INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 - 6433) - VOLUME 2 ISSUE I (May 2021) - INTERNATIONAL JOURNAL FOR ...
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INTERNATIONAL
JOURNAL FOR LEGAL
RESEARCH & ANALYSIS
(ISSN 2582 – 6433)
VOLUME 2 ISSUE I
(May 2021)
Email –
editor@ijlra.com
Website – www.ijlra.com
5656565656565
1
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
DISCLAIMER
No part of this publication may be reproduced or copied in any form by any means
without prior written permission of Managing Editor of IJLRA. The views
expressed in this publication are purely personal opinions of the authors and do not
reflect the views of the Editorial Team of IJLRA.
Though every effort has been made to ensure that the information in Volume I
Issue X is accurate and appropriately cited/referenced, neither the Editorial Board
nor IJLRA shall be held liable or responsible in any manner whatsever for any
consequences for any action taken by anyone on the basis of information in the
Journal.
Copyright © International Journal for Legal Research & Analysis
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Volume 2 Issue I| May 2021 ISSN: 2582-6433
EDITORIAL TEAM
EDITORS
Ms. Ezhiloviya S.P.
Nalsar Passout
Ms. Priya Singh
West Bengal National University of Juridical Science
Mr. Ritesh Kumar
Nalsar Passout
Mrs. Pooja Kothari
Practicing Advocate
Dr. Shweta Dhand
Assistant Professor
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ABOUT US
INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS
ISSN
2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal,
Published online, that seeks to provide an interactive platform for the
publication of Short Articles, Long Articles, Book Review, Case Comments,
Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim
is to upgrade the level of interaction and discourse about contemporary issues
of law. We are eager to become a highly cited academic publication, through
quality contributions from students, academics, professionals from the
industry, the bar and the bench. INTERNATIONAL JOURNAL FOR
LEGAL RESEARCH & ANALYSIS ISSN
2582-6433 welcomes contributions from all legal branches, as long as the
work is original, unpublished and is in consonance with the submission
guidelines.
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Capital Punishment- A Necessary Evil or Outdated Cruelty?
By : Aman Sanghavi
INTRODUCTION
“May the Lord have mercy upon your soul”, these infamous words are the last thing a person
hears before being executed. Many prisoners on death row fight their sentence until the very end
to avoid hearing those words. They are strapped to an electric chair or a gurney and injected in a
dark, isolated room, alone, while others witness this through a viewing room. Sometimes
prisoners, cry and plead the Lord for forgiveness but often they leave the death chamber the same
way they enter, dead silent.
Capital Punishment, or also known as the death penalty, is the ultimate sentence than can be
given to a defendant. There is no punishment more severe than death itself. It is a process by
which the state executes a person after being sentenced to death in a court of law as a punishment
for a crime. Such crimes are called capital crimes or capital offences. There is a difference
between capital punishment and extrajudicial executions, the latter being carried out without the
legal due process that a person is entitled to. The death sentence is an issue of great importance
and controversy. Many arguments can be made for and against the death penalty. The concept of
sentencing someone to death is considered by some to be an old idea that went out of fashion
ages ago. Numerous developed and developing countries have abolished the death penalty either
in law or practice. India still retains the death penalty currently.
If one sees the death penalty as cruel and unusual, or a just sentence in the face of an unspeakable
crime, many people endorse the death penalty without understanding or knowing how it is
executed. The death penalty is the most extreme punishment that can be pronounced, and one
that cannot be corrected once administered. No apology or monetary compensation will
restore life or comfort families.
Diving into the discussions held by “British India’s Legislative Assembly” demonstrates that no
issue regarding the death penalty was raised in the Assembly until 1931. A member of
Parliament from Bihar wished to introduce a Bill that abolished the death sentence for crimes
under the Indian Penal Code. But the motion to introduce such a Bill was denied. The policy on
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capital punishment implemented by the Government prior to Independence directed that "The
Government does not think it wise to abolish capital punishment for any type of crime for which
that punishment is now provided.” On acquiring Independence, India retained few British
colonial legislatives and incorporated them into society.
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CAPITAL PUNISHMENT IN INDIA
Generally speaking, the capacity to punish depends on the degree of culpability of the criminal
act, the danger it presents to society, and the perpetrator's depravity. A study of criminal
jurisprudence will show that capital punishment is justified only in special cases where there is a
strong degree of guilt and a serious danger to society. The punishment should be proportional,
among other factors, to the severity of the offender's act and its danger.
RETRIBUTIVE EFFECT OF CAPITAL PUNISHMENT
For years, Death Penalty has been used as a powerful weapon of retributive punishment. The
justification advanced is that it is lawful to forfeit the life of a person who takes away the life of
another person. An individual who kills another person must be removed from society and
therefore completely deserve to be executed.1 The motive for the death penalty may include
revenge, which provides satisfaction for the injured party, the group of society. Vengeance is
often socially useful when governed and controlled by law.2
Commenting on the efficacy of the death penalty, Thorsten Sellin noted that it failed to serve as a
measure of social security and as a tool of retributive justice. Citing U.S. illustrations in support
of this argument, he claimed that the number of executions is well below the number of violent
crimes committed yearly, which clearly indicates; that the death penalty is no longer valued and
is casually discarded. Another point that needs consideration in regard to the declining effect
of capital punishment is that for most cases, even after the conviction, the death sentence is either
commuted or pardoned and seldom performed.
DETERRENT EFFECT OF CAPITAL PUNISHMENT
Perhaps the greatest deterrent that keeps an offender away from crime is the fear of being
sentenced to death. The death penalty in the case of a murder acts as an important deterrent to
remind the murderer of the harshness of the law against such a heinous crime and this
undoubtedly tends to mitigate the murder rate. While abandoned today, the old public execution
1
David Dressler, Readings in Criminology and Penology (Columbia University Press)
2
Ernest Van den Haag, Is Capital Punishment Just? (Ethics and Public Policy Center) (1978)
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methods were meant to make punishment as painful and traumatic as possible. However the new
trend is to minimise the number of death-penalty crimes.
RETENTION OF THE DEATH PENALTY OVER TIME
Penologists in India have responded to the death penalty differently. Some of them favoured the
retention of the death sentence, while others favored its abolition on humanitarian grounds.
Retentionists advocate for capital punishment on the basis that it has a high deterrence effect and
demands compliance to law in the society. Those who favour the death penalty believe that the
death of the murderer is a necessity for justice to prevail. They claim that the death of the victim
must otherwise be balanced by the death of the guilty, the victim will not be avenged, and the
grief and emotions aroused in society by the crime will not be alleviated. The abolitionists, on
the other hand, contend that the futility of the death penalty is represented by a huge rise in the
homicide crime-rate. Another point commonly put forward by abolitionists is that the hardened
criminals commit most cold-blooded murders in a masterly method. They conduct their criminal
activities in such a way that they are likely to escape punishment, even if caught, due to one of
the many procedural gaps in the existing criminal justice system. This implies that in modern
times, the deterrent effect of capital punishment is diminishing as the criminals become smarter.
Capital punishment is the most favorable in cases of hardened criminals and serial killers. They
make the strongest case to retain the death penalty. Particularly, in a country like India, people
are prone to make rash decisions in the heat of the moment. Though the person committing the
murder might be aware of the consequences, but do not heed them in the moment, they are not
hardened criminals or ‘professional killers’ so the death penalty holds little value in such cases.
Experience has shown that quite a large number of murders and homicides which occur in this
country are due to permeance of racial, ethnical, and religio- political cultures. The perpetrator
often falls a prey of his surroundings and in a fit of passion commits homicide without thinking
about its gravity and consequences. Such cases are more common in the Indian society where sex
taboos are too strict and the martial relationships are likely to be disturbed on slightest suspicion
or provocation.3
An intensive study was carried out which analyzed all the murder cases tried in the Bombay
High Court. Out of 507 homicide cases, only 26.25% were premeditated murders while the rest
were ill-willed crimes of passion in which the death sentence did not serve as a deterrent.4
3
Jehangir M. J Sethna, Society and the criminal (N.M. Tripathi Private Ltd) (1989)
4
Walter Moberly, The Ethics of Punishment (Archon Books) (1968)
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It can be interpreted that neither retaining or abolishing the death penalty can be viewed in
absolute terms. The application of a death sentence remains on the nature of crime and the
circumstances associated to it. However, the current trend in the justice system prefers to retain
the death penalty rather than abolish it.
LAW COMMISSION REPORT (2015)
Report 262 by the Law Commission of India was submitted in 2015 and it recommended that the
death sentence should be abolished for all offences except terrorism and war-mongering. In an
earlier report (1967), the Law Commission stated that India could not afford to experiment the
abolishment of the death penalty. However in the 2015 report, it stated that since times had
changed, they felt it was time for India to move towards the abolishment of the death penalty.
They hoped it would be done quickly and irreversibly. 5
HUMAN RIGHTS AND CONSTITUTIONALITY OF CAPITAL PUNISHMENT
Recently, arguments in favor of abolishment of the death penalty are based on human rights, not
religious or moral grounds as in the past. But the fundamental understanding still holds
true, an individual's life is his inalienable human right and thus non-negotiable. The validity of
this claim is that even though the argument of retention values a greater goal i.e benefit of
society, one cannot forgo an individual’s human rights.The utilitarian theory has been granted a
"go by" when it comes to fundamental rights. Simply put, one can't just kill an individual
because it might be beneficial to society. Justice Bhagwati stressed this point, reiterating the
principles of proportionality inherent in Articles 14, 19 and 21 of the Indian Constitution. “If a
law prescribes a sentence disproportionate to the offence it is liable to be struck down. The
utilitarian view of deterrence has nothing to do with proportionality” Article 21 is also implicit in
protection against inhuman treatment and torture.6
While examining the constitutionality of capital punishment, the majority in Bachan Singh said
constitution-makers envisaged this situation, since it is implicit in the syntax of Articles 21, 72
and 169. Justice Bhagwati replied to this by stating that the Constitution of India is not a brief or
fleeting document but one that stands the test of time by anticipating things for a long time. As
5
Law Commission of India, Report 262: The Death Penalty (Government of India) (2015),
http://lawcommissionofindia.nic.in/reports/Report262.pdf (last visited Nov 18, 2020)
6
Bacchan Singh v State of Punjab, (1980) AIR 1980 SC 898
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Granville Austin points out, “The constitution is foremost a social document, and hence needs to
be interpreted in the light of contemporary social and human rights values and jurisprudence. In a
moving society, a constitution cannot afford to be static.”7
CAPITAL CRIMES UNDER THE INDIAN PENAL CODE
Under Indian Penal Code (IPC), 1860:
- Section 120 B- Punishment for Criminal Conspiracy
- Section 121- Waging or attempting to wage war or abetting waging of war against the
Government of India.
- Section 132- Abetment of mutiny
- Section 194- Giving or Fabricating false evidence with intent to produce conviction of
capital offense
- Section 195A- Threatening any person to give false evidence Punishment for Murder
- Section 302- Punishment of Murder
- Section 303- Punishment for murder for life convict. It proves unconstitutional and
held its a violation of Article 14 and 21 of Constitution of India83
- Section 305- Abetment of suicide of child or insane person
- Section 364 A- Kidnapping for ransom
- Section 396- Dacoity with murder
7
Granville Austin, The Indian Costitution: Cornerstone of a Nation (Oxford University Press) (1999)
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THE DOCTRINE OF RAREST OF RARE CASE
The “doctrine of the rarest of rare” is one of the fundamental blocks of the death penalty in our
country.
Section 302 of the Indian Penal Code, 1860, prescribes the death penalty or life imprisonment as
an alternate penalty for the crime of murder. The use of death penalty as an alternate solution for
murder is unfair and not in the interest of the public. The violation of an individual's rights is not
a direct consequence of the law, but simply incidental to an order of conviction, and the
punishment does not directly result of the penal code but is incidental to the order of conviction.
Thus S.302 is not unconstitutional under Article 19 (1) of the Constitution of India. 8 The
Bacchan Singh case improves the understanding of the death penalty by deciding that capital
punishment can only be awarded for extreme and rare crimes where any other recourse is
inadequate.
On an in-depth analysis of Section 235 and 354 of Code of Criminal Procedure (Cr.PC), one can
see that provisions are made that give the accused a right to a hearing before the sentence is
pronounced which requires the courts to identify and specify particular reasons for the
application of the death penalty instead of sentencing the accused to life in prison.9
Two questions are to be considered here. (i) The the crime in question have anything
uncommon? (ii) Do the circumstances fit and explain the crime committed? The doctrine
requires the court to find uncommon facts about the crime and brutal circumstances of the crime
for it to prescribe the death penalty.
As the court stated to support its decision in the Bacchan Singh case “ A real and abiding
concern for human life dignity postulates resistance to taking a life through laws instrumentality.
That ought not to be done save in rarest of rare case when the alternative option is
unquestionably foreclosed.”
In the case of Macchi Singh10 the court set certain criteria to be met to be considered as a rarest
of rare case. The criteria are:
a) When the murder committed was cruel and brutally unusual in nature which triggered
extreme emotions of the public.
8
Bacchan Singh v State of Punjab, (1980) AIR 1980 SC 898
9
Jagmohan Singh v. State of U.P, (1973) AIR 1973 SC 947
10
Macchi Singh v. State of Punjab, (1983) AIR 1983 SC 957
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b) When the murder is committed for a totally depraved and inhuman motive.
c) Dowry deaths or killing due to interest in another woman, of a member of a scheduled
caste or scheduled tribe on grounds of his caste/tribe; offences to terrorize and scare
people to give up their property and other benefits.
d) In multiple murders of members of a particular family, caste, community or locality.
e) Where the victim is an innocent child, helpless woman, aged or disabled person, a
public figure whose murder is committed other than for personal reasons.
According to this there are five categories which have to be fulfilled for the doctrine of rarest of
rare to apply and a death sentence to be pronounced:
(i) Motive
(ii) Manner of Commission
(iii) Extent of the Crime
(iv) Nature of the Crime
(v) Personality of the Victim
In the case of Ramnaresh & Ors. v. State of Chhattisgarh11, the Supreme Court were of the
opinion that the offenders should be sentenced to death for the crimes of gang rape and murder.
The victim was raped by her brother-in-law and his drunken friends and was strangulated to
death during the gang rape. The court while discussing the “doctrine of rarest of rare” case for
awarding capital punishment were of the opinion that awarding death penalty should be based on
the extent of the crime, its circumstances, brutality and, motive. They concluded that it is crucial
for the judiciary to analyse the cases on their facts with reference to the announced principles.
But this is a double edged sword as it is not enough for one to just consider the crime as heinous,
pone must find facts to satisfy these other principles as well. In exceptional cases, the term rarest
of rare is to be implemented with specific reason provided.
Circumstances pertaining to the crime can be of two types.
- Aggravating Circumstances
- Mitigating Circumstances
Aggravating Circumstances
“The court may impose death penalty through discretion only:
11
Ramnaresh & Ors. v. State of Chhattisgarh, (2012) AIR 2012 SC 1357
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• If the murder is premeditated and involves cruelty and brutality
• If the murder involves exceptional immorality
• If the murder of a member of the armed force of India or of a police officer or of any public
servant is committed when such member was on duty”12
Mitigating Circumstances
“The Court must take into account:
• If the offence was committed during extreme mental or emotional disturbance
• If the offender was a minor or of old age
• The probability that the accused would not commit criminal acts of violence as would
constitute a continuing threat to society
• If the facts and circumstance support that the offender was morally justified in committing the
offence
• If the offence was committed under duress or influence of another person
• If the condition of the accused showed that he was mentally defective and that the said defect
impaired his capacity to appreciate the criminality of his conduct”13
After balancing the aggravating and mitigating factors, the Court decided that the guilty must be
sentenced to life in prison with the death penalty being applied only in extraordinary cases. The
Court came to a decision in the Ramnaresh case based on 3 factors:
- The offenders were young
- Death of the victim was caused by strangulation and not any exceptionally brutal method
- The victim had an extra-marital affair with the designated perpetrator, i.e. the brother-in-law,
and was not a lawfully married wife.
On comparing the landmark judgements of Bacchan Singh and Jagmohan Singh we can see that
in both cases the death penalty was applied in the rarest of rare cases. In both cases the criteria
was met and the principles were fulfilled and the use of the death penalty was justified. But in
both cases the special reason provided by the court for applying the death penalty were odd and
arbitrary and open to interpretation. The Court believed that establishing a fixed standard to
measure the culpability of the accused was up to legislation and not the Courts.
12
Swasit Mahapatro, Rarest of Rare doctrine and Concept of Social Engineering, 1 Journal of International
Academic Research for Multidisciplinary (2013), http://www.jiarm.com/Jun/paper3332.pdf (last visited Nov 19,
2020)
13
Ibid
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There are many who criticize the Bacchan Singh judgement in its arbitrariness and odd
interpretation and Justice Bhagwati provided a strong argument that leaving the interpretation to
the Court with no specific parameters will lead to an increase in prejudice in decision making
and a person’s life was completely dependent on the moral view and interpretation of the Bench
which can be considered as a violation of Article 14 and 21 of the Constitution of India. He
posed a critical point that labeling a crime as barbaric, cold-blooded, vicious, etc is not
transparent, objective and universal. They vary for all judges. Thus, factors applicable to one
judge may not be relevant to others.
In the case of Alok Nath Dutt v. State of West Bengal14 the victim as murdered in their sleep by
their brother over a property dispute. Mode of committing the murder was blunt force trauma to
the head. Abundant cases were cited where the Supreme Court awarded either death or life
imprisonment in similar circumstances. But after much discussion, the Court eventually awarded
the death penalty in this case, stating the reason that while the essence of the crime was brutal,
but the conduct would not be regarded as barbaric or brutal, but the crime was committed out of
greed and not necessity. The decision was based on the circumstances of this particular case
rather than adhering to precedents.
In Macchi Singh v. State of Punjab the court found that the “doctrine of rarest of rare” case
should often address some instances of crimes against women. Children and women are deemed
the weakest section of society, and crimes against women are humiliating to society. In this case
the example provided entailed bride burning in demand of dowry. It was a cold-blooded crime
where one could blatantly see that the driving motive was greed and nothing else.
In Surendra Pal Shivbalakpal v. State of Gujarat15, a teenage girl was raped and killed. The
Bench commuted the death penalty to life imprisonment as they believed that the evidence was
circumstantial and did not satisfy the requisite principles for the doctrine of rarest of rare to be
applied. They believed that the offender did not pose any future threat to society as this was a
first-time offence and would not cause trouble in the future.
There are plenty of differences of opinion with regard to the impact of the decision of Bachan
Singh on the later decisions. Some argue that it “was neither a small nor insignificant
14
Alok Nath Dutt & Ors. v. State of West Bengal, (2006)
15
Surendra Pal Shivbalakpal v. State of Gujarat, (2004) Supp(4) SCR 464
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achievement for the abolitionists as the rate of death penalty would definitely have been higher
but for the judgement.”16 This argument seems to be reasonable in the light of the fact that since
the judgment, the frequency of capital punishment has dramatically decreased. Yet it is not as
simple as it seems and the judicial environment of the death penalty continues to be challenging.
The Supreme Court of India has been heavily critiqued for not developing jurisprudence in this
perplexing area.17 While in most cases the court has referred to terms such as the rarest of rare,
extenuating circumstances, special reasons, etc., it has not been able to ascertain the true
significance of these words in these years. The doctrine of rarest of rare case has in fact laid
down some criteria for awarding the death sentence. However the decisions of the court make it
clear that it has failed to lay down an objective procedure and that much depends on the
individual philosophy of the judges. There are social and personal factors that influence and
mould the individual philosophy of a judge. When a judge chooses not to impose an extreme
punishment, he may try to look for mitigating circumstances, procedural anomalies, and other
grounds.
One of the biggest criticisms directed at the Supreme Court in this respect is that it failed to do
the ‘balancing act’ as laid down in the Macchi Singh judgement, which has in fact lead to
improper decisions based on the personal philosophy of the judges. Another observation made,
which has some element of the truth in it is the introduction of a new criterion by the Supreme
Court in the 1980s and 1990s. At this point in time, the court has awarded death sentences in
many cases that lead the public sentiments, and to the social obligation of seeing the criminal as
a social threat rather than highlighting the element of the likelihood of reformation and
rehabilitation. Some of the most recent decisions of the Supreme Court also testify to the fact that
the court has a retributive philosophy in its mind and is therefore of the opinion that the
sentiments of the public can only be fulfilled if serious punishments are enforced.
Although the Supreme Court's attempts to provide some objectivity to the tests cannot be
ignored, particularly when they include a number of subjective considerations. It cannot be
denied that without legislative intervention, a certain amount of consistency has been established
by the Supreme Court and deserves to be appreciated. The Court's attitude has been retentionist
towards crimes against women, crimes that are heinous and committed in a cold-blooded manner
after premeditation. In cases where the offender is of young age and there is a possibility of
16
Michael Kronenwetter, Capital Punishment: A Reference Handbook (Contemporary World Issues) (ABC-CLIO
Interactive) (2001)
17
Amnesty International, Lethal Lottery- The Death Penalty in India, (2008),
https://www.amnesty.org/download/Documents/52000/asa200072008eng.pdf (last visited Nov 19, 2020)
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rehabilitation, the court has taken a lenient view and avoided capital punishment. In cases
involving the assassination of individuals, such as elected leaders, the court has repeatedly
awarded the death penalty. Again in cases where the motive behind the murder was financial
gain, such as cases of kidnapping and extortion leading to murder, the court has repeatedly
imposed the death penalty. Thus, it can be seen that there is some objective philosophy evolving,
though not clear and consistent, from the rulings of the Court, which is based more on the nature
of the crime committed rather than the criminal.
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CONCLUSION
The death penalty, seen in some countries as cruel and inhuman, is constitutional in India and
others. The right to life and human dignity secured by the Indian Constitution does not prohibit a
criminal if found guilty by a court of competent jurisdiction of such offences from being
executed. In other words, the same constitution that established these protections also included
the death penalty for certain crimes. In India, the death penalty is widely debated, attracting
media interest as well as government and non-governmental entities. Although India is an active
member of the United Nations and has signed and ratified most of the “International Instruments
on Human Rights”, the death penalty is still very much in our criminal code. According to our
judiciary, it must be enforced in exceptional cases, — in other words in the rarest of the rare
cases with special reasons provided by the court.
The Delhi gang rape was termed as the most brutal case in history. The country came together,
demanding justice for the girl, and saving the country's future. This uprising opened the eyes of
the courts, thereby amending the criminal laws. According to the theory of deterrence,
implementing a severe sentence induces terror so that people refrain from criminal activity, thus
reducing crime rates. The “doctrine of the rarest of rare” case award of the capital punishment
in India emerged from the case of Macchi Singh v. State of Punjab where at the demand of the
general public, the offender was sentenced to death and the Supreme Court laid down certain
principles to judge if an act falls within the aforementioned doctrine.
In the Jagmohan Singh case, the constitutional validity of capital punishment was challenged.
The Supreme Court rejected the arguments and held that the death penalty was not in violation
of Articles 14 and 21 of the Constitution. The Bacchan Singh case highlighted how Section 302
of the Indian Penal Code was not violative of Article 21 of the Indian Constitution and then the
Supreme Court proceeded to retain the death penalty and apply it in exceptional cases in a
reasonable and fair manner after providing sound reason.
Article 21 also provides Right to Life and Personal Liberty; it states that no individual shall be
deprived of his right except according to procedure established by the law. If the law did not
have a negative impact, people would take the law into their own hands and there would be
chaos and nobody in society would be safe. Hence, It means that if a person has been punished
by the law, it will be just and fair. The hypothesis is proved.
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In recent years, the deterrent effect of the death penalty has waned and it simply does not
provide more of a benefit than life imprisonment. Retribution plays an important part in society,
but cannot be diminished to revenge. Revenge has no place in a modern civilization. So
constitutional safeguards are implemented and Courts are ever-vigilant to ensure that isn’t the
case. In focusing on the retributive effect and delivering justice to the victim, it is easy to lose
sight of rehabilitation and reformation of offenders.
After the Bacchan Singh case, a lot of arbitrariness crept into the justice system which left things
open ended and subject to individual interpretation. There are no standard or objective method
for awarding the death sentence. A solid, unchanging principle must be implemented to make the
death penalty objective and unbiased.
SUGGESTIONS
The proper law must be laid down. It was found that there were several laws on the award of the
death penalty, but none established the basis in which cases such punishment was to be imposed
under the rarest of the rarest case doctrine.
The decision needs to be taken after thoughtful consideration. India is a democratic nation where
public decisions prevail. Our constitutional guardians are granted authority to issue the death
sentence by following a constitutional court's prior rulings. However before issuing the death
penalty, the prosecutor should consider whether the defendant and the gravity of the crime
committed pose a danger to society. If not the death penalty must not be applied and this would
be determined by his previous actions in society before violating the law.
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REFERENCES
Books
• N.V. Paranjape, Criminology and Penology (2010)
• Mohita Junnarkar, The Death Penalty: Perspectives from India and Beyond (2020)
• K.I. Vibhute, PSA Pillai’s Criminal Law (2015)
• Peter Hodgkinson, Capital Punishment: Global Issues and Prospects (1996)
• Krishna Pal Malik, Penology, Victimology and Correctional Administration in India (2012)
• David Dressler, Readings in Criminology and Penology (1972)
• Ernest Van den Haag, Is Capital Punishment Just? (1978)
• N.V.R Krishnamacharya, The Mahabharata (Tirumala Tirupati Devasthanams) (1983)
• Henry Maine, Ancient Law (1861)
• Pandurang Kane, History of Dharmasastra (2006)
• Walter Moberly, The Ethics of Punishment (1968)
• Granville Austin, The Indian Costitution: Cornerstone of a Nation (1999)
• Michael Kronenwetter, Capital Punishment: A Reference Handbook- Contemporary World
Issues (2001)
Articles
• Hans Zeisel, The Deterrent Effect of the Death Penalty: Facts v. Faiths (1976)
• Jehangir M. J Sethna, Society and the criminal (1989)
• Swasit Mahapatro, Rarest of Rare doctrine and Concept of Social Engineering (2013)
Cases
• Bacchan Singh v State of Punjab, (1980) AIR 1980 SC 898
• Jagmohan Singh v. State of U.P, (1973) AIR 1973 SC 947
• Macchi Singh v. State of Punjab, (1983) AIR 1983 SC 957
• Ramnaresh & Ors. v. State of Chhattisgarh, (2012) AIR 2012 SC 1357
• Alok Nath Dutt & Ors. v. State of West Bengal, (2006)
19www.ijlra.com
Volume 2 Issue I| May 2021 ISSN: 2582-6433
• Surendra Pal Shivbalakpal v. State of Gujarat, (2004) Supp(4) SCR 464
Reports
• Law Commission of India, Report 262: The Death Penalty (2015)
• Amnesty International, Lethal Lottery- The Death Penalty in India (2008)
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