Is there an alternative to Capital punishment?

Shrishti Chauhan, 2nd Year, BA LLB, School of Law, Christ (deemed to be) University


Quoting Henry Ford, “ Capital Punishment is as fundamentally wrong as a cure for crime as charity is wrong as a cure for poverty”. This article mainly focuses on the concept of capital punishment and whether there is an alternative to such kind of a sanction. There has been an evolution that took place with regard to capital punishment, specially in our country, India, which has been witnessing an increase in the number of crime rates over the years. There exist many kinds of punishments sanctioned under various legislations, among which, capital punishment is the most severe form of punishment. Having its own pros and cons, death penalty is one of the oldest forms of punishment that existed in the society and still continues to be a part of it. This article will be laying emphasis on the concept of capital punishment itself and whether or not there are any other alternatives to such a severe form of punishment.

Key Words: capital punishment, death penalty, severe, rarest of the rare, alternative


India, a densely populated country with a strong legal framework, still witnesses a huge crime rate which has been increasing, in the aspect of severity. The main aim for punishing the wrongdoers is to prevent others from committing the same crime as well as creating a fear in the mind of the wrongdoer to prevent himself from committing the same crime again. Capital punishment, also referred to as death penalty is defined as the execution of an offender sentenced to death after conviction by a court of law of a criminal offence. In simpler words, it is punishing an individual by taking his/her life. The Indian Penal Code, 1860 is a legislation which provides for death penalty in the cases of murder, rape, war against the government, dacoity with murder, etc.

Status of Capital Punishment in India

Dating back to the British era, when India was a colonial state, many Indians were hanged to death for various reasons in various situations, either before or after a trial. It was in the year 1947 when India gained independence, marking the inception of a new judicial system. Since there was a systematic judiciary established post-independence, the awarding of death penalties changed drastically and offences were laid down for which death penalty could be sanctioned. Earlier, it was either the King or the British who decided the punishment which was equal to an ultimatum and capital punishment was one of the most awarded punishments by them since there didn’t exist a formal system. Currently, India is one of the 56 countries that has retained capital punishment according to a 2018 report by the Amnesty International, an international organization. As per Project 39A, there are 59 different sections under 18 central legislations that provide for death penalty and reported that 426 prisoners were given a death sentence during this project in the year 2016. As of today’s date, there are 371 death rows lined up in India, but only 3 executions have taken place in the last decade. A death penalty can be given mercy only if the President assents to it. The constitutional validity of death penalty in India has been challenged many a times, the very first time being in the case of Jagmohan v. State of Uttar Pradesh wherein the Supreme Court was in the favor of upholding its validity.  An important judicial precedent, Bacchan Singh v. State of Punjab AIR 1980 SC 653, the Supreme court held that the doctrine of rarest of the rare case must be applied in the cases of brutal murders or most heinous crimes, but in a country like India with the Constitution being the law of the land, how can we advocate for capital punishment which is a grave violation of human rights. This judgement left open the judges to identify and then balance the aggravating facts with mitigating factors to sanction a death penalty. As per current statistics, the number of death sentences have been observed to decline due to the ambiguity that remains as to what crime comes under the category of ‘rarest of the rare case’. The abolition of mandatory death penalty in certain narcotics possession cases has also contributed to the decline. But the scope of death penalty was widened in the cases of sexual offences of raping a child below 12 years of age and in the cases of hijacking. Section 53 of the Indian Penal Code 1860 provides for a death sentence and section 368 of the Code of Criminal Procedure provides power to High Courts to confirm death sentences.

Delay in the execution of a death sentence should be a reasonable factor enough to be considered for reducing the sentence from death penalty to life imprisonment keeping in mind the mental agony inflicted on the accused during the tenure so the Supreme Court has repeatedly held that excessive delay in executing the death penalty, leaving the condemned prisoner to suffer a “dehumanizing effect” of “facing the agony of alternating between hope and despair” renders the capital punishment too inhuman to be inflicted, thus entitling the prisoner to the lesser sentence of a life term. Therefore, in the case of Mithu v. State of Punjab (2001), the court held death penalty to be unconstitutional also because it didn’t abide by Articles 14 and 21 of the Indian Constitution. It amounts to an inhuman practice.

Capital Punishment: a critical analysis

The concept of capital punishment is an ancient one which is being practiced in every society since ages. Although times have changed and the society has evolved, this practice still continues to be practiced in the 21st century as well. Capital punishment awarded in the rarest of the rare cases, is the most severe form of punishment awarded to the most grievous crimes, including murder, rape, waging a war, acts of terrorism, etc. Capital punishment is taking away the life of an individual for the crime he has committed. Although it still exists in practice in society even today, most of the countries have abolished it as well. Not just at the global level, but also at the national level in India, capital punishment has been a controversial topic for years now. With this keeping in mind, this has its own pros and cons. Being painless and quick in nature, death penalty helps to save the resources which would otherwise be wasted or could be used elsewhere if the wrongdoers were just imprisoned or locked behind the bars. Their basic needs of living occupy a huge part of the economy considering the fact that the prisons in India are overcrowded in the current scenario. Since the prisoners are also vested with human rights, it is the duty of the government to maintain them. The main aim of a death penalty is deterrence, that is, to prevent an individual from committing a similar crime again and also preventing others from committing it as well portraying dire consequences. There are very rare chances of escaping from the consequences of being a wrongdoer. These being the pros, the cons on the other hand include, the fact that Article 21 of the Indian Constitution is a fundamental right to life, which states that, “No person shall be deprived of his life or personal liberty…” is a contradiction to the sanction of a death sentence because taking the life of another is against Article 21. Justice being difficult to gain in a country like India with tons of cases pending, there have also been times where innocent people have come into the clutches of death penalties. Along with the aim of prevention and deterrence, rehabilitation is also necessary. Death penalty is something that takes away the chance of rehabilitation from a criminal. This kind of punishment is like a full stop which puts and to the life of the individual. It can also be observed that death penalties should result in the decrease of commission of crimes but over the years crime rates have increased with the increase in the severity of crimes as well. Hence, clearly the motive of death penalties seems to be ineffective considering the statistics.

As discussed earlier about the cons of capital punishment, let us look into if there is a need for an alternative to this and if yes, then what are the alternatives to it. If we strongly believe or consider the Constitution of India as the law of land, then it is unfair to take away the life of an individual according to Article 21 of the Indian Constitution. Also, the aim of awarding sanctions to wrongdoers is prevention and rehabilitation. Rehabilitation is not possible if given a death penalty but it plays an important role in making the society a  better place to live in. the judiciary system in India is also facing ambiguity as to when and in which cases shall death penalty be granted as the ‘rarest of the rare’ has not been specifically defined as such. Taking into consideration all of these reasons, it would be better if there is an alternative to a death penalty.   

Alternative to Capital Punishment:

Capital punishment being the harshest form of punishment, should be avoided but a criminal still needs to be punished for the crime he commits. Diving right into some alternatives, one of them could be life imprisonment without parole, that is, the criminal should be put behind the bars for his entire life without any parole, that is, to leave the prison after serving a portion of their sentence in jail. The prisoners can also be sentenced to an indeterminate period of sentence wherein the prisoner is sentenced to jail for a period of time but the release is guaranteed only on the basis of a review of the prisoner. Another alternative includes, instead of using the resources for their death penalty, direct those resources towards rehabilitation programs or support for the victims as well as the prisoners. But, since death penalties are sanctioned in the rarest of the rare cases with grievous crimes committed, then the punishment should also be equally harsh but not take someone’s life. In that case, the prisoners could be employed for menial jobs so that productivity can be increased and the economy is also supported in one way. These jobs can include cleaning drives, construction sites, clerical work, etc., but should not be paid. This could be helpful for the economy as well as the government as they would get free labor, fulfilling two objectives, that is, making it a harsher punishment for the criminals as well as saving these funds to allocate it elsewhere in improving infrastructure be it the health or education sector. To bring these alternatives in to effect, it will take time as relevant laws regarding the same will have to be passed taking into consideration debates and deliberations about the implementation of these alternatives.

Capital Punishment and COVID-19:

The pandemic has highly disrupted the functioning of every aspect of life, including the Indian judiciary. Due to these reasons, there has been a steep decline in the number of death penalties sanctioned by the sessions court. Before the lockdown was imposed on March 24, 2020, 62% of death penalties were imposed but the reports say that the numbers would have been much higher in the absence of the COVID-19 situation. The state of Uttar Pradesh is the highest to impose death sentences by the sessions court in the year of 2020.


In a country like India, with a Constitution protecting the human rights of 1.3 billion people, a sanction like capital punishment should be replaced with alternatives as mentioned above. Capital punishment is harsh but could also be ineffective sometimes resulting in innocent people being the victims of the same. Since god has given us life, then only God has the right to take it away from us, and not the State. Therefore, taking everything into account, new relevant laws should be passed for the effective implementation of the alternatives of capital punishment along with taking advise from the experts in this field.

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