Capital Punishment: A comparative study between India and China

GUJARAT NATIONAL LAW UNIVERSITY

Project

For

Comparative Public Law

On

Capital Punishment: A comparative study between India

and China

Submitted to:

Faculty: Girish R.

Assistant Professor of Law

Gujarat National Law University

Submitted by:

Nikita Gupta1

LLM 2014-15

Registration no: 14LLM40

TABLE OF CONTENTS

S. No. List of Contents Page No.

1. Acknowledgment 3

2.

3.

List Of Abbreviations

List Of Cases

4

5

3. Synopsis 6

4. Chapter 1: Introduction 7

5. Chapter 2: Death Penalty In People’s

Republic of China

9

7 Chapter 3: Capital Punishment in India 17

1 Student of 2014 LLM Semester I, Gujarat National Law University,Gandhinagar. EMAIL: [email protected]


8. Chapter 4: UN & Death Penalty 23

9.

10.

Chapter 5: Conclusion

Bibliography

25

27

Acknowledgement

I would like to express my deep felt gratitude to the faculty

Prof. Girish for guiding me in different areas of my topic and

helping me throughout this project.


List Of Abbreviation


List Of Cases

Bachan Singh v State of Punjab (1982)3 SCC 24


1. AF Act Air Force Act2. AI Amnesty International

3. AIR All India Report

3. CPL Criminal Procedural Law

4. CPPCC Chinese People’s Political

Consultative Conference5. IPC Indian Penal Code6 NDPS Narcotics Drugs And Psychotropic

Substances Act7. NPC National People’s Congress of the

People’s Republic Of China8. Pg. Page

9. PRC People’s Republic Of China

10. § Section

11. SC Supreme Court

12. SCC Section Court Cases13. UDHR Universal Declaration of Human

Rights14. UN United Nations

15. v. Versus

B.A. Umesh v. Registrar General, High Court of Karnataka,

(2011) 3 SCC 85

Machhi Singh And Others v. State Of Punjab 1983 AIR 957

Prajeet Kumar Singh v. State of Bihar Appeal (crl.) 1621 of

(2007)

Rameshbhai Chandubhai Rathod (2) v. State of Gujarat (2011) 2

SCC 764

Sandeep v. State of U.P., (2012) 6 SCC 107

Shivu & Anr. v. Registrar General, High Court of

Karnataka, (2007) 4 SCC 713


Synopsis

RESEARCH OBJECTIVE:

The objective of the research is to focus on the aspect of where

the position of death penalty stands globally.

RESEARCH LIMITATIONS:

The research will be limited research to capital punishment in

India and China. As according to AI china’s death sentence and

execution contribute globally around 60% to 80% the researcher

would like to focus the research on whether there is a decline

in executions as has been with other countries.

HYPOTHESIS:

Are countries globally shifting from Deterrent punishment to

reformative punishment?

RESEARCH METHODOLOGY:

This is a doctrinal research and the researcher relies upon the

secondary sources such as books and the resources available from

the Internet.

TENTATIVE CHAPTERIZATION:

Chapter 1: Introduction

Chapter 2: Death Penalty In People’s


Republic of China

Chapter 3: Capital Punishment in India

Chapter 4: UN & Death Penalty

Chapter 5: Conclusion

Introduction

“[T]hese special reasons must relate, not to the crime as

such but to the criminal. The crime maybe shocking and yet

the criminal may not deserve the death penalty,”2.

Throughout the world ‘Abolition of Death Penalty’ is being

popular these days which questions countries which are still

practicing death penalty including U.S.A., China, India, Arab

Countries etc. whether they consider Death Penalty as a Human

Right violation or do they believe in deterrent theory of

punishment than Reformative theory.

Role of punishment has everything to do with the crime and its

Justice. If the punishment is not solving the purpose of

achieving justice then that punishment is in itself wrong. When

2 Justice V.R. Krishna Iyer commented in Rajendra Prasad v. State of U.P


we look at the theories of punishment there are three types of

punishment Deterrent, Punitive and Reformative since the world is

opting for abolishment of death penalty it is seen that they no

longer have the Punitive approach towards the punishment but the

consideration is on reformative approach.

Among the countries, which practice, Death Penalty China carries

out maximum number of executions and contribute to the world

executions in 60%-80% in number.

So many human lives are being sacrificed in the name of justice;

does it give ends, which the lawmakers wanted to achieve? How

does a death reform a person to see and do things in a different

way to change the way one lives?

If we talk about the approach of punishment towards the crime it

can be said that reformative has its fair share of advantages,

when we look in India there are certain activities that prisoner

are made involved in by which they even earn money for eg. The

prisoner of tihar jail makes essence sticks and dhoop and many

other articles which are sold all over the country.

Deterrent on the other hand leaves no scope for improvement and

has no essence for humanity

In this paper researcher has focused on India and China, where

China is responsible for more than half of the executions, and

India quantifies the severity by its rarest of rare doctrine and

the researcher tries to establish whether the execution of Human


life necessary for the protection of state, execution the extreme

punishment which one might think of its irrevocable so should it

be practiced that frequently

The debate of Capital Punishment is endless but what can not be

denied is that whatever the reason maybe punishment of death is

extreme and severe so does the situation demands to take the

extreme road or are we becoming sensitive to the issues in a way

that this method is the last resort for us.

So can this be justified some might say it can in a case where a

man has heinously raped a girl that she doesn’t survive to live

in this world on this when that human is not going against the

law of nature and doing this act one might wonder whether he

deserves to be in this world.

The researcher believes that according to some there might be

many people who deserves death but we can not be a judge of that

coz in those convicts there may come a day when an innocent man

will not live to see another day because the law failed him


Chapter 2: Death Penalty In People’s Republic Of

China


China has had a long history of the death penalty with the

earliest available record dating back to the Shang Dynasty (1700-

1027 BC). It is a long historical tradition throughout the

dynastic rules, the Republic era, and the PRC era that justifies

capital punishment on the grounds of retribution, deterrence, and

incapacitation. Chinese traditional sayings like “a life for a

life,” “killing one to warn a hundred,” “killing a chicken to

warn a monkey” are embodiments of these retributive and deterrent

beliefs4

3 AI Act 50/001/20144 YONGPING LIU, ORIGINS OF CHINESE LAW – PENAL AND ADMINISTRATIVE LAW IN ITS EARLY DEVELOPMENT (New York: Oxford University Press, 1998).


2.1 Crime and offences punishable by death in China:

Offences punishable by death under “PRC Criminal Procedural Law, 2013”

1. Aggravated Murder: Under Article 232 death penalty is

generally applicable to murder but the degree of sentencing

coupled with the directive for a lighter sentence where

circumstances indicate a low level of culpability suggests

that whether a murder is committed under aggravating

circumstances is considered in sentencing

2. Murder: Under Article 232 a person who intentionally commits

homicide is punishable by death.

3. Other Offenses Resulting In Death:

a. A person who commits arson, breaches a dike, causes

explosion, spreads poisonous, radioactive substances or

infectious pathogens and causes the death of another

person is punishable by death.5

b. Violently or forcefully hijacking an aircraft, causing

the death of another person, is a death-eligible

crime.6

c. Producing or selling tainted food or fake medicine is

punishable by death when the criminal act results in

death.7

5 PRC Criminal Procedural Law 2013, art115.6 Id art 1217 Id art 141


d. A person who causes the death of another person by

intentionally inflicting injury is subject to the death

penalty.8

e. Causing death from raping a woman or having a sexual

intercourse with a girl under the age of 14 is a crime

punishable by death.9

f. A person who causes the death of another person who is

forced to engage in prostitution is subject to the

death penalty.10

g. Abducting someone for extortion or holding someone

hostage, thereby killing or causing the death of the

victim, is punishable by death.11

h. A person who causes the death of an abducted woman or

a child or his or her relatives is punishable by death,

if the circumstances are “especially serious.”12

i. Causing the death of another person in the course of

robbery is punishable by death.13

j. Causing the death of commanders or military personnel

with violence or intimidation, particularly during

wartime, is a death-eligible crime.14

4. Terrorism-Related offences Resulting In Death

8 Id art 2349 Id art 23610 Id art 35811 Id art 23912 Id art 24013 Id art 26314 Id art 426


a. China’s anti-terrorism laws treat those participating

in lethal terrorist activities under the laws for

murder, kidnapping, and other crimes affecting public

safety.15

b. A person can be sentenced to death for sabotaging

means of transportation, utilities, or certain

construction equipment, if the consequences are

serious.16

c. Setting fire, breaching dikes, causing explosion,

spreading poison, or employing other dangerous means

that lead to death are punishable by death.17

d. Airplane hijacking resulting in death is also

punishable by death.18

e. Illegal trade, manufacture or transport of nuclear

materials or other weapons can be death-eligible if

the circumstances are “serious.”19

f. Additionally, serious cases of stealing or forcibly

seizing weapons, explosives, poisonous or radioactive

substances, infectious disease pathogens or other

substances that endanger public security are death-

eligible offenses that could be characterized as

terrorism-related.20

15 Id art 12016 Id art 11917 Id art 11518 Id art 12119 Id art 12520 Id art 127


5. Terrorism-Related Offenses Not Resulting in Death:

Other non-deadly terrorist activities that lead to serious

injury or property loss affecting public safety are death-

eligible offenses that could be characterized as

terrorism-related including-

a. Sabotage of transportation, utilities, or certain

construction equipment,21

b. Setting fire, breaching dikes, causing explosions,

spreading poison, or employing other dangerous means

that lead to serious injuries or property loss.22

c. Airplane hijacking (resulting in serious injury or

damage to the aircraft).23

d. Illegal trade, manufacture or transport of nuclear

materials or other weapons, ammunition or explosives

(with serious consequences).24

6. Rape Not Resulting in Death.

a. Multiple Rapes, public rape, causing serious injury

from rape are all death-eligible offenses.25

b. Raping an abducted or trafficked woman is punishable

by death, if the circumstances are “especially

serious.”26

c. Forcing someone into prostitution after rape is also 21 Id art 11922 Id art 11523 Id art 12124 Id art 125, 127, 15125 Id art 23626 Id art 240


punishable by death, if the circumstances are

“especially serious”27

7. Rape of Child Not Resulting in Death

a. Sexual relations with a girl under the age of 14 are a

death-eligible offense if it involves multiple rapes,

public rape, or serious injury or other “serious”

circumstances.28

b. Rape of a child is punishable by death when it is rape

during abduction or trafficking.29

c. Forcing a child into prostitution after rape is also

punishable by death, if the circumstances are

“especially serious.”30

8. Robbery Not Resulting in Death.

a. Robbery is punishable by death if it involves

intrusion into public transportation, or a bank or a

banking institution.31

b. Repeatedly committing robbery, stealing a large sum

of money, causing serious injury during robbery,

impersonating a serviceman or policeman during

robbery, or armed robbery is also punishable by

death.32

27 Id art 35828 Id art 23629 Id art 24030 Id art 35831 Id art 26332 Id art 263, 267


c. Stealing or forcibly seizing weapons, equipment or

military supplies is death-eligible if the

circumstances are “especially serious.”33

d. Additionally, a “serious” case of stealing or

forcibly seizing weapons, explosives, poisonous or

radioactive substances, infectious disease pathogens

or other substances that endanger public security.34

9. Arson Not Resulting in Death:

A person, who commits arson, thereby inflicting serious

injury or causing heavy property loss, is subject to the

death penalty.

10. Kidnapping Not Resulting in Death.

a. A leader of a gang involved in abducting and

trafficking women and children is subject to the

death penalty, if the circumstance, aggravated

abduction of three or more women or children is a

death-eligible offense, as is trafficking three or

more women or children and stealing a baby or an

infant for the purpose of selling the victim, if the

circumstances are additionally, abduction involving

violence, coercion or anesthesia, or abduction

resulting in serious harm is a death-eligible offense

33 Id art 43834 Id art 127


if the circumstances are “especially serious.”35

11. Burglary Not Resulting in Death.

Intruding into a residence for the purpose of robbery

is punishable by death.36

12. Drug Trafficking Not Resulting in Death.

a. Use of arms or violence to cover up drug trafficking

crimes or to resist arrest or detention is punishable

by death a death sentence may also be imposed when

opium of not less than 1000 grams, heroin or methyl

aniline of not less than 50 grams, or other narcotic

drugs of large quantities are involved. Participants in

international drug smuggling, leaders of trafficking

groups, or government officials who divert state-

controlled drugs for illegal sale may also be punished

by death. 37

13. Economic Crimes Not Resulting in Death.

a. Graft and bribery are punishable by death if

particularly large sums of money or property value are

involved.38

b. A person who embezzles more than 100,000 Yuan is

subject to the death penalty, “if the circumstances are35 Id art 34036 Id art 26337 Id art 34738 Id art 386


especially serious.”39

c. Illegal trade, manufacture or transport of nuclear

materials or other weapons can be death-eligible.40

In 2011, 13 other non-violent, economic crimes such as

smuggling cultural relics and precious metals, robbing

ancient cultural ruins, and engaging in fraudulent

activities with financial bills or letters of credit were

removed from the list of death-eligible crimes.

14. Treason.

a. Crimes harmful to national security are death-eligible,

if causing particularly serious harm and under

aggravating circumstances. These crimes include

“especially serious” cases of plotting with foreign

states, organizations, or individuals; organizing or

plotting to undermine national unification; involvement

in rebellion, rioting; colluding with foreign sources

for subversive purposes; defection; supplying arms to

enemy during wartime;41 sabotage of military

resources;42and supply of faulty equipment to armed

units.43

39 Id art 383 40 Id art 125, 15141 Id art 102, 103(1), 104, 106, 108, 112, 11342 Id art 36943 Id art 370


15. Espionage.

a. A person who joins an espionage organization, accepts a

mission from an espionage organization, or directs an

enemy to a bombing or shelling target is punishable by

death, “if the circumstances are especially serious” or

the crime causes serious harm to the State and the

people.44 Stealing, spying into, buying, or illegally

supplying State secrets for an organization or

individual outside China is death-eligible, “if the

circumstances are especially serious” or the crime

causes serious harm to the State and the people.45 A

person who steals, spies into buy, or illegally

supplies military secrets to agencies, organizations or

individuals outside of China are subject to the death

penalty.46

16. Military Offenses Not Resulting in Death.

a. A serviceman who cooperates with the enemy after

surrender is punishable by death. 47Obstructing

commanders or military personnel with violence or

intimidation, particularly during wartime;48 desertion

or defection while piloting vessels or aircraft;49

44 Id art 110,11345 Id art 111,11346 Id art 431(2)47 Id art 42348 Id art 42649 Id art 430


fabrication of rumors in collusion with the

enemy;50forcible seizure of weaponry or military

supplies;51 and illegal sale or transfer of military

weaponry,52are punishable by death. Sabotaging

weaponry, military installations or military

telecommunications is a death-eligible offense under.

Supplying faulty military equipment to the armed

forces is punishable by death.

17. Other Offenses Not Resulting in Death.

a. Aggravated assault: A person who intentionally inflicts

injury upon another person through especially cruel

means, thereby causing severe injury or disability, is

punishable by death.53 Since 2011, the crime of

intentionally wounding a person to force him/her to

donate an organ is death-eligible under certain

circumstances. 54

b. - Trafficking and forced prostitution crimes: Arranging

for another person to engage in prostitution, forcing a

girl under the age of 14 to engage in prostitution,

forcing multiple people to engage in prostitution or

repeatedly forcing a person to engage in prostitution,

or inflicting injury upon a person forced to engage in

50 Id art 43351 Id art 43852 Id art 43953 Id art 23454 Amnesty Intl., Executions and death sentences in 2011, p. 19, ACT 50/001/2012, Mar. 26, 2012


prostitution is punishable by death.55Also, a person

who entices or forces an abducted or trafficked woman

into prostitution, or sells such woman to a person that

would force her into prostitution, is punishable by

death. A person who inflicts injury upon an abducted

woman or a child or his or her relatives is punishable

by death. Selling a woman or a child to a territory

outside of China is also a death-eligible crime.56

c. Producing or selling tainted food or medicine:

Producing or selling tainted food or fake medicine is

punishable by death when the criminal act results in

serious medical injury or involves other serious

circumstances.57

China gives death penalty in 55 offences but recently it was said

that china might remove 9 offences from the punishment of death

penalty including illegal fund raising. The official Xinhua News

Agency said the proposal was submitted on Monday to the standing

committee of the NPC, which is meeting this week in its bi-

monthly session Xinhua, says the crimes considered for removal

include smuggling weapons, counterfeiting currency and forcing

others to engage in prostitution.58

The severity of offence has also taken in consideration while

55 Id art 35856 Id art 24057 Id art 141,14458 China mulls ending death penalty for nine crimes, THE HINDU (Oct. 27, 2014, 10:07 am), http://www.thehindu.com/news/international/china-mulls-ending-death-penalty-for-nine-crimes/article6538206.ece


http://www.thehindu.com/news/international/china-mulls-ending-death-penalty-for-nine-crimes/article6538206.ece


handing out death sentence china practice two types of execution

methods, which are execution by shooting and by lethal injunction

(Lethal injection was introduced in 1997).

Under Art 49 of PRC Criminal procedural law, 2013, there are

certain exceptions in Chinese criminal code regarding death

penalty i.e. the people excluded from death penalty they are,

Minors, Pregnant Woman, Elderly and Mentally Ill.

Chapter 3: Death Penalty In India

"[W]e are all the creations of God. I am not sure a human

system or a human being is competent to take away a life

based on artificial and created evidence.”

-APJ Abdul Kalam59

India in deciding the case for death penalty follows the doctrine

of “Rarest of the rare test” which was coined in the case of

Bachan Singh v State of Punjab60

In Machhi Singh And Others v. State Of Punjab61 a three judge

bench followed decision of59 11th President of India from 2002 to 200760 (1982)3 SCC 2461 1983 AIR 957


Bachan Singh observed that in rarest of the rare cases when

collective conscience of the community is so shocked that it will

expect the holders of the judicial power to inflict death penalty

irrespective of their personal opinion as regards desirability or

otherwise of retaining death penalty, the Court said that the

community may entertain such a sentiment in the following

circumstances: I. When the murder is committed in an

extremely brutal, grotesque, diabolical, revolting or dastardly

manner so as to arouse intense and extreme indignation of the

community. II. When the murder is committed for a motive,

which evinces total depravity and meanness. III. (a) When

murder of a member of a Scheduled Caste or minority community,

etc., is committed not for personal reasons but in circumstances,

etc., which arouse social wrath. (b) In cases of "bride burning"

and what are known as "dowry deaths" or when murder is committed

in order to remarry for the sake of extracting dowry once again

or to marry another woman on account of infatuation. IV. When

the crime is enormous in proportion. For instance when multiple

murders, say of all or almost all the members of a family or a

large number of persons of a particular caste, community, or

locality, are committed. V. When the victim of murder is (a)

an innocent child who could not have or has not provided even an

excuse, much less a provocation, for murder, (b) a helpless woman

or a person rendered helpless by old age or infirmity, (c) when

the victim is a person vis-‘-vis whom the murderer is in a

position of domination or trust, (d) when the victim is a public


figure generally loved and respected by the community for the

services rendered by him and the murder is committed for

political or similar reasons other than personal reasons.

In the case Prajeet Kumar Singh v. State of Bihar62 It was observed that

the accused-appellant caused multiple murders and attacked three

witnesses. Thus, all the members of the family who were present

on that day in the house became the victims of the accused. The

brutality of the act is amplified by the manner in which the

attacks have been made on all the inmates of the house in which

the helpless victims have been murdered, which is indicative of

the fact that the act was diabolic of the superlative degree in

conception and cruel in execution and does not fall within any

comprehension of the basic humanness which indicates the mindset

which cannot be said to be amenable for any reformation. In view

of the aforesaid facts, the court observed that there would be

failure of justice in case death sentence is not awarded in the

present case. The case falls in the category of the rarest of

the rare cases and the apex court dismissed the appeal.

Surendra Pal Shivbalakpal v. State of Gujarat,63 was a case in which the

death penalty awarded to the accused who had raped a minor child,

was converted to life imprisonment considering the fact that he

was 36 years old and there was no evidence of the accused being

62 Appeal (crl.) 1621 of 200763 (2005) 3 SCC 127


involved in any other case and there was no material to show that

he would be a menace to society.

Rameshbhai Chandubhai Rathod (2) v. State of Gujarat64 was an unusual case in

as much as the two learned Judges hearing the case had differed

on the sentence to be awarded. Accordingly the matter was

referred to a larger Bench which noted that the accused was about

28 years of age and had raped and killed a child studying in a

school in Class IV. The accused was awarded a sentence of

imprisonment for life subject to remissions and commutation at

the instance of the Government for good and sufficient reasons.

It was held as follows:

Both the Hon'ble Judges have relied extensively on Dhananjoy

Chatterjee case65. In this case the death sentence had been awarded

by the trial court on similar facts and confirmed by the Calcutta

High Court and the appeal too dismissed by this Court leading to

the execution of the accused. Ganguly, J. has, however, drawn a

distinction on the facts of that case and the present one and

held that as the appellant was a young man, only 27 years of age,

it was obligatory on the trial court to have given a finding as

to a possible rehabilitation and reformation and the possibility

that he could still become a useful member of society in case he

was given a chance to do so.

Shivu & Anr. v. Registrar General, High Court of Karnataka,66 it was a case in64 (2011) 2 SCC 76465 [(1994) 2 SCC 22066 2007) 4 SCC 713


which the special reasons for confirming the death penalty given

to both the accused who were aged about 20 and 22 years old

respectively were the heinous rape and murder of an 18 year old.

It was noted that the accused had twice earlier attempted to

commit rape but were not successful. Though no case was lodged

against them, they were admonished by the village elders and the

Panchayat and asked to mend their ways. It was held, Considering

the view expressed by this Court in Bachan Singh case and Machhi

Singh case we have no hesitation in holding that the case at hand

falls in rarest of rare category and death sentence awarded by

the trial court and confirmed by the High Court was appropriate.

B.A. Umesh v. Registrar General, High Court of Karnataka,67 was a case of the

rape and murder of a lady, a mother of a 7 year old child. In the

High Court, there was a difference of opinion on the sentence to

be awarded â€“ one of the learned judges confirmed the death

penalty while the other learned judge was of the view that

imprisonment for life should be awarded. The matter was referred

to a third learned judge who agreed with the award of a death

penalty. This Court confirmed the death penalty since the crime

was unprovoked and committed in a depraved and merciless manner;

the accused was alleged to have been earlier and subsequently

involved in criminal activity; he was a menace to society and

incapable of rehabilitation; the accused did not feel any remorse

for what he had done. It was held:

On the question of sentence we are satisfied that the extreme67 (2011) 3 SCC 85GUJARAT NATIONAL LAW UNIVERSITY

depravity with which the offences were committed and the

merciless manner in which death was inflicted on the victim,

brings it within the category of the rarest of rare cases which

merits the death penalty, as awarded by the trial court and

confirmed by the High Court. None of the mitigating factors as

were indicated by this Court in Bachan Singh case or in Machhi

Singh case are present in the facts of the instant case. The

appellant even made up a story as to his presence in the house on

seeing PW 2 Suresh, who had come there in the meantime. Apart

from the above, it is clear from the recoveries made from his

house that this was not the first time that he had committed

crimes in other premises also, before he was finally caught by

the public two days after the present incident, while trying to

escape from the house of one Seeba where he made a similar

attempt to rob and assault her and in the process causing

injuries to her.

In Sandeep v. State of U.P.,68 the death sentence awarded to the

convict for the murder of his pregnant friend and pouring acid on

her head was converted to sentence of life for a minimum period

of 30 years without any remission before his case could be

considered for premature release.

Offences punishable by death:

68 (2012) 6 SCC 107GUJARAT NATIONAL LAW UNIVERSITY

1. Murder

Under section 302 of Indian Penal Code (IPC) Murder is

punishable by death, but in purview of the rarest of rare

case doctrine.

2. Other Offenses Resulting in Death

a. According to the §396 of Indian Penal Code, if any

member of a group commits murder in the course of

committing an armed robbery, all members of the group

can be sentenced to death.

b. Under § 364 A IPC, Kidnapping for ransom in which the

victim is killed is punishable by the death penalty.

c. According to The Unlawful Activities (Prevention)

Amendment Ordinance, § 6, 2004 being a member of an

association or promoting an association while

committing any act using unlicensed firearms or

explosives that results in death, is punishable by

death.

d. The Commission of Sati (Prevention) Act, part. II, §4

(1), no. 3 of 1988, 1987, Committing, or assisting

another person in committing sati – the burning or

burying alive of widows or women – is also punishable

by the death penalty.

e. Under the Prevention of Atrocities Act §3 (2) (i),

bearing false witness in a capital case against a

member of a scheduled caste or tribe, resulting in


that person's conviction and execution, carries the

death penalty.

f. Under § 305 of Indian Penal code assisting

individuals who are under the age of 18, mentally

ill, mentally disabled, or intoxicated in committing

suicide is punishable by the death penalty.

3. Terrorism-Related Offenses Not Resulting in Death

Under Explosive Substances (Amendment) Act, 2011 §3 (b)

using any special category explosive to cause an explosion

likely to endanger life or cause serious damage to

property is punishable by the death penalty.

4. Rape Not Resulting in Death

Under the Criminal Law (Amendment) Act, 2013 §9 a person

who in the course of a sexual assault inflicts injury that

causes the victim to die or to be left in a “persistent

vegetative state” is punishable by death. Repeat offenders

of gang rape are also punishable by death.

5. Kidnapping Not Resulting in Death

Under §364 A, IPC Kidnapping or detaining an individual is

punishable by death if the kidnapper threatens to kill or

harm the victim, if the kidnapper’s conduct makes the

death or harm of the victim a possibility, or if the

victim is actually harmed.


6. Drug Trafficking Not Resulting in Death

Under §31A, of NDPS Act, If an individual who has been

convicted of the commission of, attempt to commit,

abetment of, or criminal conspiracy to commit any one of a

range of offenses related to drug trafficking (e.g.

trafficking of cannabis and opium) commits another offense

related to the production, manufacture, trafficking, or

financing of certain types and quantities of narcotic and

psychotropic substances, he or she can be sentenced to

death.

7. Treason

Waging or attempting to wage war against the government

and assisting officers, soldiers, or members of the Navy,

Army, or Air Forces in committing mutiny are punishable by

the death penalty.

8. Military Offenses Not Resulting in Death

Under Air Force Act Of India §37, 38 & 34 the following

offenses, if committed by a member of the Army, Navy, or

Air Forces, are punishable by death: committing, inciting,

conspiring to commit, or failing to suppress mutiny;

desertion or aiding desertion; cowardice; treacherous

acts; committing or inciting dereliction of duty; aiding

the enemy; inducing individuals subject to military law


not to act against the enemy; imperiling Indian or allied

military, air, or naval forces in any way,

9. Other Offenses Not Resulting in Death

a. Being a party to a criminal conspiracy to commit a

capital offence is punishable by death.

b. Attempts to murder by those sentenced to life

imprisonment are punishable by death if the attempt

results in harm to the victim.

c. Calumniation under §120b of IPC is providing false

evidence with intent or knowledge of the likelihood

that another individual, or a member of a Scheduled

Caste or Tribe, would be convicted of a capital

offense due to such evidence carries the death

penalty if it results in the conviction and execution

of an innocent person.


UN & Death Penalty

69

Now as we can see from the above image extracted from Amnesty

International that 135 countries have abolished death penalties

reason being it is against Human Rights. There has also been a

decrease in executions as compared to what the situation was in

the year of 2004.

69 AI Act 50/001/2014


The countries that are still carrying out the executions are

unwilling to link capital punishments as a violation of Human

rights though UN has viewed the death penalty as a human rights

issue since 1948, when it adopted the Universal Declaration of

Human Rights.

Under UDHR Article 3 clearly states, "Everyone has the right to

life." The 1948 ratification of the UDHR has led to 135 nations

abolishing the death penalty over the course of the last 66

years.

In following years, the United Nations has taken further steps

to limit the use of capital punishment, including the

International Covenant on Civil and Political Rights (ICCPR) in

1966, during which the abolishment of the death penalty was

strongly encouraged for all but the most serious of crimes. In

1991, a Second Optional Protocol to the Covenant went into

force. The Second Optional Protocol to the Covenant required

the use of the death penalty be abolished for child offenders.70

In 2007, the World Coalition made one of the most important

decisions in its young history: to support the resolution of

the United Nations General Assembly for a moratorium on the use

of the death penalty as a step towards universal abolition. In

December 2012, the United Nations’ General Assembly voted on a

70UN and The Declaration of Human Rights, OCADP.ORG (Nov. 6, 2014 12:10 am), http://www.ocadp.org/un-and-the-declaration-of-human-rights.html


http://www.ocadp.org/un-and-the-declaration-of-human-rights.html

new resolution for a moratorium on the use of the death

penalty. Following the three previous resolutions, the

Coalition continued its action in favor of a global

moratorium.71 This October 10 2014 it marks the World and

European Day against the Death Penalty. In an increasing number

of countries around the world, capital punishment now belongs

to history. Among the 192 countries recognized by the United

Nations, 140 have abolished the death penalty. Three times, the

General Assembly of the United Nations has passed resolutions

by powerful majorities calling for a universal moratorium on

the death penalty, pending its full abolition. Along with the

United States, however, a number of countries in Asia

(including China, India and Japan), the Middle East and the

Arab World are still giving capital punishments although the

frequency of use of the death penalty varies widely.72

Chapter: Conclusion

71 Helping the world achieve a moratorium on executions, World Coalition (Nov. 4, 2014, 4:15 pm), http://www.worldcoalition.org/moratorium.html 72 On the road to abolishing the death penalty, The Hindu (Oct. 10, 2014, 7:20 pm),http://www.thehindu.com/opinion/op-ed/on-the-road-to-abolishing-the-death-penalty/article6485747.ece


http://www.thehindu.com/opinion/op-ed/on-the-road-to-abolishing-the-death-penalty/article6485747.ece


http://www.worldcoalition.org/moratorium.html

“[M]any that live deserves death. And some that die deserve

life. Can you give it to them? Then do not be too eager to

deal out death in judgment. For even the very wise cannot

see all ends.”73

Several aspects of the human life are filled with mysteries which

even after all these technological advancement are hard to

explain, the Golden Ration of 1.618, the Fibonacci series Science

has proven established these as facts but it is still mystery why

the end result is this. The nature has its own mysteries,

functioning and life and death are in itself enigmatic. The

researcher believes it is against the law of nature to take

someone’s life even if the action could be justified as

punishment.

Nature has way of maintaining balance which is referred as

ecological balance which proposes that ecological system are

usually in a stable equilibrium, Life of a human being is among

those things, which nothing can ever replace and sentencing

someone a death penalty is nothing but disrupting that balance

and forcing the law of nature by taking away life of human being.

Capital punishment, the researcher believes is inhumane,

merciless and sadistic one act of a person how severe it may be

does not define his whole being.

So many human lives are being sacrificed in the name of justice;

does it give ends, which the lawmakers wanted to achieve? How

does a death reform a person to see and do things in a different 73


way to change the way one lives? Or are we hiding under the

protection of capital punishment in the name of justice from

someone who allegedly has committed a crime declaring there

single act to be the one which defines them but are we always

sure that no innocent victim has been convicted and sentenced to

die in vain that something as pure as human life was taken away

because of an act which that person or may not have done.

Even when the culprit is guilty of the offences how does killing

of a human being in the name of justice different from murder

what justice might be for you may not be for me, by this we

stating that a man should be punished with death sentence because

the majority set of mind believe the act was heinous and should

not be repeated so instead of giving him a chance to rectify his

mistake they believe his existence must be scraped out of this

earth.

Looking at the statistics of China it can established that China

has long way to abolish death penalty though the recent

advancement of removal of 9 crimes from the criminal code of

China says something about the shift.


Bibliography

Books

K.I. VIBHUTE, CRIMINAL JUSTICE (Eastern Book Co., 2004)


YONGPING LIU, ORIGINS OF CHINESE LAW – PENAL AND ADMINISTRATIVE LAW IN

ITS EARLY DEVELOPMENT (New York: Oxford University Press, 1998).

R.W.M Dias, Jurisprudence (Adity Books Public Ltd. New Delhi,

5th ed. 1994)

Articles

China mulls ending death penalty for nine crimes, THE HINDU (Oct. 27, 2014, 10:07 am),

http://www.thehindu.com/news/international/china-mulls-ending-death-

penalty-for-nine-crimes/article6538206.ece

Helping the world achieve a moratorium on executions, World Coalition (Nov. 4, 2014,

4:15 pm), http://www.worldcoalition.org/moratorium.html

On the road to abolishing the death penalty, The Hindu (Oct. 10, 2014, 7:20

pm), http://www.thehindu.com/opinion/op-ed/on-the-road-to-

abolishing-the-death-penalty/article6485747.ece

UN and The Declaration of Human Rights, OCADP.ORG (Nov. 6, 2014 12:10 am),

http://www.ocadp.org/un-and-the-declaration-of-human-

rights.html






http://www.worldcoalition.org/moratorium.html



Capital Punishment: A comparative study between India and China

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