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Art. 21 & Capital Punishment in India: An In-depth Perspective
Submitted to
Dr (Mrs) Asha Verma
Submitted by
Enrol. No. A3256113116
Amity Law School
AUUP
Mar 17, 2014

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Table of Contents
An Overview .......................................................................................................... 2
Capital Punishment in History ............................................................................... 5
Methods of Inflicting Capital Punishment ............................................................. 9
Philosophy of Capital Punishment: Retributive School....................................... 12
Philosophy of Capital Punishment: Abolitionist School...................................... 14
Religious Underpinnings of Capital Punishment................................................. 16
Christianity ....................................................................................................... 16
Judaism............................................................................................................. 18
Islam ................................................................................................................. 19
Buddhism.......................................................................................................... 20
Hinduism .......................................................................................................... 21
Controversies around Capital Punishment ........................................................... 22
Capital Punishment Global Practices ................................................................... 30
United States (Americas).................................................................................. 30
Russian Federation (Europe) ............................................................................ 34
People’s Republic of China (Asia) ................................................................... 35
Egypt (Africa)................................................................................................... 37
United Arab Emirates (Middle East)................................................................ 38
India (Asia)....................................................................................................... 40
Global Implementation of Capital Punishment.................................................... 43
USA (Americas)............................................................................................ 43
Russian Federation (Europe)......................................................................... 46
People’s Republic of China (Asia) ................................................................... 48
Egypt (Africa)................................................................................................... 49
United Arab Emirates (Middle East)................................................................ 51
India (Asia)....................................................................................................... 52
Summation ........................................................................................................... 60
The Researcher’s Position.................................................................................... 62
Bibliography......................................................................................................... 64

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An Overview
In the introductory chapter, after defining the terms capital punishment and
death sentence, the researcher trace the Latin origin of these terms. Thereafter the
researcher would offer a brief overview of global current practices. Finally, the
researcher would introduce the international global framework including
abolitionist conventions.
The Merriam-Webster online dictionary defines capital punishment as being
“for murder, treason, arson, and rape (that) were widely employed in ancient
Greece and the Romans also used it for a wide range of offenses. It also has been
sanctioned at one time or another by most of the world's major religions.”i
Encyclopedia Britannicaii
offered the following definition:
Execution of an offender sentenced to death after conviction by a
court of law of a criminal offense. Capital punishment should be
distinguished from extrajudicial executions carried out without
due process of law. The term capital punishment is sometimes
used interchangeably with capital punishment, though 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.
The Catholic Encyclopediaiii
defines capital punishment as “The infliction by due
legal process of the penalty of death as a punishment for crime.”The British
Broadcasting Corporation says:
Capital punishment is the practice of executing someone as
punishment for a specific crime after a proper legal trial. It can
only be used by a state, so when non-state organizations speak of
having 'executed' a person they have actually committed a murder.
It is usually only used as a punishment for particularly serious
types of murder, but in some countries treason, types of fraud,
adultery and rape are capital crimesiv
.

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The phrase 'capital punishment' comes from the Latin word for the head.
A 'corporal' punishment, such as flogging, takes its name from the Latin word for
the body. The Latins use the word capitalis (from caput, head) to describe that
which related to life, that by which life is endangered. They used the neuter form
of this adjective, i.e., capitale, substantively to denominate death, actual or civil,
and banishment imposed by public authority in consequence of crime. The idea
of capital punishment is of great antiquity and formed a part of the primal
concepts of the human race.
Despite the large number of capital offenses in some countries, in most
years only about 30 countries carry out executions. In the United States, where
roughly three-fourths of the states and the federal government have retained the
capital punishment, about two-thirds of all executions since 1976 (when new
capital punishment laws were affirmed by the Supreme Court) have occurred in
just six states—Texas, Virginia, Florida, Missouri, Louisiana, and Oklahoma.
China was believed to have executed about 1,000 people annually until the first
decade of the 21st century, when estimates of the number of deaths dropped
sharply. Although the number of executions worldwide varies from year to year,
some countries—including Belarus, Congo (Kinshasa), Iran, Jordan, Nigeria,
Saudi Arabia, Singapore, Taiwan, Vietnam, and Yemen—execute criminals
regularly. Japan and India also have retained the capital punishment and carry out
executions from time to time.v
In the USA, the only country in the Americas to
carry out executions, at least 110 death sentences were imposed during 2010 but
this represents only about a third of the number handed down in the mid-1990s.
Available information from five other countries in the region confirmed at least
82 executions were carried out in Asia.
Amnesty International stated that at least 21 countries were known to
have carried out executions in 2012, down from 28 in 2003. At least 682
executions were known to have been carried out worldwide, two more than in
2011. However, these figures do not include the thousands of people who were
believed to have been executed in China. Amnesty reported the following
executions in 2012:Afghanistan (14), Bangladesh (1), Belarus (3+), Botswana
(2), China (+), Gambia (9), India (1), Iran (314+), Iraq (129+), Japan (7), North

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Korea (6+), Pakistan (1), Palestinian Authority (6), Saudi Arabia (79+), Somalia
(6+; 5+ by the Transitional Federal Government, and 1 in Puntland), South Sudan
(5+), Sudan (19+), Taiwan (6), United Arab Emirates (UAE) (1), USA (43),
Yemen (28+). Amnesty International has also received credible reports of a large
number of unconfirmed executions in Iran, which would surpass the number of
officially acknowledged executions by almost three quarters. At least 1,722
people were known to have been sentenced to death in 58 countries in 2012,
down from 1923 in 63 countries in 2011. Mandatory death sentences continued to
be imposed in Barbados, India, Iran, Malaysia, Maldives, Pakistan, Singapore,
Thailand, and Trinidad and Tobago. Mandatory death sentences are inconsistent
with human rights protections because they do not allow any possibility of taking
into account the defendant’s personal circumstances or the circumstances of the
particular offencevi
.
People continued to be sentenced to death or executed for crimes that did not
involve intentional killing, thereby not meeting the threshold of “most serious
crimes” as prescribed by Article 6 of the ICCPR. The capital punishment was
known to have been used for drug-related offences in a number of countries,
including China, India, Indonesia, Iran, Malaysia, Pakistan, Saudi Arabia,
Singapore, Thailand, UAE and Yemen. Other crimes punishable by death were
“adultery” and “sodomy” (Iran), religious offences such as “apostasy” (Iran) and
“blasphemy” (Pakistan), “sorcery” (Saudi Arabia), economic crimes (China),
rape (Saudi Arabia) and forms of “aggravated” robbery (Saudi Arabia, Kenya,
Zambia). Finally, different forms of “treason”, “acts against national security”
and other “crimes against the state” (such as “moharebeh” – enmity against God
– in Iran), whether or not they led to a loss of life, were punished with death
sentences in Gambia, Kuwait, Lebanon, North Korea, Palestinian Authority and
Somalia. In North Korea death sentences are often imposed even though the
alleged crime is not subject to a death sentence under domestic law. Five
countries – Botswana, Gambia, India, Japan and Pakistan – resumed executions
in 2012. The scope of the capital punishment was known to have been expanded,
in contravention of international human rights standards, in Bangladesh and
Kenya.

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The community of nations has adopted four international treatiesvii
providing for the abolition of the capital punishment. One is of worldwide scope;
the other three are regional. The Second Optional Protocol to the International
Covenant on Civil and Political Rights, aiming at the abolition of the capital
punishment, adopted by the UN General Assembly in 1989, is of worldwide
scope. It provides for the total abolition of the capital punishment but allows
states parties to retain the capital punishment in time of war if they make a
reservation to that effect at the time of ratifying or acceding to the Protocol. Any
state which is a party to the International Covenant on Civil and Political Rights
can become a party to the Protocol. The Protocol to the American Convention on
Human Rights to Abolish the Capital Punishment, adopted by the General
Assembly of the Organization of American States in 1990, provides for the total
abolition of the capital punishment but allows states parties to retain the capital
punishment in wartime if they make a reservation to that effect at the time of
ratifying or acceding to the Protocol. Protocol No. 6 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ["European
Convention on Human Rights"] Concerning the Abolition of the Capital
Punishment, adopted by the Council of Europe in 1982, provides for the abolition
of the capital punishment in peacetime; states parties may retain the capital
punishment for crimes "in time of war or of imminent threat of war". Protocol
No. 13 to the Convention for the Protection of Human Rights and Fundamental
Freedoms [European Convention on Human Rights] Concerning the Abolition of
the Capital Punishment in all Circumstances, adopted by the Council of Europe
in 2002, provides for the abolition of the capital punishment in all circumstances,
including time of war or of imminent threat of war. Any state party to these
conventions can become a party to the Protocol.
Capital Punishment in History
The prevalence of capital punishment in ancient times is difficult to ascertain
precisely, but it seems likely that it was often avoided, sometimes by the
alternative of banishment and sometimes by payment of compensation. The
earliest and most famous example is Code of Hammurabi which set the different

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punishment and compensation according to the different class/group of victims
and perpetrators. The Torah (Jewish Law), also known as the Pentateuch (the
first five books of the Christian Old Testament)viii
, lays down the capital
punishment for murder, kidnapping, magic, violation of the Sabbath, blasphemy,
and a wide range of sexual crimes, although evidence suggests that actual
executions were rare.
It was customary during Japan’s peaceful Heian period (794–1185) for the
emperor to commute every death sentence and replace it with deportation to a
remote area, though executions were reinstated once civil war broke out in the
mid-11th century. Capital punishment for murder, treason, arson, and rape was
widely employed in ancient Greece under the laws of Draco (fl. 7th century bce),
though Plato argued that it should be used only for the incorrigible. The Romans
also used it for a wide range of offenses, though citizens were exempted for a
short time during the republic. It also has been sanctioned at one time or another
by most of the world’s major religions. From ancient times until well into the
19th century, many societies administered exceptionally cruel forms of capital
punishment. In Rome the condemned were hurled from the Tarpeian Rock; for
parricide they were drowned in a sealed bag with a dog, cock, ape, and viperix
;
and still others were executed by forced gladiatorial combat or by crucifixion.
Executions in ancient China were carried out by many painful methods, such as
sawing the condemned in half, flaying him while still alive, and boiling. Cruel
forms of execution in Europe included “breaking” on the wheel, boiling in oil,
burning at the stake, decapitation by the guillotine or an axe, hanging, drawing
and quartering, and drowning. The most notorious death execution in BC was
about 399 BC when the Greek philosopher Socrates was required to drink poison
for heresy and corruption of youthx
.
In medieval and early modern Europe, before the development of modern
prison systems, the capital punishment was also used as a generalized form of
punishment. During the reign of Henry VIII, as many as 72,000 people are
estimated to have been executed. During early modern Europe, a massive moral
panic regarding witchcraft swept across Europe and later the European colonies
in North America. During this period, there were widespread claims that

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malevolent Satanic witches were operating as an organized threat to
Christendom. As a result, tens of thousands of women were prosecuted and
executed through the witch trials of the early modern period (between the 15th
and 18th centuries).The capital punishment also targeted sexual offenses such as
sodomy. In England, the Buggery Act 1533 stipulated hanging as punishment for
"buggery". James Pratt and John Smith were the last two Englishmen to be
executed for sodomy in 1835xi
.
Death was formerly the penalty for a large number of offenses in England
during the 17th and 18th centuries, but it was never applied as widely as the law
provided. As in other countries, many offenders who committed capital crimes
escaped the capital punishment, either because juries or courts would not convict
them or because they were pardoned, usually on condition that they agreed to
banishment; some were sentenced to the lesser punishment of transportation to
the then American colonies and later to Australia. Beginning in the Middle Ages,
it was possible for offenders guilty of capital offenses to receive benefit of clergy,
by which those who could prove that they were ordained priests (clerks in Holy
Orders) as well as secular clerks who assisted in divine service (or, from 1547, a
peer of the realm) were allowed to go free, though it remained within the judge’s
power to sentence them to prison for up to a year, or from 1717 onward to
transportation for seven years. Because during medieval times the only proof of
ordination was literacy, it became customary between the 15th and 18th centuries
to allow anyone convicted of a felony to escape the death sentence by proving
that he (the privilege was extended to women in 1629) could read. Until 1705, all
he had to do was read (or recite) the first verse from Psalm 51 of the Bible—
“Have mercy on me, O God, according to your steadfast love; according to your
abundant mercy blot out my transgressions”—which came to be known as the
“neck verse” (for its power to save one’s neck). An offender could escape death
only once through benefit of clergy for which he was branded on the brawn of the
thumb (M for murder or T for theft). Branding was abolished in 1779, and benefit
of clergy ceased in 1827.
The first recorded execution in the English American colonies was in
1608 when officials executed George Kendall of Virginia for supposedly plotting

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to betray the British to the Spanish. In 1612, Virginia's governor, Sir Thomas
Dale, implemented the Divine, Moral, and Martial Laws that made death the
penalty for even minor offenses such as stealing grapes, killing chickens, killing
dogs or horses without permission, or trading with Indians. Seven years later
these laws were softened because Virginia feared that no one would settle there.xii
In 1622, the first legal execution of a criminal, Daniel Frank, occurred in
Virginia for the crime of theftxiii
. Some colonies were very strict in their use of
the capital punishment, while others were less so. In Massachusetts Bay Colony
the first execution was in 1630, but the earliest capital statutes do not occur until
later. Under the Capital Laws of New-England that went into effect between
1636-1647 the capital punishment was meted out for pre-meditated murder,
sodomy, witchcraft, adultery, idolatry, blasphemy, assault in anger, rape,
statutory rape, man stealing, perjury in a capital trial, rebellion, manslaughter,
poisoning and bestiality. Early laws were accompanied by a scripture from the
Old Testament. By 1780, the Commonwealth of Massachusetts only recognized
seven capital crimes: murder, sodomy, burglary, buggery, arson, rape, and
treason.
The New York colony instituted the so-called Duke's Laws of 1665. This
directed the capital punishment for denial of the true God, pre-meditated murder,
killing someone who had no weapon of defense, killing by lying in wait or by
poisoning, sodomy, buggery, kidnapping, perjury in a capital trial, traitorous
denial of the king's rights or raising arms to resist his authority, conspiracy to
invade towns or forts in the colony and striking one's mother or father (upon
complaint of both). The two colonies that were more lenient concerning capital
punishment were South Jersey and Pennsylvania. In South Jersey there was no
capital punishment for any crime and there were only two crimes, murder and
treason, punishable by death.xiv
However under the direction of the Crown, harsher penal codes were
execution there until 1691. In Pennsylvania, William Penn's Great Act (1682)
was passed in the colonies. By 1776, most of the colonies had roughly
comparable death statutes which covered arson, piracy, treason, murder, sodomy,

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burglary, robbery, rape, horse-stealing, slave rebellion, and often counterfeiting.
Hanging was the usual sentence. Rhode Island was probably the only colony
which decreased the number of capital crimes in the late 1700'sxv
.
Some states were more severe. For example, by 1837, North Carolina
required death for the crimes of murder, rape, statutory rape, slave-stealing,
stealing bank notes, highway robbery, burglary, arson, castration, buggery,
sodomy, bestiality, dueling where death occurs, hiding a slave with intent to free
him, taking a free Negro out of state to sell him, bigamy, inciting slaves to rebel,
circulating seditious literature among slaves, accessory to murder, robbery,
burglary, arson, or mayhem and others. However, North Carolina did not have a
state penitentiary and, many said, no suitable alternative to capital punishmentxvi
.
In 1794 the U.S. state of Pennsylvania became the first jurisdiction to
restrict the capital punishment to first-degree murder, and in 1846 Michigan
abolished capital punishment for all murders and other common crimes. In 1863
Venezuela became the first country to abolish capital punishment for all crimes.
Portugal was the first European country to abolish the capital punishment (1867).
By the mid-1960s some 25 countries had abolished the capital punishment for
murder. During the last third of the 20th
century, the number of abolitionist
countries increased more than threefold. Despite the movement toward abolition,
many countries have retained capital punishment, and some have extended its
scope. In the U.S., the federal government and roughly three-fourths of the states
retain the capital punishment, and death sentences are regularly carried out in
China, Saudi Arabia, Singapore, and Iran. Supporters of the capital punishment
claim that life imprisonment is not an effective deterrent to criminal behavior.
Opponents maintain that the capital punishment has never been an effective
deterrent, which errors sometimes lead to the execution of innocent persons, and
that capital punishment is imposed inequitably, mostly on the poor and on racial
minorities.xvii
Methods of Inflicting Capital Punishment
Barbarism reigned supreme in ancient and medieval timesxviii
. Hanged,
drawn and quartered meant was used mainly in England. As the name implies it

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came in three parts. In the first the victim was tied to a wooden frame and
dragged to the location of their execution (drawn). They were then hung until
nearly dead (hanged). Immediately after being taken down their abdomen was
opened and their entrails were removed. As the victim watched they were then
burned before his or her eyes. He was then also emasculated and eventually
beheaded. After all of this his body was divided into four parts (quartered) and
placed in various locations around England as a public crime deterrent. This
punishment was only used on men for any convicted woman would generally be
burnt at the stake as a matter of decency. In crucifixion, usually after a prolonged
period of beating or torture, the victim was forced to carry his own cross to the
location of his death. Afterwards they were either nailed or tied to the cross
where they would hang sometimes for several weeks. Death, when it did come,
usually came by suffocation as the victim could no longer hold themselves up to
breathe. Not only inhumane, the bull was deliberately created for the enjoyment
of the executioner and onlookers. The tyrant of Akgragas in Sicily slaughtered a
bull and fitted the body of the victim inside the disemboweled belly of the bull.
After a fire was lit below, the person would slowly burn to death. The head of the
bull, however, was designed to acoustically convert their screams into “bull
sounds” and the smoke from their burning body would be expelled through its
nose. Practiced by Samurai, Seppuku was a form of ritualistic suicide that
allowed the warrior to die honorably. The warrior would disembowel himself and
in an ideal situation there would be a close friend standing by ready to behead
him as soon as his guts began to spill. Ling chi also known as the “lingering
death”, involved pieces of the victims body being slowly and methodically
removed while the executioner tried to keep him or her alive for as long as
possible.
Premature burial has been used by governments throughout history to
execute condemned prisoners. One of the latest documented cases was during the
Nanking Massacre in 1937 when Japanese troops buried Chinese civilians alive.
In an extremely slow and painful punishment used in Asia, the victim was tied
down over several bamboo shoots. Since bamboo grows so fast (up to 1 foot per
day) it would penetrate directly through the victim’s body, slowly impaling then.

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A historically popular method of capital punishment, if the victim were
lucky he or she would be executed along with several others. This would ensure
that the flame is much bigger and lead to death by carbon monoxide poisoning
rather than actual burning. In the Catherine Wheel, the victim would be tied to a
wheel and then spun while the executioner delivered bone shattering blows to the
victim’s body. Sometimes the victim’s appendages would then be woven through
the spokes of the wheel and they would be placed on display for all to see.
Crushing was typically used in Europe or America in order to extract a plea from
a victim. Every time the victim refused, more weight was added to their chest
until fatal suffocation would occur. Spoken of in Nordic sagas, the Blood Eagle
involved cutting the ribs of the victim by the spine, breaking them so they
resembled wings, and then pulling the victim’s lungs out through the opening.
Salt would then be sprinkled on the wound. Flaying was the act of removing a
person’s skin from their body, this form of execution was often used in order to
stir up fear, as the skin would typically be nailed in a public place for all to see.
Bestiarii is a reference to those who would combat beasts in the days of
Ancient Rome. Although sometimes the act was voluntary and performed for
money or recognition, many times the bestearii were political prisoners sent into
the arena naked and unable to defend themselves. Mazatello, named after the
implement used in the execution, was popular in the Papal States during the 18th
century. The condemned would be led to a scaffold in a public square with
nothing more than the executioner and a coffin. The executioner would then raise
the mallet and bring it down on the head of the victim stunning him followed by
slitting of the throat. Conceived in the late 1700′s the guillotine was one of the
first methods of execution created under the assumption that capital punishment
was intended to end life rather than inflict pain. Although it was specifically
invented as a human form of execution it has been outlawed in France and the
last one was in 1977.
Although by the end of the 20th century many jurisdictions (e.g., nearly
every U.S. state that employs the capital punishment, Guatemala, the Philippines,
Taiwan, and some Chinese provinces) had adopted lethal injection, offenders
continued to be beheaded in Saudi Arabia and occasionally stoned to death (for

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adultery) in Iran and Sudan. Other methods of execution were electrocution,
gassing, and the firing squad.
Historically, executions were public events, attended by large crowds, and
the mutilated bodies were often displayed until they rotted. Public executions
were banned in England in 1868, though they continued to take place in parts of
the United States until the 1930s. In the last half of the 20th
entury, there was
considerable debate regarding whether executions should be broadcast on
television, as has occurred in Guatemala. Since the mid-1990s public executions
have taken place in some 20 countries, including Iran, Saudi Arabia, and Nigeria,
though the practice has been condemned by the United Nations Human Rights
Committee as “incompatible with human dignity.”
In many countries death sentences are not carried out immediately after they
are imposed; there is often a long period of uncertainty for the convicted while
their cases is appealed. Inmates awaiting execution live on what has been called
“death row”; in the United States and Japan, some prisoners have been executed
more than 15 years after their convictions. The European Union regards this
phenomenon as so inhumane that, on the basis of a binding ruling by the
European Court of Human Rights (1989), EU countries may extradite an offender
accused of a capital crime to a country that practices capital punishment only if a
guarantee is given that the capital punishment will not be sought.
Philosophy of Capital Punishment: Retributive School
Supporters of the capital punishment believe that those who commit murder,
because they have taken the life of another, have forfeited their own right to life.
Furthermore, they believe, capital punishment is a just form of retribution,
expressing and reinforcing the moral indignation not only of the victim’s relatives
but of law-abiding citizens in general. The German philosopher Hegel supported
this view labeling “Punishment is the right of the criminal. It is an act of his own
will. The violation of right has been proclaimed by the criminal as his own right.
His crime is the negation of right. Punishment is the negation of this negation,
and consequently an affirmation of right, solicited and forced upon the criminal
by himself.” For Thomas Hobbes, an individual transfers his rights to a sovereign

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(government). According to Hobbes these rights should not contradict to the laws
of the Nature, “….man can transferre his Right to save himselfe from Death,
Wounds, and Imprisonment.”xix
Kant’s theory of the ius talionis provisionally
attaches execution to murder and rebellion. The gravity of these crimes triggers
the need to punish them in accordance with the strict version of the ius talionis
(punishment corresponds in kind and degree to the injury)xx
. Immanuel Kant’s
proportional retribution is often quoted in their support by retributionists.
However, Kant supported capital punishment only in case of murder and
rebellion. John Locke was of the view that any element that threatened the state
of nature was punishable by death, “In transgressing the law of nature, the
offender ……… becomes dangerous to mankind….. and upon this ground, every
man has a right to punish the offender and be executioner of the law of nature
(emphasis Locke)xxi
.
Sociologist Emile Durkheim argued that violent and public punishment of the
worst possible criminals was advantageous to society because it bred a type of
fruitful social cohesion. Those who share almost no common bonds “come
together” in their revulsion against the worst criminalsxxii
. Rousseau supports the
capital punishment, arguing that the sovereign has the right to determine whether
its subjects should live or die. His strongest reason for this position is the claim
that wrongdoers, in violating the laws of the state, are essentially violating the
social contract. As enemies of the social contract, they were enemies of the state,
and must either be exiled or put to death. It was possible to pardon criminals, but
both pardons and punishments wedre signs of weakness: a healthy state had few
criminalsxxiii
. Mill believed that it is appropriate to inflict the capital punishment
on murderers because, in the same way as a thief should be fined or an attacker
flogged, he who took human life should forfeit their own because capital
punishment was “The least cruel mode in which it is possible adequately to deter
from the crime……..... an impression on the imagination so entirely out of
proportion to its real severity.” Mill also opined that the only other punishment
that could be considered befitting for a murderer was imprisonment with hard
labor for life. In fact, Hannah Arendt gave vent to Mill’s opinion when she
offered her own judgment upon Adolf Eichmann in 1961 when she said:

15. 14
Just as you supported and carried out a policy of not wanting
to share the earth with the Jewish people and the people of a
number of other nations - as though you and your superiors had
any right to determine who should and who should not inhabit the
world - we find that no one, that is, no member of the human race,
can be expected to share the world with you. This is the reason,
and the only reason, you must hang.”xxiv
John Rawls said that justice should be described as “a fair system of
arrangements; one that the parties can agree to without knowing how it will
benefit them personally.” Rawls supports the idea of an original position from
which society chooses principles based on a veil of ignorance, its ideal judicial
system developed not from personal tastes and interests, but from a socially
moral position. From this perspective, the capital punishment creates a balance
between the offender and the victim, his life forfeited to insinuate the balance
between his crime and his punishment.
Philosophy of Capital Punishment: Abolitionist School
Under the influence of the European Enlightenment, in the latter part of the
18th century there began a movement to limit the scope of capital punishment.
Until that time a very wide range of offenses, including even common theft, were
punishable by death—though the punishment was not always enforced, in part
because juries tended to acquit defendants against the evidence in minor cases.
Opponents of capital punishment, following the writings of Cesare Beccaria,
argued that, by legitimizing the very behavior that the law sought to repress—
killing—capital punishment is counterproductive in the moral message it
conveys. Beccaria openly condemned the capital punishment on two grounds,
viz. the state does not possess the right to take lives and capital punishment is
neither a useful nor a necessary form of punishment. He developed in his treatise
a number of innovative and influential principles. Punishment had a preventive
(deterrent), not a retributive, function and therefore, should be proportionate to
the crime committed. The probability of punishment, not its severity, would
achieve the preventive effect. Procedures of criminal convictions should be

16. 15
public and in order to be effective, punishment should be prompt. Beccaria stated,
“The punishment of death is pernicious to society, from the example of barbarity
it affords. If the passions, or the necessity of war, have taught men to shed the
blood of their fellow creatures, the laws, which are intended to moderate the
ferocity of mankind, should not increase it by examples of barbarity, the more
horrible as this punishment is usually attended with formal pageantry. Is it not
absurd, that the laws, which detest and punish homicide, should, in order to
prevent murder, publicly commit murder themselves?”xxv
Beccaria believed that
when the accused has enough power and influence to be able to endanger the
security of an entire nation, i.e. the ability to incite a revolt and overturn the
government, then this person may be put to death. Beccaria pointed out that this
would only ever be the case when a nation was already in a state of anarchy or
very near to disorder.
Jeremy Bentham argued that perpetual imprisonment, with suitable
aggravations of labor and solitary confinement, can be made to have a more
terrifying impact on prospective criminals than it currently does and more than
does the threat of death. Bentham’s utilitarian argument did not spare rebellions
either where he shrewdly counsels caution on the ground that executing terrorist
rebels is more likely to turn them into martyrs who inspire rather than discourage
their followers. In 1775, the four characteristics of punishment that Bentham
invoked against the capital punishment relative to imprisonment were that it was
"not convertible to profit," it lacked "frugality," as well as "equability”, and was
"not remissiblexxvi
.
Moreover, they urge, when it is used for lesser crimes, capital punishment
is immoral because it is wholly disproportionate to the harm done. Abolitionists
also claim that capital punishment violates the condemned person’s right to life
and is fundamentally inhuman and degrading. Although death was prescribed for
crimes in many sacred religious documents and historically was practiced widely
with the support of religious hierarchies, today there is no agreement among
religious faiths, or among denominations or sects within them, on the morality of
capital punishment. Beginning in the last half of the 20th century, increasing
numbers of religious leaders—particularly within Judaism and Roman

17. 16
Catholicism—campaigned against it. Capital punishment was abolished by the
state of Israel for all offenses except treason and crimes against humanity, and
Pope John Paul II condemned it as “cruel and unnecessary.” Supporters of capital
punishment also claim that it has a uniquely potent deterrent effect on potentially
violent offenders for whom the threat of imprisonment is not a sufficient restraint.
Opponents, however, point to research that generally has demonstrated that the
capital punishment is not a more effective deterrent than the alternative sanction
of life or long-term imprisonment. There also are disputes about whether capital
punishment can be administered in a manner consistent with justice. Those who
support capital punishment believe that it is possible to fashion laws and
procedures that ensure that only those who are really deserving of death are
executed.xxvii
Opponents also maintain that the historical application of capital
punishment shows that any attempt to single out certain kinds of crime as
deserving of death will inevitably be arbitrary and discriminatory. They also
point to other factors that they think preclude the possibility that capital
punishment can be fairly applied, arguing that the poor and ethnic and religious
minorities often do not have access to good legal assistance, that racial prejudice
motivates predominantly white juries in capital cases to convict black and other
nonwhite defendants in disproportionate numbers, and that, because errors are
inevitable even in a well-run criminal justice system, some people will be
executed for crimes they did not commit. Finally, they argue that, because the
appeals process for death sentences is protracted, those condemned to death are
often cruelly forced to endure long periods of uncertainty about their fate.
Religious Underpinnings of Capital Punishment
Christianity
The capital punishment is consistent with Old Testament Biblical teaching, and
suggests that God created the capital punishment. Genesis 9:6 states that,
“Whoever sheds the blood of man, by man shall his blood be shed.”In total, the
Old Testament specifies 36 capital offences including crimes such as idolatry,
magic and blasphemy, as well as murder. The New Testament embodies what

18. 17
must be the most famous execution in history, that of Jesus on the cross.
Although the tone of the whole of the New Testament is one of forgiveness,
paradoxically, it seems to take the right of the state to execute offenders for
granted. Matthew 7:2 states that "Whatever measure you deal out to others will
be dealt back to you", though this is unspecific as to whether it is God who is
doing the dealing, or the state. In Matthew 15:4 Jesus says "He who speaks evil
of father or mother, let him surely die". Despite the fact that Jesus himself
refrains from using violence, he at no point, denies the state's authority to exact
capital punishment. At the moment that Pilate has to decide whether or not to
crucify Jesus, Jesus tells him that the power to make this decision has been given
to him by God. (John 19:11). Paul has an apparent reference to the capital
punishment, when he writes that the magistrate who holds authority "does not
bear the sword in vain; for he is the servant of God to execute His wrath on the
wrongdoer" (Romans 13:4). Capital punishment affirms the commandment that
'thou shalt not kill' by affirming the seriousness of the crime of murder. This
argument is based on interpreting the commandment as meaning "thou shalt not
murder", but some Christians argue that the 'Thou shalt not kill' commandment is
an absolute prohibition on killing. However, Martin Luther argued: "God has
delegated His authority of punishing evildoers to civil magistrates", and that
Christians therefore had a right to "serve as princes of judges, render decisions
and pass sentences ……punish evildoers with the sword."xxviii
Christians who support the capital punishment often do so on the ground that
the state acts not on its own authority but as the agent of God, who does have
legal power over life and death. This argument is well expressed by St Augustine,
who wrote:
The same divine law which forbids the killing of a human being
allows certain exceptions, as when God authorizes killing by a
general law or when He gives an explicit commission to an
individual for a limited time. Since the agent of authority is but a
sword in the hand, and is not responsible for the killing, it is in no
way contrary to the commandment, 'Thou shalt not kill' to wage
war at God's bidding or for the representatives of the State's

19. 18
authority to put criminals to death, according to law or the rule of
rational justice.
Some even view capital punishment as being akin to suicide. Pope Pius XII
asserted this view:
Even when there is question of the execution of a condemned
man, the State does not dispose of the individual's right to life. In
this case it is reserved to the public power to deprive the
condemned person of the enjoyment of life in expiation of his
crime when, by his crime, he has already dispossessed himself of
his right to life.xxix
On the other hand, many Christians believe that God commanded "Thou shalt not
kill" (Exodus 21:13), and that this is a clear instruction with no exceptions. The
Bible speaks in favor of the capital punishment for murder. But it also prescribes
it for 35 other crimes that we no longer regard as deserving the capital
punishment. In order to be consistent, humanity should remove the capital
punishment for murder. Secondly, modern society has alternative punishments
available which were not used in Biblical times, and these make the capital
punishment unnecessary. Capital punishment is also incompatible with a teaching
that emphasizes forgiveness and compassion. Some Christians argue that in many
countries the imposition of the capital punishment is biased against the poor.
Since Christian teaching is to support the poor, Christians should not support the
capital punishment. Capital punishment is inconsistent with the general Christian
stand that life should always be supported. This stand is most often taught in
issues such as abortion and euthanasia, but consistency requires Christians to
apply it across the board.
Judaism
Although the Old Testament may have approved capital punishment, Judaic
rabbis, in practice, in the Talmud and the Torah, have toned down such
suggestions by interpreting texts in the context of Judaism's general respect for
the sanctity of human life. They have emphasized anti-death texts such as the
commandment 'Thou shalt not kill'. They have interpreted texts to make them

20. 19
very narrow in their application and refused to accept any but the most explicit
Torah texts proposing the capital punishment. Rabbis have found alternative
punishments or schemes of compensation for victims' families and imposed
procedural and evidential barriers that made the capital punishment practically
unenforceable. In 1954, Israel abolished capital punishment except for those who
committed Nazi war crimes. In the 56 years that Israel has existed as an
independent state, only one person has been executed. This person was Adolf
Eichman, a Nazi war criminal with particular responsibility for the Holocaustxxx
.
Islam
Islam on the whole accepts capital punishment. Qur'an 6:151 states, “...Take
not life, which God has made sacred, except by way of justice and law. Thus does
He command you, so that you may learn wisdom.” Muslims believe that capital
punishment is a most severe sentence but one that may be commanded by a court
for crimes of suitable severity. While there may be more profound punishment at
the hands of God, there is also room for an earthly punishment. In Islamic law,
the capital punishment is appropriate for two groups of crime:
Intentional murder: In these cases the victim's family is given the option
as to whether or not to insist on a punishment of this severity.
Fasad fil-ardh ('spreading mischief in the land'): Islam permits the capital
punishment for anyone who threatens to undermine authority or
destabilise the state, e.g. treason/apostasy (when one leaves the faith and
turns against it), terrorism, piracy of any kind, rape, adultery and
homosexual activity.
Although the Qurʾān prescribes the capital punishment for several ḥadd (fixed)
crimes—including robbery, adultery, and apostasy of Islam—murder is not
among them. Instead, murder is treated as a civil crime and is covered by the law
of qiṣās (retaliation), whereby the relatives of the victim decide whether the
offender is punished with death by the authorities or made to pay diyah (wergild)
as compensation.xxxi

21. 20
Whilst Islam remains firmly retentionist, there is a small but growing
abolitionist Islamic view. The Ulemas do not always agree on the interpretation
or authenticity of the sacred texts. Neither do they agree on the social context in
which these texts should be applied. Sharia law is often used by repressive
powers that attack women and the poor. There are incidences of these states
summarily executing those who are accused whilst denying them access to a
lawyer. These acts are totally contradictory to the concept of Islamic justice.
However, they remain a minorityxxxii
.
Buddhism
Since Buddhism exists in many forms, under many organizations, there is no
unified Buddhist policy on capital punishment. In terms of doctrine, capital
punishment is clearly inconsistent with Buddhist teachings. Buddhists place great
emphasis on non-violence and compassion for all life. The First Precept requires
individuals to abstain from injuring or killing any living creature, “An action,
even if it brings benefit to oneself, cannot be considered a good action if it causes
physical and mental pain to another being.” The Buddha did not explicitly speak
about capital punishment, but his teachings show no sympathy for physical
punishment, no matter how bad the crime, “If a person foolishly does me wrong,
I will return to him the protection of my boundless love. The more evil that
comes from him, the more good will go from me.” Buddhism believes
fundamentally in the cycle of birth and re-birth (Samsara) and teaches that if
capital punishment is administered it will have compromising effects on the souls
of both offender and the punisher in future incarnations. Buddhism believes that
inhumane treatment of an offender does not solve their misdeeds or those of
humanity in general - the best approach to an offender is reformatory rather than
punitive. Punishment should only be to the extent to which the offender needs to
make amends, and his rehabilitation into society should be of paramount
importance. Punishing an offender with excessive cruelty will injure not just the
offender's mind, but also the mind of the person doing the punishing. It is
impossible to administer severe punishment with composure and compassion. If
the crime is particularly serious, the person may be banished from the community

22. 21
or country. Yet most Buddhist countries retain capital punishment in the belief by
politicians that capital punishment is necessary for retribution, cultural customs,
or for deterrence value, a long tradition of capital punishment in a particular
country, maintaining order in society and in reaction to long periods of political
unrest or economic instabilityxxxiii
.
Hinduism
The religious, civil and criminal law of Hindus is encoded in the
Dharmaśāstras and the Arthasastra. The Dharmasastras describe many crimes
and their punishments and calls for the death penalty in several instances,
including murder, the mixture of castes, and righteous warfare. However the
Mahabharata contains passages arguing against the use of the death penalty in all
cases. An example is a dialogue between King Dyumatsena and his son Prince
Satyavan (section 257 of the Santiparva) where a number of men are brought out
for execution at the King's command. In the Bhagavad Gita, righteous destruction
of the wicked is commended as meritorious and fulfillment of caste duty. A. C.
Bhaktivedanta Swami Prabhupada says that in Manu Smriti, the law book for
mankind, it is supported that a murderer should be condemned to death so that in
his next life he will not have to suffer for the great sin he has committed.
Therefore, the king’s punishment of hanging a murderer is actually beneficial.
Similarly, when Krishna orders fighting, it must be concluded that violence is for
supreme justice, and thus Arjuna should follow the instruction, knowing well that
such violence, committed in the act of fighting for Krishna, is not violence at all
because, at any rate, the man, or rather the soul, cannot be killed; so for the
administration of justice, so-called violence is permitted."xxxiv
The Hindu notion
of punishment is not based on revenge. Rather, punishment in the Hindu scheme
of things should be aimed at restoring the proper social order, restoring the
dharma and protecting the innocent. The punishment has to be administered in
accordance with other important Hindu values. It must not be a punishment that
would itself be a further offence or unjust.xxxv
However, there is no official Hindu
line on capital punishment as a national debate continues on capital punishment.

23. 22
Controversies around Capital Punishment
Death penalty or capital punishment has been debated over since ages and
still remains a reality in a number of states across the world. US, India, China and
many other countries grant capital punishment for the most heinous crimes, even
as the human rights activists continue to take the bull by its horns every time a
death penalty is issued. Executions are considered to be the ultimate punishment
provided the crime committed also exemplifies ruthlessness in its extreme.
Retributionists argue that capital punishment, irrespective of cost, is an
example setter for future crime and matches maximum crime by maximum
punishment. However, the cost of imprisoning a criminal, serving a life term or
otherwise long term, is very expensive when compared with the costs involved in
execution of the same person. A new study in California revealed that the cost of
the death penalty in the state has been over $4 billion since 1978.
A study considered pre-trial and trial costs, costs of automatic appeals and
state habeas corpus petitions, costs of federal habeas corpus appeals, and costs of
incarceration on death row. In Maryland, an average death penalty case resulting
in a death sentence costs approximately $3 million. The eventual costs to
Maryland taxpayers for cases pursued 1978-1999 will be $186 million. Five
executions have resulted. In Kansas, the costs of capital cases are 70% more
expensive than comparable non-capital cases, including the costs of incarceration.
Enforcing the death penalty costs Florida $51 million a year above what it would
cost to punish all first-degree murderers with life in prison without parole. Based
on the 44 executions Florida had carried out since 1976 that amounts to a cost of
$24 million for each execution. The most comprehensive study in the country
found that the death penalty costs North Carolina $2.16 million per execution
over the costs of sentencing murderers to life imprisonment. The majority of
those costs occur at the trial level. In Texas, a death penalty case costs an average
of $2.3 million, about three times the cost of imprisoning someone in a single cell
at the highest security level for 40 yearsxxxvi
.
A study concluded that the cost of the death penalty in California has totaled
over $4 billion since 1978, viz. $1.94 billion: Pre-Trial and Trial Costs, $925

24. 23
million: Automatic Appeals and State Habeas Corpus Petitions, $775 million:
Federal Habeas Corpus Appeals, $1 billion--Costs of Incarceration. The authors
calculated that, if the Governor commuted the sentences of those remaining on
death row to life without parole, it would result in an immediate savings of $170
million per year, with a savings of $5 billion over the next 20 years.xxxvii
Yet there
are many who offer the logic that the more severe the crime, the harsher should
be the punishment. Death penalty is seen as the most extreme form of
punishment, which is generally reserved for the most heinous of crimes. The
penalty should fit the crime and in extreme cases, extreme measures should
determine the course of justice. Therefore limitations have been built into many
judicial systems such as in the US and India (discussed elsewhere in this paper).
Retributionists argue that capital punishment sets a chilling example for
potential criminals and serves as an effective deterrent. It will dissuade criminals-
in-the-making by instilling fear in their minds. Over the last few years, a number
of highly technical papers have purported to show that the death penalty is indeed
a deterrent. Cass Sunsteinxxxviii
initially argued, based on studies like these, that
“capital punishment is morally required” given the “significant body of recent
evidence that capital punishment may well have a deterrent effect, possibly a
quite powerful one.” Posnerxxxix
claims that “the recent evidence concerning the
deterrent effect of capital punishment provides strong support for resisting the
abolition movement.” Becker adds, “I support the use of capital punishment for
persons convicted of murder because, and only because, I believe it deters
murders.” Donohue and Wolfersxl
however, state that the empirical research
relied on by both Becker and Posner, is a skewed sample of available evidence:
early research by Isaac Ehrlich, and more recent research by Hashem
Dezhbakhshxli
. Isaac Ehrlichxlii
analyzed US time series data on homicides and
execution from 1933-1969, finding that each execution yielded 8 fewer
homicides. This result was somewhat puzzling in light of the fact that an 80
percent drop in the execution rate from the late 1930s until 1960 had been
accompanied by falling murder rates. A subsequent re-analysis by Peter Passell
and John Taylorxliii
showed that Ehrlich’s estimates were entirely driven by
attributing a sharp jump in murders from 1963-69 to the post-1962 drop in

25. 24
executions. But the mid-1960s decline in homicide occurred across all states—
including those that had never had the death penalty. Moreover, Donohue and
Wolfers state that Ehrlich’s own model showed no correlation between
executions and murder if one simply omitted the last seven years of his data.
Evidently, the idea of capital punishment is more surmise and perception than
based on fact and clean data. For, as Albert Camusxliv
says, “For centuries the
death penalty, often accompanied by barbarous refinements, has been trying to
hold crime in check; yet crime persists. Why? Because the instincts that are
warring in man are not, as the law claims, constant forces in a state of
equilibrium.”
Retributionists also contend that imprisonment keeps the possibility of a
hardened criminal coming out on parole and becoming a threat to civil society, a
possibility which is put to rest by execution. There have been many instances of
prisoners, out on parole, indulging in criminal behavior taking advantage of their
conditional release. However, the American Civil Liberties Union of Texas, US,
statesxlv
that “The conditions of confinement for those on death row are cruel and
unusual. Inmates convicted to death are held in solitary confinement or
“Administrative Segregation” regardless whether they pose any threat to the rest
of the prison population. An average of 23 hours daily solitary confinement
causes such severe mental health problems that some inmates lose the ability
even to understand the punishment imposed on them.” They spend 23 hours a day
alone in a concrete, featureless cell measuring six feet by 10 feet with a small,
sealed window and a solid steel door, where food is delivered through a slot.
They are allowed out to exercise alone in a cage for one hour and may have
books, writing material and a radio. Years of solitary confinement and sensory
deprivation literally drive inmates mad and make them more likely to wound the
guards, riot or attempt escapexlvi
. Evidently, death penalty does not ensure the
safety of rest of the prison inmates as statistics establish that most of the capitally
punished criminals are violent and prone to be unpredictable. Instead in a volatile
situation, they may endanger the safety of other prisoners.
Abolitionists argue that capital punishment is barbaric, cruel and blatantly
inhuman, no matter how heinous the crime is. Iranian courts still order public

26. 25
stonings, and those sentenced are often severely whipped before they are stoned.
Women are buried up to their necks before a stoning. If convicted of adultery,
Iranian law requires the stones not be too big or too small so that the probable
death is not merciful or prolonged. If a woman miraculously survives a stoning,
she must then serve a jail sentence. For men, the stoning procedure is a bit
different. Men are buried up to their waists before a stoning. If they confess and
manage to escape, they are free. In most of the world, execution by hanging is
used. Iran recently cut back on the number of its judicial hangings, but in
Afghanistan, Bangladesh, Botswana, Iraq, Japan, Pakistan, Singapore, St. Kitts &
Nevis and Sudan hanging is extremely common. In 2008, approximately 339 men
and four women were hanged in these countries. In some countries, the method of
choice is suspension hanging, which utilizes a crane or other heavy equipment to
lift the prisoner off the ground by the noose. The manner of death is the same as
the short drop, which makes it slow and agonizing. After short drop or suspension
hangings, the deceased's face is generally engorged and blue with blood marks
evident on the face and eyes, and the tongue may protrude. Standard drop
hanging was adopted as the normal method of hanging in the U.S. in the late 19th
and early 20th century. Prisoners drop four to six feet, which often rips the skin,
breaks the neck and in some cases causes decapitation. In Saudi Arabia, public
beheading is the punishment for murder, rape, drug trafficking, sodomy, armed
robbery, apostasy and other offenses. Men and women receive sentences of death
by beheading and are usually given sedatives beforehand. The condemned are
taken by the police to a public place and their eyes are covered. A sheet of plastic
is spread out on the ground and the prisoner is forced to kneel facing Mecca. The
prisoner's name and crime is read out loud and the executioner is given a
traditional Arab scimitar. The executioner generally takes a few practice swings
in the air before poking the prisoner in the back of the neck with the tip of the
sword. This causes the prisoner to lift their head so that it can be removed with a
single stroke. The head often flies two to three feet away from the body and is
picked up and given to a doctor who sews it back on. The deceased's body is
wrapped in the plastic sheet and taken away for burial in an unmarked grave at
the prison.xlvii
State-sanctioned executions tend to justify the murder of the

27. 26
criminal and defeat the whole logic of death penalty being a fitting punishment
for extreme crimes, such as murder itself.
Some human rights propagators regard death penalties as a flagrant violation
of a person’s right to live. The right to live is a natural right, while the right to
live with dignity is a state-granted right. How can a state trample over the natural
right of a person to live? Two politicians face capital punishment over a cartoon
deemed offensive to Islamxlviii
. Recently, Maldives announced plans to revive
capital punishment. What worries Amnesty International is that the Maldivian the
Home Minister’s order condones people being sentenced to death and executed
for crimes committed when they were below 18 years of age. The imposition of
the death penalty against juvenile offenders violates international law and
Maldives’ own international obligationsxlix
. Amnesty also reported that Iraqi
authorities carried out 12 secret executions, bringing the number of prisoners put
to death in a week to 38l
. Bangladesh hanged Islamist leader Abdul Qader Mollah
in 2013 for alleged war crimesli
. In stark contrast, India’s Supreme Court, in
January, 2014, commuted the death sentences of 15 prisoners on the grounds of
delay in the disposal of their mercy petitions by the President ranging between
five and 12 years and set out guidelines to safeguard the rights of prisoners on
death row and their families. According to the guidelines, prisoners on death row
should receive legal aid, be informed about the rejection of their mercy petitions
and in writing, have their mental and physical conditions regularly checked and
be allowed to meet their family members before execution, which should not
happen before two weeks from the communication of the rejection of the mercy
petition. The Court also commuted the death sentences of two convicts on the
ground that they suffer from mental illnesslii
.
Abolitionists argue that states unfairly use capital punishment against their
political opponents, that evidence can be tampered while presenting to courts,
juries may be influenced by emotion than by fact and law, trials are often unfair,
convicts do not have the means to defend themselves, verdicts are often handed
out on the basis of caste, religion and sex, causes financial ruin to the families of
suspected convicts, etc. Capital punishment does not give a criminal the
opportunity to be remorseful of his deeds. Neither does it treat those, who feel

28. 27
guilty for their crimes, a fair opportunity to improve their behavior. Above all,
capital punishment violates The Universal Declaration of Human Rights --
adopted by the United Nations (UN) General Assembly in December 1948 in
response to the staggering extent of state brutality and terror witnessed during
World War II - recognizes each person's right to life (Art. 3) and categorically
states that “No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment” (Art. 5).
Abolitionists have also raised fundamental questions about the
constitutionality of capital punishment. Even courts have differed in their
opinions. Apprehensions have been expressed that capital punishment cases
militate against subaltern sections of society that are unable to defend themselves.
For instance, there were 63 women on death row as of April 1, 2013 in the US
that constituted 2% of the total death row population. In 2005, the US Supreme
Court in Roper v. Simmons struck down the death penalty for juveniles. 22
defendants had been executed for crimes committed as juveniles since 1976liii
.
Over 75% of the murder victims in cases resulting in an execution were white,
even though nationally only 50% of murder victims generally are white. In
Louisiana, the odds of a death sentence were 97% higher for those whose victim
was white than for those whose victim was black. A study in California found
that those who killed whites where over 3 times more likely to be sentenced to
death than those who killed blacks and over 4 times more likely than those who
killed Latinos. A comprehensive study of the death penalty in North Carolina
found that the odds of receiving a death sentence rose by 3.5 times among those
defendants whose victims were white. In 96% of states where there have been
reviews of race and the death penalty, there was a pattern of either race-of-victim
or race-of-defendant discrimination, or both. 98% of the chief district attorneys in
death penalty states were white; only 1% were blackliv
.
Accordingly, courts in some nations have prescribed limits. In the US, the US
Supreme Court has ruled that the death penalty is not a per se violation of the
Eighth Amendment's ban on cruel and unusual punishment, but the Eighth
Amendment does shape certain procedural aspects regarding when a jury may use
the death penalty and how it must be carried out. Owing to the Fourteenth

29. 28
Amendment's Due Process Clause, the Eighth Amendment applies against the
states, as well as the federal government. Eighth Amendment also requires that
courts consider the evolving standards of decency to determine if a particular
punishment constitutes a cruel or unusual punishment. When considering
evolving standards of decency, courts both look for objective factors to show a
change in community standards and also make independent evaluations about
whether the statute in question is reasonablelv
.
Abolitionists have also argued that there are numerous cases in which
prisoners have been released from death row when new evidence or re-trial
proved their innocence. This would not have been possible if convicts were
executed. Some critics blame hurried capital sentences on law makers resorting to
populist expansion of crimes for capital punishment. In the US system, for
instance, prosecutors, with virtually unbridled discretion to seek the death
penalty, may pursue a death sentence even when the evidence is weak, and they
may be reluctant to change course when contradictory evidence later arises.
Public and media pressure on police forces to punish a criminal and unrelaiable
testimony of witnesses often creates a situation in which the truth is obfuscated
by prosecutorslvi
.
It has also been suggested that regional variations in death sentences is proof
of arbitrariness in application of laws. A just system ought not to have death
sentences concentrated in only one region. However, whether a person receives
the death penalty depends heavily on where the crime was committed. A just
system ought not to have death sentences concentrated in only one region.
However, whether a person receives the death penalty depends heavily on where
the crime was committed. For instance, about a quarter of Ohio’s death row
inmates come from Hamilton County (Cincinnati), but only 9% of the state’s
murders occur there. From 1995-2000, 42% of the federal cases submitted to the
Attorney General for review came from just 5 of the 94 federal districts.
Including the 21 districts that have never submitted a case for review by the
Attorney General, from 1995-2000, 40 of the 94 federal districts never
recommended seeking the death penalty for any defendant. Further, studies
consistently show that those who kill white victims are much more likely to

30. 29
receive the death penalty than those who kill black victims. Racial disparities in
sentencing and executions suggest that race plays a role in the application of the
death penalty. In 96% of the states where there have been reviews of race and the
death penalty, there was a pattern of either race-of-victim or race-of-defendant
discrimination or bothlvii
.
Trials that ended in capital punishment being awarded have sometimes been
marked by inadequate legal defense. In Washington State, one-fifth of the 84
people who have faced execution in the past 20 years were represented by
lawyers who had been, or were later, disbarred, suspended or arrested. (This was
when overall, the state’s disbarment rate for attorneys was less than 1%). In
North Carolina, at least 16 death row inmates, including 3 who were executed,
were represented by lawyers who have been disbarred or disciplined for unethical
or criminal conductlviii
. Even after capital sentences were pronounced,
empowered constitutional provincial heads commuted such sentences upon
apprehension of excessive punishment. On January 11, 2003, Illinois Governor
George Ryan commuted the sentences of the 167 death row inmates, citing the
flawed process that led to these sentences. Three inmates' sentences were
commuted to 40 years in prison with the possibility of parole. The other
prisoners' sentences were commuted to life in prison without parole. Some of the
commutations were of prisoners who were waiting sentencing or resentencinglix
.
Last, but not the least, are controversial capital punishment awards for the
mentally challenged. The US is one of few exceptions where courts have taken
cognizance of this practice. Even in the US there was initially no public
consensus initially. In 1989, the US Supreme Court had upheld (5-4) the
constitutionality of executing those with intellectual disability in Penry v.
Lynaugh (492 U.S. 302). The Court said "mental retardation" should be a
mitigating factor to be considered by the jury during sentencing. Writing for the
majority, Sandra Day O'Connor, J. said that a "national consensus" had not
developed against executing those with "mental retardation." However, on June
20, 2002, the Supreme Court issued a landmark ruling ending the execution of
those with intellectual disability. In Atkins v. Virginia, the Court held that it is a
violation of the Eighth Amendment ban on cruel unusual punishment to execute

31. 30
death row inmates with "mental retardation". The decision reflects the national
consensus which has formed on this issuelx
.
Capital Punishment Global Practices
United States (Americas)
Congress or any state legislature may prescribe the death penalty, also
known as capital punishment, for murder and other capital crimes. The US
Supreme Court has ruled that the death penalty is not a per se violation of the
Eighth Amendment's ban on cruel and unusual punishment, but the Eighth
Amendment does shape certain procedural aspects regarding when a jury may use
the death penalty and how it must be carried out. Because of the Fourteenth
Amendment's Due Process Clause, the Eighth Amendment applies against the
states, as well as the federal government. In the landmark case of Coker v.
Georgialxi
, the Supreme Court ruled that a state cannot apply the death penalty or
the crime of raping an adult woman because it violates the proportionality
requirement. The Court came to this conclusion by considering objective indicia
of the nation's attitude toward the death penalty in rape cases. At the time only a
few states allowed for executions of convicted rapists. Twenty-one years later, in
Kennedy v. Louisianalxii
, the Supreme Court extended its ruling in Coker, holding
that the penalty is categorically unavailable for cases of child rape in which the
victim lives. Because only six states in the country permitted execution as a
penalty for child rape, the Supreme Court found the national consensus to hold its
use in these cases as disproportionate.
The US Supreme Court has also ruled the principle of Individualized
Sentencing. To impose a death sentence, the jury must be guided by the particular
circumstances of the criminal, and the court must have conducted an
individualized sentencing process. In the 2002 Ring v. Arizonalxiii
decision, the
Supreme Court ruled that a jury, rather than a judge, must find an aggravating
factor to exist for cases in which those factors underlie a judge's choice to impose
the death penalty rather than a lesser punishment. An aggravating factor is any
fact or circumstance that increases the culpability for a criminal act.

32. 31
The Supreme Court further refined the requirement of "a finding of
aggravating factors" in Brown v. Sanderslxiv
. For cases in which an appellate court
rules a sentencing factor invalid, the Court ruled that the sentence imposed
becomes unconstitutional unless the jury found some other aggravating factor
that encompasses the same facts and circumstances as the invalid factor. Another
2006 case, Kansas v. Marsh, offered yet another clarification to the principle of
individualized sentencing jurisprudence. After Marsh, states may impose the
death penalty for situations in which the jury finds the aggravating and mitigating
factors to equally balance, without violating the principle of individualized
sentencing.
A legislature may prescribe the manner of execution, but the manner may
not inflict unnecessary or wanton pain upon the criminal. Courts apply an
"objectively intolerable" test when determining if the method of execution
violates the Eighth Amendment's ban on cruel and unusual punishments. State
courts and lower federal courts have refused to strike down hanging and
electrocution as impermissble methods of execution; however, the U.S. Supreme
Court did not take up a method of execution case for 117 years until Baze v.
Reeslxv
in 2008. In Baze the Supreme Court held that lethal injection did not
constitute a cruel and unusual punishment. This case resolved a controversial
issue in light of recent evidence that a lethal injection's three-drug combination
fails to alleviate pain and prevents the criminal from signaling such pain because
of paralysis inducement.
More recently, in Atkins v. Virginialxvi
, the Supreme Court determined that
executing mentally retarded criminals violates the ban on "cruel and unusual
punishments" because their mental handicap lessens the severity of the crime and
therefore renders the extraordinary penalty of death as disproportionately severe.
However, in Bobby v. Bieslxvii
, the Court held that states may conduct hearings to
reconsider the mental capacity of death row inmates who were labeled mentally
retarded before the Court decided Atkins, because before Atkins, states had little
incentive to aggressively investigate retardation claims. In Roper v. Simmonslxviii
,
the Supreme Court invalidated the death penalty for all juvenile offenders. The
majority opinion pointed to teenagers' lack of maturity and responsibility, greater

33. 32
vulnerability to negative influences, and incomplete character development. The
Court concluded that juvenile offenders assume diminished culpability for their
crimeslxix
.
US law permits death penalty for the following broad categories of
offenses. Under federal law, first degree murder, which is defined as unlawful
killing with malice aforethought where the murder is accomplished by poisoning,
laying in wait, “or any other kind of willful, deliberate, malicious or premeditated
killing;” or in enumerated instances where the murder is committed in
perpetration of another serious and dangerous offense against property, the
person or the state, can be punished by death, e.g. murder of an officer or
employee of the US or its agencies, or of state personnel assisting federal
personnel, retaliatory killing of the family members of federal officials or
employees, or by such a federal prisoner after an escape; the murder of a foreign
official, guest, or internationally protected person; the murder of a federal juror,
court officer or magistrate judge during or related to the discharge of his duties,
murder of a federal witness, victim or informant (to prevent testimony or
evidence, or in retaliation), murder with a firearm in a federal facility, use of
armor-piercing ammunition to commit a murder, murder of the President, Vice
President, or individual next in the line of succession to the Presidency, or murder
of members of Congress (or elect), head (or nominee) of an executive department
or a Justice (or nominee).
Other aggravated murder offenses under federal law include: murder for
hire (in interstate commerce or when paid by an enterprise engaged in
racketeering), carjacking with intent to cause serious harm or death, resulting in
death, murder committed by a federal prisoner under a term of life imprisonment,
murder in relation to interstate or foreign sex trafficking, child pornography,
sexual exploitation of minors, coercion or enticement to prostitution, human
trafficking, transmission of information about a minor for sexual purposes,
torture (in another country) resulting in death (if the victim was a US national or
the offender is present in the US), transporting or receiving explosives with the
intent that they be used to kill, injure, intimidate, or destroy a building, vehicle or
real property, if death results proximately from transporting or receiving, or use

34. 33
of the explosives, resulting in death, kidnapping or hostage-taking resulting in
the death of any person, killing during a bank robbery, in attempt to escape after a
bank robbery, etc. The federal death penalty applies for murder committed in
furtherance of drug trafficking or when the offender fires a weapon into a group
of two or more persons to escape detection of a major drug offense, or, when in
relation to a crime of violence or a drug trafficking crime the offender uses armor
piercing ammunition to commit a killing that qualifies as murder. A few states
have similar statutory provisions. Killing while engaging in or working in
furtherance of a continuing criminal enterprise (for drug trafficking) is punishable
by death. Aggravated murder is also punishable by death by states that provide
for the death penalty.
A variety of offenses resulting in death need not qualify under 18 U.S.C.
1111 as first degree murder in order to be death-eligible under federal law. These
offenses include second degree murder by a federal prisoner under sentence of
life imprisonment; mailing any prohibited substance or item resulting in death;
offenses against maritime navigation or maritime fixed platforms resulting in
death; and conspiracy against civil rights, violation of civil rights under color of
law, violations of federally protected rights, or destruction of religious real
property or obstruction of a person’s free exercise of religion resulting in death.
Some states permit execution for felony murder—a doctrine under which
any participant in a potentially life-threatening crime can, if death results, be
prosecuted for capital murder. There is a military death penalty for felony
murder. The Supreme Court’s jurisprudence limits the application of the death
penalty for felony murder to instances where an offender’s contribution to events
leading up to a killing are “substantial” and exhibit a “reckless disregard for
human life.” A few states permit the death penalty for perjury resulting in the
execution of an innocent person, although it is uncertain that this could survive a
constitutional challenge in light of the Supreme Court’s opinion in Kennedy v.
Louisianalxx
. Under 8 USC 1342, the death penalty might apply for some murders
or killings related to smuggling aliens. US laws also prescribe capital punishment
for a host of other crimes, viz. terrorism, drug-related, treason, espionage and
military offences not resulting in death.

35. 34
US laws also exempt juveniles below age 18, pregnant women, the
mentally retarded and mentally ill. In Ford v. Wainwrightlxxi
, the U.S. Supreme
Court confirmed the long-held principle that a convicted prisoner cannot be
executed while insane, even if he was sane at the time of his offense. The Court
further held that prisoners must be afforded at least an informal adversarial
process in which their advocates are able to contest the State’s determination that
a prisoner is sane and may be executed. The inquiry addresses whether the
defendant’s mental state prevents him from understanding the reality of his
execution and why he is being executed. The Court cited a number of principles
at common law, including that: (1) individuals may not be criminally liable for
offenses committed while insane; (2) an individual who is not sane is not capable
of participating in his own defense or appeal; (3) the practice of executing the
insane “has consistently been branded ‘savage and inhuman,’” purposeless and
immoral.
In Panetti v. Quatermanlxxii
, the Court reinforced the requirement that an
offender must be able to respond to state or court mental health experts by
offering his own experts. More importantly, the Court developed the standard for
determining competency for execution—it is not enough that an offender
understands that he will be executed and can state the crime for which he will die.
The offender may be lucid from time to time, or usually lucid enough to give a
realistic description of his situation. However, courts must also consider that an
offender’s delusions might distort his view of reality. For instance, in Panetti, the
offender believed that the true reason for his execution was related to spiritual
warfare and that the state wished to stop him from preaching. Even though the
offender was able to explain that he would be executed for murdering his wife’s
parents, and understood that he would in fact die, this awareness was insufficient.
According to the judgment, courts should consider whether expert testimony
shows that the offender has a truly rational understanding of his situationlxxiii
.
Russian Federation (Europe)
Intentional murder for profit, in the furtherance of another crime,
committed as part of a group, of officials or their relatives to oppose their duties,

36. 35
committed as a hate crime or with cruelty, maliciousness or baseness is
punishable by death. Attempt on life to subvert the democratically ordered State,
an attempt on the life of any professional or employee engaged in the criminal
justice system (including law enforcement), for the purpose of revenge or to
interfere with law enforcement or an investigation or the administration of
justice, is punishable by death. Genocide, including killing, inflicting grave
injuries to health, preventing childbirth, forcible transfer of children, resettlement,
or using any other means to accomplish genocide is punishable by death.
The new Criminal Code of 1996, which came into force just after Russia
became a Member State of Council of Europe, considerably reduced the number
of crimes punishable with death. While Article 66 of the Criminal Code prohibits
capital punishment for an attempted crime, Article 59 allows the death penalty for
especially grave crimes of “attempt on the life”. Several articles apply the death
penalty for specific instances of “attempt on the life or similar crimes, but also
provide for a range of lesser penalties. These “attempts on the life” may be a
category of attempt in which the commission of certain criminal acts with the
ultimate intent of harming the person or life of certain individuals is in itself a
death-eligible offense. We do not know whether courts interpret Article 66 to
limit the death penalty for encroachment to cases in which a life is taken.
There is no mandatory capital punishment. All death-eligible crimes in the
Russian Federation are discretionary; furthermore, the Criminal Code provides
for universal mitigation. The Russian Federation adopted a moratorium on the
death penalty in 1996; this moratorium has been followed by all republics in the
federation since 1999. Individuals below age 18 at time of crime, women, the
mentally retarded and ill and persons older than 65 years of age are exempted
from capital punishment.
People’s Republic of China (Asia)
The death penalty in China is applicable to murder generally, rather than
only to aggravated murder. Some crimes that pose a threat to public safety are
punishable by death when they result in death (or serious injury or property
damage) regardless of whether the offender set out to cause a serious risk of

37. 36
death e.g. robbery and organizing certain assemblies, kidnapping for extortion,
etc. A law passed in February 2011 specifies that the death penalty can be applied
for forced organ removal from a juvenile resulting in death. China’s anti-
terrorism laws treat those participating in lethal terrorist activities under the laws
for murder, kidnapping, and other crimes affecting public safety e.g. sabotage of
transportation, utilities, or certain construction equipment, setting fire, breaching
dikes, causing explosions, spreading poison, or employing other dangerous
means that lead to serious injuries or property loss such as airplane hijacking
(resulting in death) or the illegal trade, manufacture or transport of nuclear
materials or other weapons, ammunition or explosives (resulting in death).
Rape is punishable by death when it is gang/aggravated/multiple/public
rape and/or during abduction, rape for the purposes of forcing a woman into
prostitution, or when the rape causes serious injury. Sexual relations with a girl
under the age of 14 (by a person over the age of 18) are potentially death-eligible
statutory rape. Rape of a girl under 14 is to be punished harshly, which implies
that rape of a child is more likely to be a death-eligible offense than is rape of an
adult. Aggravated robbery, involving serious injury, intrusion onto public
transportation, use of lethal weapons, posing in uniform, taking military resources
or resources for disaster response, robbing financial institutions or large sums of
money, stealing cultural items, or multiple robberies, arson, kidnapping and
burglary not resulting in death, drug trafficking and graft are punishable by death.
Producing or selling fake medicine or tainted food, causing serious injury,
aggravated smuggling of armaments, counterfeit money or cultural relics,
providing armed escort to smugglers, aggravated counterfeiting; certain economic
fraud to the extreme detriment of the state, forgery, fraudulent issue, or improper
sale of tax items or papers. Like the US, China awards capital punishment for
treason, espionage, surrender followed by cooperation with the enemy,
obstructing commanders or military personnel with violence or intimidation,
causing serious consequences, particularly during wartime, fabrication of rumors
in collusion with the enemy, under especially serious circumstances and illegal
sale or transfer of military weaponry, under especially serious circumstances.
Aggravated abduction of women, children or infants for human trafficking is a

38. 37
death-eligible offense, as is purchasing trafficked women or children, torture by
judicial workers, producing or selling tainted food or medicine that causes death.
However, there is no mandatory death penalty; discretion by courts is
permissible, although for a limited number of cases discretion is reserved to the
Supreme People's Courtlxxiv
.
Egypt (Africa)
Premeditated killing, especially by poisoning, gang intimidation or
robbery, or a terrorist purpose, intentional arson of a building, resulting in the
deaths of persons who were present in the building at the outbreak of the fire, is
punishable by death are punishable by death. Murder for terrorism is punishable
by death. Causing death by terrorism in an attempt to force people to join or
maintain membership in anti-state or terrorist organizations is punishable by
death. Causing death in conjunction with a hijacking of any form of
transportation or destruction of a government facility, utility or place for public
use is punishable by death. Causing death by bombing is punishable by death.
Causing the death of enforcement personnel in conjunction with a terrorist act is
punishable by death.
A wide and vaguely-defined range of terrorism-related offenses not
necessarily resulting in death are punishable by death; such offenses include:
founding an organization that opposes the state through use of violence aimed at
causing harm, terror, ecological disaster or other social disruption; cooperation
with a foreign country or organization in carrying out or attempting a terrorist act;
gang attacks on the people, armed resistance to authorities or seizure of
government or public facilities, or leadership of a gang that would perform such
activities; usurping military authority or leading armed gangs for criminal
purposes (such as plundering); or other violent actions. Under Article 83(A) of
the Penal Code, a wide range of violent, non-violent and inchoate actions —
which plausibly include propagating “extremist thought” or sectarian divisions—
aimed at undermining Egypt’s independence, unity or territorial integrity or
aimed at assisting an enemy in time of war can be construed as terrorism
punishable by death. Under Article 26 of the Arms and Ammunition Law No.

39. 38
394 of 1954, as amended by Law No. 165 of 1981, possessing or acquiring arms,
ammunition or explosives for the inchoate purpose of disrupting the government,
public security or peace, national unity, constitutional principles or the law is
punishable by death. Kidnapping of a female aggravated/not aggravated by rape
(including statutory rape), drug trafficking/possession, treason, espionage are
punishable by death. However, capital punishment is not mandated, instead
applied under Art. 17 of the Penal Code, further limited by the requirement of a
unanimous verdict in the event of a death sentence under Art. 381 of the Criminal
Procedure Code. Juveniles below 18 years of age, pregnant women and the
mentally ill are exempted from capital punishment.
United Arab Emirates (Middle East)
Intentional murder is punishable by death in the case of “deliberate design
or premeditated purpose, if it is accompanied by another crime..., if the victim is
an descendant of the offender, a public officer or any person to whom a public
service is assigned…, or…with the use of any poisonous substances or
explosives.” This statutory law governs punishment, except that it does not
prejudice the right to blood money compensation under the Shari’a. Under Book
1, Article 1 of the Penal Code, retributive penalties can apply under Shari’a law.
UAE courts follow the Maliki school of Sunni Islam (but may also use authority
and interpretations from other schools). In practice, courts pronounce death
sentences for murder. “Islamic law presumes that any sane person who
intentionally kills a person with a weapon, is a sinner deserving perdition
according to the Qur’an and that the murderer is subject to retaliation.” Murder is
punishable by death as qisas (retaliation) or diya (compensation), but there is
some disagreement over which circumstances allow qisas. According to the
Maliki school of Sunni Islam, a person is “guilty of deliberate homicide if he
causes the death of another by any intentional act or omission directed against a
human being, which is either hostile or intrinsically likely to kill,” and is subject
to death as qisas. For the Hanafi, Shafi’i and Hanbali schools of Sunni Islam, the
offender is subject to death as qisas if “the killer intended to kill and employed
some means likely to have that result.” One source that generalizes on qisas

40. 39
offenses indicate that “deliberate killing is forbidden” but that only killing “with
a set purpose” is subject to death as qisas, while another explains that intentional
killing or intentional infliction of serious and permanent bodily harm allows
application of the talion principle and therefore the death penalty if the offense
results in death. There may thus be some conflict over whether the offender is
subject to death as qisas only upon a showing of actual as opposed to constructive
malice, and we do not know the rule applied by UAE courts.
Perjury, calumny resulting in condemnation, successfully inciting the
suicide of a person “afflicted with total lack of free will or reason”, use of drugs
or an existing drug-induced state to incite a person to commit an offense that
results in death is punishable by death. Arson of, or illegal use of explosives on, a
variety of buildings used for industry or inhabited or in inhabited areas, or of
means of transportation, or of forests or crops, when resulting in death, is
punishable by death. Kidnapping resulting in death, sodomy and drug trafficking
are punishable by death or life imprisonment. Acts of indecent assault (whether
statutory or due to coercion) resulting in death are punishable by death. A variety
of terrorism-related offenses resulting in death are punishable by death, such as:
coercion to conscript individuals into a terrorist organization; infringement of
diplomatic or consular premises in committing a terrorist act; use of nuclear,
chemical or biological weapons; hijacking; hostage-taking; assaulting security
forces; attacking a head of state or his family or a representative or officer of a
state; murder. A variety of terrorism-related offenses not resulting in death are
punishable by death, such as: forming or leading an organization with the intent
to commit terrorist acts; working with a foreign state or foreign or international
terror group to commit terrorism, if the act is committed; threatening to use
nuclear, chemical or biological weapons; using explosives or nuclear, chemical or
biological weapons in a hijacking or assault upon security forces.
Under Book 1, Article 1 of the UAE Penal Code, the provisions of Islamic
Sharia shall apply to crimes liable to hadd punishments, and individuals have
been sentenced to the religiously stipulated penalty death by stoning for adultery,
although it this penalty has not been carried out in recent years. A married person
who commits adultery is eligible for the death penalty as hadd (while the

41. 40
unmarried person is eligible for severe lashing as hadd). Crimes against the
external and internal security of the state such as high treason in support of an
enemy, or undermining the defense or morale or loyalty of the armed forces, or
surrendering or revealing defense secrets, or failing to perform defense-related
contracts adequately in time of war, are punishable by death, espionage and for
persons who “import or bring nuclear substances or wastes or bury, dump, store
or dispose of such wastes in any form in the environment of the State” are
punishable by death or life imprisonment.
Under Article 98 of the Penal Code, a judge has discretion based on the
circumstances of the offense or offender to award a sentence lesser than death.
Under the terrorism laws, the application of Article 98 of the Penal Code is
restricted to reducing death sentences to life imprisonment, but discretionary
sentencing is still permitted. The drug laws do not contain any provision
prohibiting the application of Article 98 of the Penal Code. Aggravated murder
may carry a discretionary statutory death penalty when the provisions of Shari’a
do not apply, but for any murder where Shari’a law applies, only the family of a
victim, not a court, may allow a sentence lesser than death. While the government
negotiates on behalf of the offender and the family often grants pardon, this death
penalty is considered arbitrary and mandatory because the court is not required or
permitted to exercise discretion in all appropriate cases.
India (Asia)
Murder is punishable by death under Article 302 of the Penal Codelxxv
. In
Bachan Singh v. State of Punjablxxvi
, India's Supreme Court held that the death
penalty was constitutional only when applied as an exceptional penalty in ”the
rarest of the rare” cases. According to the Penal Code, if any member of a group
commits murder in the course of committing an armed robbery, all members of
the group can be sentenced to death. Kidnapping for ransom in which the victim
is killed is punishable by the death penaltylxxvii
. Being a member of an
association or promoting an association while committing any act using
unlicensed firearms or explosives that results in death, is punishable by
deathlxxviii
. Engaging in organized crime, if it results in death, is punishable by

42. 41
death. Committing, or assisting another person in committing sati – the burning
or burying alive of widows or women – is also punishable by the death
penaltylxxix
. Under the Prevention of Atrocities Act, bearing false witness in a
capital case against a member of a scheduled caste or tribe, resulting in that
person's conviction and execution, carries the death penaltylxxx
. Assisting
individuals who are under the age of 18, mentally ill, mentally disabled, or
intoxicated in committing suicide is punishable by the death penaltylxxxi
.
However, whether (or when) these offenses are death-eligible must be
considered in the light of the Indian Supreme Court’s decision in Bachan
Singhlxxxii
. Courts may interpret Bachan Singh as overriding other law when
sentencing for offenses resulting in death. For instance, using, carrying,
manufacturing, selling, transferring, or testinglxxxiii
prohibited arms or
ammunition previously carried a mandatory death sentence if it resulted in the
death of any other person under the Indian Arms Act, 1959lxxxiv
. However, a
recent Supreme Court ruling in February 2012 ruled this provision
unconstitutional in light of the judgments in Bachan Singh v. State of Punjab and
Mithu v. State of Punjablxxxv
. This suggests that offenses resulting in death are
punishable by death only when they meet the “rarest of rare” standard laid out in
Bachan Singh.
All terrorism-related offenses resulting in death attract capital
punishmentlxxxvi
. Using any special category explosive to cause an explosion
likely to endanger life or cause serious damage to property is punishable by the
death penaltylxxxvii
. Under the Criminal Law (Amendment) Act, 2013, a person
who in the course of a sexual assault inflicts injury that causes the victim to die or
to be left in a “persistent vegetative state” is punishable by death. Repeat
offenders of gang rape are also punishable by deathlxxxviii
. Kidnapping or
detaining an individual is punishable by death if the kidnapper threatens to kill or
harm the victim, if the kidnapper’s conduct makes the death or harm of the victim
a possibility, or if the victim is actually harmedlxxxix
.
If an individual who has been convicted of the commission of, attempt to
commit, abetment of, or criminal conspiracy to commit any one of a range of

43. 42
offenses related to drug trafficking (e.g. trafficking of cannabis and opium)
commits another offense related to the production, manufacture, trafficking, or
financing of certain types and quantities of narcotic and psychotropic substances,
he or she can be sentenced to deathxc
. Waging or attempting to wage war against
the governmentxci
and assisting officers, soldiers, or members of the Navy, Army,
or Air Forces in committing mutiny are punishable by the death penaltyxcii
. The
following offenses, if committed by a member of the Army, Navy, or Air Forces,
are punishable by death: committing, inciting, conspiring to commit, or failing to
suppress mutinyxciii
; desertion or aiding desertionxciv
; cowardice; treacherous acts;
committing or inciting dereliction of duty; aiding the enemy; inducing individuals
subject to military law not to act against the enemy; imperiling Indian or allied
military, air, or naval forces in any wayxcv
.
Being a party to a criminal conspiracy to commit a capital offence is
punishable by deathxcvi
. Attempts to murder by those sentenced to life
imprisonment are punishable by death if the attempt results in harm to the
victimxcvii
. Providing false evidence with intent or knowledge of the likelihood
that another individual, or a member of a Scheduled Caste or Tribe, would be
convicted of a capital offense due to such evidencexcviii
carries the death penalty if
it results in the conviction and execution of an innocent personxcix
.
There is no mandatory capital punishment in India. In Mithu v. State of
Punjab, the Supreme Court ruled that the mandatory death penalty is
unconstitutionalc
. While subsequent legislation for drug and atrocity offenses
prescribes the mandatory death penalty, and the Supreme Court has not expressly
struck down the penalty as unconstitutional, Indian courts have not applied the
mandatory death penalty for these crimesci
. Additionally, a line of cases since the
1980 case of Bachan Singh v. State of Punjabcii
, in which the Court held that the
death penalty should only be applied for the most heinous offenses (“the rarest of
the rare”), illustrate that application of the death penalty is, while not always
predictable, still highly restrictedciii
. There are no offenses that carry mandatory
death sentence either. In Mithu v. State of Punjab, the Supreme Court ruled that
the mandatory death penalty is unconstitutionalciv
. While subsequent legislation
for drug and atrocity offenses prescribes the mandatory death penalty, and the