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Capital Punishment in India and Itís Constitutional Validity(By-Prissha Chawla)

Capital Punishment in India and It’s Constitutional Validity

Authored By- Prissha Chawla

(Law Student at UPES Dehradun)



Capital punishment is the state-sanctioned killing of a person as a punishment for a crime. Lex talionis or, “an eye for an eye” is the general principle behind death sentence Since the British Empire, capital punishment, often known as the death penalty, has been a part of our legal system. It is still a legal means of punishing criminals in India. Among the many forms of punishment available today, such as fines, penalties, and imprisonment, capital punishment is the most severe, in which a person's life is taken away for his actions. Capital punishment, sometimes known as the death penalty, is a death sentence imposed by a court on an offender who is proven guilty of a criminal offence. For ages, the practise of sentencing an offender to death has been a part of society. However, the morality of the situation is still being debated today.

And a major question arises, which is whether the so-called death penalty or capital punishment is within the framework of the constitution, whether it is constitutionally correct, and whether it is morally right to take someone's life just to make justice or to teach other like-minded people a lesson. This paper presents an analysis of capital punishment with a special reference to Indian criminal jurisprudence.







Aims/Objectives –

  1. To study the meaning, extent and principles of rarest of rare crimes in India.
  2. To identify the constitutional validity of capital punishment.
  3. To understand the Indian and International aspect regarding capital punishment
  4. To understand the value of differing judicial opinions on its constitutional validity.


Limitation of Study - The scope of study of this research project is limited to India only, with a brief overview of International Stand on Capital Punishment.


Research Methodology - The research approach that is employed is qualitative, with a comparison of different judiciary decisions made, as well as descriptive and analytical methods used in the formulation of this research paper. This paper is built on previously available information, which has been examined to create an evolution of this research. The doctrinal technique i.e. various reports, papers, legal provisions, case laws etc have been used in this paper's preparation.


Introduction - Punishment has been strongly ingrained in our civilization since time immemorial. An individual is penalised for his wrongful behaviours, which are decided by the law, which is founded on societal introspection. Although it is difficult to articulate the specific rationale for punishment because punishment and improper conduct of an individual vary from country to country, the fundamental goal is to ensure that the society's status quo is preserved. The execution of an individual by the state after a legal process is known as Capital Punishment (also known as Death Penalty). This type of punishment is only used in the rarest of circumstances when the alternative option is unquestionably foreclosed. Given today's realities, the issue about capital punishment is the most broadly relevant. Capital punishment is an essential component of India's criminal justice system. As the human rights movement gains traction in India, the existence of capital punishment is being called into doubt.



Capital Punishment in India - India is a country where the crime rate has consistently increased over time. In India, Mens Rea is a significant factor in determining the penalty for the wrongdoer. In India, many types of punishment are available depending on the seriousness and gravity of the offence committed, such as capital punishment, imprisonment, life imprisonment, jail with fine, and so on. The death penalty is an important aspect of India's criminal justice system.

Among the many forms of punishment available today, such as fines, penalties, and imprisonment, capital punishment is the most severe, in which a person's life is taken away for his actions. Death Penalty has been strongly ingrained in our civilization since time immemorial. The concept of Capital Punishment was also introduced to us at a young age through the Epic Ramayana, in which Rama murdered Ravana was depicted as a triumph of good over evil, but in actuality, Ravana received Capital Punishment for his heinous crimes. We Indians also commemorate this event at the "Dussehra" holiday, when an effigy of Ravana is burned. This indicates that even though many people may not be familiar with the word "Capital Punishment," they are aware of the idea and the significance of it.

The ancient Indian criminal code permitted for the death penalty or sentencing for a wide range of offences. The Mahabharata and Ramayana Indian epics, which entailed amputation by parts. There are fourteen known methods of putting criminals to death, including chaining and imprisonment of the culprits.

To justify the continuance of the death penalty, King Dyumatsena observed that if offenders were leniently let go, crime would inevitably multiply. He argued that true ahimsa was found in the execution of worthless individuals, and hence the execution of undesired criminals was entirely justified. His son Satyaketu, on the other hand, denounced the mass execution once more and cautioned his father that the annihilation of human life can never be justified on any grounds. However, Dyumatsena rebuffed his son's advances and maintained that the distinction between virtue and evil must not be lost and that vicious forces must be purged from the society.

Fear was likewise regarded as an important quality of judicial phenomena by the famous ancient law-giver Manu. According to him, the death penalty was necessary to keep people from committing wicked murders, and in the absence of this manner of punishment or sentencing,



anarchy would reign and people would consume each other like fish do in water, with the stronger devouring the weaker.

During the mediaeval time of Moghul sovereignty in India, the death penalty was reintroduced in its most heinous form. At times, the offender was forced to wear a tight robe made of freshly murdered buffalo skin and was dumped in the blazing sun. The shrinkage of the raw-hide eventually resulted in the offender's death in misery, pain, and suffering. Another method of administering the death penalty was via nailing, which was prohibited under the British System of criminal justice administration during the early decades of the nineteenth century, when death by hanging was the sole legalised method of inflicting the death sentence

Capital crimes or capital offences are crimes for which the death penalty is the only available punishment. The Latin word ‘capitalis’, which means "regarding the head," is the source of the English word "death penalty." If someone receives the death penalty or capital punishment for a crime they have committed, this simply indicates that the offender has been handed a death sentence by a court of law for the crime they committed, which will be treated as a criminal offence in the eyes of the law. The death penalty is reserved for the most serious crimes against humanity. There have been numerous instances where human rights organisations in the nation have viewed the death penalty as immoral at certain times and in other different ways.

Current Status Of India For Capital Punishment

Article 21 of the Indian Constitution, which protects every citizen the fundamental right to life, also stipulates specifically that "no individual shall be deprived of his life or personal liberty except in accordance with the method established by law." This means that your right to life will never be taken away from you except through the proper legal method; that is, the state may take away your life through the legal process if it so desires. Not all crimes are punished by death; in fact, most agencies do not elicit capital penalty; rather, it is reserved for the most terrible of crimes. This is a very well constructed law by the framers by of the Constitution.

Although the Government of India has always stated that the death penalty would remain in the statute books as a deterrent and for individuals who pose a threat to society, the Supreme Court has supported the constitutional legitimacy of capital punishment in some of the most rare cases.


The position in India related to Capital Punishment is governed by the principle of “Rarest of the Rare” which was upheld in the case of Bacchan Sighn v. State of Punjab, wherein, the apex court also laid down the principle of weighing, aggravating and mitigating circumstances. A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn to ascertain whether justice will not be done if any punishment less than the death sentence is awarded.

The Law Commission of India in its 262nd Report (August 2015) recommended that death penalty be abolished for all crimes other than terrorism related offences and waging war. India is a country whose legal system would be crippled if the death penalty were abolished. Our country's citizens pay little attention to offences that do not carry severe fines or punishment. This mindset is exemplified by the issue of road accidents in India; prior to December 2019, the Motor Vehicle Act imposed extremely minor penalties for violations of road laws, to the point where many considered road rules and statues as merely decorative on the back of a truck.

Following the increase in fines and penalties to nearly four times the initial amount, and traffic police began to book violators more aggressively, Union Minister of Road Transport and Highways, Nitin Gadkari, informed Parliament that the number of accident cases had decreased by 10%.

This clarifies that until harsh consequences are applied, people will always consider the law in a lighthearted manner. Without severe punishment, such as the death penalty, the law will always fail to instil fear in the hearts of criminals, resulting in a security dilemma for the people of India in general.

Judicial Developments In India With Respect To Case Laws

  1. Rajendra Prasad v. State of UP

The constitutionality of capital penalty was first debated in Rajendra Prasad v. State of Uttar Pradesh, in which the Supreme Court stated that the "fate of capital punishment was not for the courts to decide but a duty of the legislature." There was ambiguity in the term ‘special grounds’ for awarding death penalty to a subject, especially after revamping the CrPC 1973. In this particular case however, after careful inspection, the Supreme Court came to the conclusion that the fact and circumstances of this case did not the conditions of ‘special grounds’, and hence life imprisonment was given to the petitioner. Instead of

focusing on retributive theory, the Court stressed deterrence and reformative theory as societal aims. Furthermore, the Court determined that the 'special grounds' that are required to award death penalty should be related to the criminal and not the crime.


  1. Bachan Singh v. State of Punjab

The issue of the legality of capital punishment was revisited in Bachan Singh v. State of Punjab, which resulted in the establishment of the "rarest of rare" concept. It was alleged that capital penalty violated Indian constitution articles 19 and 21. The existence of provisions for pardon and appeal, according to the court, demonstrates that the framers of the constitution contemplated some circumstances when capital punishment is the most fitting form of punishment. It was thus determined that death punishment did not violate the preceding rules, but that taking a person's life as a form of punishment should be discouraged except in circumstances where no other penalty is available.


  1. Machhi Singh v State of Punjab

The idea of "rarest of rare" was expanded on in the landmark decision of Machhi Singh v State of Punjab. The court observed that "the community as a whole may approve capital punishment when its collective conscience is so outraged that it expects the Judiciary to grant the death penalty regardless of their personal opinions." The parameters were a) The manner of commission of the crime, b) Magnitude of the crime , c) Personality of the criminal etc . Thus laying down emphasis on crime and not the nature of the criminal. 


  1. Mithu v. State of Punjab, April 1983

In this case law, the court looked at Section 303 of the IPC, which mandated the execution of criminals serving life sentences. This thought arose as a result of the projected large number of criminals receiving life sentences who are incapable of rehabilitation, and hence death is the only appropriate punishment. The legislature's choice of language had well beyond the primary aim of establishing this article, which was to prevent life-sentenced criminals from assaulting prison staff. Section 303 IPC was determined to violate the constitutionally established rights to life and personal liberty, as well as the right to equality.



  1. Channulal Verma v. State of Chhattisgarh

In this case, Justice Kurtian Joseph stated that it was high time that the constitutional validity of death penalty be under review, and consider other modes of less harsh punishment. The other two justices on the bench stressed the role of courts to be constitutionally right, even if their views are counter-majoritarian, while disagreeing on the matter of the death penalty's legality. Emotionally charged narratives, which do not have to be legally valid or well-informed, are commonly used to shape public opinion. Eventually, due to the appellant’s good conduct in prison, the death sentence was turned to life imprisonment.


  1. In Shankar KisanraoKhade v. State of Maharashtra

The Court stated that instead of balancing the mitigating and aggravating factors, the focus should be on crime test, criminal test, and rarest of the rare case test. Regarding the rarest of the rare case test wherein all these tests needs to be “society centric” rather than “judge centric”. The death penalty should be awarded only when the Court is satisfied with all the three tests.


  1. Jagmohan vs State of UP

This was the first case dealing with the question of constitutional validity of capital punishment in India. The first person to be executed by capital punishment in India after independence was NATHU RAM GAUDSE. Although The Indian Army Act and Air Force Act, 1950 allows implementation of capital punishment by shooting but government mostly use hanging as a method to execute capital punishment. The Supreme Court observed that the capital punishment is not unreasonable per se and is not violative of Article 19 of the Constitution of India.


  1. In T. V. Vatheeswaram v. state of Tamil Nadu

SC ruled that prolonged delay in execution exceeding two years will be a sufficient ground to quash death sentence since it is unjust, unfair and unreasonable procedure and only way to undo the wrong is to quash the death sentence. The court further observed that the cause of delay is immaterial when the sentence is that of death and a person under sentence of



death may also claim death fundamental rights. i.e., the procedure under Article 21 must be just, fair, and reasonable.


  1. In Sher Singh v. State of Punjab

The Supreme Court overruled its earlier ruling in Ventheeswaran’s case. Delivering the judgement in this case, the judge observed that death penalty should only be imposed in rare and exceptional cases. The Learned Court further observed that no hard and fast rule can be laid down as far as the question of delay was concerned. If a person was allowed to resort to frivolous proceedings in order to delay the execution of death sentence, the law laid down by court on death sentence would become an object of ridicule. Thus, dismissing the writ-petition the SC in this case directed the Punjab government to explain the delay in execution.


  1. Javed Ahmed Abdulhamid Pawala v. State of Maharashtra

The Supreme Court upheld the sentence of death of a gruesome and brutal murder. The appellant was convicted for multiple murders. He killed his sister-in law aged 23 years, his little niece aged 3 years, his baby nephew aged about one and half years and the minor servant aged about 8 years. The motive of murders was the golden ear-rings and bangles of the deceased. The accused was convicted for murder and sentenced to death. His conviction was upheld by the High Court. He thereupon moved an appeal to the Supreme Court only on the question of sentence. Dismissing his appeal the Supreme Court, inter alia observed- “The appellant acted like a demon showing no mercy to his helpless victims three of whom were helpless little children and one a women. The murders were perpetrated in a cruel, callous and fiendish fashion. Although the appellant was 22 years of age and the case rested upon circumstantial evidence, the court were unable to refuse to pass the sentence of death as it would be satisfying the course the court had no option but to confirm the sentence of death






  1. Joshi-Abhyunkar murder case

The accused committed a series of gruesome murders during January 1976 and March 1977. They were sentenced to death by the trial court which was confirmed by the Bombay High Court on 6th April 1979. The appellants thereupon filed special leave petitions before the SC for commutation of death sentence to one of life imprisonment as the death was hovering over their minds for five years. Two of the petitioners namely Shanta Ram Jagtap and Dhirendra Bramhachari into Marathi. Dismissing the petitions the SC observed that the book-writing and translation work of the petitioners believed that any spectre of death penalty was hovering over their minds during the period they have been in jail. Therefore, any mercy shown in matter of sentence would not only be misplaced but will certainly give rise to and foster a feeling of private revenge among the people leading to destabilisation of society Members of the Lok Sabha evaluated the abolition of the death penalty in India prior to the Supreme Court's investigation in the 35th Law Commission report. The Law Commission argued that in India, an opposing opinion to the idea of abolishing the death sentence was essential, and that the death penalty should be retained. According to the panel, difficulties such as education, variety, and upbringing hinder India from taking a favourable position on the abolition of the death sentence. However, as a result of numerous significant rulings, the Supreme Court's position on the death sentence has shifted dramatically throughout the years.


In the case of Jagmohan Singh v. St. of Uttar Pradesh, India faced its first challenge against the death penalty in 1973. This ruling was made prior to the re-enactment of the CrPC in 1972, and the death sentence was deemed an unusual punishment at the time. Critics maintained that the death sentence was a blatant violation of the Indian Constitution's right to life and equality. The petitioners also contended that the judge's decision in these cases would be completely arbitrary, in violation of Article 14 of the Indian Constitution, and that the fact that the judiciary has complete authority to choose the death penalty over other punishments under the CrPC is in violation of Article 21 of the Indian Constitution. The Supreme Court dismissed the petitioner's plea, noting that the court conducted a comprehensive inquiry considering the circumstances and facts of the case, and that the appropriate judgement was to issue the death penalty.


Inconsistent Precedents: A Judge-Cantered Approach

The execution of an innocent person cannot be accepted, and it is felt that a better type of justice is required to avoid this. It cannot be denied that, despite due vigilance, unjust verdicts occur and will continue to occur, as no judicial system can guarantee perfection. The outcomes of judicial review processes and studies clearly show that the courts have been inconsistent in awarding death sentences.

The same can be seen in the three-judge bench's decision in the Machhi Singh case, where the court misunderstood the 'rarest of rare' exemption. The court endeavoured to articulate a theory that was never meant to be "absolute rule for invariable application." The court's misunderstanding promoted arbitrariness, resulting in a never-ending cycle of erroneous verdicts.

Above mentioned can be seen in the judgment delivered in the case of Ravji alias Ram Chandra v. State of Rajasthan which led to erroneous executions of Ravji Rao and Surja Ram. This case was declared per incuriam by subsequent judgments which further highlighted that Machhi Singh case is inconsistent with the doctrine established in the Bachan Singh case highlighting the judge centric approach and lack of uniformity in decisions involving capital punishment. 

Since the Bachan Singh case, precedents like as Machi Singh and other instances have evolved, and discrepancy in their rulings raises the question of whether India's death penalty jurisprudence is growing or being misled. The law commission addressed this problem in its 262nd report.

The Law Commission of India's 262nd report can be viewed as a step forward in Indian death penalty jurisprudence. In the report, the panel took a mildly abolitionist stance against capital punishment while also emphasising that Indian society is not ready for total abolition of capital punishment. The commission believed that the irreversibility of this type of punishment was what made it so hazardous. It cannot be denied that there have been cases where an innocent person has been punished, and death is an absolute end to the individual's life and hence irreversible.

Irreversibility coupled with indeterminacy of Capital Punishments was presented as the major argument justifying its abolitionist stand. Several other standard arguments that were based on claims of right to life and of basic human rights were dealt with. Law commission’s report thus, recommended the abolition of death penalty, except for offences related to terrorism.


Thus, the report replaces the rarest of the rare standard with 'cases of terrorism' as an exception to the abolition of capital punishment, and in doing so, the records attempts to fuse a judicial standard of scrutiny with a class of criminal offence, effectively making those accused of terrorism-related crimes. It emphasises that the protection of society should be the primary concern when deciding any such issue, even though it was felt that a modern strategy to dealing with offenders was required. The commission, however, could not overlook the status of India, in terms of disparity levels monetarily, socially, educationally, and even morally, capital punishment cannot be abolished entirely as it was necessary for the preservation of the state’s law and order.

Recent Developments

An unusual appeal from 14 former Supreme Court justices to the President requesting him to exercise the power of clemency to commute the death penalty imposed on 13 prisoners to life imprisonment fueled the controversy even further. The Supreme Court backed this up on three separate occasions, pointing out the error made in sentencing the 13 defendants to death in some of the previous instances that relied on the Ram Chandra vs State of Rajasthan decision, which they believed was decided per incuriam.

Furthermore, in another case, Sangeet & Anr. vs State of Haryana, the court expressed concern about the need for a relook at the aggravating and mitigating circumstances approach, stating that it is impossible to draw a balance sheet between the aggravating and mitigating circumstances of the criminal.

The Supreme Court's decision against Ajmal Kasab appears to have been based on a defective application of balance sheet theory. The recent 2019 death penalty conviction in the Delhi Gang Rape Case, the extraordinary depravity and severe brutality of the crime, which elicited great and deep indignation from society, as well as the victim's immense anguish and the terrible consequences of the crime on social order. This also shows that there has been a shift in the judicial approach to crime vs criminal.

The judiciary has granted the death penalty in relevant circumstances using the rarest of the rare doctrine; yet, the execution of the same has always been in flux. The executive mitigated the death sentences of many of them, and it is also impossible to determine what factors weighed with the executive in commuting the death sentences of each condemned.


Once the sentence has been decided and approved by the judiciary, the decision on commutation and remission is entirely in the hands of the executive authorities. The executive head's constitutionally allowed mercy power does not conflict with the relevant government's power to mitigate sentence under the Code of Criminal Procedure.

The president's or Governor's sole discretion in commuting a death sentence is likewise subject to limited court review, and the executive logic behind the decision is not made accessible in the public spotlight for any kind of scrutiny.

Supreme Court’s Judgement

The Supreme Court has ruled on the legality of capital punishment in India. According to Article 21 of the Indian Constitution, "No one shall be deprived of his life or personal liberty except in accordance with legal procedures." According to the concept of the right to life in Article 21, it has been legally taken to indicate that if a procedure is fair, lawful, and unbiased, the state can deprive a person of his life by enacting a legislation. While the national government has constantly kept the death penalty on the books as a deterrent to those who pose a threat to society, the Supreme Court has also affirmed the constitutional legality of the death penalty in the rarest of cases. The Supreme Court has declared the constitutional legitimacy of capital penalty in three cases: Jagmohan Singh vs. State of Uttar Pradesh in 1973, Rajendra Prasad vs. State of Uttar Pradesh in 1979, and Bachan Singh vs. State of Punjab in 1980. It stated that the death penalty can be imposed to a criminal if the offender is sentenced to death for the crime he committed and the system is fair, just, and reasonable. However, this will only be done in the most exceptional of circumstances.

My Point Of View

The Government and Judicial System have made a lot of efforts, but the crime rate in India has not decreased. The folks don't worry about being penalised. They always believe that they will commit a crime, disappear, and the courts will have no power to punish them. According to the International Human Rights Treaties, India should follow the International Law while giving capital punishment.

But the question is whether we should abolish the Capital Punishment in India? In my opinion, given the numerous cases and important rulings, the death penalty should not be repealed in India.


In India, the death penalty is only used in cases of severe and serious crimes, not in all cases of criminal activity.

Acknowledging the 2008 MUMBAI Terror Attack, the accused AJMAL AMIR KASAB was just 16 or 17 years old, but we can't only look at age or other criteria. We live in this country, we were born here, and we have every right to demand justice for our country. We can't just sit back and wait for someone from outside to assault our country. We should hang everyone who tries to undermine the nation's dignity.

We also saw the 2012 Delhi rape case. The woman was severely injured, and her private parts were entirely wounded. As a result, for criminals like them in our society, we need the death penalty as a means to teach others that if you do anything like this, consider a hundred times before doing it. After all of this, many criminals still don't grasp it.

To control all these things we can just adopt the theories of Capital Punishment from different countries like CHINA, USA, INDONESIA and many others where the criminals are punished in front of the people and other criminals to set an example.

And what about the rights of the victim when we talk about Human Rights? I understand that criminals are also humans, but how can we defend the rights of ordinary citizens in the country if we don't punish them harshly?

I support capital punishment because it sends a strong message to criminals both before and after they commit a crime.

The death penalty serves as a form of restitution and reparation for the victims' families. It creates a new type of criminal deterrence. The death sentence is only applied in the most heinous and


heinous acts because it serves a higher form of justice. Capital Punishment is a significant tool for reducing crime rates, and it is less expensive than life imprisonment.





A death sentence is referred to as capital punishment. It is the harshest, or most severe, sentencing. The penalty is severe because it eliminates the very existence of human life. In India, this irreversible punishment is reserved for the most heinous, terrible, anti-social, grievous, and revolting acts against humanity, referred to as the "rarest of rare cases."

There is a reason why capital penalty is seldom used for minor offences. In a country like ours, capital punishment is rarely used. Even if the doctrine of the rarest of rare cases exists, the accused is rarely sentenced to death. Furthermore, even if it looks to be inhumane, it is only fair to the victims when other means of compensation are unavailable. For example, if the death penalty is granted for manslaughter or murder, it is only fair to the victim's surviving heirs to execute the culprit. Furthermore, when considering the custodial violence that detainees face at the hands of prison officials or other inmates, capital punishment for those found guilty is a far superior form of punishment to life imprisonment.

This study aimed to bring the argument of death penalty's constitutionality to a close, concluding that capital punishment is constitutional in nature and does not violate India's Constitution's right to equality and right to life. It was noted how the judiciary has interpreted the constitutionality of the death penalty. Therefore it was concluded that the judiciary has deemed capital penalty to be constitutionally permissible and that it will be awarded only in the most exceptional of circumstances.

Furthermore, from the standpoint of the perpetrator, certain countries, such as ours, provide an opportunity to seek pardon even after conviction. Having said that, another factor to consider is that not every offender can be reformed. Some criminals have little remorse or guilt for the victims of their actions, but others regret and sympathise with the victims. Furthermore, if not capital punishment, the most severe form of punishment, what else could be done? There must be some form of relief that is more severe than incarceration. As a result, capital punishment or the death penalty must be part of the nation's punishment schemes, with fair constraints in place.


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