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Alternatives to capital
punishment
October 03, 2020 6105 Views

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This article, by Aksshay Sharma, Department of

Laws, Panjab University, Chandigarh, deals with
why capital punishment should be abolished. The
article also discusses the Law Commission report
on Death Penalty and Project 39A of National
Law University (NLU), Delhi. Project 39A
comprehensively discusses the issues with respect
to the death sentencing system by the courts of
Madhya Pradesh, Delhi and Maharashtra. This
article also attempts to delineate as to why the
death penalty should be abolished in India.

Table of Contents

Introduction
Reasons for alternatives to the death penalty
Alternatives to capital punishment
Conclusion
References

Introduction
Capital punishment is the practice of killing a
person as a form of punishment for a particular
offence after conducting a proper legal trial by the
courts. It can only be done by a legitimate state
authority with the sanction of the Judiciary, so
when non-state organisations,in the name of
capital punishment execute a person they have
actually committed a murder. It is usually used as
a punishment for particularly serious types of the
offence like Murder, Mutiny etc., but in some
countries treason, types of fraud, adultery and
rape are categorised as crimes involving capital
punishment. It can include death by administering
a lethal injection, electrocution, shooting,
decapitation of the head, but almost all nations
now prefer death by hanging. Capital punishment
itself is cruel, inhuman and degrading, and this is
the reason 140 nations have abolished it. In
Furman v. Georgia the United States Supreme
Court declared the death penalty to be
unconstitutional as being cruel and an unusual
punishment.

Reasons for alternatives to the

death penalty
In Bachan Singh v. State of Punjab (1980)
Supreme Court said that The real and abiding
concern for the dignity of human life postulates
resistance to taking a life through law’s
instrumentality. The 21st Law Commission of
India chaired by Justice A.P. Shah submitted its
262nd report on 31st August 2015. The Law
Commission recommended “swift” abolition of
death penalty except in terror-related cases. It said
that the death penalty does not serve the
penological goal of deterrence any more than life
imprisonment. The report said that the method
for abolition should be swift, irreversible and
absolute abolition. Even the 20th Law commission
in its report asked for the abolition of the death
penalty in all respects in the very near future.

According to Project 39A the procedure followed

by courts in awarding Death Penalty has multiple
flaws;

Problems with the Sentencing procedure:

Trial courts rely heavily on aggravating
circumstances of the crime to reach an outcome.
The report says that “ a reading of 215 trial
court judgements across three states suggested
an overwhelming reliance on aggravating
circumstances of the crime to impose a death
sentence”. This is in contrast to the Supreme
Court’s decision in the Bachan Singh case. In
Bachan Singh, the court ruled that
“aggravating circumstances must outweigh
mitigating circumstances for imposition of the
death penalty” and mitigating circumstances
must be given a “liberal and expansive
interpretation”.

In some cases, mitigating factors were not even

considered at all. In Sevaka Perumal, Etc vs State
Of Tamil Nadu (1991) Court dismissed the
mitigating factors and held that these
compassionate grounds would always be present
in most cases and are not relevant for
interference.

Aggravating circumstances are those factors which

contribute to offenders culpability
(blameworthiness). This results in harsher
punishment for a particular offence. Mitigating
circumstances are those factors which contribute
to the lessening of punishment, like past criminal
record, first time offender, the sole breadwinner of
a family.

Crime-centric focus: The report warns

against the increased crime centric focus of all
courts while deciding on imposition of the death
penalty. According to the report, courts have
steadily drifted towards considering “nature of
the crime” for death sentencing.

Bachan Singh required consideration of

aggravating and mitigating circumstances of the
crime as well as the criminal. 

However, Machhi Singh case court introduced the

concept of “collective conscience” in the
sentencing framework. It laid down 5 categories
which according to court were enough to outrage
the collective conscience, these include:

Motive of crime;
Manner of commission of the crime;
Anti-social or socially abhorrent nature of the
crime;
Magnitude of crime; 
The personality of the victim.

These categories point towards consideration of

the nature of the crime for the imposition of a
death sentence, which was expressly rejected by
the court in Bachan Singh. The court said that the
death sentence is to be given “only in the gravest
cases of extreme culpability” after considering the
aggravating and mitigating circumstances in a
case and giving due consideration to the
“circumstances of the offence, as well as the
circumstances of the offender”.

According to 21st Law Commission, the way

judges have invoked the categories in Machhi
Singh said that once an offence falls within any of
the 5 categories then it becomes a rarest of the
rare case thus deserving the punishment of death
penalty. Machhi Singh and other cases involving
offences punishable by death, the courts have
focused only on the circumstances, manner,
nature and the motive for the crime, without
taking into account the circumstances (situations
under which he committed the crime) of the
criminal or the possibility of reform. This aspect
completely ignores the possibility of reformation
of the criminal, because in many cases extreme
circumstances force a person to a life of crime.

It is worth noting that after Bachan Singh, specific

crimes were considered for mandatory imposition
of death penalty like death by Policeman in Police
Custody (Mehboob Batcha & Ors vs State Rep. By
Supdt. Of Police), Honour Killing (Bhagwan Dass
vs State (NCT) Of Delhi).

Inordinately long duration: According to

the Death Penalty India report (2016), time
spent by convicts under a death sentence is
usually between 8-11 years, making the convict
undergo an experience, which itself is a kind of
punishment. Prolonged detention to await
execution of a sentence of death is a violation of
Right to life under Article 21 of the Constitution
of India. It is unjust, unfair and unreasonable.
Due-process of law must be followed not just
during the adjudication process but also in the
execution of a sentence imposed by a court.
Further, the time for completion of legal
proceedings in case of prisoner’s sentence to
death is also extremely long. According to the
death penalty report (2016), the average
duration in Trial court is 5 years.

The pendency of legal proceedings in Court for

more than 5 years has been considered as a
violation of “speedy justice” under Article 21 of
Indian Constitution, by the National Court
Management Systems Committee of the Supreme
Court of India.

A similar tradition has been witnessed in deciding

mercy petitions also. According to Law
Commission of India, while talking on the
abolition of the death penalty said that when a
convict on the death penalty has already spent a
considerable amount of time in prison before his
mercy plea is to be finally decided by the President
then such delay becomes a strong factor for
deciding whether the prisoner still deserves the
additional punishment of execution or not. Thus
the commission considered long incarceration of
death row convicts as a punishment in itself.

In the Shatrugan Sinha case one Gurmeet Singh

was arrested in October 1986, and convicted and
sentenced to death by the trial court in July 1992.
The High Court confirmed his death sentence in
March 1996, and the Supreme Court upheld the
conviction and death sentence in September 2005.
The convict’s mercy petition was decided on 1st
March 2013.By this time he had spent 27 years in
Custody out of which about 21 years were after the
imposition of the death sentence. This factor of
long delay was ignored and his mercy petition was
rejected. However, The Supreme Court in
Shatrughan Chauhan commuted the death
sentence of Gurmeet Singh on the grounds of the
inordinate time taken by the executive in the
disposal of his mercy petition.

Problems with the Sentencing

framework: The interpretation and use of
Bachan Singh doctrine in the Supreme Court
have resulted in significant deviation, error and
arbitrary application of the death penalty.
According to Project 39A, a different
interpretation of the Bachan Singh case has led
to the foreclosing of the alternative option of life
imprisonment.

The courts while imposing the death sentence

have to record special reasons to justify the
imposition of the death penalty under, Section
354(3) of Cr. P.C. In Bachan Singh, the court said
that rigid formulation of special reasons would be
impracticable as “judges would not be able to
consider the variations in culpability”. Thus court
laid down very broad guidelines, such as death
sentence to be given only in “rarest of rare cases”
and that the determination of aggravating and
mitigating circumstances is to be based on “well-
recognised principles”. But the court did not
specify the rarest of rare cases and well-recognised
principles. The report says that this incoherence
has led to a “near collapse of Bachan Singh
Doctrine.

The Law Commission in its 21st report said that

the application of the death penalty is “subjective
and arbitrary” in nature. It said that the rule of
“the rarest of rare cases” as laid down in Bachan
Singh case has been applied variedly and
inconsistently by the courts and thus the
imposition of the death sentence or its
commutation “depends on the personal
predilection of judges constituting the bench”.

This uneven application of Bachan Singh has

resulted in a state of uncertainty in capital
sentencing law in India which is a violative
constitutional due process under Article 21 and
against the equality principle.

The death penalty has failed to be a

deterrent: According to retentionists death
penalty falls under preventive or deterrent
theory of punishment. According to the 35th
Report of Law Commission of India, the
deterrent aspect of capital punishment i.e
imposing death penalty will deter other from
committing it, was its “most important object”,
saying it constituted as “its strongest
justification”.

The death penalty has been described as Legal

vengeance, “Legal vengeance solidifies social
solidarity against lawbreakers and hence it is
legally justified”2. Supporters of the death penalty
call it a necessary evil. According to James
Fitzjames Stephen” no other punishment deters
men so effectively as the punishment of death”. It
is because of this he provided for a death
sentence. However, this fallacy that cruller
punishments deter crime doesn’t take into account
that there are complex social and economic factors
that drive crime rates, and secondly, that
criminals don’t often plan on getting caught or
think through all the consequences of their
actions.

Discriminatory: According to 2016 Death

penalty report 74% of persons on the death
penalty are from Economically weaker sections
and the majority of these never attended school.
Thus it can be deduced that Socioeconomic
background and circumstances are factors that
force a criminal to commit a crime. Thus the
purpose of law should be to eliminate these
factors. People who do not have sufficient
financial means or those who for some other
reason cannot fight the cause (case) to the last,
suffer, and that the law proves to be unjust to
them. 

Not a modern form of punishment: The

death penalty is usually regarded as effective in
states with skewed justice systems. In many
cases according to Amnesty International,
people are executed after being convicted in
grossly unfair legal trials, on the basis of
torture-tainted evidence and without adequate
legal representation. In some countries like in
Myanmar, Niger, Nigeria, Pakistan, Palestinian
Authority, Qatar, Saudi Arabia death sentences
are imposed as the mandatory or default
punishment for certain offences. This implies
that a Judge is not able to consider the
circumstances of the crime and circumstances
of the offender before imposing the punishment
of the death penalty. Courts are not required to
take into consideration the circumstances of the
offence or the characteristics of each individual
offender and the offender is simply sentenced to
death without the application of any mitigating
circumstances.

In the case of Furman v. Georgia, 408 U.S. 238

the U.S.Supreme Court declared that under the
imposition and carrying out of the death penalty
constitutes as cruel and unusual punishment in
violation of the Eighth and Fourteenth
Amendments of the U.S. Constitution. These
serious issues and considering the possibility of
miscarriage of justice resulting in death, Civil
rights organisations like amnesty international,
the United Nations and many rights activists are
clamouring for abolishing the death penalty.
These groups in law are termed as abolitionist.
Right to life and its various aspects in India
guaranteed under article 21 of the Constitution.
Death Penalty is a unique punishment. a death
sentence deprives a person of the opportunity to
reform themselves. Moreso it also destroys
families when their sole breadwinner is sent to the
gallows. It hampers their children’s education and
upbringing as well.

Alternatives to capital
punishment
No human being should be regarded as beyond
improvement and should therefore always have
the prospect of being released. – Dirk van Zyl
Smit

The fundamental reason for adopting an

alternative to the death penalty is the possibility to
reform. Often offenders barring hardcore
criminals or history sheeters repent after spending
time in prison and having their liberty severely
curtailed. This can be gauged from offenders
behaviour in prison, his attitude towards inmates
and prison authorities. 

Life imprisonment: An effective alternative

to Death Penalty is life imprisonment. This
includes Imprisonment until the natural death
of a convict, with no possibility of release i.e.
without parole. This is sometimes called life
without parole (LWP). Similarly, there can be
life imprisonment with the possibility of parole.
Rationales advanced for life imprisonment, as a
form of the most severe punishment, includes
deterrence, retribution, restoration and
incapacitation (stopping an offender from
reoffending in the interests of public
protection). 

However, even Life imprisonment is unnecessarily

punitive in many cases, especially in cases of non-
violent crimes, and does not satisfy the principle
of proportionality. LWOP, in particular, raises
issues of cruel, inhuman and degrading
punishment and undermines the right to human
dignity by taking away the prospect of
rehabilitation.

Therefore LWOP also attracts similar objections

as the death penalty as it undermines the inherent
right to life. To lock up a prisoner and take away
all hope of release is to resort to another form of a
death sentence. Prisoners can leave prison only
after they die. LWOP does not respect the inherent
human dignity of the offender.

Long-term Imprisonment: Another variant

of life imprisonment is the long-term sentence
for a fixed number of years like 40 years in
Croatia, after which the prisoner is released
either with or without further restrictions (such
as requirements to report to the police at
regular intervals). Brazil, Colombia, Croatia, El
Salvador, Nicaragua, Norway, Portugal and
Venezuela also have no life sentence. However,
prisoners in these countries may serve long
prison sentences, which can even exceed the
minimum terms that must be served in some
other countries for persons sentenced to life.

An indeterminate term of imprisonment:

Another alternative is to sending an offender to
prison to serve a minimum number of years and
after serving that period they can be considered
for release, but the review does not guarantee a
release This means that in effect prisoners stay
in prison until they are considered safe to be
freed, and are not given a release date. This thus
involves the discretion of authorities, which
might lead to unintended negative
consequences. 

Prolonged detention without any hope of release

results in de-socialisation, the loss of personal
responsibility, an identity crisis and an increased
dependency on the penal institution, will reform,
especially when the offender shows apparent
repentance, apart from susceptibility to mental
illness, including depression and suicidal
tendencies.

According to the Sentencing Project, crime

prevention policy which accepts keeping a
prisoner for life even if he is no longer a danger to
society would be incompatible with modern
principles on the treatment of prisoners and
thwart the reintegration of offenders into the
society as a normal person.

The sentencing project describes “a life without

parole” as a “death by another name”. According
to Article 10(3) states ICCPR The essential aim of
the penitentiary system i.e. the prison system of a
nation shall be the reformation and social
rehabilitation of the offender. Thus Life-
imprisonment should be subject to review of some
sort.

Release with restrictions: If an offender is

released the offender may subsequently be
subjected to supervision for a limited or lifelong
period. Failure to comply with supervision
conditions can lead to the convicted person
being returned to prison, to serve a prison
sentence until the end of natural life or until a
review of his conduct by appropriate
authorities. Eg. According to Article 110(3) of
Rome Statute individuals sentenced to life
imprisonment by the International Criminal
Court will not be considered for a conditional
release unless they have served for 25 years of
their life imprisonment.

Preventive Detention: Preventive Detention

Means a person detained to prevent him from
committing a crime. Norway has a maximum
sentence of 21 years but, it can hold offenders
beyond that time in preventive detention. Such
detention is imposed in those cases where it is
suspected that the offender could pose a
particularly high risk to the public following
release. It may be limited to cases where a
serious violent or sexual offence was committed
in the first place, and the preventive element of
the sentence must (in several jurisdictions) be
included in the original sentence. This form of
imprisonment should not be confused with pre-