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Death Penalty in India

Capital Punishment refers to awarding death penalty to the accused by the competent court for committing a crime against the State which is sanctioned by the Government. Such crime includes murder, rape, mass murder, sexual abuse etc. It is a worldwide controversial topic and every person holds different opinion towards it.

Some people believe that it is the most inhuman practice to kill a person and some believe that killing a person by this way is justified as it brings an end to the life of a person who is unfit and harmful for society, therefore, he should be killed.

Capital punishment is a practice that has prevailed since many long. In earlier times, such punishment was awarded on petty things which was on the concept on fighting against each other for food, sex etc., because of these petty reasons they fought for eye for an eye, tooth for a tooth and blood for blood.

Gradually the world and the society changed with new customs and realized that capital punishment should only be given for grievous crimes. Many countries abolished it. More than two- third of the countries of the world have abolished the practice of the capital punishment.[1]

The UN Secretary General António Guterres believes that
Death penalty undermines human dignity, and that its abolition, or at least a moratorium on its use, contributes to the enhancement and progressive development of human rights.[2]
India, the country which guarantees human rights has retained against abolishing capital punishment; it is considered as an effective weapon for the heinous crimes in the society. Today, where the crime index is increasing in India, the legislature has enacted various laws and has opted for capital punishment against heinous crimes. After various judgments, the concept of capital punishment has been limited to the doctrine of the rarest of rare case as held in the case of Bacchan Singh. Therefore, the author in its research will mainly focus on the history and nature of the evolution of the rarest of rare case doctrine and ascertain whether such punishment is just and fair.

Research Objectives:
  • To study the meaning and determine the principles which are developed on the rarest of rare crimes philosophy.
  • To identify that if capital punishment is the only mode that can create terror in the society to not to commit a heinous or grievous crime.

Research Methodology:
The research methodology used in the research paper is qualitative and is based on secondary sources. The secondary sources of data include online websites, research papers, books based on Indian Penal Code, Reports published by renowned authorities, newspapers, legal databases that helps us to give interpretation on various cases, etc.

Research Questions:
  • What is the test that is required to give death penalty to a person in India?
  • Whether capital punishment is a suitable mode for the society in the present era?
  • What are the arguments that are against or in the favor of capital punishment?

Review of Literature:
There is a variety of material which is available on the concept of capital punishment. The literature review is analyzed in such a way, so, as to ascertain the work that has been done by various scholars on this concept so far.

According to Article 6 of ICCPR, 1979 [1] which provides that right to life is a wider concept and capital punishment should only be given in serious crimes but only minority states abolished it till 1954. ECOSOC in 1984 affirmed that death penalty should not have extreme consequences.[2]

Bentham's theory of utility, Greatest Good for Greatest Number offers that culprits through capital punishment can be removed for the greater good of the society. Similarly, Raffaele Garofalo, an Italian jurist truly supported capital punishment.[3]

Mahatma Gandhi is one who was against capital punishment as he believed that Ahinsa is the only way to deal with the situation. He beseeched, Hate Sin but not the Sinner. Dr. Ambhedkar believed on the principles of non- violence to be considered as a moral mandate.[4]

The theory of capital punishment based on rarest of rare cases is based on deterrent and retributive theory. The deterrent theory aims to punish an offender to create a sense of fear in his mind and abstain him to commit the crime again, whereas retributive theory is based on the principle of tooth for tooth and an eye for an eye.

In India, there are various laws which have the provision of death penalty such as under Indian Penal Code, 1860 ( Sec. 120- B, 121,132, 302, 303, 305, 364 A, 376 AB, etc), Commission of Sati Act,1987, 1985, Protection of Children from Sexual Harassment Act, 2012 and Criminal Law Amendment Act, 2013,etc.

The Law Commission 187th Report considered to ascertain the mode of execution during death penalty but it did not draw attention towards the constitutionality of the death penalty[5]. In its 262th report on death penalty, the Law Commission stated that the practice of death penalty must be abolished and should only be restricted to cases of terrorism and waging war against the State.[6]

The Death Penalty of India Report focuses on the socio- economic conditions of the prisoners who are sentenced to death penalty in India. More than 74.1% are economically vulnerable prisoners. It provides various views on the debate of abolition of capital punishment.[7]

Dr. S. Murlidhar in his article examines the test that has been applied for death penalty and states that there is need to realize the limitations of the judicial system and the importance of retributive theory in bringing the impact of peace and non- violence.[8]

The Ministry of Home Affairs states that death penalty is not deterrent to murder and for the same it has approached the Supreme Court to modify guidelines related to the death penalty and focusing it more to be victim- centric.

According to the latest Gallup's Poll (May,2020), 54% of the people believed that ignoring the legal aspect, death penalty is morally acceptable and 40% considered as morally wrong. 5% marked on it depends and 1% had no opinion about it whereas the Gallup's Poll (2019) 56% favored death penalty and 42% opposed it and 2% of the people had no opinion about it.[9]

History of Capital Punishment (Worldwide)

Capital Punishment has its traces throughout the history. The practice of death penalty to a person can be found in the ancient times. Considering such time, the punishment was awarded on petty things.

The period of death penalty can be divided into two types that is primitive period and ancient period. The ancient period consisted of giving punishment on an arbitrary basis which was decided by the King and at that time the law was oral and not at all codified. In primitive period, death penalty was awarded for cases like murder, theft, trespass and misuse of valuable things. The first ever codified law on death was introduced by King Hammurabi of Babylon in eighteen century B.C. granting death penalty for 25 different crimes such as murder, doing wrong at work, trespass etc. In history of England, the capital punishment became a common thing in the rule of William the conqueror and at the time of the rule of Henry VIII, it was recorded that 72,000 people were executed for capital punishment with committing offences of marrying a Jew, not confessing to a crime, and treason, stealing, cutting down a tree and robbing a rabbit warren.

The practice in America came in picture by the influence of Britain, when people migrated to America from Europe, they also brought such punishment with them and it was then practiced in America too.[1] In India, almost 755 people have been awarded death penalty. The mode of death penalty which is practiced in India is through hanging.[2]
If we look at the worldwide aspect regarding the modes of death penalty, it includes death by hanging, shooting, lethal injections, electrocution, gas inhalation, beheading, stoning and crucifixion.

Principle based on Death Penalty in India- Doctrine of rarest of Rare Cases:

The capital punishment in India is based on the doctrine of the rarest of the rarest cases. The doctrine means that to sentence a person for death the crime test should be fully satisfied and it should not favour the accused in any circumstances. This philosophy depends upon the perception that society takes and the court should consider variety of factors such as society's abhorrence, personality of the criminal, motive and manner of the commission of the crime, extreme indignations and antipathy to certain crimes such as rape of minor girls etc.

The courts award death sentence because it is the situation that demands for it due to constitutional compulsion that reflects the will of the society and not the judge- centric approach of the society.[3] However, the death penalty can only be awarded in special circumstances and there should be a balance between mitigating as well as aggravating factors.


The applicability of this doctrine is ambiguous as Justice Bhagwati himself believed that life of an offender decided by the minds of bench is violative of the fundamental rights as guaranteed in Article 14 and Article 21 of the Indian Constitution.

The philosophy of the rarest of the rare case was established in the case of Bacchan Singh v/s State of Punjab[4], the court provided the principles and guidelines that should be considered in granting death penalty to a person which are as follows:
A Court may impose death penalty, if:
  • If the murder has been committed after previous planning and involves extreme brutality.
  • If the murder involves exceptional depravity or murder has been committed of a person on public duty.
  • Capital punishment should not be given in every case; instead it should be given on the basis of the culpability of various cases. Before granting such punishment, the circumstances of offender and the crime must be taken care of.
  • The punishment can only be given when the life imprisonment falls short of the crime done by the offender.
  • Both aggravating and mitigating factors should also be considered and the balance between them must be maintained.
The court while giving death sentence must be rigor and fair irrespective of the emotions and the sentiments. One should consider the social nature of the crime as a murderer may belong to backward class and cases such as burning of bride; dowry death comes under the ambit of it.


The personality of a criminal plays a major role as the accused maybe an innocent child, a helpless woman. Therefore, the doctrine must only be followed when the crime committed is uncommon in nature and a man of ordinary prudence with reasonableness would not commit it. [5] On the other hand, the accused has right to be heard, appeal and pray before the President.

Considering the scope of this doctrine, the Supreme Court held that the constitutional validity of this doctrine and held that the purpose of this doctrine is not be a disincentive but a gesture to disapprove the crime on the part of society and if this doctrine or capital punishment is abolished then it will be riskier for the society.[6]

Thus, the doctrine or the philosophy of the rarest of rarest case in India is strictly followed with high degree of consideration in giving death penalty as the offenders do have their fundamental rights but that doesn't mean that they should be easily left. The circumstances and the facts are highly considered and then the punishment is awarded until and unless the crime is very grievous and it harms the ethics of the society and act as a model so as that people fear to not to indulge and commit such crimes again.

Examples:
According to NCRB and ACHR data from 2001-2020, only 8 people among the population of over 120 crores have been sentenced to death which are Dhananjoy Chatterjee( rape), Ajmal Kasab( Mumbai Terror Attack) ,Afzal Guru (Indian Parliament Attack), Yakub Memom (1993 Bombing) and Akshay Thakur, Mukesh Singh, Pawan Gupta, Vinay Sharma (Gang Rape). Considering the crimes committed by them, it was mandatory for the judiciary to safeguard the interest of the public and provide them capital punishment.

This acts as a proof that the doctrine of the rarest of rare case is strictly followed in India as the law believes that the offenders have their right to appeal but in exceptional cases the death penalty is required when the crime is too grave and no other alternative to fight against such crime is present.

On the other hand, in case where a 2nd standard girl was raped and she died due to excessive bleeding, the trial and the high court held accused to death sentence but the Supreme Court held that though the rape was brutal but it was not intentional.[7]

In Absar Alam v. State of Bihar[8] where the accused killed his mother by chopping her head, High Court considered this act as an act of inhuman nature of crime and awarded death penalty but Supreme Court set aside the High Court decision and held that accused was a cultivator residing in village and is illiterate and had no control over his emotions and situations. In another case, the accused killed her wife and children as he was unable to manage their expenses, therefore the court awarded him life imprisonment and not penalty because the main reason for the crime that he committed was poverty.

Thus, the courts try to maintain a balance and try to ascertain the best possible way that can be applied keeping in view all the circumstances that would have aroused during the commission of crime.

Arguments against Capital Punishment:

Human life is considered to be a valuable thing and people presume that even the offenders in their worst case should not be deprived of their right to life. Their right to life cannot be taken away just because of their bad conduct. It is the obligation of the State to protect the society and punish the wrongdoers but it should be done in a least harmful way and other various alternatives can be chosen to punish the wrongdoer.[1] The death penalty leads to execution of innocent people because of the deficiency in the system of justice. People included in the sphere of the justice such as prosecutors, witnesses and the jurat may be at error.

It is just an act of violence that leads to the risk of taking the lives of innocents.[2] People believe that death penalty based on retribution to provide justice is morally wrong and is just an emerged form of vengeance. Killing cannot be termed as wrong by killing. People who believe in the theory of retribution argue that capital punishment is against it as sentencing life imprisonment to an offender can cause an endless pain to the offender. [3] Such punishment has failed to provide with the deterrence effect as social scientists consensus proves that it affects only a small percentage of murderers. [4]

Death penalty only leads to brutalization of the society as well as the state's relation with its citizens. The way by which the political and social problems in the society can be curbed by killing is morally wrong and unacceptable. The current society does not endure torture and death penalty is not the solution to deal with dreadful crimes.[5]

Arguments for Capital Punishment:

The primary argument that supports capital punishment is that every guilty person should be punished and the punishment shall be proportional to the crime that he/she has committed. This argument supports the concept of justice.[6] J. Anand and J. N.P. Singh in one of their judgments stated that[7]-

Imposition of an appropriate punishment is way by which one can respond to society's cry for justice against the criminals. Justice asks for imposing punishment and befitting crime, so, that it can contemplate abhorrence of the crime.

Society has always utilized punishment as a mode to discourage criminals, since society aims to reduce heinous crimes, therefore, the strongest punishment shall be awarded and death penalty is apt for it. Offenders must be killed to prevent them from committing a crime again. It is considered as good to kill a man who is dangerous to the community and execution can be treated as a remedy to safeguard the interest of the society.[8]

There is no proof that death penalty has taken lives of innocent people, even if any case appears, it is rare to happen. Discretion has always played a major role, each case has different circumstances and they are minutely observed. Hence, it should not be considered as discriminatory in nature.[9] The fear definitely impacts human psychology, therefore, capital punishment ensures that the violation of any law shall not be taken in a lighter way; mandatory actions shall be implemented to upheld the law.[10]

Conclusion:
India is a democratic country and the preamble mentions, We the People of India where the benefit of people at large prevails. The Constitution of India guarantees people to live in a dignified manner, for this the State can punish anyone against the crime that is done against it. Considering the punishments, the death penalty is the highest punishment that one can get irrespective of one's (accused) right and dignity. India being a member of Universal Declaration of Human Rights did not abolish capital punishment but restricted the scope of such practice by establishing the philosophy of the rarest of rare cases.

Capital punishment is considered as a most inhuman and cruel punishment in the world. Many countries have abolished but India being an active member of United Nations and various other commissions of Human Rights has not abolished it yet. According to our judiciary, it is only implemented in exceptional circumstances that are rarest of the rare. India is a diverse country and based on rich culture. It is not the fact that crimes are originated in modern times and therefore, such punishment should be given.

In ancient times, the death penalty was awarded even for immaterial things. As the time passed, countries abolished it but India sticked to it because of the only reason that was people at large. As Mahatma Gandhi used to say that an eye for an eye makes everyone blind, though the crimes are originating but the circumstances are more brutal then it used to be earlier.

Death penalty in rarest of the rarest cases does not affect the principles of Human Rights as stated by ICCPR (The International Covenant on Civil and Political Rights) for those countries that have still not abolished it but with some restrictions imposed on it.

Granting harsh punishment creates a fear in the minds of people and restrict them not do it. In India, the deterrent theory comes into picture. In case of Macchi Singh[11], the Supreme Court awarded the death penalty on the demand of public at large. The mentality of human being keeps on changing. Considering the 2012 Delhi Gang Rape, every citizen of the country came together to fight against the brutal rape case against the girl Damini.

This created a revolution and opened the eyes of the judiciary and the criminals were sentenced to capital punishment in March,2020. One should understand that the law provides the rights to the accused too. A death penalty can only be granted when all the rights of the accused are exhausted.

Our Constitution gives right to pardon before President or Governor in cases where a terrorist commits a crime. It is believed that such acts cause harm to public at large and therefore they should be directly hanged to death according to Indian scenario. Such punishments are based on the basis of gravity of crime so that it creates fear in the mind of criminals to not commit it. There are many landmark cases where the accused was given death penalty but later on the decision was reversed as the judiciary stated that the accused won't harm public at large leading it to be just and fair. Therefore, from the above study, the doctrine of rarest of rare with respect to capital punishment proves that it is for the welfare for the people at large.

End-Notes:
  1. BBC, Arguments against Capital Punishment, Ethics Guide, ( July 4, 2020, 6:00 AM), http://www.bbc.co.uk/ethics/capitalpunishment/against_1.shtml
  2. Amnesty International, Death Penalty Facts, (July 4,2020, 6:15 AM), https://www.amnestyusa.org/pdfs/DeathPenaltyFactsMay2012.pdf
  3. United States Conference of Catholic Bishops, Campaign to end Death Penalty 2005,(July 4,2020, 6:30 AM), http://www.usccb.org/issues-and-action/human-life-and-dignity/death-penalty-capital-punishment/catholic-bishops-launch-major-catholic-campaign-to-end-the-use-of-the-death-penalty.cfm.
  4. Death Penalty Information Center, Deterrence, 2019,(July 4,2020, 7: AM), https://deathpenaltyinfo.org/policy-issues/deterrence#:~:text=The%20death%20penalty%20affects%20only,nor%20disproven%20a%20deterrent%20effect.
  5. Commissioner of Human Rights, Death Penalty brutalizing Society, 2007(July 4, 2020, 7: 15 AM), https://www.coe.int/en/web/commissioner/news/-/asset_publisher/easZQ4kHrFrE/content/-the-death-penalty-is-brutalising-for-society-?inheritRedirect=false
  6. BBC, Arguments in favour of Death Penalty, (July4 ,2020, 8:00 AM), http://www.bbc.co.uk/ethics/capitalpunishment/for_1.shtml
  7. Dhananjoy Chaterjee vs State Of W.B, 1994 SCR (1) 37, 1994 SCC (2) 220
  8. Elinor Gardner, Saint Thomas Aquinas on the Death Penalty,( July4, 2020, 8:30 AM), https://dlib.bc.edu/islandora/object/bc-ir%3A101201/datastream/PDF/view
  9. Michigan State University and Death Penalty Information Center, 2000, Arguments for and Against the Death Penalty, (July 4,2020, 9:00AM), https://deathpenaltycurriculum.org/student/c/about/arguments/arguments.PDF
  10. Zerick Duster, Why Death Penalty Should Stay 2018,(July 4 ,2020, 9:15 PM), .https://www.thehindubusinessline.com/opinion/why-the-death-penalty-should-stay/article8054902.ece#:~:text=Protect%20we%20must&text=The%20fear%20of%20death%20does,rule%20of%20law%20is%20upheld.
  11. 1938 AIR 1957,183 SCR 653
  12. Michigan State University and Department of Information Centre. (2006). Death Penalty When Generates Death Legally. Michigan State University Press. ( July 4,2020, 5:00 AM) , https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/michigan.
  13. aran Deol, Rarest of Rare- Death Penalty in India,(July 4,2020, 12:30 PM), https://theprint.in/theprint-essential/rarest-of-rare-history-of-death-penalty-in-india-and-crimes-that-call-for-hanging/383658/.
  14. Gala v. State of Punjab, AIR 2013 SC 1177.
  15. Bacchan Singh V. State of Punjab, (1980) 2 SCC 684.
  16. Rashi Vaishya, The Doctrine of the Rarest of Rare, ( July 4, 2020, 5:30 AM), http://www.legalserviceindia.com/legal/article-726-the-doctrine-of-rarest-of-the-rare.html#:~:text=The%20Doctrine%20of%20Rarest%20of%20Rare%20was%20established%20in%20the,State%20of%20Punjab%5B3%5D.&text=By%20the%20majority%20of%204,%E2%82%AC%C5%93rarest%20of%20rare%20cases.
  17. Jagmohan Singh V. State of U.P. (AIR 1973 SC 947).
  18. Amrit Singh V. State of Punjab (2007) 1 SCC (Cri) 41.
  19. Absar Alam v. State of Bihar AIR 2012 SC 968.
  20. United Nations, Human Rights Office of the High Commissioner, International Covenant on Civil and Political Rights, ( July 2,2020, 4:00 PM), https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
  21. The Economic and Social Council, Safeguards guaranteeing protection of rights of those facing the death penalty, ( July 2,2020, 6: 00 PM), https://www.unodc.org/documents/commissions/CCPCJ/Crime_Resolutions/1980-1989/1984/ECOSOC_Resolution_1984-50.pdf
  22. Francis A. Allen, Pioneers in Criminology IV--Raffaele Garofolo (1852-1934), (July 2,2020, 5:30 PM), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=4277&context=jclc
  23. Dr. B Karthik Navayan,Caste & Communal Dimensions of Death Penalty – Tsunduru vs Chilakaluripeta (July 3,2020 , 6:00 AM), https://roundtableindia.co.in/index.php?option=com_content&view=article&id=9430:caste-and-communal-dimensions-of-death-penalty-tsundur-versues-chilakaluripeta&catid=119:feature&Itemid=132
  24. Law Commission of India, 187th Report, 2003, ( July 3, 2020, 8: 45 PM), http://lawcommissionofindia.nic.in/reports/187th%20report.pdf.
  25. Law Commission of India, 262th Report, 2015, ( July 3,2020, 7: 15 PM), http://lawcommissionofindia.nic.in/reports/Report262.pdf
  26. NLU Delhi, Death Penalty of India Report,(July 3, 2020, 9:30 PM)., https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/5b4ced7b1ae6cfe4db494040/1531768280079/Death+Penalty+India+Report_Summary.pdf.
  27. Dr. S. Murlidhar ,Hang Them Now, Hang them Not : India's Travails with the Death Penalty, 40th Journal of Indian Law Institute (1998, p.143)., ( July 3,2020, 8:45 PM), http://www.ielrc.org/content/a9803.pdf
  28. Gallup, Death Penalty,( July 3 4:00 PM), https://news.gallup.com/poll/1606/death-penalty.aspx.

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