Capital punishment or death penalty have always been a topic of contradiction
not only in India but also in several developed countries. In India, the motive
for providing punishment is based on two aspects; the first being that the
offender should suffer for the pain and injury he/she casted upon the victim and
another motive is to discourage others from committing wrongs by sanctioning
punishments. This paper focuses on Capital Punishment in India which is also
known as the death penalty which is awarded by the court in very rare cases.
Furthermore, this paper also explores the constitutional validity of capital
punishment in the context of Indian Judiciary.
To understand the present status of Capital Punishment in India, it is important
to know the history of advent of capital punishment and why is it given only in
certain crimes, making it a contradictory topic from a moral point of view.
Therefore, this paper shall deal with the history of Capital Punishment,
followed by landmark cases decided by the Indian Courts.
In order to acquire clarity of Capital Punishment on a large scale, it is
essential to have the knowledge of differentiating ideologies of other countries
So, this paper will also briefly define methods used by different countries for
giving capital punishment, including India. This paper extols the opinions as to
why this sort of punishment is a formidable question on morality and its aspects
while delivering at the same time, arguments for the veracity of its need.
Objectives Of The Study
The aim of the following study is:
- To study the meaning of the doctrine of rarest of rare cases
- To identify the constitutional validity of capital punishment.
- To understand the value of differing judicial opinions on its
Doctrine methodology is adopted for this project research. It involves the use
of secondary data which is collected from various articles, websites, books etc.
Doctrinal research asks what is law on a particular issue. It is concerned with
analysis of the doctrine and how it has been applied and developed. This type of
research is known as pure theoretical research. It consists of, either simple
research directed at finding a particular statement of law or, more complex and
in-depth analysis of legal reasoning.
Constitutional Validity of Capital PunishmentDefinition
Capital Punishment can be defined as the lawful execution of an offender, who
was sentenced to death after conviction by a Criminal Court. The lawful
execution here indicates adherence to the due process of law, which specifies
that capital punishment is different from extrajudicial executions which are
carried out without due process of law.
History of Capital Punishment
To comprehend the current validity of capital punishment, it is essential to
decipher the historical background of its origin. Capital punishment
for murder, treason, arson, and rape was widely employed in ancient Greece under
the laws of Draco, though Plato argued that it should be used only for
the incorrigible. The Romans also used it for a wide range of offenses, though
citizens were exempted for a short time during the republic.
It also has been
sanctioned at one time or another by most of the world’s major religions.
However, the prevalence of capital punishment in ancient times is difficult
to ascertain, but it seems likely that it was often avoided, sometimes by
the alternative of banishment and sometimes by payment of compensation. Death
was formerly the penalty for a large number of offenses in England, during the
17th and 18th centuries, but it was never applied as widely as the law provided.
As in other countries, many offenders who committed capital crimes escaped the
death penalty, either because juries or courts would not convict them or because
they were pardoned, usually on condition that they agreed to banishment; some
were sentenced to the lesser punishment of transportation to the then American
colonies and later to Australia.
From ancient times until the 19th century,
many societies like Rome, China and Europe administered exceptionally cruel
forms of capital punishment. Although by the end of the 20th century many
jurisdictions like nearly every U.S. state that employs the death penalty,
Guatemala, the Philippines, Taiwan, and some Chinese provinces, had
adopted lethal injection.
Historically, executions were public events, attended by large crowds, and the
mutilated bodies were often displayed until they rotted. Since the mid-1990s,
public executions have taken place in some twenty countries, including Iran,
Saudi Arabia, and Nigeria, though the practice has been condemned by the United
Nations Human Rights Committee as incompatible with human dignity.
Doctrine of rarest of rare cases
The capital punishment in India is based on the doctrine of the rarest of the
rarest cases. According to this doctrine, 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 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 the situation demands for it as
constitutional compulsion reflects the will of the society.
The philosophy of the doctrine of rarest of rare case was established in the
landmark case of Bachchan Singh v. State of Punjab
, (1980) where the
Constitutional Bench raised question in regard to the constitutional validity of
death penalty for murder under section 302 of the Indian Penal Code. The facts
of the case were such that the appellant in a criminal appeal, was convicted for
three murders and was sentenced to death under section 302 of the Indian Penal
Code, by the Sessions Court.
The High Court rejected the appellant’s appeal and
confirmed his death sentence. The appellant, by Special Leave to Appeal, came up
before the Supreme Court to raise the consideration that whether the facts of
his case were ‘special reasons’ for awarding him death penalty under section
354(3) of Code of Criminal Procedure, 1973.
The Supreme Court in the present case dismissed the challenges pertaining to the
constitutionality of section 302 of IPC and section 354(3) of CrPC and finally
the impugned provision of section 302 of IPC, 1860 violates neither
the letter nor the ethos of Article 19 of the Constitution of India and that a
real and abiding concern for the dignity of human life postulates resistance to
taking a life through law’s instrumentality. That ought not to be done except in
rarest of rare cases.
The Court further provided the guidelines and principles
to be adhered to and considered while giving death penalty to a person, which
are enumerated below;
A Court may impose death penalty:
- If the murder has been committed after peculiar 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.
Considering the scope of this doctrine, the Supreme Court further held that:
constitutional validity of this doctrine and 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 of the rarest of rare cases is strictly followed in India,
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 that people fear in indulging
and committing such crimes again.
Constitutional Validity of Capital Punishment in India
India is one of the countries that has neither completely abolished the
provision of capital punishment nor has created laws specifying its legality and
validity. Since the establishment of the Indian Constitution, a number of
challenges to the constitutionality of the death sentence have arisen through
Supreme Court petitions.
There are seven crimes under which offenders may be sentenced to the death
penalty. These include;
- dacoity accompanied with murder,
- abetment of suicide of a minor or insane or intoxicated person.
The first challenge to the death penalty came in 1973, with Jagmohan Singh vs
State of Uttar Pradesh
. In this case, it was claimed, under Articles 14, 91,
and 21, that judges possessed the arbitrary power to impose the death penalty;
that the death penalty annihilated all fundamental freedoms under Article 19,
and that there was no fair sentencing procedure with regard to the death
penalty. The Bench in this judgement upheld that ‘the death penalty did not
violate any fundamental rights or freedoms, and that it was indeed
The next development in capital punishment regulation came from Maneka Gandhi vs
Union of India, which ensured two essential safeguards: first, that not all
fundamental rights are distinct from one-another. Specifically, in order to be
considered constitutional, a law needed to pass the test of Articles 14, 19, and
Further, this judgement asserted that any procedure established under Article 21
needed to be ‘fair, just and reasonable,’ and couldn’t be fanciful, oppressive, and arbitrary
. It was under this framework that the five
judge Bench considered the landmark challenge to capital punishment in 1980,
through Bachchan Singh vs State of Punjab
There have been several diverse opinions regarding the death penalty in India as
some are in the favour of the retention of capital punishment while others are
in the favour of its abolishment.
Methods of giving capital punishment
At present, the ancient methods have been abolished for providing capital
punishment and new techniques are being adopted in order to reduce the physical
pain experienced by the offender while dying.
The new methods adopted for
providing capital punishment include:
- Lethal Injection
- Shooting by fire squad
- Gas chamber
- Falling from an unknown height
Arguments: For and Against
Those who are in the favour of death penalty argue that it should be given in
the most heinous and rarest of the rare crimes, for example ‘Delhi gang rape
case’ in which the demand for death penalty for the accused was raised. The
people who are against the capital punishment argue on the religious, moral and
ethical grounds and declare it inhuman and a callous investment. It is also
suggested that it should be replaced with life imprisonment or any other
substitute. However, contemporary arguments for and against capital punishment,
fall under three general headings namely;
Supporters of the death penalty believe that those who commit murder, because
they have taken the life of another, have forfeited their own right to life.
Opponents of capital punishment, argue that, by legitimizing the very behaviour
that the law seeks to repress, killing; capital punishment is counterproductive
in the moral message it conveys. Moreover, they state that when it is used for
lesser crimes, capital punishment is immoral because it is wholly
disproportionate to the harm done. Abolitionists also claim that capital
punishment violates the condemned person’s right to life and is fundamentally
inhuman and degrading.
Supporters of capital punishment also claim that it has a uniquely potent
deterrent effect on potentially violent offenders for whom the threat of
imprisonment is not a sufficient restraint. Opponents, however, point to
research that has demonstrated that death penalty is not an effective deterrent
than the long-term imprisonment.
There also are disputes about whether capital punishment can be administered in
a manner consistent with justice. Those who support capital punishment believe
that it is possible to fashion laws and procedures that ensure that only those
who are really deserving of death are executed. By contrast, opponents maintain
that the historical application of capital punishment shows that any attempt to
single out certain kinds of crime as deserving of death will inevitably be
arbitrary and discriminatory.
They also point to other factors that they think
preclude the possibility that capital punishment can be fairly applied, arguing
that the poor and ethnic and religious minorities often do not have access to
good legal assistance, that also enhances racial prejudice. Finally, they argue
that, because the appeals process for death sentences is protracted, those
condemned to death are often cruelly forced to endure long periods of
uncertainty about their fate.
Judicial opinions on Constitutionality of capital punishment
In the case of Rajendra Prasad v. State of U.P
, Justice Krishna Iyer empathetically
stressed that death penalty is violative of articles 14, 19 and 21. Her further
said that to impose death penalty two things are required that should be
- The special reason should be recorded for imposing death penalty in a
- The death penalty must be imposed only in extraordinary circumstances
Further, the Supreme Court in Machhi Singh v. State of Punjab
, laid down broad
outlines of the circumstances when death penalty 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:
- The Manner of Commission of Murder. When the murder is committed in the
most brutal manner so as to give rise to intense and extreme indignation
- When the murder is committed for a motive which speaks of enmity or
- Where a person from scheduled caste or minority community is murdered
and his/her murder can be said to have a socially abhorrent nature or an
- Magnitude of the crime must be considered. For example, multiple murders
of family members or a particular caste or community.
- Lastly, the personality of the victim of murder must be taken into
In Deena v. Union of India
, the Court held that:
section 345(5) of the IPC,
which prescribed hanging as mode of execution as fair, just and reasonable
procedure adhering to the meaning of Article 21 of the Indian Constitution and
In Mithu v. State of Punjab
Section 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 deprived the
judiciary of its discretionary power and thus, results in an unfair and unjust
procedure that costed a man his life.
Justice A.K Ganguly of the Supreme Court has termed the award of death sentence
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
Justice Sarkaria, in his elaborate majority judgement stressed on one aspect
saying that I fail to see why too much importance should be attached to the
life of an individual who has been found guilty of a heinous offence when the
interests of the society demand that death penalty should be awarded to him.
Often in the event of a riot, the police are required to open fire in the
interests of society, if other methods fail. In such a firing, even an innocent
soul can be injured or killed.
So, shall we infer from this that the police
should never resort to such drastic measures in order to disperse an unlawful
assembly, merely because there is danger to the life of an innocent? No one will
ever ask this question or say that. If so, then why should we have a sudden
change of conscience for awarding death penalty.
In Sher Singh v. State of Punjab
, the Supreme Court held that the death penalty
is constitutionally valid and permissible within the constraints of the rule in Bachchan Singh. This has to be accepted as the law of the land.
In the case
of State of U.P v. Satish
, the Supreme Court held that:
the consequences would be serious if the courts became lenient in delivering
punishment for grave crimes, and so, therefore, death penalty for a rape of a
six-year old girl seems constitutional and appropriate.
In the famous case of Ajmal Kasab, the Mumbai Special Court convicted Ajmal
Kasab for murder, waging war on India, possessing explosives and other charges
and after three days from his conviction sentenced him to death. Furthermore,
this decision was upheld by the Bombay High Court stating that he was guilty of
80 offences in total and the only punishment fit for killing 166 people in 26/11
attacks in Mumbai, seems to be death penalty. His death sentence was upheld by
the Supreme Court also.
The Apex Court in Shankar Kisanrao Khade v. State of Maharashtra
assistance of the Law Commission. The Law Commission in its 262nd report,
answered the question by observing that the death penalty does not serve any
penological goal of deterrence any more than life imprisonment in all matters
and recommended the abolition of death penalty in all matters except terrorism.
It expressly highlighted that the focus of debate on the death penalty ignores
the pertinent and more important problems ailing the criminal system like poor
defective investigation, crime prevention, victims’ rights, ineffective
prosecution and poor legal aid.
Many countries have abolished death penalty or capital punishment by providing
justification that it is barbaric and inhumane in nature and violates the right
to life and liberty given to the citizens of the countries. However, if a valid
opinion is to be taken, it would be right to say that capital punishment even in
its brutal nature is effective in reducing criminal offences and discouraging
offenders to some extent.
Moreover, if we are to talk about the right to life,
it would be correct to stipulate that the Constitution of India provides enough
remedies and defences to the person of offenders such as right to legal aid,
right to treatment etc. And right to life is not an absolute right in case of a
convicted felon who was charged for some heinous crime against an individual or
the country at large.
Therefore, in my opinion, capital punishment is
constitutionally valid and reasonable provided it is given in cases of grievous
and extreme nature. Furthermore, in my opinion, a person, who neither values the
life of others nor values the integrity of his/her own nation, should not be
treated with empathy. Even though it is hard to quantify the crimes in terms of
which crime deserves capital punishment, still, crimes of grievous nature like
rape, terrorism and murder should always be awarded with capital punishment or