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India is one of the few countries where capital punishment is legal and is justified under the rarest of the rare doctrine. However, it is not just the execution in principle but the process of execution which matters. Discuss (10 Marks) ATTORNEY GENERAL OF INDIA-DUTIES AND FUNCTIONS
Model Answer


Introduction: Define capital punishment and the rarest of the rare doctrine

Body: Mention some issues in the process of capital punishment, some general points on how a fair process will be important, and some reforms in the case of capital punishment.

Conclusion: Provide a way forward connecting it with the larger objective of a progressive society


Capital punishment is a legal process where a person is sentenced to death by the state as a punishment for a crime they have committed. Indian Penal code of 1860 since British times provides for capital punishment in some instances.

Later on, the scope was limited by the rarest of the rare doctrine as evolved through Bachan Singh vs State of Punjab (1980) under which the death penalty could only be imposed in exceptional cases where the crime was particularly heinous and there were no mitigating circumstances. Since then various judgments have led to the evolution of this stance further.

However, there are multiple issues in the process of execution of capital punishment in India which raises concerns:
1) Discriminatory application of rarest of rare doctrine as it is disproportionately applied to marginalized communities, such as Dalits and Adivasis, rather than the wealthy and influential. In the Machhi Singh v. State of Punjab (1983) case, the Court held that the “rarest of rare” doctrine must be applied consistently and systematically and that the death penalty should not be imposed arbitrarily or capriciously.

2) India’s criminal justice system is plagued by problems such as police brutality, witness intimidation, and false confessions, leading to wrongful convictions thus the system is prone to errors.

3)Lack of adequate legal representation as access to it is limited to many in India, leading to a lack of proper defense and increasing the likelihood of wrongful convictions. This was also supported by the Death penalty in India report 2018.

4) Delay in execution of death sentence leading to agony and mental torture of death row convicts. Thus, in Shatrughan Chauhan v. Union of India (2014), Court held that the inordinate delay in the execution of a death sentence could be a ground for commutation if it resulted in the accused being subjected to “unending agony”.

5) Differing stances of lower and higher courts in case of death penalties. Project 39A at National Law University, Delhi published the seventh edition of the Death Penalty in India: Annual Statistics Report. It highlighted lower courts provide death penalties in a higher number of cases. In contrast, high courts continued to decide a few matters, with an increasing trend of commutations to life imprisonment without remission.

6) Courts have also raised some issues such as the Supreme Court acquitting prisoners due to fabricated evidence and manipulated FIRs while recognizing the mental health impact of solitary confinement as a supervening ground to commute a sentence as per the seventh edition of the annual statistics report.

7) Number of capital punishments and prisoners on death row rising as per this annual report under Project 39A despite an imperfect process.

Thus, a fair process of capital punishment is crucial:

  • It helps adjudication of proper justice through our justice system.
  • Capital punishment in the rarest of the rare cases considering all aggravating and mitigating circumstances will help provide deterrence in society.
  • A fair process would provide a voice to the marginalized and understand their concerns also through adequate legal representation while deciding upon such cases.
  • It will help us move towards a fair system where there is more focus on chances of reformation before consideration of the decision of capital punishment.

Solutions to ensure reforms in process of capital punishment in India:

  • Ensure transparency in trial proceedings by adequate legal representation to the accused, timely disclosure of evidence, and transparent decision-making process.
  • Improve prison conditions by addressing concerns of overcrowding, torture, and inhuman treatment for death row prisoners, and consider cases of delay on a priority basis to further prevent mental agony.
  • Monitoring of investigations of such cases by independent agencies or organizations.
  • Mental health assessment for such prisoners periodically with the necessary support to address the issues.
  • Regular appeals to death row prisoners to provide them with a chance to challenge the death sentence.
  • Exploring other alternatives to the death penalty such as life imprisonment without parole.

Thus, there should be a wider debate in society about ways to ensure streamlining the criminal justice system further to ensure injustice is prevented towards anyone either accused or the victims and we are able to move towards a fair system irrespective of class, caste, and other factors. By moving towards this goal, we would be able to ensure a more secure and progressive society that is able to realize liberty, equality, and fraternity as constitution makers envisaged.

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