This article has been written by Divya Sharma. Divya is currently a student in National Law University, Assam.

Yesterday night when you read a judgement in which death penalty was awarded to the accused and the very next day you wake up with a thought like “An eye for an eye makes the whole world blind”. Global figures are saying that more than two third (one hundred forty in numbers) of the countries worldwide have abolished capital punishment in law as well as in practice[1]. International trend is increasing towards its complete abolition but India still retains death penalty. What were those reasons which led to this never ending debate which is still recognized by the contemporary writers on this topic? The philosophical, humanitarian and moral arguments for or against the death penalty have remained remarkably unchanged since the beginning of the debate. Also, the question arises that what were those reasons which forced our members of the Constituent Assembly to hold the constitutional validity of the death penalty. So, the contemporary legal issue has become the subject of increased investigation, especially in recent years due to its idea of “an eye for an eye”.

Miscarriage of Justice: Abolitionist’s Perspective

People in favour of abolition equate death penalty with miscarriage of justice. According to them, provision of appealing to the Supreme Court of India is open for the wealthy ones only and the common people who have no source of income and wealth will not be able to avail themselves of it. For them the major concern is miscarriage of justice. If the goal of any punishment is to teach us those things we should not do, then the justice system should more adequately teach the criminality of killing by refusing to partake in it.[2]

Reality is by subjecting one to death penalty we cannot bring back the victim to life. By death sentence, the state portrays the idea of hate revenge and anger, which is not at all the best cure to fill in the gaps. There is a possibility that innocent people may be put to death. It is very much possible in the 21^st century that someone can be wrongly hanged. Capital punishment can only be regarded as revenge not justice. On the one side, Government is trying to create a just and fare society and on the very other hand it allows to commit the same crime lawfully in the name of justice.

A Great Deterrence: Retentionist’s Perspective

Retentionists think death penalty as a great deterrent. For them if country wants a crime free society then it has to hold death penalty. There is no other punishment which can replace it. For them the right time has not come yet to abolish death penalty. The arguments of abolitionists that death penalty is not a real deterrent and is ineffective is based on a humanitarian which makes law weak. These ideas of humanitarian and moral grounds can be taken until n unless you are not suffered because of this. Neither the victim nor their related members can be taken their stand in favour of moral and humanitarian grounds to abolish death penalty. In this era, our judiciary has gone to such a level that there is no point to debate on any case of mistake. Day by day, Indian judiciary is touching the sky in providing justice to people. Abolitionists should not discuss about the irreversible nature of the death penalty. In this area we should always think about the victim who has suffered and not about that person’s rights who have violated someone else’s rights. Also, it is not wrong to say that it is much more economical than the other punishments. It removes unwanted people permanently. It cannot be ignored that if there is no punishment of death penalty then there will be a very good chance of increasing repeat offenders. As the present scenario stands, the law for death penalty is that it shall be given only in ‘rarest of rare’ cases. This concept of rarest of reduces the frequency of death penalty sentences.

A Critical Analysis

So, the debate on death penalty is never ending. If the person is victim and has suffered then definitely he will be in favour to retain capital punishment. And the person who has not gone through with such situations will talk about humanitarian and moral grounds. International trend is towards the abolition. But India should not be compared with the other countries. Our social and economic conditions are very much different as compared to that of other countries that have abolished it. The country has the need of this concept of rarest of rare. There are some exceptionally unwanted criminals who demand death penalty. Recently, the two very famous cases named, Mohd. Ajmal Amir Kasab v. State of Maharashtra[3][4] and State v. Mohd. Afzal And Ors.[5][6] .The quick succession of the two executions, as well as the Supreme Court’s ruling with regards to death penalty earlier this year has raised the awareness of controversy surrounding India’s penal system. The verdict of the Delhi rape case was announced recently. The judges awarded death sentence to the four accused and a 3 year imprisonment to the juvenile. This decision has reignited the debate on death penalty. All be given death,” the court said while reading out a portion of the order. So, in some cases this becomes mandatory to award death sentence. Also, the focus should be given to the victim compensation scheme. Victims or their family members have to be given rehabilitation, economic help.

[1] A/mnesty International, available at: https://www.amnesty.org/en/latest/news/2016/04/death-penalty-2015-facts-and-figures/

[2] Areti Krishna Kumari, “DEATH PENALTY: NEW DIMENSIONS”, 1^st ed. 2007, p. 34

[3] (2012) 9 SCC 1

[4] Convicted of involvement in the 2008 Mumbai gun attack was hung 21st November 2012.

[5] 2003 VIIAD Delhi 1

[6] convicted of plotting the 2001 attack on India’s Parliament was executed in February 2013

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