Is The Death Penalty A Violation Of Human Rights - Myth Or Reality
Author: LawSphereX
Category: Constitutional & Human Rights
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IS THE DEATH PENALTY A VIOLATION OF HUMAN
RIGHTS: MYTH OR REALITY?
Vivek K Singri, BBA LLB, PES University (Established under Karnataka Act No. 16 of 2013)
ABSTARCT
Death sentence as a kind of governmental punishment used in India, it raises certain key concerns with regards to Human Rights & its related aspects. But as per the Parliament narratives, only for two types of crimes first is Treason/ betrayal to the country and heinous murders the courts can be allow to pronounce the death sentence, the justification given to this is “I thus forfeit my own right to life and liberty if I take away another person's rights to these things. 1”. Undoubtedly due all of this the aspects of Death Penalty has become a highly disputed issues in the field of human rights, it has gave arise to numerous debates with respect to its ethical, legal, and societal consequences.
The death sentence sometimes represents to be as an infringement of basic human rights, including the right to life, the right to be free from torture or harsh, inhuman, and degrading punishment, and the ideas of equality and non-discrimination is under thorough examination in this paper. India is a party to the International covenant on civil and political rights (1966)2, yet it isn't clear about the India's stances as to how really it has been using death sentence under different pretexts in deciding or defining what amounts to “Rarest of Rarest” leading to ambiguity. Although most leaders such as Gandhi, along with other prominent members were also somewhat uneasy about the death sentence, it was adopted and given a prominent place within the Criminal laws of the country even in 21st century.
Using international legal systems such the International Covenant on Civil and Political Rights (ICCPR)3, the paper investigates the moral and legal objections to the death sentence in India. The paper also tries to addresses worldwide habits towards abolition, can India also take similar stance or any other aspects are available to resolve the matter of Death
1 Bachan Singh vs. State of Punjab - AIR 1980 SC 898
2 International Covenant on Civil and Political Rights, art. 6(2), Dec. 16, 1966, 999 U. N. T. S. 171, retrieved from https://www. ohchr. org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights (last visited Jan. 19, 2025). – UN Human Rights Office of Higher Commission – Article 6(2) - In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3 Universal Declaration of Human Rights – UN Peace, dignity and equality on a healthy planet - Article 5 - No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
penalty as is also been having other key issues such as the irreversibility of erroneous convictions, and the unequal application of the death sentence on vulnerable populations. In the end, the study advocates for whether India shall prohibit the death sentence as a means of guaranteeing justice and respect of human dignity or shall keep the practice of Death Penalty as its Cultural; legal and criminology aspects differ from the other countries? Keywords: Death Penalty, Human Rights Violation. Rig Veda “Whatever ordinance of thine, God, Varuna, we violate, As human beings day by day, Yet to the stroke subject us not, Death-dealing of the angry one, The wrath of the innocent one Whatever wrong against the heavenly race we do, Being men, O Varuna, whatever law, Of thine we have broken through thoughtlessness, For that transgression, do not injure us, Ohh God.
”4 Mahabharata “any one going beyond the laws should be punished or killed. ”
1. INTRODUCTION:
The death penalty is and has always been a controversial issue, raising a huge significant issues with respect to the aspects related to the aspects of moral, legal, and human rights concerns. One of the most extreme measures a government may impose on an individual has from ages is the death sentence or also known as the Capital sentence. The death penalty has been approved in India for offences regarded as the "rarest of the rare,"5 and it is primarily associated with treason and horrific murders. This approach depends on the concept that those “who conduct such heinous of heinous acts, jeopardise their own right to life by breaching the rights of others”, but it is to be noted that The Supreme Court has chosen not to define what exactly
4 J.N.C. Ganguly, Hindu Theories of Punishment, 8 Annals Bhandarkar Oriental Res. Inst. 72 (1926),
http://www.jstor.org/stable/44028012. 5 Monica Sakhrani & Maharukh Adenwalla, Death Penalty: Case for Its Abolition, 40 Econ. & Pol. Wkly. 1023 (2005), http://www.jstor.org/stable/4416329.
makes a case the 'rarest of rare cases. ' Instead, it allows judges to make that decision, which can result in different outcomes. 6 This issue, however, has sparked highly intense debate since it violates core human rights values, particularly the right to life and the prohibition of cruel and inhumane treatment. The conflict between the capital punishment and the value of life or the Human Rights is at the very core aspects related to the current discussions about the ethical appropriateness of the death penalty. The death penalty first appeared in India during colonial rule as a tool for controlling and repressing citizens. Originally permitted for a wide range of acts, standardised into law by the Indian Penal Code of 1860, the death penalty was Although legal changes have limited its scope over time, India's criminal court system continues to use it.
7 Developed in the well-known case Bachan Singh v. State of Punjab (1980)8, the "rarest of the rare" approach has assisted the court in attempting to balance its use. According to this viewpoint, the death penalty should be used only in cases where other punishments are insufficient to reflect the gravity of the crime or serve societal interests. Despite this premise, the death penalty is carried out in India in a quite contradictory manner. India is one of 78 countries that still keep the death sentence, even for political crimes. 9 In certain decisions on punishment are occasionally influenced by variables such as the accused's socioeconomic status, the quality of legal representation, and systematic biases. Respect for human life, as well as the core concepts of retribution and deterrence10, are central to the ethical discussions surrounding the death penalty.
This underlying principle supports the aspects of the death penalty, and as a result, it is contested whether it deter significant crimes while also providing victims and families justice. Although some studies have shown that the death penalty has no significant impact on crime rates when compared to life in prison, realworld evidence on its deterrent value contradicts this. Furthermore, there are certain countries which follow punishing under the concept of "Revenge" which means that “only by means of experiencing punishment can an offender atone for their wrongdoing”11 this thus raises bigger philosophical problems about whether the government should develop regulations that
6 Supra 2
7 A. Vatsa, Death Penalty in India: An Examination of the Historical Discourse, 80 Proc. Indian Hist. Cong. 1174 (2019), https://www.jstor.org/stable/27192972.
8 Supra 2
9 Supra 5
10 Theories of deterrence and retribution share the idea that punishments should be proportionate to the gravity of the crime. 11 R.M. Bohm, Retribution and Capital Punishment: Toward a Better Understanding of Death Penalty Opinion,
20 J. Crim. Just. 227 (1992), https://doi.org/10.1016/0047-2352(92)90047-d.
mirror the conduct it seeks to censure. Its to be noted that India in the year 1979, the Supreme Court Of India states in the case of Rajendra Prasad v. State of U. P, "the revenge theory has had its day and is no longer valid in India. " and from here India didn’t follow the aspects of revenge theory before deciding on a sentence, the rules also mandated that trial courts take into account the living circumstances of a convicted individual including their age, family history, socioeconomic level, and mental health issues in addition to a crime. Moreover, they insisted that a death sentence should be used only in cases when a state could show that a criminal is beyond rehabilitation. 12 Yet Critics argue that the death penalty goes against basic human respect because it is cruel and dehumanising. The fixed form of the term increases the risk of wrongful verdicts.
Innocent people often spend years on death row before new proof shows they didn't commit the crime. This reveals issues in the justice system and the serious consequences of a wrongful conviction. These talks have led to calls for a focus on return and recovery rather than strict laws. The death penalty has gradually been eliminated from use around the world. By 2025, over two-thirds of countries will have removed the death sentence. International human rights laws, like the Second Optional Protocol to the ICCPR and the International Covenant on Civil and Political Rights13, highlight that the right to life cannot be taken away and urge for the end of the death sentence. These measures reflect professionals' growing recognition that the death penalty violates established human rights standards. India joined the ICCPR, hence it owes respect and protection for the right to life.
Its retention of the death penalty, however, demonstrates a cautious approach that achieves a balance between local legal traditions and societal views and global norms. The opposition to completely abolishing the death penalty is defined by issues of public opinion, political considerations, and the perceived need for retributive justice in times of great violence. Growing awareness of the inherent flaws of the death penalty and its conflict with human rights values fuels the global effort to abolish this tool. Countries like Australia; New Zealand; United Kingdom14 that have ended the death sentence by showing their dedication to fundamental
12 Supra 2
13 Supra 3
14 Death Penalty Info. Ctr., Countries That Have Abolished the Death Penalty Since 1976 (Sept. 25, 2024), https://deathpenaltyinfo.org/policy-issues/policy/international/countries-that-have-abolished-the-death-penaltysince-1976. (last visited Jan. 27, 2025).
human rights, this countries have stated that modern society has no place for the death sentence based only on moral considerations. It devalues human dignity, is cruel, and is demeaning to human civilisation, and believe it doesn't effectively prevent crime. Regional and foreign groups, like the United Nations, have consistently asked for a pause on killings and the end of the death sentence. India's view on the death penalty remains contradictory. Although the court has emphasised the importance of moderation in its application, the government has not enacted clear abolitionist laws. The lack of a clear roadmap for the abolition of the death penalty highlights how difficult it is to strike a compromise between national legal systems, popular sentiments, and international obligations. From ethical, legal, and societal angles, this article examines Indian death sentence usage.
Examining its past, legal framework, and adherence to international human rights norms helps the research underline whether or not reform is needed. It also examines many conceptions of justice, focussing on helping and fixing individuals over than punishing them. Is India under the "Rarest of Rare" concept already in commitment to the Human Rights? Does preventing or banning of death sentence indicate a commitment to human rights of India in front of International organisation?
2. RESEARCH OBJECTIVE:
1. To examine as to how the death sentence in India is being aligned with certain core
rights as stated in international human rights agreements, especially the International Covenant on Civil and Political Rights (ICCPR).
2. To analyse to the applicability of the “Rarest of Rare” Doctrine in safeguarding human
rights while allowing for the death penalty.
3. To analyse whether India is ready for complete abolition of Death penalty.
3.1. RESEARCH QUESTIONS:
1. Whether the aspect of death penalty in India, meet the right to a fair trial as protected
by international human rights treaties, most especially the International Covenant on Civil and Political Rights (ICCPR)?
2. Whether the doctrine of “Rarest of Rare” case sufficiently safeguard human rights while
allowing for the death penalty?
3. Whether the death penalty procedures followed in India are similar to Middle Eastern
countries which defend the death sentence despite increasing worldwide criticism of
human rights or is there anything that India can learn any lessons from common law nations that have eliminated the death sentence?
4. Whether India is ready for complete abolition of Death penalty?
3.2. RESEARCH PROBLEM:
Within the context of human rights laws, particularly with respect to their compliance with international treaties such the International Covenant on Civil and Political Rights (ICCPR), the execution of the death sentence in India does it leading to human rights violation? This raises important questions about whether the death penalty followed in India conforms with basic values such the right to life, equality, and the prohibition of harsh or humiliating treatment do they meet the right to a fair trial. Moreover, depending on the uncertain "rarest of rare" theory for punishment has resulted in contradictions and even systematic prejudices, therefore disproportionately impacting underprivileged and vulnerable groups.
While some Middle Eastern countries support the continuation of the death sentence despite mounting worldwide human rights criticism, many common law countries have abolished it, noting its conflict with human rights ideals. This study aims to investigate as to is there any factor which India may learn from abolitionist nations by modifying their strategies to fit its own cultural, legal, and social setting. On the bases of advocating changes that guarantee justice, fairness, and human dignity in accordance with worldwide movements towards the elimination of capital punishment, the research work shall seek to close the gaps that are there between India's present death sentence system and international human rights norms, this paper also tries to answer few of the critics that exist in this aspect of topic.
3.3. RESEARCH METHODOLOGY:
This paper is based on both primary and secondary research, this mixed-method research looks at "whether the death sentence violates human rights." The Primary research involved conducting structured interviews and using a questionnaire to gather insights from key stakeholders in Karnataka, From Karnataka State Human Rights Forum
1. Honourable S.K. Vantigodi, Honourable Member of the Human Rights Commission
(Retired Sessions Court Judge);
2. Mr. Arun Pujar, Secretary of the Human Rights Commission;
3. Mr. K.B. Patil, Additional Registrar of the Karnataka State Human Rights Commission
(Retired Sessions Court Judge);
4. Mr. Mohan Kumar, Deputy Superintendent of Police;
along to this other Key Stakeholders from the Legislation and Parliament i.e.,
5. Mr. A. Narayana Swamy, Former Member of Parliament, Former Social Justice and
empowerment Minister of India and Former Prison Minister of Karnataka. And other Senior Law Enforcement officials including,
6. Commissioner of Police;
7. Addl. Commissioner Of Police,
8. Deputy Inspector General,
9. Assistant Commissioner of Police,
Have participated in primary research by means of structured interviews and questionnaire responses. The questionnaire included subjects like the deterrent impact of the death sentence, its consistency with human rights, and the ramifications of the "rarest of rare" theory. The Secondary method of research approach where the data used are collected and analysed from the legal documents w.r.t the Death Penalty: A Violation of Human Rights and other related International Conventions and treaties and related document and other legislative texts, case laws of Supreme court of India, existing literature from a selected website such like Jstor etc related to the Death Penalty and Human Rights. This particular research work is been carried out in such a way that it offers a thorough and clear knowledge & incites of Death Penalty in the virtue of the aspects of Human Rights law.
3.4. LITERATURE REVIEW:
1. DEATH PENALTY IN INDIA: AN EXAMINATION OF THE HISTORICAL
DISCOURSE. Proceedings of the Indian History Congress, 80, 1174–1182, Written by Vatsa, three basic strands help to clarify the complex problem with the death sentence in India: The death penalty is not regularly applied; there are procedural mistakes; and there is a conviction that it only affects underprivileged populations both socially and economically. The main justification for this lifelong punishment is that taking away someone else's right to life and liberty also means giving up one's own. In 1949, the Mahatma Gandhi murder case was the first hanging in Independent India, according to the
Indian Penal Code, 1860 (IPC), which lists many capital offences. The risk of arbitrary impositions, the judge-centric nature of the punishment, its discriminatory impact on the poor, and the possibility of error were the main topics of debate in the Constituent Assembly from 1947 and 1949. Even while political parties and groups support abolishing the death penalty, nothing is known about how it is carried out in India, who is given the death penalty, who is pardoned, and how they get it.
2. Death Penalty: Case for Its Abolition. Economic and Political Weekly, 40(11), 1023–1026
Written by Monica Sakhrani, & Maharukh Adenwalla states that India's retentionist character and use for political offences make the death sentence a divisive topic. The 'rarest of rare instances' has not been defined by the Supreme Court; judges will therefore have great discretion. A fact exists whereby punishment shapes brutalisation of society; so, the death sentence ought to be eliminated. Retributivists believe that punishment should be proportional with the crime committed so as to ensure moral obligations and wrongs. In Canada, homicide rates fell from 3. 09 in 1975 to 1. 85 in 2002. To speculate on the number of really innocent inmates in India is only speculative. Given that the death sentence is considered as a reward for punishment, it is often demonised in the case of reformed and poor offenders.
With white-collar illegalities defining the realm of civil law, Marxists criminologists Rusche and Kirchheimer contend that a society's punitive policy is suited for the demands of the labour market. Discriminatory decision-making all over the criminal justice system guarantees frequent filtering out of the socially deprived
3. RETRIBUTION
AND
CAPITAL
PUNISHMENT:
TOWARD
A
BETTER
UNDERSTANDING OF DEATH PENALTY OPINION Journal of Criminal Justice Vol. 20, pp. 227-236 (1992) written by ROBERT M. BOHM claims that concept of retribution as a basis for support for the death penalty. It identifies two types of retribution: vindictive revenge and revenge-utilitarianism. The study found that people support the death penalty for vindictive revenge, which has an emotional or visceral component. The study also examined the influence of knowledge on death penalty opinions and reasons for these opinions. The research was conducted in 1988 and 1989, with 98 subjects enrolled in a special topics class on the death penalty. The most relevant question for tapping public opinion was the question about the death penalty for those convicted of first-degree murder. The study aims to provide clarity on the different meanings of retribution and its implications for society.
4. PERSPECTIVE OF DEATH PENALTY AND HUMAN RIGHTS LAW IN INDIA AND
AROUND THE WORLD, 2022 Volume 20 Issue 2, ISSN: 2669-2481 / ISSN: 2669-249X, written by Tusharika Narwal claims that human life is very important for society as it offers access to many emotions and relationships in the natural cycle. Though many nations have eliminated it, the death sentence remains controversial for moral, political, legal, and pragmatic grounds. This paper examines the increasing movement against the death sentence as well as the operations of multinational organisations all over to eradicate capital punishment. One special quality of human existence sets us apart from other creatures on our planet. Notwithstanding various rules and penalties, the criminal justice system revolves mostly around the death sentence. One of the primary reasons of the problems in modern society is the execution of offenders, often the harshest sentence.
Legal systems can fail to provide a fair trial and lack impartiality, which would cause torture and inequality among accused people. Some countries have expanded the death sentence to include crimes not deemed "very severe" or politically motivated. Executions should be carried out under cover of secrecy rather than in public view and with as little pain as feasible for the condemned. Only political leaders who defend human rights will help abolition to take place. In modern society, when every individual has personal responsibility for their conduct, the death sentence is very necessary. Strong fines are required to discourage would-be offenders and guarantee peace and safety in society. The death sentence has to be kept under use as the state cannot let innocent people live for the sake of one offender.
5. The doctrine of rarest of rare: A critical analysis. Indian Journal of Integrated Research in
Law, 2(4). ISSN: 2583-0538. Written by Rajkumari, & Singh, R. D. P. states that According to the "rarest of rare" theory used in Indian law, the death sentence is reserved for very uncommon circumstances with great crime rates and social risk. Given the offender's behaviour, past, and likelihood of rehabilitation, this theory separates aggravating from mitigating conditions. Establishing the theory in the Bachan Singh v. State of Punjab judgement in 1980, the Supreme Court of India maintained the death sentence as constitutional. The theory takes into account elements such criminal method, purpose, antisocial character, and victim's traumas. While every living being has an intrinsic right to life according to the International Covenant on Civil & Political Rights, several nations still follow the "Rarest of Rare" theory, which only covers the most severe offences.
4. ANALYSIS:
4.1 HISTORY:
Death Penalty is the awarded wherein a crime of extreme heinous nature beyond normal man’s prudence has been carried out, for which the state calls out to pass the death sentence. It is only utilised in situations when the offence is of such kind that it cannot be revoked without a death punishment. It has been there from time immemorial; the earliest known occurrence is that of Hammurabi in the 18th Century B. C. The Hammurabi Code set severe guidelines for Babylonian treatment of one another and way of life. Hammurabi Code of Babylon in the eighteenth century, started the application of death sentence.
According to Hammurabi Code crime against high class individuals having a great quantity of money regarded more severe than impoverished people, this codified law has erased arbitrariness; the penalty for offences like murder, wrong at business, trespassing, etc are granted Death Penalty. 15 Slowly, the jurisprudence of Death penalty gained scope towards the humanitarians rights; by these aspects states prohibited death penalty in their legislations. In the year 1846, first state to forbid death sentence was Michigan, Rhode Island and Wisconsin. By the end of the eighteenth century, Venezuela, Portugal, Netherland, Costa, Rica, Brazil follows in abolishing of death sentence, along to this all the common law countries i. e. , United Kingdom, Australia and New Zealand have due to concerns about human rights.
But in India from ancient times we have followed the aspects of Reformation theory, where we can derive few aspects from the verses of Rig Veda "Whatever ordinance of thine, God, Varuna, we violate, As human beings day by day, Yet to the stroke subject us not, Death-dealing of the angry one, The wrath of the innocent one Whatever wrong against the heavenly race we do, Being men, O Varuna, whatever law, Of thine we have broken through thoughtlessness, 15 Rajkumari & R. D. P. Singh, The Doctrine of Rarest of Rare: A Critical Analysis, 2 Indian J. Integrated Res. L. (n. d. ), ISSN: 2583-0538, retrieved from https://ijirl. com/.
For that transgression, do not injure us, Ohh God. "16 The above Hymn appears to the universal topics of moral humanity, responsibility, the desire for mercy and pardon are reflected in this chapter. It requests to the lord Varuna, the Vedic god of order and justice, that humans often make mistakes that are unintentional, thus are lead to break holy rules. It highlights that these wrongdoings are committed due to careless attituded, not from bad intentions, expresses fear of God's punishment while asking for mercy. The Hymn focusses on being responsible, acknowledging our mistakes and hoping for forgiveness from a higher power. Thus, emphasising the features of Reformation theory. From this theory and the hymn we can see, when a person is having a notion to reform then he should be pardon, shall be forgiven and simple penalty must to be imposed.
Ancient India has not just limited itself for reformation, in cases where the reformation is not possible the text of Mahabharata has stated for death punishment, “any one going beyond the laws should be punished or killed". It is also said in the same regard that "those who surpass law and order should be properly punished by the king. ”17 The Ancient India has advocated for both the aspects Reformative theory and the aspects of Capital punishment, it is left up to the kings to decide upon the case to case basis. Thus, we can see that initially all the accused/ convict are given opportunity to reform, The king should be advised to choose to apply death sentence as in only when reformation is impossible and the crime is of serious heinous nature.
Although its usage has been discontinued at some point in time in history, Indian civilisation states that the death sentence can be eradicated only when "the people were most truthful, soft-hearted and benevolent and to them vocal remonstrance sufficed. " Only when the above is satisfied these policies fail. However, death sentence and physical punishment were used to guard the community against violent offenders. ”18 Similar to Ancient India, the court in the Bachan Singh case established and applied the "Rarest of Rare" principle to cases involving the death penalty. It states that the judge makes the decision regarding whether or not to impose the death penalty based on a few crucial factors in the case. The judge does not have the authority to condemn someone to death only because they committed murder. The 5 bench Judges in this case pointed out that:
16 J.N.C. Ganguly, Hindu Theories of Punishment, 8 Annals Bhandarkar Oriental Res. Inst. 72 (1926),
http://www.jstor.org/stable/44028012.
17 Ibid
18 Kane, P.V: History of Dharma shastra, P. 399
“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law instrumentality. That ought not to be done except in rarest of rare cases where the alternative opinion is unquestionably foreclosed.”19 Like in ancient India, modern India has a principle where the death sentence is given only for the "rarest of rare" cases. If there is a chance for change, then the death penalty will not be granted. This principle does not violate human rights as it is pointed out in the case of Mahesh v. State of M.P20 when given lighter sentence to accused in cases of heinous crimes it would lead to create lowering the trust in courts, thus to maintaining justice in the state the death penalty shall be awarded, this doesn’t violate Human rights.
4.2 INDIA AND ITS STANCES WITH THE INTERNATIONAL CONVENTIONS:
On a factual basis, India has regularly maintained a position against the elimination of the death sentence at international forums. International Covenant on Civil and Political Rights is one of few international agreements India is a signatory for,21 which under the Part III Article 6 clause 222 states that: “In nations that have not abolished the death sentence, sentence of death may be imposed only for the most serious crimes in line with the law in force at the time of the crime commission and not against the terms of the present Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. This punishment may only be enforced in line with a final decision made by a qualified court. ” Along to this Article 6 clause 423 also states that: “ Everybody sentenced to death has the right to ask for a pardon or sentence modification.
In any situation, Amnesty, pardon, or commuting of the death sentence may be issued. ”
19 Supra 2
20 Mahesh v. State of M.P AIR 1987 SC 1346
21 International Covenant on Civil and Political Rights, Office of the U. N. High Comm’r for Hum. Rts. (1966), retrieved Jan. 20, 2025, from https://www. ohchr. org/en/instruments-mechanisms/instruments/internationalcovenant-civil-and-political-rights. 22 International Covenant on Civil and Political Rights - Part III, Article 6, Clause 2 - In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
23 International Covenant on Civil and Political Rights - Part III, Article 6, Clause 4 - Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
The Second International body to which India is a member - UNECOSOC24 this body advocates that - The members of those nations that have not outlawed the death sentence only apply it to most horrible offences. - Pregnant ladies or insane shouldn't be given death punishment. - Minor under 18 years of age shouldn't be punished with death penalty. - Article 14 of ICCPR states that fair process is to be followed in cases of death penalty. -. Retroactive impact of the death sentence is not to be considered. - One has to acquire their right to appeal to higher courts. As pointed out by Mr. K. B. Patil, Additional Registrar of the Karnataka State Human Rights Commission (Retired Sessions Court Judge); In India, where any person has committed any grievous hurt to any person, i. e.
, has committed any offences as provided under the sections of Bhartiya Nyaya Sanhita (BNS) will be punished under for acts specified below: Section 103 deals with murder, this section states for punishments of life in prison or death as the penalty. It also implies that the wrongdoer could have to pay a fine. Section 111(2)(a) addresses organised criminal acts resulting in death. Section 113(2)(a) addresses terrorism resulting in death. Section 140(2) addresses kidnapping that is, abduction for murder or money. Section 147 addresses Treasonous acts against Indian government and etc these above sections are related to the aspects of death penalty in India. Here, The courts in India examine the issues pertaining to any of the aforementioned where the court examines the facts of the case, nature of the crime, intention of the crime, gravity and heinous nature of the crime.
Based on this as pointed out in the case of Bachan Singh Vs State of Punjab, the court also analyses the mitigating elements/factors such the accused's mental health, age, history, and regretfulness, which might result in a less sentence. As pointed out by Mr. K. B. Patil, Additional Registrar of the Karnataka State Human Rights Commission, When we look into the matter of “Nirbhaya Rape case”25 the court 24 United Nations Economic & Social Council (ECOSOC), https://ecosoc. un. org/en (last visited Jan. 23, 2025).
25 MUKESH KUMAR vs. UNION OF INDIA AND OTHERS - [2020] 1 S.C.R. 761
pronounced Death sentence to the offenders on September 13, 2013, as this case involved one of the most heinous crimes which India could have ever witnessed the facts are as while one constantly drove the bus, throwing one of the victims out of the moving bus, attempt to run over them, sharing booty and destroying the evidence, others took turn in committing rape or unnatural sex, while the act of abducting the victims by deceit, robbing, causing injuries to private parts by inserting iron-rod and cutting the small intestines etc. Every prisoner clearly shows an illicit intention between them to engage in such illegal activity; furthermore, these prisoners were not displaying any sense of compassion; rather, they were pleased with the crime they had committed.
26 The death sentence was passed by the Fast Track Courts, the judge commented byAdditional sessions judge Yogesh Khanna in the iconic Delhi gang-rape case. " Given the unmatched violence with which the victim was gang raped and killed, there should be perfect punishment in line with the rarest of rare category. All be given death. "27 This case was appealed to the Delhi High Court, The six-judge court after sufficient hearing and investigation reviewed the case, it maintained the decision. The convicts latter appealed to Supreme Court. The SC in this case, consider the following information to affirm the death sentence • Under medical inspection, the woman had serious bite marks on her intimate body regions. • Sharp components were pushed in such a horrible manner that the victim's intestinal surge.
• They pushed the girl and her companion out of the moving bus after the gang rape, and they were discovered to be in a terrible position. • To get away from the site, the offenders also attempted to run over the bus on the victim and her companion. Repeating that gang rape comes within the aggravating character of the crime, the Apex Court took into account the above stated circumstances. Moreover, the court noted that the mitigating and aggravating elements do not balance one other. The then Chief Justice, Dipak Mishra, said
26 Ibid
27 Death Sentence for All Four Convicts in Delhi Gang-Rape Case, Times of India, Jan. 23, 2025, retrieved Jan. 23, 2025, from http://articles.timesofindia.indiatimes.com/2013-09-13/india/42039872_1_advocate-v-kanandfour-convicts-delhi-high-court
that the crime was carried out with obvious cruelty. The court bench then maintained the death sentence for the prisoners as the commission of this crime comes under the concept "rarest of the rare" as not only disturbs the conscience of the public but also questions the safety rules accessible for children and women in this nation. Rajiv Gandhi Assignation: The court has taken a reformative steps in the matter of Prime Minister Rajiv Gandhi assignation28, judicial activism have performed few miracles in developing the jurisprudence of “Rarest of rare”. In this case, Thenmozhi Rajaratnam, often known as Dhanu, assassinated former Prime Minister of India by detonating explosives attached to her body while saluting Rajiv Gandhi at an electoral gathering.
Members of the terrorist organisation Liberation Tigers of Tamil Eelam (LTTE), from Sri Lanka advocating an independent Tamil state, carried out the murder. It was also believed to be retribution for Rajiv Gandhi's 1987 decision to send the Indian Peacekeeping Force (IPKF) to Sri Lanka to maintain peace, therefore triggering conflicts with the LTTE from his choice. Establishing a SIT to probe this, the Central Bureau of Investigation (CBI) Under the Terrorist and Disruptive Activities (Prevention) Act (TADA),
26 people in total were found guilty. TADA court sentenced every one of the 26 prisoners to
death in 1998. 29 Reviewing the convictions, the Supreme Court decided in 1999 to uphold the death sentence for only four people i. e. , Nalini, Murugan, Santha, and Perarivalan and commuted sentences for others to life imprisonment, and cleared several. Not every prisoner participated actively or directly in the murder. In the regime of Sonia Gandhi's, convicted Nalini's death sentence was changed to life in jail on intervention apparently for the benefit of Nalini's small child. along to this many of the prisoners showed excellent behaviour in jail during three decades of incarceration. 30 Article 142 of the Constitution was invoked by the Supreme Court in May 2022 to free prisoner A. G. Perarivalan The court pointed out that he had spent a lot of time in prison and underlined the Tamil Nadu government's pardon decision.
The Supreme Court gives the death penalty only in very unusual cases. Particularly those with peripheral participation, not all offenders fit the requirements for such a
28 STATE THROUGH SUPERINTENDENT OF POLICE, CBI/SIT ETC. vs. NALINI AND ORS -
1999 INSC 235
29 Digital Supreme Court Reports, https://digiscr.sci.gov.in/view_judgment?id=Mjc5ODE= (last visited Jan. 26, 2025). 30 Editor_4, As All Convicts in Rajiv Gandhi Assassination Case Walk Free, Read Why Supreme Court Ordered Their Release, SCC Times (Dec. 8, 2022), https://www.scconline.com/blog/post/2022/11/13/supreme-courtdirects-premature-release-of-all-convicts-in-rajiv-gandhi-assassination-case-legal-research-legal-news-updates/ (last visited Jan. 20, 2025).
penalty. Given their extended detention, the court took rehabilitation and reform under consideration as possibilities.
4.2.1 CRITICS WITH RESPECT TO THE DEATH PENALTY:
A well-known jurist Thorsten Sellin have pointed out that "Death penalty has failed as a
measure of social protection, so also as an instrument of retributive justice"31 Many critics on the other side argue that many states have mentioned and debated that Death sentence are cruel, degrading, and inhumane treatment that can be given to a criminal. Human rights experts, notably Juan E. Méndez, United Nations Special Rapporteur on Torture, have asked that the death penalty to be put under the ambit of international laws stating it as “torture. ” Later after many debates and discussions under international law it has been formally acknowledged as "torture".
In the Indian context, the social human rights critics have raised issues which takes on a unique dimension, many critics have not understood the main aspects to retain the death penalty in India, Yet, have critics with certain key view such as the psychological, physical, and ethical aspects which arises when a death sentence is passed by the court of law. The Critics argue that the "death row phenomenon" is the extreme physical and psychological suffering for the people who are awaiting for the execution to go through. Prolonged solitary confinement, anxiety induced by protracted delays, and the uncertainty of an exact date and aspects of death add to this traumatic situation. In India, where court delays are prevalent and jail conditions are generally bad, that's when the situation becomes more serious.
Years of mental suffering experienced by death-row prisoners are made worse by inadequate legal counsel, restricted access to mental health treatment, congested jail conditions, and so on. The psychological toll on convicts awaiting execution, along with the effect on their relatives, equivalent to torture and breaches restrictions against cruel and humiliating treatment. The death sentence should only be applied in the "rarest of rare"32 circumstances, the Supreme Court of India has acknowledged in some degree. But the institutional challenges and the intrinsic cruelty of Indian execution techniques call for further inspection of the practice. The primary manner Indians execute is hanging. Although intended to guarantee a quick death, it often results in protracted suffering and calls for questions about its compassion.
International protections support techniques that cause the "minimum possible suffering," but India's 31 N. V. Paranjape, Criminology and Penology 361 (19th ed. 2023), Allahabad: Central Law Publications.
32 Supra 2
reliance on hanging runs counter to these ideas. The act of execution itself, regardless of the manner, is considered by opponents as demeaning to the humanity of the sentenced person. The permanent aspect, without irreversibility of the death sentence begs further issues, especially in circumstances of judicial error. Globally, human rights organisations along with United Nations Human Rights Committee have classified practices like gas asphyxiation33 as only one of the extremely cruel and inhuman practices which despite these practices having a slow and reasonable pain death. India is here by still following the procedures of hanging is still seen to be practiced until 2020, which shows its symbolic and physical violence highlights the ethical and human rights issues related to the death sentence.
Human rights experts contend that death-row prisoners suffer protracted psychological trauma in addition to physical suffering, so rendering the death sentence as torture. The United Nations and other international bodies advocate for abolition, asserting that capital punishment undermines the global principle of the inalienable right to life. India's moral and constitutional dilemma arises from the contradiction between permitted murders and the right to life. The irreversibility of the death sentence leaves no way to correct judicial errors, thereby calling question on its legality in a modern legal system. From the above the problems/ critics can be divided into certain key aspects
1. The "death row phenomenon" in India is characterized by extreme physical and
psychological suffering, including prolonged confinement, anxiety, and uncertainty of death.
2. The primary method of execution in India is hanging, which often results in protracted
suffering, this type of execution is considered demeaning to the humanity of the sentenced person. Thus violating the Human Rights.
3. The aspects irreversibility of the death sentence leaves no way to correct judicial errors,
thereby calling question on its legality in a modern legal system and violation of stance of India in the International level and violation of International convention. As pointed out by Mr. A. Narayana Swamy, Former Member of Parliament, Former Social Justice and empowerment Minister of India and Former Prison Minister of Karnataka, and by Mr. Mohan Kumar, Deputy Superintendent of Police; In India the main reason of keeping the 33 An asphyxiant gas is one which either lowers or replaces the usual oxygen content in breathing air. Extended oxygen deprived air exposure will cause death by hypoxia, often known as suffocating.
aspects Death sentence is to bring in aspects to maintain morality and to maintain law and order in the country, also to develop a fear factor in the people to make sure that deter from heinous crime. We can see from the ancient time as advocated by eminent persons like Chanakya the aspects of Death penalty is pertained to promote justice and induce fear and make sure to deter the violation of the holy laws in the state. 34 Similar, When a legislation like Bhartiya Naya Samhita is unanimously approved by Parliament stating for death sentence, it indicates that it is written and passed with proper care; reason to support justice also making sure that India is still aligned with the Human rights. Honourable S. K.
Vantigodi, Member of the Human Rights Commission (Retired Sessions Court Judge) states that, In India the courts follow the principle of “Rarest of Rare” where only in circumstances of heinous crimes where the act of crime is beyond normal persons prudence then the courts to maintain the Morality; Law and Justice we have sentence the convicts the death sentence. To the above mentioned aspects of the issues which are alleged by the critics with respect to the violation of human rights in contexts of Death penalty has been detailed responded by Retired Sessions Court Judge Honourable Mr. K. B. Patil, Additional Registrar of the Karnataka State Human Rights Commission, to the above highlighted problems in the following: First issue which is raised is “death row phenomenon experience tremendous psychological and physical anguish.
Traumatic events include prolonged solitary imprisonment, anxiety brought on by delayed events, and the ambiguity of a precise date and elements of death. ” Mr. K. B. Patil Additional Registrar of the Karnataka State Human Rights Commission states that when a trial court in India sentences a convicted person to death, the Honourable High Court must initially approve the death sentence. Here the court uses the "Rarest of Rare" theory. Furthermore taken under consideration by the court are other crucial elements pertaining to the case, including the facts of the matter, the kind of the crime, the aim of the crime, the seriousness of the crime, and the heinous nature of the of the crime. The court then considers factors related to mitigating elements, such as the accused's mental health, age, history, and report.
Based on these factors, the court also along with the principle that “ "N" number of criminals can be excused, but not even one innocent shall be punished wrongfully,” the court decides whether to uphold the death penalty. If the accused did not directly or actively engage
34 Supra 15
in the crime, the court may modify the death sentence to life in prison. If the High Court authorises the death penalty, it will be appealed to the Supreme Court of India, which follows the same process. The court considers the case's facts, the nature of the crime, mitigating circumstances, and the court's ratio before deciding whether to authorise or lessen the convict's sentence. When the Supreme Court of India approves the death sentence, guilty Indians have the right to ask mercy from the President in the form of pardons, reprieves, remissions, or mitigated sentences pursuant under Article 72 of Indian Constitution.
This element thus shows India's respect to Part III Article 6 Clause 2 and Part III Article 6 Clause 4 of the International Covenant on Civil and Political Rights, so attesting to a worldwide dedication to human rights and so lowering the likelihood of errors in the application of the death sentence leading to violations of human rights. Thus, Mr. K. B Patil Additional Registrar of the Karnataka State Human Rights Commission, pointed out that the statements passed by the critics that “The death row convicts suffers mentally and physically. Tragedy includes protracted solitary confinement, anxiety from delayed occurrences, and the uncertainty of death dates and components.
” Is inappropriate and baseless as in India we follow the principle “ "N" number of criminals can be excused, but not even one innocent shall be punished wrongfully,” and Indias strong commitment to the Part III Article 6 Clause 2 and Part III Article 6 Clause 4 of the International Covenant on Civil and Political Rights, to mitigate any smallest of small mistake in take out a person’s life the country’s laws have provided for these procedures. Yes, this procedures are long and time taking; people along with convicts might lose faith in the law. The courts cannot apply speedy disposal aspects as it may lead to certain key errors which can some time also lead to irreversibility that are unacceptable in the Human rights aspects thus, India is showing key concern with the above procedures.
Yes we can see that the above procedures are delayed but are very much beneficial in the case of Rajiv Gandhi assassin case where the court reduce the death sentence of convict Nalini's to life in jail on intervention apparently for the benefit of Nalini's small kid, this due procedure is been established to promote their human rights and to uphold the principles of justice along with the principle “"N" number of criminals can be excused, but not even one innocent shall be punished wrongfully,”. This thus disproves the critics statement and shows the commitment to the Human rights. Supreme court also in the case of Shatrughan Chauhan v union of India35 mentioned that it had commuted two death 35 A. K. Singh & V. Joshi, Shatrughan Chauhan v. Union of India: Examining the Role of Supervening Factors in Commutation of Death Sentence, 1(1) IJLPP 97 (2014),
sentences on basis of insanity and thirteen death sentences which had cause of delay. The Court stated that it has done a great job by using a humane approach and acknowledging prisoners' and death row offenders' basic human rights. 36 This also aspects also invalidates the aspects of critics “The permanent aspect, without irreversibility of the death sentence begs further issues, especially in circumstances of judicial error. ” As we have seen in the case of Rajiv Gandhi assassination case that the courts have changes the sentence of Death penalty to life taking into certain key considerations and also making provisions for appeal make the above statement invalidated. The Second issue that are laid down by the critics are “Indians execute is hanging. Although intended to guarantee a quick death, it often results in protracted suffering and calls for questions about its compassion.
” Along to this they have also pointed out that during the process of executing the death penalty issued by the court the “prisoners are made worse by inadequate legal counsel, restricted access to mental health treatment, congested jail conditions, and so on. ”. To the above issues Honourable S. K. Vantigodi, Honourable Member of the Human Rights Commission (Retired High Court Judge); And Mr. Mohan Kumar, Deputy Superintendent of Police; have responded that India even during these crucial times also shows its aspects of commitment towards the International conventions that is the International Covenant on Civil and Political Rights. Whenever a court issues the execution of death penalty is done with utmost due care. “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
” To execute this there are certain key procedures that are followed: Before the death sentence is executed in India, certain steps are taken to guarantee respect to constitutional and human rights values and thus maintain the dignity of the criminal. Well in advance, the convict is informed prior of his/her day and time of execution, which lets them psychologically prepare and handle personal and legal affairs like creating a will or saying farewell to loved ones. In line with the right to freedom of religion, this early notification also offers a chance to pursue spiritual comfort or carry out religious ceremonies. The convict's physical fitness for execution is confirmed by a medical examination as hanging https://docs. manupatra. in/newsline/articles/Upload/2042BC92-A423-484E-AFF1-FB53170BF425. 1h__constitution. pdf.
36 supra-31
someone in bad health or experiencing extreme mental agony is considered cruel thus their death sentence is been postponed. Following the compassionate treatment concept, these checks are very essential to make sure the procedure does not cause needless pain. The prison officials also let the inmate see his family one final time. This action is a humanitarian one as well as a respect of the convict's right to preserve family ties even in their last hours. The execution procedure is carried out with great respect to the personal dignity and privacy. According to the prison handbook, the execution is carried out away from public view to save the criminal and their family further suffering. Respecting the cultural and religious customs of the person, the convict's corpse usually passes to the family for final rites and burial or cremation after the hanging.
Rarely in circumstances where security issues arise, the state could organise differently but still guarantee the performance of the ceremonies in a rightful manner. Three judges, the District Magistrate, and prison authorities among other officials show up at the location of execution on the execution day. Managing the procedure to guarantee legal compliance, that no unnecessary pain is caused is to be made sure by the District Magistrate. Their presence signifies the state's responsibility in guaranteeing that the execution follows precisely legal and procedural guidelines. The authorities also stay at the location until the attending physician deems the person dead. The doctor's certification is very important as it guarantees the end of life and avoids any procedural errors or uncertainty.
37 The hanging rope used during execution is a unique kind designed especially to minimise suffering and guarantee a quick and compassionate death. Beforehand, the rope is extensively examined to guarantee it satisfies required criteria. This include making sure the knot is tightened properly, the drop's length38 fits the convict's weight and height, and that the quality and flexibility of the rope reduce the likelihood of protracted pain. The scientific accuracy in building the hanging equipment highlights India's attempt to match the operation with humanitarian concerns. These actions show India's will to keep the values of justice and humanity alive even in situations with the death sentence. They show that while India keeps the death sentence for the
37 Law Comm’n of India & N.M. Ghatate, Consultation Paper on Mode of Execution of Death Sentence and
Incidental Matters, Consultation Paper (2021), https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/01/2023010583-1.pdf.
38 Law Comm’n of India & N.M. Ghatate, Consultation Paper on Mode of Execution of Death Sentence and
Incidental Matters, Consultation Paper (2021), https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/01/2023010583-1.pdf.page number 25 - The "drop" is the length of the rope from a point on the rope opposite the angle of the lower jaw of the criminal as he stands on the scaffold, to the point where the rope is embraced in the noose after allowing for the construction of the neck that takes place in hanging.
"rarest of rare" circumstances, it aims to guarantee that the procedure is neither arbitrary nor harsh, therefore honouring the dignity of the person in compliance with constitutional mandates and international human rights commitments. Thus, this above rejects claims of "Hanging process followed in India is violation of Human Rights and violation of International conventions" since above elements invalidate. However, the following shows Indians' dedication to international accords on human rights and their own rights. Thus we can state that India has maintained the death sentence in line with Article 6 clauses 2 and 4 of the International Covenant on Civil and Political Rights (ICCPR), a signatory to. Under present legislation, Article 6(2) allows the death sentence for the most heinous offences, under which case a competent court's final decision counts.
Article 6(4) lets persons condemned to death seek pardon or commuting of their term. India follows these requirements by means of legal and constitutional protections, therefore guaranteeing that the death sentence is used only in the "rarest of rare" circumstances after thorough investigation at many levels of courts. With required death sentence confirmation by a High Court and thorough review systems via appeals to the Supreme Court and clemency applications to the President, the Indian court stresses procedural protections. Before deciding the death sentence, cases like Bachan Singh v. State of Punjab established mitigating factors like mental health, age, and reformation potential as fundamental concerns. The Indian legal system aims to strike a mix between human dignity and the deterrent and justice features of the penalty.
Measures highlighting India's adherence to ICCPR obligations include guarantees of a humane mode of execution, the convict's access to legal counsel, and chances for rehabilitation. But questions about protracted trials and the death sentence's irreversibility point up areas needing procedural change.
4.3 THE RELAVENCE OF DOCTRINE OF “RAREST OF RARE”:
In India there is no legislative enactment where it can define what amounts to “Rarest of Rare” while deciding a capital punishment. In India, the Judiciary works to protect democracy. The court can choose the sentence for someone found guilty, but it is also responsible for deciding if the death penalty will be given, but it depended upon on case to case based upon the heinous nature of the crime; brutality of the crime; mitigating elements/factors such the accused's mental health, age, history, and regretfulness, which might result in deciding the whether a particular case facts fall under the aspects of “Rarest of rare” or not and when the court sees that when no other option is left the convict are sentenced death penalty. Certain key aspects of the critics are as in the below:
1. Many critics have states that when the courts decide to sentence certain person for death
penalty, the theory/ doctrine does not have a consistent, unambiguous definition of what qualifies as "rarest of rare."
2. A major human rights issue is the irrevocable character of the death sentence, which
increases the possibility of erroneous convictions. Execution of innocent people may result from judicial mistakes, misleading evidence, and systematic defects.
3. Article 6 - The International Covenant on Civil and Political Rights (ICCPR) forbids
the death sentence, it must be awarded only for heinous offences. Critics states that India's doctrine used for death sentence application, falls short of these changing worldwide norms that are been accepted by India in the world convention.
4.3.1 The Rarest of Rare Doctrine in Death Penalty Cases and its unambiguous definition:
Yes, In India we have no statutory definition as to what amounts to or what heinous offences fall under the aspect of “Rarest of rare”, But it is shall not mean that judicial activism has failed to uphold the Human rights. In various cases courts have given proper justifications as to under which all circumstances the courts have arrived to this aspects of the death penalty, thus it has clearly reduces the nature of ambiguity in application of the Doctrine. As we can see in the below: The principles set out in Bachchan Singh v. State of Punjab39 and Macchi Singh v. State of Punjab40 help to shape India's death sentence implementation policy. These examples underline the idea of granting the death penalty only in the "rarest of rare" situations, considering the kind and form of the crime, the purpose, and the personal situation of the accused.
Emphasising the aggravating and mitigating elements of the crime, the Supreme Court decided in Bachchan Singh that the death sentence should only be applied where the option of life in prison is clearly closed out. Macchi Singh, where the Court delineated five criteria to determine whether a case falls within "rarest of rare," • The method of the crime: The violence, forethought, and effects on society of the crime • The intention is: Whether the act was done for another motive or in retribution
39 Supra 2
40 1983 SCC (3) 470
The crime has an anti-social character: Whether the crime been carried out in a manner endangering society? • The degree of the offence: The scope of the offence and the count of the victims • The victim had a personality: The victim's circumstances and background41 This has helped to further clarify this theory. The instances cited show how these ideas could be used. In Surrender Pal Shiv Balakal v. State of Gujarat42 in this case the Court decided on life in prison instead of the death sentence after weighing mitigating circumstances like the accused's lack of a criminal record and socioeconomic background. Likewise, noting the accused's illiteracy and lack of emotional control as mitigating circumstances, the Supreme Court reversed the High Court's ruling of applying the death sentence in Absar Alam v. State of Bihar.
On the other hand, in the Ajmal Kasab case43, the death sentence was justified by the seriousness, premeditation, and terrorist purpose behind the act, therefore these cases have led to the shaping the doctrine of "rarest of rare" in India also showing its dedication to the Human Rights. Death Penalty and Judicial Errors: Although Mr Mohan Kumar, Deputy Superintendent of Police, points out that courts have in some cases not effectively applied this doctrine, this does not mean that this has ever resulted in judicial error since, when few trial courts fail to effectively apply the above "Rarest of rare doctrine," the High court and Supreme court has upon due diligence tried to mitigate the errors that have been caused by the Trial court.
This approach has very minimal room for judicial mistakes, as witnessed in the instance of Rajiv Gandhi's murder case, Ms Nalini received an exemption from the Death sentence and was sentenced life imprisonment considering her child's wellbeing. The convict can file an application to the President for to grant them mercy from the death sentence so we can see that there is no gap for errors or arbitrary nature to happen in this doctrine and thus we can state that in India there is no misuse of the doctrine of "Rarest of rare". Thus When a court has awarded death penalty It doesn’t amount to human rights violation as it is been done in the interest of protecting justice in the country.
41 1983 SCC (3) 470
42 2005 (3) SCC 127
43 Mohammed Ajmal Mohammad Amir Kasab Vs. State Of Maharashtra - [2012] 8 S.C.R. 295
4.3.2 India’s Doctrine And It International Accords:
As stated by Honourable S. K. Vantigodi, Honourable Member of the Human Rights Commission the "rarest of rare" principle, India's doctrine for the application of the death sentence fully conforms with international norms, including Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which mandates that the death sentence be awarded only for the most terrible crimes and under strict procedural safeguards. Critics who believe that India's method doesn't align with global standards has misunderstand the reference and decision-making power that are part of the Indian court system. Its been cleary established in Bachchan Singh v. State of Punjab and subsequently revised in Macchi Singh v. State of Punjab, the "rarest of rare" theory shows India's will to impose the death sentence cautiously and judiciously.
The doctrine strikes a balance between aggravating and mitigating factors to guarantee that the death sentence is applied only when life in prison becomes inadequate. The standards set in Macchi Singh, like the seriousness of the crime, its effect on society, the motive behind the conduct, and the circumstances of the victim, highlight the exacting judicial procedure that stops unfair or excessive application of the death sentence. Furthermore, Surrender Pal Shiv Balaka v. Gujarat and Absar Alam v. State of Bihar clearly show, India's court has shown a progressive attitude by examining the socioeconomic background, emotional condition, and absence of criminal past of the accused. This is in line with the ICCPR's principle and guarantees that human rights are maintained by reflecting the focus on rehabilitation over vengeance.
Although some critics point to incidents like Rajiv Gandhi's murder case where trial courts could have misused the concept, India's appellate system especially the High Courts and the Supreme Court has often addressed such mistakes. This is evidenced by the remission of sentences in such cases. Moreover, the clause allowing mercy petitions to the President under Articles 72 of the Constitution guarantees an extra degree of examination and gives the offender a chance for pardon based on humanitarian considerations. This multi-tiered structure guarantees no arbitrariness or death sentence abuse, therefore supporting India's adherence to Article 6 of the ICCPR. For Ms. Nalini, for example, her death sentence was reduced to life in prison given her child's wellbeing, therefore underscoring the compassionate application of justice.
India's death sentence jurisprudence demonstrates a calculated strategy that follows both local legal principles and international commitments rather than violating human rights or international standards. India's attitude is firmly based on making sure the death sentence is
used only when absolutely required and in a way compatible with the rule of law and human rights safeguards, while the worldwide movement towards abolition of the death sentence is expanding. Therefore, the accusations of non-compliance with global standards are baseless, and India's "Rarest of rare" philosophy attests to a fair and equitable justice delivery system.
4.4 INDIA; MIDDLE EAST; COMMON LAW COUNTRIES:
Few critics state that, Indian Death penalty doctrine is similar to that of the Middle east nations which violate the human rights, India has to learn and enact laws with respect to death penalty in the similar way as it is done in the common law countries.
A. MIDDLE EAST COUNTRIES AND SAUDI ARABIA:
Despite growing worldwide Criticism and concerns about abuses of human rights, some Middle Eastern nations, including Saudi Arabia has defend the death sentence. Citing its basis in Islamic Shariah law, Saudi Arabia especially supports the death sentence as a way of preserving justice, social order, and deterrent. With executions done by means of beheading, firing squads, and public displays of the dead corpse in very heinous instances, the monarchy imposed death punishment for crimes including murder, rape, drug trafficking, apostasy, and terrorism. Often carried out in specified squares, public executions are justified as a deterrence against crime. Human rights-wise, the death sentence used in Saudi Arabia raises serious questions.
Critics contend that it violates the right to life, a basic principle enshrined in Article 3 of the Universal Declaration of Human Rights ( UDHR) and Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which promotes the abolition of the death sentence except from the most serious crimes under strict procedural safeguards. Saudi Arabia has not approved the ICCPR, nevertheless, showing its doubts about embracing global standards that would contradict Shariah rules. Particularly public beheadings and crucifixion-style demonstrations, the techniques of execution are strongly attacked as brutal and demeaning, therefore breaching the dignity of people, a fundamental value under international human rights systems. Furthermore, Saudi Arabia's court system usually lags behind that of other countries.
Reports from groups like Human Rights Watch and Amnesty International expose problems like coerced confessions, inadequate legal counsel, and few appeal chances. These actions violate basic human rights protected by international law by thereby compromising the right to a fair trial and protection
against arbitrary imprisonment. 44 Further underlining systematic inequalities are the unequal implementation of the death sentence to vulnerable groups like women, foreign nationals, and underprivileged communities. Many times facing language and legal obstacles, foreign workers are deprived of a reasonable defence. Public executions can spark questions about the psychological effects on viewers including children as well as the acceptance of violence in society. Although Saudi Arabia has declared changes, including a ban on executions for certain offences committed by juveniles, there still are major gaps. Critics underline that the punishing strategy violates international demands for abolition and the proportionality principle especially for non-violent crimes including drug-related offences.
The worldwide human rights community keeps urging Saudi Arabia and other Middle Eastern nations to match their policies with changing international norms by restricting the application of the death sentence to the most serious crimes and guaranteeing strict procedural safeguards, if not totally abolition of it.
B. COMMON LAW COUNTRIES – AUSTRALIA; UNITED KINGDOM; NEW
ZEALAND:
Particularly in countries like UK45, Australia and New Zealand the death sentence has been abolished for strong legal, moral, and factual reasons connected to the ideas of human rights and dignity. Fundamentally, the case for abolition acknowledges that the most basic of all human rights that of life forms the basis upon which all other rights are developed. This right is said to be inalienable and non-derogable, hence it cannot be restricted even in very trying conditions like public crises or war. Directly undermining the validity of the death sentence, international treaties as the European Convention on Human Rights (ECHR) and the Second Optional Protocol have codified the right to life and forbidden brutal, inhumane, and humiliating punishment. The realisation of human beings' intrinsic dignity is a fundamental justification for abolition.
Considered as a behaviour violating basic dignity, the death sentence reduces people to objects of state-sponsored violence. Furthermore underlined by international organisations such as the United Nations and the European Court of Human Rights are the fact that the death sentence is incompatible with contemporary norms of human rights. The moral defensibility of both the penalty and the procedures surrounding it such as the mental suffering 44 S. M. Al-Subaie, The Right to a Fair Trial Under Saudi Law of Criminal Procedure: A Human Rights Critique (Doctoral dissertation, 2013). 45 Human Rights and the Mandatory Death Penalty in the Privy Council, 61(3) Cambridge L. J. 505, 505-08 (2002).
suffered by individuals on death row and the secrecy usually connected with executions is further emphasised by their inhumanity. The idea that the death sentence is more less efficient to deterrent crime than life in prison is not well supported. Studies have repeatedly shown that there is no appreciable correlation between the death sentence's existence or absence and crime rates. This undercuts one of the conventional justifications for its continuation and refocuses attention towards other penalties, such as life in prison without parole, which may guarantee public safety without violating basic human rights. Another important problem with the death sentence is its obligatory application in certain countries. Historically, courts were sometimes obliged to punish certain offences death-wise without regard for personal circumstances or mitigating circumstances.
This inflexible approach neglected to consider the many degrees of guilt and human mistake, including erroneous convictions. Inspired by human rights ideas, many nations' legal systems increasingly stress judicial discretion and proportionality in sentencing, thereby ensuring that penalties are fit for the seriousness of the offence and the offender's situation. This change recognises that regardless of their motive, mental condition, or behaviour, punishing all criminals with the same seriousness does not fulfil justice. The direction towards abolition also reflects changing society ideals and the development of democratic regimes. Growing public understanding of human rights values and acceptance of them as well as international pressure to match progressive criteria of justice helped nations like the UK eliminate the death sentence in part.
46 Further solidifying this dedication in Europe were the inclusion of documents like Protocol 6 and Protocol 13 to the ECHR, which exclude the death sentence in all situations. At last, the abolitionist stance shows a forward-looking attitude to criminal justice. Punishment is considered more and more as a chance for rehabilitation and reintegration into society than as retributive. A legal system that gives those who have been found guilty an opportunity for rehabilitation and good contribution to society shows a more reasonable and compassionate approach. On the other hand, the finality of the death sentence denies people the chance for atonement and removes any potential of rehabilitation, therefore violating human dignity and justice47. The elimination of the death sentence marks a confluence of moral, legal, and practical justifications.
It reflects the idea that, independent of the crime done, the state should
46 Supra 45
47 Titus Corlățean, Abolishment of the Death Penalty in Europe: Study Case—Belarus, 7(2) J. Libertății de Conștiință 405, 406-16 (2019).
not see life as a kind of punishment. By doing this, one not only preserves the dignity of life but also creates a model for a judicial system based on fairness, humanism, and the advancement of basic human rights.
4.5 IS INDIA READY TO ABOLISH DEATH PEANLTY:
India is on a cross road, It is to be noted that in India Death penalty is not a mandatory aspect, the courts analyse the death penalty based upon the aspect of the doctrine of “Rarest of Rare”. We have seen in the ancient Rig Veda under the chapter 1. 25 and 2. 27–3048 that gives effect to the reformation nature when a person has been guilty and shows the aspects of regretful; changes his nature; doesn’t repeat the offence lord Varuna shall forgive him for the mistakes he has done. In the same aspects when any person does any heinous crime which violates the holy law the same ancient India in the epic of Mahabharata has stated that such persons shall have to be punished or killed to uphold the “DHARMA”. Similarly, the modern India is following the similar principles which are been described in the ancient times.
First the convicts are given an opportunity to change or show the aspects of regretfulness; if reformation is possible the courts in case where the nature of the crime is against the public law also have given a lesser punishment. In cases where the court is having to encounter any person who is showing no regret; no guilty of the offence; based on the other mitigating factors the court can decide to sentence Death penalty. Which is the later has to be accepted by the High court then appeal option is made available to the Supreme court. Additionally to maintain sanction along with reducing the arbitrariness’ and judicial errors are all curtailed. As we saw in the above critics that Indian Capital punishment are very cruel against humanity and it is almost Pari similar to the procedure as it is been established in the Middle eastern countries.
It is to be noted that both are not the same, In India we have established the doctrine of “Rarest of Rare” where the courts based on Nature of the crime; facts of the crime; other mitigating factors; heinous nature; is the crime anti public are all taken into consideration. If only in cases where the court has no other better option then passing of Capital punishment, it is not been enforced. To add the same has to be approved by the apex courts thus reducing the judicial error. In middle eastern countries the capital punishment is based upon by the Sharia law, and they
48 Supra 1
imposed death punishment for crimes such as murder, rape, drug trafficking, apostasy, and terrorism in general to every person who indulges in the above said act they are irrespectively sentenced to death. Here the only the facts of the case is taken into consideration; the courts doesn’t consider the aspects of nature of the crime or mitigating factors. As pointed out by Whereas in India we can see there is a at most care and due diligence is observed by the courts along with other key due procedures only if they fall under the aspects of “Rarest of Rare” then only the capital punishment is been passed, thus Indian jurisprudence of the capital punishment is way different than that of the Middle eastern countries. On the other side few organisation state that India also should abolish capital punishment similar as implemented by Europe, UK49, Australia and New Zealand.
These nations, as members of the second optional protocol, have maintained that death sentence has no place in the contemporary society. They supported for total prohibition of death sentence to improve their commitment to universal human rights. These nations claim that their studies have repeatedly shown that the existence or absence of the death sentence has no appreciable effect on the crime rates in their nation; hence, they argue that this is the most rigid approach overlooked to take into account the several degrees of guilt and human error, including erroneous convictions. Considered more and more as a means of rehabilitation and reintegration into society than as retributive, punishment is seen as the finality of the death sentence deprives individuals of forgiveness opportunities and eliminates any possibility for rehabilitation, therefore breaching human dignity and justice.
First of all, India is not a signatory to the second optional protocol, which aims to totally prohibit the death sentence. India follows the "Rarest of Rare" doctrine based on which the death sentence is sentenced only for the persons who have committed most heinous crimes beyond a normal man’s prudence. India is a signatory for International Covenant on Civil and Political Rights50, which merely states that "sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time. " Many law enforcement personnel answered the questioner saying, "due to the existence of the death sentence crimes to major extent is been controlled. " If not it would be chaos in the 49 Human Rights and the Mandatory Death Penalty in the Privy Council, 61(3) Cambridge L. J. 505, 505-08 (2002). 50 International Covenant on Civil and Political Rights, Office of the U.
N. High Comm’r for Hum. Rts. (OHCHR), retrieved Jan. 25, 2025, from https://www. ohchr. org/en/instruments-mechanisms/instruments/internationalcovenant-civil-and-political-rights.
country and there would be no proper justification given to the Justice. Therefore, in India we have a very well-developed due process that is unlike the European countries. India from ancient times given an opportunity for reformation only in cases when the court finds no other room than the death sentence; otherwise, the convicts are sentenced capital punishment to uphold the justice. Therefore, these elements neither in internal nor international spheres infringe Human rights laws. Mr. K. B. Patil, Additional Registrar of the Karnataka State Human Rights Commission (Retired Sessions Court Judge), and Mr.
Mohan Kumar, Deputy Superintendent of Police said that in India is on a cross road where we cannot totally ban/ abolish death sentence; it is not a good sign for the justice neither we shall not sentence death sentence for general cases only shall be sentenced in "Rarest of rare" cases only. India is in a unique atmosphere all around