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Capital Punishment viz -a- viz Dignity of the Individual: A
Jurisprudential Analysis
Dr. Arvind P. Bhanu &Vikas Kumar**
I- Introduction
Capital Punishment has been contentious issue all over the World. It has been
endless debate without producing any conclusions which can convince both the
parties to the debate. Not only in terms of democratic thinking, but on moral grounds
also, it has been treated the most barbaric form of punishment. Although in India, the
Capital punishment is awarded only in particularly gruesome and politically sensitive
cases and terrorist crimes being treated as a class apart, yet debate is not ended. The
debate is on the question whether a society for which the dignity of the individual is
supreme value, can without fundamental inconsistency, follow the practice of
deliberately putting some of its members to death. In United States and other western
world, ‘the struggle is seen between deeply rooted beliefs in retribution, atonement or
vengeance, and beliefs in the personal value and dignity of the common man that
were born of the democratic movement and beliefs in the scientific approach to an
understanding of the motive forces of human conduct. It is this issue-basedconfliction which forms the backdrop for the past changes in and the present
operation of the system which are imposing death as a punishment for crime.
Therefore, the need is to find out the solution of this confliction which is being
reflected in possible progression of the society.
II- Development of Doctrine in Comparative Perspective
In 1980, the rarest of rare cases1 dictum came in India to determine the scope of
application of capital punishment. Howsoever, the nature of the act is gruesome, but
the question of death penalty has to be sorted out with reference to the rarest of rare
dictum. This shows that the highest judiciary of the State has come down in
justification of the capital punishment. However, it could not be called halted one,

Associate Professor, IIMT and School of Law, GGSIP University, Delhi.
** Assistant Professor, Faculty of law, University of Delhi.
1
Bachan Singh v. State of Punjab, AIR1980 SC 898.
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even though there had been no execution between 20042 and Nov. 20, 20123 in India.
In 1983, the Supreme Court, in Mithu’s case4,
held that mandatory capital
punishment is unconstitutional since it completely cuts out the judicial discretion
which is not just, fair and reasonable within the meaning of Article 215 of the
Constitution. Further it deprives the accused of the opportunity under Section 235(2)6
of the Criminal Procedure Code to show cause why he should not be sentenced to
death and the Court is relieved from its obligation under Section 354(3)7 of that Code
to state the special reasons for imposing the sentence of death. The deprivation of
these rights and safeguards which is bound to result in injustice is harsh, arbitrary and
unjust. Moreover, when one of the three Judges of a Bench does not award death
sentence to a convict in a case and instead awards him the sentence of life
imprisonment, the case should not be treated as a rarest of the rare cases and it should
be a proper ground to review the sentence of death awarded by the majority, it being
consistent with Art. 21.8
In the same context, the Supreme Court, in 1983, took the note of prolonged
detention to await the execution of a sentence of death.9
The Court held that
prolonged detention to await the execution of a sentence of death is an unjust, unfair
2
3
4
5
6
7
8
9
On August 14, 2004, Dhananjoy Chatterjee was executed by hanging for the rape and murder
of 14-year-old girl.
On November, 2012, Ajmal Amir Kasab was hanged.
Mithu v. State of Punjab, AIR 1983 SC 473, 1983 Cri. L. J. 811 (wherein Section 303 of IPC held
to be unconstitutional).
In Bachan Singh which upheld the constitutional validity of the death penalty, Sarkaria J.,
speaking for the majority, said that if Article 21 is understood in accordance with the
interpretation put upon it in Maneka Gandhi, it will read to Say that: No person shall be
deprived of his life or personal liberty except according to fair, just and reasonable
procedure established by valid law, at page 730.
If the accused is convicted, the Judge shall, unless he proceeds in accordance with the
provisions of section 360 hear the accused on the question of sentence, and then pass
sentence on him according to law.
When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence of death, the special reasons
for such sentence.
Suthendraraja v. State, (1999) 9 SCC 323 ¶. 18.
T. V. Vatheeswaran v. State of Tamil Nadu, 1983 Cr. L. J. 481 SC.
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and unreasonable procedure and the only way to undo the wrong is to quash the
sentence of death and to commute it into life imprisonment. Delay exceeding two
years in the execution of a sentence of death should be considered sufficient to entitle
the person to invoke Article 21 of the Constitution. However, in the same year, in
Sher Singh v. State of Punjab,10 the Court realizing the chances of its abuse, revised
its opinion and held that delay in execution of death sentence exceeding two years by
itself does not entitle a person under sentence of death to demand quashing the
sentence and converting it into sentence of life imprisonment. It may not be treated as
a rule but unreasonable delay may be taken into consideration in mitigation of the
punishment.
The other aspect of development is a holding of unconstitutional by the Mumbai
High Court if death penalty is the mandatory one.
The Court found that the
mandatory imposition of the death penalty under Section 31-A of the Narcotic Drugs
and Psychotropic Substances Act, 1985 violated Article 21 of the Constitution of
India, and ruled that it be changed to give judges a discretionary choice of
punishment.11 Most recently, the Supreme Court in State of Punjab v. Dalbir Singh12
held that mandatory death penalty is unconstitutional violative of the concept of 'due
process’13 contained in Article 21 of the Constitution. Thus, the Criminal Justice
system in India has been laid on rarest of rare dictum in terms of capital cases. The
province of death penalty has been determined judicially as well as legislatively in
accordance with the Bachan Singh, Mithu and Dalbir Singh’s case.
10
11
12
13
1983 Cr. L. J. 803 SC. Also see Triveniben v. State of Gujarat, 1989 Cr. L. .J. 870 SC.
Indian Harm Reduction Network, a Society registered under Societies Registration Act, 1860,
Registration No. S/58430/2007 v. The Union of India (UOI), Criminal Writ Petition Nos. 1784
and 1790 of 2010 Decided On: 16.06.2011.
2012 (2) SCALE 126, (2012) 3 SCC 346, ¶. 86 (Almost on identical principles mandatory death
penalty provided under Section 303 of the Indian Penal Code has been held ultra vires by the
Constitution Bench of this Court in Mithu . ……………….. Such a law is neither just, reasonable
nor is it fair and falls out of the 'due process' test.
As per Maneka Gandhi v. Union of India (1978) 1 SCC 248, Bachan Singh v. State of Punjab
(1980) 2 SCC 684 and Mithu v. State of Punjab (1983) 2 SCC 277, 'due process of law' is part of
our Constitutional jurisprudence said the Court, see also Id. at, ¶. 46.
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In United Kingdom, in Trimmingham’s case14 the Board propounded two basic
principles and distilled the approach that should be followed in discretionary capital
cases:
(i) that the death penalty should be imposed only in cases which on the facts of the
offence are the most extreme and exceptional, ‘the worst of the worst’ or ‘the rarest of
the rare’. In considering whether a particular case falls into that category, the judge
should of course compare it with other murder cases and not with ordinary civilized
behavior. And:
(ii) that there must be no reasonable prospect of reform of the offender and that the
object of punishment could not be achieved by any means other than the ultimate
sentence of death. The character of the offender and any other relevant circumstances
are to be taken into account in so far as they may operate in his favour by way of
mitigation and are not to weigh in the scales against him. The Trimmingham was
revisited by the Board in White v R15. This view of how the principles of sentencing in
death penalty cases laid down in Trimmingham and the qualification expressed in
White are intended to work together, is amply confirmed by the actual outcome in
White.
Earlier to the development in 2002, the Judicial Committee of the Privy Council in
Reyes16 held that the imposition of a mandatory death sentence on all those convicted
of murder in Belize was “disproportionate” and “inappropriate” and thus inhuman. As
Lord Bingham observed in that case:
… to deny the offender the opportunity, before sentence has been passed, to
seek to persuade the Court that in all the circumstances to condemn him to
death would be disproportionate and inappropriate is to treat him as no
human being should be treated and thus to deny his basic humanity, the core
right of which section 717 of Constitution of Belize exists to protect.18
14
15
16
17
Daniel Dick Trimmingham v The Queen [2009] UKPC 25.
[2010] UKPC 22.
Reyes v the Queen [2002] 2 AC 235: (2002) UKPC 11. Also see R. v. Hughes [2002] 2 AC 259,
(Fox v R [2002] 2 AC 284, Watson v. The Queen [2005] 1 AC 472, Bowe and Davis v. The Queen
[2006] 1 W.L.R. 1623.
Section 7, the Constitution of Belize: “No person shall be subjected to torture or to inhuman or
degrading treatment or punishment”
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In paragraph 44 at page 257 of the report, the Board made a very valid and very
interesting distinction between mercy and justice, which is set out below:
......Mercy, in its first meaning given by the Oxford English Dictionary,
means forbearance and compassion shown by one person to another who is in
his power and who has no claim to receive kindness. Both in language and
literature mercy and justice are contrasted. The administration of justice
involves the determination of what punishment a transgressor deserves, the
fixing of the appropriate sentence for the crime. The grant of mercy involves
the determination that a transgressor need not suffer the punishment he
deserves, that the appropriate sentence may for some reason be remitted. The
former is a judicial, the latter an executive, responsibility....... It has been
repeatedly held that not only determination of guilt but also determination of
the appropriate measures of punishment is judicial not executive functions.
The opportunity to seek mercy from a body such as the Advisory Council
cannot cure a constitutional defect in the sentencing process.19
In United States, from the ratification of the Constitution in 1791 until the 1960s,
the constitutionality of capital punishment was never addressed by the Supreme
Court.20 This is unsurprising as the use of capital punishment was widespread in the
United States in the eighteenth and nineteenth centuries.21 Further, the plain language
of the Constitution seemed to presume that capital punishment would be used. The
Fifth Amendment to the United States Constitution provides that:
18
19
20
21
Id. at ¶ 43.
Supra n. 11, quoted in ¶ 60. See also Matthew v The State (2004) 64 WIR 412, ¶ 65 and 66
(Lord Nicholls of Birkenhead said : “Years ago no one thought mandatory death sentences
were an unusual or inhumane form of punishment. They existed in the United Kingdom until
1965).
Stinneford, John F. (2008). The Original Meaning of ‘Unusual’: The Eighth Amendment as a Bar
to Cruel Innovation, 102 NW. U. L. REV. 1739. Also Granucci, Anthony F. (1969). Nor Cruel and
Unusual Punishments Inflicted: The Original Meaning, 57 CALIF. L. REV. 839, 840 (arguing
“cruel and unusual” was a kind of “constitutional ‘boilerplate”). Quoted from (2011). 101 (2).
The Journal of Criminal law and Criminology, at 449.
See Rackley, J. Caleb, (2005). “Legal Ethics in Capital Cases: Looking for Virtue in Roberts v.
Dretke and Assessing the Ethical Implications of the Death Row Volunteer”, 36 ST. MARY’s L. J.
1119. Quoted from (2011). 101 (2) The Journal of Criminal law and Criminology, at 449.
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“No person shall be held to answer for a capital, or otherwise infamous crime.., nor
shall any person be subject for the same offence to be twice put in jeopardy of life or
limb. . . nor be deprived of life, liberty, or property, without due process of law…..”
In the landmark case of Furman v. Georgia,22 the United States Supreme Court
held five to four that the death penalty, as applied by the various States, constituted
“cruel and unusual” punishment in violation of the Eighth Amendment which
prohibits cruel and unusual punishments, required that all criminal sentences should
be individualized.
After the decision in Furman, the Georgia Legislature amended its statutory
scheme. The amended statute retains the death penalty for six categories of crime:
murder, kidnapping for ransom or where victim is harmed, armed robbery, rape,
treason, and aircraft hijacking. The statutory aggravating circumstances, the existence
of any of which may justify the imposition of the extreme penalty of death, as
provided in that statute.
In Gregg v. Georgia,23 the petitioner attacked the seventh statutory aggravating
circumstance which authorized imposition of the death penalty if the murder was
“outrageously, or wantonly vile, horrible or inhuman” on the ground that it was so
broad that capital punishment could be imposed by its application in any murder case.
In this case one of the principal questions for consideration was, whether capital
punishment provided in a statute for certain crimes was a “cruel and unusual”
punishment. In that context, the nature of the burden which rests on those who attack
the constitutionality of the statute was explained by Stewart. J., thus:
We may not require the legislature to select the least severe penalty possible
so long as the penalty selected is not cruelly inhumane or disproportionate to
the crime involved. And a heavy burden rests on those who would attack the
Judgment of the representatives of the people. This is true in part because the
22
23
408 U.S. 238 (1972).
428 U.S. 153 (1976).
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Constitutional test is intertwined with an assessment of contemporary
standards and the legislative Judgment weighs heavily in ascertaining such
standards. In democratic society legislatures, not Courts are constituted to
respond to the will and consequently the moral values of the people.24
Now, times have changed. Human rights values set higher standards today.
Murders can be committed in all manner of circumstances and these circumstances
can not be treated same. In some the death penalty will plainly be excessive and
disproportionate. As Lord Lane noted, there is “probably no offence in the criminal
calendar that varies so widely both in character and in degree of moral guilt as that
which falls within the legal definition of murder”. Thus, above development related
to capital cases shows that the Court should not confine its consideration
“principally” or merely to the circumstances connected with the particular crime, but
also give due consideration to the circumstances of the “criminal”25.
III- Long- Term Incarceration and Deterrent Effect
India is among the 60 or so Countries that still have death sentences and also
among those that exercises it the least. Only three persons have been executed since
1995 and since 1947, only 55 people had gone to the gallows. The most recent data
says that at least 110 people were sentenced to death. However, for the seventh
successive year, no executions took place.26 Whereas in contrast with China, it is
estimated to execute as many as 5,00027 people a year. In China, the data is
considered a state secret. Amnesty International called on China to publish its data to
confirm their claims of reduction in the use of the death penalty over the last four
years. As far as US is concerned it is ranked fifth in the world of capital punishment.
In 2010, 46 people were executed and 43 in last year. The figure fell slightly from
24
25
26
27
Quoted in ¶ 69, Bachan Singh v. State of Punjab, AIR1980 SC 898.
Id. (“While considering the question of sentence to be imposed for the offence of murder
under Section 302 Penal Code; the court must have regard to every relevant circumstance
relating to the crime as well as the criminal. And “in addition to the circumstances of the
offence, due regard must be paid to the circumstances of the offender, also.” That “the
circumstances pertaining to the criminal must be given due weight is reiterated throughout
the judgment.”)
Annual Report (2012). Amnesty International.
(2011, September 01) Hindustan Times, New Delhi at editorial page.
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2010. “The big executioners are China and Iran and then you have North Korea, Iraq,
Saudi Arabia, Yemen, and Somalia but very sadly... the United States of America as
well.”28
In India, the ‘rarest of rare’ cases condition has been maintained and, if anything,
this has been reinforced. As far as an issue of abolishment of death sentence
altogether in India is concerned, it is taken in terms of developed Countries that
abolished it, they did so not only on humanitarian grounds, but also because their
public security environment improved and public confidence in the ability of their
police and Courts to arrest and convict criminals rose. This is still lacking in India.
There is scant evidence that the death sentence deters criminals, at least no more than
life imprisonment does. The Court on deterrent effect of death penalty in Bachan
Singh‘s case has rested burden to be discharged by the State that it has greater
deterrent effect than life sentence in order to justify its imposition under the law. If the
State fails to discharge this burden which rests upon it, the Court would have to hold
that death penalty has not been shown to have greater deterrent effect and it does not
therefore serve a rational legislative purpose.29
Recently in an Article,30 it was analyzed basing upon the survey of the world’s
leading criminologists, asking their expert opinions on whether the empirical research
supports the contention that the death penalty is a superior deterrent. The findings
demonstrate an overwhelming consensus among these criminologists and strongly
supports the conclusion that the death penalty does not add deterrent effects to those
already achieved by long imprisonment.
However, the statistics of other Countries as to the deterrence aspect could not be
treated as conclusive in Indian context. The Law Commission of India in its report
adhered to the deterrent effect of capital punishment. The commission is of the view
28
29
30
Shetty Salil, Alarming Surge in Execution, available at http://www.bbc.co.uk/news/world17520053 (last visited August 10, 2012)
Bachan Singh v. State of Punjab, 1982 (1) SCALE 713, ¶. 276.
Michael L. Radelet & Traci L. Lacock. (2009).” Do Executions Lower Homicide Rates?: The Views
of Leading
Criminologists”. 99 (2), The Journal of Criminal Low & Criminology, at 489.
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that so long as the society does not become more refined death sentence should be
retained.31 The commission considers the deterrent element in punishment unjustified
if A is punished to deter B i.e. treating the criminal as a means to an end.32 The
Supreme Court in Jagdish v. State of MP, put the greatest emphasis, that human
beings are not chattels and should not be used as pawns in furthering some larger
political or government policy.33 Till now, the judicial administration of the death
penalty in India is being regulated by rarest of rare doctrine coupled with some
provisions of Statute book. However, a moratorium is being seen. Since 1995, till
201l, there had been only one execution, that of Dhananjoy Chatterjee, in August
2004. Thus it does not lead the fact that India is going towards its abolishment.
IV- Theory of Institutional Choice
It is a rarest of rare occurrence for a Justice of highest Court of land to reverse his
or her stance on a particular issue. However, in recent years it has been seen that three
US Supreme Court Justices, Powell, Blackmun, and Stevens, have all called for the
abolition of the death penalty, repudiating their prior approval of the use of capital
punishment.34 Justice Lewis Powell who dissented in Furman v. Georgia,35 but voted
with the three-Justice plurality in Gregg v. Georgia,36 and authored the majority
opinion in McCleskey v. Kemp37 became the first repudiator of the use of the death
penalty. On asking, retired Justice Powell replied to his former law clerk John
Jeffries38 in the summer of 1991 that “yes, I have come to think that capital
punishment should be abolished”. After his retirement in 1991, Justice Powell
continued to work on issues related to administration of death penalty. Certainly his
31
32
33
34
35
36
37
38
Law Commission of India (Sept 1967) 35th Report, Vol.I-II, P. 54.
Id. at 111.
2010 (1) ALD (Cri) 277 ¶. 13, 2010 (1) ALT (Cri) 165. Also comp. Rajendra Prasad v. :State of
Uttar Pradesh, AIR 1979 SC 916, 1979 Cri. L. J 792, (1979) 3 SCC 646.
William W. Berry III. (2011.). “Repudiating Death”. 101 (2) The Journal of Criminal Law &
Criminology, at 441.
408 U.S. 238 (1972). Furman held that the death penalty violated the Eighth Amendment
because its application was so arbitrary as to constitute “cruel and unusual” punishment.
Supra n. at 22.
481 U.S. 279 (1987). McCleskey upheld the death penalty.
John C. Jeffries, (1994). Jr., Justice Lewis F. Powell, Jr.: A Biography, Fordham University Press.
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work would have been a contributory factor of clear repudiation of death penalty in
findings of several committees seeking to improve the administration of capital
punishment in United States.39 Their respective rejections of the death penalty were
institutional (and not moral) choices. The experience of these Justices in the Court
over the past thirty-five years demonstrated the extreme difficulty in interpreting and
applying the Eighth Amendment in a manner that ensures that states’ administration
of the death penalty is fair and non-arbitrary. Therefore, the futility of trying to correct
the myriad of problems with the States’ use of the death penalty led them to the
conclusion that no fruitful remedy exists other than abolishing capital punishment.40
In Herrera v. Collins, Herrera sought to prove his innocence by introducing an
affidavit signed by his then-deceased brother that admitted to committing the
homicide for which Herrera was found guilty. The Supreme Court upheld procedural
bars to Herrera’s claim of actual innocence on habeas appeal41. Justice Blackmun
again dissented, expressing shock at the decision to foreclose the ability to bring a
claim of innocence, even though technically procedurally barred, stating:
Nothing could be more contrary to contemporary standards of decency, or
more shocking to the conscience, than to execute a person who is actually
innocent42. I have voiced disappointment over this Court’s obvious eagerness
to do away with any restriction on the States’ power to execute whomever
and however they please…………. The execution of a person who can show
that he is innocent comes perilously close to simple murder.43
The institutional basis of rejection of these justices is strengthened when we go
through the recent research done by Columbia Law School Professor James Liebman
and a team of students uncovering evidence that Carlos De Luna, a poor Hispanic
man with childlike intelligence who was executed in Texas in 1989. This poignantly
reveals how easily the legal system can fail to produce just outcomes even without
39
40
41
42
43
Id. at 451.
Supra n. 34, at 444.
506 U.S. 390 (1993).
Id. at 430 (Blackmun, J., dissenting).
Id. at 446.
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the deliberate interference of individuals acting in bad faith and how the
consequences of such failures can be irrevocable and, at times, fatal. The authors of
the research have identified the numerous missteps, missed clues, and missed
opportunities that led authorities to prosecute Carlos De Luna for the crime of
murder, despite evidence not only that he did not commit the crime but that another
individual, Carlos Hernandez, did.44 This all show that the Carlos case may be one
of the cases which have been decided on mistaken identity.
In our States’ administration of the death penalty, Bachan Singh’s dictum came
in 1980 thrusting upon that “in addition to the circumstances of the offence, due
regard must be paid to the circumstances of the offender, also.”45 Thus, to fulfill the
requirement of rarest of rare principle, it is incumbent upon the Court to give due
compliance to the provisions of 235(2)46 and 354 (3)47 of the Criminal Procedure
Code with due weightage given to circumstances of the criminal. However, in 1996
Ravji alias Ramachandra’s case came before the apex Court in which it was held
that “it is the nature and gravity of the crime but not the criminal which are germane
for consideration for consideration of appropriate punishment in a criminal trial.”48
This was contrary to the binding dictum in Bachan Singh’s case. In 2009, the
Supreme Court made admission of this error in Santosh Kumar Bariyar v. State of
Maharashtra, and noted that:
We are not oblivious that this case (Ravji) has been followed in at least 6
decisions of this Court in which death punishment has been awarded in last 9
years, but, in our opinion, it was rendered per incuriam…. Shivaji @ Dadya
44
45
46
47
48
James S. Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White,
and Daniel Zharkovsky, Los Tocayos Carlos, (2012). 43 (2) The Columbia Human Rights Law
Review (HRLR), (http://www3.law.columbia.edu/hrlr/ltc/), [Texas has the highest execution
rate in the US with 482 prisoners killed since 1976]
Supra n. 24.
Supra n. 5.
Supra n. 6.
Ravji alias Ram Chandra V. State of Rajasthan, AIR 1996 SC 787, ¶ 25, (1996) 2 SCC 175, 1995
(6) SCALE 745.
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Shankar Alhat v. State of Maharashtra49, Mohan Anna Chavan v. State of
Maharashtra,50 Bantu v. State of U.P.51, Surja Ram v. State of Rajasthan52,
Dayanidhi Bisoi v. State of Orissa53 and State of U.P. v. Sattan54 are the
decisions where Ravji has been followed. It does not appear that this Court
has considered any mitigating circumstance or a circumstance relating to
criminal at the sentencing phase in most of these cases. It is apparent that
Ravji has not only been considered but also relied upon as an authority on the
point that in heinous crimes, circumstances relating to criminal are not
pertinent”55. Again in Dilip Premnarayan Tiwari, the Supreme Court referred
to Bariyar’s case and held that “We would, thus, follow Bachan Singh's
case and the principles therein rather than ……. Ravji's case.56
Some other cases are also there which has wrongly been decided. Thus, the
Carlos case was one of mistaken identity whereas in India, there are mistakes of a
different kind.57
V- Conclusion and Suggestions
Could these different kind of mistakes found in criminal justice system of India
be put at par with institutional choice which was asserted by three Justices above or a
situation which was faced in Herrera or a mere instance of miscarriage of justice or
could these resolve the issue of conflicting values about abolishment or retention of
the capital punishment?. The questions remain unanswered. However, it raises a
significant question of constitutional equality and the question relating to the
administration of the death penalty in accordance with law. The mistakes, though not
ordinary, are against the very tenets of rule of law, yet correctionable but in time.
49
50
51
52
53
54
55
56
57
AIR 2009 SC 56.
(2008) 11 SCC 113.
(2008) 11 SCC 113.
1997 Cri L J 51.
2003 Cri L J 3697.
(2009) 4 SCC 736.
Santosh Kumar Bariyar vs State of Maharashtra, (2009) 6 SCC 498, ¶ 66 and 67.
Dilip Premnarayan Tiwari and Anr. V. State of Maharashtra, (2010)1 SCC 775, ¶ 43.
Sridevan, Prabha, former Judge of the Madras High Court, and Chairperson, Intellectual
Property Appellate Board, (2012, July 6). Take these men off death row, The Hindu, New
Delhi.
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They could not put at par with Herrera‘s situation wherein Justice Blackmun
dissented and assessed the situation amounting to murder. However, central debate
again remains unresolved even on the basis of theory of institutional choice since the
concept of punishment is supported by prohibition of cruel and unusual punishments,
and the just deserts58 dictum.
A moratorium seen on the death penalty in India could not be capable to give a
turn in democratic thinking and can not bring a constitutional justification. However,
the proposition in T V. Vatheeswaran, Sher Singh and Triveniben in compliance with
Article 21 of the Constitution has not only the justification but it has an indication of
perceptions towards humanity also. As far as the empirical researches supported by
the criminologists on the question of deterrence are concerned they may be relied
partially due to the lack of sufficient statistical data in India, but they may take a lead
if sufficient suppositions are provided. However, there is scant evidence that the death
sentence deters criminals, at least no more than life imprisonment does. The
framework of administration of death penalty like rarest of rare dictum, Mithu‘s case
and unconstitutional mandatory death penalty including statutory provisions drawing
an exceptional dealing with the punishment is suggestive to be more exceptional in
the given circumstances. With reference to Sher Singh and Triveniben’s proposition
and presidential pardon, death penalty must be seen in the most extremity till the
society becomes more refined in order to keep aside the extrajudicial lynching.59
Further, it is submitted that the rarest of rare dictum should be re-visited to make it
more exceptional. Formal guidelines should be issued to the institutions which come
in the way of death penalty execution proceedings by amending the Constitution so
that the legislative object of death can be able to prevent political wish of executive
disordering the system of justice and public confidence.
58
Walker, Nigel. (1991). Why punish?, Oxford University Press, at 9.
59
May See Michael J. Klarman, (Carol S Steiker ed., 2006) Powell v. Alabama: The Supreme Court
Confronts “Legal Lynchings,” in CRIMINAL PROCEDURE STORIES 1, p. 42-43 (describing the
phenomenon of the Supreme Court responding to “legal lynchings” with new constitutional
protections in the context of the famous “Scottsboro Boys” case).
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