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Report No. 262

Chapter IV

Penological Justifications for the Death Penalty

A. Scope of Consideration

4.1.1 The Supreme Court of India in Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546. ('Khade') ruled that "[i]t is imperative...that courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed." Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546, at para 148.

In this context, the Court asked the Law Commission to "resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal." Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546, at para 614.

In this Chapter, the Report examines whether there are any penological purposes for imposing the death penalty. The report analyses the theories of deterrence, incapacitation and retribution. Proportionality and rehabilitation as theories of punishment are also briefly examined, since these theories have been used by the Supreme Court in its death penalty adjudication.

4.1.2 At this juncture, it is incumbent on this Commission to emphasize that the abolition of the death penalty does not entail the release of the offender into society without any punishment whatsoever. It must also be noted that the alternative to the death penalty is life imprisonment, and this is often missed in debates surrounding the death penalty.246

What must be shown to merit the retention of the death penalty, is that the marginal benefits offered by the death penalty i.e. benefits not offered by life imprisonment, are high enough to merit the taking of a life.247 This principle was laid down by the Supreme Court in Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 SCC 498 (Bariyar) where the Court stated:

During the sentencing process, the sentencing court or the appellate court for that matter, has to reach to a finding of a rational and objective connection between capital punishment and the purpose for which it is prescribed. In sentencing terms 'special reasons' as envisaged under Section 354(3) Code of Criminal Procedure have to satisfy the comparative utility which capital sentence would serve over life imprisonment in the particular case. The question whether the punishment granted impairs the right to life under Article 21 as little as possible. Santosh Bariyar v. State of Maharashtra, (2009) 6 SCC 498, at para 145.

246 See H.A. Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 Journal of Criminal Law, Criminology, and Police Science 539, 542 (1970); Richard Lempert, Desert and Deterrence: An Assessment of the Moral Bases of the Case for Capital Punishment, 79 Michigan Law Review 1177, 1192 (1981).

247 See H.A. Bedau, Deterrence and the Death Penalty: A Reconsideration, 61 Journal of Criminal Law, Criminology, and Police Science 539, 542 (1970); Richard Lempert, Desert and Deterrence: An Assessment of the Moral Bases of the Case for Capital Punishment, 79 Michigan Law Review 1177, 1192 (1981).



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