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The Maze Of Capital Punishment: Present, Precedents And Prospective

A crime is not only committed against the victim but also affects the entire society. Therefore, it becomes important to ensure that the punishment is such that it acts as a deterrent that is capable of reducing crimes in a state. In the cave of justice, the guilty wander in, and their fate is left to the guiding hand of justice with the task to show them the way towards the reformative light with a changed life at the end. But in the sphere of Capital Punishment, the situation changes.

Here, life isn't granted the freedom to roam around and seek reformation instead it's the misdeeds and the hands of justice which themselves lead them into the abyss of darkness. Hence the punishment of the death penalty not only puts an end to the life of the guilty but the entire family of the person suffers. The Constitution of India guarantees the right to life to all the citizens of the country.

So, can we consider capital punishment to be in line with the Constitution? Capital punishment opens a regime of debate and considerations and poses a conflict between the right to life of a person who is guilty of taking another's life and curtailing the freedom of such persons to make a long living safe society.

Death as a punishment has been incorporated in Section 53 of the Indian Penal Code[1] by the framers of the code. Indian Penal Code was drafted by the first law commission(1834) overseen by Lord Macaulay and with other authors regarding death as a punishment, they says "We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only in cases where either murder or the highest offense against eh state has been committed", which clearly shows the intention that death penalty is one of the options as punishment but in every case, arbitrariness must be avoided and a proper consideration needs to be undertaken while identifying the crime as a highest offence.

And then, even today a debate regarding whether the death penalty needs to be abolished or it should continue as a punishment rests in the mind of people, in the drafts of legislatures and in the interpretation of courts. This scenario clearly outlines two fractions, dividing them into groups which may be named abolitionist and retentionist. Each fraction, have got different expectations from the deciding authority about the issue at hand. And in the subsequent sections of this text, we would delve deeper into the ideologies upheld by these distinct groups.

Death penalty as a punishment had a quite discretionary role on the part of court because of no particular guidelines according to which death penalty should be awarded until the case of Bachan Singh v State of Punjab[2] came up before the court. In this particular case court established the doctrine of rarest of rare cases which means only in those cases that are of diabolical, brutal and gruesome nature, death penalty should be awarded.

There are a few pronouncements before the case of Bachan Singh regarding whether Capital Punishment is constitutionally valid or not. One of such case, the first one being Jagmohan v. State of U.P (1972)[3], in which Supreme Court of India held that Articles 14, 19, and 21 guarantees the Right to equality, Freedom of Speech and Expression and Right to Life and Personal Liberty are not in violation with death penalty, and in Rajendra Prasad v/s State of U.P (1979)[4].

The court held that unless it was shown that the individual is a terrible and continuing threat to social security, capital punishment would not be justified though this particular case was overruled in Sunder Singh v. State of Uttaranchal[5] In Ediga Anamma v. the State of Andhra Pradesh[6] court mentioned about the lack of guidelines which court may use to decide between life imprisonment which is a rule and death penalty which is an exception.

Two Sides Of The Coin:
The Abolitionist Perspective or viewpoint of those who are in favor of abolishing the death penalty as a punishment:
Being in the firm believe in the virtue of their stance, group of eminent sociologists, jurists, penologists argue that death penalty is irreversible and once awarded there remains no scope of improvement. Also, it may be inflicted upon the innocents of the crime and like there is a saying "let hundred guilty be acquitted, but one innocent should not be convicted". And this contention holds some kind of truthfulness because there had been many cases in past in England also where people were falsely accused and then hanged to death.

But nowadays there have been ample safeguards by legislations and constitution, if we are taking the case of India, which almost eliminates the chance of innocent person being convicted. Quite a feasible number of chances have been given even to the accused to approach the higher court, through writs, and then procedure of review petition, then there is curative petition. All of this can be used to revise the sentence awarded by the court at any level and thus chances of innocent hanged to death tend towards zero.

Secondly, they argue that death penalty serves no penological purpose and its deterrent effect remain unproven. Though in the year 2023 in India, the Supreme Court didn't confirm a single death sentence among 120 which were awarded death sentence by the session court.[7]

Thirdly, according to them, execution is cruel, inhuman and degrading punishment no matter by what means it is awarded or in which offence it is awarded. PN Bhagwati in his dissenting opinion of Bachan Singh v State of Punjab[8] mentioned how the pain and suffering which execution involves is also no less cruel or inhumane. The way a person is sentenced to death in India is through rope and his dignity is impaired, tarnished beyond repair, as his neck is noosed and strangled, robbing not only his life but humanity in most degrading manner.

Resonating with the same grounds, writ petition, Rishi Malhotra v Union of India was discussed with similar contention and though court had justification that we should not care about the dent on some person's dignity or care for his sympathy if he himself killed another being. But in the purview of law, it is not so, and court in this case directed legislature to think on some other mode by which convict who has to face death sentence, should die without pain. Also, hanging as a mean of execution was upheld in Deena v. union of India[9] .

The Receptionist Perspective:
Retentionists on the part that death penalty may be awarded to innocents argues that then its not the problem with the punishment but an excuse to not reform the judicial system. Hence goodness would be not for demanding abolition of death penalty but the reformation in trial system.

Secondly, whether it serves a penological purpose or have any deterrent effect, in Bachan Singh, court have mentioned few decisions wherein the deterrent value of death penalty has been judicially recognized which are mentioned as under:
  • Paras Ram v State of Punjab[10], in this case to fulfil some kind of superstition accused sacrificed a person which remains an anti-social behavior arising out of a religious subject which is deep rooted in the Indian culture hence death penalty awarded in such cases would have a deterrent effect and may provoke a thought of performing such rituals while highlighting the severity of wrongdoing in mattes like superstitions.
  • In Jagmohan case, court highlighted if the person killed is of high standing then death penalty would amount to reasonableness on the due regard to its effect on overall society. Consideration of crime is not only motive now, rather there should be consideration on part of criminal and victim too.
  • In Ediga Anamma, also court mentioned that "deterrence though threat of death may still be promising strategy in some frightful areas of murderous crime.

Further court also went through some specimens on this note. Firstly, jurist James Fitzman, concerned with drafting of IPC said "no other punishment deters men so effectually from committing crimes as the punishment of death. In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly"

On similar grounds, the law commission of India in its 35th report, mentioned that in their view capital punishment does act as a deterrent because of reasons that every human being dread death. Since "death, as a penalty, stands on a totally different level from imprisonment for life or any other punishment. The difference is one of quality, and not merely of degree".

British Royal commission while concluding their report mentioned same thing but was quite knowledgeable that deterrent effect is not universal and have a uniform effect.

Hence, the ongoing debate will likely to persist due to firmly established contentions and convictions held on both the side. What we do know for sure is India's acknowledgment of the death penalty as a form of punishment and in this regards the, the discussions claim significance, particularly concerning the new criminal laws set to be enforced from July 2024. The Bharatiya Nyaya Sanhita (BNS) not only maintains the crimes that can be punished with death according to Indian Penal Code but also increases the number of crimes punishable by death from twelve (as per IPC) to eighteen[11]. Mob lynching is a newly created offence, which has a punishment of 7 years or life imprisonment or death penalty.[12]

What The Lordships Think?
Its quite interesting that the whole scenario narrows down to the discretion of the bench of the honorable courts to decide whether death penalty should be awarded or not. And this particular significance, what we know as a well settled law in Bachan Singh that courts need to consider the mitigating and aggravating factors for awarding the death sentence and it must be awarded in the rarest of rare cases because as claimed that "judges should never be bloodthirsty. Hanging of murderers has never been too good for them."

The majority view in his judgment referred few of mitigating circumstances like court shall take into consideration that whether the offence was committed under the influence of extreme mental or emotional disturbance, or age of accused, lesser age or old aged would not be awarded death sentence, or the number of victims, intention committing such crime and so on and this list is not quite exhaustive and not only in the cases of awarding death sentence but while deciding year of sentencing, courts are supposed to keep in mind such factors. For example, Supreme court in his judgment Navas v. State of Kerala[13] reduced the sentence of guilty accused of murdering three generations of a family, from 30 years to 25 years in regards to mitigating circumstances.

Per contra, aggravating circumstances may be enumerated as, if offender, affected a society at large though his act, offense in itself was outrageously vile, horrible, or offence was committed by a person who was supposed to be in lawful confinement but escaped. Unlike mitigating circumstances, these factors intensify the severity of issue or the crime committed and are taken into consideration, if, awarding more punishment to the accused.

The Gap In Between:
The framework has been established, the guidelines has been formulated, recognition to death penalty has been upheld and there are innumerable such offences committed every day but then also why only 4.9% of trial court death sentences eventually end up being confirmed by the supreme court?[14] After Bachan Singh, sentencing judges were mandated to consider mitigating factors but despite this, mitigation is rarely presented and considered by trials courts.

In Manoj v. State of Madhya Pradesh[15] in year 2022, the court held that imposition of death penalty in the absence of well-documented mitigating circumstances by the trial court is the incorrect application of the Banchan Singh. However, contrary to this, in very next month of aforesaid judgment, in Manoj Pratap Singh v. State of Rajasthan[16], court held that "even if mitigation was not carried out by the trial court, the procedural lapse of section 235(2) is not so grave for death to be "forsaken".

And all of this arises because of the time that defense takes to collect mitigating factors. While aggravating factors are put forward in the case record, mitigating factors take sufficient time to present from considering the historical records of accused and many more. But trials courts are not on the par of deciding the cases on the basis of mitigating factors because of which same-sentencing occurs that trials courts on the same day when guilt is established award death sentence without looking after the mitigating factors. And because of this, people have to spend significant time on death row only to be acquitted or death sentence converted to life imprisonment by the higher courts. In regard to this, legislature or judiciary clearly need to have a specific stance.

Now, Where Do We Go From Here?
What we need to keep in mind, death penalty can't be waived off as a punishment until such gruesome crimes would be committed but what can be done is provide a proper regulating framework or a constitutional bench overhearing all the concerns regarding the nature and extent of the problematic situation arising out of death penalty awarded by the trial courts because in India where many cases are pending before the court, and then such malfunction by the trial courts in acceptable. Hence both the organs may cooperate and guide this matter.

After all the research on death penalty and then jotting it down what needs consideration is the doctrine for awarding death penalty. It is well settled that death penalty may only be awarded in the brutal, horrific, and diabolic crimes but are we at that par that for us murder and rape isn't any more heinous and for awarding death sentence we need that particular heinous offence to be even more brutal which is quite ironical.

A sound mind person, taking life of someone requires on sympathy. Though just that, judiciary don't become a tool for satisfying the bloodthirstiness everything needs to be gone through a particular procedure since an "eye for an eye" was never a good concept, though that procedure may or may not be good for someone. Which leads us to end that "Human mind is an enigma.

It is well neigh impossible to unravel the mystery of the human mind." and before addressing the crime, it is essential to consider the criminal also to ensure justice is served. However, it is to be kept in mind that courts can't please everyone in the name of justice, which would create conflict but justice in the favor of the public at large is acceptable.

  1. The Indian Penal Code, 1860, � 53, No. 45, Acts of Parliament, 1860 (India)
  2. Bachan Singh v. State of Punjab, (1980) 2 SCC 684
  3. Jagmohan Singh v. State of U.P., (1973) 1 SCC 20
  4. Rajendra Prasad v. State of U.P., (1979) 3 SCC 646
  5. Sunder Singh v. State of Uttaranchal, (2010) 10 SCC 611
  6. Ediga Anamma v. State of A.P., (1974) 4 SCC 443
  7. Annual Statistics Report, 2023, Project 39A, National Law University, Delhi, pg. 53. Available at: "" accessed on 20th February, 2024
  8. Bachan Singh v. State of Punjab, (1982) 3 SCC 24
  9. Deena v Union of India (1983) 4 SCC 645
  10. SLP(Crl) Nos. 698 of 678 of 1953
  11. Bharatiya Nyaya Sanhita Bill - A Substantive Analysis, 2023, Project 39A, National Law University, Delhi, pg. 18. Available at: "" accessed on 20th February 2024
  12. The Bharatiya Nyaya Sanhita, 2023, No. 45 (India)
  13. Navas v State of Kerala, (2024) INSC 215(India)
  14. Snehal Dhote, Evidence from trial courts: A Since Qua Non For Capital sentencing reform in india, Death Penalty Research Unit ( Feb. 15, 2024, 10:30 AM), ""
  15. Manoj v. State of M.P., (2023) 2 SCC 353
  16. Manoj Pratap Singh v. State of Rajasthan, (2022) 9 SCC 81

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