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Posted by : Indian National Bar Association on | Jul 14,2015

Death Penalty : Contemporary Issues

Capital Punishment, legal infliction of death as a penalty for violating criminal law. Throughout history people have been put to death for various forms of wrongdoing. Methods of execution have included such practices as crucifixion, stoning, drowning, burning at the stake, impaling, and beheading. Today capital punishment is typically accomplished by lethal gas or injection, electrocution, hanging, or shooting.
 
The death penalty is the most controversial penal practice in the modern world. Other harsh, physical forms of criminal punishment - referred to as corporal punishment - have generally been eliminated in modern times as uncivilized and unnecessary. In the majority of countries, contemporary methods of punishment - such as imprisonment or fines - no longer involve the infliction of physical pain (see Corporal Punishment). Although imprisonment and fines are universally recognized as necessary to the control of crime, the nations of the world are split on the issue of capital punishment. About 90 nations have abolished the death penalty and an almost equal number of nations (most of which are developing countries) retain it. 
 
The trend in most industrialized nations has been to first stop executing prisoners and then to substitute long terms of imprisonment for death as the most severe of all criminal penalties. The United States is an important exception to this trend. The federal government and a majority of U.S. states allow the death penalty, and on average 75 executions occur each year throughout the United States.
 
 A.BRUTUALIY
 
Early opponents of capital punishment objected to its brutality. Executions were public spectacles involving cruel methods. In addition, capital punishment was not reserved solely for the most serious crimes. Death was the penalty for a variety of less serious offenses.
 
The allegations of brutality inspired two different responses by those who supported executions. First, advocates contended that capital punishment was necessary for the safety of other citizens and therefore not gratuitous. Second, death penalty supporters sought to remove some of the most visibly gruesome aspects of execution. Executions that had been open to the public were relocated behind closed doors. Later, governments replaced traditional methods of causing death—such as hanging—with what were regarded as more modern methods, such as electrocution and poison gas.The search for less brutal means of inflicting death continues to recent times. In 1977 Oklahoma became the first U.S. state to authorize execution by lethal injection—the administration of fatal amounts of fast-acting drugs and chemicals. Lethal injection is now the preferred method of execution in the majority of U.S. states. However, modern opponents of capital punishment contend that sterilized and depersonalized methods of execution do not eliminate the brutality of the penalty.
 
B. Dignity
 
In the debate about execution and human dignity, supporters and opponents of the death penalty have found very little common ground. Opponents of capital punishment assert that it is degrading to the humanity of the person punished. Since the 18th century, those who wish to abolish the death penalty have stressed the significance of requiring governments to recognize the importance of each individual. However, supporters of capital punishment see nothing wrong with governments deliberately killing terrible people who commit terrible crimes. Therefore, they see no need to limit governmental power in this area. 
 
C. Effectiveness
 
Early opponents of capital punishment also argued that inflicting death was not necessary to control crime and properly punish wrongdoers. Instead, alternative punishment—such as imprisonment—could effectively isolate criminals from the community, deter other potential offenders from committing offenses, and express the community's condemnation of those who break its laws. In his Essay on Crimes and Punishments, Beccaria asserted that the certainty of punishment, rather than its severity, was a more effective deterrent.
 
Supporters of capital punishment countered that the ultimate penalty of death was necessary for the punishment of terrible crimes because it provided the most complete retribution and condemnation. Furthermore, they argued that the threat of execution was a unique deterrent. Death penalty supporters contended that capital punishment self-evidently prevents more crime because death is so much more feared than mere restrictions on one’s liberty.
 
Supporters and opponents of capital punishment still debate its effectiveness. Social scientists have collected statistical data on trends in homicide before and after jurisdictions have abolished capital punishment. They have also compared homicide rates in places with and without the death penalty. The great majority of these statistical comparisons indicate that the presence or absence of capital punishment or executions does not visibly influence the rate of homicide. 
 
Opponents of capital punishment maintain that these studies refute the argument that the death penalty deters crime. Many capital punishment opponents consider the deterrence argument fully negated and no longer part of the debate. However, supporters of the death penalty dispute that interpretation of the statistical analyses of deterrent effect. Capital punishment advocates note that because the death penalty is reserved for the most aggravated murders, the deterrent effect of capital punishment on such crimes may not be apparent in data on homicide rates in general. Supporters also urge that the conflicting results of various studies indicate that the deterrent effect of the death penalty cannot not be proven or disproven with any certainty. They maintain that in the absence of conclusive proof that the threat of execution might not save some people from being killed, capital punishment should be retained.
 
D. Human Rights
 
A unique facet of the modern debate about capital punishment is the characterization of the death penalty as a human rights issue, rather than a debate about the proper punishment of criminals. Modern opposition to the death penalty is seen as a reaction to the political history of the 20th century, most notably the Holocaust—the systematic mass killing of Jews and others during World War II (1939-1945). All the major nations in Western Europe utilized capital punishment prior to World War II. After the defeat of the National Socialist (Nazi) and Fascist governments of Germany and Italy, those two nations became the first major powers in Europe to abolish capital punishment. The postwar movement to end capital punishment, beginning in Italy and Germany and then spreading, represented a reaction to totalitarian forms of government that systematically violated the rights of the individual (see Totalitarianism). 
 
The human rights focus on the death penalty has continued, especially in settings of dramatic political change. When people view capital punishment as a human rights issue, countries that are becoming more democratic have been eager to abolish the death penalty, which they associate with the former regime and its abuses of power. For example, a number of Eastern European nations abolished capital punishment shortly after the collapse of communist regimes there in 1989. Similarly, the multiracial government of South Africa formed in 1994 quickly outlawed a death penalty many associated with apartheid, the official policy of racial segregation that had been in place since the late 1940s. 
 
HISTORY
 
For most of recorded history, capital punishment was available to every government for especially serious crimes and often for a great variety of less serious offenses. The term felony, which today signifies all serious crime, was the traditional classification in England for crimes punishable by death. Since the 18th century, the long-term trend in nations of Western Europe and North and South America has been a reduction of the number of capital crimes (criminal offenses punishable by death) and the execution of fewer criminals.
 
A. Early Efforts Against the Death Penalty
 
Some distinctive doctrines in criminal law originated in efforts to restrict the number of capital crimes and executions. For instance, in the late 18th century, when all murder in the United States was punishable by death, Pennsylvania pioneered in dividing murder into two categories. The state enacted laws that authorized punishment of first-degree murder by death, while second-degree murder was punishable by imprisonment only. Elsewhere, penal codes uniformly required death for certain serious crimes. In these jurisdictions, discretionary powers to commute death sentences gradually expanded. (A commutation substitutes a lesser penalty for a more severe one—for example, replacing execution with a life sentence.) Today in many nations, including Turkey and Japan, the death penalty remains legal but the number of executions has declined over time. 
 
Although many jurisdictions limited imposition of the death penalty, no government had formally abolished capital punishment until Michigan did so in 1846. Within 20 years Venezuela (1863) and Portugal (1867) had formally eliminated the practice as well. By the beginning of the 20th century the death sentence had been abolished in a handful of nations, such as Colombia, Costa Rica, Ecuador, Norway, and The Netherlands. Although not formally eliminated, it had fallen into disuse in many others, including Brazil, Cape Verde, Iceland, Monaco, and Panama.
 
B. After World War II
 
The defeat of the Axis powers provided a foundation for the elimination of the death penalty in Western Europe. Some of the nations involved in the war saw abolition of capital punishment as a way to disassociate themselves from the atrocities that had taken place. Italy formally abolished the death penalty in 1947 and the Federal Republic of Germany did so in 1949. The British government instituted a Royal Commission to study capital punishment in 1950 and abolished the death penalty in 1965. (Northern Ireland did not abolish capital punishment until 1973.) By the early 1980s every major country in Western Europe had stopped executing criminals.
 
Coincident with this trend in Western Europe, many countries belonging to the Commonwealth of Nations, an association of countries formerly affiliated with the British Empire, eliminated capital punishment. For instance, Canada conducted its last execution in 1962 and abolished the death penalty in 1976. New Zealand held its last execution in 1957 and Australia stopped executing criminals ten years later.
 
A similar burst of abolitionist activity coincided with the breakup of the Soviet Union. East Germany, the Czech Republic, and Romania all outlawed capital punishment between 1987 and 1990. Throughout the former Communist countries, abolition of the death penalty was a political act far removed from the usual domain of criminal justice policymaking. Eliminating the death penalty was one of many ways the citizens of these countries rejected unlimited state power over individual life. For example, in Romania the overthrow of dictator Nicolae Ceausescu was followed by his execution and that of members of his family. Shortly thereafter, the new government abolished capital punishment, which was associated with Ceausescu’s brutal, tyrannical rule.
 
C. Current Status
 
Capital Punishment Worldwide
 
By the early 21st century, for the first time in history, most of the world’s nations had abolished the death penalty in law or in practice—that is, executions were not carried out or a moratorium was imposed on the death penalty so that capital punishment was effectively not practiced. As of 2007, 133 countries had abolished the death penalty in law or practice, and only 64 countries retained the death penalty and continued to execute. 
 
None of the countries in Western Europe utilize capital punishment, nor do most countries in South America. Asian countries and Islamic nations tend to practice capital punishment. The majority of countries in Africa also authorize the death penalty. 
 
Countries that Have Abolished the Death Penalty for All Crimes
 
In general, industrial democracies have abolished the death penalty, while nonindustrialized nations are much more likely to retain capital punishment. Only two advanced industrial democracies, the United States and Japan, retain the death penalty. A number of newly industrialized Asian nations, such as South Korea, also practice capital punishment. Dictatorships and other forms of totalitarian governments tend to be highly active in conducting executions.
 
Although the trend has been that fewer countries allow executions, any worldwide trend in the number of executions conducted cannot be reliably established. According to Amnesty International, a total of 1,591 prisoners were executed in 25 countries in 2006. Five nations—China, Iran, Pakistan, Sudan, and the United States—conducted 91 percent of these executions. However, information about executions is somewhat unreliable because not all executions are reported and not all reported executions can be confirmed.
 
The worldwide trend toward abolition of capital punishment will likely continue. Among industrialized nations, those that have abolished the death penalty have shown no tendency to reverse this policy, and transnational agreements in Western Europe now support abolition of capital punishment. Only major political instability could be expected to reverse the trend in Europe, Canada, and South America. Among nations that have retained capital punishment, pressure to reduce or eliminate the death penalty appears to be increasing. China and the Islamic nations of Asia and the Middle East are likely to continue executions. 
 
The death penalty has long been available as a punishment for the most aggravated murders in the United States. Since the birth of our nation, it has been an accepted fixture in our country’s criminal codes. Capital sentences are expressly recognized in the Constitution of the United States, which provides for the taking of “life, liberty, or property” with due process of law. The president, the Congress of the United States, the Supreme Court of the United States, and the overwhelming majority of the American people support capital punishment. The federal government and about 40 states provide for capital sentences, as do the laws of many other countries. This widespread support for the death penalty rests on the important societal goals served by executing the most terrible murderers. Nothing in the arguments by those opposing the penalty gives a reason for retreating from these principles.
 
Criminal justice systems impose punishments for at least three important reasons: just punishment, deterrence, and incapacitation. Capital punishment furthers each of these goals more effectively than do long terms of imprisonment.
 
Just Punishment
 
Perhaps the most important goal of a criminal justice system is to impose just punishment. A punishment is just if it recognizes the seriousness of the crime. “Let the punishment fit the crime” is a generally accepted and sound precept. In structuring criminal sentences, society must determine what punishment fits the premeditated taking of innocent human life. To be proportionate to the offense of cold-blooded murder, the penalty for such an offense must acknowledge the inviolability of human life. Murder differs from other crimes not merely in degree; murder differs in kind. 
 
Deterrence
 
The death penalty is also justified because of its deterrent effect, which saves the lives of innocent persons by discouraging potential murderers. Logic supports the conclusion that capital punishment is the most effective deterrent for premeditated murders. A capital sentence is certainly a more feared penalty than a prison term. The lengths to which convicted murderers go to avoid imposition of this sentence clearly demonstrates this fact, as do interviews with prison inmates. To be sure, the death penalty does not deter all murders. But because a capital sentence is more severe than other penalties, it is reasonable to assume that its existence will lead at least some potential murderers to decide against risking execution. As the Supreme Court has observed, “There are carefully contemplated murders, such as the murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act.” 
 
Incapacitation
 
Capital punishment also serves to effectively prevent murderers from killing again. This incapacitation effect is particularly important because of the continuing risk posed by those who have already taken a human life. For example, according to data from the Bureau of Justice Statistics, of 52,000 state prison inmates serving time for murder in 1984, an estimated 810 had previously been convicted of murder. Had some of these murderers been given the death penalty for their first murders, innocent people would have been spared. The next most serious penalty, life imprisonment without the possibility of parole, leaves prison guards and other prisoners at risk. Indeed, without the death penalty, a murderer serving a life term has, in effect, a license to kill. Such lifers can literally get away with murder, because no incremental punishment can be imposed on them. A prisoner serving a life term may also escape from prison or obtain parole or executive clemency. Only a capital sentence can permanently end the threat to others posed by the most serious murderers.
 
Flaws in the Arguments for Abolition
 
Racial Bias
 
Occasionally the charge is made that the death penalty is administered in a racially biased fashion. But the empirical evidence does not reveal any discrimination against black defendants facing the death penalty. The Bureau of Justice Statistics in 1984 compiled the relevant data on the performance of the criminal justice system. About 48 percent of all murderers were black, but about 42 percent of those sentenced to death were black. In other words, a lower percentage of black murderers receive the death penalty than white murderers. The reason for this difference is that in general, homicides by white murderers are slightly more aggravated than those by black murderers. This data is strong evidence that the nation’s tragic history of discrimination against blacks in the criminal justice system has no relevance to the current administration of capital punishment.
 
Recognizing that the data fail to support a claim that black murderers are more likely to be executed, opponents of the death penalty have recently shifted to the claim that those who murder whites are more likely to be executed than those who murder blacks. At first glance, this might be viewed as an argument for expanding capital punishment to ensure that black victims receive justice no less than white victims. But in any event, this purported effect of the race of the victim disappears when the relevant circumstances of individual murders are considered. Many black-on-black murders are committed during altercations between persons known to each other, circumstances not typically thought to warrant a death sentence. On the other hand, black-on-white murders (and to a lesser extent, white-on-white murders) are more often committed during the course of robberies or other serious felonies, circumstances often prompting a capital sentence. In a careful analysis of the alleged effect of the race of the victim, a federal district court in Georgia found that racial effects disappeared when variables controlling for such relevant factors were added in.
 
Risk to the Innocent
 
Sometimes the claim is made that the possibility of executing an innocent person requires the abolition of the death penalty. This claim gives excessive weight to what is a minute risk in maintaining capital punishment while ignoring the much larger and countervailing risks in abolishing capital punishment.
 
The risk that an innocent person might be executed is minuscule. Our contemporary system of capital punishment contains an extraordinary array of safeguards to protect innocent defendants, including in many jurisdictions appointment of specially qualified counsel at the trial level and multiple appeals through both the state and federal courts. Before any sentence is carried out, the governor of the state typically will carefully examine the case to make sure that the murderer deserves a death penalty. In light of all of these safeguards, it would be extraordinary if an innocent person were to be executed. And, indeed, there is no credible, documented case of an innocent person being executed in this country for at least the last 50 years.
 
While no innocent person has been shown to have died in recent memory as a result of capital punishment, innocent people have died because of our failure to carry out capital sentences. In a number of documented cases, murderers have been sentenced to death only to escape these sentences in one way or another. Some of these murderers have gone on to kill again. 
 
The horrific case of Kenneth McDuff starkly illustrates this. Sentenced to death for two 1966 murders, he narrowly escaped execution three times before his death sentence was commuted to a prison sentence in 1972. Ultimately released in 1989, McDuff proceeded to rape, torture, and murder at least nine women, and probably many more. After the television show America’s Most Wanted aired a program about him, McDuff was arrested in 1992, convicted, and given two death sentences. Based on cases such as McDuff’s, it is quite clear that innocent people are more at risk from a criminal justice system that fails to carry out death penalties than from one that employs them.
 
The death penalty is vital to carrying out the mission of the criminal justice system. It is just punishment for the deliberate taking of innocent human life. It prevents some murders through its deterrent effect and prevents other murders by permanently incapacitating the most dangerous killers. It is therefore no surprise that capital punishment receives such broad support in the United States.
 
But in the face of a growing culture of death, every effort should be made to promote a culture of life. Therefore, we believe that the primary response to these situations should not be the use of the death penalty but should instead be the promotion of needed reform of the criminal justice system so that society is more effectively protected. One alternative to the death penalty is life without the possibility of parole for those who continue to pose a deadly threat to society. Our Conference has addressed these challenges in its criminal justice statement entitled Responsibility, Rehabilitation, and Restoration.1 (1 United States Conference of Catholic Bishops, A Culture of Life and the Penalty of Death: A Statement of the United States Conference of Catholic Bishops Calling for an End to the Use of the Death Penalty (Washington, DC: USCCB, 2005), 7.)
 
 
Our family of faith must care for sisters and brothers who have been wounded by violence and support them in their loss and search for justice. They deserve our compassion, solidarity, and support—spiritual, pastoral, and personal. However, standing with families of victims does not compel us to support the use of the death penalty…. For many left behind, a death sentence offers the illusion of closure and vindication. No act, even an execution, can bring back a loved one or heal terrible wounds. The pain and loss of one death cannot be wiped away by another death.5
Ravi Nair , Human Rights activist: Yes. It rarely acts as a deterrent. And what if the person is innocent? The debate has been an ongoing one. The last time the Lok Sabha specifically discussed the question was in 1983. Then prime minister Indira Gandhi had stated that she favoured abolition of death penalty. But her minister of state for home affairs, N R Laskar announced that the government was not considering any...(times of india).
 
With only twenty one countries reported as having practiced capital punishment in 2010, the United States remains one of the only remaining developed nations that enforces it. While the death penalty continues to become less commonly pursued, the surrounding controversy and debate remains heated.
 
Amnesty International – Arguing that capital punishment violates human rights, Amnesty International is devoted to ending its practice. Further, this organization is interested in protecting those faced with the death penalty.
 
Capital punishment is a legal but rarely carried out sentence in India. Imposition of the penalty is not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life imprisonment.[1] In recent times there has been numerous gaps; between the hanging of on Auto Shankar in 1995 and Dhananjoy Chatterjee in 2004, and thereafter until the execution of Ajmal Kasab in 2012 and Afzal Guru in 2013.[2]
 
The Supreme Court of India ruled in 1983 that the death penalty should be imposed only in "the rarest of rare cases."[4] Crimes which are punishable by death sentence are murder, gang robbery with murder, abetting the suicide of a child or insane person, waging war against the nation, and abetting mutiny by a member of the armed forces.[4] In 1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed which applied mandatory death penalty for a second offence of "large scale narcotics trafficking". On 16 June 2011, the Bombay High Court ruled that Section 31A of the NDPS Act, which imposed mandatory sentence, violated Article 21 (Right to Life) of the Constitution and that a second conviction need not be a death penalty, giving judges discretion to decide about awarding capital punishment.[5][6] In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities.[4]
 
India's apex court has recommended the death penalty be extended to those found guilty of committing "honour killings" with the Supreme Court stating that honour killings fall within the "rarest of the rare" category and deserves to be a capital crime.[7] The Supreme Court also recommended death sentences to be awarded to those police officials who commit police brutality in the form of encounter killings.[8]
 
On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi, the Indian Government passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a "persistent vegetative state".[9][10]
 
In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty.[11][12][13][14][15] In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to ban death penalty.[1]
 
In India the death penalty is carried out by hanging. An attempt to challenge this method of execution failed in the Supreme Court, which stated in its 1983 judgement that hanging did not involve torture, barbarity, humiliation or degradation.[4]
 
 For example, records on death penalty shows that the first man to receive this capital punishment was Daniel Frank, in the 15th century. However, it is important to note that justification of death penalty varies from one society to the other and in contemporary world where everyone thinks the world is more liberalized than ever, death penalty is likely to receive support and criticism from different quarters in the society.
 
CAUSES
 
Therefore, the root causes of death penalty arise from retribution. One of the main arguments against death penalty based on the root causes has been wrong conviction. There are thousands of people in the world who have wrongly faced the hangman noose though they were wrongly convicted (Andrews 62). Therefore, although the root cause of death penalty is to punish individuals who have committed capital offences, this may not always be the case considering the number of people who are wrongly convicted.
 
EFFECT
 
Detrence , According to sociology theories, every individual plays an important role in the society, being a child, a father, or a mother and as a member of the society. When this individual is taken away from the society, it means one part of the society is usually taken away (Andrews 27). Death penalty causes a lot of disruption in the society. Losing one member of the society means that the roles that he or she used to play will have to be taken by other people and this leads to disorientation of individual roles in the society. For example, when a married man is hanged, his family is left without a bread winner. This role has to be taken up by another person be it the mother, close relative, or the society at large. While this aspect may look at economic aspect alone, it is also important to consider the emotional effect this will have on children and their mother. The emotional support they used to get from their father will not be easily taken by another member of the society (Melissa). Therefore, one effect of death penalty is that it leads to disorientation of societal roles and causes a lot of disruption in the society. The burden and pain of death penalty is borne by those who are left behind (Johnson 47). Children left without a mother or a father have to chart their own way in life while wives left without husbands or husbands left without wives have to bear the duty of raising the family alone.
Alternative-community policing, rehabilitation, and life imprisonment. One of the alternatives to death penalty that is practiced in the world is life imprisonment. In most countries where death penalty has been abolished, life imprisonment is preferred. Rehabilitation has been advanced as one of the most possible solution to the problem of death penalty. As opposed to retribution, rehabilitation adopts the principle of restitution and it is geared towards restoring individuals back to the society as reformed people. Like any other crime, death penalty is committed for a reason.
The other alternative to death penalty is taking primary level of prevention. 
 
Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment.” ? J.R.R. Tolkien, The Fellowship of The Ring
 
The constitutional validity of the death penalty was challenged from time to time in numerous cases starting from Jagmohan Singh v. State of U.P where the SC rejected the argument that the death penalty is the violation of the “right to life” which is guaranteed under article 19 of the Indian constitution. In another case Rajendra Prasad v. State of UP, Justice Krishna Iyer has empathetically stressed that death penalty is violative of articles 14, 19 and 21. But a year later in the landmark case of Bachan Singh v. State of Punjab, by a majority of 4 to 1 (Bhagwati J.dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases’. The Supreme Court in Machhi Singh v State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed.
 
Similarly in various other cases the Supreme Court has given its views on death penalty and on its constitutional validity. But the punishment of death penalty is still used in India, some time back the death penalty was given to Mohammad Ajmal Kasab. The Pakistani gunman convicted in 2008 Mumbai attacks was sentenced to death by hanging and after a long discussion, politics and debate was finally hanged on 21 November 2012. Next in the row is Afzal Guru, convicted in 2001 Parliamentary attacks was also hanged after a huge political discussion on 9 February 2013.The next convict in the death row is Devendra Pal Singh Bhullar, convict of 1993 car bombing will be hanged in the coming days as his mercy petition was rejected by the Supreme Court by holding that in terror crime cases pleas of delay in execution of death sentence cannot be a mitigating factor.
 
Sanction is an essential ingredient of law. Punishment is a social custom and institutions are established to award punishment, after following criminal justice process. Governments prohibit taking life, liberty or property of others and specify the punishments, threaten those who break the law. Death penalty in India is not completely abolished but given in rarest of the rare cases which in my opinion must be retained for incorrigibles and hardened criminals but its use should be limited to rarest of rare cases so as to reduce the chances of arbitrariness in judicial process and failure of justice.[/highlight]
 
Case laws referred:
 
Jagmohan Singh v. State of U.P (1973) 1 SCC 20.
Rajendra Prasad v. State of UP, AIR 1979 SC 917.
Bachan Singh v. State of Punjab,(1979) 3 SCC 727.
Machhi Singh v. State of Punjab ,AIR 1983 SC 957.
 
 The judgment of Bariyar, citing Bacchan Singh, states that the prosecution needs to prove that the accused is not capable of any reform. At this juncture I want to highlight the folly of this procedure. Firstly, it is extremely difficult to prove that an accused is beyond any possible rehabilitation and secondly the evaluation of this rests once again on the judiciary who do not have the expertise to gauge such an important issue on the basis of which the sentence will be given. The assistance of expertise is not going to wipe out the arbitrariness, because there are other judgments in which the Court to suit its whims and fancies have disregarded expertise opinion.[1]
 
These include the fact that those wrongly found guilty are sometimes sentenced to death, and in all likelihood some of these have been, and will be, executed. Death sentences have historically reflected racial bias, in that they are more likely to be imposed if a murderer’s victim is white, as opposed to non-white. Being subject to capital punishment often hinges on the quality of one’s legal counsel, which itself depends on one’s economic status, so the poor are more likely to be executed than the rich. 
 
The death penalty is so popular that abolition will be impossible without a significant shift in public opinion. Such shifts have occurred several times in the past 250 years, however, and may occur again. In the past they have been caused by changing attitudes about the extent to which crime is a consequence of the criminal’s free will, changes that seemed to flow from better understanding of human behavior. We can expect similar developments in the future…[T]he balance of Americans’ beliefs about free will is not likely to remain static forever. When it changes, so too will opinion on capital punishment.
 
That Article 4 of the American Convention on Human Rights recognizes the right to life and restricts the application of the death penalty;
That everyone has the inalienable right to respect for his life, a right that cannot be suspended for any reason;
That the tendency among the American States is to be in favor of abolition of the death penalty;
That application of the death penalty has irrevocable consequences, forecloses the correction of judicial error, and precludes any possibility of changing or rehabilitating those convicted;
That the abolition of the death penalty helps to ensure more effective protection of the right to life;
That an international agreement must be arrived at that will entail a progressive development of the American Convention on Human Rights, and
That States Parties to the American Convention on Human Rights have expressed their intention to adopt an international agreement with a view to consolidating the practice of not applying the death penalty in the Americas,.
 
According to the UN Universal Declaration of Human Rights everyone has the right to life, liberty and security of person. As yet, there is no general prohibition against the death penalty in international law. In Sweden’s view, the death penalty is a deeply inhuman punishment that should be abolished.
 
Article 3 of the UN Universal Declaration of Human Rights states that “Everyone has the right to life, liberty and security of person”. According to Article 6 of the International Covenant on Civil and Political Rights, the right to life is to be protected by law. The same Article prohibits states from arbitrarily depriving persons of their lives. Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms contains similar provisions on the right to life.
 
As yet, there is no general prohibition against the death penalty in international law. There are, however, a number of restrictions on its application and an emphatic call to work for the total abolition of the death penalty. The relevant standards are Article 3 of the UN Universal Declaration of Human Rights on the right to life and Article 6 of the International Covenant on Civil and Political Rights, also this on the right to life. The UN Economic and Social Council (ECOSOC) has adopted safeguards guaranteeing protection of the rights of those facing the death penalty..
 
Safeguards guaranteeing protection of the rights of those facing the death penalty
 
Approved by Economic and Social Council resolution 1984/50 of 25 May 1984
1. In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.
2. Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
3. Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.
4. Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.
5. Capital punishment may only be carried out pursuant to a final judgement rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.
6. Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.
7. Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.
8. Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence.
9. Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering.
 
Criminals, who can be hired to kill any one or to throw a bomb in a crowd killing many innocent men, women and chil-dren deserve no sympathy. We can not ignore the interests of the community or the country while considering whether death sentence would be appropriate in a particular case. So far as juveniles are concerned they have to be dealt with under the appropriate Acts for juvenile offenders and there is no question of awarding death sentence in their case.; Thus after taking into consideration the interests of the individuals on the one hand and interests of the community on the other, it would be highly imprudent to abolish the death penalty.
 
Those who support the death penalty contend that it serves two primary purposes: retribution and deterrence. Retribution has two subcomponents. On one hand, the imposition of the death penalty allows society to express its moral outrage at the commission of the most outrageous of offenses: the taking of innocent life. And, on the other hand, the death penalty is a just punishment in terms of retribution: an eye for an eye, a life for a life. Taken together, these two facets of retribution are said to restore social order, which has been upset by the commission of a terrible crime.
 
The death penalty is unjust and inhuman. Its continued use is a stain on a society built on humanitarian values, and it should be abolished immediately.
 
Many think that there could be nothing wrong with the death penalty as the Indian Constitution allows for capital punishment, which means that the founding fathers of this country must have also fully approved of it. In reality, several members of the Constituent Assembly were firmly opposed to the death penalty.
 
The architect of the Constitution, Babasaheb Ambedkar, admitted in the Constituent Assembly that people may not follow non-violence in practice but “they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can.” With this in mind, he said, “the proper thing for this country to do is to abolish the death sentence altogether.”
On June 3, 1949, Professor Shibbanlal Saxena, a freedom fighter who had been on death row for his involvement in the Quit India Movement, spoke in the Constituent Assembly of how he had seen innocent people being hanged for murder during his days in prison. Proposing the abolition of the death penalty, he said that the avenue of appealing to the Supreme Court “will be open to people who are wealthy, who can move heaven and earth, but the common people who have no money and who are poor will not be able to avail themselves” of it.

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