Ravi Geela

02 Mar, 2025

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Capital Punishment: Law or Morality which way to go

Introduction

Capital punishment, or the death penalty, has been one of the most debated legal and moral issues in India. On one side, the law upholds capital punishment for heinous crimes such as terrorism, rape, and murder, arguing that it serves justice. On the other side, human rights activists claim that the death penalty violates the fundamental right to life and risks the execution of innocent individuals.

In India, capital punishment has been retained but is only applied in the "rarest of rare" cases, a doctrine established by the Supreme Court. However, there is no clear consensus on whether India should continue this practice or move towards abolition.

This article will examine capital punishment from an Indian perspective, analyzing its legal, moral, and social dimensions, with a focus on court judgments, public opinion, and alternative approaches to justice.

 History of Capital Punishment in India

Capital punishment has been practiced in India since ancient times, evolving from harsh medieval executions to the modern-day judicial process.

Ancient & Medieval India

  • Manusmriti & Arthashastra supported the death penalty for crimes like murder, treason, and robbery.
  • Kings often publicly executed criminals to instill fear.
  • Methods included hanging, beheading, and burning.

British Colonial Rule (1857-1947)

  • The British introduced formal legal codes with capital punishment.
  • Thousands of freedom fighters, including Bhagat Singh and Udham Singh, were executed under British law.

Post-Independence India (1947-Present)

  • India retained capital punishment but made it rare.
  • Supreme Court introduced the "rarest of rare" doctrine in 1980.
  • Several mercy petitions were granted, but some high-profile executions have occurred.

 Understanding Capital Punishment

Definition

Capital punishment is the state-sanctioned execution of a person convicted of a capital offense.

Common Execution Methods in India

  • Hanging (Primary method)
  • Firing Squad (Rare, used in military cases)

Crimes That Warrant Capital Punishment in India

  • Murder (IPC Section 302)
  • Terrorism (UAPA, POTA)
  • Rape of a Minor (POCSO Act, 2018 Amendment)
  • Drug Trafficking (NDPS Act, in extreme cases)

 Legal Framework of the Death Penalty in India

Indian Penal Code (IPC) Provisions

  • Section 121 – Death for waging war against the state.
  • Section 302 – Death for murder.
  • Section 376A – Death for rape leading to victim’s death.

Criminal Procedure Code (CrPC)

  • Allows a convict to appeal to the High Court and Supreme Court.
  • Mercy petitions can be filed with the President of India.

Mercy Petitions & Presidential Powers

  • The President can grant clemency under Article 72.
  • Several mercy petitions have been rejected (e.g., Afzal Guru, Yakub Memon).

 Landmark Supreme Court Judgments on Capital Punishment

Bachan Singh v. State of Punjab (1980)

  • Established the "rarest of rare" doctrine.
  • Death penalty should be given only when life imprisonment is inadequate.

Dhananjoy Chatterjee v. State of West Bengal (1994)

  • First judicial execution in independent India for rape and murder.

Nirbhaya Case (2012)

  • Four men convicted of brutal gang rape and murder were executed in 2020.
  • Led to stronger anti-rape laws in India.

Yakub Memon Case (1993 Mumbai Blasts)

  • First terrorist to be executed in India under anti-terror laws.

 Moral & Ethical Arguments Against Capital Punishment

  1. Right to Life & Human Dignity – Execution violates fundamental rights.
  1. Risk of Wrongful Conviction – Judicial errors can lead to innocent lives lost.
  1. No Proven Deterrence – Studies show no direct link between death penalty and crime reduction.
  1. Cruel & Inhumane – Hanging is painful and outdated.
  1. International Pressure – India faces pressure to abolish capital punishment.

 Moral & Ethical Arguments in Favor of Capital Punishment

  1. Retribution ("An Eye for an Eye") – Justice demands the harshest punishment for extreme crimes.
  1. Deterrence – Fear of execution can prevent crimes.
  1. Justice for Victims' Families – Provides closure to victims' families.
  1. National Security – Needed for terrorists and dangerous criminals.

 Public Opinion on Capital Punishment in India

  • 70% of Indians support the death penalty for heinous crimes.
  • Surveys show strong public demand for death penalty in rape cases.
  • Political parties often use the death penalty debate for votes.

 Global Trends: How the World Views Capital Punishment

Countries That Have Abolished the Death Penalty

Many countries have abolished capital punishment, either legally (de jure) or in practice (de facto). These nations believe the death penalty is a violation of human rights, particularly the right to life. The following countries have abolished capital punishment entirely:

  • United Kingdom – Last execution was in 1964; formally abolished in 1969.
  • Canada – Abolished the death penalty for civilian crimes in 1976 and for all crimes in 1998.
  • Australia – Abolished in 1985; the last execution occurred in 1967.
  • Most of Europe – The European Union prohibits capital punishment under the European Convention on Human Rights.

Other abolitionist countries include Argentina, South Africa, and Mexico. Even in nations where capital punishment still exists in law, it is rarely used, with sentences often commuted to life imprisonment.

Countries That Retain Capital Punishment

Despite growing global opposition, some countries retain and actively use capital punishment for serious crimes such as murder, terrorism, and drug trafficking. These countries include:

  • United States – Retains the death penalty in some states; the method of execution varies, with lethal injection being the most common.
  • China – Executes thousands annually, mainly for drug-related crimes and corruption.
  • India – Uses the death penalty sparingly, following the "rarest of rare" doctrine.
  • Saudi Arabia – Implements capital punishment for murder, rape, and religious offenses; methods include beheading.

Other retentionist countries include Iran, Pakistan, North Korea, and Indonesia.

Changing Global Attitudes

There is a growing international trend toward abolishing or restricting the use of the death penalty:

  • United Nations (UN) – Regularly calls for a global moratorium on executions.
  • Amnesty International & Human Rights Watch – Advocate for the worldwide abolition of capital punishment.
  • International Court of Justice (ICJ) – Opposes capital punishment in cases involving human rights violations.

With more nations moving toward abolition, India faces increasing international pressure to reconsider its stance on capital punishment.

 Alternative Punishments: Life Imprisonment vs. Death Sentence

As the debate over capital punishment continues, many argue that life imprisonment without parole (LWOP) is a better alternative to the death penalty.

Arguments in Favor of Life Imprisonment Without Parole

  1. Prevents Wrongful Executions – If a person is wrongly convicted, they can be exonerated later.
  1. More Humane Punishment – Life imprisonment is severe but does not take away the fundamental right to life.
  1. Economically Viable – Death penalty trials, appeals, and execution costs are significantly higher than life imprisonment.
  1. Encourages Rehabilitation – Some prisoners may reform and contribute positively to society.

Arguments in Favor of the Death Penalty

  1. Deterrence Against Heinous Crimes – Fear of execution may prevent violent crimes.
  1. Justice for Victims & Families – Ensures that criminals are permanently removed from society.
  1. No Risk of Re-offending – Life imprisonment still carries risks of escape or parole.

Which is a Better Option for India?

India still retains capital punishment but uses it sparingly. Some legal experts believe that LWOP should replace the death penalty for most crimes, except terrorism and mass murders, where capital punishment serves a greater deterrent purpose.

 Case Studies: Wrongful Executions & Judicial Errors in India

One of the strongest arguments against capital punishment is the risk of wrongful execution. India has had multiple cases where convictions were later overturned due to lack of evidence or judicial errors.

Case 1: Shankar K. v. State of Maharashtra – Wrongful Conviction

  • Facts: Shankar K. was sentenced to death for a murder case.
  • Error: New evidence emerged proving his innocence.
  • Outcome: His sentence was commuted, but he had already spent years on death row.

Case 2: Surinder Koli (Nithari Case, 2006) – Sentenced to Death, Later Commuted

  • Facts: Koli was convicted in a series of child murders in Noida.
  • Error: The case lacked proper forensic evidence, and Koli claimed his confession was obtained under coercion.
  • Outcome: The Supreme Court stayed his execution, leading to a debate on the fairness of capital punishment in India.

What Can Be Learned?

  • India lacks a robust review system to prevent wrongful convictions.
  • The poor often do not get effective legal representation.
  • Judicial errors in capital cases can lead to irreversible consequences.

 Religious and Philosophical Views on the Death Penalty

Different religions and philosophies take varied stances on capital punishment.

Religious Views

  • Hinduism & Buddhism – Promote non-violence and mercy, opposing the death penalty.
  • Islam & Christianity – Allow capital punishment for extreme crimes but emphasize forgiveness and mercy.
  • Sikhism & Jainism – Strongly oppose any form of killing, including capital punishment.

Philosophical Perspectives

  • Retributivism – Supports the death penalty as just punishment for severe crimes.
  • Utilitarianism – Opposes capital punishment, arguing it does not benefit society.
  • Human Rights Perspective – Calls for abolition as execution violates the right to life.

 Role of Media in Shaping the Death Penalty Debate

The media plays a crucial role in influencing public opinion on capital punishment.

Positive Role of Media

  • Raises Awareness – Highlights issues of wrongful convictions.
  • Brings Justice – Public pressure led to quick sentencing in cases like Nirbhaya (2012).

Negative Role of Media

  • Sensationalism – Creates a mob mentality demanding executions.
  • Bias & Misreporting – Can influence judicial decisions unfairly.

Impact of Social Media

  • Hashtags like #HangTheRapists create public pressure on courts.
  • Online activism has made discussions on the death penalty more widespread.

 The Way Forward: Should India Retain or Abolish the Death Penalty?

India is at a crossroads, with strong arguments on both sides.

Arguments for Retention

  • Acts as a deterrent for terrorism and heinous crimes.
  • Public opinion still favors capital punishment for rape and murder.

Arguments for Abolition

  • Risk of wrongful execution remains high.
  • International pressure for abolition is increasing.

Proposed Reforms

  1. Stronger Judicial Safeguards – Ensure death sentences are error-proof.
  1. Better Legal Representation – Ensure that poor convicts receive fair trials.
  1. Move Toward Abolition – Gradually phase out capital punishment and replace it with LWOP.

 Conclusion

The death penalty remains a divisive issue in India. While some believe it is necessary for justice and deterrence, others argue it violates human rights and risks wrongful executions.

India must strike a balance by limiting capital punishment to the rarest cases while ensuring justice is delivered fairly and efficiently.

 FAQs

1. Is the death penalty legal in India?

Yes, but it is only given in the "rarest of rare" cases as per the Supreme Court.

2. Does capital punishment reduce crime?

There is no conclusive evidence that the death penalty deters crime more effectively than life imprisonment.

3. Who was the last person executed in India?

The Nirbhaya case convicts were hanged in 2020 for gang rape and murder.

4. Can the President pardon a death sentence?

Yes, under Article 72 of the Constitution, the President can grant mercy petitions.