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The Capital Punishment In India, Constitutional Validity Of Capital Punishment (By-Viraj Pratap Khatter)

The Capital Punishment In India, Constitutional Validity Of Capital Punishment

 Authored By-Viraj Pratap Khatter


Every country have a one serious punishment which they use in serious cases only like Arabian Country  follows an eye to eye means they are habitual in awarding punishment which are equivalent with the offence, and In India we have capital punishment i.e. a death sentence which is awarded in a serious offences like murder. But it is commonly suggested that the god is the one who awarded life to every person, and he must be a one who has the right to take it back, not any individual should have. many people’s have different opinion on the capital punishment in India, some are saying that it should be abolished from India as it is violation of provision of constitution and some are saying that it should not be abolished from as the presence of one thing is enough to grow a fear among an individual and they step back from doing such thing.  

India is a developing country, where we used to give respect to the rights of an individual. The constitutional validity of capital punishment is always raised and the hon’ble apex court answer this question through many case, it is argued that many European countries have abolished death penalty from the legal system and India should also do the same. But the European countries have a high education rate, they are very well aware, how to respect the rights of other people, but India is still on the way to achieve it, already it is awarded in the rarest of rare cases.

This article is prepared with view to highlight the constitutional validity of the Capital Punishment in India, as it might be a violation of fundamental right of an individual awarded by the constitution of India.

KEYWORDS: - capital punishment, Death sentence, Fundamental right, Constitution of India.      


Capital punishment is the most serious punishment, which is allowed by the law in serious, heinous offences. In India we usually called it a Death penalty, it is commonly said good is the one who awarded life to every person and he should be the one who have right to take it back. The question on constitutional validity of Capital Punishment in India is always a controversial topic for discussion. Many jurist said that they Death penalty should be abolished from Indian, as it a infringement of Article 14, 19, and 21 of the Indian Constitution, but on the other hand may jurist suggested that there should a provision of capital Punishment in our Country, because it helps in minimising the crime rate.

1. Capital Punishment in India 

Capital Punishment in India, is the Death penalty which is awarded in a most serious offences like murder, wagering war against government etc. There are only few sections in Indian Penal Code, 1860 which awarded death sentence, as per the provision of sec 53 of IPC which suggested all types of punishment awarded in a criminal offence

There are 403 prisoners in a row, who are awarded with the death sentence, and the recent death penalty is awarded in Mukesh and Aur. v. State of NCT Delhi,[1] or commonly known as Delhi gang rape case 2012. All the four accused were hanged till death in March 2020.

1.2 Constitutional validity of Capital Punishment in India

Whenever the capital punishment in Indian has been discussed, then the Constitutional validity of the Death Sentence is always raised, because it is one and the only punishment which takes the life of a convicted person and it is generally said that “god is the person who awarded life, then he must be the only person who is empower to take it back not any individual should not be empower to take the life of an individual.” Many a time the constitutional validity of capital punishment has been raised before Hon’ble SC vis-a-vis Article 14, 19 and 21. Although as per the provision of Article 21 of the Indian Constitution every person has the right to live their life with full dignity,

liberty, it might be infringed by the procedure established by the law. And we have a proper established procedure for awarding death sentences which are mentioned under Code of criminal procedure. Article 19 of the Indian Constitution suggested many freedoms, but it does not provide freedom to live,[2] It was suggested it Jagmohan[3] The constitutional validity of passing a capital punishment by the procedure mention under law, and it is limited only to find the guilt of the accused person.[4]

In Rajendra Prasad v. State of Uttar Pradesh,[5] the Hon’ble SC check the constitutional validity of the capital sentence, the hon’ble court accepted with the proposition, as capital punishment finally deprive the right of the accused and the validity of death sentences can be checked by the references of Article 14, 19 and 21 of the Indian Constitution. Article 21 of the Indian constitution guarantees free and fair trial before the court of justice, Article 19 of the Indian constitution provides various freedoms, but they directly do not allow freedom to live, it guarantees 7 fundamental freedoms which an individual can enjoy, and Article 14 of the Indian constitution deals with or guarantees that there must be no discrimination between any person, every person should be equally protected before laws and there must be equality before law, this article bars the extreme cruelty or in cases where we need not. it is commonly said that the death penalty is an exception or Imprisonment is a rule.

Article 21 of the Indian Constitution, guarantees protection to the life of an individual and the personal liberty to every person and no one has the right to deprive the life of a person if they do, the act of the person is considered as unconstitutional as per the provision of article 21.

Many countries have successfully accepted and later on abolished the death sentences especially European Countries have abolished the death sentences from their legal system. But In India we still have provision of capital punishment, although it is awarded in a rarest of rare case, many professors, scholars, judges have raised their voice in order to demolished the provision of death sentences from the Indian Legal System, but practically yet it is not possible because we are

comparing our self from the European countries, at the same time they have high education rate, there every person are aware about their constitutional right, they respect it. But in India most people have no knowledge about their rights and the consequences of their act. Thus at that time removing death sentences from the Indian legal system was not a good point. Justice Bhagwati and former judge of the Supreme Court, Justice Krishna Iyer, have given their views that there are in favor on abolishing the capital punishment form India.[6]

Justice A.K Ganguly, judge of the Hon;able Apex court has suggested that the capital punishment in India is the barbaric, anty- life and undemocratic, it is legal in the esenting  judicial system.    

1.3 procedure of awarding of death sentence                   

As per the provision of sec 27 of code of criminal procedure, the Hon’ble Apex court and the High court have power to pass death sentence, session Judge also have power to pass death, but he need to have approval from the High court, then only the judgement comes into an execution.

In the entire Indian Penal Code, there is only one sec i.e. 303 which confirms only death sentences, although there are few more sections which also contain provision of death sentences, but they have other alternative punishments like life imprisonment.[7] The direction suggested by the Hon’ble Court in matter of Mithu v. State of Punjab,[8] presumes the importance and execution of death sentence is extremely difficult due to the stick characters of capital punishment in India.   

As per the provision of sec 351(3), whenever any person has committed an offences which is punishable with the death and he is convicted for the same and the offences have any other alternative punishment like in case of murder the judiciary have discretionary power to awarded death sentence or life imprisonment as they may be, then the judge should mention the reason for awarding death sentence to the convicted person. Whenever the sentence of death sentences is passed, the term “hanged by the neck till he is death.

Acc. To the sec 354(3) of the CrPC, a death sentence is awarded in special case only or which have special reason, it is also suggested in Bachn Singh caes,[9] than the capital punishment must be passed in rarest of rare case only. The Hon’ble apex court in Shatrughan Chauhan v. Union of India[10] discuss certain grounds which might be keep in mind before awarding a death sentences and this factors is also used to commute the death sentences into the life imprisonment under sec 433 of CrPC i.e.

·         If the convicted person has filed a mercy petition before the president or a governor and there is unnecessary delay in the approval or rejection of the petition, then the death sentence is transferred to the life imprisonment.

·         If death sentence is awarded to a female accused and later she found pregnant, then the sentence will be commuted into life imprisonment.

·         If the convicted person is mentally ill or suffers from any problem due to the delay in mercy petition, the conviction might be commuted into life imprisonment.

·         If the convicted person is not able to get proper legal aid during the trail and he is convicted with the capital punishment, then his capital punishment is commuted into the life imprisonment.

The hon’ble court has purify the nature of delay, i.e. the unreasonable delay must be taken into consideration, and take all possible steps in order to minimise this issue and no specific guidelines has been provided and after satisfy that the delay was not caused at the instance of one accused.[11] This decision has also followed in V Sriharan v. Union of India,[12] where the Hon’ble Apex court has purified the independence of facing which results in delay in the execution of death sentences.   

The Hon’ble SC in Macchi singh case[13], “the court held that life imprisonment is a rule and death sentence is an exception”, court also mention certain grounds on determining whether the case comes under the ambit of the rarest of rare case or not, the critical analysis as below:-

·         Manner of murder- the court should determine whether the murder is committed in a brutal manner, ridiculous, revolting, or the accused cut the victim cut into small pieces. The manner of committing an offences is plays an essential while deciding the punishment of a convicted person, if the manner is so brutal then the punishment must also be such nature, like in Mukesh and Aur v. State of NCT Delhi[14], the victim has brutally gang rape and later on she was brutally bitten which ultimately results in death of the victim. Thus in such type of cases punishment must also be brutal in nature, as in this case all four accused person sentences with the death penalty.

Acc. To Article 21 and DPSP provision of the Constitution of India, it is responsibility of the State government to provide immediate treatment to the victim 

·         Motive of the commission of murder- Before analyzing whether the case comes under the ambit of the rarest of rare case, court should determine the motive of accused, whether the accused have any motive for murder the victim. Criminal law walks on the basic principal that “an offences should be considered as an offences if it is not done with the guilty intention”, capital punishment in India is mostly awarded in murder case , then it is important to understand whether the accused person have any motive to kill the victim or he had killed him under special circumstances, which deals with the exception under IPC or any other law, then the case do not follows under the category of rarest of rare case    

·         Social abhorrent nature of the crime- Schedule case and Schedule tribes are considered as the weaker section of the society, and whenever the murder or any other offences which is punishable with the death penalty, is committed with the any person who belongs to the Schedule case or schedule tribe or from any minority community, offences is being done not for the personal reason, but in order to demoralized the minority

community, then such types of offences might be considered as a rarest of rare case and capital punishment might be awarded in such cases. Women is also considered as the weaker section of the society, if the case belongs to the dowry death or bride burring or any other case which done with the intention of remarry for the sake of more dowry then capital punishment might also be provided in such case.   

·        Magnitude of crime- the series of crime should be verified, as the prosecution failed to prove the Meansrea, and in criminal law, The intent and act must both concur to constitute the crime.

·        Personality of Victim- when every the victim of any offences, which is punishable with the capital punishment –

o   an innocent child

o   a helpless woman

o   A victim is a public celebrity, who inspires many people.

o   An offences against the government like wagering war, etc             

In jagmohan singh v. State of Uttar Pradesh[15], in this case the hon’ble Supreme Court of India has examine the constitutional validity of sec 302 of IPC and the capital punishment in India, as this was a infridgemen of Article 21, 19, and 14 of the Indian constitution, then the hon’ble court has suggested that the the right to life is not deprive by any one and every person have right to enjoy their freedoms mention under Article 19 there are various reports which aims in retaining the capital punishment from India.

In Bachan Singh v. State of Punjab,[16] in this case it was held that the death penalty mention under sec 302 must be taken as an alternative options, we should go with the life imprisonment and the death sentences should be passed in rarest of rare case only, the Hon’ble bench used a phrase in this

case i.e. life imprisonment is the rule and death is sentence is an exception. Means generally we should awarded life imprisonment and only in a rare case death penalty must be awarded.  

Justice Bhagwati,[17] said that the provision of capital punishment in India is totally unpredictable or unreasonable. He held that the provision of sec 302 IPC and 354(3) CrPC, is the violation of Article 14 and 21 of the Indian constitution,

Mayandi v. State Rep. By Inspector of Police,[18] In this case it was held that the case might fall under sec 326 rather than under sec 302 of IPC, as there was no intention on the part of appellant to cause death of the person. And similarly, in this case the prosecution was not able to prove the intention of the accused person, Thus this case wouldn’t come under the ambit of Sec.302 of IPC, if the intention is not proved then the question of murder wouldn’t be raised or if there is no case of murder then the case doesn’t come under ambit of rarest of rare case.

Acc. The 35th law commission report on death penalty, 2015 the death penalty is the violation of the Human Rights, god is one who give life to every, and he is the one who have right to get it back not law.


Every country has their stick punishment which is used only in serious offences, and in India we have capital punishment i.e. the Death Penalty. Many a time question on constitutional validity on capital punishment has been raised, that it is an infringement of Right to life guaranteed by the Article 21 of the India constitution, and hon’ble Apex court of India has answer this question. But still many scholars have their different views on this topic.

Basically India is a democratic country and we have a well established constitution which will run our country, although as per the provision of article 21 of the Indian Constitution every person have right to live their life with full dignity and protection, however this article deals with the except i.e. the provision of Article 21 can be infringement by the process established by the law, and we have well established process for awarding death sentence.

Many European Countries have abolished death penalty from their legal system, because they have high literacy rate, there every person Know the importance of right of other person, but here in India we have not achieve at that level, that’s why. Abolished capital punishment from the Indian legal System is not a good option, already it is awarded in rarest of rare case.     


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