Final Seminar Criminology

8/7/2019 Final Seminar Criminology

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SEMINAR PAPER, ON THE TOPIC OF,

CAPITAL PUNISHMENT V.LIFE IMPRISONMENT

SUBMITTED/PRESENTED TO:DR.PROF.S.C.ROY

(ASSOCIATE FACULTY FOR CRIMINOLOGY)

ON, THE 18TH OF NOVEMBER,YEAR 2010.

CHANAKYA NATIONAL LAW UNIVERSITY

PRITHVI SREERAMANENI (42),RAHUL ANAND (47),RAHUL VARDHAN (48),

SHAILENDRA PAL SINGH RATHORE (61)


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S T R U C T U R E

A I M & O B J E C T I V E

The researcher has attempted to gain an understanding of functionalities of the forces and

theories governing the implications of capital punishment and life imprisonment, within the

purview of Indian legal system as well as international legal practices.

S C O P E & L I M I T

The scope encompasses within itself the basic understanding and need for repealing of lawspropagating capital punishment.

M E T H O D S & A N A L Y S I S

The methodology sought to be adopted for the purpose of this paper is largely doctrinal and

analytical.

S O U R C E S O F D A T AThe researcher has relied on both primary and secondary sources of data. The library and

online database materials are extensively used to bring out this paper.

R E S E A R C H Q U E S T I O N

The main research objective is to critically examine role played by interpreting authorities in

identification of rarest to the rarest crime, its justification and subsequent application. Also

the pivotal aspects of life imprisonment over capital punishment that is a imperative

alternative to capital punishment through what means/theories

M O D E O F C I T A T I O N

The Blue Book Mode (Cambridge Mode of Citation) has been adopted uniformly throughout

the course of the research paper.


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A C K N O W L E D G E M E N T

I TAKE THIS OPPORTUNITY TO EXPRESS MY HUMBLE GRATITUDE AND PERSONAL REGARDS TO PROF.

S.C.ROY FOR INSPIRING ME AND GUIDING ME DURING THE COURSE OF THIS PROJECT WORK AND ALSO

FOR HIS COOPERATION AND GUIDANCE FROM TIME TO TIME DURING THE COURSE OF THIS PROJECT WORK

ON THE TOPICCAPITAL PUNISHMENT V.LIFE IMPRISONMENT

I EXPRESS MY GRATITUDE TO THE FACULTY OF, CRIMINOLGY FOR

THE CONCEPTS GIVEN BY HIM IN THE SUBJECT WHICH HAS BEEN

THE BASE FOR THIS SMALL PIECE OF WORK.

YOURS SINCERELY,

GROUP NO.8PRITHVI SREERAMANENI,RAHUL ANAND,RAHUL VARDHAN,SHAILENDRA PAL SINGH RATHORE


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T A B L E O F C O N T E N T S

I. I n t r o d u c t i o n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2II. T h e n a t u r e o f C a p i t a l P u n i s h m e n t . . . . . . . 2-21

2.1Theologies of Capital Punishment...............................................................3-91) The rise of abolitionist movement2) Theories of Punishment3) Deterrent Theory4) Retributive Theory5) Preventive Theory6) Reformative Theory

2.2

Race and death Penalty..............................................................................9-12

2.2.1 A Social Dominance Theory Explanation

2.2.2 The reality today

2.3 An Unequal Field: The Poor and the Death penalty.............................12-15

2.3.1 Poverty as a Factor in Sentencing: Mulla Vs State of UP

2.4 The Trial of Saddam Hussain..................................................................15-19

2.4.1 The Importance of Saddams Trial

2.4.2 Capital Punishment as an option

(1) Offence under International Law no penalty under domestic law

(2) Penalty according to underlying Crimes

(3) Following International Precedents

2.5 Barely Conceded Murder: The Death Penalty and the Mentally

Retarded............................................................................................................19-21

III. C o n s t i t u t i o n a l V a l i d i t y o f C a p i t a l

P u n i s h m e n t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23

IV. C r i t i c a l A n a l y s i s o f I n d i a n L a w i n t h e

V e r g e o f I n t e r n a t i o n a l I n s t r u m e n t . . . . . . . . . . 24-29

V. A r g u m e n t s a g a i n s t D e a t h P e n a l t y . . . . . . . . . . 29-34

5.1 Death Penalty and Human Rights.............................................................30-34


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5.1.1 Defining Death Penalty in terms of Human Right

5.1.2 International Norms Regarding Death Penalty

(1) Universal Declaration of Human Rights.

(2) International Covenant on Civil and political right (1966).

(3) International treaties providing for abolition of Death Penalty.

(4) Second optional protocol to the international covenant on civil and

political rights:

(5) Protocol to the American convention on Human Rights.

(6) Protocol No.6 to the European Convention on Human Rights.

(7) Protocol No.13 to the European Convention on Human rights.

VI. C o n c l u s i o n s a n d S u g g e s t i o n s . . . . . . . . . . . . . . . 35-37

VII. B i b l i o g r a p h y . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI-XI


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I. Introduction

I am a human being and nothing pertaining to human is alien to me

-Karl Marx

The death penalty has been, and continues to remain, a contentious issue in the field of

criminal law and sentencing. Its supporters cite it as a vital tool in combating crime especially

stressing on its value as a deterrent, its utility as a retributive tool and the inadequacy of life

imprisonment for punishing somebody who has extinguished another life.1 Its opponents

critique it as an anomaly from medieval times, cruel and barbaric in practice. Other

frequently levelled criticisms include the arbitrary manner of its imposition, the inherent

irony in the State emulating the murderers actions and the impossibility to make amends

should proof of innocence be found later on.2 These concerns have been the primary reason

behind the recent abolitionist trend in the world.3 The European Union has taken the lead in

this field having abolished it totally.4

More than half of the worlds population however still lives in countries that retain the death

penalty.5

A major criticism levelled against the death penalty is the amount of discretion

vested in the judges during sentencing.6It is argued that the judges personal beliefs, and not

the writ of the law, that decides who shall live or not.7 Capital punishment offers a form of

direct democracy that is scarcely found in any other sphere of public policy.8

Judges drawn

from the ranks of the commons make the decision to take or spare the life of a convict on

1See, inter alia, The Criminal Legal Justice Foundations reasons for retaining the death penalty, Available at, Last accessed on the 11th of April 2010

2For a non exhaustive list of the criticisms, see the Amnesty International Report on Death Penalty Worldwide,

Available at , Last accessed on the 11th of April, 2010

3Abolitionist and Retentionist Countries in the World-A Report by Amnesty International, Available at

Last accessed on the 11th of

April, 2010

4Article 2 of the Charter of Fundamental Rights of the European Union, It reads Everyone has the right to life;

No one shall be condemned to the death penalty or executed

5Supra, n.3

6Supra, n.2

7Jagmohan Singh v. State of UP , (1973) 1 SCC 20, Arguments on behalf of the plaintiff

8

Christopher Z. Mooney and Mei Hsein Lee, The Influence of Values on Consensus and Contentious MoralityPolicy: US Death Penalty Reform, 1956-82, Journal of Politics, Vol.62, No.1, 225 (2000)


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death row, thus directly translating their personal beliefs into public policy.9 Such beliefs may

take the form of arbitrariness in the best and outright bias in the worst.10

This project aims to examine the veracity of this claim. It shall look at how markers like a

persons class, race and mental health affect his chances of being put to death. The term

disadvantaged has been therefore given wide latitude. While not exclusively India-centric,

this project also includes a study of a recent judgment of the Supreme Court of India that for

the first time considered an accused persons socio-economic status as a mitigating factor

during a death sentence hearing.

II. The Nature of Capital Punishment

The issue of arbitrariness in the imposition of death penalty has achieved prominence in the

discourse on death penalty since Furman v. Georgia.11 In this landmark case, the Supreme

Court of the US came around to the belief that for the vast majority of the people eligible

for the death penalty, a select few were chosen to be executed on no distinguishing grounds.12

This was a restatement of the procedural argument claim put forward by the abolitionists. 13

Even if one were to assume that certain killers need to be executed, no procedural system can

possibly identify all of them.14

A brutal murder may see the perpetrator sentenced to death

while in an equally heinous crime the Court may find life imprisonment to be sufficient. This

holds true not only for the United States but also for India.15

The importance of this discretion

to the Supreme Court of India may be judged from their decision in Mithu v. State of

Punjab16

where the Court struck down S. 303 of the Indian Penal Code that provided for a

mandatory death sentence for murder committed by a life convict on, inter alia, it infringing

9Barbara Norrander, The Multi Layered Impact of Public Opinion on Capital Punishment Implementation in the

American States, Political Research Quarterly, Vol.53, 773 (2000)10

Supra, n.711 408 US 238 (1972)12

CHARLES BLACK JR., CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE ANDMISTAKE 20 (1981)13

W. BOWERS, LEGAL HOMICIDE 28 (1984)14

Ibid15

See, inter alia, Dhananjoy Chatterjee alias Dhana v. State of West Bengal (1994) 2 SCC 220 and Rahul aliasRaosaheb v. State of Maharashtra (2005) 10 SCC 322. Both cases involved rape and murder of minor girls and

the factual matrix too was very similar. While the former resulted in the death sentence being awarded (and

carried out), the latter saw the sentence being commuted to life imprisonment.16 AIR 1983 SC 473


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upon judicial discretion. While general arbitrariness may be excused, if not condoned, 17

arbitrariness arising from bias cannot be.

2.1 Theologies of Capital Punishment

The state has inflicted death as a punishment, on its subjects since the ancient times. These

were times when the state and the dominant religious establishment (in some cases, the

church) were hand-in-glove. Hence, some conduct was interpreted as offence against the

ruler, as well as an offence against God. The separation of the state and religion, in the

Enlightenment years, has seen theories of punishment incorporate many different

perspectives, as why the state punishes, what it seeks to achieve thereby, and hence what

method and procedure criminal punishment should take account off.

Ever since, the debates on penology have consistently questioned the appropriateness of

retribution and societal vengeance as a drive-force behind punishment. Capital punishment is

the lawful infliction of death as a punishment. The Bible prescribes death for murder and

many other crimes including kidnapping and witchcraft. By 1500 in England, only major

felonies carried the death penalty - treason, murder, larceny, burglary, rape, and arson. By

1700, however, Parliament had enacted many new capital offences and hundreds of personswere being put to death each year.

18

Reform of the death penalty began in Europe by the 1750s and was championed by

academics such as the Italian jurist, Cesare Beccaria, the French philosopher, Voltaire, and

the English law reformers, Jeremy Bentham and Samuel Romilly. They argued that the death

penalty was needlessly cruel, overrated as a deterrent and occasionally imposed in fatal error.

Along with Quaker leaders and other social reformers, they defended life imprisonment as a

more rational alternative.

17 See for example, Stephen Nathanson, Does it Matter if the Death Penalty is Arbitrarily Administered?,

Philosophy and Public Affairs, Vol. 14, No.2 (1985), p.149-16418

See http://www.richard.clark32.btinter-net.co.uk/thoughts.html(visited on 09/09/2010)


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(1)The rise of the abolitionist movement.

In later years, with the progress of the human rights movement worldwide, attention has been

focused on the relative mismatch in power between the state machinery that can lawfully

inflict violence, and the individual offender. The violence of the state machinery- that is

routinely used by law-enforcing agencies like the police is a fact that cannot be denied under

any circumstances.

The fact that racial, gender, communitarian biases that exist within a society get reflected

through state agencies in the procedures of the criminal justice system, is a reality. In light of

these realities, the human rights movements, championed by organizations like the American

Civil Liberties Union, the Amnesty International, and international setups like the European

Union and the UN, have espoused the cause of humane punishment- that at the very outset,

which does not measure punishment against the brutality of the crime, but the aim of

punishment itself. Venezuela (1853) and Portugal (1867) were the first nations to abolish the

death penalty altogether. Today, it is virtually abolished in all of Western Europe and most of

Latin America.

However, the death penalty continues to be commonly applied in other nations. China, the

Democratic Republic of Congo, the United States and Iran are the most prolific executionersin the world. The lethal injection, which is almost universal in America, is also used

extensively now in China, the Philippines, Thailand and Guatemala. Electrocution and the

gas chamber are used only in America and seem to be disappearing slowly. Stoning for

sexual offences, including adultery, may still occur in some Islamic countries. China, with a

quarter of the world's population, carries out the most executions for a wide variety of

offences.19

The following table may facilitate the understanding of global trends on abolition

and retention of capital punishment20:

19Abolitionist for all crimes: 88 Abolitionist for ordinary crimes only: 11 Abolitionist in practice: 30 Total

abolitionist in law or practice: 129 Retentionist: 6820 (visited on 10/09/2010) Table 1


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Table 1.

Abolitionist of

Capital Punishmentfor all Crimes

Abolitionist in

practice Countries

which retain thedeath penalty for

ordinary crimes

such as murder

but can be

considered

abolitionist in

practice in

that they have not

executed anyone

during the past10 years.

Abolitionist for

ordinary Crimesonly

Retentionist till date

Andorra, Angola,

Armenia, Australia,

Austria, Azerbaijan,

Belgium, Bhutan,

Bosnia-Herzegovina,

Bulgaria, Cambodia,

Canada, Cape Verde,

Colombia, Costa

Rica, Cote D'ivoire,Croatia, Cyprus,

Czech Republic,

Denmark, Djibouti,

Dominican Republic,

Ecuador, Estonia,

Finland, France,

Georgia, Germany,Greece,

Guinea-Bissau, Haiti,Honduras, Hungary,

Iceland, Ireland,Italy,

Kiribati, Liberia,

Liechtenstein,

Lithuania,

Luxembourg,

Macedonia

(Former Yugoslav

Republic), Malta,Marshall Islands,

Mauritius, Mexico,Micronesia

Algeria, Bahrain,

Benin, Brunei

Darussalam, Burkina

Faso, Central African

Republic, Congo

(Republic), Gabon,

Gambia, Ghana,

Grenada, Kenya,

Kyrgyzstan,Madagascar, Malawi,

Maldives, Mali,

Mauritania,

Morocco, Myanmar,

Nauru, Niger, Papua

New Guinea,

Russian Federation,Sri Lanka, Suriname,

Swaziland, Togo,Tonga, Tunisia

Albania, Argentina,

Bolivia, Brazil,

Chile, Cook Islands,

El Salvador, Fiji,Israel, Latvia, Peru

Afghanistan, Antigua

And Barbuda,

Bahamas,

Bangladesh,

Barbados,

Belarus, Belize,

otswana, Burundi,

Cameroon, Chad,

China, Comoros,Congo (Democratic

Republic), Cuba,

Dominica, Egypt,

Equatorial Guinea,

Eritrea, Ethiopia,

Guatemala, Guinea,

Guyana, India,Indonesia, Iran, Iraq,

Jamaica,Japan, Jordan,

Kazakstan, Korea(North),

Korea (South),

Kuwait, Laos,

Lebanon, Lesotho,

Libya, Malaysia,

Mongolia, Nigeria,

Oman, Pakistan,

PalestinianAuthority, Qatar,

Rwanda, SaintChristopher & Nevis,


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.

(2) Theories of punishment

With change in the social structure the society has witnessed various punishment theories and

the radical changes that they have undergone from the traditional to the modern level and the

crucial problems relating to them. In the words of Sir John Salmond -The ends of criminal

justice are four in number and with regard to the purposes served by them; punishment can be

divided as under:

(Federated States),

Moldova, Monaco,Montenegro,

Mozambique,

Namibia, Nepal,

Netherlands, NewZealand, Nicaragua,

Niue, Norway, Palau,

Panama, Paraguay,

Philippines,

Poland, Portugal,

Romania, Samoa,San Marino, Sao

Tome And Principe,Senegal, Serbia,

Seychelles, Slovak

Republic, Slovenia,Solomon Islands,

South Africa, Spain,

Sweden, Switzerland,

Timor-Leste, Turkey,

Turkmenistan,

Tuvalu, Ukraine,

United Kingdom,

Uruguay, Vanuatu,

Vatican City State,

Venezuela

Saint Lucia, Saint

Vincent &Grenadines, Saudi

Arabia, Sierra Leone,

Singapore, Somalia,

Sudan, Syria,Taiwan, Tajikistan,

Tanzania, Thailand,

Trinidad And

Tobago, Uganda,

United Arab

Emirates, UnitedStates Of America,

Uzbekistan, VietNam, Yemen,

Zambia, Zimbabwe.


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(3) Deterrent theory

Since the Code of Hammurabi in Babylone21 the ancient history of Punishment before all

things was deterrent, and the chief end of the law of crime is to make the evil-doer an

example and a warning to all that are like-minded with him. One of the primitive methods of

punishments believes that if severe punishments were inflicted on the offender it would deter

him from repeating that crime (J. Bentham, the founder of this theory, states: "General

prevention ought to be the chief end of punishment as its real justifycation. If we could

consider an offence, which has been, committed as an isolated fact, the like of which would

never recur, punishment would be useless). Those who commit a crime, it is assumed, derive

a mental satisfaction or a feeling of enjoyment in the act. To neutralize this inclination of the

mind, punishment inflicts equal quantum of suffering on the offender so that it is no longer

attractive for him to carry out such committal of crimes. The basic idea of deterrence is to

deter both offenders and others from committing a similaroffence.

(4) Retributive theory

The most stringent and harsh of all theories retributive theory believes to end the crime in

itself. This theory underlines the idea of vengeance and revenge rather than that of social

welfare and security. Punishment of the offender provides some kind of solace to the victim

or to the family members of the victim of the crime, who has suffered out of the action of the

offender and prevents reprisals from them to the offender or his family.

(5) Preventive theory

Unlike the former theories, this theory aims to prevent the crime rather then avenging it.

Looking at punishments from a more humane perspective it rests on the fact that the need of a

punishment for a crime arises out of mere social needs that is, while sending the criminals to

the prisons to prevent the offender from doing any other crime and thus protecting the society

from any anti-social elements.

21See http://www.google.com/search?q=ca- che:rM4Y

qsiMWL8J:www.hrusa.org/thisismyhome/resources/Intro_HR_and_HRE.ppt+Philosophical+and+Legal+foundation +of+Human+Rights.+ppt.&hl=en&ct=clnk&cd=8&gl=et (visited on 10/09/2010)


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(6) Reformative theories

The most recent and the most humane theory, of all theories is based on the principle of

reforming the legal offenders through individual treatment. Not looking to criminals as

inhuman this theory puts forward the changing nature of the modern society where it

presently looks into the fact that all other theories have failed to put forward any such stable

theory, which would prevent the occurrence of further crimes. Though it may be true that

there has been a greater onset of crimes today than it was earlier, but it may also be argued

that many of the criminals are also getting reformed and leading a law-abiding life

alltogether. Reformative techniques also possess some elements of deterrent techniques.

2.2Race and Death Penalty

The issue of race in the imposition of death penalty is an important one in the US where

available evidence suggests a wide difference in the way Whites and Blacks are treated by the

law.22 Since the death penalty was reinstated in 1976 after Gregg v. Georgia,23 44% of the

convicts executed have been ethnic minorities. This is in contrast to their 30% share in thepopulation over the same period.24

2.2.1 A Social Dominance Theory Explanation

Social dominance theory is a theory of group relations that states that societies tend to form

group based social hierarchies based on agents like nature of social ideology and aggregated

interpersonal and institutional behaviours.25 Social dominance theory does not categorize

societies as hierarchical or not so. Instead it views social hierarchy as a continuum along

22 Death Penalty Information Centre, Available at 1976, Last accessed on 11th April, 201023 428 US 153 (1976)24

US Census Bureau-Race, Available on http://factfinder.census.gov/servlet/DTTable?_bm=y&-context=dt&-ds_name=ACS_2008_1YR_G00_&-CONTEXT=dt&-mt_name=ACS_2008_1YR_G2000_B02001&-

tree_id=306&-

redoLog=false&-all_geo_types=N&-currentselections=ACS_2006_EST_G2000_B02001&-

geo_id=01000US&-

search_results=01000US&-format=&-_lang=en, Last accessed on April 11, 201025

F Pratto et al., Social Dominance Orientation: A Personality Variable Predicting Social and Political

Attitudes,Journal of Personality and Social Psychology (1995)


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which all societies can be located.26 Therefore there is at least one dominant (or hegemonic)

group that dominates over one or more subordinate groups.27

This theory therefore views

death penalty as much more than a crime control measure. It is also an instrument of social

hierarchy enforcement through institutional discrimination.28

If the primary function of the

death penalty was indeed crime control, then one would have expected that groups that are

the primary victims of violent crime (viz. the Blacks and the Hispanics) would have been its

most ardent supporters.29

However a trend that has been observed consistently over surveys

through the years is that the Whites are significantly stronger supporters of death penalty than

other ethnic groups.30

Political ideology and the degree of social hierarchy are other factors

that affect the use of death penalty.31 Political conservatives in general tend to be more

supportive of the death penalty because it will never be equally applied across the social

spectrum and will always be favourably biased towards the dominant sections of the society.

As such it will further promote the cause of social hierarchy. 32 The very same reasons make

the political liberals oppose the death penalty.33

2.2.2 The Reality Today

The connection between the race of the defendant and the likelihood of his being put to death

was ignored by the US Courts as well as the Academia till the turn of the century. There were

exceptions however. In McCleskey v. Kemp,34 the US Supreme Court was asked to overturn

the verdict of death passed on the appellant, an African American convicted of murdering a

White police officer, on the basis of a study conducted by Prof. David Baldus that showed

that on an average a Black man accused of murdering a White person stood a risk four times

greater of being executed than if it had been the other way round.35 In its widely criticized

26 Ibid27

J. Sidanius and Liu J,The Gulf War and the Rodney King Beating: Implications of the General Conservatism

and Social Dominance Perspectives, Journal of Social Psychology 132 (1992)28

J. Sidanius et al., The Death Penalty, Capital Punishment and the Beating of Rodney King: A SocialDominance Perspective, Journal of Social Psychology 112 (1994)29

Ibid30 Joe Soss et al., Why do White Americans Support the Death Penalty, The Journal of Politics, Vol. 65, No.2,

397 (2003)31

Michael Mitchell and Jim Sidanius, Social Hierarchy and the Death Penalty: A Social DominancePerspective,

Political Psychology, Vol.16, No.3, 593 (1995)32

Ibid.33 Ibid.34

481 US 279 (1987)35

David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the GeorgiaExperience,


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decision,36 the Court held that a mere discriminatory effect is not enough to hold the

Government guilty of violating the Fourteenth Amendment. A discriminatory actneeded to

be proven. The Baldus Study was dismissed as an inevitable part of the criminal justice

system.37

Things had largely changed by the advent of the 21st century as a study by Baumgartner

found.38

Race as a factor in the handing out of capital sentences had entered the domain of

public discussion. All the states of Union that still carry out executions have formed

commissions to investigate allegations of such bias.39

As already pointed out, Blacks and

other ethnic minorities are executed in numbers far beyond their proportion in the

population.40 55% of the inmates on the death row in the United States today belong to ethnic

minorities.41

In interracial murder cases while only 15 Whites have been executed for

murdering a person of the other race, no less than 242 Blacks have been executed for the

same offence.42

Beyond plain statistics, this has been borne out by academic studies as well.43

All this in a country that is around 70% White! Evidence has also been presented for the

phenomenon of jury-bleaching where African- Americans are excluded from jury pools by

District Attorneys in capital cases.44

The American public has come around to accept this interplay between race and the death

penalty as a fact of life. All kinds of racial stereotypes are used by many White Americans to

justify these disproportionate statistics.45 A perception of discrimination has also taken root

among the African-American population who see the death penalty as a highly racial form of

Journal of Criminal Law and Criminology, Vol.74, No.3, 750 (1983)36

Anthony G. Amsterdam, Race and the Death Penalty Before and After McCleskey, Columbia Human RightsLaw Review, Vol.39, 34 (2007)37

Supra, n.3038 Frank R. Baumgartner et al., An Evolutionary Factor Analysis Approach to the Study of Issue-Definition,Meeting of the Midwest Political Science Association (2004)39

Ibid40

Supra, n.18.41 Ibid.42

Ibid.43

Thomas Keil and Gennaro F Vito, Race and the Death Penalty in Kentucky Murder Trials: 1976-91,American

Journal of Criminal Justice, Vol.20, No.1, 17 (1995)44

Mark Peffley and Jon Hurwitz, Persuasion and Resistance: Race and the Death Penalty in America,American

Journal of Political Science, Vol.51, No.4, 998 (2007)45

Franklin Gilliam and Shanto Iyengar, Prime Suspects: The Influence of Local Television News on the ViewingPublic, American Journal of Political Science, Vol.44, No.3, 560 (2000)


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punishment.46 This finds support in the studies that have shown that while Blacks and Whites

favour equally punitive punishment for criminals, Blacks are far less likely to support the

death penalty out of fear of victimization.47 Put simply, the death penalty is a form of state-

tolerated, if not sponsored, violence perpetrated on the ethnic minorities, one of the faces of

oppression identified by Iris Young.48

2.3 An Unequal Field: The Poor and the Death Penalty49

Unlike racial discrimination in the imposition of death penalty where an obvious bias sends

ethnic minorities to their deaths, the relationship between poverty and death penalty is a lot

more complex. Class describes an individuals position with respect to the central economic

and cultural institutions of society and, in turn, relates that position to the social resources

available to the individual.50

Keeping this in mind it is perhaps a safe guess to hazard that in

countries that impose the death penalty today, the difference between those who escape the

gallows and those who dont is one of wealth.51

The right to legal representation forms the bedrock of our justice system. However it also

must be recognized at the same time that merely having a lawyer will not do in capital

punishment cases where winning or losing a case is a life or death question. Therefore as

Bright argues, the right to a competentlawyer is essential in such cases.52 The importance of

a competent lawyer is even greater in the adversarial system especially in the US where the

jury system is followed. The poor, who are generally forced to rely on a Court appointed

public defendant, probably have their fate sealed at that stage. The standard of the Public

46 Robert Young, Race, Conceptions of Crime and Justice, and Support for the Death Penalty, SocialPsychologyQuarterly, Vol.54, No.1, 67 (1991)47

Steven Cohn et al., Punitive Attitudes towards Criminals: Racial Consensus or Racial Conflict?, SocialProblems, Vol.38, No.2, 287 (1991)48 IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 61 (1990)49

This segment and the one following it draw heavily on Amnesty International and PUCL, Lethal Lottery-TheDeath Penalty in India, May 2008, especially for their India related sections50

Carroll Serron and Frank Munger, Law and Inequality: Race, Genderand, of Course, Class, Annual ReviewofSociology, Vol.22, 188 (1996)51

Jefferey L. Johnson and Colleen F. Johnson, Poverty and the Death Penalty, Journal of Economic Issues,

Vol.35, No.2, 519 (2001)52

Stephen B. Bright, Race, Poverty, the Death Penalty, and the Responsibility of the Legal Profession, 1 SeattleJournal of Social Justice, 73 (2003)


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defendants is abysmally low, even in the US. For instance, in the case ofSmith v. Kemp,53

the

lawyers for the defence, unaware of a recent Supreme Court decision54

that mandated an

adequate representation of women in the jury for the trial to be not violative of the Sixth

Amendment,55

failed to demand the same. His financially better off co-accuseds lawyers

however did. As it turned out, the latter got a retrial where he was sentenced to life

imprisonment while Smith was sentenced to death. He was executed on December 15, 1983.

A relative deprivation in terms of income leading to a lower standard of legal aid available

becomes an absolute one as the death penalty has no midway. 56

The very scale of such miscarriages of justice is staggering. More than a hundred people on

the death row in Japan are indigents who could not afford their own lawyers and depended on

state supplied legal aid.57

Similarly in Malaysia, more than 270 out of the 300 on death row

fall below the poverty line.58 In Arab Countries, where the victims family may let the

murderer off the hook on his paying the diyat (blood money), the poor are at an obvious

disadvantage owing to their inability to pay.

India has both signed and ratified the International Covenant on Civil and Political Rights.

Article 14(3)(d) of the Covenant states that at the minimum, every accused shall have the

right to legal aid, without payment, if necessary. This is codified in Indian law under Section

304 of the Criminal Procedure Code, 1973. While evidence from the trial court stage is

scarce, there have been many cases where the Supreme Court has lamented either the quality

of, or absolute lack of, legal aid being rendered to the accused.

In Janardan Reddy and ors v The State,59

the Supreme Court while conceding the fact that

the Trial Court should have arranged for some sort of legal aid for the indigent accused,

nevertheless held that the lack of such legal aid would not vitiate the trial.

53715 F.2d 1459 (11th Cir. 1983)

54Taylor v. Louisiana, 419 US 522 (1975)55

The Sixth Amendment to the US Constitution provides for the accuseds rights during criminal prosecution56

AMARTYA SEN, DEVELOPMENT AS FREEDOM 89 (1999): Sen argues that being poor in a rich countryis a great capability handicap. More income is needed to buy enough commodities (in this case legal aid) to

achieve the same social functioning. Thus while the rich get away owing to their better lawyers, the poor haveno such luck.57 IPS Death Abolition Project, Poverty and Capital Punishment Go Hand in Hand, October 17th, 2007.

Available at http://ipsnews.net/news.asp?idnews=39683, Last accessed on 12th April, 201058

Ibid.59 AIR 1951 SC 124


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In Bashira v. State of Uttar Pradesh,60

where a person sentenced to death had had his lawyer

appointed on the morning the witnesses were examined, the Supreme Court ordered a retrial

giving a strict interpretation to procedure established by law. However, barely three years

later, in an almost identical case,61 the Court took the opposite view holding that the

witnesses to be examined were not important.

The litany of cases where poor legal aid led to the accuseds damnation is a long one indeed.

It is perhaps not surprising given the remuneration of Rs.60 that is paid to senior lawyers who

take up legal aid cases. In Durga Domar v. State of Madhya Pradesh,62 the Court stated that

as the accused had a legal aid lawyer, it is possible that they would have never

communicated! In Sheikh Ishaque and Ors v. State of Bihar,63

the Court castigated the High

Court for upholding a death sentence even when the legal aid lawyer had not made any pleas

regarding the sentence.

2.3.1 Poverty as a factor in sentencing: Mulla v. State of UP64

The accused in this case were charged with the murder of four people, including a woman.

The facts of the case were never in doubt and they were consequently sentenced to death by

the Trial Court. The High Court upheld the verdict leading them to approach the Supreme

Court. Here too their guilt was found to be proven beyond doubt. However the Court took a

novel stance as far as the sentence was concerned. Referring to their circumstances

generally, the Court took into account the 48th Law Commission Report that had suggested

that many a times crime is the result of socio-economic factors. While not a justification for

crime, such reasons may be counted among the mitigating circumstances in the Courts

opinion. The Court also ventured its opinion that socio-economic emancipation may lead to

the criminals reform. To quote from the judgment, ...they have committed these heinous

crimes for want of money. Though we are shocked by their deeds, we find no reason why

they cannot be reformed over a period of time.65

60AIR 1968 SC 1313

61Husaina v. State of Uttar Pradesh, AIR 1971 SC 260.62

(2002) 10 SCC 193.63

(1995) 3 SCC 392.64

Criminal Appeal No. 396 of 2008.65 Ibid, Para 55.


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The distinguishing facet of this case, thus, is its addition of socio-economic factors to the list

ofmitigating circumstances. The socio bit has been overlooked in the decision as the judges

confined themselves to discussing economic backwardness as a reason for crime. A laudable

observation of the Court was its linking economic poverty with ability to reform. It may not

be misplaced to note the Court says, that a criminal who commits crimes due to his

economic backwardness is most likely to reform. The implications of this one statement are

indeed far reaching. The motivations for an economic crime for a poor man are usually

procuring basic necessities of life for him and his family. As rightly remarked by the Court,

this fact itself cannot be taken to be an excuse for crime; however it must not be lost sight of

either. Where it becomes relevant is in the matter of sentencing where attempts at reform are

usually very successful with the miserably poor, most of whom are first time criminals,

drawn to crime by necessity. Hanging a person for a hunger induced crime will be as much a

miscarriage of justice as freeing him on the same count. The Courts via media of

incarcerating him for a sufficiently long period to serve the ends of justice while at the same

time attempting to reform him is praiseworthy.66

2.4. The Trial of Saddam Hussain

Brief Facts of the Trial:

Iraqi authorities put Saddam Hussein and seven other former Iraqi officials on trial on

October 19, 2005 four days after the October 15, 2005 referendum on the new constitution.

The first trial of Saddam Hussein began before the Iraqi Special Tribunal on October 19,

2005. In this case Hussein, along with seven other defendants, was tried for allegations of

crimes against humanity with regard to events that took place after a failed assassination

attempt in Dujail in 1982, Hussein and the others were specifically charged with the killing of

143 Shiites.67

On November 5, 2006, Saddam Hussein was sentenced to death by hanging.

An appeal, mandated by the Iraqi judicial system, followed. However, on December 26,

Saddam's appeal was rejected and the death sentence was given. No further appeals were

possible and sentence was to be executed within 30 days of that date. On 30th December,

66Abdaal M. Akhtar and Mrinal Meena, To Hang or Not to: A Case Comment on Mulla v. State of UP , AIR

Web Journal, April 201067

(Christian Eckart, Saddam Husseins Trial in Iraq: Fairness, Legitimacy and Alternatives,

A Legal Analysis, Cornell Law Rev 2006).


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2006 (Id ul-zuha the Muslim day of forgiveness) Saddam Hussein, embraced the gallows

with face uncovered and Quran in hand at 06:05.68

2.4.1 The Importance of Saddams Trial

With the questioning of Saddam Hussein in front of the Iraqi High Criminal Court, a trial

began that has been labelled by some as the trial of the century.69 Whether this is true or

not, the proceedings in Baghdad received high publicity and were under close scrutiny by

major human rights organizations, legal experts, and indeed the general public. Why does the

trial attract so much attention one may wonder and why do so many people care about

ensuring fair proceedings for an ex-dictator on trial for major human rights violations, a

dictator that himself made extensive use of a special Revolutionary Court guaranteeing fast

executions but by no means due process of law.

The answer to this is two-fold; firstly, there is the hope that this trial might serve as a model

for Iraq and might help to re-establish trust in the judicial system and its protection against

the deprivation of rights which has been strongly eroded by the past 23 years of Saddams

reign and to thereby allow the country a new start based on firm legal principles.70

Secondly, by holding Saddam accountable, the current criminal proceedings add another

name to the list of recent precedents in which heads of state had to face charges for violating

international law. The trial might thereby serve as another mosaic stone in establishing the

rule of law and deter others from stepping over the lines drawn by international agreements

and custom in the area of international criminal law71

.

2.4.2 Capital Punishment as an Option

68Issam Saliba, Comments On The Indictment Of Saddam Hussein

(visited on 9/9/2010)]

69See Michael Scharf, Grotian Moment: Is the Saddam Hussein Trial one of the most important trials of all

time? Issue # 10 http://www.law.case.edu/saddamtrial/; The Trial of the Century, CBS News, April 22, 2006,

(visited on09/09/2010)].

70 Goldstone, The Trial of Saddam Hussein: What Kind of Court Should Prosecute Saddam Hussein And

Others For Human Rights Abuses? 27 Fordham Intl L.J. 1490, 2003-2004 at 1503-150471 See the proceedings against General Pinochet in Spain and Chile, against Slobodan Milosevic in front of the

ICTY, the Ex Rwandan Prime Minister Kambanda in front of the ICTR and now against former Liberian Head

of State Charles Taylor infront of the Special Court for Sierra Leone
http://www.loc.gov/law/public/saddam/saddam_prin.htmlhttp://www.cbsnews.com/stories/2003/12/15/news/opiniohttp://www.cbsnews.com/stories/2003/12/15/news/opiniohttp://www.loc.gov/law/public/saddam/saddam_prin.html


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In its closing argument on June 19, 2006, the prosecution in the Al-Dujail trial demanded the

death penalty for Saddam Hussein and three of his co-defendants. This demand and the final

verdict of the Tribunal raise the issue- whether the death penalty was even available under

Iraqi law for the offence of crimes against humanity. Over the last decade, the international

legal community has witnessed the establishment of a variety of international and national

tribunals that have had to come to terms with capital punishment. The latest tribunal formed,

and perhaps the most prominent, is the Iraqi tribunal where Saddam Hussein has been

accused of crimes against humanity, in order to determine whether the Iraqi Special Tribunal

(IST) could actually award the death penalty, the following issues have to be examined:

(1) Offence under international law no penalty under domestic Law.

Saddam Hussein and his co-defendants are charged in the present trial with the international

offense of crimes against humanity. It is not clear whether the charges are based on

international or domestic criminal law. While international criminal law has recognized this

offense for about sixty years, Iraq is yet to incorporate this offense in its domestic law. The

IST was established by the Iraqi law; therefore, matters of jurisdiction and procedure of the

Tribunal should be decided by the Iraqi Penal Code. However, The Iraqi Penal Code does not

include a penalty for the international offense of crimes against humanity as the offense has

not been made a part of the domestic law.

(2) Penalty according to underlying Crimes.

The side arguing for the award of the death penalty stated that the penalties to be applied to

those convicted of committing the international offense of crimes against humanity must be

equivalent to those penalties assigned to underlying crimes which constitute the physical

elements of the international offense, such as murder and rape. Penalties for such crimes

include capital punishment. The logic of this argument is strengthened by virtue of the fact

that it would be hard for the public to accept a decision where a lesser offense, such as

murder, gives rise to capital punishment while a more serious crime, such as the offense of

crimes against humanity, gives rise to only a prison sentence.72

72

Issam Michael Saliba, Is The Death Penalty An Option In The Trial Of Saddam Hussein? http://www.loc.gov/law/public/saddam/saddam_capi.html (visited on 09/09/2010)
http://www.loc.gov/law/public/saddam/saddam_capi.htmlhttp://www.loc.gov/law/public/saddam/saddam_capi.html


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The opposing argument on this count is that any interpretation suggesting that the penalties

for the international offense of crimes against humanity are those assigned to its underlying

crimes is misconceived on the basis that an international offense is separate and distinct from

its underlying crimes. This argument is supported by the sentencing judgment in The

Prosecutor v. Drazen Erdemovic73

in which the International Tribunal for the former

Yugoslavia rejected the proposition that the penalties for the international offense

of crimes against humanity must derive from the penalties applicable to its underlying crime

(The ICTY held that, It might be argued that the determination of penalties for a crime

against humanity must derive from the penalties applicable to the underlying crime. In the

present indictment, the underlying crime is murder . The Trial Chamber rejects such an

analysis. Identifying the penalty applicable for a crime against humanity in the case in point

the only crime falling within the international Tribunal's jurisdiction - cannot be based on

penalties provided for the punishment of a distinct crime not involving the need to establish

an assault on humanity)

(3) Following International Precedents:

Further the Iraqi Penal Code has a provision which directs the judges to follow the precedents

and penalties imposed by other international criminal tribunals if the penal code has no

relevant provisions. By reviewing the statutes, precedents and penalties of international

criminal tribunals, one would recognize clearly that the death penalty is not permitted in any

of these international forums. As an example, Article 77 of the International Criminal Court

specifically excludes the death penalty as a punishment for crimes against humanity or any

other international offenses. The Court is allowed to only impose imprisonment for a

specified term not to exceed thirty years or a term for life "when justified by the extreme

gravity of the crime and the individual circumstances

of the convicted person."74

Article 24 of the Statute of the International Criminal Tribunal for the Former Yugoslavia

(ICTY) provides that "the penalty imposed by the Trial Chamber shall be limited to

73Case No. IT-96-22-T, T.Ch. I, Nov. 29, 1996,

(visited on 09/09/2010)74

Rome Statute of International Court, July 1, 2002, Art. 77, (visited on 10/09/2010).
http://www.un.org/icty/erdemovic/trialc/judgement/erdtsj961129e.htm.http://www.un.org/icty/erdemovic/trialc/judgement/erdtsj961129e.htm.


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imprisonment."75 The Tribunal is not authorized, therefore, to impose the death penalty,

regardless of the circumstances and the gravity of the crime. Article 23 of the Statute of the

International Criminal Tribunal for Rwanda,76 contains a similar provision, which prevents

the trial judges from imposing the death penalty. Article 19 of the Statute of the Special Court

for Sierra Leone provides that "the Trial Chamber shall impose upon a convicted person,

other than a juvenile offender, imprisonment for a specified number of years".77

Since there

have been no death penalty judgments issued by any international criminal courts subsequent

to those issued by the Military Tribunal of Nuremberg in 1946, it may be argued that the

special court trying Saddam Hussein could not legally impose the death penalty where there

is conviction for crimes against humanity.78

2.5 Barely concealed murder: The Death Penalty and the Mentally Retarded

The Death sentence shall not...be carried out on persons who have become insane.

- Safeguard 3, Safeguards Guaranteeing Protection of the Rights of Those Facing the Death

Penalty, United Nations

The lack of authoritative information on mental retardation means that every year,

retentionist countries around the world execute people who had no idea they were committing

a crime when they did what they did. The American Association on Mental Retardation

defines it as an IQ below 70, limitations in adaptive behaviour (for example interpersonal

communication skills) and evidence that all these became apparent before the age of

eighteen.79

Stigmatized and shunned by the society, the mentally retarded frequently suffer

75Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of

International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc.

S/25704 at 36, Art 24,< http://www1.umn.edu/humanrts/icty/statute.html,> (visitedon 10/09/2010).76

Statute of the International Criminal Tribunal for the Prose-cution of Persons Responsible for Genocide andOther Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda andRwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of

Neighboring States, Aug. 14, 2002, Art. 23,= (visited on10/09/2010)77

Statute of the Special Court for Sierra Leone, Jan. 16, 2002, Art.19, ed on 10/09/2010)78

Issam Michael Saliba, Is The Death Penalty An Option In The Trial Of Saddam Hussein?

(visited on 10/09/2010)

79 Diagnostic and Statistical Manual of Mental Disorders-Mental Retardation, Available at
http://www.loc.gov/law/public/saddam/sad-dam_capi.htmlhttp://www.loc.gov/law/public/saddam/sad-dam_capi.html


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from a sense of devaluation. Coupled with the poverty they generally live in, it is the easiest

thing for an ignorant society to condemn them to death.80

The situation in the United States is complex. While the Supreme Court has held in Ford v.

Wainwright,81 that executing the insane is ultra vires the Constitution, it has left the definition

ofinsane to the States. This leads to the cases discussed here.

In the case of Horace Dunkin, the fact that he was in special education, had an IQ of 56 and

was impaired in his intellectual functions was never disclosed to the jury by the inefficient

Court appointed lawyers who never bothered going into his school records. The members of

the jury later wrote a letter to the Governor stating that they would have never held him guilty

if they had been properly informed.82

In the case of James Colburn,83

the prosecution never

disputed the fact that the defendant suffered from paranoid schizophrenia and hallucinations

and had a history of committal to psychiatric clinics. Yet the Court never considered it as

reason enough to not execute him. So unfit was he that he was heavily sedated by anti

psychotic drugs during his trial and spoke nary a word.

The record in India is relatively brighter, at least in the reported cases. Section 84 of the

Indian Penal Code provides insanity as a general defence. The term is vague however and

leaves much to the discretion of the judges who apply it in the way they please.

In Amrit Bhushan Gupta v.Union of India and Ors,84

the Supreme Court rejected a petition

seeking a stay on the execution of a person with schizophrenia by observing tha t (we)

assume that at the time of trial, he had been...given proper legal aid...and did not suffer from

insanity. This was after the High Court as well as an expert committee had unequivocally

voiced their concerns over his mental health.

Last accessed on 13th April, 201080

Ruth Luckasson, The Death Penalty and the Mentally Retarded, 22 Am. J. Crim. L. 276 (1994)81

477 US 399 (1986)82

2 Electric Jolts in Alabama Execution, The New York Times, 15th July 1989. Available at

Lastaccessed on 14th April, 201083The Death Penalty as applied in Texas: A Case Study of James Colburn, Available at

Last

accessed on 14th April, 201084 (1977) 1 SCC 180


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A miscarriage of justice is however not the only fear of the accused. In many cases where the

High Court or the Supreme Court discharge the defendant under Section 84, they send him to

mental hospital for treatment where he languishes for years, or even decades, befo re the

doctor or the Court adjudges him fit to be released. A life term without parole, for ironically

enough, committing no offence under the law.

III Constitutional Validity of Capital Punishment

In India, criminal trial is based on accusatorial system, and accordingly, the accused is

presumed to be innocent unless his guilt is proved beyond reasonable doubt.85The burden of

proving guilt lies on the prosecution and not on the accused. To quote Supreme Court

judgment on the Presumption of Innocence:

It is true that wrongful acquittal are undesirable and shake the confidence of the

people in the Judicial system, much worse however is the wrongful conviction of an

innocent person, the consequences cannot but be felt in a civilized society.86

Starting from the investigation, during the trial and even after conviction of an accused, there

are elaborate safeguards, which ensures the fulfilment of above principle.87

Moreover, in

85See K.M. Nanavati Vs State of Maharashtra, AIR 1962 SC 605; Kali Ram Vs. State of Himachal Pradesh,

1973) 2 SC 808. See Article 14 (2) of International Convenient on civil and Political Rights, 1979.86

See Dharam Das Vs. State of Uttar Pradesh, (1974) 4SC 267.87

See Following safeguards are provided under the Indian Evidence Act, 1872 - Under section 54 previous badcharacter on an accused is not relevant in criminal trail except in reply; Under Section 24 confession caused by

inducement, threat or promise is irrelevant; Under Section 25 confession to police officer is irrelevant; UnderSection 26 confession caused while in police custody is irrelevant; Under Section 59 and 60 hearsay evidence isno evidence; Under Section 104 and 105 burden of proof always lies on the prosecution; Under Proviso to

section 162 the statement given to police officer under section 161 of the code of criminal procedure, 1973 canonly be used to contradict the witness and cannot be used for corroboration; Under Section 137, 145 and 146 theprovision for cross-examining the witness produced by the opposite party; under section 165 judge is given

ample power to ensure that fair trail take place and he can ask any question at any time.Following Safeguards are provided under the constitution of India, 1950- Immunity from double prosecutionunder Article 20; Right to life Under Article 21, Right Against Preventive Detention under Article 22, Rights toSeek Pardon in case of death sentence under Article 72; Right to commute etc., death sentence under Article161; Right to prefer appeal to Supreme Court if acquittal is reversed into death sentence by the High Courtunder Article 134 (a).

Following Safeguards are provided under the Indian Penal Code, 1860: General exceptions are provided underChapter-IV from Section 76 to 106; only the gravest form of culpable homicide is defined as murder underSection 299 and 300; Five exceptions are provided under proviso to Section 300, viz, grave and sudden

provocation, exceeding private defence, murder with consent, murder in a sudden fight in a heat of passion,murder by public servant exceeding the power given to him by law. Following safeguards are provided underthe code of criminal procedure, 1973 examination of an accused to enable him personally to explain the

circumstances appearing in the evidence against him under section 313; a sentence of death shall not be

executed unless it is confirmed by the high court under section 366; If such confirmation proceedings aresubmitted the high court may examine itself or direct further inquiry or the taking of additional evidence Under


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criminal trial the degree of probability of guilt is very higher than civil law. If there is any

slightest doubt on the guilt of an accused, the benefit of it has to be given to the accused,

which might result in his acquittal. As observed by the Supreme Court, if the case is wholly

based on circumstantial evidence, then all the circumstances brought out by the prosecution

must evitable and exclusive, and should point to the guilt of the accused and there should be

no circumstances which may reasonably be considered consistent with.88

Moreover, in India the capital punishment is constitutionally89 as well as legally valid90

because it is applied in accordance with the procedure established by law.91

Accordingly, the

State can take action against a person by convicting him/her, but there is a procedure for

conviction of a person and that procedure has to be established by law itself.92 The discretion

to inflict this extreme punishment depends upon the facts and circumstances surrounding the

commission of each particular offence. The facts and circumstances of one case need not

necessarily be similar or same as another case. So, it is not possible to lay down an

exhaustive list of the cases in which death sentence can be awarded. However, this discretion

has to be applied rationally and judicially i.e., only when the circumstances call for a

deterrent punishment and not otherwise.93

To quote Supreme Court, it was observed that:

A Balance Sheet of aggravating and mitigating circumstances have to be accorded full

weightage and a just balance has to be struck between the aggravating and mitigating

circumstances before the option to award the death sentence is exercised.94

The Apex Court articulated more limitations on the frequent use of death sentence by laying

down the doctrine of "rarest of rare" cases. Accordingly, this extreme punishment can be

section 367; High court may confirm, annual the conviction or acquit the accused or pass any other sentenceunder section 368; An accused can file appeal against his conviction under section 374 and 379.88

Dr. Avtar Singh "Principles of the Law of Evidence",(13th

ed) 2002, p.21; Batuk Lal, The Law of Evidence

(15th

ed.)2001 p.12 .89

Jagmohan Singh Vs. State of Uttar Pradesh, AIR 1973 SC 947; Gregg Vs. Gerogia, 428 US 195 (1976).90

Shanker Vs State of Tamil Naidu, 1994, Cr LJ.92591

According to Article 21 of the Constitution (Protection of Life and Personal Liberty) reads, as "No personshall be deprived of his right and personal liberty except according to procedure established by law."92

In Menaka Gandhi Vs. Union of India, (197) 2 SCR 621. The Supreme Court held that the phrase "Procedureestablished by law" meant that every law limiting personal liberty had to be "fair, just and reasonable" in both itsprocedural and substantive provisions".93

Eidga Anmma Vs State of Andhra Pradesh , AIR 1974 SC 797; Amba Ram Vs State of Madhya Pradesh, AIR1976 SC 2196; Balwant Singh Vs State of Punjab, AIR 1976 SC 230.94 In Macchi Singh Vs State of Punjab, (1983) 3 SCC 470, The Supreme Court held that before awarding death

sentence, the court should look into the manner of the commission of crime, motive, Anti social or socially

abhorrent nature of the crime, magnitude of the crime. Further, the death sentence could be impose only if it iscompelled by the state security, public order and interest of the general public.


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awarded rarely, only when the culpability assumes the proportion of extreme depravity. This

landmark decision has made life imprisonment as a rule and death sentence is an

exception.95 Moreover, death sentence is not the only punishment96 for murder, but an

alternative one, so it is not unreasonable under Article 14 of the Constitution of India.97

In

fact, international instrument is abolished death penalty under the optional protocol II of the

ICCPR, as well the Courts in India are not awarding death sentence in all circumstances but

the principle rarest of rare cases is strictly followed and by this way complying the

international law.98 In this context, it is worth to mention that the 35 th report of the Law

Commission of India, which is the basis of retention of capital punishment on the statute

book. It reads as: Having regard to the condition in India, to the variety of social upbringing

of its inhabitants, to the disparity in the level of morality and education, emergence of

terrorism on a large scale in the country and the paramount need for maintaining of law and

order in the country, India cannot risk the abolition of capital punishment.99

95Bacchan Singh Vs State of Punjab, AIR 1980 SC Para 199; Jumman Khan Vs. State of Tamil Naidu, AIR1989 SC 396; Kishor Vs. State of Delhi, 2000 Cr.L.J 756 (SC) Para 13, 14; Om Prakash Vs. State of Haryana,(1999) 3 SCC 19.96

Under section 367(5) of the old code of criminal procedure, 1898, a person convicted for murder was to besentenced to death as a normal rule and if a lesser punishment was intended to be imposed, special reason were

to be recorded in writing. Accordingly, death sentence was the rule and life sentence was an exception. This

section was amended. According to new section 354 (3) of the Criminal Procedure Code, 1973, if the judge

awards death sentence he has to give special reasons, which means special facts and circumstances justifying

the imposition of this extreme penalty. Now death sentence is an exception and life imprisonment as a rule.97

According to Article 14 of the Constitution of India, 1950, "the state shall not deny to any person equality

before the law or the equal protection of law within the territory of India."98

In Bacchan Singh Vs State of Punjab, AIR 1980 SC 898, the apex court held that International law does not

prohibit or abolish death penalty totally but made on option available to the member states to go for abolition

in their countries. Further, Article 21 of the constitution of India and Article 6, clause (1) and (2) of the

international convenient on civil and political rights, 1979 are same. In fact, judiciary in India, is fulfilling its

international obligations as this extreme penalty is not applied in every case, but rarely i.e. it is not arbitrarily

conventions, 1949, provides death penalty but with restrictions; second optional protocol to the international

convention on civil and political rights (adopted by general assembly in 1989) Article 1 provides total abolition

but Article 2 allows state party to retain it if they make reservation to that effect at the time of rectifying or

acceding it, Protocol 6 to the European convention for the protection of Human rights and fundamental

freedom (adopted by council of Europe in 1982) Article provides for abolition of death penalty in peace time

but Article provides that the state party may retain it for crime in a war or threat of war; protocol to the

American Convention of Human rights (adopted by General assembly of the organisation of American States in

1990) Provides abolition of death penalty but allows state party to retain it if they make reservation to that

effect at the time of rectifying or acceding it; Post-World War-II, the statute of Nuremberg and Tokyo Tribunals

provided mandatory death penalty; Article 5 of European convention of Human Rights (1949) provides death

penalty in a time of war. Article 4 of American Convention on Human Rights(1978);Article 6(2)of International

Covenant of Civil and Political Rights(1978).

9935

thReport of the Law Commission of India (1967); Shashi Nayar Vs. Union of India, AIR 1992 SC 395.


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IV Critical analysis of Indian Law in the verge of International Instrument

The careful analysis of the Indian law is revealing, how India is flouting its international

obligations, that capital punishment is awarded not only in the rarest of rare cases but also on

a wide variety of the cases.100

Infact, the doctrine ofrarest of rare case is superfluous as it is

vague and incomplete. The Apex Court held that death penalty is awarded in the rarest of

rare cases only but it is not further defined. The judiciary has evolved its own jurisprudence

in evaluating which cases are to be considered as "rare" and which are not on an

inconvincible reasoning. A close analysis of various decisions in which capital punishment

was upheld on the basis of above doctrine would reveal that no uniform guidelines exist for

its application. Its application is largely dependent on the subjective satisfaction of an

individual judge. The quantum of punishment varies according to the nature of a judge. In

other words, subjective satisfaction of a Judge plays an active role in awarding "death" or

"life".

A significant number of legislative acts provides death sentence as an option. Moreover, the

above-mentioned doctrine only covers those offences, which are punishable under Indian

penal code. Therefore, it is inapplicable on those offences, which are covered under the other

acts. In India, special courts also award death penalty summarily. In such cases even the basic

provisions of criminal law has been diluted, for example, presumption of innocence,

100Under the Indian Penal Code, 1860, the following offences are punishable with death; under section 149 for

abetting any death eligible offence; under section 121 waging war against the government of India; underSection 132 abetting mutiny actually committed; Under Section 194 Giving or fabrication false evidence uponwhich an innocent person suffers death; under section 302 for murder, Under section 303 for murder by a lifeconvict (now abolished); under Section 305 for Abetment of suicide of a minor or insane or intoxicated person,under section 307 for attempt to murder by a person under sentence of imprisonment of life, if hurt is caused.Section 34 ofthe Army Act, 1950, shamefully abandoning a post; under section 37 for muting, under section 38

for desertion; under section 66 for abetment of offences punishable with death which have been committed. TheAir force Act, 1950, under Section 35 for shamefully abandoning a post; 37 for mutiny; 38 for derision; 68 forabetment of offences punishable with death. Under the Navy Act, 1956, under Section 35 for failing to prepare

for action against the enemy, Section 36 for discouraging action; Section 37 for desertion a post or sleeping onwatch; section 38 for spying for enemy; section 39 for assisting enemy; section 43 for mutiny; section 44,seducing Naval personnel from allegiance; section 49 for desertion to the enemy; section 56 for failing to

defends ships etc; section 59 for arson; section 76 abetment of offences punishable with death; similarly death

sentence is also provided under the arms act 1959; under schedule castes and schedule tribes (Prevention ofAtrocities Act); under prevention of terrorism Act, 2002 (now abolished).


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confession, burden of proof etc.101 In fact, the government of India is trying to widening its

scope to less serious offences102

which does not even come within the frame work of rarest

cases and is against international humanitarian law as well. 103 In many acts capital

punishment is mandatory.104

The mandatory nature of the capital punishment offence is the

cannon of criminal jurisprudence as well as the principle of natural justice, Audi Alteram

Partem. It totally excludes judicial discretion, as the court has no other option to impose any

other sentence. Once it is proved that the accused has committed the crime, the court is bound

to award death sentence only and nothing more or nothing less than that. Moreover, in many

cases, the court has applied this extreme punishment for punishing political murders.105

Conviction of an accused can be solely based on an uncorroborated testimony of an

accomplice who himself is a participant in crime.106 The court can award death sentence

purely on circumstantial evidence107

or even on plead guilty of an accused.108

Though legislation on a specific field is a matter of law and not of prudence, but it has proved

otherwise. It is one of the essential functions of the legislature that decide the category of

cases in which the capital punishment could be imposed. But instead of deciding this crucial

issue the legislature has left this task on the sweet will of the judiciary. Therefore, the court

101International community on various occasions urged to follow strictly "procedural safeguards" for these

serving death sentences. See, Article 8 of the American Convection of Human Rights; Article 7 of AfricanCharter on Human and People's Rights; Article 14 of I.C.C.P.R. 1979; The United Nation Economic and SocialCouncil (ECOSOC) adopted safeguards guarantying protection of the rights of those facing the death penalty, 1984; General Assembly Resolution 2393 (XXII) of 26 Nov. 1968; Resolution 1989/64, adopted on 24th May1989 and Resolution 1996/ 15 adopted on 23 July, 1996 by the UNECOSOC.102 See http//web.amnesty.org/report/2006/ind-summary.eng, accessed on 10/09/2010.103

Various international and regional instruments say that "Death sentence shall be applied only for moreserious crime and it shall not be extended to those crimes to which it does not presently apply." See, Article 4(2)of American convention on Human Rights; Article 2 of Second Optional Protocol to the ICCPR, 1989; Article 2

of protocol to the American Convention on Human Rights; Article 2 of protocol to the convention oF theprotection of human rights and fundamental freedom; under Article 10 of Arab Charter on Human rights, 1994.104 Under the Arms Act 1959, who ever uses any prohibited arms which resulted in death of any person; Under

theSchedule Casts and Schedule Tribes (Prevention of Atrocities Act)

1989,whoever fabricates false evidencewhich resulted in conviction of an innocent member of a schedule caste etc.; Section 31A of the Narcotic Drugsand Psychotropic Substance Act 1985 (now abolished), If a person who has been convicted in an offencerelating to narcotic drugs and he subsequently do or attempt to the offence again. Under the commission ofSati(prevention) Act, 1987,if any person either directly or indirectly abets the commission of sati shall be punishedwith death. Similarly death sentence is also mandatory in the Prevention of Terrorism Act (2002)(now

abolished) for causing death by using bombs etc105

Kehar Singh Vs Delhi Administration, AIR 1988 SC 1183, State Vs. Nalini, 1995 (5) SC 60; It is said thatDeath penalty shall not to be applied for political offences or economic crimes. See Article 4(4) of American

Convention on Human Rights; Article 11of Arab charter on Human Rights, 1994;un special rapporteur on extrajudicial summary or arbitrary execution, UN document no.e/cn.4/1997/60,24 December 1996.106 See, Section 114 of Indian Evidence Act, 1872.107

Dhananjay Chatterjee Vs State of West Bengal (1994) 2 SCC 220; Kehar Singh Vs Delhi Administration,

AIR 1988 SC 1183, State Vs. Nalini, 1995 (5) SC 60.108 See, section 229, 241 and 252 of the Code of Criminal Procedure, 1973.


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has a very wide discretion in the matter of fixing the quantum of punishment. Moreover, the

legislature has not provided any guidelines within which this extreme discretion could be

applied. As it was rightly observed by J. Bhagwati, that though the trial system in India is

based on the principle of legal equality before the court, yet it has proved otherwise

particularly under the existing conditions in India. A significant number of accused are

illiterate and poor. They do not afford to engage effluent lawyers for their defence. Moreover,

they do not have the knowledge of law and professional skills to defend themselves before

the court, while an experienced prosecutor conducts the prosecution. Though, the accused has

right to free legal aid at the state expenses,109

yet this right is of no value if competent lawyers

are not selected to defend him.110

Justice P.N. Bhagwati also said that in fact, the trial system in India violates the concept of

equality. According to the concept of equality, every body equal before law and has equal

protection of law. The guarantee of equal protection applies against the substantive as well as

procedural law. It includes absence of arbitrary discrimination in the administration of law,

equal treatment in similar circumstances both in privileges conferred and liabilities imposed

by law. In short, all litigants who are similarly situated can avail themselves of the same

procedural rights.111 But the application of death penalty nullifies this concept. Two persons

who are found guilty of murder may be treated differently, one of them may get death and the

other may get only life sentence or pardon or acquittal. So, unguided discretion to award

either of two punishments violated legal equality.

There is no uniformity in the decision of Supreme Court. 112 In some cases even the delay of

more than two years in the execution of death sentence was considered so grave that it

109Article 39A of the Constitution of India, Section 303 and 304 of the Code of Criminal Procedure, 1973;

Hussainara Khatoon Vs. State of Bihar, (1980) ISCC98105, Khatri II Vs State of Bihar (181), SCC 627, TheLegal Service Authority Act, 1986.110

Mostly free legal aid is provided to an indigent accused by inexperienced lawyers. Who are new entrants atbar as dealing with complex case would give them exposure before the court. These lawyers lack capability to

deal with complex cases like murders. Moreover, the funds provided to them by the state government is veryinsufficient, viz Rs. 300 per hearing. Therefore, they do not pay head to the case. Moreover a mistake committedby them at the trial stage could be very rarely corrected at the appellate stage. In such a situation the life of an

accused would be jeopardized.111

State of West Bengal Vs. Anwar Ali, 1952 SC P289.112 S. Triveniben Vs. State of Gujrat, 1989 CrLJ 870; Javed Ahmed Vs State, 1984 CrLJ 1909 (SC); Madhu

Mehta Vs. Union of India, AIR 1989 SC 2299; Khemchand Vs. State, 1990 SCALE 1; State of U.P. Vs. Samman

Das, 1972 CrLJ 487, State of Maharashtra Vs Mangalya, 1972 CrLJ 570 SC. Vatheeswaran Vs State, 1983CrLJ 481 (SC) Pratt Vs. Morgen Vs Attorney General of Jamacia (1993) 4 ALL E.R. 769.


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resulted in commutation of death sentence into life imprisonment. But in many other cases

the apex court was not obliged to commute death sentence into life even though there was

delay of more than fourteen years in execution of death sentence.113 The Supreme Court itself

said that between the funeral fire and mental worry, it is the latter which is the most

divesting, for funeral fire burns only the dead body while mental worry burns the living one.

There fore, it can be submitted that too much delay and uncertainty in applying criminal law

would render even the best penal law as useless. Further, though speedy trial in criminal

cases is not a fundamental right of an accused but it is one of the important attribute of a

criminal jurisprudence. As quick sentencing and conclusion of trial within a limited period is

one of the first requirements of criminal justice. So, every effort should be made to avoid

delay in not only during investigation or trial but also in the disposal of mercy petition before

the president.

In India, the only authority that can give pardon114

to an accused in case of confirmation of

death sentence by the Supreme Court is the President of India. He is the only person who has

the exclusive authority to save the life of a convicted prisoner. The object of giving pardoning

power to the President is that ...to correct judicial errors for no system of judicial

administration can be free from imperfection. It is an attribute of sovereignty to release a

convict from a sentence which is mistaken, harsh and disproportionate to the crime .115

Ironically, this sacrosanct purpose itself is of no avail to the accused. The fact is that the

President has to act on the advice of the government in power.116

If he remits the mercy

petition to the government for reconsideration and the government confirms the death

penalty, the President has no power or other option but to confirm the sentence, as he is

bound by the recommendation of government. Further, the decision of the President on the

113Dhananjay Chatterjee Vs. State of West Beganl (1994) 2 SCC 220 at 239 (even delay of fourteen years in

execution of death sentence was not condoned); See, Manohar herum Shah Vs State, 1973 CL 971 SC; SherSingh Vs. State, 1973, CrLJ 803 SC114 Article 72 of the Constitution of India, 1950, provides pardoning power of President in case of death

sentence; similarly governor has power to commute death sentence under Article 161 of the constitution.115

Durga Das Basu, Introduction to the Constitution of India (18th

ed., 1997), p.180 .116 Article 74 (1) of the Constitution (after 44th amendment, 1978) provides "There shall be a council of minister

at the head to aid and advice the president who shall in exercise of his function, act in accordance with such

advice. Provided that the president may require the council of minister to consider such advice, either generallyor otherwise, and the president shall act in accordance with such advice tendered after such reconsideration."


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mercy petition is subjected to limited judicial review.117 It is submitted that the President

should have an unfettered power of pardon in case of mercy petition he should be required to

decide the petition within a limited time without any interference by the executive.

In a murder trial, it is a State who prosecutes against the accused on behalf of the society and

at the same time it is the State which decides that whether mercy petition address to the

President should be allowed or not. It is just mockery of justice and hence submitted that

there should be proper demarcation of the power of executive. Executive should not interfere

within the frame work of judiciary as separation of power is the basic feature of the

Constitution,118 and which should be maintained strictly.

Moreover, we can say capital punishment is morally wrong. It is submitted that when the

killing of a human being by another human being is a homicide and therefore punishable than

the killing of a condemned prisoner through the instrumentality of State is also homicide

which should be equally punishable. Judiciary cannot justify its in human act by mere saying

that capital punishment is according to the procedure establish by law and it is awarded to

preserve the public confidence in the judicial system.

Further, application of this brutal punishment on deterrent theory is baseless. There had been

no relation between the crime rate and the capital punishment. There is no convincing

evidence to show that the crime rate has increased in those countries, which have abolished

capital sentence. It is submitted that brutality or severity of punishment hardly deters. It is the

surety, effectiveness and uniformity of punishment, which deters. Death penalty is not

effective deterrent.119

Moreover, it is not applied uniformly. Further, being an irreversible

punishment there is every chance of mistake in its application. Death sentence leaves no

scope for correction if there is even a slightest mistake in the identity of the accused.

117 S.R. Bommai Vs.Union of India (1994) 3 SCC1. Para 73 held that court can interfere only when the

President's decision is totally irrational, arbitrary, malafide or discriminatory." See, for Pardoning rights of anaccused under Article 6(4) of ICCPR; Article 10 of Arab Charter on Human Rights, 1994; Safeguard 7 of theSafeguards guaranteeing protection of the Rights of those facing death penalty adopted by UN (ECOSOC) 1984;

Resolution 1989/ 64, adopted on 24th May 1989 by UN, ECOSOC.118

Keshavanand Bharti Vs. State of Kerala, A.1973 SC 1461.119 Roger Hood "The Death Penalty" A worldwide perspective (Oxford, third edition, 2002), p.230.


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Moreover, no body would realize the brutality as his behaviour once he is gone from the

world. Death sentence has been criticized on humanitarian ground as well.120

Accordingly, no

body is born criminal. It is the circumstances, which may turn a human being into a deadened

criminal. In fact, a human being does not cease to be a human being even if he has committed

a monstrous act, which has shocked the consciousness of society. Crime should be treated as

Mental disorder, which can be cured not only by brutal punishment but by sympathetic

treatment on the humanitarian ground. Therefore, reformation and rehabilitation should be

the core purpose of the punishment. Death penalty nullifies such purpose of reformation and

rehabilitation.

V. ARGUMENTS AGAINST DEATH PENALTY

The death penalty is often opposed on the grounds that, because every criminal justice system

is fallible, innocent people will inevitably be executed by mistake, and the death penalty is

both irreversible and more severe than lesser punishments. There is a virtual certainty that

genuinely innocent people will be executed and that there is no possible way of compensating

them for this miscarriage of justice. Often the only people who know what really happened

are the accused and the deceased. It then comes down to the skill of the prosecution and

defense lawyers as to whether there will be a conviction for murder or for manslaughter. It is

thus highly probable that people are convicted of murder when they should really have only

been convicted of manslaughter.121

The death penalty is also most commonly argued to be a violation of the right to life or of the

"sanctity of life." Many national constitutions and international treaties guarantee the right to

life. the right to life demands that a life only be taken in exceptional circumstances, such as in

self-defence or as an act of war, and therefore that it violates the right to life of a criminal if

she or he is executed, since this is purely murder by the State. Critics often hold that, because

life is an unalienable right, the criminal cannot forfeit the right by committing a crime.

120In Deena Vs. State, 1983 CrLJ 1602 (SC) and In Shashi Nayar Vs. Union of India, AIR 1992 SC 395. The

apex court held that the provision "To be hanged till death" Under Section 354(5) of the code of criminalprocedure, 1973, is not "cruel, in human or degrading method". Whereas Article 5 of Universal Declaration of

Human Rights, 1948 and Article 7 of ICCPR, 1973, Provides, "No one shall be subjected to torture or to cruel,in human, degrading treatment" meant that execution shall be carved out in such a way to cause the least

possible physical and mental sufferings; See Soering Vs. U.K. (1989) 11 EHRR 439.121Stuart Banner, The Death Penalty - An American History, Sweet and Maxwell, New York, 2002, p. 292-293


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However gruesome the act of offence may be, most convicts undergo the most harrowing

time, awaiting the outcome of numerous appeals and their chances of escaping execution are

better if they are wealthy or powerful. The psychological agony inflicted on the convict and

his near and dear ones is unavoidable and inhuman. The brutalising effect, also known as the

brutalization hypothesis, argues that the death penalty has a brutalising or coarsening effect

either upon society or those officials and jurors involved in a criminal justice system which

imposes it. It is usually argued that this is because it sends out a message that it is acceptable

to kill in some circumstances, or due to the societal disregard for the 'sanctity of life'. An

extension of this argument is that the brutalising effect of the death penalty may even be

responsible for increasing the number of murders in jurisdictions in which it is practiced.122

There is no such thing as a humane method of putting a person to death. Every form of

execution causes the prisoner suffering, some methods perhaps cause less pain than others,

but be in no doubt that

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