Gopika S Nair, Gujarat National Law University
ABSTRACT
It is generally argued that capital punishment of the culprits offer ultimate justice to the victims. Death penalty is firmly rooted in the primitive theory of retribution. There is a strong demand around the globe for abolition of the death penalty on humanitarian grounds. India is one of the only 53 countries that have retained this form of punishment. It is argued that the death penalty acts as a deterrent to commission of crime. There is a need to examine whether the retention of the death penalty as a form of punishment serves the purpose of deterrence. There is also a pressing need to analyze whether the principle ‘of rarest of rare cases’ adopted by the Indian Judicial System in awarding capital punishment has an inherent risk of being judge-centric or subjective in its application, thereby infringing the right to life and the right to equality guaranteed by Articles 21 and 14 of the Constitution respectively. This study is significant since despite international pressure, including calls from the United Nations, and even recommendations from the Law Commission for abolition of the death penalty, India has retained it. Therefore, the factors contributing to India’s persistence with death penalty in the face of global abolitionist trends and the compatibility of capital punishment and the sentencing policy in India with the constitutionally guaranteed fundamental rights and the modern human rights principles requires study. While the existing literature highlights moral and theoretical justifications for abolition of capital punishment, there is a notable gap in examining the effectiveness of retention of the death penalty and the human rights implications of judge-centric applications of the rarest of rare doctrine. For the purpose of this research, the author intends to rely on the existing literature on this issue including journals, international conventions, the relevant judicial pronouncements, Law Commission Reports etc.
Keywords: Deterrence, Fundamental Rights, Rarest
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