One of the main pre-requisites of law in the society is that it should be dynamic. This change occurs from time to time in accordance with the needs of the society, and that is the reason why democracy as a way of governing the subjects evolved and various other laws we see today are exactly in contradiction to the laws which were existing a long time ago. The law relating to punishment has been questioned in this regard, as to whether the State has the power to take away the fundamental right to live which has been given by the nature. The 262ndLaw Commission Report recommended that the capital punishment or death penalty should be abolished from the Indian legal system, which should instead follow the procedure advised by the human rights activists.

But the question remains as to whether the State should have such power so as to take away life? Whether the offence committed by the person convicted is grave enough to justify the taking away of his life? Death penalty has always been a contentious issue throughout the world which incepted from the minds of human rights activists thereby involving judges of the highest courts in the country which is evident through various judicial pronouncements. A recent deliberation came out in 2003 from the judgement of the Supreme Court in the case of Shankar Kisanrao Khade v. State of Maharashtra, wherein arguments were made in pursuance of death penalty awarded to the convict and its constitutionality. The Court pertaining to the constitutionality of the subject referred the matter to the Law Commission for its opinion in this regard. The Law Commission is a body established by the Government of India to look into the contemporary issues arising in the legal avenue of the country and also to make recommendations on the legal reforms that can be looked upon by the legislature. The Commission being a body comprising of legal experts receives references either from the Parliament or the Supreme Court or otherwise, it can even take up matters suo moto to decide upon.

The role of the judiciary has been widened in adjudging the matters relating to certain heinous offences such as murder, rape etc. wherein the Judges have been empowered to impose death penalty if they deem fit. India has primarily been following the reformative theory of punishment which provides that the purpose of punishment should be such so as to ensure that the person can be placed again in society but the difference would be that he won’t commit any further crime. On the other hand, the deterrent theory reflects that the purpose of punishment should be such as the other subjects of the state would be deterred from performing the crime again while the retributive theory finds its basis in the principle of “an eye for an eye and a tooth for a tooth”. It has been contended that death penalty works as a deterrent factor in the society, but there has been no such deterrence that has been found acting in the society because of such punishment. It is ironic to note here that the Law Commission which has recommended that death penalty should be abolished this time, earlier in its 35th Report, on the same subject, presenteda counter view. The Code of Criminal Procedure (CrPC),, prior to independence, provides that if a crime has punishment of death penalty as an option and if the Court is not imposing the same, the reasons for the same have to be mandatorily recorded in the judgement. But, after Independence in 1955, the Parliament by way of an amendment removed such a provision. But when in 1973 the provisions provided therein were reformed, an entire opposite view point of the 1898 Code of Criminal Procedure, under Section 354(3) was incorporated which specified that whenever death sentence is imposed as punishment, “special reasons” are to be provided for such an imposition. More dilution of this occurred when the Supreme Court delivered the judgement in Bachan Singh’s case providing with the guidelines that death penalty should only be imposed in cases of “rarest of the rare” nature, though failing to define it. Thus, even though the judgement was widely celebrated, it again left room for judicial discretion and opinion of the judges in categorising the cases under the head of “rarest of rare”. This power of adjudging on the convict’s right to live is much criticised as there were variations evident in the judgements of the Court on facts of similar nature.

There are organisations which have been lobbying with different Governments of the world for abolishing death penalty. At present, 140 countries of the world have abolished death penalty. There have been many Resolutions which have been passed from the United Nations for imposing a moratorium on the punishment of death penalty and India has always voted against it. Also, in the Universal Declaration of Human Rights, 1948, right to life has been provided with such a broad aspect incorporating that the States should abolish capital punishment. Article 6 of the International Covenant on Civil and Political Rights, 1976 further states that there should not be any sentence of death imposed on the convicts below 18 years of age. Many nations such as Iran, China, Pakistan, Saudi Arabia and the United States of America still have not abolished death penalty. There are also varied kinds of execution which have being used around the world such as beheading, electrocution, hanging, lethal injection and shooting in the back of the head. In India, hanging and shooting are the ways which are prescribed by the law for execution. But shooting from back is only there in the Army Act, Navy Act and the Air Force Act, otherwise, hanging is the practice which is being used for execution of death penalty.

Another contention which is being used for opposing the death penalty is that if the Court makes a mistake, it may be fatal and is irreparable.  However, the Constitution has provided the President and the Governor with the powers of clemency by virtue of Articles 72 and 161 respectively. But the problem with this provision of law is that the decision on the mercy petition is not being taken for very long periods of time. The Supreme Court recently said that when the mercy petitions have not been decided by the President for a long period of time, this imposes double sentence on the convict as while in the prison, he is also suffering from the fear of death which is inhumane. The support for abolishing death penalty in the country has also increased in recent times. In August 2015, Tripura Assembly also passed a resolution in favour of the same while the political parties such as Communist Party of India (Marxist-Leninist Liberation) [CPI (M-L)], the Viduthalai Chiruthaigal Katchi (VCK), the Manithaneya Makkal Katchi (MMK), the Gandhiya Makkal Iyakkam (GMI), the Marumalarchi Dravida Munnetra Kazhagam (MDMK), and the Dravida Munnetra Kazhagam (DMK) have openly supported the abolishment. Also, 2 private member bills are on the floor of the Parliament out of which, one is by Kanimozhi in the Rajya Sabha while D. Raja has proposed the same in Lok Sabha.

The argument from the human rights perspective seems vague when cases of 26/11 Mumbai terrorist attack, Parliamentary attack of 2001 come forward and people demand for capital punishment of such convicts. If, for argument’s sake, let us say that the punishment for terrorist attacks should be capital punishment, but at the same time, other instances which are barbaric in nature such as Nithari killings and Delhi gang rape case should also not be exempted from this. In conclusion, it may be stated that the present position of law as set up by Bachchan Singh’s case and Section 354(3) of CrPC seems to be perfect in nature. Also, if the Supreme Court provides with specific guidelines and better interpretation of the ratio of Bachchan Singh’s case, then the contentions regarding arbitrariness could also be settled.