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
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.
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.
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.
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.
- 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.
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.
Review of Literature:
- What is the test that is required to give death penalty to a person in
- Whether capital punishment is a suitable mode for the society in the
- What are the arguments that are against or in the favor of capital
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  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.
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
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.
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. 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
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.
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.
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.
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. In India, almost 755 people have been
awarded death penalty. The mode of death penalty which is practiced in India is
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
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. 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
, 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
- 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
- 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.  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.
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.
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
In Absar Alam v. State of Bihar
 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. 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. 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.  Such
punishment has failed to provide with the deterrence effect as social scientists
consensus proves that it affects only a small percentage of murderers. 
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.
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. J.
Anand and J. N.P. Singh in one of their judgments stated that-
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
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.
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. 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.
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
, 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.
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