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1) http://newindialaw.blogspot.in/2012/11/constitutionalvalidity-of-capital.

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2) http://lawlex.org/lex-bulletin/constitutional-validity-ofdeath-penalty-in-india/1458
2. Constitutional Validity of Death Penalty in India:
BY AKANKSHA ARORA ON APR 21, 2013

The issue of death penalty has been debated, discussed, studied from a prolonged time but till now no
conclusion can be drawn about the retention or abolishment of the provision. 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.
Various countries have different outlook towards crime in different ways. In Arab countries they
choose the retributive punishment of an eye for an eye others have deterrent punishment. Of late
there has been a shift towards restorative and reformist approaches to punishment, including in India.
India is one of the 78 retentionist countries which have retained death penalty on the ground that it
will be awarded only in the rarest of rare cases and for special reasons. Though what constitutes a
rarest of rare case or special reasons has not been answered either by the legislature or by the
Supreme Court.

The constitutional validity of the death penalty was challenged from time to time in numerous cases
starting fromJagmohan Singh v. State of U.P where the SC rejected the argument that the
death penalty is the violation of the right to life which is guaranteed under article 19 of the Indian
constitution. In another case Rajendra Prasad v. State of UP, Justice Krishna Iyer has
empathetically stressed that death penalty is violative of articles 14, 19 and 21. But a year later in
the landmark case of Bachan Singh

v. State of Punjab, by a majority of 4 to 1

(Bhagwati J.dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad. It
expressed the view that death penalty, as an alternative punishment for murder is not unreasonable
and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the public
order contemplated by clauses (2) to (4) of Article 19 is different from law and order and
also enunciated the principle of awarding death penalty only in the rarest of rare cases. The
Supreme Court inMachhi Singh v State of Punjab laid down the broad outlines of the
circumstances when death sentence should be imposed.
Similarly in various other cases the Supreme Court has given its views on death penalty and on its
constitutional validity. But the punishment of death penalty is still used in India, some time back the
death penalty was given to Mohammad Ajmal Kasab. The Pakistani gunman convicted in 2008
Mumbai attacks was sentenced to death by hanging and after a long discussion, politics and debate
was finally hanged on 21 November 2012. Next in the row is Afzal Guru, convicted in 2001

Parliamentary attacks was also hanged after a huge political discussion on 9 February 2013.The next
convict in the death row is Devendra Pal Singh Bhullar, convict of 1993 car bombing will be
hanged in the coming days as his mercy petition was rejected by the Supreme Court by holding that in
terror crime cases pleas of delay in execution of death sentence cannot be a mitigating factor.

There has been a diverse opinion regarding the death penalty in India as some are in
the favor of the retention of the punishment while others are in the favor of its
abolishment. Those who are in the favor of death penalty argue that it should be given
in the most heinous and rarest of the rare crimes as for example the Delhi gang rape
case the demand for death penalty for the accused was raised . But the people who are
against the capital punishment argue on the religious, moral and ethical grounds and
declare it inhuman and callous investment by unsure and unkempt society. It is also
suggested that it should be replaced with life imprisonment or any substitute must be
brought out

Jagmohan Singh v. State of U.P (1973) 1 SCC 20.


Rajendra Prasad v. State of UP, AIR 1979 SC 917.
Bachan Singh v. State of Punjab,(1979) 3 SCC 727.
Machhi Singh v. State of Punjab ,AIR 1983 SC 957

3) http://indianexpress.com/article/explained/explained-in-the-supremecourt-some-questions-of-life-and-death/
3. Written by Utkarsh Anand
Published:May 27, 2015, 0:53
Which crimes entail capital punishment in India?
Grave offences such as murder, rape with injuries that may result in the death of a victim and
a repeat offender, waging war against the State, and terrorism-related offences causing death
are some major crimes punishable with death under the Indian Penal Code. Similarly, there
are provisions under The Arms Act, The Narcotic Drugs and Psychotropic Substances Act,
The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, The Commission
of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act wherein capital
punishment is prescribed as one of the punishments for serious offences. The now-repealed
Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act
(TADA) also contained provisions for death sentence.
What has the Supreme Court ruled on the constitutional validity of the death sentence?
Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all
persons. It adds no person shall be deprived of his life or personal liberty except according to
procedure established by law. This has been legally construed to mean if there is a procedure,
which is fair and valid, then the state by framing a law can deprive a person of his life.
While the central government has consistently maintained it would keep the death penalty in
the statute books to act as a deterrent, and for those who are a threat to society, the Supreme
Court too has upheld the constitutional validity of capital punishment in rarest of rare
cases. In Jagmohan Singh vs State of UP (1973), then in Rajendra Prasad vs State of UP
(1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed
the constitutional validity of the death penalty. It said that if capital punishment is provided in
the law and the procedure is a fair, just and reasonable one, the death sentence can be
awarded to a convict. This will, however, only be in the rarest of rare cases, and the courts
should render special reasons while sending a person to the gallows.
What would constitute a rarest of rare case?
The principles as to what would constitute the rarest of rare has been laid down by the top
court in the landmark judgment in Bachan Singh vs State of Punjab (1980). Bachan Singh
formulated certain broad illustrative guidelines and said it should be given only when the
option of awarding the sentence of life imprisonment is unquestionably foreclosed. It was
left completely left upon the courts discretion to reach this conclusion. However, 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. Two prime questions, the top court held, may be asked and answered.
First, is there something uncommon about the crime which renders the sentence of

imprisonment for life inadequate and calls for a death sentence? Second, are there
circumstances of the crime such that there is no alternative but to impose the death sentence
even after according maximum weightage to the mitigating circumstances which speak in
favour of the offenders?

What has been the Supreme Courts view on mandatory death penalty?
The Supreme Court has always said that the death sentence should be given rarely. In Mithu
vs State of Punjab (1983), the Supreme Court ruled that the mandatory death penalty is
unconstitutional. It struck down Section 303 in the IPC, which entailed a mandatory death
sentence for a person who commits murder while serving a life term in another case. The
Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life)
since an unreasonable distinction was sought to be made between two classes of murderes. It
said all murders would come under the ambit of Section 302, where a court would have the
discretion to award life term or death sentence.
Similarly, the Supreme Court ruled in State of Punjab vs Dalbir Singh in 2012 that mandatory
death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was
unconstitutional. The government moved a Bill to amend the Act, which is currently pending.
There are some other subsequent legislation prescribing the mandatory death penalty in drug
cases, but the Supreme Court has not yet struck down the penalty as unconstitutional. A
pertinent provision in the Narcotic Drugs and Psychotropic Substances Act, 1985, is currently
under scrutiny of the apex court.
What are the avenues available to a death-row convict?
After a trial court awards the death penalty, the sentence requires to be confirmed by a High
Court. The sentence shall not be executed till the time the High Court confirms it, either after
deciding the appeal filed by the convict, or until the period allowed for preferring an appeal
has expired. If the High Court confirms the death penalty and it is also upheld by the
Supreme Court, a convict can file a review petition and a curative petition, if the review
petition is nixed, for reconsideration of the judgment.
A Constitution Bench ruled last year that a review petition by a death-row convict will be
heard by a three-judge bench in open court. Such cases were earlier being heard by two-judge
benches in the judges chamber. A curative petition is still heard in judges chambers.
Opening another avenue, the Supreme Court, by yet another path-breaking verdict in 2014,
ruled that unexplained delay in execution was a ground for commutation of death penalty,
and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition
seeking such commutation.
Does the executive have a role in clemency?
Yes. If the Supreme Court turns down the appeal against capital punishment, a condemned
prison can submit a mercy petition to the President of India and the Governor of the State.
Under Articles 72 and 161 of the Constitution, the President and Governors have the power
to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or
commute the sentence of any person convicted of any offence. This power was without any
conditions until the last years verdict by the Supreme Court, which held that judicial
clemency could be granted on the ground of inordinate delay even after a mercy petition is
rejected.
How is the execution of death sentence carried out in India?

Execution is carried out by two modes, namely hanging by the neck till death, and being
executed by firing squad. The Code of Criminal Procedure calls for the method of execution
to be hanging. It states: When any person is sentenced to death, the sentence shall direct that
the person be hanged by the neck till the person is dead. In Deena vs Union of India (1993),
the Supreme Court adjudicated upon whether the execution of death penalty by hanging by
rope is constitutional. It held the method prescribed under the CrPC was valid. Death by
shooting is contemplated under the Army Act, Navy Act and Air Force Act. They provide for
the discretion of the Court Martial to either provide for the execution of the death sentence by
hanging or by being shot to death.
Can an order of execution be challenged in a court of law?
Yes. The procedure for carrying out the execution must also fulfill certain conditions as
stipulated by the Supreme Court in Shatrughan Chauhan vs Union of India (2014), and by the
Allahabad High Court in Peoples Union for Democratic Rights vs Union of India (2015). The
guidelines hold that a death-row prisoner must get free legal aid for drafting a mercy petition
and, if it is rejected, an intimation to the prisoner and his family is imperative. A minimum 14
days notice for execution must be given to let him prepare himself mentally for execution,
to make his peace with god, prepare his will and settle other earthly affairs, besides also
allowing him to have a last and final meeting with his family members. An execution can
be stopped owing to a convicts physical or mental ill health, the top court has held. The death
warrants are issued by the trial court.
In the cases of Shabnam and Salim, the validity of the death warrants have been challenged,
contending that the warrants did not specify any date of execution. Further, the convicts still
had the legal remedies of filing review and curative petitions, apart from moving clemency
petitions.
When was the last execution carried out in India?
The last execution to take place in India was in February 2013, the hanging of Afzal Guru
who was convicted of plotting the 2001 attack on Indias Parliament. 26/11 terrorist Ajmal
Kasab was hanged in November 2012. Prior to these, the last execution was in 2004, when
Dhananjoy Chatterjee was executed for the murder and rape of a 14-year old girl. This was
the countrys first execution since 1995, when Auto Shankar, who was convicted of six
murders in Tamil Nadu, was executed. Therefore, while the courts sentenced more than 1,400
persons to death between 2001 to 2011, only four have been hanged since 1995. Many of
these cases are under the consideration of the Supreme Court and the President for clemency.
According to data compiled by the NGO Amnesty International, Indian courts handed down
at least 64 death sentences in 2014, but no executions took place. A report by the Death
Penalty Research Project of the National Law University in Delhi indicated that at least 270
people were on death row after exhausting all remedies available to them under the law.

4)http://www.lawctopus.com/academike/death-penalty-an-overview-ofindian-cases/
4.Death Penalty: An Overview Of Indian Cases
September 2, 2014 by admin Leave a Comment
By Aditi Agarwal, NUALS
Edited By: Death Penalty is a process where a crime so grievous has been committed that the
state condemns the act by sentencing the convicted to death. It is only applied in cases where
the crime is of such nature that it cannot be vitiated without a penalty of death. It has existed
since time immemorial, the first recorded instance being that of Hammurabi in the
18th Century B.C.
In the recent past, however, many western cultures have abolished this practice, considering it
grossly inconsistent with human rights requirements. The U.K. and France have both
completely abolished the system, after various succeeding abolitionist movements. The US,
however, due to a fragmented judiciary, has differing opinions on the issue, varying state-bystate. The Federal US government, however, does use the death penalty, although only in
extraordinary cases.
In India, the Bachan Singh case laid down the extraordinary circumstances which define
whether or not death sentence was required in the said case. The grievousness of the cause of
murder in itself is not a sufficient grounds to pass capital punishment. The writer has gone
into detail on the various technicalities and safeguards applied before awarding a death
sentence.
Introduction
Death Penalty can be defined as the lawful infliction of death as a punishment for a wrongful
act. In this paper the scope and validity of death penalty in the context of the Indian judiciary
shall be discussed. Firstly we shall look at the advent of death as a punishment for crimes and
how it has evolved in several other judicial systems all over the world. In this context the
common arguments relating to death penalty put forwards by the abolitionists and
retentionists shall be discussed. Then importance has been given to the Indian context and

the various statutes in India dealing with Capital Punishment. This shall be followed by a
brief of some of the most famous and important cases relating to the subject matter decided
by the Indian Courts. The aim of this paper is to give the readers a clear understanding of the
position of the Indian courts in regard with awarding of capital punishment.
What is Death Penalty?
The death penalty is a legal process whereby a person is put to death by the state as a
punishment for a crime. The judicial decree that someone be punished in this manner is a
death sentence, while the actual process of killing the person is anexecution. There has been a
global trend towards the abolition of capital punishment; however, India has not adopted this
position. What makes this form of punishment different from the others is the obvious
element of irreversibility attached to it. A man once executed for a crime can never be
brought back to life. So if any error has crept in while deciding on a matter, this error cannot
be rectified at a later stage.
The death penalty has existed since antiquity. Anthropologists even claim that the drawings at
Vallaloid by prehistoric cave dwellers show an execution. Death penalty may have its origins
in human sacrifices. Capital punishment can be traced back as early as 1750 B.C, in the lex
talionis of the Code of Hammurabi. The Bible too set death as punishment for crimes such as
magic, violation of the Sabbath, blasphemy, adultery, homosexuality, bestiality, incest and
rape. Plato too discussed the scope of death penalty at length in his Laws.
During the middle ages, the death penalty was characterised by particular brutality. Famous
thinkers like Grotius, Thomas Hobbes and John Locke were also supporters of this form of
punishment. The trials by fire, water etc followed during the 1600s can be said to be a form
of capital punishment.
The modern abolitionist movement started with the works[i] of great Italian criminologist,
Cesare Beccaria which convinced many statesmen of the uselessness and inhumanity of
capital punishment.[ii] During the discussions on adoption of French Penal Code in 1791
there was vigorous debate for abolishment of death penalty. In the 19 th century the abolitionist
movement grew with eminent jurists like Bentham and Romilly supporting such ideas.
Michigan in 1846 became the first state to abolish capital punishment followed by Venezuela
and Portugal in 1867. As a goal for civilized nations, abolition of death penalty was promoted
during the drafting of the Universal Declaration of Human Rights in 1948.

Capital Punishment is currently practiced in 58 countries, including USA, Japan, Belarus,


Cuba, and Singapore. As of 2012 there are 97 abolitionist states. According to Amnesty
International the worst offenders in 2012 were China (1000+ deaths), Iran (314+) and Iraq
(129+). The organisation confirmed 1, 722 death sentences and 682 executions (excluding
China) in 2012. In Europe however it is now a virtually extinct phenomenon with the
exception of the Republic of Belarus. According to a study about two-thirds of the countries
have either abolished capital punishment outright or have not actually executed any death
sentences in the last ten years.[iii]
Position in the United States
Capital punishment was suspended in the United States from 1972 through 1976 primarily as
a result of the Supreme Courts decision in Furman v.Georgia[iv]. In this case, the court
found that the death penalty was being imposed in an unconstitutional manner, on the
grounds of cruel and unusual punishment in violation of the Eighth Amendment to the United
States Constitution. The Supreme Court has never ruled the death penalty to be per
se unconstitutional. In Furman V. Georgia however Justice Stewart took the view that death
penalty serves a deterrent as well as retributive purpose.[v]
The Court in Gregg v. Georgia[vi] upheld a procedure in which the trial of capital crimes was
bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury
decides the defendants guilt; if the defendant is innocent or otherwise not convicted of firstdegree murder, the death penalty will not be imposed. At the second hearing, the jury
determines whether certain statutory aggravating factors exist, and whether any mitigating
factors exist, and, in many jurisdictions, weigh the aggravating and mitigating factors in
assessing the ultimate penalty either death or life in prison, either with or without parole.
Position in the United Kingdom
Around the 17th century Death penalties were one of the most commonly meted out
punishments in the UK. The common law in those days was called Bloody Code[vii]
because at one point there were up to 220 offences which were punishable by death,
including being in the company of Gypsies for one month, strong evidence of malice in a
child aged 714 years of age and blacking the face or using a disguise whilst committing a
crime. The Murder (Abolition of Death Penalty) Act 1965 suspended the death penalty in
England, Wales and Scotland (but not in Northern Ireland) for murder for a period of five
years, and substituted a mandatory sentence of life imprisonment. After this even though
death penalty still remained part of the legal framework it was implemented in few
exceptional cases only. Finally on 20th May 1998 the House of Commons voted to ratify the

6th Protocol of the European Convention on Human Rights prohibiting capital punishment
except in time of war or imminent threat of war. In October 2003 the UK prohibited capital
punishment in all cases. The last execution in England was carried out in August 1964.[viii]
Allen and Evans were both tried together at Manchester Crown Court in June 1964, for the
capital murder of John West (murder in the course or furtherance of theft). During the trial,
the judge posed the question to the jury of whether it was Allen or Evans who committed the
murder. The jury found both men guilty of murder, and they were both sentenced to death by
hanging. After that the country has not seen any case of execution though some people were
awarded the death sentence they were all reprieved at a later stage[ix]. Thus, we see the
transition in common law from aggressively handing out death sentences to completely
abolishing capital punishment.
Position in India
In India Article 21 of the Constitution titled Protection of life and personal liberty says:
No person shall be deprived of his life or personal liberty except as according to procedure
established by law.
This article of the Constitution enshrines the Right to Life guaranteed to every individual in
India. The constitutional validity of capital punishment has been called into question several
times in the India judiciary and this paper shall try to examine those several occasions.
The Indian Penal Code, 1860 awards death sentence as a punishment for various offences.
Some of these capital offences under the IPC are punishment for criminal conspiracy (s.
120B), murder (s. 302), waging or attempting to wage war against the Government of India
(s. 121), abetment of mutiny (s.132), dacoity with murder (s. 396) and others. Apart from this
there are provisions for death penalty in various legislations like the NDPS Act, anti
terrorism laws etc-.
The Indian Constitution has provision for clemency of capital punishment by the President.
Once the Sessions Court has awarded death sentence to a convict in a case, it must be
confirmed by the High Court. Even after that the convict may prefer an appeal to the
Supreme Court. If this also fails the accused has the option of submitting a mercy petition to
the President of India and the Governor of the State. Detailed instructions regarding
procedure to be observed by the states for dealing with petitions for mercy from or on behalf
of convicts under sentence of death and with appeals to the Supreme Court and applications

for special leave to appeal to that court by such convicts are laid down by the Ministry of
Home Affairs.
In this respect we may refer to Article 72 of the Constitution of India which says:
Power of President to grant pardons, etc, and to suspend, remit or commute sentences in
certain cases(1) The President shall have the power to grant pardons, reprieves, respites or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence
(a) in all cases where the punishment or sentence is by a court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to
a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death
(2) Nothing in sub clause (a) of Clause (1) shall affect the power to suspend, remit or
commute a sentence of death exercisable by the Governor of a State under any law for the
time being in force.
Similarly the pardoning powers of the Governor of a State are mentioned in Article 161.
These provisions ensure that the accused is sentenced to death only after there is no room for
error left. The culprit gets multiple avenues to appeal and now life imprisonment has become
the rule while death sentence is the exception.
Discussion of Landmark cases dealing with Death Penalty in India
In the case of Jagmohan Singh v. State of U.P[x] which was the first case dealing with the
question of constitutional validity of capital punishment in India. The counsel for the
appellant in this case put forward three arguments which invalidate section 302 of the IPC.
Firstly that execution takes away all the fundamental rights guaranteed under Clauses (a) to
(g) of Sub-clause (1) of Article 19 and, therefore the law with regard to capital sentence is
unreasonable and not in the interest of the general public. Secondly that the discretion
invested in the Judges to impose capital punishment is not based on any standards or policy
required by the Legislature for imposing capital punishment in preference to imprisonment
for life. Thirdly, he contended, the uncontrolled and unguided discretion in the Judges to

impose capital punishment or imprisonment for life is hit by Article 14 of the Constitution
because two persons found guilty of murder on similar facts are liable to be treated differently
one forfeiting his life and the other suffering merely a sentence of life imprisonment. Lastly it
was contended that the provisions of the law do not provide a procedure for trial of factors
and circumstances crucial for making the choice between the capital penalty and
imprisonment for life. The trial under the Criminal Procedure Code is limited to the question
of guilt. In the absence of any procedure established by law in the matter of sentence, the
protection given by Article 21 of the Constitution was violated and hence for that reason also
the sentence of death is unconstitutional.
After looking into the arguments the five judge bench upheld the constitutionality of death
penalty and held that deprivation of life is constitutionally permissible for being recognised
as a permissible punishment by the drafters of our Constitution.
Law Commission Report No discussion on the validity of capital punishment in India can be complete without going
through the fine details of the Law Commission Report, which was relied upon by the judges
in the case of Jagmohan too. The Law Commission of India, after making an intensive and
extensive study of the subject of death penalty in India, published and submitted its 36th
Report in 1967 to the Government. After examining, a wealth of evidential material and
considering the arguments for and against its retention, that high-powered body summed up
its conclusions at page 354 of its Report, as follows:
The issue of abolition or retention has to be decided on a balancing of the various arguments
for and against retention. No single argument for abolition or retention can decide the issue.
In arriving at any conclusion on the subject, the need for protecting society in general and
individual human beings must be borne in mind.
It is difficult to rule out the validity of the strength behind many of the arguments for
abolition nor does the Commission treat lightly the argument based on the irrevocability of
the sentence of death, the need for a modern approach, the severity of capital punishment and
the strong feeling shown by certain sections of public opinion in stressing deeper questions of
human values.
Having regard, however, to the conditions in India, to the variety of the social upbringing of
its inhabitants, to the disparity in the level of morality and education in the country, to the
vastness of its area, to diversity of its population and to the paramount need for maintaining

law and order in the country at the present juncture, India cannot risk the experiment of
abolition of capital punishment.[xi]
In the case of Ediga Anamma v. State of Andhra Pradesh[xii] which followed Justice Krishna
Iyer commuted the death sentence to life imprisonment by citing factors like age, gender,
socio-economic background and psychic compulsions of the accused. It was laid out in this
case that apart from looking into the details of the crime and deciding based on the extent of
violence committed the judges should also look into the criminal and his condition or
haplessness while committing the crime. Justice Krishna Iyer in support of the life
imprisonment over capital punishment said:
A legal policy on life or death cannot be left for ad hoc mood or individual predilection and
so we have sought to objectify to the extent possible, abandoning retributive ruthlessness,
amending the deterrent creed and accenting the trend against the extreme and irrevocable
penalty of putting out life.[xiii]
These cases were followed by three important developments. Section 354 (3) was added to
the Code of Criminal Procedure, 1973 which clearly laid down that in conviction for cases
which are punishable either with death or life imprisonment, the judgment shall state the
reasons for award of the punishment and in the event that it is death sentence mention the
special reasons for that decision. This made the lesser punishment the rule and death penalty
the exception as opposed to the previous situation. Also in 1979 India ratified the
International Covenant on Civil and Political Rights (ICCPR).
Article 6(2) of the ICCPR says: In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious crimes in accordance with the
law in force at the time of the commission of the crime and not contrary to the provisions of
the present Covenant and to the Convention on the Prevention and Punishment of the Crime
of Genocide.
Sub- section 5 of the same Article says that no sentence of death shall be imposed on anyone
under the age of 18 years and none can be carried out on pregnant women. Thus, India was
now committed to progressive abolition of death penalty. Another major development was the
Maneka Gandhi case[xiv] which held that every law of punitive detention must pass the
reasonability test obtained from the collective reading of the Golden Triangle i.e. Articles
14, 19 and 21.

Justice Krishna Iyer reiterated a similar opinion in the case of Rajendra Prasad v. State of
Uttar Pradesh.[xv] However Justice Sen in his dissenting judgement cited his concern over
the wide scope for interpretation of the Section 302 of the IPC and Section 354 of the CrPC
left to the judiciary. He said in this case It is not necessary for this Court to attempt to
analyse the substantive merits of the cases for and against the death penalty for murder. It is
in my view, essentially, a question for the Parliament to resolve and not for this Court to
decide.[xvi]
The case of Bachan Singh v State of Punjab[xvii] again brought up the question of validity of
capital punishment. This was the case that gave birth to the rarest of the rare cases doctrine
and still remains one of the most important cases in this subject. The 5 judge bench said :
A real and abiding concern for the dignity of human life postulates resistance to taking a life
through law instrumentality. That ought not to be done except in rarest of rare cases where
the alternative opinion is unquestionably foreclosed.[xviii]
In this case not only the constitutional validity of death penalty but also the validity of
Section 354(3) on the grounds that it gives unguided discretion to the Court and allows death
sentence to be arbitrarily awarded was questioned. The majority were of the view that neither
Article 19 nor 21 is violated by capital punishment. The fact that our Constitution makers
were fully cognizant of the fact that death sentence may be given in certain extreme crimes is
proven by the existence of provisions for appeal (Article 134) and Pardoning power of the
President (Article 72). It was also laid down that for ascertaining the existence or absence of
special reasons in a case, the Court must pay due regard to both the criminal and the crime
equally. The aggravating or mitigating factors need to be looked into. Things like age, mental
condition, age of the accused and if the act was done under the command of a superior must
be taken into consideration while deciding the punishment.
Justice Bhagwati alone dissented in this case but the issue was that his judgement came only
2 whole years after the verdict had been declared. So, some of the essential arguments that he
made against death penalty never came to the limelight. According to him Unfettered and
uncharted discretion conferred on any authority, even if it be the judiciary, throws the door
open for arbitrariness, for after all a judge does not cease to be a human being subject to
human limitations when he puts on the judicial robe and the nature of the judicial process
being what it is, it cannot be entirely free from judicial subjectivism. [xix]And this very
principle he believed clearly violates Article 14 which guarantees equality before law. Also it

violates Article 19 and 21 as there are no procedural as to when the state has the power to
take away the life and personal liberties of a person in such cases. Justice Bhagwati not only
talks about the brutality and indiscretion that accompanies death penalty but also with logic
and statistical data shows us how capital punishment doesnt succeed in attaining any of the
three penological goals( Reformation, retribution and deterrence). It is obviously impossible
to reform a person who is dead and the retribution theory also does not hold ground according
to him such a punishment is based purely on emotions of vengeance and revenge which
should be curtailed in a civilised society. Last is the Deterrence theory, which most
retentionists assume is the most crucial reason for not abolishing capital punishment. They
believe that legally sanctioned death of the culprit would dissuade others from doing the
same. However Justice Bhagwati cites various eminent criminologists and statistics of other
countries which prove that there is no increase in the crime rate even when capital
punishment is abolished and no decrease when the court awards death sentence for a crime.
Mithu v. State of Punjab[xx] was another case where the mandatory death sentence under
Section 303 was declared unconstitutional and hence invalid. The section was based on the
logic that any criminal who has been convicted for life and still can kill someone is too cold
blooded and beyond reformation, to be allowed to live. The judges in Mithus case held that
Section 303 violated the Articles 14 and 21 of our Constitution and so it was deleted from the
IPC.
In the subsequent cases of T.V Vatheeswaram v. State of Tamil Nadu[xxi] and Sher
Singh v.State of Punjab[xxii] the Supreme Court was faced with the question of delay in
execution of the death sentence and whether a prolonged delay was reason enough to
commute the death sentence to life imprisonment. While the first case laid down that such a
situation gave reason enough for the convict to invoke section 21 and get the lesser
punishment, the majority in the latter case differed on this point.
In the case of Macchi Singh v. State of Punjab[xxiii] in order to further elucidate the rarest
of the rare rule, situations where the application of death sentence could be justified Justice
M.P Thakkar gave the following illustrations:
I Manner of Commission of Murder
When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or
dastardly manner so as to arouse intense and extreme indignation of the community. For
instance,

(i) When the house of the victim is set aflame with the end in view to roast him alive in the
house. (ii) When the victim is subjected to inhuman acts of torture or cruelty in order to bring
about his or her death. (iii) When the body of the victim is cut into pieces or his body is
dismembered in a fiendish manner.[xxiv]
II Motive for Commission of murder
When the murder is committed for a motive which evinces total depravity and meanness. For
instance when (a) a hired assassin commits murder for the sake of money or reward (2) a cold
blooded murder is committed with a deliberate design in order to inherit property or to gain
control over property of a ward or a person under the control of the murderer or vis-a-vis
whom the murderer is in a dominating position or in a position of trust, (c) a murder is
committed in the course for betrayal of the motherland.[xxv]
III Anti Social or Socially abhorrent nature of the crime
(a) When murder of a Scheduled Caste or minority community etc., is committed not for
personal reasons but in circumstances which arouse social wrath. For instance when such a
crime is committed in order to terrorize such persons and frighten them into fleeing from a
place or in order to deprive them of, or make them with a view to reverse past injustices and
in order to restore the social balance.
(b) In cases of bride burning and what are known as dowry-deaths or when murder is
committed in order to remarry for the sake of extracting dowry once again or to marry
another woman on account of infatuation.[xxvi]
IV Magnitude of Crime
When the crime is enormous in proportion. For instance when multiple murders say of all or
almost all the members of a family or a large number of persons of a particular caste,
community, or locality, are committed.
V Personality of Victim of murder
When the victim of murder is (a) an innocent child who could not have or has not provided
even an excuse, much less a provocation, for murder, (b) a helpless woman or a person
rendered helpless by old age or infirmity (c) when the victim is a person vis-a-vis whom the
murderer is in a position of domination or trust (d) when the victim is a public figure
generally loved and respected by the community for the services rendered by him and the
murder is committed for political or similar reasons other than personal reasons.[xxvii]

In Allauddin v. State of Bihar[xxviii], Justice Ahmadi said that Where a sentence of severity
is imposed, it is imperative that the Judge should indicate the basis upon which he considers a
sentence of that magnitude justified. Unless there are special reasons, special to the facts of
the particular case, which can be catalogued as justifying a severe punishment the Judge
would not award the death sentence. It may be stated that if a Judge finds that he is unable to
explain with reasonable accuracy the basis for selecting the higher of the two sentences his
choice should fall on the lower sentence.
Kehar Singh v. Union of India[xxix] is the famous case where the assassins of Indira Gandhi
were sentenced to death. Kehar Singh was part of the conspirators who planned the murder
and did not actually commit the act. The court held that even this was enough to fall in the
rarest case criteria. This was a widely controversial decision. Later in State of
Maharashtra v.Sukhdeo Singh[xxx] the judges awarded death sentence to the two persons
accused for the murder of General Vaidya.
Death sentence was awarded to the accused in Laxman Naik v. State of Orissa[xxxi]accused
of sexually assaulting his 7 year old niece. The evidence recorded and the degree of injuries
of the victim according to the judges were sufficient to prove the gross brutality with which
the rape and murder had been committed and hence it was a case fit to fall under the category
of the rarest of rare cases.
Panchhi and Ors. v. State of Uttar Pradesh[xxxii] later held that brutality in the act of
murder is not be the sole criterion while deciding if the crime falls under the rarest of rare
doctrine as laid down by the case of Bachan Singh. In Swamy Shraddhananda @ Murali
Manohar Mishra v. State of Karnataka[xxxiii] the court for the first time identified the
dilemma judges face because the term for life sentence after remission usually was cut down
to 14 years. This was in some cases considered to be grossly inadequate and so the Court held
that in some such cases it can order that the convict shall not be released for the rest of his
life. So it was held that executive clemency doesnt mean that the Court cannot award
imprisonment beyond 14 years.
One of the most recent cases which many abolitionists in India consider to be a major step
towards the possible abolition of death penalties in India is that of Santosh Kumar
Bariyar v.State of Maharashtra[xxxiv]. The bench comprising Justices S.B. Sinha and Cyriac
Joseph ruled that previous judgments of the Court, in which 13 death sentences were
validated, were rendered per incuriam, or in other words were rendered in ignorance of the

law laid down in Bachan Singhs case. In this case the accused along with three others
kidnapped a person and demanded a ransom of Rupees 10 lakhs. Eventually they killed him
and cut his body into pieces and disposed them in different places. In spite of the brutal
execution of the murder the judges were convinced that the mitigating circumstances in this
case were sufficient to exclude it from the bracket of rarest of rare cases. The Court
observed that the accused were not professional criminals with a long past criminal record,
that they did what they did with the sole motive of collecting money. So the Court held that
there is a chance of reform and rehabilitation of the accused and for the sake of that
possibility granted them the lesser sentence of life imprisonment.
These are in brief some of the landmark cases which grappled with the question of death
penalty and other issues stemming from it. India in the recent years has seen a number of high
profile cases with death penalties being carried. In 2012 Indian courts suffered from two
noteworthy embarrassments. Fourteen retired Judges asked for thirteen cases of the death
penalty to be commuted after admitting the original sentence was handed down per incuriam
(out of error or ignorance). In the same year it was revealed that president Pratibha Patil had,
during the course of her five-year term, commuted the sentence of a rapist who had died five
years previously. Events like these are a severe jolt to the judiciary. It was after incidents like
these that the protest against capital punishment gained more momentum. The taking away of
someones life due to the error of judgement of the judiciary is injustice of the most grotesque
kind.
An unofficial eight year tussle came to an end last year when the first of two executions took
place. Mohammad Ajmal Amir Kasab, convicted of involvement in the 2008 Mumbai gun
attack was hung 21st November 2012. Then in February 2013, Muhammad Afzal convicted
of plotting the 2001 attack on Indias Parliament was executed. The quick succession of the
two executions, coupled with the Supreme Courts ruling in regards to capital punishment
earlier this year, has raised the awareness of controversy surrounding Indias penal system.
The verdict of the Delhi rape case was announced recently. The judges awarded death
sentence to the four accused and a 3 year imprisonment to the juvenile. This decision has
reignited the debate on death penalty. The Indian Government had passed an ordinance which
applied the death penalty in cases of rape that leads to death or leaves the victim in a
persistent vegetative state on 3 February 2013, in response to public outcry over the Delhi
gang-rape. A lot of legal scholars believe that hanging of the culprits in this case is not going
to make the country any safer for women or reduce the number of sexual crimes on women.
Additional Sessions Judge Yogesh Khanna while delivering the judgement said that the

incident had evoked nationwide rage and the brutality with which the offence was committed
cannot be ignored. There should be exemplary punishment in view of the unparalleled
brutality with which the victim was gang raped and murdered, as the case falls under the
rarest of rare category. All be given death, the court said while reading out a portion of the
order. On a rather dramatic note the Defence counsel A P Singh said after the verdict was
announced that he will move high court only if no other rape takes place in next two months
after this verdict.
If the country wanted this case to be a deterrent, I will wait for two months to see the crime
scene. If no rape takes place due to death being given in the instant case, I will give in writing
that my clients be hanged, he said.
Indian courts sentenced 1,455 prisoners to death between 2001 and 2011, according to the
National Crime Records Bureau. During the same period, sentences for 4,321 prisoners were
commuted to life imprisonment.
There are 477 people on death row. Many have been there for years. Human rights groups
have been alarmed, however, by the vigour with which President Pranab Mukherjee, who was
sworn into office in July 2012, has acted in clearing the backlog of clemency pleas. He has
rejected 11, confirming the death penalty for 17 people.[xxxv]
Conclusion
In view of the above discussions we can see that Indias thinking on the capital punishment
is still quite muddled up. It is not just a debate of legality and constitutionality of the death
penalty but also the moral and social aspects that are related to this controversial topic that
have lead to extensive confusion in this respect. Keeping away the question of law, the
question of death penalty has to take into considerations factors such as public sentiments on
one hand and tussle with the moral issue of the eye for an eye principle on the other. Also it
is known to us that error in making judgements is only humane and sometimes giving
someone a second chance is like giving them a bullet again because they missed you the first
time.
In the end I would like to end with two suitable quotes which would give the readers two
divisive aspects of death penalty to mull over. The first is one by Bernard Shaw, an Irish
playwright and a co-founder of the London School of Economics:

Criminals do not die by the hands of the law. They die by the hands of other men.
Assassination on the scaffold is the worst form of assassination because there it is invested
with the approval of the society..Murder and capital punishment are not opposites that
cancel one another but similars that breed their kind.
And the second one is by Margaret Thatcher, Prime Minister of the UK (1979 -1990) :
If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of
murderers. If we fail to execute murderers, and doing so would in fact have deterred other
murders, we have allowed the killing of innocent victims. I would much rather risk the
former. This, to me, is not a tough call..All over the country news stories bemoan and hype
the countdown to execution number 1000, but where are the stories regarding the ripple
effect of the heinous crimes that these murderers were executed for committing?
Maybe there is no real right or wrong answer to the issue of capital punishment, or maybe if
there is the society in our country need to develop to a level where the answer becomes clear
to us. Until then what is required is a careful examination of facts and evidence by the
judiciary in every such sensitive case to avoid any possibility of error. Also, India lacks an
authentic statistical database of the number of convicts being sentenced to death and executed
in relation with various other factors which would give us a clearer picture of what needs to
be done ahead.
Edited by Nikhil Variyar
[i] Dei delitti et delle pene
[ii] Cesare Beccaria, On Crimes and Punishments, trans. Henry Paolucci, 1963
[iii] India Gang Rape sentencing : The Death Penalty explained available at
http://www.telegraph.co.uk/news/worldnews/asia/india/10305171/India-gang-rapesentencing-the-death-penalty-explained.html (Last visited on September 18th, 2013)
[iv]Furman v.Georgia , 408 U.S.238 (1972)
[v] Bachan Singh v. State of Punjab , AIR1980SC898
[vi]Gregg v. Georgia, 428 U.S. 153 (1976)

[vii]

Crime

and

Punishment

The

Bloody

Code

available

http://www.nationalarchives.gov.uk/education/candp/punishment/g06/g06cs1.htm

at
Last

st

visited on 21 September, 2013)


[viii] History of Capital Punishment http://www.stephen-stratford.co.uk/capital_hist.htm
( Last visited on 21st September, 2013)
[ix]

Last

Executions

in

the

UK

available

at

http://www.stephen-

stratford.co.uk/last_ones.htm ( Last visited on 21st September, 2013)


[x] Jagmohan Singh v. State of U.P , (1973 1 SCC 20)
[xi] Supra note 5 at p.72
[xii] Ediga Anamma v. State of Andhra Pradesh , AIR 1973 S.C. 774
[xiii] Id. At p. 26
[xiv] Maneka Gandhi v. Union of India, AIR 1978 SC 597
[xv] 1979 AIR 916
[xvi] Id at p. 143
[xvii] Supra note 5
[xviii] Id at p. 207
[xix] Id at p. 271
[xx]Mithu v. State of Punjab, (1980) 2 SCC 684
[xxi] T.V Vatheeswaram v. State of Tamil Nadu, 1983 AIR 361, 1983 SCR (2) 348
[xxii] Sher Singh v. State of Punjab, 1983 AIR 465, 1983 SCR (2) 582
[xxiii] Macchi Singh v. State of Punjab (1983) 3 SCC 470
[xxiv] Id at p. 33

[xxv] Id at p. 34
[xxvi] Id at p. 35
[xxvii] Id at p. 36
[xxviii] Allauddin v. State of Bihar , AIR 1989 SC1456
[xxix]Kehar Singh v. Union of India, (AIR 1962 SC 955)
[xxx] State of Maharashtra v. Sukhdeo Singh , 1992 AIR 2100, 1992 SCR (3) 480
[xxxi] Laxman Naik v. State of Orissa , AIR 1995 SC 1387, (1994) 3 SCC 381
[xxxii]Panchhi and Ors. v. State of Uttar Pradesh, (1998) 7 SCC 177
[xxxiii] AIR 2008 SC 3040
[xxxiv] Santosh Kumar Bariyar v. State of Maharashtra , JT2009(7)SC248
[xxxv]Rape

trial

puts

focus

on

Indias

death

penalty

paradox,

available

http://www.reuters.com/article/2013/09/12/us-india-rape-idUSBRE98B16P20130912
visited on 21st September, 2013)

5)http://aniruddha-constitutionofindia.blogspot.in/2010/05/constitutional-validity-ofdeath.html

at

(Last

5. posted by aniruddha at 8:26 pm

thursday, may 6, 2010


Constitutional Validity of Death Penalty
The provision of death penalty as an alternative punishment for murder under s. 302, IPC was
challenged as constitutionally invalid being violate of Arts. 14, 19 and 21 of the Constitution
in a series of cases. It was contended in Jagmohan Singh v. State of U.P. that the
constitutional validity of death sentence has to be tested with reference to Arts. 14 and 19
besides Art. 21 of the Constitution as the right to life is fundamental to the enjoyment of all
these freedoms as contained in Art. 19 of the Constitution.
It was further contended that the Code of Criminal Procedure prescribed the procedure of
finding guilt of an accused but regarding the sentence to be awarded under s. 302, IPC the
unguided and uncontrolled discretion has been left to the Judge to decide the sentence to be
awarded. The Supreme Court held that the death sentence as an alternative punishment under
s. 302, IPC is not unreasonable and it is in the public interest and the procedural safeguard
provided to the accused under the Code of Criminal Procedure is not unreasonable leaving
the discretion with the judge to sentence an accused, convicted for murder either to death or
life imprisonment Death sentence as an alternative punishment for life was held valid.
Though the court did not accept the contention that the validity of the sentence to death has to
be tested in the light of Arts. 14 and 10 of the Constitution. But in Rajendra Prasad v. State of
U.P. the court accepted the proposition that the validity of the death sentence can be tested
with reference to Arts. 14, 19 and 21 of the Constitution. The Supreme Court suggested that
in exceptional circumstances death sentence should be imposed only when public interest,
social defence and public order would warrant. Such extreme penalty should be imposed in
extreme circumstances. The court in Barchan Singh v. State of Punjab upheld that
constitutional validity of death sentence. The court reasoned that penal law does not attract
Art. 19(1) of the Constitution. If the impact of the law on nay of the rights under Art. 19(1) is
merely incidental, indirect, remote or collateral, Art. 19 would not be available for testing its
validity.
Accordingly, the court held that s. 302, IPC for its validity would not require to qualify the
test of Art. 19. The procedure provided in the Code of Criminal Procedure for imposing
capital punishment for murder cannot be said to be unfair, unreasonable and unjust. But
Justice Bhagwati in his dissenting judgment held that s. 302, IPC and s. 354(3), Cr PC
violation of Arts. 14 and 21 as these provisions confers unguided power on the court which
irrational and arbitrary.
Thus, death sentence should be imposed in the rarest of the rare case. The Supreme Court in
Machhi Sing v State of Punjab laid down the broad outlines of the circumstances when death
sentence should be imposed. It should be considered whether there is something uncommon
about the crime and the compelling circumstances for imposing death sentence after giving
maximum weight age of the mitigating circumstances which is favour of the accused.

Jumman Kahn was facing the gallows on being sentenced to death for having brutally raped
and strangulated to death a six year old girl named Sakina. The convict challenged the death
sentence and its constitutionality.It was argued that death penalty is not only outmoded,
unreasonable, cruel and unusual punishment but also defies the dignity of the individual and
the issue needs reconsideration which stands like sentinel over human misery, degradation
and oppression. The Supreme Court while endorsing its earlier view as to the constitutionality
of death sentence held that the failure to impose death sentence is such grave cases here it is a
crime against the society, particularly in case of murders with extreme brutality will bring to
naught the sentence of death penalty provided by s. 302 of IPC. The only punishment which
the convict deserves for having committed the reprehensible and gruesome murder of the
innocent child to satisfy his lust is nothing but death as a measure of social necessity and also
a means of deterring other potential offenders.
The Supreme Court in earlier case Banchan Singh v. State Punjab upheld the constitutional
validity of imposition of death sentence as an alternative to life imprisonment and it was
further that it is not violate of Arts. 14 and 21 of the Constitution. Chief Justice Chandrachud
expressing the view of the three Judges of the Supreme Court in Sher Singh v State of
Punjabheld that death sentence is constitutionally valid and permissible within the constrains
of the rule in Bachan Singh (supra). This has to be accepted as the law of the land. The
decisions rendered by this court after full debate has to be accepted without mental
reservation until they are set aside.
The challenge touching the constitutionality of the death sentence also surfaced in Triveniben
v State of Gujarat and in Allauddins case and the Supreme Court asserted affirmatively that
the Constitution does not prohibit the death penalty.
It is in the rare cases, the legislature in its wisdom, considered it necessary impose the
extreme punishment of death to deter others and to protect the society. The choice of sentence
is left with the rider that the judge may visit the convict with extreme punishment provided
there exist special reasons for doing so. The provision of Art. 302, IPC is consistent with the
Constitutional Provision of Art. 21 which enjoins that personal liberty or life of an individual
shall not be taken except according to the procedure established by law. Whether death
penalty violates Art. 14, 19, and 21 of the Constitution came up for consideration before the
Supreme Court in Bachan Singh v. State of Punjab and the court answered the contention in
the negative.
In the face of the statutory provision in cl. (3) of s. 354 of the Cr. PC requiring giving of
special reason while imposing death penalty which is consistent with Art. 21 of the
Constitution which enjoins that the personal liberty or life of an individual shall not be taken
except according to the procedure established by law, the extreme plea of death in no case
cannot be countenanced and death penalty cannot be said to be violate of Art. 21 of the
Constitution. Section 302, IPC casts a heavy duty on the court to choose between death
sentence and imprisonment for life and court must show high degree of concern and

sensitiveness in the choice of sentence. It was held in Allauddin Mian v. State of Bihar that
special reason in s. 354, Cr. PC should be sufficient safe guard against arbitrary imposition of
extreme penalty. Where a sentence of severity is imposed, it is imperative that the Judge
should indicate the basis upon which he considered the sentence of that magnitude justified.

6) http://cafedissensus.com/2014/01/01/indian-judiciary-and-the-issue-of-capital-punishment/

6. Indian Judiciary and the Issue of Capital Punishment

by Caf Dissensus on January 1, 2014


By Sujato Bhadra
Let us begin this brief deliberation with some admitted facts and information in respect to the issue of
death penalty in India.
1. Like most of countries (including countries where death penalty as a form of judicial punishment is
abolished), in India the retentionists discourse (retributive and deterrent value concept, public
conscience and demand, cultural diversity, etc.) continues to dominate public opinion.
2. Being emboldened by this public perception, the legislative wisdom ruling and opposition alike
has expanded the scope of capital punishment either by amending laws or by enacting new laws to
provide this punishment in certain cases of rape and other serious crimes, like terrorism etc.
3. The culture of vengeance and violence is prevailing in Indian society and the Indian State continues
to be very violent and aggressive. Archaic concept of Roman law life for life, eye for eye has a
strong grip over the people of India. Hence, despite the historical fact that India has a long tradition
of ahimsa in a religion like Buddhism, and despite the position of the Father of the Indian nation,
Mahatma Gandhis and others against the application of death penalty and practice of nonviolence,
the arguments for abolition of death penalty has , till today, failed to gain much ground on Indian soil.
4. Although India is a signatory to the International Covenant of Civil and political Rights (1966),
and, therefore, is committed to phase out the application of death penalty, India as we have already
mentioned, expanded its scope under various pretexts. It is pertinent to note, way back in 1997, India
abstained when the Commission on Human Rights of United nations passed a resolution calling for an
end to judicial executions in the world.
5. Historically, in British colonial India, death penalty was the rule, life imprisonment was the
exception. In post- colonial India, after the relevant reforms in Indian criminal laws in 1955, life
imprisonment became the rule, death penalty became the exception; reasoning have to be provided by
the judge of the trial court, as required by section 354(3) of Cr.P.C, as amended in 1973.
Judicial structure
In matter of murder or other serious crimes, if the death penalty is awarded by the trial court/sessions
court, then even if the convict refuses or fails to appeal against this sentence, the appeal will
mandatorily be made by the State before the division bench of High Court of the concerned province,
as stipulated in section 366 of Criminal Procedure Code. Final appeal court is the Supreme Court of

India, where appeal has to be made for the convicted in the form of Special Leave Petition [SLP) for
full hearing. There is one exception to this rule: if the lower court declares the accused persons as not
guilty, and in event of appeal, if the High Court reversed the judgment of the lower court, then there
will be an automatic appeal by the State to the Supreme Court, as stipulated in section 379.
Against the pronouncements by the apex court of capital punishment, the convict or the person on
death row is constitutionally entitled to make an appeal for mercy to the President or to the Governor
as the case may be; upon rejection, the convict has a last legal right to ask for judicial review of the
rejection of clemency petition. But this was shamelessly denied to Maqbool Butt in 1984, who was
tried by a British colonial Ordinance The Enemy Agents ordinance, 1943 and recently to Afzal
Guru, the prime convict of parliament attack.
Constitutional Validity of the Death Penalty
The study of death penalty was once undertaken by Law Commission of India as far back in 1967 and
in its 35th report, it justified for retention of the death penalty. The view was concurred by the five
judges of the Supreme Court of India, when the matter of constitutional validity came for hearing.
Whether the right to life is an inherent right and the State must not be given the power to extinguish
any life irrespective of his or her crime and whether this is violative of article 21 and article 14
since two persons found guilty of murder could be treated differently, the said judicial bench in the
well known case , Jagmohan Singh vs State of U. P (1993), refused to be persuaded by the decision
of the U.S. Supreme Court in Forman vs. Georgia in this regard, and argued for the retention of
death penalty. The judges cited different social conditions and low intellectual level of the public as
grounds of argument.
In 1980, there was a renewed challenge in Bachan Singh v. State of Punjab to the constitutional
validity of the capital punishment. Political situation in India in the post-emergency period (1977
onwards) was different; liberal democratic atmosphere was evident and respect for rights of citizens
became the cry of the day. Judicial activism was accepted and heavily appreciated. Yet, even in these
developments, the four judges out of five judges (Justice P.N. Bhagwati being the sole dissenting
voice) upheld the constitutional validity of the death penalty, but severely limited the scope of this
punishment. The majority acknowledged the human rights jurisprudence and developments in
international laws in this regard. They held , inter-alia: A real and abiding concern for the dignity of
human life postulates resistance to taking a life through laws instrumentality. That ought not to

have done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
[(1980) 2 SCC at751).
And till today, this remains the unchanged judicial position in India. This judgment undoubtedly
affirmed again that the death penalty was the exception, not the rule. Subsequently, the Supreme
Court in another famous case, Machhi Singh v. State of Punjab[(1983)3 SCC470], directs the trial
court to draw up a balance sheet of the aggravating and mitigating circumstances and opt for the
maximum punishment and considering all these factors, if the judge then finds no other alternative,
then he can hand down the death penalty.
Problems relating to application of rarest of rare cases
Justice P. N. Bhagwati in his long, erudite dissenting judgment has refuted all the arguments
advanced by his learned co-judges and this judgment is still the silver lining in Indian Judiciary.
Human Rights movement in India has justifiably questioned such criteria for pronouncing death
sentence. How to judge rarest of rare cases? In terms of plan and conspiracy? Or, in terms of
execution of the capital crime? Or, in terms of method of destruction of evidence of the crime? There
is no definition, no explanation to this end.
Various studies reveal that even the exercise of balancing the aggravating and mitigating
circumstances is rarely performed.
Third, as no uniform criteria could be laid down, and as no objective evaluation of legislative
thresholds exists, the question of death penalty is not free from the subjective vagaries of the judges.
One erudite judge, Mr S.B. Sinha (now retired), raised this difficulty in testing the criteria of rarest of
rare cases: What would constitute a rarest of rare must be determined in the fact situation defining in
each case. We have also noticed here different criteria have been adopted by different benches of this
court, although the offences are similar in nature No sentencing policy in clear cut terms has been
evolved by this court. Hence, we can safely observe that this lack of systematic principles governing
sentencing gives birth to the system of judicial whims vis--vis capital punishment. A Research
scholar, A.R. Blackshield, who examined seventy judgments of the Indian Supreme Court between
1972 and 1976 in which judges had to decide on whether to uphold death penalty or commute to life
imprisonment, concluded that arbitrariness and uneven incidence are inherent and inevitable in the
system of capital punishment in contemporary India.

Extensive study by Amnesty International and PUCL (Tamil Nadu) on supreme Court judgments in
death cases between 1950- 2006, has shown conclusively that it is the judges subjective discretion
that eventually decides the fate of an accused. They never consider the issue of

death penalty

as human rights issue, beyond the pale of law, (save and except few judges like Bhagwati, Krishna
Iyer, A.P. Shah). As a result, we often find that it is largely cases involving the poor and the downtrodden, who are victims of class bias, which culminate in an imposition of death penalty. Here one
hardly finds a rich or affluent person going to the gallows. Therefore, the death penalty, as it is used
now, is discriminatory. It strikes against the disadvantaged section of the society, showing its arbitrary
and capricious nature thus rendering it unconstitutional. Not to mention, how many innocent were
victims of Indian judicial murders. The former President of India, APJ Kalam, suggested the
Government of India to launch an open debate over the issue of retention of death penalty in Indian
statute books. It went unheeded. He wrote, in his Turning Points, We all are the creatures of God. I
am not sure a human system or a human being is competent to take away a life based on artificial and
created evidence (134) His observations were based on his study of social-economic background of
the convicts whose clemency petitions were pending before him.

7) https://lexkhoj.wordpress.com/2015/08/22/constitutional-validity-of-death-penalty/

7. Constitutional Validity of Death Penalty


The Indian penal code provides capital punishment for heinous crimes. There are many
scholars some of them are in favour of the death penalty and some are against the death
penalty. In many countries there has been a demand for abolition of the death penalty and in
some this demand has been accepted and death penalty has been abolished. In India too, there
are many social workers including lawyer and judges who have voiced this demand.
In this essay I will explain the death penalty, sections of IPC in respects of death penalty,
death penalty should be banned or not?, reasons for abolition constitutional validity of death
penalty etc .
INTRODUCTION:- Capital punishment or the death penalty is a legal process whereby a
person is put to death by the state as a punishment for a crime. The judicial decree that
someone be punished in this manner is a death sentence, while the actual process of killing
the person is an execution. Crimes that can result in a death penalty are known as capital
crimes or capital offences. In India death penalty is discretionary rather than mandatory in all
capital offences except in case of murder. Section 303 of IPC. Punishment for murder by lifeconvict. Whoever, being under sentence of [imprisonment for life], commits murder, shall be
punished
with
death.
The care of human life and happiness, and not their destruction, is the first and only object
of
good
government.
-Thomas
Jefferson
Ronald Chapman, a prominent West Palm Beach lawyer and graduate of The University of
Iowa College of Law, expressed great opposition towards the death penalty when interviewed
by Jerry Jolly. Mr. Chapman has defended numerous clients on trial for first-degree murder
and face the possibility of receiving death. When asked if he believed there was an equally
effective but less controversial alternative to the death penalty Mr. Chapman suggested that
life in prison without the possibility of parole does the job just as well. The issue of death
penalty has been debated, discussed, studied from a prolonged time but till now no
conclusion can be drawn about the retention or abolishment of the provision. 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. Various countries have
different outlook towards crime in different ways. In Arab countries they
choose the retributive punishment of an eye for an eye others have deterrent punishment.
Of late there has been a shift towards restorative and reformist approaches to punishment,
including in India. In many countries the death penalty is dropped and is replaced by life
imprisonment. According to Amnesty International (September 2012 Report), 51% of the
world countries have abolished death penalty in toto while 90% of the countries have
abolished it in case of non- severe crimes. According to my opinion death penalty should

abolish because it violates article 19 of constitution of India. Criminals also have a right to
life. Another thing is that it gives a chance to reform criminals.
DEATH
PENALTY
SHOULD
BE BANNED OR
NOT?
:
Death penalty should be abolished though it is legal but it violates article 19 (right to life) of
Indian constitution. Killing a person is wrong but killing another person in respect of
punishment for that murder is also wrong, so we can say that two wrong cannot convert a
wrong into a right. Many people have a argument that accused of heinous crime dont have a
right to live, so they should be hanged till death but my opinion is that they should get a
chance to reform. If criminal get death penalty for his crime then how he can reform?.
Death penalty is in practice continuously then also crimes are increasing rapidly. Criminals
dont have fear of death so there should be any other punishment for them.
CONSTITUTIONAL VALIDITY OF THE DEATH PENALTY:- The constitutional validity
of the death penalty was challenged from time to time in numerous cases starting from
Jagmohan Singh v. State of U.P where the SC rejected the argument that the death penalty is
the violation of the right to life which is guaranteed under article 19 of the Indian
constitution. In another case Rajendra Prasad v. State of UP, Justice Krishna Iyer has
empathetically stressed that death penalty is violative of articles 14, 19 and 21. But a year
later in the landmark case of Bachan Singh v. State of Punjab, by a majority of 4 to 1
(Bhagwati J.dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad.
It expressed the view that death penalty, as an alternative punishment for murder is not
unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India,
because the public order contemplated by clauses (2) to (4) of Article 19 is different from
law and order and also enunciated the principle of awarding death penalty only in the
rarest of rare cases. The Supreme Court in Machhi Singh v State of Punjab laid down the
broad outlines of the circumstances when death sentence should be imposed.
Similarly in various other cases the Supreme Court has given its views on death penalty and
on its constitutional validity. But the punishment of death penalty is still used in India, some
time back the death penalty was given to Mohammad Ajmal Kasab. The Pakistani gunman
convicted in 2008 Mumbai attacks was sentenced to death by hanging and after a long
discussion, politics and debate was finally hanged on 21 November 2012. Next in the row is
Afzal Guru, convicted in 2001 Parliamentary attacks was also hanged after a huge political
discussion on 9 February 2013.The next convict in the death row is Devendra Pal Singh
Bhullar, convict of 1993 car bombing will be hanged in the coming days as his mercy petition
was rejected by the Supreme Court by holding that in terror crime cases pleas of delay in
execution of death sentence cannot be a mitigating factor.

REASON FOR ABOLITION OF DEATH PENALTY: The issue of death penalty has been
debated, discussed, studied from a prolonged time but till now no conclusion can be drawn
about the retention or abolishment of the provision. 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. India is one of the 78 retentionist countries
which have retained death penalty on the ground that it will be awarded only in the rarest of
rare cases and for special reason. Though what constitutes rarest of rare case or special
reasons has not been answered either by the legislature or by the supreme court. According
to my opinion death penalty should abolish, because it violates article 19 of constitution of
India. Criminals also have right to life. They should get a chance to reform. It is against
human rights, we all are equal. No one is the owner of one anothers life. Kill the people that
are guilty for what they have done, doesnt make the world better. Death penalty will not
decrease the rate of murder or commit. Teach them to be a good person. Use education to
teach them, that doing wrong things are not good for themselves and the others. Let every
person that face death penalty have a chance to become a good person and normal citizen.
Statistics show that death penalty has not been very effective and has not caused a reduction
in crime rate. The recent research in 2009 has proved that the death penalty only reduced
crime in a short period, but in the long run crime rate is back to normal again. Sometimes
homicide also occurred because of a short temper rather than planning ahead. Therefore these
criminals probably wont consider the legal consequences that would come after their action.
Killing a man is a wrong and two wrong in a sequence cant make a right. Nobody is afraid of
the death penalty so it is ineffective. It kills people instead of allowing them to pay for their
crime. One moral logic is there that murderers are animal and human being are expected to
treat even animal in a human manner. When dog bites us, we dont bite him back. Do we?
CONCLUSION:- Death penalty has already been abolished In 139 countries and India also
should join the majority of nations that have abolished the death penalty. Death penalty is
against the human rights and it violates the article 19 of constitution of India. There can be
various alternative methods for punishing the convict such as rigorous life imprisonment
without any possibility of parole and no protection of good behaviour relief which is provided
for in the prison manual.

8) http://www.legalserviceindia.com/articles/dsen.htm
8. Death Penalty
Death penalty has been a mode of punishment since time immemorial. The arguments for and
against has not changed much over the years. At this point of time when the issue [whether
capital punishment must be abolished or not] is still raging, it will be appropriate to remind
ourselves as to how the legislatures and the apex Court have dealt with this issue every time it
has come up before them.

Death Sentence Under Different Statutes


Indian Criminal jurisprudence is based on a combination of deterrent and reformative theories
of punishment. While the punishments are to be imposed to create deter amongst the
offenders, the offenders are also to be given opportunity for reformation. The courts while
imposing death sentence has to record its special reasons as to why the court came to the
conclusion.

Capital Punishment is laid down as a penalty in several legislative Acts, such as:
Indian Penal Code, 1860
Under the IPC eleven offences are punishable by death. For ex-Murder, Abetment of suicide
by a minor or insane person, Dacoity with murder etc.

Army Act, 1950, the Air Force Act, 1950 and the Navy Act 1956
A death sentence may also be imposed for a number of offences committed by members of
the armed forces.

The Commission of Sati (Prevention) Act, 1987


Prescribes punishment by death for any person who either directly or indirectly abets the
commission of sati (immolation of a widow).
The Narcotics, Drugs and Psychotopic Substances (Amendment) Act, 1988 Introduced the
death penalty as a punishment for financing, or engaging in the production, manufacture or
sale of narcotics or psychotopic substance of specified quantities (e.g. opium 10 kgs, cocaine
500 gms) after previous convictions.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989


Introduced the death penalty for fabricating of providing false evidence that results in the
conviction and execution of an innocent member of a scheduled caste or scheduled tribe.

Attempts to Abolish the Death Penalty

Several legislative attempts to abolish the death penalty in India have failed. Before
Independence a private Bill was introduced in the 1931 Legislative Assembly to abolish the
death penalty for penal code offences. The British Home Secretary at the time however
rejected the motion.
The Government of independent India rejected a similar Bill introduced in the first Lok
Sabha . Efforts were also made in Rajya Sabha to move resolution for abolition of death
sentence in 1958 and 1962 but were withdrawn after some debate.
The Law Commission in its Report presented to the Government in 1967 and to the Lok
Sabha in 1971 concluded that the death penalty should be retained and that the executive
(President) should continue to possess powers of mercy.

Procedure When Death sentence is Imposed


Special Reasons
The court has to record special reasons for imposing death sentence.
Confirmation by High Court
Court of session after passing a death sentence shall submit the proceedings to the High
Court, and the sentence shall not be executed unless it is confirmed by the High Court. The
court passing the sentence shall then commit the convicted person to jail custody under a
warrant.
Enquiry and Additional Evidence
The High Court while dealing with confirmation may order further inquiry be made into, or
additional evidence taken upon, any point bearing upon, any point bearing upon the guilty or
innocence of the convicted person.
No order for confirmation
No order for confirmation shall be made until the period allowed for preferring an appeal has
expired, or if any appeal is presented within such period, until such appeal is disposed of.
In every case so submitted, the confirmation of the sentence, or any new sentence or order
passed by the High Court, shall when such court consists of two or more judges , be made,
passed and signed by at least two of them.

Copy of Order Sent to Court of Session


In cases submitted by the court of session to the High Court for the confirmation of a
sentence of death, the proper officer of the High Court shall ,without delay, after the order of
confirmation or other order has been made by the High Court, send a copy of the order under
the seal of the High Court and attested with his official signature, to the court of session.

Where a person is sentenced to death and an appeal from its judgment lies the execution of
the sentence will be postponed until the period allowed for preferring such appeal has
expired, or if an appeal is preferred within that period, until such appeal is disposed of.

Postponement of Death Sentence on Pregnant Woman


If a woman sentenced to death is found to be pregnant, the High Court shall order the
execution of the sentence to be postponed and may, if it thinks fit, commute the sentence to
imprisonment for life.

Mode of Execution
The issue regarding the constitutionality of hanging as a mode of execution came up before
the Supreme Court in Deena v. Union of India {[1993] 4 SCC 645} , though the court
asserted that it was a judicial function to probe into the reasonableness of a mode of
punishment ,it refused to hold the mode of hanging as being violative of Article 21 of the
constitution.
This issue was once again raised in Shashi Nayar {1992 SCC [CRI] 24] the court held that
since the issue had already been considered in Deena, there was no good reason to take a
different view.
Another issue which deserves attention is public hanging as a mode of execution. The issue
of public hanging came to the Supreme Court through a writ petition Attorney General v.
Lachma Devi {1989 SCC [CRI] 413} in this petition the order of Rajasthan High Court
regarding the execution of the petitioner by public hanging under the relevant rules of Jail
manual. The S.C. held that public hanging even if permitted under the rules would violate
Article 21 of the Constitution.

Legality of Death Sentence


In the case of Jagmohan V/s State of U.P. {1973 SCC [CRI] 169}the question of
constitutional validity of death punishment was challenged before the SC, it was argued that
the right to live was basic to freedom guranteed under Article 19 of the constitution . The S.C.
rejected the contention and held that death sentence cannot be regarded as unreasonable per
se or not in the public interest and hence could not be said to be violative of Article 19 of the
constitution.

When can Death Sentence be granted


As have been stated earlier, after Cr.P.C. , 1973, death sentence is the exception while life
imprisonment is the rule. Therefore, by virtue of section 354(3) of CR.P.C., it can be said that
death sentence be inflicted in special cases only. The apex court modified this terminology in
Bachan Singh v. State of Punjab {AIR 1980 SC 898 } and observed- " A real and abiding

concern for the dignity of human life postulates resistance to taking a life through law's
instrumentality. That ought to be done save in the rarest of rare cases when the alternative
option is unquestionably foreclosed..""
Rarest of rare cases
To decide whether a case falls under the category of rarest of rare case or not was completely
left upon the court's discretion. However the apex court laid down a few principles which
were to be kept in mind while deciding the question of sentence. One of the very important
principles is regarding aggravating and mitigating circumstances. It has been the view of the
court that while deciding the question of sentence, a balance sheet of aggravating and
mitigating circumstances in that particular case has to be drawn. Full weightage should be
given to the mitigating circumstances and even after that if the court feels that justice will not
be done if any punishment less than the death sentence is awarded, then and then only death
sentence should be imposed.
Again in Machhi singh vs. State of Punjab { [1983] 3 SCC 470 }the court laid down:- " In
order to apply these guidelines inter alia the following questions maybe asked and answered:
(a). Is there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but to impose death
sentence even after according maximum weightage to the mitigating circumstances which
speak in favor of the offenders?"
The SC has also discussed such aggravating and mitigating circumstances in various cases.
These circumstances include: Aggravating Circumstances
# Murder committed in an extremely brutal , grotesque, diabolical , revolting or dastardly
manner so as to arouse intense and extreme indignation of the community.
# Murder- for a motive which evinces total depravity and meanness.
# Murder of a Scheduled cast or Scheduled tribe- arousing social wrath ( npt for personal
reasons).
# Bride burning/ Dowry death.
# Murderer in a dominating position , position of trust or in course of betrayal of the
motherland.
# Where it is enormous in proportion.
# Victim- innocent child, helpless woman, old/infirm person, public figure generally loved
and respected by the community.

Mitigating Circumstances
The court in its discretion, may take into consideration, the following circumstances as
mitigating, on the basis of which the lesser punishment can be imposed:
1. That the offence was committed under the influence of extreme mental or emotional

distribution;
2. If the accused is young or old, he shall not be sentenced to death;
3. The probability that the accused would not commit criminal acts of violence as would
constitute a continuing threat to society;
4. The probability that the accused can be reformed and rehabilitated ;The state shall by
evidence prove that the accused does not satisfy the conditions (3) and (4) above;
5. That in the facts and circumstances of the case, the accused believed that he was morally
justified in committing the offence;
6. That the accused acted under the duress of domination of another person;
7. That the condition of the accused showed that he was mentally defective and that the said
defect impaired his capacity to appreciate the criminality of his conduct.

Conviction of a minor
The ordinary sentencing applicable to adults will no longer be applicable in the case of
juveniles. The Juvenile Justice Act defines the term juvenile as a boy who has not attained the
age of 16 years, or a girl who has not attained the age of 18 years. As per sec. 22 of the said
Act, no delinquent juvenile shall be sentenced to death?.

Conviction of A Pregnant woman


Section-416 of Cr.pc. provides if a woman sentenced to death is found to be pregnant, the
High court shall order the execution of the sentence to be postponed and may, if it thinks fit,
commute the sentence to imprisonment for life.

Lesser Sentence To Co- Accused


In cases where there are more than one accused, and murder has been committed by several
persons, under section 34 of IPC, the act done by one will be considered to be acts done by
all. So if a lesser sentence of life imprisonment is awarded to one accused, then the coaccused should also generally be given the same sentence, unless it can be established that the
role of any one of them in the commission of the crime is more that of others.

Delay in execution of the death sentence


Delay in execution of death sentence is a factor which may be taken into consideration for
commuting the sentence of death to life imprisonment.
If upon taking an overall view of all the circumstances and taking in to account the answers
to the question posed by way of the test of rarest of rare cases, the circumstances of the case
are such that death penalty is warranted, the court would proceed to do so.
Judicial Discretion
The ultimate discretion to decide whether death sentence is to be imposed or not , have been
vested in the court. There is a debate going on about the extent of this judicial discretion.

A brief analysis of the cases decided by the SC. Regarding the question of death sentence
over last 25 years, will reveal how
differing/dithering the judgments have been.
In the case of Mohd. Chaman {2000 SOL CASE NO 705 } , on the question of extent of
judicial discretion, the court observed :" Such standardization is well nigh impossible . Firstly degree of culpability cannot be
measured in any case. Secondly criminal cases canno tbe categorized there being infinite ,
unpredictable and unforeseeable variations . Thirdly in such categorization, the sentencing
procedure will cease to be judicial . And fourthly , such standardization or sentencing
discretion is policy matter belonging to the legislature beyond the courts functions"
International Scenario
As of June 2004, a total of 118 countries (including Canada, Mexico, Australia, Russia, South
American nations and most European nations) have abolished the death penalty in law or
practice. Of these, 80 countries and territories have abolished the death penalty for all crimes,
fifteen countries have abolished the death penalty for all but exceptional crimes (such as
wartime crimes) and 23 countries can be considered abolitionist in practice, i.e., they retain
the death penalty in law but have not carried out any executions for the past ten years or more
and are believed to have a policy or established practice of not carrying out executions.
Conclusion
In India the present position regarding death sentence is quite a balanced one. But the wide
judicial discretion given to the court has resulted into enormously varying judgment, which
does not potray a good picture of the justice delivery system. What is needed to be done is
that the principle laid down in cases like Bachan Singh or Machhi Singh have to be strictly
complied with, so that the person convicted for offence of similar nature are awarded
punishment of identical degree.

9) https://www.linkedin.com/pulse/capital-punishment-ethical-manish-k-salian
9. IS CAPITAL PUNISHMENT ETHICAL?

Capital punishment, death penalty or execution is punishment by death.


The sentence that someone be punished in this manner is a death sentence.
Crimes that can result in a death penalty are known as capital crimes or
capital offences. The term capital originates from the Latin capitalis,
literally "regarding the head" (referring to execution by beheading).
Capital punishment has, in the past, been practiced by most
societies, as a punishment for criminals, and political or religious
dissidents. Historically, the carrying out of the death sentence was often
accompanied by torture, and executions were most often public.
36 countries actively practice capital punishment, 103 countries have
completely abolished it de jure for all crimes, 6 have abolished it for
ordinary crimes only (while maintaining it for special circumstances such
as war crimes), and 50 have abolished it de facto(have not used it for at
least ten years and/or are under moratorium).
Nearly all countries in the world prohibit the execution of individuals
who were under the age of 18 at the time of their crimes; since 2009, only
Iran, Saudi Arabia, and Sudan have carried out such executions. Executions
of this kind are prohibited under international law.
Capital punishment is a matter of active controversy in various
countries and states, and positions can vary within a single political

ideology or cultural region. In the European Union member states, Article2


of the Charter of Fundamental Rights of the European Union prohibits the
use of capital punishment. The Council of Europe, which has 47 member
states, also prohibits the use of the death penalty by its members.
The United Nations General Assembly has adopted, in 2007, 2008,
2010, 2012 and 2014 non-binding resolutions calling for a global
moratorium on executions, with a view to eventual abolition. Although
many nations have abolished capital punishment, over 60% of the world's
population live in countries where executions take place, such as China,
India, the United States and Indonesia, the four most-populous countries in
the world, which continue to apply the death penalty (although in India and
in many US states it is rarely employed). Each of these four nations has
consistently voted against the General Assembly resolutions.

History
The first established death penalty laws date as far back as the
Eighteenth Century B.C. in the Code of King Hammaurabi of Babylon,
which codified the death penalty for 25 different crimes. The death penalty
was also part of the Fourteenth Century B.C.'s Hittite Code; in the Seventh
Century B.C.'s Draconian Code of Athens, which made death the only
punishment for all crimes; and in the Fifth Century B.C.'s Roman Law of
the Twelve Tablets. Death sentences were carried out by such means as
crucifixion, drowning, beating to death, burning alive, and impalement.
In the Tenth Century A.D., hanging became the usual method of
execution in Britain. In the following century, William the Conqueror
would not allow persons to be hanged or otherwise executed for any crime,

except in times of war. This trend would not last, for in the Sixteenth
Century, under the reign of Henry VIII, as many as 72,000 people are
estimated to have been executed. Some common methods of execution at
that time were boiling, burning at the stake, hanging, beheading, and
drawing and quartering. Executions were carried out for such capital
offenses as marrying a Jew, not confessing to a crime, and treason.
The number of capital crimes in Britain continued to rise throughout
the next two centuries. By the 1700s, 222 crimes were punishable by death
in Britain, including stealing, cutting down a tree, and robbing a rabbit
warren. Because of the severity of the death penalty, many juries would not
convict defendants if the offense was not serious. This lead to reforms of
Britain's death penalty. From 1823 to 1837, the death penalty was
eliminated for over 100 of the 222 crimes punishable by death.
a) Nineteenth Century
In the early to mid-Nineteenth Century, the abolitionist movement
gained momentum in the northeast. In the early part of the century, many
states reduced the number of their capital crimes and built state
penitentiaries. In 1834, Pennsylvania became the first state to move
executions away from the public eye and carrying them out in correctional
facilities.
In 1846, Michigan became the first state to abolish the death penalty
for all crimes except treason. Later, Rhode Island and Wisconsin abolished
the death penalty for all crimes. By the end of the century, the world would
see the countries of Venezuela, Portugal, Netherlands, Costa Rica, Brazil
and Ecuador follow suit.
Although some U.S. states began abolishing the death penalty, most
states held onto capital punishment. Some states made more crimes capital

offenses, especially for offenses committed by slaves. In 1838, in an effort to


make the death penalty more palatable to the public, some states began
passing laws against mandatory death sentencing instead enacting
discretionary death penalty statutes. The 1838 enactment of discretionary
death penalty statutes in Tennessee, and later in Alabama, were seen as a
great reform. This introduction of sentencing discretion in the capital
process was perceived as a victory for abolitionists because prior to the
enactment of these statutes, all states mandated the death penalty for
anyone convicted of a capital crime, regardless of circumstances. With the
exception of a small number of rarely committed crimes in a few
jurisdictions, all mandatory capital punishment laws had been abolished by
1963.
During the Civil War, opposition to the death penalty waned, as more
attention was given to the anti-slavery movement. After the war, new
developments in the means of executions emerged. The electric chair was
introduced at the end of the century. New York built the first electric chair
in 1888, and in 1890 executed William Kemmler. Soon, other states
adopted this execution method.
b) Early and Mid-Twentieth Century
Although some states abolished the death penalty in the midNineteenth Century, it was actually the first half of the Twentieth Century
that marked the beginning of the "Progressive Period" of reform in the
United States. From 1907 to 1917, six states completely outlawed the death
penalty and three limited it to the rarely committed crimes of treason and
first degree murder of a law enforcement official. However, this reform was
short-lived. There was a frenzied atmosphere in the U.S., as citizens began
to panic about the threat of revolution in the wake of the Russian

Revolution. In addition, the U.S. had just entered World War I and there
were intense class conflicts as socialists mounted the first serious challenge
to capitalism. As a result, five of the six abolitionist states reinstated their
death penalty by 1920.
In 1924, the use of cyanide gas was introduced, as Nevada sought a more
humane way of executing its inmates. Gee Jon was the first person executed
by lethal gas. The state tried to pump cyanide gas into Jon's cell while he
slept, but this proved impossible, and the gas chamber was constructed.
From the 1920s to the 1940s, there was a resurgence in the use of the death
penalty. This was due, in part, to the writings of criminologists, who argued
that the death penalty was a necessary social measure. In the United States,
Americans were suffering through Prohibition and the Great Depression.
There were more executions in the 1930s than in any other decade in
American history, an average of 167 per year.
In the 1950s, public sentiment began to turn away from capital
punishment. Many allied nations either abolished or limited the death
penalty, and in the U.S., the number of executions dropped dramatically.
Whereas there were 1,289 executions in the 1940s, there were 715 in the
1950s, and the number fell even further, to only 191, from 1960 to 1976. In
1966, support for capital punishment reached an all-time low. A Gallup poll
showed support for the death penalty at only 42%.
Capital Punishment in India
India retains capital punishment for a number of serious offences.
The Indian Supreme Court has allowed the death penalty to be carried out
in four instances since 1995.

The Supreme Court in Mithu vs State of Punjab struck down Section


303 of the Indian Penal Code, which provided for a mandatory death
sentence for offenders serving a life sentence. The number of people
executed in India since independence in 1947 is a matter of dispute; official
government statistics claim that only 52 people had been executed since
independence. However, research by the People's Union for Civil Liberties
indicates that the actual number of executions is in fact much higher, as
they located records of 1,422 executions in the decade from 1953 to 1963
alone. In December 2007, India voted against a United Nations General
Assembly resolution calling for a moratorium on the death penalty. In
November 2012, India again upheld its stance on capital punishment by
voting against the UN General Assembly draft resolution seeking to ban
death penalty.
In colonial India, death was prescribed as one of the punishments in the
Indian Penal Code, 1860 (IPC), which listed a number of capital crimes. It
remained in effect after independence in 1947.
Under Article 21 of the Constitution of India, no person can be
deprived of his life except according to procedure established by law.
The Supreme Court of India ruled in 1983 that the death penalty
should be imposed only in "the rarest of rare cases." While stating that
honour killings fall within the "rarest of the rare" category, Supreme Court
has recommended the death penalty be extended to those found guilty of
committing "honour killings", which deserve to be a capital crime. The
Supreme Court also recommended death sentences to be imposed on police
officials who commit police brutality in the form of encounter killings.

An appeal filed in 2013 by Vikram Singh and another person facing the
death sentence questioned the constitutional validity of Section 364A of the
Indian Penal Code,
1.

a) Capital Punishment in Various Legislation in India


Capital punishment is prescribed as one of the punishments in various of
the Indian Penal Code, 1860, The Arms Act 1959, The Narcotic Drugs and
Psychotropic substance Act 1985, and The Scheduled Caste and Scheduled
Tribe (Prevention of Atrocities) Act, The Commission of Sati (Prevention)
Act, 1987, The Air Force Act, 1950, The Army Act, 1950, and The Navy Act,
1957. In the Prevention of Terrorism Act, 2002 also, there was a provision
for death penalty for causing death of persons using bombs, dynamite or
other explosive substances in order to threaten the unity and integrity of
India or to strike terror in the people. It is also interesting to note that
under the Arms Act, NDPS Act and the Scheduled Caste and Scheduled
Tribe Act, Capital Punishment is the only punishment for the offence
covered by those sections, thus leaving no room for the judiciary to exercise
its discretion. It is doubtful whether these provisions can stand the test of
the constitutional validity in the light of the decision in Mithu v. State of
Punjab Because in this Case section 303 of the Indian Penal Code was
struck down as violation of Article 21 and 14 of the Constitution of India,
as the offence under the Section was punishable to exercise its direction
and thus resulted in an unfair, unjust and unreasonable procedure
depriving a person of his life.

1.

b) Constitutional Validity of Capital Punishment


Article 21 of the Constitution of India provides Protection of Life and
Personal Liberty to every people. And the deprivation of life of anyone is

unconstitutional under Article 21. It is also said that No person shall be


deprived of his life or personal liberty except according to procedure
established by law; it means, if there is a procedure than state can deprived
a person from his life.
In many countries there has been accepted and death penalty has been
abolished. In India, too there are many social workers including lawyers
and Judges who have voiced this demand. Prominent amongst them are
Bhagwati J. and Krishna Iyer J. both former judges of Supreme Court,
Krishna Iyer J. Very recently while addressing a Human right organization
strongly expressed himself in favour of the abolition of death penalty.
Justice A.K. Ganguly of the Supreme Court has termed the award of death
sentence as barbaric , anti-life, undemocratic and irresponsible which is
legal in the prevailing judicial system. The doctrine of the crime falling in
the rarest of rare category in awarding the death penalty was a grey area
as its interpretation depended on individual judges. He cautioned that
before giving death penalty, a judge must be extremely careful and weigh
mitigating and aggravating circumstances.
So far as constitutionality is concerned it has to be considered in the light of
the provision to take away the life of a person through a procedure
established by law. This means that through there is a procedure establish
by law, state can deprive a person of his life. Through judicial
pronouncements, this procedure is interpreted to mean, a fair, just and
reasonable one. Though the constitutional validity of the death punishment
was challenged as violative of Article 19 and 21 of theConstitution of
India, because it didnt provide any procedure to the Court upheld the
validity of death sentence. Since the procedure by which the life is taken is

fair, just and reasonable. The judge are given ample power to exercise their
discretion to award death penalty as against imprisonment for life.
The question of constitutional validity of death penalty has been raised
before the Supreme Court of India more than once. In case of Jagmohan
Singh v. State of Uttar Pradesh, the constitutional validity of death penalty
was upheld by the Supreme Court by a unanimous decision of the five
judges composing the Bench.
In case of Rajender Prasad v. State of Uttar Pradesh, Krishna Iyer J. said
that death penalty directly affects the life of the people guaranteed
under Article 21 of the Constitution. But it has been provided by law and
there is nothing like due law in Article 21. Therefore, it is valid. He further
said that to impose death penalty the two things must be required:
The special reasons should be recorded for imposing death penalty in a
case.
The death penalty must be imposed only in extraordinary circumstances.
The question was again considered by a five judges bench in case of Bachan
Singh v. State of Punjab, particularly in view of certain observations of
Krishna Iyer J. In Bachan Singh case judges considered the social, ethical
and even spiritual aspect of death penalty while upholding the
constitutional validity thereof.
It is to be noted that, After the award of the death sentence by a sessions
(trial) court,the sentence must be confirmed by a High Court to make it
final. Once confirmed, the condemned convict has the option of appealing
to the Supreme Court. If this is not possible, or if the Supreme Court turns
down the appeal or refuses to hear the petition, the condemned person can

submit a mercy petition to the President of India and the Governor of the
State.
Power of President
The present day constitutional clemency powers of the President
and Governors originate from the Government of India Act 1935 but, unlike
the Governor-General, the President and Governors in independent India
do not have any prerogative clemency powers.
Constitutional Power
Article 72(1) of the Constitution of India states:
The President shall have the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the sentence of
any person convicted of any offence
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against
any law relating to a matter to which the executive power of the Union
extends;
(c) in all cases where the sentence is a sentence of death.
1.

c) Capital Punishment under Criminal Law


Section 365 (5) of the Criminal Procedure Code, 1898, prior to its
amendment in 1955, required a court sentencing a person convicted of an
offence punishable with death to a punishment other than death to state the
reasons why it was not awarding death sentence. The amendment deleted
this provision but there was no indication in either the Cr.P.C or the Indian
Penal Code, 1860 (IPC) as to which cases called for life imprisonment and
which the alternative death penalty. The Law Commission of India in

1967 undertook a study of death penalty and submitted its 35th Report to
the government. It justified its conclusion for retention of death penalty
thus:
Having regard.to the conditions in India, to the variety of social
upbringing of its inhabitants, to the disparity in the level of morality and
education in the country, to the vastness of its area, to the diversity of its
population and to the paramount need for maintaining law and order in the
country at the present juncture, India cannot risk the experiment of
abolition of capital punishment.
Capital Offences
Sections Under IPC and other laws

Being a party to a criminal conspiracy to


120B of IPC

commit a capital offense

Waging, or attempting to wage war, or


abetting waging of war, against the
121 of IPC

Government of India

Abetting a mutiny in the armed forces (if a


132 of IPC

mutiny occurs as a result), engaging in mutiny

Giving or fabricating false evidence with intent


194 of IPC

to procure a conviction of a capital offense

302, 303 of IPC

Murder

Abetting the suicide of a minor, mentally ill


305 of IPC

person, or intoxicated person

Part II Section 4 of
Prevention of Sati
Act

Aiding or abetting an act of Sati

Kidnapping, in the course of which the victim


was held for ransom or other coercive
364A of IPC

purposes.

31A of the Narcotic


Drugs and
Psychotropic
Substances Act

Drug trafficking in cases of repeat offenses

Banditry with murder - in cases where a group


of five or more individuals commit banditry
and one of them commits murder in the
course of that crime, all members of the group
396 of IPC

are liable for the death penalty.

376A of IPC and

Rape if the perpetrator inflicts injuries that

Criminal Law

result in the victim's death or incapacitation in

(Amendment) Act, a persistent vegetative state, or is a repeat

2013

offender.

Bombay Prohibition
(Gujarat
Amendment) Bill,

In Gujarat only - Manufacture and sale of

2009

poisoned alcohol which results in death(s).

Execution of Death Sentence


The execution of death sentence in India is carried out by two modes,
namely hanging by the neck till death and being executed by firing squad.
a) Hanging
The Code of Criminal Procedure (1898) called for the method of execution
to be hanging. The same method was adopted in the Code of Criminal
Procedure (1973). Section 354(5) of the above procedure reads as "When
any person is sentenced to death, the sentence shall direct that the person
be hanged by the neck till the person is dead."
b) Shooting
The Army Act and Air Force Act also provide for the execution of the death
sentence. Section 34 of the Air Force Act, 1950 empowers the court martial
to impose the death sentence for the offences mentioned in section 34(a) to
(o) of The Air Force Act, 1950. Section 163 of the Act provides for the form
of the sentence of death as:"In awarding a sentence of death, a court-martial shall, in its discretion,
direct that the offender shall suffer death by being hanged by the neck until
he be dead or shall suffer death by being shot to death".
This provides for the discretion of the Court Martial to either provide for

the execution of the death sentence by hanging or by being shot to death.


The Army Act, 1950, and the Navy Act, 1957 also provide for the similar
provisions as in The Air Force Act, 1950.

Recent Rarest of Rare Cases of Capital Punishment

Dhananjoy Chatterjee v. State of West Bengal & ors. The


appellant, Dhananjoy Chatterjee was found guilty of offences punishable
under Section 376, 302 and 380 of the Indian Penal Code by judgment and
was awarded death sentence by the session judge, confirmed by the High
Court. A special leave petition was filed by the appellant. Leave was
granted but the appeal was dismissed by the Supreme Court.
Sushil Murmu v. State of Jharkhand, A young child of 9 years was
sacrificed before Goddess Kali by the appellant for his own prosperity is
what the prosecution alleges. The Supreme Court awarded death penalty to
the Accused.
State of U.P. v. Satish, Stressing that leniency in punishing grave
crimes would have serious consequences the Supreme Court has awarded
the death penalty to a mean for the rape and murder of a six year old girl.

Murder v. Capital Punishment

Murder and execution are morally equivalent because both of them


kill people. But this does not make sense. If that were so, it could be
logically said that wrongful confinement of an innocent person by a civilian
and imprisonment of an offender by the state are morally equivalent,
because they both confine a person. 'Murder' term is used for unlawful
killings only and capital punishment by the judiciary is not unlawful.
Moreover every type of killing even by civilians is not murder. Thus there is
a fundamental legal difference between killing innocent people (homicide)
and capital punishment for murder.

NCRB Statistics
The National Crime Records Bureau (NCRB) is an Indian
government agency, created in 1986, responsible for collecting and
analysing crime data as defined by the Indian Penal Code (IPC). The NCRB
has documented death penalties and executions in India since 1995, as part
of its prison statistics. There are no collated figures available for executions
before 1995.
According to the NCRB, 21 people have been executed in India since 1995.
In the decade between 2001 and 2011, 1,455 convicts or an average of
132.27 convicts per year were given the death penalty. During the same
period, sentences for 4,060 convicts were commuted from death penalty to
life imprisonment. The NCRB does not clarify whether these figures refer to
sentences passed by a trial court or those whose sentences have been
upheld by a High Court or the Supreme Court, or those whose mercy
petitions are pending or have been rejected.

Abolition of Capital Punishment

United State View


The United Nations High Commission for Human Rights called a
meeting in early July to commemorate the fifth anniversary of the General
Assemblies vote in favor of a moratorium on the death penalty.. the
Secretary General, Ban Ki-moon delivered some remarks in which he
reminded listeners that more than 150 countries have either abolished
capital punishment or restricted its application. Some 32 states retain the
death penalty in case of drug-related crimes and last year only 20 countries
actually conducted executions. In the United States, 17 states have done
away with the death penalty.
The right to life is the most fundamental of all human rights. It lies at the
heart of international human right law. The taking of life is too absolute,
too irreversible, for one human being to inflict it on another, even when
backed by legal process. Where the death penalty persists conditions for
those awaiting execution are often horrifying, leading to aggravated
suffering. Information concerning the application of the death penalty,
including secret trials and executions, is often cloaked in secrecy. And it is
beyond dispute that innocent people are still put to death.
The United Nations system has long advocated abolition of the death
penalty. Yet the death penalty is still used for a wide range of crimes that do
not meet that threshold.

Why the Capital Punishment should be abolished


Capital punishment is the punishment of death which is generally awarded
to those guilty of heinous crimes, particularly murder and child rape. In
Indian the traditional way of awarding this punishment is handing by the
neck till the death of the criminal. In other countries, shooting, electric
chair, etc,are the various devices used for the purpose.
Though the awarding of capital punishment, specially for murder, is
according to age-old, tradition, in recent times there has been much hue
and cry against it. It has been said that capital punishment is brutal, that it
is according to the law of jungle an eye for an eye, and tooth for a
tooth. It is pointed out that there can be no more place for it in a civilized
country. Moreover, judges are not infallible and there are instances where
innocent people have been sent to the gallows owing to some error of
judgment.
Capital punishment is nothing but judicial murder, it is said, specially when
an innocent life is destroyed. Besides this, capital punishment, as is
generally supposed, is not deterrent. Murders and other heinous crimes
have continued unabated, inspite of it. The result of such views has been
that in recent years there has been an increasing tendency in western
countries to award life imprisonment instead of capital punishment.
Muslims countries, generally speaking, continue to be more serve in this
respect.

Despite frequent demands from all society Indian has not so far abolished
capital punishment. But even in India there has been a decline in the
frequency of such punishment. It is now awarded only in cases of hardened
criminals and only when it is established that the murder was not the result
of a momentary impulse, the result of serious provocation, but wellplanned and cold-blooded. In such cases, it is felt that nothing less than
capital punishment would meet the ends of justice, that it is just and proper
that such pests of society are eliminated. Those who indulge in anti-social
and sternest possible measures should be taken against them, specially
when they are habitual offenders.
It is, therefore, in the fitness of things that India has not so far abolished
capital punishment but used it more judiciously. Sociologist are of the view
that capital punishment serves no useful purpose. A murderer deprives the
family of the murdered person of its bread-winner. By sending the
criminals to gallows, we in no way help or provide relief to the family of the
murdered. Rather, we deprive another family of its bread-winner. The
sociologists, therefore, suggest that the murderer should be sentenced for
life to work and support the family of murdered person as well as his own.
In this way, innocent women and children would be saved from much
suffering, hunger and starvation. Moreover, such measures would provide
the criminals with an opportunity to reform himself. He would be under
strict watch and if his conduct is satisfactory, he may be allowed to return
to society as a useful member of it.
There is much truth is such views, and they must be given due weightage
before a decision is taken to abolish or retain capital punishment. But
Capital punishment should be continue for those who commit rare of the
rarest crimes such as child rape, group rape, terrorism and etc.

Retention
1. Capital Punishment acts as a deterrent. If the death sentence
is removed, the feast that comes in the mind of people committing murder
will be removed. Do we want more of murders in our country or do we
want less of them?All sentence are awarded for security and protection of
society, so that every individual may live in peace. Capital punishment is
needed to ensure this security.
2. Elimination of the criminals. When the public peace is
endangered by certain particularly dangerous forms of crime, death penalty
is the only means of eliminating the offender.
3. Possibility of repeated murders. Society must be protected
from the risk of a second offences by a criminal who is not executed and
who may be released, after release may commit murder again.
Conclusion
Death as a penalty has plagued human mind perennially. Death sentence
must fulfill the conditions for protection of human rights in Criminal
Justice Administration in India.
Execution of Dhananjay Chatterjee in 2004, after fourteen years in death
cell and thereafter in the year 2006 Md. Afzals instance of capital
punishment again gave new impetus to the debate between abolitionists
and retentionists concerning speedy justice, fair trial, protection of human
rights of the persons under death sentence, their human dignity as well as
the victimological perspective to maintain law and order in society.
In the words of P.N. Bhagwati, J. in Bachan Singh v. state of Punjab the
judges have been awarding death penalty according to their own scale of
values and social philosophy and it is not possible to discern any consistent

approach to the problem in the judicial decisions. Therefore, whether the


sentence will be for death or for life imprisonment depends, in a large
measure, on the court or composition of bench of the court. We have seen
earlier about execution and commutation of death sentences into life
imprisonment, there are several judgments which show that there are no fix
principles to determine delay and other factors in the similar cases. Even in
Dhananjay Chatterjees case there was fourteen years delay in execution of
death sentence but it was not commuted to life imprisonment although in
some earlier cases two years, two and half years, three years and nine years
delay in execution was treated as violation of human rights and fair
procedure and their sentences were commuted to life imprisonment. Is this
not a violation of articles 14 and 21 of the Constitutionwhich enshrine
fundamental and sacrosanct rights of human beings?

An eye for an eye will make the whole world blind-Mahatma Gandhi

10) https://www.indianbarassociation.org/constitutionality-of-death-penalty/
10.CONSTITUTIONALITY OF DEATH PENALTY
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. Indian Criminal
jurisprudence is based on a combination of deterrent and reformative theories of punishment. While
the punishments are to be imposed to create deter amongst the offenders, the offenders are also to be
given opportunity for reformation.
There has been a diverse opinion regarding the death penalty in India as some are in the favour of the
retention of the punishment while others are in the favour of its abolishment.
India is one of the 78 retentionist countries which have retained death penalty on the ground that it
will be awarded only in the rarest of rare cases and for special reasons. Though what constitutes a
rarest of rare case or special reasons has not been answered either by the legislature or by the
Supreme Court.1
The constitution of India guarantees to every person a fundamental right to life subject to its
deprivation by the procedure established by law2, it has been argued by abolitionists that sentence of
death in the present form violates the citizens right to life. There are numerous legal luminaries who
argue that the very fact that the death penalty is retained in Indian criminal statutes runs counter to
ones right to life. It is submitted that these learned jurists probably overlook the fact that even right to
life is not an absolute right.
Further Art. 14 of Constitution declares equality before law and equal protection of the laws, which
means that no person shall be discriminated against unless the discrimination is required to achieve
equality.3
The concept of equality incorporated in Art. 14 finds echo in the preamble to the constitution. Capital
sentence, it seems, is therefore, an anti-thesis of ones right to life. However, it is an indisputable fact
that there is nothing in the Constitution of India which expressly holds capital punishment as
unconstitutional.
The constitutional validity of the death penalty was challenged from time to time in numerous cases.
In Jagmohan Singh vs. State of Uttar Pradesh4, the five judge bench of the Supreme Court, by a
unanimous verdict, upheld the constitutional validity of death penalty held that capital punishment

was not violative of Articles 14, 19 and 21 and . In this case the validity of death sentence was
challenged on the ground that it was violative of Articles 19 and 21 because it did not provide any
procedure. It was contended that the procedure prescribed under Cr. P.C. was confined only to
findings of guilt and not awarding death sentence. The Supreme Court held that the choice of death
sentence is done in accordance with the procedure established by law. It was observed that the judge
makes the choice between capital sentence or imprisonment of life on the basis of circumstances and
facts and nature of crime brought on record during trial.
In another case Rajendra Prasad vs. State of UP5, Justice Krishna Iyer empathetically stressed that
death penalty is violative of articles 14, 19 and 21. He further said that to impose death penalty the
two things must be required:
The special reason should be recorded for imposing death penalty in a case.
The death penalty must be imposed only in extraordinary circumstances.
The question was again considered in Bachan Singh vs. State of Punjab6 in which by a majority of 4
to 1 (Bhagwati J.dissenting) the five judge bench of the Supreme Court overruled its earlier decision
in Rajendra Prasad. It expressed the view that death penalty, as an alternative punishment for murder
is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India,
because the public order contemplated by clauses (2) to (4) of Article 19 is different from law and
order and also enunciated the principle of awarding death penalty only in the rarest of rare cases.
Bhagwati J. in his dissenting judgement observed that death penalty is not only unconstitutional
being violative of Articles 14 and 21 but also undesirable from several points of view.
Further, The Supreme Court in Machhi Singh vs. State of Punjab7 laid down the broad outlines of the
circumstances when death sentence should be imposed. Justice Thakkar speaking for the Court held
that five categories of cases may be regarded as rarest of rare cases deserving extreme penalty. They
are:
Firstly: Manner of Commission of murder When the murder is committed in an extremely brutal
manner so as to arouse intense and extreme indignation in the community, for instance, when the
house of the victim is set a flame to roast him alive, when the body is cut to pieces or the victim is
subjected to inhuman torture.
Secondly: Motive When the murder is committed for a motive which evinces depravity and
meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over property
of a ward, or a murder committed for betrayal of the motherland.
Thirdly: Anti-social or socially abhorrent nature of the crime where a scheduled caste or minority
community person is murdered in circumstances which arouse: social wrath; or bride burning for
dowry, or for remarriage.
Fourthly: Magnitude of the Crime Crimes of enormous proportion, like multiple murders of a family
or persons of a particular caste, community or locality.
Fifthly: Personality of victim of murder8
In Deena vs. Union9 of India the constitutional validity of section354(5) I.P.C. 1973 was challenged
on the ground that by rope as prescribed by this section was barbarous, inhuman and degrading and
therefore violative of Art. 21. The court held that section 354(5) of the I.P.C., which prescribed
hanging as mode of execution as fair, just and reasonable procedure within the meaning of Art- 21 and
hence is constitutional.

In Sher Singh vs. State of Punjab Chandrachud10 C.J. expressing the view of the three judges of The
SC held that death sentence is constitutionally valid and permissible within the constraints of the rule
in Bachan Singh. This has to be accepted as the law of the land.
Similarly, In Triveniben vs. State of Gujarat11, the Supreme Court asserted affirmatively that the
constitution does not prohibit death penalty.
In Mithu vs. State of Punjab12 S.303 of the IPC was struck down as violative of Article 21 and 14 of
the Constitution of India, as the offence under the section was punishable only with capital
punishment and did not give the judiciary the power to exercise its discretion and thus result in an
unfair, unjust and unreasonable procedure depriving a person of his life.
Thus, to sum up, it is clearly evident from a study of the above cited case laws that death penalty is
regarded as constitutional in India, despite several legislative attempts to abolish the death penalty in
India have failed, and it is to this day prevalent in India as is evident from the recent case of Ajmal
Amir Kasab, who was executed in 2012.

1) http://lawlex.org/lex-bulletin/constitutional-validity-of-death-penalty-in-india/1458
2) Articles 21 of the Constitution.
3) Articles 14,15 & 16.
4) Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947.
5) Rajendra Prasad vs. State of Punjab, A.I.R. 1979, S.C.p.916.
6) Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C 898.
7) Machhi Singh vs. State of Punjab, A.I.R. 1983, S.C 957.
8) Death Sentence: A Critical Analysis.
http://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%204.pdf
9) Deena vs. Union of India, (1983)4 SSC 645.
10) Sher Singh vs. State of Punjab, A.I.R. 1983 S.C 365.
11) Triveniben vs. State of Gujarat, A.I.R. 1989 S.C 142.
12) Mithu vs. State of Punjab, (1983)2 SSC 277.

11) INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE STUDIES


CAPITAL PUNISHMENT IN INDIA: THE UNENDING CONUNDRUM
CAPITAL PUNISHMENT IN INDIA: THE UNENDING CONUNDRUM
Name of Authors:Shivam Dubey and Pooja Agarwal School of Law, Christ University, Bangalore
,Students 4th Year BA LLB (Hons.)

11.
Capital punishment is a highly debated matter. It is legal but rarely voted for in India.
Imposition of the penalty is not always followed by, because of the possibility of
commutation to life imprisonment. Since 1995, it has been used only four times on Auto
Shankar in 1995, Dhananjoy Chatterjee in 2004, Ajmal Kasab in 2012 and Afzal Guru in
2013. Although there are numerous countries that proscribe death sentences, there is no
international consensus till date regarding its legality. The Indian legal system too has
struggled with the constitutionality of death penalty and the circumstances in which it may be
granted. This paper analyses the constitutional validity of death sentence and the
circumstances under which it may be granted with the help of relevant cases and the rarest of
the rare test that was prescribed by Supreme Court in Bachan Singh case. This paper
concludes by observing that Indian judiciary is moving away from the implementation of
capital punishment as there is greater emphasis on alternative modes of punishment and the
international legal developments which are against the capital punishment.

I.

Introduction

Capital punishment or the death penalty is a legal process whereby a person is put to death by
the state as a punishment for a crime.[1] The judicial decree that someone be punished in this
manner is a death sentence, while the actual process of killing the person is an execution.
Crimes that can result in a death penalty are known as capital crimes or capital offences. The
term capital originates from the Latin capitalis, literally regarding the head (referring to
execution by beheading).[2]

A majority of countries in the world has now abandoned the use of the death penalty. But the
world has not yet formed a consensus against its use. The most populous country in the
world, China, executes thousands of people every year, and the most powerful country, the
United States, uses it regularly.[3] Eighty-four countries retain the use of capital punishment.
However, the number of countries employing the death penalty is declining and it is possible
that worldwide opinion and pressure will gradually influence all countries to abandon this
practice.[4]
II.

History Of Capital Punishment

Capital punishment is a method of retributive punishment as old as civilization itself. It is a


lawful infliction of death as a punishment and since ancient times, it has been used for a wide
variety of offences. Both the Greeks and Romans invoked the death penalty for a wide variety
of offences.[5] Socrates and Jesus were perhaps the most famous people ever condemned for
a capital crime in the ancient period. Hammurabis code, a code of laws developed by king of
one of the first empire, dates back from the third or second millennium before Christ. This
code claims that retribution, an eye for an eye and a life for a life, is justice. In Anglo
American law the death penalty has been a customary response to certain kinds of offences.
[6]
The Bible prescribes death for murder and many other crimes including kidnapping and
witchcraft. By 1500 in England, only major felonies carried the death penalty-treason,
murder, larceny, rape and arson. By 1700, however, parliament had enacted many new capital
offences and hundreds of persons were being put to death each year.[7]
III.

Evolution Of Capital Punishment In India

At independence in 1947, India retained the 1861 Penal Code which provided for the death
penalty for murder. During the drafting of the Indian Constitution between 1947 and 1949,
several members of the Constituent Assembly expressed the ideal of abolishing the death
penalty, but no such provision was incorporated in the Constitution. Private members bills to
abolish the death penalty were introduced in both houses of parliament over the next two
decades, but none of them was adopted. It has been estimated that 3000 to 4000 executions
occurred between 1950 and 1980. Information on the numbers of persons sentenced to death
and executed from 1980 to the mid- 1990s is harder to measure. It is estimated that two or
three persons were hanged per year.[8] In the Bachan Singh[9]judgment of 1980, the
Supreme Court ruled that the death penalty should be used only in the rarest of rare cases,
but what defines rarest of the rare is not clear.

IV.

Constitutionality Of The Death Sentence

Indian constitution is an amalgam of many constitutions, i.e., the constitution of America,


Britain and Japan. It should not surprise anyone, therefore, that the main provisions of the

constitution of India guaranteeing the right to life has been lifted from the American and the
Japanese constitutions.[10] It may be added here that what we have borrowed is the form or
style of expression and not the right itself. The right to life is not the something that
constitutions create or even confer.[11] The constitution only recognises this inalienable and
indispensable right. The constitutional provision is therefore, only evidentiary value. Allan
Gledhill has given an interesting statement regarding it, which is:
In some of the older countries the right to life and liberty receives more effective protection
from constitutiona1 conventions than they do in countries with constitutions elaborating the
right. The degree of personal liberty enjoyed by the average Indian is not remarkably less
than that enjoyed by a citizen of any other parliamentary democracy.[12]
With the on-going debate as to whether the death penalty should be abolished or not, the
question of constitutionality of this sentence repeatedly comes into the spotlight. The basic
question that comes to the mind of many peoples is how something can be so brutal, barbaric,
uncivilised, inhumane, and cruel or degrading, be constitutional. Justice Krishna Iyer
observed in Rajendra Prasads case[13]:
it is fair to mention that humanistic imperatives of Indian Constitution, as paramount to
punitive strategy of Penal Code, have hardly been explored by courts in this field of life or
death at the hands of the law. The main focus of our judgement is on this poignant gap in
human rights jurisprudence within the limits of Penal Code, impregnated by the
Constitution. To put it pithily, a world over voicing the worth of the human person, a cultural
legacy charged with compassion an interpretative liberation from colonial callousness to life
and liberty, a concern for social justice as setting the sights of individual justice, interact
with the inherited text of the Penal Code to yield the goals desiderated by the Preamble and
Articles 14, 19, and 21.Yet, Article 21 of the Constitution states, No person shall be
deprived of his life or personal liberty except according to procedure established by law.[14]

A.

Constitutional Powers Of The Supreme Court In Matters Relating To Death Sentence

Accordingly, the Supreme Court of India, considering the Constitution of India, regards the
use of capital punishment as a legitimate penalty in certain of the most extreme criminal
cases. In Bachan Singh v. State of Punjab[15], the constitutional bench of the Supreme Court
discussed at length the question of whether the provision of death penalty as an alternative
punishment for murder is violation of Article 19 and 21 of the Constitution. In this
judgement, Justice P.N Bhagwati gave his minority judgment observing that the death penalty
is violation of Article 19 and 21 of the Constitution. While the four judges in majority agreed
otherwise.
Machhi Singh and others v. State of Punjab[16], is considered as a landmark judgement on
the subject of the death penalty. The Apex Court while discussing the aggravating and
mitigating circumstances laid down the principles which would serve as guideline to the

courts while deciding the sentence to be awarded in murder cases. Mithu v. State of
Punjab[17]is a historical judgment of the full bench of the Supreme Court, wherein the court
declared Section 303 of the IPC as unconstitutional and violative of Article 14 and 21 of the
Constitution. It held that:
We Strike down Section 303 of the Penal Code as unconstitutional and declare it void. It is
needless to add all cases of murder will now fall under Section 302 of the Penal Code and
there shall be no mandatory sentence of death for the offence of murder.
Therefore Supreme Court has a constitutional power in matters relating to death penalty.
B. Constitutional Powers Of The President And The Governor In Matters Relating To Death
Sentence
After all the remedies under the judicial system are exhausted, a person on death row has the
last remedy to knock at the doors of the first citizens of the country and seek pardon in the
form of mercy petition which must be addressed by the convict either through authorised
representative or himself from the prison. The Constitution under Article 72 and 161 confers
the power on the President and the Governors, respectively, to suspend, remit or commute
sentences in certain cases.[18] The mercy jurisdiction of the President and the Governors to
reduce or rescind punishment becomes operative only after the courts have delivered
conviction and passed sentence. Also, the power under Article 72 and 161 bear an onus for
the President and Governors to act fairly and reasonably. The power of President under
Article 72 is wider than that of Governor in the sense that the President has exclusive powers
to grant pardon in case of death sentence and court martial.[19]
In a petition of Kuljeet Singh alias Ranga v. Lt. Governor of Delhi[20], seeking to declare
that the President had transgressed his executive power to grant clemency in exercise of the
power under Article 72 of the Constitution, by refusing to grant clemency to him, the
Supreme Court- after discussing the power of the President to commute the sentence of death
dismissed the petition.

In Mohinder Singh v. State of Punjab[21], the Supreme Court held that while the mercy
petition is pending before the President of India, the Supreme Court has no jurisdiction to
hear any application for stay on execution as it is not maintainable. The President of India has
to be approached for a stay of execution.
It is true that the ambit of capital punishment may be found fundamentally under Article 21 of
the Constitution, it is also true that many countries have such provisions in their constitutions
or in their law, which allow for the use of death penalty. It is certainly true that the majority of
these countries and the vast majorities of the worlds democratic countries have abolished the
death penalty in law. Constitutional challenges come in many forms to the death penalty,
however, and it is clear that challenges regarding its constitutional validity are not limited to

death penaltys right to life under Article 21 of the Constitution of India. As former Chief
Justice of India P.N Bhagwati stated that: Death penalty does not serve any social purpose
or advance any Constitutional value and is totally arbitrary and unreasonable so as to be
violative of Articles 14, 15, 21 of the Indian Constitution..
For the time being, however, despite profound concerns regarding the constitutional validity
of the death penalty, it has been held as constitutional by the Supreme Court, as already
discussed above. It is from this basis that the judiciary of India manage its imperfect
application, and from this basis, too, which any analysis any challenge of that application
must proceed.
V.

The Rarest Of The Rare Doctrine

1973 to 1980, the legislative dictate has changed from death sentence being the norm to
becoming an exception, and necessarily to be accompanied by reasons. Bachan Singh vs.
State of Punjab,[22] was a landmark in the escalating debate on the question of the
compatibility of the death sentence with Art. 21 of the Constitution. The Supreme Court
while holding the validity of the death penalty expressed the opinion that a real and abiding
concern for the dignity of human life postulates resistance for taking a life through laws
instrumentality.[23] That ought not to be done save in the rarest of rare cases, when the
alternative option is unquestionably foreclosed.[24]
However, the Court declined to formulate any aggravating or mitigating factors as it would
fetter judicial discretion, but held that a murder diabolically conceived and cruelly executed
may attract extreme penalty.[25] It is not possible, the court opined, to feed numerous
imponderable circumstances in an imperfect and undulating society. But what are those rarest
of rare occasions is the dilemma.[26] What appears as brutal and gruesome, to one judge may
not appear to be so to another.[27] For example, in one case the murder of wife and two
children with the motive of leading life with the paramour could not convince Krishna Iyer, J.
for death penalty, while Sen, J. wondered what else could be a fit case for death penalty than
the one at hand.[28] It is submitted that if the difference in perception is so glaring among
two judges of the highest court in the country what is relative position among very large
number of sessions judges in the country.
A.

Significance And Extent

The doctrine rarest of the rare cases is based on Gandhian theory, i.e., hate the crime not
the criminal.[29] And thus, from this quotation, we can interpret the significance and extent
of Death Penalty. And if we go through the deep study of it, we find that the court wants to
say that the death penalty should be awarded rarely and only in such cases which are heinous,
affecting the humanity and are brutal.[30]
The problem of Death Penalty is not very acute in respect of death sentences awarded by
criminal courts in cases of general course of nature because death penalty is being awarded in

very few cases of murder and in most of the cases of murder the alternative penalty of life
imprisonment is awarded.
There is also one other characteristic of death penalty that is revealed by a study of the
decided cases and it is that death penalty has a certain class complexion or class bias in as
much it is largely the poor and the down trodden who are the victims of this extreme penalty.
[31] We would hardly find a rich person going to the gallows whoever has money to hire the
services of great talents, has a reasonable chance of escaping the gallows though he has really
committed a murder. It is only the poor, the resource less people who have nobody to support
them, who usually go to the gallows. The death penalty in its operation is declaratory.[32]
Capital punishment Death penalty as pointed out by warden Duffly is a privilege of the poor.
[33]
Keeping the above points in the view the Apex Court propounded the doctrine of rarest of
rare.
B.

Judicial Discretion And The Circumstances Of The Accused

The decision in Jagmohan Singh v. State Of U.P[34] involved a failed challenge to the
constitutionality of the death penalty. Its importance lies in the fact that it highlighted the
need for noting special reason when imposing death sentences. Bachan Singh v. State of
Punjab[35], which followed, was landmark decision, which despite affirming the
constitutionality of the death penalty diluted the scope of its imposition substantially by
introducing the test of rarest of the rare case. It was held that:
.for persons convicted of murder, life imprisonment is a rule and death sentence is an
exception. A real and abiding concern for dignity of human life postulates resistance to
taking a life through laws instrumentality. That ought not to be done save in the rarest of
rare cases when alternative option is unquestionably foreclosed.
The present position regarding Capital Punishment, as one might suppose of any system of
law with pretensions of being considered civilised, is to use it sparingly as possible- i.e. in
Rarest Of Rare cases and this is the system as it stands in India. To have it in the statute
book, but to use it as rarely, is the compromise that the Courts, and we as a nation, adopt. In a
relatively recent case Panchhi v. State of U.P[36] , the Court observed: Brutality of the
manner in which a murder was perpetrated may be a ground but not the sole criterion for
judging whether the case is one of the rarest of rare cases.
The death sentence is not a rule but an exception. Mr M. Hidayatullah, the former Chief
Justice of the Supreme Court, observed that the doctrine of the Rarest of Rare evolved in
Indian Jurisprudence for use specifically with regard to the death sentence is capable of
discounting the possible errors and abuse of the sanction. In Machhi Singh v. State of
Punjab[37], the Apex Court laid down three conditions for imposition of the death sentence.
These were:

Where it is a Rarest of Rare case?


When there is something uncommon about the crime that renders Life Imprisonment
as an inadequate sentence?
Whether the circumstances of the crime are such that there is seen no alternative but
to impose death sentence even after Maximum weightage is given to any mitigating factor?
It is obligatory for the court to give special reasons for awarding the extreme punishment
of the death sentence.[38] Also, clear provisions have been laid down by the Supreme Court
that authorise a mandatory death sentence for any offence as unconstitutional.
VI.

Conclusion

In the issues related to the administration of capital punishment, some very important
developments in the capital sentencing law have turned the balance in favour of the capital
convicts substantially. First, in Swamy Shraddananda case[39] , the court has emphasised the
availability of sentences other than the life sentence and death penalty. The Court held that:
.if the Courts option is limited only to two punishments, one is a sentence of
imprisonment, and other is death sentence, the Court may feel tempted and find itself nudged
into endorsing the death penalty. Such a course would indeed be disastrous. A far more just,
reasonable and proper course would be to expand the options and to take over what, as a
matter of fact lawfully belong to the court.
Thus Court expanded the range of alternative option which needs to be exhausted before
opting for death sentence and the Supreme Court gave the judgment in favour of convict in
terms of a Bachan Singh[40] case that ought not to be done save inrarest of rare cases
when alternative option is unquestionably foreclosed.
A study of death sentences after the Swamy Shraddananda case[41] reveals that many cases
which normally would have resulted in award of death sentences to the prisoners, have got
the benefit of various alternative option between the minimum sentence of 14 years to a
sentence of full life.[42]Moreover, Indian Jurisprudence on death penalty is not oblivious to
the development in international law as also worldwide trends on the issue.[43] The Supreme
Court in Bariyar[44] referred to the international trends in the following terms:
Although these questions are not under consideration and cannot be addressed here and
now, we cannot help but observe the global move away from death penalty. Latest statistics
show that 138 nations have now abolished the death penalty in either law or practice. We are
also aware that on 18th Dec. 2007, the United Nations General Assembly adopted resolution
62/149 calling upon countries that retain death penalty to establish a worldwide moratorium
on executions with a view to abolishing the death penalty.
Recently, the Apex Court in Vodafone International Holdings B.V v. Union of India[45] stated
that certainty is integral to the Rule of Law. In a case involving the imposition of death
penalty, the courts cannot continue to judge under uncertainty. The normative standards in

this behalf must be finally settled leaving the uncertainty into oblivion, which is the least
judiciary can do.
Therefore we can say that, Indian judiciary is moving away from the implementation of
capital punishment as there is a greater emphasis on alternative modes of punishment and the
international legal developments which are against the such punishments.
[1] Franklin E. Zimring, The Unexamined Death Penalty: Capital Punishment and Reform of
the Model Penal Code, http://www.jstor.org/stable/4099437 (Last Accessed: 07/02/2013
05:28)
[2] Kronenwetter, Michael, Capital Punishment: A Reference Handbook
[3] Richard C. Dieter, The Death Penalty and Human Rights: U.S. Death Penalty and
International Law, Feb 2004,http://www.deathpenaltyinfo.org/Oxfordpaper.pdf
[4]Id at 1
[5] Monica K. Miller and R. David Hayward, Religious Characteristics and the Death
Penalty,
http://www.jstor.org/stable/25144611 (Last Accessed: 07/02/2013 05:27)
[6]Dr. A. Krishna Kumari, Capital Punishment: The Never Ending Debate (12 Oct.
2005),http://www.richard.clark32btinternet.co.uk/thoughts.html
[7]Id
[8]Walia, Arunjeev Singh,Can society escape the noose? : the death penalty in India : cases,
materials, and opinion ,201 (Human Rights Law Network, 1st edition, 2005)
[9] Bachan Singh v. State Of Punjab , AIR 1980 SC 898
[10]
Death
Sentence:
A
Critical
Analysis, http://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%204.pdf
[11] Id at 1
[12] Allan Gledhill, The life and liberty in first ten years of republican India, 2. J.I.L.I. 241
at 266 (1959-60).
[13] Rajendra Prasad Etc. v State Of Uttar Pradesh, 1979 AIR 916
[14] INDIA CONST. art. 21
[15] Supra Note 5

[16] Machhi Singh and others v. State of Punjab, 1983 AIR 957
[17] Mithu v. State of Punjab, 1983 AIR 473
[18] INDIA CONST. art. 72 & 161
[19] 187th Report of Law Commission Of India, Consultation Paper On Mode Of Execution
Of Death Sentence And Incidental Matters, http://lawcommissionofindia.nic.in/reports/187th
%20report.pdf (Last Accessed on 1 Feb. 2013 8:20 pm)
[20] Kuljeet Singh alias Ranga v. Lt. Governor of Delhi, 1982 AIR 774
[21] Mohinder Singh v. State of Punjab, AIR 1965 SC 79
[22] AIR 1980 SC 898
[23] Ranga Billa vs. Union of India, Supreme Court, 1982.
[24] Sher Singh v. State of Punjab, A.I.R. 1983 SC 365.
[25] Shankaria vs. State of Rajasthan, A.I.R., 1978, S.C.p. 1248.
[26] Nirmal Singh v. Slate of Haryana 1999Cr.LJ. 1836.
[27] Supra Note 8 at 42
[28] Om Prakash vs State of Haryana 1999 Cr.L.J. 2044
[29] Supra Note 1
[30] State of M.P. vs Molai 1999 Cr.L.J. 2698.
[31] Supra Note 5
[32] RajyaSabha Debates, April 25,1958, Col. per Sh. B.B.B. Sinha
[33] Ragjuir Singh vs. State of Haryana, A.I.R., 1975, S.C. 677.
[34]AIR 1973 SC 947
[35] Supra Note 7
[36]AIR 1998 SC 2726
[37] Supra Note 9

[38] CODE CRIM. PROC. 353(3)


[39] Swamy Sharddananda v. State of Karnataka, (2008) 12 SCC 288
[40]Supra Note 7
[41]Supra Note 21
[42]See Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1 SCC 775, Haru Ghosh
v. State of West Bengal, (2009) 15 SCC 551, Ramraj @ Nanhoo @ Bhinu v. State of
Chhattisgarh, (2010) 1 SCC 573, Mulla v. State of U.P, (2010) 3 SCC 508, Sebastian @
Chevithiyan v. State of Kerala, (2010) 1 SCC 58
[43]Rajesh Kumar v. State through Govt. of NCT of Delhi, (2011) 13 SCC 706
[44]Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, CRIMINAL APPEAL
NO. 452 OF 2006
[45](2012) 1 SCALE 530

12) http://articles.indiaonline.in/Constitutionality-of-Death-Penalty12. constitutional validity of capital punishment


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.
Indian Criminal jurisprudence is based on a combination of deterrent and reformative
theories of punishment. While the punishments are to be imposed to create deter amongst the
offenders, the offenders are also to be given opportunity for reformation.
There has been a diverse opinion regarding the death penalty in India as some are in the
favour of the retention of the punishment while others are in the favour of its abolishment.
India is one of the 78 retentionist countries which have retained death penalty on the ground
that it will be awarded only in the rarest of rare cases and for special reasons. Though
what constitutes a rarest of rare case or special reasons has not been answered either by the
legislature or by the Supreme Court.
The constitution of India guarantees to every person a fundamental right to life subject to its
deprivation by the procedure established by law , it has been argued by abolitionists that
sentence of death in the present form violates the citizens right to life.
There are numerous legal luminaries who argue that the very fact that the death penalty is
retained in Indian criminal statutes runs counter to one's right to life. It is submitted that these
learned jurists probably overlook the fact that even right to life is not an absolute right.
Further Art. 14 of Constitution declares equality before law and equal protection of the

laws, which means that no person shall be discriminated against unless the discrimination is
required to achieve equality.
The concept of equality incorporated in Art. 14 finds echo in the preamble to the constitution.
Capital sentence, it seems, is therefore, an anti-thesis of ones right to life. However, it is an
indisputable fact that there is nothing in the Constitution of India which expressly holds
capital punishment as unconstitutional.
The constitutional validity of the death penalty was challenged from time to time in
numerous cases. In Jagmohan Singh v. State of Uttar Pradesh , the five judge bench of the
Supreme Court, by a unanimous verdict, upheld the constitutional validity of death penalty
held that capital punishment was not violative of Articles 14, 19 and 21 and . In this case the
validity of death sentence was challenged on the ground that it was violative of Articles 19
and 21 because it did not provide any procedure. It was contended that the procedure
prescribed under Cr. P.C. was confined only to findings of guilt and not awarding death
sentence.
The Supreme Court held that the choice of death sentence is done in accordance with the
procedure established by law. It was observed that the judge makes the choice between
capital sentence or imprisonment of life on the basis of circumstances and facts and nature of
crime brought on record during trial. In another case Rajendra Prasad v. State of UP ,
Justice Krishna Iyer empathetically stressed that death penalty is violative of articles 14, 19
and 21. He further said that to impose death penalty the two things must be required: The
special reason should be recorded for imposing death penalty in a case. The death penalty
must be imposed only in extraordinary circumstances.
The question was again considered in Bachan Singh v. State of Punjab in which by a
majority of 4 to 1 (Bhagwati J.dissenting) the five judge bench of the Supreme Court
overruled its earlier decision in Rajendra Prasad. It expressed the view that death penalty,
as an alternative punishment for murder is not unreasonable and hence not violative of
articles 14, 19 and 21 of the Constitution of India, because the public order
contemplated by clauses (2) to (4) of Article 19 is different from law and order and
also enunciated the principle of awarding death penalty only in the rarest of rare cases.
Bhagwati J. in his dissenting judgement observed that death penalty is not only
unconstitutional being violative of Articles 14 and 21 but also undesirable from several points
of view. Further, The Supreme Court in Machhi Singh v State of Punjab laid down the
broad outlines of the circumstances when death sentence should be imposed. Justice Thakkar
speaking for the Court held that five categories of cases may be regarded as rarest of rare
cases deserving extreme penalty.
They are: Firstly: Manner of Commission of murder - When the murder is committed in an
extremely brutal manner so as to arouse intense and extreme indignation in the community,

for instance, when the house of the victim is set a flame to roast him alive, when the body is
cut to pieces or the victim is subjected to inhuman torture.
Secondly: Motive - When the murder is committed for a motive which evinces depravity and
meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over
property of a ward, or a murder committed for betrayal of the motherland.
Thirdly: Anti-social or socially abhorrent nature of the crime - where a scheduled caste or
minority community person is murdered in circumstances which arouse: social wrath; or
bride burning for dowry, or for remarriage.
Fourthly: Magnitude of the Crime - Crimes of enormous proportion, like multiple murders of
a family or persons of a particular caste, community or locality.
Fifthly: Personality of victim of murder In Deena V. Union of India the constitutional
validity of section354(5) I.P.C. 1973 was challenged on the ground that by rope as prescribed
by this section was barbarous, inhuman and degrading and therefore violative of Art. 21. The
court held that section 354(5) of the I.P.C., which prescribed hanging as mode of execution as
fair, just and reasonable procedure within the meaning of Art- 21 and hence is constitutional.
In Sher Singh v. State of Punjab Chandrachud C.J. expressing the view of the three judges of
The SC held that death sentence is constitutionally valid and permissible within the
constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.
Similarly,
In Triveniben v. State of Gujarat , the Supreme Court asserted affirmatively that the
constitution does not prohibit death penalty.
In Mithu v. State of Punjab S.303 of the IPC was struck down as violative of Article 21 and
14 of the Constitution of India, as the offence under the section was punishable only with
capital punishment and did not give the judiciary the power to exercise its discretion and thus
result in an unfair, unjust and unreasonable procedure depriving a person of his life.
Thus, to sum up, it is clearly evident from a study of the above cited case laws that death
penalty is regarded as constitutional in India, despite several legislative attempts to abolish
the death penalty in India have failed, and it is to this day prevalent in India as is evident from
the recent case of Ajmal Amir Kasab, who was executed in 2012. :
http://articles.indiaonline.in/Constitutionality-of-Death-Penalty-