Oxford, 1998, pp.739-776.64 See generally, Law Commission of India, Fourteenth Report: reform of Judicial Administration (Government of India, New Delhi, 1958); Law Commission of India, Forty First Report: Code of criminal Procedure, 1898 ( Government of India, New Delhi, 1969). 65 See, Annual Reports of the National Human Rights Commission and Reports of then National Police Commission.

C HANAKYA N ATIONAL L AW U NIVERSITY xvii


orbits of all constituent state functionaries- investigatory, prosecutory, ad

judicatory, and custodial- of the criminal justice delivery system. However,

majority of these proposals, unfortunately, are greeted with insensitivity by the

policy-makers and the Legislature.

World Wide resolutions and Views - An Anachronism

1. The movement for abolition of Death Penalty cannot be separated form the

movement of Human Rights. The Universal Declaration of Human Rights

(Article 3) recognized each person's right to life and categorically states

further, Article 5, "No one shall be subject to torture, or to cruel, inhuman or

degrading treatment or punishment."

2. In Amnesty International's view Death Penalty robes the value of human life

and removes the foundation for the realization of all rights enshrined in the

UDHR. It opposes Death Penalty in all cases without reservation. C.J. Bhagwati

held a similar view, while speaking at the 8th United Nations Congress on the

Prevention of Crime and the Treatment of Offenders in Havana on

September1, 1999

3. 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."

4. The European Convention on Human Rights, 1950, ratified by 41 member

states of the Council of Europe, provides via Article 3 " No one shall be subject

to torture or inhumane treatment or punishment."

C HANAKYA N ATIONAL L AW U NIVERSITY xviii


5. The Protocol to the American Convention on Human Rights to abolish Death

Penalty is open to signature and ratification.

6. 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.

7. 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.

8. The Rome Statute of International Criminal Court 1998, ratified by 60

states, via Article 77 provides for a punishment of maximum 30 years.

9. In 1995, the South African Constitutional Court has barred Death Penalty as

an "Inhumane Punishment." Half of the countries in the World have abolished

it either by law or in practice.

Respect Human Life.Why Do We Kill To Tell People Not To Kill?

BIBLIOGRAPHY

BOOKS AND MAGAZINES:-

Indian Penal Code, B.M. Gandhi, 2nd edition, eastern book company Universals, The Indian Penal Code, (45 of 1860) Bare act With Short

Notes

Halsbury’s Law of India. Annual Survey of Indian Law.

D.N .Sen, The Code of Criminal Procedure, vol.2, Premier publishing co.

Doing research on crime and justice, (ed.) Roy d. King and Emma wincup, oxford Co.

C HANAKYA N ATIONAL L AW U NIVERSITY xix


K.N Chandrasekhar Pillai, General Principles of Criminal Law, Eastern book Co.

Russel on Crime ,vol.1, 12th ed ,Universal law publishers

Ratanlal & Dhirajlal , The Code of Criminal Procedure,vol.1 , 18 th ed. , Y.V Chandra Chud & V R Manohar ,Wadhwa

Sarkar’s Code of Criminal Procedure,9th ed ., vol.1, Sudipto Sarkar, Wadhwa

Halsbury’s law of India ,vol( 5)1 ,lexis-Nexis

Halsbury’s law of England ,vol.11(3), lexis-Nexis

AUTHORITIES AND JOURNALS:

Supreme Court Cases. Harris, D: “The Abolition of Death Penalty in European Union

States”.

Black shield A.R.: “Capital Punishment in India.”

Nowak, M: “ The Death Penalty Under Present International Law”

All India Report.

Reports of the Law Commission Of India.

C HANAKYA N ATIONAL L AW U NIVERSITY xx

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