white black legal international law journal ISSN: 2581-8503

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Authored By- Ifta Khan


India is second largest country in population which is increasing with the passage of time and soon we will be on the first spot leaving behind China (largest population). It is very concerning issue at present but the rise in crime rate is more than concerning. Any punishment is the retribution of the crime committed. Similarly, it is must to control the crime in the society. Different types of punishments are given for different forms of crimes committed in our society. One of such offences is Death penalty or Capital punishment. In this paper we will put some light on the concept of capital punishment and its constitutional validity in Indian legal system. We will elaborate on Capital punishment and how it gained its status and where it is in the society, today. Capital punishment or death penalty is widely known for being a harshest punishment to control the crime rate in the society. As on the one hand people support it as a punishment to deter others from committing the crime on the other hand some human right activists and leaders are against it as they consider it as inhumane act. We will here describe the constitutionality of capital punishment with the help of different case laws in the India. Capital punishment is included in different penal laws of India namely, Indian Penal Code (IPC) & Criminal Procedure Code (CrPC). We will also put some efforts on understanding different other concepts related to capital punishment in India.


Every punishment is based on some general understanding or reasoning i.e., there must be some penalty on every wrongdoer for every wrongdoing/offence that he/she commit. By concluding punishment on offender for the offence, two objectives are fulfilled one is by inflicting punishment on wrongdoer there sets the rule for others which discourages them from committing the offences and two is it gives the feeling of justice to the victim. Thus, it is crucially significant aspect of judicial system to inflict punishment on the offenders for the offences that they commit. There are different forms of punishments to be inflicted for different crimes, for instance fine, forfeiture of property, imprisonment, life imprisonment and death penalty or capital punishment. But, several times questions arises in our judicial and social atmosphere about the constitutional validity of capital punishment in Indian legal system, questions arises whether the capital punishment is just or unjust for humanity, whether it should be there anymore in our penal laws. We believe in convicting the criminal and eliminating the crime but, should we believe in eliminating the criminal also? Obviously from humanitarian approach and in democratic society also it is accepting fact that we should try to eradicate the crime but not the criminal. Other more debating issue is that capital punishment stuck between the concept of moral and immoral act. Some people advocate the fact that by humanistic approach capital punishment is an immoral act and thus it should be prohibited while, some support the fact that by saving the life of one wrongdoer on the principle of morality and humanistic approach we cannot put the lives of many other people in further danger. Thus, it is very conflicting and debating issue in the social, political and judicial environment nowadays. Capital punishment is not a new form of punishment but it is very traditional from very early times when there were monarchs and it had huge implication during the times of dictators. Today in democratic countries also, capital punishment is there in different penal laws, but now its implication is somewhat limited as well as genuinely and properly practiced as compared to that of earlier times. ‘Capital Punishment’ which is also known as ‘Death Penalty’ is the punishment inflicting for committing heinous and more terrific crimes. Generally, it is considered as the act of ‘tit for tat’.

Meaning & Concept Of The Capital Punishment

Punishment by death, the practice of killing people as punishment for serious crimes.[1] The word capital is taken from the Latin word ‘caput’, which means head, as one can identify from it that this indicate that capital punishment originally referred as execution by beheading. With the passage of time there has been significant changes in the definition of capital punishment. Earlier, as we have discussed just above that it referred to execution by beheading, but now this concept has changed and evolved over time.[2]

Death penalty or capital punishment, is the killing of the criminal by hanging by neck till death, shooting, beheading, lethal injection, electrocution, etc. Capital punishment is given in the section 354(5) of the Criminal Procedure Code and IPC. In IPC death penalty is defined as – In every case in which sentence of death shall have been passed, (the appropriate government) may, without the consent of the offender, commute the punishment for any other punishment provided by this code.[3] In India, death penalty is a legally prescribed punishment (given in IPC & CrPC) given by the courts in heinous crimes in rarest of rare cases, although the conception of rarest of rare has not been clearly defined by the courts and legislature[4]. Death penalty is the harshest form of punishment given in the Indian Penal Code, 1860. We can also call it judicial killing or taking the life of an accused legally as a punishment. But, it remains absolutely contentious issue between moralists and progressives, whether taking of life of a person by the state is just or unjust.[5] Some people are in favor of death penalty to be given for heinous crimes but some advocate the fact that by murdering a person convicted of murder is not the good indication for others to deter from doing such crime.[6] Death penalty in India is given for the offences of murder, robbery with murder, waging war against government, abetting mutiny, etc. Offences for which capital punishment is given are regarded as capital crimes or capital offences.[7]

Constitutional Validity Of Capital Punishment In India

India is among those 78 countries who have retained death penalty as a punishment on the grounds that it will be given in rarest of rare cases and for most specific reasons, although it’s not yet clear, what is rarest of rare case. Indian constitution guarantees to its every citizen, fundamental right to life subject to its deprivation only by the procedure established by law (as mentioned in article 21). This means that if the state is making any procedure, act or statutes which is fair and valid but harms the individual’s life or personal liberty then the procedure which has been established by law is allowed.

Thus, many abolitionists argued for the abolition of death penalty on the grounds that article 21 of the Indian Constitution guarantees fundamental right to life to its every citizen. Similarly, article 14 of the Constitution of India mentions ‘equality before law and equal protection of law’, and this clarifies that no person shall be discriminated against unless the discrimination is required to achieve equality. However, there is no clear mention of anything in the constitution of India, which expressly prohibit death penalty. There are numerous cases in the history of India in which constitutional validity of Capital punishment has been challenged.[8] Some cases in which constitutional validity of Capital punishment has been challenged –

In Jagmohan vs State of Uttar Pradesh[9], the apex court held that article 14, 19 & 21 did not violate the constitutionality of death penalty. The judge was said to opt between death penalty and life imprisonment on the basis of facts and circumstances of the case. Thus, the decision to award the death penalty was made in accordance with the procedure established by law as required by article 21. This was the first case in which constitutional validity to death penalty was given.
In Rajendra Prasad vs State of Uttar Pradesh[10], the court held that the death penalty is justified only in the cases where it seems that the criminal is dangerous for the society. The court further held that death penalty should be abolished and should only be given for white

collar crimes. Similarly, it was held that death penalty for the offence of murder (as per section 302 of IPC) did not violate the constitution’s basic structure.
In Mukesh and Anr vs State of NCT Delhi[11], one of the issue was whether the convicts of such crimes should be given death penalty, whether age and family background of a person can be considered valid ground for avoiding death penalty. On 5 May 2017, the Apex Court rejected the convicts appeal and said that they had committed a barbaric and heinous crime that had shaken society's heart, the court upheld the death penalty for the four accused who had been charged with the murder. The verdict was well entered by the family of the victim and the civil society.
In Shabnam vs state of Uttar Pradesh[12], the accused Shabnam and her co-accused Saleem killed seven members of Shabnam’s family. In 2010, the Amroha’s session court granted both of them death penalty and this was further upheld by the Allahabad High Court in 2013. The Supreme Court in 2015, observed that the end of the court is to serve the society and thus convict’s good gesture and good heart generally, should not be the reason to swap a judgement. The crime must not be overlooked and therefore the court upheld the death penalty. This will be the first time in the history of the independent India, that a woman will be hanged to death.[13]
In Bachan Singh vs State of Punjab[14], the appellant (Bachan Singh) was tried and convicted and was sentenced to death penalty under section 302  of IPC for the murder of Desa Singh, Durga Bai & Veeran Bai by the sessions judge. The five judge constitutional bench raised a question regarding the constitutional validity of death penalty (capital punishment) for murder (under section 302 of IPC). The court further held that the provision of death penalty as alternative punishment for the offence of murder under section 302 of IPC neither violates the constitution nor it is against the public good.

Evolution Of Capital Punishment In India[15]

In 1947, at the time of independence, India retained the 1860 Penal code, in which the provision for death penalty has been given. During the drafting of the Constitution of India, several members of the constituent assembly opposed the idea of death penalty. But no such provision was incorporated in the Constitution of India that prohibit death penalty. After so many years of independence many times the voice against death penalty was raised by some legislators but it didn’t gain that much value. Members of Lok Sabha and Rajya Sabha introduced bills for the abolition of death penalty but they were unsuccessful every time. But the apex court in the famous Bachan Singh vs State of Punjab[16] case clarified that Death penalty should only be given to the criminal in the rarest of rare cases.

Status Of Capital Punishment In The Constitutional Law[17]

The constitution of India guarantees right to life and personal liberty to all, also including the right to live with human dignity. The state may take away or abridge even that fundamental right to life and personal liberty on the grounds of law, public order and morality. But, the procedure of abridgement of right should be ‘due process’, as held in the landmark judgement of Maneka Gandhi vs Union Of India[18]. It was held that the procedure that takes away someone’s dignified life, must be just, fair and reasonable. Here are some constitutional principles regarding capital punishment –

Death penalty should only be given in rarest of rare cases.
Only on special grounds, the death penalty can be sentenced and it should be treated as exceptional punishment.
The accused person shall have the right to hear.
In the light of individual circumstances, the sentence should be individualized.
The death penalty shall be confirmed by the High Court. Under article 136 of the Constitution and section 379 of the Cr.P.C there is the right to appeal to the Supreme Court.

The accused may pray for forgiveness, commutation, etc. of sentence under Sections 433 and 434 of the Cr.P.C. and to the President or the Governors under Articles 72 and 161. Apart from the judicial power, article 72 and 161 contain discretionary power for the President and governor to interfere with the merits of the matter; however, there is a limited authority for judicial authorities to review it and it must ensure that the President or the governor has all relevant documents and material before them.
However, the essence of the governor’s power should not rest on race, caste, sex, religion or political affiliations, but on rule of law and rational issues.
In accordance with Articles 21 and 22 of the Constitution, the accused has the fundamental right to a prompt and fair trial.
The accused is not entitled to be tortured under Article 21 and 22.
Under Articles 21 and 19 of the Constitution, the accused has freedom of speech and expression under the custody.
The accused is entitled to be presented by duly qualified and appointed lawyers.


Death penalty or capital punishment has been a very old and heinous form of punishment being given from very earlier times. It has been supported and opposed, both at the same time by different sections of the society. On one hand some claimed it to be a very suitable punishment to be given for controlling most heinous crimes from being committed while on the other hand some opposed it on the grounds of humanity. They thought that every individual is guaranteed with the fundamental right to life and personal liberty and thus, no one can snatch their right. We came to hear most often about the abolishment of capital punishment by every passing day. But at the same time we see several people rising their voice for giving capital punishment to the rape convicts, murderers, terrorists, etc. Thus, we can say that it is very conflicting and complex issue in the society. We can also hear people talking of human rights when any criminal is granted capital punishment. Indian constitution has not expressly prohibited capital punishment. Although, it does not have any such provision that give capital punishment a strong base.



P. S. A. Pillai – criminal law



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