CRIMINOLOGY

ASSIGNMENT

Topic: Constitutionality of Capital

Submitted by:
Mohammad Aazam
B.A.LL.B (Hons.) S/F
5th sem
Roll No.-32
 Acknowledgment
On the completion of this assignment I find that there are many persons to whom I would like to
express my gratitude, since without their help and co-operation the success of this educative
endeavor would not have been possible. I welcome this opportunity to express my sincere
gratitude to my teacher and guide Dr. C.A. Rasheed who has been a constant source of
encouragement and guidance throughout the course of this work.
I am grateful to the IT Staff for providing all necessary facilities for carrying out this work and
all members of the Library staff for their help and assistance at all times.
I am also grateful to my friends for being helpful and guiding me throughout.

Moahammad Aazam
(Compiler)
Introduction
All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing.
Most systems of religion or ethics teach that bad actions lead to bad consequence. There are two
main reasons for inflicting the punishment. One is the belief that it is both right and just that a
person who has done wrong should suffer for it; the other is the belief that inflicting punishment
on wrongdoers discourages others from doing wrong. The death penalty also rests on the same
proposition as other punishments. Because of its drastic and irrevocable nature, it is even more
open to debate over its fairness, appropriateness and effectiveness than other punishments. The
proponents of death penalty believe that it is an effective way to stop crime. They focus on the
death penalty as a deterrent or something that will stop or lesson crime. They believe that the
death penalty brings the most justice to the victim of a heinous crime.
Death penalty has been a mode of punishment since time immemorial. The arguments for and
against has not changed much over the years. Crimes as well as the mode of punishment
correlate to the culture and form of civilization from which they emerge. At this point of time
when the issue [whether capital punishment must be abolished or not] 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.

Meaning of Capital Punishment

1
http://www.legal-explanations.com/definitions/capital-punishment.htm
Origin of Capital Punishment
The death penalty was prescribed for various crimes in Babylon at least 3700 years ago. Some of
the ancient society imposed it only for the most heinous crimes and some imposed it for minor
offences. For example, under Rome’s law in the 5th century B.C., death was the penalty for
publishing “insulting songs” and disturbing the peace of the city at night. Under Greece’s
DraconianLegal Code in the 7th century B.C., death was the punishment for every crime.
Beginning in ancient times the executions were frequently carried out in public. Public
executions provided benefits for everyone. For the surviving victims of the condemned
criminals, the execution provided the grim
satisfaction of witnessing the final punishment of those who had wronged them. For the
authorities, executions served as graphic demonstrations of their determination to protect the
public safety. Public executions even helped the authorities to do their jobs serving as grisly
object lessons for potential wrongdoers.

The extent or the nature of the punishment depended as much on the social standing of the
criminal as on the nature of the crime. The commoners were executed much more often than
nobles. Minorities and foreigners were treated more harshly than members of the dominant
group. The methods of execution were also varied. The common modes of inflicting death
sentence on the offender were drowning, burning, boiling, beheading, hurling the offender from
rock, stoning, strangling, impelling, amputating, shooting by gun or starving him to death.
Hanging and beheading were the most common methods of execution in Europe and Great
Britain. At present the common modes of execution of death sentence are asphyxiation,
electrocution, guillotine, shooting and hanging. The method of execution by electrocution was
first used at Auburn State Prison, New York on 1890 and is now being extensively used in USA,
UK, USSR, Japan and other European countries. The use of Guillotine for execution was
introduced in France in 1792. The method of hanging the condemned prisoner till death has been
commonly in use in almost all the countries since ages. In India public hanging is now held to be
unconstitutional.2

2
Lachma Devi v. State of Rajasthan ,AIR 1986 Cri L.J. 364
Capital Punishment in India
Capital punishment is prescribed as one of the punishments in various provisions of the Indian
Penal Code 1860, The Arms Act 1959, The Narcotic Drugs and Psychotropic Substances Act
1985, and The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The
Commission of Sati (Prevention) Act, 1987, The Air Force Act, 1950, The Army Act 1950 and
The Navy Act 1957. In the Prevention of Terrorism Act, 2002 also, there was a provision for
death penalty for causing death of persons using bombs, dynamite or other explosive substances
in order to threaten the unity and integrity of India or to strike terror in the people. It is also
interesting to note that under the Arms Act, NDPS Act and the Scheduled Caste and Scheduled
Tribes Act, Capital Punishment is the only punishment for the offence covered by those sections,
thus leaving no room for the judiciary to exercise its discretion. It is doubtful whether these
provisions can stand the test of the constitutional validity in the light of the decision in Mithu v.
State of Punjab3 because in this case section 303 of the Indian Penal Code16 was struck down as
violative of Article 21 and 14 of the Constitution of India, as the offence under the section was
punishable only with capital punishment and did not give the judiciary the power to exercise its
discretion and thus resulted in an unfair, unjust and unreasonable procedure of depriving a
person’s life.4

3
AIR 1983 SC 47
4
http://faizlawjournal.blogspot.in/2007/12/capital-punishment-in-india.html
Constitutional Validity of Capital Punishment
Article 21 of the Constitution of India provides Protection of life and personal liberty to every
people. And the deprivation of life of anyone is unconstitutional under Article 21. It also said
that No person shall be deprived of his life or personal liberty except according to procedure
established by law, it means, if there is a procedure then state can deprive a person from his life.
In many countries there has been a demand for abolition of the death penalty and in some this
demand has been accepted and death penalty has been abolished. In India, too there are many
social workers including lawyers and judges who have voiced this demand. Prominent amongst
them are Bhagwati J. and Krishna Iyer J. both former judges of the Supreme Court, Krishna Iyer
J. very recently while addressing a Human Rights organization strongly expressed himself in
favor of the abolition of death penalty.
The question of constitutional validity of death penalty has been raised before the Supreme Court
of India more than once. In case of Jagmohan Singh v. State of Uttar Pradesh 5the constitutional
validity of death penalty was upheld by the Supreme Court by a unanimous decision of the five
judges composing the Bench. Justice A.K. Ganguly of the Supreme Court has termed the award
of death sentence as "barbaric, anti-life, undemocratic and irresponsible" which is "legal" in the
prevailing judicial system. The doctrine of the crime falling in the 'rarest of rare' category in
awarding the death penalty was a "grey" area as its interpretation depended on individual judges.
He cautioned that before giving death penalty, a judge must be "extremely careful" and weigh
"mitigating and aggravating circumstances".
So far as constitutionality is concerned it has to be considered in the light of the provision of the
Constitution of India. In India, through Article 21, the State is given the power to take away the
life of a person through a procedure established by law. This means that through there is a
procedure established by law, state can deprive a person of his life. Through judicial
pronouncements, this procedure is interpreted to mean, a fair, just and reasonable one. Though
the constitutional validity of the death punishment was challenged as violative of Article 19 and
21 of the Constitution of India, because it didn’t provide any procedure to the Court upheld the
validity of death sentence.

5
AIR1973 SC 947
Since the procedure by which the life is taken is fair, just and reasonable. The judges are given
ample power to exercise their discretion to award death penalty as against imprisonment for life
In case of Rajendra Prasad v. State of Uttar Pradesh,6 Krishan Iyer J. said that death penalty
directly affects the life of the people guaranteed under Article 21 of the Constitution. But it has
been provided by law and there is nothing like due law in Article 21. Therefore, it is valid. He
further said that to impose death penalty the two things must be required:
 The special reasons should be recorded for imposing death penalty in a case.
 The death penalty must be imposed only in extraordinary circumstances.
The question was again considered by a five judges Bench in case of Bachan Singh V. State of
Punjab,7 particularly in view of certain observations of Krishan Iyer J. In Bachan Singh case
judges considered the social, ethical and even spiritual aspect of death penalty while upholding
the constitutional validity thereof. But by a majority of four to one, Bhagwati J. in Bachan Singh
case recorded a dissenting note. Bhagwati, J. in his dissenting judgment has given a number of
reasons for holding that death penalty is not only unconstitutional being violative of articles 14
and 21 but also undesirable from several points of view". One of the reasons given by him is that
death penalty is irrevocable because the execution of the sentence of death in such a case makes
miscarriage of justice irrevocable. He referred to the Book Death Penalty in America by Hugo A.
Bedau which catalogues 74 cases in which it has been responsibly charged and in most of them
proved beyond doubt that persons were wrongly convicted and executed though innocent. It is no
doubt true that conviction and execution of an innocent man for murder shocks the human
conscience and it is also true that human judgment is not infallible but I may respectfully point
out that the criminal law in our country is heavily loaded in favor of the accused and an
erroneous conviction is not at all possible. In England and America the trial is by jury and it may
with utmost honesty more readily record an erroneous verdict of guilty than a judge. A jury is
very much influenced by the consideration that the interests of the society demand that no
offender who perpetrates a shocking crime should escape the clutches of law and the punishment
he deserves. A judge's approach in our country is more cautious. He is guided by the principle
that hundred guilty persons may escape but not one innocent person should be convicted.

6
AIR1979 SC 947
7
AIR 1980 SC 898
No Change for Injustice
It is on the basis of this principle that in India benefit of a reasonable doubt is given to the
accused even in cases of murder. A defense counsel uses all his skills and ingenuity to create a
doubt in the mind of the judge and he gets repeated opportunities to do so. If he fails in the trail
court, he makes a second attempt in the High Court and a third one before the Supreme Court.
Thus the possibility of an erroneous conviction is wholly excluded. Apart from this the power of
pardon, remission and commutation of sentence vested in the Governor and the President
furnishes another safeguard against a judicial error in the matter of punishment. The whole
matter is examined with great care and caution while exercising the said power, keeping in view
the interests of the individual on the one hand, and interests of the society on the other. The
President is the elected head of the State and is expected to give effect to the will of the people.
Thus a convict cannot be executed unless the extreme penalty in a particular case is
not only considered proper in a judicial verdict but is also in consonance with the wishes of the
people in general. I need not refer to other aspects of the matter which have been dealt with at
length by Sarkaria J, in his elaborate majority judgment but I would like to stress one aspect of
the matter. I fail to see why too much importance should be attached to the life of an individual
who has been found guilty of a heinous offence when the interests of the society demand that
death penalty should be awarded to him.
Often in the event of a riot the police are required to open fire in the interests of society to
disperse an unruly mob indulging in arson and violence to restore order if other methods fail. In
such a firing even innocent persons are killed. Shall we say that the police should never resort to
firing to quell a riot or to disperse a riotous mob merely because there is a risk of innocent
persons being killed? No one will ever say that. If so why should we have qualms of conscience
in awarding death penalty to an offender in extreme cases where the interest of the society
demands it. The reformative aspect of justice is no doubt very important. But we do come across
criminals who are beyond redemption.
Even Krishna Iyer J. who strongly advocated the social and human aspect of law conceded in
Rajendra Prashad's case that death penalty may be legally permissible when he can never be
reformed.
Moreover, the Criminal Law provides ample safeguards. Under section 354(3) of the Code of
Criminal Procedure the Court has to give special reasons for awarding the death penalty. Section
235(2) provides a hearing after conviction on the question of sentence. Hanging of a murderer
gives no pleasure to a judge. He merely discharges a painful duty while awarding the death
sentence in the interests of the society. We can, therefore, repose trust in the judges that they
would discharge this onerous function with scrupulous care and human concern bearing in mind
that imprisonment for life is the normal penalty for murder while death penalty is to be awarded
only where the offender appears to be extremely depraved and a potential menace to society. So
far as the constitutional aspect is concerned very cogent reasons are given in the majority
judgment for upholding the constitutional validity of death penalty.
To sum up, there can be no doubt about the constitutionality of the death penalty in our country.
As regards its propriety in a particular case the matter has to be left to the discretion of the judge
who has to bear in mind that normally imprisonment for life is the appropriate sentence for
murder under section 302 IPC, particularly in the case of a woman. In the case of adult males
death sentence may be awarded in cases where the murder and the entire circumstance of the
case show that he is a potential menace to the society. The question of propriety of death penalty
in a particular case has to be judged not merely from the point of view of the accused; the
interests of the community as a whole must also be taken into consideration.
Chief Justice Chandrachud expressing the view of the three Judges of the Supreme Court in Sher
Singh v. State of Punjab held that death sentence is constitutionally valid and permissible within
the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.
The challenge touching the constitutionality of the death sentence also surfaced Triveniben v.
State of Gujarat8 and the Supreme Court asserted affirmatively that the Constitution does not
prohibit the death penalty.

8
AIR 1989 SC 1335
Rarest of Rare
Now, the judiciary has evolved its own jurisprudence in evaluating which cases are to be
considered as fit ones for awarding capital punishment. Thus capital punishment is awarded only
in rarest of rare cases. The determination of this is very difficult. There are various decisions in
which the determination of rarest of the rare was in question. The Court could not follow any
uniform guideline to reach a conclusion, and the subjectivity of the judges also play a vital role
in this determination. The death sentence should be imposed in the rarest of the rare case. The
Supreme Court in Machhi Singh v State of Punjab (1983) apex court laid down a few principles
which were to be kept in mind while deciding the question of sentence:
 Is there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
 Are there circumstances of the crime such that there is no alternative but to impose death
sentence even after according maximum weightage to the mitigating circumstances which
speak in favor of the offenders?
Recent Cases
Dhananjoy Chatterjee v. State of West Bengal & Ors 9the appellant, Dhananjoy Chatterjee was
found guilty of offences punishable under Sections 376, 302 and 380 of the Indian Penal Code
by judgment and was awarded death sentence by the session judge, confirmed by the High Court.
A special leave petition was filed by the appellant. Leave was granted but the appeal was
dismissed by the Supreme Court.

Sushil Murmu v. State of Jharkhand,10 a young child of 9 years was sacrificed before Goddess
Kali by the appellant for his own prosperity is what the prosecution alleges. The Supreme Court
awarded death penalty to the accused.

State of U.P. v. Satish,11 stressing that leniency in punishing grave crimes would have serious
consequences the supreme court has awarded the death penalty to a man for the rape and murder
of a six year old girl.

Ajmal Kasab 12case, on 3 May 2010, Mumbai Special Court convicted Ajmal Kasab for murder,
waging war on India, possessing explosives, and other charges. On 6 May 2010, the same trial
court sentenced him to death on four counts and to a life sentence on five other counts. Kasab
has been sentenced to death for attacking Mumbai and killing 166 people on 26 November 2008.
He was found guilty of 80 offences, including waging war against the nation, which is
punishable by the death penalty. Kasab's death sentence was upheld by the Bombay High Court
on 21 February 2011.

And on 29 August 2012 his death sentence was upheld by the Supreme Court also.
On October 5, 2012, Additional Sessions Judge Ramesh Kumar Singhal of Delhi Court handed
down the death sentence to the five persons, who had mercilessly tortured and electrocuted the

9
[2004] 9 SCC 759
10
AIR 2004 SC 394
11
Appeal (cri.) 256-257 of 2005
12
AIR 2004 SC 394
girl and her lover as they were opposed to her plan of getting married to the boy belonging to a
Scheduled Caste.
Conclusion
In the wake of above discussion and ground realities of present day world following conclusions
can be drawn:
The opposition to abolition of the death penalty stems from the myth that it will lead an increase
in the number of murders. The fact is that in the state of Travancore there were 162 murders
between 1946 and 1950 when the death penalty was not in force, But in the five years from 1950
when it was re-imposed. There were 967 murderers. It has been argued that it is not possible to
fight such crimes by framing law. What we need is to target the root of crime.
Even Krishna Iyer J. conceded in Rajendra Prashad’s case that death penalty may be awarded
where the killer is such a monster or a beast that he can never be reformed. Criminals, who can
be hired to kill anyone or to throw a bomb in a crowd killing many innocent men, women and
children, deserve no sympathy. We cannot ignore the interests of the community or the country
while considering whether death sentence would be appropriate in a particular case. So far as
juveniles are concerned they have to be dealt with under the appropriate Acts for juvenile
offenders and there is no question of awarding death sentence in their case.; Thus, after taking
into consideration the interests of the individuals on the one hand and interests of the community
on the other, it would be highly imprudent to abolish the death penalty.