Capital Punishment A Critical Analysis of India As A Case for Reform

Abstract

ABSTRACT newlineCapital punishment is an archaic system of primitive origin that has disappeared in newlinemost civilized countries and is withering away in the rest of the world. The existence newlineof death penalty as a mode of punishment remains to be one of the most contentious newlineissues in criminal justice. One of the most important arguments for the existence of newlinecapital punishment is the potential deterrent effect. But today death penalty has newlineturned out to be the harshest form of punishment which is given only for very newlineheinous offences in almost all parts of the world and in those parts of the world newlinewhere it is being practised execution happens only for the most serious offences like newlineintentional murder, offences against the States and terrorism. India is one among newlinethose Asian countries wherein death penalty is granted for serious offences, the newlinelatest being on March 20th 2020 where four convicts of the Nirbhaya Rape case were newlineexecuted. However, the sentencing policy followed in India in granting death newlinepenalty has varied disproportionately in the last few decades. The rarest of rare newlinedoctrine put forth in the Bachan Singh s case in 1980 does not seems to serve the newlinepurpose of a sentencing policy as the Courts have no uniformity while deciding the newlinecases which has made it more judge centric. newlineThe present research emerges from the 262nd Law Commission s Report which newlinerecommended for abolition of death penalty. The aforementioned study is based on newlinejudicial decisions of different legal systems as well as from the provisions of newlineinternational conventions. newlineThe present research is an attempt to analyse the need for the existence of death newlinepenalty in the Indian Criminal Jurisprudence and check whether the conclusion of newlinethe Law Commission s Report that, the death penalty has to be abolished for reasons newlinethat, criminal justice in the country is in deep crisis. The study has also looked into newlinewhether the International trend of abolition of death penalty in law and practice newlineconfirms it to be an ineffective punishment. Each references and statistics relied newlineupon by the Commission has being analyzed to study whether the conclusion newlinebrought forth was right and if so, in the present scenario whether India is in a newlineposition to accept such a recommendation. newlineIt is pertinent here to note that the 262nd Law Commission had recommended for the newlineabolition of Death Penalty which was not a suggestion by the other Law newlineCommissions who had addressed this issue earlier. The fact that 140 countries have newlineabolished death penalty at the International level was emphasized by the newlineCommission and was an added as another strong reason among others for abolition newlineof the punishment. The other reasons mentioned were the disparity and newlinediscrimination followed by the courts while pronouncing judgements regarding newlinepunishment of death penalty. The suggestion put forth by the Malimath Committee newlinein 2003 to have a statutory Sentencing Guideline has not been looked into or newlinediscussed by the 262nd Law Commission. Hence, the present research has attempted newlineto address these matters on a hypothesis that, abolition of death penalty, in the newlinepresent situation in India is not recommended. newlineKeywords: Death Penalty, Punishment, Proportionality of Punishment, Disparity, newlineDiscrimination, Sentencing Policy, Sentencing Guideline, Aggravating and newlineMitigating factors, Abolition of Death Penalty, Retention of Death Penalty.