Capital Punishment: Perspective on its

presence and absence

Capital Punishment, also known as the Death penalty remains a heatedly
debated and controversial topic in the worldwide forum. It is the killing of a
person as a punishment for a crime, sanctioned by the state authorities. While
some countries like India, China, and Bangladesh actively practice and uphold
decisions related to capital punishment, other countries like France,
Netherlands, and Australia have either completely abolished the Death Penalty
or have not practiced it in a long time on the grounds of ethics, moral concerns,
and Human rights. The absence or presence of the death penalty in different
nations requires a deeper dive into the country’s history, culture, and legal
framework. The Indian society and Indian legal system have engaged in the
question of whether the death penalty is a deterrent to crimes, a fair way of
punishing a criminal, or a violation of Human rights and Article 21 of the Indian
Constitution.
The history of Capital punishment in India has a long and complex history. In
ancient India, religious texts like Manusmriti outlined various criminal offenses
for which capital punishment was prescribed. However, during the Mauryan
empire under Ashoka, there was a shift towards Non-violence and capital
punishment was discouraged. The practice of capital punishment was re-
introduced in practice during the rule of the Mughal Empire which had their
own system of justice. When India was under the authority of the British
Empire, the East India Company brought its own legal system to India. The
Indian Penal Code (IPC) was enacted in the year 1860 and it included provisions
for the death penalty for certain offenses. When India gained Independence
from British rule in 1947, the legal system inherited from the Colonizers
continued to give capital punishments for crimes such as murder, acts of
terrorism, etc. The punishment of the death penalty has evolved in India over
time, In the year 1973, when the CrPC was amended, life imprisonment
became a norm, and the death penalty was awarded only in exceptional cases.
In the case of Machhi Singh Vs the State of Punjab further refined the rarest of
rare provisions and provided guidelines for the application of the death
penalty. 1This landmark case also laid out the factors to be taken into

1
Indian Kanoon, Machhi Singh And Others vs State Of Punjab on 20 July, 1983,
https://indiankanoon.org/doc/545301/
consideration in determining the rarity of the case, factors such as motive,
manner of commission, and more are essential while considering to award the
death penalty. Executions in India are carried out by hanging as the primary
method of execution as given under Section 354(5) of the CrPC and are only
imposed in the rarest of cases.
The two main methods of execution practiced in Indian law are by Hanging and
Shooting. Hanging is an ancient method of execution that was a part of
different legal cultures like English law, Roman law, French law, and German
law. This traditional method of execution by hanging involves killing a person
by wrapping a rope around his neck until the person dies from asphyxia. This
method of execution was challenged in the case of Rishi Malhotra V. Union of
India in 2017 on the grounds that this method was inhumane, cruel and goes
against the resolutions adopted by the United Nations Economic and Social
Council (ECOSOC). This case started discussions regarding a shift from hanging
to other advanced methods of execution, unlike the case of Deena V. Union of
India which upheld the constitutionality of capital punishment by hanging.
Another method of capital punishment under Indian Law is shooting, which
under limited circumstances is provided under the Army Act, Navy Act, and Air
Force Act. The most recent example of Capital Punishment in India was in the
year 2020 when the 4 convicts in the 2012 Nirbhaya Gang Rape Case, namely
Mukesh Singh, Akshay Thakur, Vinay Sharma, and Pawan Gupta were executed
at the Tihar Jail in Delhi. 2
The debate revolving around Capital punishment addresses the prevalence and
absence of it in different parts of the world. Proponents argue that the reason
why Capital punishment is prevalent in countries like India is that it acts as a
deterrent to crimes, the logic behind this is that the fear of a harsh punishment
like death may prevent criminals from carrying out offenses. Another reason
for the prevalence of the death penalty is that it is viewed as a just way of
providing justice to the victim and their family. Traditional beliefs and historical
and religious practices play a major role in the acceptance of capital
punishment in certain societies, for example, in the Hindu religious text,
Manusmriti, capital punishment was prescribed in. These beliefs and practices
further influenced the political and legal framework of different societies, like
Authoritarian regimes may use the death penalty as a tool for social justice

2
Wikipedia, Capital Punishment In India,
https://en.wikipedia.org/wiki/Capital_punishment_in_India#:~:text=Apart%20from%20hanging%2C%20the
%20other,Act%2C%20and%20Air%20Force%20Act.
while some legal frameworks like in India accept the death penalty as a just
form of punishment for heinous offenses. However, the other side of the
debate puts up some strong points addressing the faults in the foundations of
capital punishment. Many countries in the world have either completely
abolished capital punishment like Norway, France, and Brazil, or have not
practiced it in a long time like Algeria. Proponents arguing for the abolishment
of the death penalty cite concerns about Human rights and ethics. The right to
life is considered a fundamental one and the punishment of an offense with
death raises ethical questions regarding the same. Questions like, is it ethical
for governance authorities to take the life of a person as a punishment for an
offense? is it ethical to violate a person’s fundamental right as a form of
punishment? These concerns are tackled by global human rights movements
and international organizations such as Amnesty International, which for over
45 years has been campaigning to abolish the death penalty around the globe
and holding governments accountable that continue to use ultimate cruel,
Inhuman, and degrading punishment. Countries might also feel diplomatic
pressure to abolish the death penalty as part of norms and commitment to the
International Human Rights Code of Conduct. The possibility of wrongful
convictions and the irreversible nature of capital punishment pose another
significant threat to the advocates arguing for the continuation of capital
punishment. Another reason for the absence of capital punishment in some
parts of the world is the societal values and attitudes toward the punishment
of criminals which evolves over a period of time. Reforms in the legal
framework of a country including the development of different types of
punishments and opportunities for rehabilitation contribute to the process of
abolishing capital punishment as societies and the lawmakers of the country
seek a more humane, less cruel, and effective way to address crimes. Awarding
opportunities for rehabilitation continues to add to the decline of capital
punishment. However, countries that continue to practice capital punishment
have gradually moved to less painful and more humane ways of punishment,
for example, death by lethal injection which is considered as the most humane
method of execution. The presence or absence of Capital punishment in
different countries, especially democratic countries has been heavily influenced
by public opinion. Shift in public opinion against or for the death penalty may
lead to legislative changes in their country. The role of public opinion first
gained prominence in the case of Machhi Singh vs. the state of Punjab, 1983,
and subsequently in the case of Dhananjoy Chatterjee Vs. State of Bengal, 1994
which held that the court must not only consider the rights of the criminal but
also of the victim and the society at large when sentencing.3 The importance of
public opinion can be seen in India’s last case of the death penalty as well, in
the case of the 2012 Delhi Gang rape case which resulted in the execution of
four convicts.
The presence and absence of Capital Punishment in India and around the world
are a result of various legal, social, and ethical reasons. While some nations
argue that the death penalty serves as a deterrent for crimes and is necessary
for the security of society, others argue that it is unethical to violate a right as
basic as the right to life and other methods of punishment and opportunities
for rehabilitation should be given instead of awarding a punishment as
inhumane as the death penalty. As India and the rest of the world continue to
tackle the question of capital punishment, a topic as bilateral as this continues
to be unanswered as long as the human race continues to raise questions
regarding ethics and serving justice.

3
Wikipedia, Capital Punishment in India,
https://en.wikipedia.org/wiki/Capital_punishment_in_India#:~:text=Apart%20from%20hanging%2C%20the
%20other,Act%2C%20and%20Air%20Force%20Act.