PROPOSAL OF PH.D.

ON
A HARSH REALITY BEHIND CAPITAL
PUNISHMENT : A COMPARATIVE
CRITICAL ANALYSIS OF DIFFERENT
JURISDICTIONS WITH SPECIAL FOCUS ON
INDIA

Submitted By-: Sachin Bhardwaj

B.A.LL.B. (Aligarh Muslim University, 2015)
LL.M. (National Law University Delhi, 2016)
Address-5/132 F2-1 Bihari Puram Colony
Phase-1 Melrose By Pass G.T. Road Aligarh, UP,
202001.
Email Id. bhardwajs1992@gmail.com
Mobile No. 9818297064, 9457008477
 INTRODUCTION

OBJECT AND PURPOSE OF STUDY

RESEARCH QUESTIONS

SIGNIFICANCE OF STUDY

DATA BASE & RESEARCH METHODOLOGY

CHAPTERISATION PLAN
 INTRODUCTION

CAPITAL PUNISHMENT

Judges who support the capital punishment must also bear in mind to have the

responsibility to ensure the correctness of this irreversible punishment.

(Bill Clinton, former US President)

The Capital punishment becomes the sanctity of human life through the society's

recognition.

(Orrin Hatch, US Senator)

In most of the teachings such as religion or ethics, it only teaches us that bad action

leads only to the bad consequences. The punishment being imposed because of two

reasons. One reason is that it would be correct and just to punish a person who has

done something wrong; the other reason would be that it could be some kind of

discouragement by inflicting the punishment to the wrong doer to not commit crime

further. The punishment of death penalty also stands on the similar position as the other

punishments are and due to more serious nature which is of irrevocable nature it

become a very hot topic of debate upon its correctness in comparison with the other

punishment. The persons who support the concept of death penalty said that it is the

best and effective way to restrain the crime and they also believe that it brings justice to

the victims in a better form against the one committing the most heinous crime1. The

1http://www.legalserviceindia.com/articles/cap_pp.htm ( Last Accessed 2 July 2019)

concept of death penalty has been the mode of executing the punishment from times

immemorial and the debate for and against has also been not changed much over the

years.

The meaning of death penalty has no where been defined in any statute. According to

Section 53 of the Indian Penal Code, it only talks about the punishment what a judge

can impose against the accused when the charge has been proved beyond the

reasonable doubt which also includes the death penalty but it did not define the death

penalty anywhere2. As per the Black Law’s dictionary the meaning of the word capital

punishment has been which said that ‘it is the worst penalty given for committing a

murder by a murderer’.

As per the definition of Oxford Dictionary, the term capital punishment has been defined

as the ‘punishment of a crime by killing someone through an authorized manner3.

Therefore we can say that the punishment like Capital punishment has been delivered

by the court for some capital offences such as murder, repeated crimes such as multiple

murders, rape and murder because in that offence the law considers such person as a

gross danger for the society.4

The Concept of Capital Punishment is considered to be the end of all the punishment in

the criminal justice system. Many countries are against the concept of Capital

punishment therefore they abolished it from their countries while some countries are in

support of Capital Punishment therefore, they still retain this concept. In my research

proposal my point of contention is to analyze Death Penalty in different jurisdictions or

2Pillai’s PSA, Criminal Law, Dr KI Vibhite, 11th Edition 2012 Pg 273.

3http://oxforddictionaries.com/definition/english/capital%2Bpunishment (Last Accessed 2 July 2019)
4http://www.legal-explanations.com/definitions/capital-punishment.htm (Last Accessed 2 July 2019)
whether the state should abolish this concept or not? The research is to analyse the

every possible factor behind the intention of imposing death sentence or abolition of

death sentence.

Capital Punishment is the legally authorized killing of someone as punishment for a

crime. It is often used interchangeably with the death penalty, as they mean essentially

the same thing. The United States and the United Kingdom, two countries that were

once united, have come to two different conclusions on the use of capital punishment.

The Supreme Court of the United States has been back and forth on the issue, but most

recently ruled that capital punishment is not cruel and unusual punishment. States are

free to abstain from using capital punishment within their own borders, but capital

punishment is accepted for federal crimes and in the states that have not abolished it. In

the United Kingdom, capital punishment was eliminated in 1965 for murder, but kept on

the books for other crimes, such as treason. In 1998, the U.K. officially removed capital

punishment from their laws for all crimes. The U.S. and the U.K. have reached different

conclusions about the use of capital punishment because the news media encourages

opposite reactions via the same means, the desire for lawmakers to remain popular with

their constituents is drastically more prevalent in the U.S., and the execution of innocent

persons is the greatest factor in favor of abolition.

The U.S. and the U.K. have responded differently to capital punishment. The three main

factors have been the influence of the news media, the pressure for lawmakers to

remain popular, and the execution of innocent persons. This research has

demonstrated that the news media in the U.S. has an impact on public opinion. Public

opinion has a dramatic impact on legislators, both at the state and national level. While
the public does not influence the U.S. Supreme Court—where most changes to capital

punishment has occurred—the Supreme Court is in fact influenced by changes in the

state legislatures. In the U.K., however, this is not the progression that ensues. The

news media may influence public opinion, but the legislature does not respond to public

opinion on conscience issues such as capital punishment. In the U.K., the legislature

shapes the media, who in turn eventually sways the public. The execution of innocent

people, or at least people who it was believed should not have been executed, sparked

change in the U.K.—namely the convictions and executions of Timothy Evans, Derek

Bentley, and Ruth Ellis. While the public was upset and called for change following each

of these three cases, they were not necessarily calling for abolition, as public opinion

polls showed that the death penalty was still popular after these instances. Yet,

Parliament responded by advocating an abandonment of the death penalty. The

execution of innocent persons created change in the legislature, the news media

followed behind, and eventually the public was swayed. In the U.S., because of the

differences in influence and in all of these important areas discussed herein, it is highly

unlikely that abolition could occur in the same manner. It is my contention that the public

would have to step out in front of the news media to 49 cause change. There would

need to be a public outcry against executing innocent persons—or any persons—to

make a difference and cause the news media to respond. If the news media reported

that public opinion had overwhelmingly changed, state legislatures would rush to follow.

When there is consistent change in one direction, and when a sufficient number of

states abolish the death penalty, the Court will most likely determine that under an

evolving standard of decency, capital punishment is no longer acceptable in the U.S.,

and thus is unconstitutional. Conversely, retentionists need to find a way to fix the

systematic flaw of executing innocent people. If it is not addressed, it will be the

downfall of capital punishment in the U.S., just as it was in the U.K.

If we talk about Islam and Capital Punishment then Islam on the whole accepts capital

punishment.

...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

Qur'an 6:151

But even though the death penalty is allowed, forgiveness is preferable. Forgiveness,

together with peace, is a predominant Qur'anic theme.

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.

Methods of execution in Islamic countries vary and can include beheading, firing squad,

hanging and stoning. In some countries public executions are carried out to heighten

the element of deterrence.

Each case is regarded individually and with extreme care and the court is fully able to

impose more lenient sentences as and when they see fit.

Islamic countries that practise a very strict Sharia law are associated with the use of

capital punishment as retribution for the largest variety of crimes.

At the other end of the spectrum are countries such as Albania and Bosnia, which still

retain the death penalty as part of their penal system, but are abolitionist in practice.

In Islamic law, the death penalty 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 death penalty

for anyone who threatens to undermine authority or destabilise the state

What constitutes the crime of 'spreading mischief in the land' is open to interpretation,

but the following crimes are usually included:

 Treason/apostasy (when one leaves the faith and turns against it)

 Terrorism

 Piracy of any kind

 Rape

 Adultery

 Homosexual activity

Whilst Islam remains firmly retentionist, there is a small but growing abolitionist Islamic

view. Their argument is as follows:

  The Ulamas (those who are learned in Islamic Law, constitution and theology) 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.

In Geneva, on 28th April 2005, there was a call for a moratorium on corporal

punishment, stoning and death penalty. This was, however, rejected by the Legal

Research Commission of the Al-Azhar University in Cairo, the world's leading Islamic

learning centre.

As per the study conducted by National Law University Delhi One of the most striking

features was that prisoners on death row are treated differently from the moment they

are sentenced to death by the trial courts, despite the bar against their execution until

confirmation of death sentence by the High Court. In many prisons, these differences

have been extended to prohibition on work, lack of interaction with general prison

population or prohibition from participating in prison activities. One of the person named

Inder says “When anyone is tortured like I was, it no longer matters whether you did it or

not, you will agree to anything to make the torture stop.” The tendency of trial courts to

impose death sentences is on the rise, if the third edition of the Death Penalty report by Project

39A of the Centre on Death Penalty at National Law University, Delhi (NLUD) is any indication.
As per the Death Penalty in India: Annual Statistics report, the year 2018 witnessed trial

courts handing out 162 death sentences, a jump from the 108 awarded in 2017, and the

highest number since 2000. This tendency is also apparent in the legislative changes

made last year, whereby the scope for imposition of the death penalty was expanded,

particularly in the face of public outcry following the Kathua rape case. On the other

hand, the report notes that the Supreme Court chose to go in a different direction,

commuting all but one of the death penalty cases that it heard in 2018.

OBJECT AND PURPOSE OF STUDY

The objectives and purpose of the study are:

 To study Laws and real situations on the Death penalty in India with

differentiating history of US, UK and other important jurisdictions.

 To provide a strong understanding and the logic behind death sentence and

harsh realities.

 To study every alternative and possible measure to remove this practice or to

make it harsher.

 To provide logical suggestive solutions to make this practice humanly.

RESEARCH QUESTIONS

The very basic research question is that:

 Whether death sentence must be abolished or retained?

 Whether the conditions of different jurisdictions affect the decisions on death

sentence?
  Whether the alternative of death sentence is possible in the form of moral

obligation or more harsh form is necessary?

DATA BASE & RESEARCH METHODOLOGY

This research work is mainly doctrinal in nature and it might include some empirical

research as per the situation during research. Looking into the requirements of the

objectives of the study the research design employed for the study is analytical and

descriptive. The scope of the project is very wide it will include primary sources,

secondary sources and other required sources.

The project aims at carrying out a complete thorough research to enhance the advance

knowledge of the subject. The research will include the key issue of criminal justice

system which is still unsolved and in dilemma.

 Primary source

Any statics, reports, surveys or data from authorized sources will form the primary

source of my research.

 Secondary source

Books, Articles, Publications, News Reports will form the secondary source of research.

CHAPTERISATION PLAN

Chapter- 1 Introduction

This chapter will include the introductory start of research and formation of ground of
research. It will approach the whole outline of the research with required restrictions and
boundary lines.
Chapter- 2 India and death sentence

This chapter will include all the theories of punishment with special focus on capital
punishment. India, history and application of it will be death under this chapter. How
does the death sentence become more than a death sentence in India?

Chapter- 3 US History of death penalty.

The chapter will deal with the complete history and transformation regarding death
penalty.

Chapter- 4 UK History of death penalty.

The chapter will deal with the complete history and transformation regarding death
penalty.

Chapter- 5 Analysis of death penalty in some other jurisdictions.

The chapter will include some other jurisdictions and more focus will be on Islamic
Countries. How does the Islamic States and Shariat Play an important role in capital
punishment?

Chapter- 6 Final analysis with suggestive recommendations.

This chapter will be the final version of whole research and a concrete formulation of
suggestive model which will be valuable piece of advice to everyone.

Chapter- 7 Conclusion

Conclusion will give an advance piece of knowledge and credibility which will make this
research a worth.