It is impossible to trace the origin of punishment”, states Warren Stearns in ‘The Evolution of Punishment’. [1]

It is a centuries-old norm to punish persons going against the prescribed law of the period. The concept of punishment has been evident since time immemorial. The Holy Bible gives us an account of the crucifixion of Jesus Christ where he was punished for his teachings, a Babylonian king named Hammurabi punished the woman who killed her husband by impaling her, the Salem Witch Trials where women were burnt at the stake for being accused of witchcraft - history is full of surprising and gruesome forms of punishments. The formalization of punishment we see today is developed by various theories of punishment. It is observed that capital punishment, over time, has gained an assumed superiority in terms of punishment.[2] Its apparent deterrent characteristic has evolved from various instances, however in the current society – this rationale does not suffice.

In India, the colonization of the British bought a systematic law in place with offences and their respective punishments. Even after Independence in 1947, Capital punishment remains an accepted form of punishment. The very first execution in Independent India for an offence was of Nathuram Godse and Narayan Apte for the assassination of Mahatma Gandhi which took place on November 15th 1949. Since then, the provision of Capital punishment has undergone constant and numerous modifications and alterations. However, the poor maintenance of records of Capital punishment in India was noticed when the claim of 720 executions in total was shut down by a research institute named Project39A which was conducted by National Law University, Delhi. It stated that there were almost thousands of executions registered among different states in the country.[3]


The present criminal justice system works on a poor skeletal framework that gives rise to an overwhelming backlog of cases and years of judicial proceedings. The ‘delay’ as we observe is due to its exceptional nature. It aims at quelling any errors and to ensure the decision is not hasty. The accused has to be proven guilty without a reasonable doubt to be awarded punishment. In the case of Capital punishments, once the Trial or Sessions court sentences a convict to death - the Code of Criminal Procedure [1973] [4] facilitates the confirmation of the death warrant by the High Court. Further, this decision can be challenged in the Supreme Court as well. As a last resort, the convict can file a mercy petition.

However, the delay in delivering justice not only strains the Courts and the parties actively involved but manages to undermine the capability of the system in place. Substantiating the claim of delay, the NCRB (National Crime Records Bureau) reported merely four executions in India out of more than two thousand cases of capital punishment in 2018[5]. Additionally, the extreme mental distress faced by the prisoners is violative of the Right to Life (Article 21 of the Indian Constitution).[6] The term used to illustrate the distress faced by death row prisoners is known as the 'Death Row Phenomenon'. It is a fairly new concept gaining traction in the United States of America and other countries. According to many, it contributes to the unconstitutionality of the death penalty.


Highlighting a case in Indian history that embodies the phenomenon is Devinder Pal Singh Bhullar v. State of NCT Delhi.[7] Here, a car bomb exploded outside the Indian Youth Congress office in New Delhi on September 11th, 1993. The remote-controlled bomb contained/used RDX as an explosive. The primary target of this bombing was identified as Maninder Singh Bitta, President (then) of governing Congress Party’s youth wing and a critic of Khalistani Separatists. Nine people died and seventeen people were severely injured due to this bombing. Two of Bitta’s bodyguards were also killed. Devinder Pal Singh Bhullar, after an intervisitation conducted, was arrested and charged under TADA [Terrorism and Disruptive Activities (Prevention) Act] after his conviction for the bomb blast. In 1994, Bhullar fled to Germany briefly to obtain political asylum but he was extradited on the condition that he should be granted a fair trial and shouldn’t be given the death penalty. However, he was sentenced to death on 25th August 2001.

Bhullar tried to make use of all the legal remedies offered to him as a convict but to no avail - his review petition was dismissed on 17th December, his curative petition was rejected on 12th March 2003, his Special leave petition was dismissed 27th December 2006. Following, the mercy petition he filed was rejected in May 2011. In September 2013, Bhullar’s wife filed a curative petition challenging his previous writ petition and was accepted. The delay of his mercy petition caused him to undergo stress and psychological issues. Thus, his sentence of the death penalty was commuted to life imprisonment.


In the above case, a series of legal remedies are being used up to its extent but the delay it ensues consequently caused irreversible effects on the accused. Thereby, eliminating the ordeal of being hanged. The original judgment ceased to stand merely due to unnecessary and excessive delay. The commutation of life imprisonment also sets forth a new set of rules and regulations for the accused, without the upshot of impending death.

The delay of the execution points directly towards the accused’s state of schizophrenia due to which the sentence of capital punishment could not follow. The jury should not delay in death penalty sentences after their pronouncement. It should be taken care that the concerned authorities look into the crime and investigate properly to avoid delays. The death penalty can be deemed to be a very inhumane method if the prolongment of capital punishment sentences can affect the mental health of the accused. In Jamaica, a case that recognized the legitimacy of the death row phenomenon is the Pratt & Morgan v. Attorney General of Jamaica. The legal precedent established was that a period of more than five years’ delay in carrying out a death sentence constituted cruel and inhuman punishment.[8]

Philosophy suggests that the punishment awarded for a crime should be more than pleasure driven by committing it. In Phul Singh v. State of Haryana,[9] the accused was sentenced to four years of imprisonment for raping a young woman and the High Court upheld the Sessions Court decision. However, the Supreme Court took a strange interpretation of the deterrence theory and blended it with correction. The accused had no prior record of crimes and the company of criminals may harm him negatively; thus, the sentence was reduced to two years. The severity of the punishment should be on par with the severity of the crime - this aspect is missing from the judgement.


While the criticism regarding the criminal law system in India keeps increasing, the reforms are yet to be in place. Complete abolition of the death penalty will need unanimous support and might be termed arbitrary since the alternative forms of punishments have similar drawbacks in the country. Thus, taking a stand towards small yet impactful changes seem to be a realistic way forward. The 262nd Law Commission Report stated that capital punishment should apply to crimes related to terrorism[10]. Looking at the pattern of the Courts in the past decade, the quickest executions are carried out when it comes to terrorism. Yet, exceptions are present. The lacunae in various aspects of criminal law are what needs to be scrutinized and renewed. In a recent case, Justice Kurian Joseph in the judgement mentioned that there is a need to revisit the validity of the death penalty[11]. Thus, the ‘death row phenomenon’ should be a judicial concern in India as well.

The authors conclude that capital punishment is a question of legality and constitutionality having moral and social consequences. In many instances, the Supreme Court did not award capital punishment where it was sure that the accused would not, in any matter, harm the public at large. Therefore, it is suggested that if not abolishment, capital punishment should be awarded to the accused as per the recommendations of the 262nd Law Commission Report (August 2015).



  1. A. Warren Stearns, Evolution of Punishment, 27 J. Crim. L. & Criminology 219 (1936).

  2. Banner, S., The Death Penalty: An American history, Cambridge, MA: Harvard University Press, (2003).

  3. At least 720 executions in India since 1947, The Economic Times, (March 20th 2020).

  4. The Code of Criminal Procedure Act, 1973, S.366

  5. Crime in India - 2018, Vol. 1, National Crime Records Bureau, Ministry of Home Affairs, 2018.

  6. Delay in Executing Death Penalty Against Right to Life: SC, Outlook Magazine, New Delhi, (January 21st 2014, 9:51pm)

  7. Devinder Pal Singh Bhullar v. State of NCT Delhi, (2013) 6 S.C.C. 195.

  8. Pratt & Morgan v. Attorney General of Jamaica, (1994) 2 AC 1.

  9. Phul Singh v. State of Haryana, (1980) 1 S.C.R 589.

  10. The Law Commission of India Report No.262 2015,

  11. Channu Lal Verma v. State of Chhattisgarh, (2019) 12 S.C.C. 438.



Isabel Roy, Second year BBA LLB student, Narsee Monjee Institute of Management Studies, Bengaluru.

Ekjot Kaur, Second year BBA LLB student, Narsee Monjee Institute of Management Studies, Bengaluru.

41 views0 comments

Recent Posts

See All