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Constitutionality of Capital Punishment in India and other Aspects (By-Deepti Yadav)

Constitutionality of Capital Punishment in India and other Aspects

Authored By-Deepti Yadav


Criminals do not die by the hands of the law. They die by the hands of other men.”

Gerorge Bernard Shaw
Death penalty has been a mode of punishment from time immemorial which is practiced for the elimination of criminals and is used as the punishment for the heinous crimes. theory of retributive for justice forms the basis of awarding death penalty. This theory argues that the person who has committed such a grave offence he must also suffer the same fate. Death penalty should be used very sparingly and for special reasons in cases of brutal murder and the most serious crimes against the state i.e., in “rarest of the rare case”. Social activists, legal reformers, judges, jurists, and administrators around the world are debating whether to retain or abolish the death penalty. Criminologists and penologists diligently study and research to find the answers to some of the perennially perplexing questions surrounding the death penalty regarding the fulfilment of goal of punishment through death penalty, elimination of crime through this form of punishment and as to whether complete elimination of crime from a society is possible. In this paper the author will discuss about the capital punishment in India and its constitutional validity and different aspects related to it which affects the basis of death penalty.

Key words: death penalty, crime, criminology, punishment, constitutional validity


Death penalty simple sense means where the life of a person is taken by the State by following the due procedure of law. The death penalty is one of the most important components of the Indian criminal justice system. Offenses leading to the death penalty are known as felonies or capital offenses. The word capital punishment is derived from Latin word "capitalis" meaning "in relation to the head". The term death penalty is also called capital punishment. The death penalty is a procedure whereby the state kills a person for committing a crime. Death penalty was imposed for the most heinous crimes against humanity. The death penalty varies from place to place, state to state, and nation to nation. There are several human rights movements that argue that the death penalty is immoral. The human rights organization has argued that the death penalty affects the rights of individuals. In jurisprudence, criminology, and punishment, the death penalty implies a death sentence. Indian criminal law is based on a mixture of two theories. The constitution also gives the president and governor the power to suspend or pardon the death penalty.

Since the death penalty has been abolished in many countries and the United Nations also agrees that countries should abolish the death penalty, the question of constitutionality has been raised before the courts in several cases. As the right to life enshrined in Article 21 of the Indian Constitution   is a fundamental right that cannot be taken, it is one of the most important and prominent arguments for abolishing the death penalty even in the rarest of the rare cases, but the supreme court has not declared it unconstitutional.  The Apex Court ruled in favor of the death penalty in a number of judgments, but changed its position on imposing the death penalty however court declared section 303 of Indian Penal Code, unconstitutional and restricted the use of punishment of death penalty in rarest of the rare cases.

Historical Background

The necessity for the abolition of death punishment is being felt by the growth of humanitarian institutions all over the world at the present times. The taking away of life for life by fellow man is as old as the primitive times. India enacted the Indian Penal Code in 1861, which provided for the death penalty for murder. The debates in the Indian Constituent Assembly   between 1947 and 1949 also raised questions about the judge-centred nature of the death penalty, the arbitrariness of its

imposition, its discriminatory effect on the poor and the possibility of error[1]. However, no such provision was incorporated in the constitution. Dr. BR Ambedkar was in favour of abolition of death penalty and he said that, ‘…After all, this country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, certainly adhere to the principle of non-violence as a moral mandate which they should observe as much as possible, as, it is right for this country to  abolish the death penalty altogether’.[2]

The 35th Report, Law Commission,1967 headed by Justice (retd.) J.L.Kapoor recommended the retention of capital punishment. Report said that considering the conditions in India, the diversity of social education of its inhabitants, the disparities in the level of morals and education in the country, the vastness of its territory, the diversity of its population and maintainance of law and order in the country at this point in time is of supreme importance, it cannot risk the experiment of abolishing the death penalty in India.[3]

 Over the years to abolish the death penalty, private members; Bills were introduced in both the Lok Sabha and the Rajya Sabha, but none were adopted.

Constitutionality Of Capital Punishment

Article 21 of the constitution of India guarantees right to life and personal liberty to every individual. It implies that no one is denied life or individual liberty outside of what is specified by the procedure established by law. This has rightly been interpreted to mean that if there is a reasonable and substantive law, the state can deny the life of an individual by confining itself to the law. While the central government has reliably maintained that it would keep the death penalty in the statute books in to act as a deterrent and for people who pose a danger to society, the Supreme Court has also protected the legitimacy of the death penalty in rarest of the rare cases.

The question of constitutionality of capital punishment first came up before the court in case of Jagmohan Singh v. state of U.P.[4]

The petitioners argued that the death penalty violated Articles 14, 19 and 21 of the Constitution of India. It has been argued that since the death penalty, along with life, extinguishes all the freedoms guaranteed by Section 19(1)(a)-(g), it is an unreasonable denial of those freedoms and not in the public interest. However, upholding the capital punishment as constitutionally valid, court held that the impossibility of establishing norms is   the very essence of criminal law as applied in India, giving judges very wide discretion in determining the   sentence. This discretion in sentencing, as has been pointed out, is likely to be corrected by higher courts. The exercise of judicial discretion in accordance with generally accepted principles is ultimately the surest protection for the accused.

The issue of constitutionality grounded upon discretion was again challenged in case of Rajindra Prasad V. State of U.P.[5] The main contention in this case was regarding the grounds upon which death penalty can be awarded. Justice Iyer noted that Section 302 of the Indian Penal Code 1860, gave judges only the discretion to impose the death penalty or life imprisonment on those convicted of murder, without providing guidelines for the exercise of that discretion. He stated that unguided discretion in this matter, even in the hands of the judges, was a serious risk as it is a matter of life and death. Due to the irrevocability of the death penalty, the matter needs to be reviewed.

The Court observed that the retributive concept has had its day and is not valid. Deterrence and reformation are the primary social dreams which make deprivation of life and liberty reasonable as penal panacea.

Significantly, the court raised concerns that resurfaced, asking: "Who are the men generally swallowed up by the gallows?[6] and found that, with a few exceptions, it was “the feuding villager ... the striking workers … the political dissenter ... the waifs and strays whom society has hardened by neglect into street toughs, or the poor householder-husband or wife driven by necessity of burst of tantrums[7]” who were visited with the extreme penalty.

The contradictions arising out of jaganmohan case and Rajendra Prasad case were dealt in landmark case of Bachhan singh v. State of Punjab[8]. In this case, challenge to the death penalty in was based, among other things, on the irreversibility and fallibility of death sentence and that the punishment was necessarily cruel, inhuman and degrading.

 It has also been asserted that the criminal law purpose of deterrence remains unproven, that retaliation is not an acceptable basis for punishment, and that reform and rehabilitation are the purposes of punishment.

Court by majority overruled the Rajendra Prasad case and held that death penalty is constitutional. The court adopted the "rarest of the rare" doctrine for imposing the death penalty and said the grounds for imposing or not imposing the death penalty must include the circumstances of the crime and the criminal. This was also the case when the court finally changed its approach. The Court noted that "the expression 'special reasons' in the context of this provision obviously means 'extraordinary reasons' based on the exceptionally serious circumstances of the individual case relating both to the offense and to the criminal.[9]

Court observed that, ‘A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. This should only be done in the rarest of cases where the alternative option is unequivocally ruled out’.

Justices PN Bhagwati in his dissenting opinion termed capital punishment as arbitrary discriminatory. He remarked that, the death penalty in its actual application is discriminatory because mainly attacks the poor and disadvantaged sectors of the   community and the rich and rich usually escape its clutches. This circumstance also contributes to the arbitrary and capricious nature of the death penalty, making it unconstitutional for violating Articles 14 and 21 of the constitution.[10]

In Machhi Singh V. State of Punjab[11] The Supreme Court reiterated its position and ruled that the death penalty should be imposed in the rarest of the rare cases, but in this case the Supreme Court went a step further and issued some guidelines for determining the rarest of the rare cases. Patterns related to the manner in which the murder was committed, the motive for committing the murder, the personality and magnitude of the murder, and the antisocial or socially heinous nature of the crime.

In the case of Mithu v. State of Punjab[12], section 303 of Indian penal code was under challenge before the supreme court which mandated death punishment in for a person being under life imprisonment commits murder.

The Court ruled that the mandatory death penalty was unconstitutional, court said, a standardized mandatory punishment, including a death sentence, does not take into account the facts and circumstances of each individual case. It is these facts and circumstances that provide safe guideline for deciding the question of punishment in   any particular case[13].

Court observed that Since, the death penalty is mandatory for a certain group of people according to Section 303, as a   necessary consequence, they are deprived of the opportunity to present a reason according to Section 235 (2) of the Code of Criminal Procedure as to why they should not   be sentenced to death, and that Court is relieved of its obligation under Section 354(3) of this Code to state the specific grounds for imposing the death sentence. The deprivation of these rights and guarantees, which will inevitably lead to injustice, is harsh, arbitrary, and unjust[14].

Thus, to sum up, it's miles truly glaring from a observe of the above stated case laws that death penalty is appeared as constitutional in India, in spite of numerous legislative tries to abolish the death penalty in India have failed.

Theories Related To Capital Punishment In India

1.Deterrent theory of Punishment: “Garofalo defined crime as an act which offends the sentiments of pity and probity possessed by an average person and which are injurious to the society.” According to him, death penalty, imprisonment for life and reparation are three forms of punishment[15].According to Salmond, ‘Penalty is above all a deterrent, and the chief aim of criminal law  is to make the wrongdoer an example and a warning to all who think like him’[16] Thus, deterrent theories of punishment play inordinate role, as deterrent action being exerted through the fear of severe punishment[17], like Capital punishment or Life imprisonment.

2. Retributive theory:  In the era of primitive Indian societies, punishment was primarily retaliatory. This theory is based on the maxim "an eye for an eye, a tooth for a tooth". This theory emphasizes that the pleasure gained by the criminal must be rewarded with equal pleasure for the

crime victim. Proponents of this theory see punishment not as an instrument of public good, but as an abstraction to take revenge on the wrongdoer. Retribution ignores the individual and focuses on punishing a crime, and deterrence treats the person not as an end in itself but as a means to a larger social end[18]. The proponent of this theory claims that punishment is the appropriate moral response to criminal acts, since criminals deserve to be punished. “This theory is closely related to the notion of atonement, which means removing guilt by suffering appropriate punishment. Atonement in the form of penance occupied an important place in ancient Indian penal doctrine[19].

3. Reformative Approach: The main goal behind this theory is to rehabilitate the wrongdoers and turn them into law-abiding members of society. The purpose of applying this theory is to disapprove of all forms of corporal punishment and to put more pressure on the offender to reform.   This theory helps a lawbreaker live a life as a normal citizen in society. Prisons and correctional institutions are built with the motive of treating the inmates and helping them to rebuild and reform, and once the criminals feel ready to settle down in society and its members with a reforming mindset. Transformation was usually accomplished through parole or probation as a tool to reform criminals. This theory always supports the ideology of criminology.  Criminology declares that “every crime is a morbid phenomenon, a mild form of insanity. Criminal anthropology, criminal sociology and psychoanalysis support the Reformation theory. This theory aims to correct criminal minds in a good way so that they can lead a life as a normal citizen. This theory criticizes all forms of corporal punishment.

It should be noted that “this theory suggests that punishment is only justified when it is aimed at the future and not the past.. It shouldn't be viewed as "opening an old account, but opening a new account." Thus, proponents of this theory justify prisons not only to isolate offenders and eliminate them from society, but to bring about a change in their mental attitude during their sentence in through effective reform measures[20].

4. Preventive approach: The main point of this preventive theory is to distance the criminal from the general public. According to preventive theory, the main purpose of punishment is to set a pattern for other people and prevent them from committing crimes. In this theory, wrongdoers are punished with the death penalty, life imprisonment, and so on. The preventive theory has been

advocated by many legal reformers because the preventive hypothesis is intended to humanize criminal law. Many reformers found that preventive theory has a real impact on wrongdoers. The main reason for the preventive theory is to make sure the guilty person does not repeat the crime. This theory makes it clear that the death penalty is the most extreme form of punishment. A man has ended another man's life so he is capable to be denied of his life.[21]

Recent Approach Of Supreme Court On Death Penalty

The supreme court has, over the last few decades, developed a robust body of capital punishment case-law that encompasses the rarest of the rare doctrines and other evidence used to determine the applicability of the death penalty to the circumstances of an individual case.   The Supreme Court has recently attached great importance to offenses and criminal evidence examining aggravating and extenuating circumstances.

Recently supreme court in Bhagwani v. state of M.P.[22] commuted the death penalty of a convict in case of rape and murder of a minor girl. A three judge bench headed by L.Nageshwara Rao found that while the trial court and the High Court took into account the seriousness of the offence, they did not consider  mitigating circumstances, including the  socio-economic background of the convict and the likelihood of recovery and rehabilitation.   It was taken into account that the detainee came from a marginalized society, was about 25 years old at the time, made a living from physical labor and had no criminal record. There were also no charges against him about his behavior in detention, the court stuck to the decision.

In case of Irappa sidappa murgannavar v. state of Karnataka [23], where a man was guilty of rape and murder of a 5-year-old girl, supreme court commuted death sentence on the ground that victims young age could not be the only criteria to impose death penalty.
There isn't any doubt that the appellant has committed an abhorrent crime, and for this incarceration for life will function enough punishment and penitence for his actions, in the absence of any material to agree with that if allowed to stay he poses a grave and critical threat to the society, and the imprisonment for life in our opinion might additionally thrust back this kind of

threat. court said that there's hope for reformation, rehabilitation, and accordingly the choice of imprisonment for life is clearly now no longer foreclosed and therefore acceptable[24].

In April this year, bench comprising of Justices UU Lalit, S Ravindra Bhat and PS Narasimha initiated a Suo Motu case to investigate and institutionalize the process associated with the collection of data and information to award and decide sentences in death penalty cases.   The supreme Court wished to examine how courts dealing with the death penalty could obtain a comprehensive analysis of the accused and the crime, including mitigating circumstances, in order to decide whether or not the death penalty should be imposed.   The intention was to establish the guidelines to be followed by the Indian courts when dealing with cases involving the imposition of the death penalty.[25]


If we look at the historical background of the death penalty, it was present from time immemorial.  The kings, when they were the rulers of their dynasties, used to pass sentences of death.   British India had the death penalty. The Indian Penal Code of 1860, enacted during the British India period in , contained a presence of the death penalty. Before 1955, the death penalty   was the rule and life imprisonment  an exception, but in the current scenario, life imprisonment   is the rule and the death penalty is the rarest of the rare. There are two different theories on the international stage, ie.some countries support the death penalty and  in the United States there are some states that still have the death penalty, but some states have  abolished it. In India, the Supreme Court of, through its various judgments, has not completely abolished the death penalty and favors the death penalty. However, through several cases and with changes in time, the Supreme Court has changed in a way that it has abolished the mandatory death sentence on the grounds that it violates Article 14 and Article 21 of the Indian Constitution.Based on the discussion above, the death penalty is considered inappropriate on ethical, moral or social grounds. Limiting the use of the death penalty to a few rare crimes, could be a significant step towards abolishing the death penalty. In order to ensure appropriate punishment for premeditated or cold-blooded crimes, the government may, as a policy, consider granting a life sentence after 60 to 70 years instead of the current 14 years imprisonment. Therefore, the judiciary and the legislature must work together to abolish this cruel, inhuman and barbaric form of punishment.


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