"No person shall be deprived of his life or personal liberty except according
to a procedure established by law."- Article 21
India is one of the 78 retentionist countries in the world where capital
punishment is still legal. The debate over the social and moral stigma
surrounding capital punishment has been discussed and debated for decades.
However, the court has, time and again, opined in the favour of death penalties
to be retained in the country.
The recent judgement, setting a date for the death penalty declared upon Shabnam
Ali and Saleem for the murder of 7 members of Shabnam's family in Amroha, Uttar
Pradesh, again sparked a nation-wide debate on what is considered to be an
orthodox and draconian punishment in the 21st century. In this paper, we will
look through an exegesis of arguments both in favour of and against capital
punishment in India, with regards to potential violations of the Right to Life
in India (Article 21).
Constitutional validity of capital punishment
Article 21 of the Indian constitution which grants the right to life as an
unequivocal and fundamental right, comes with certain limitations. The 35th Law
Commission Report of 1967 enumerated how discarding the death penalty
provisions in India would not be for the larger benefit of the society. Keeping
the protection of citizens at the primary point of their discussion, the report
held that upholding law and order in a country with a large area and vast
educational and moral differences, a provision for capital punishment was
integral to deal with certain cases.
The constitutional validity of capital punishment in India has also been
challenged numerous times in courts under Articles 14, 19 and 21. In Smt. Shashi
Nayar vs. Union of India, the court held that capital punishment did not violate
Article 21 of the constitution, as it was granted only in the "rarest of rare"
cases and through the procedure established by law.
Jagmohan Singh vs. State of UP
and Bachan Singh vs. State of Punjab
already set similar precedents upholding the constitutional validity of death
penalties in India. In this case the court had emphasised on the disparity in
the levels of morality and education in the country due to which, the country
cannot afford to take the risk of abolishing capital punishment completely.
However, in Machhi Singh vs. State of Punjab
, the court also clarified
that "life imprisonment is the rule, and death sentence is an
exception." Thus, death penalty is awarded only for the gravest of offences
where life imprisonment may not be an apt punishment. Furthermore, in Maneka
Gandhi vs Union of India
, it was held that the Right to life and personal
liberty of a person can be taken away only if the procedure established by law
is fair, just and reasonable.
This precedent can be applied to cases involving capital punishment as well. As
for Article 14, the court held in Rajendra Prasad v. State of Uttar Pradesh
that the article does not invalidate the awarding of a death penalty. In fact,
Article 14 ensures that a "non-arbitrary and civilized punitive treatment" is
provided to the accused especially on charges punishable with the death penalty.
Article 19 also stresses upon the reasonability of depriving one of one's right
to life, but does not invalidate capital punishment itself.
Analysis and conclusion
"An eye for an eye will make the whole world blind.
A basic argument for the repealing of the death sentence in India centres around
this principle. The absence of any deterrent effect, as first proposed by
Beccaria, also questions the aim/objective of capital punishment. The
irrevocable nature of the punishment is a strong argument in favour of the
repletion of death penalties. Court cases are decided by judges and most often
people forget that judges too, function as humans and not a form of divine
To human is to err, and in the cases of judges, an err can end a person's life.
This "mistake of law" however, is rectifiable in most cases. These mistakes can
take place when a there is disregard of key evidences, overlooking of some
integral evidence in the case etc. However, when a capital punishment is
awarded, this "mistake of law" becomes a permanent regret. A human loses his
life, and there is no rectification.
The barbarity of this idea was also one of the leading arguments that was
discussed before the law commission for its 35th report. As for the "fair, just
and reasonable" clause established in Maneka Gandhi vs Union of India, what
constitutes a fair, just and reasonable procedure is not mentioned anywhere in
the constitution. Thus, another question arises - Whether courts should have the
right to decide the fairness of procedures, which in itself is a highly
subjective area? What's fair for you, may not be a fair practice for another.
However, before coming to a conclusion, it is imperative to take into
consideration the opposing arguments. Beccaria's theory presents a strong point
on the absence of deterrent effects of capital punishment, but views the
applicability of law from a purely deterrent manner. In my opinion, the nature
of crimes should decide the severity of the punishment. Let's take the example
of the Harpe brothers in the US. The Harpe brothers were the first recorded
serial killers in the US who were responsible for more than 40 murders and
Their actions were brutal and included mutilation of bodies of the victims which
included even women and children. Now, in such a case, would Beccaria's argument
of prolonged punishments to "reform the offenders and prevent further crime"
provide justice to the victims? The answer is - no. In such cases, the aim of
law should not be to deter, but to deliver the most apt punishment possible.
This case further shows a contradiction in Beccaria's work. Beccaria argues
against the death penalty but also preached that a punishment should be
proportional to the crime.
A question here then arises:
Is capital punishment not proportional to the crimes committed by the Harpe
From a legal standpoint, all fundamental rights come with an exception. The
court considers some crimes to be so cruel and barbaric, that even a sentence of
life imprisonment is not considered an appropriate judgment. Take the example of
Shabnam Ali and Saleem as discussed in the introduction. Shabnam Ali is set to
be the first woman to be hanged in India since independence for the killing of
seven members of her own family, including her 10-month-old nephew.
In such cases, the question of what counts as an 'appropriate' punishment
becomes quite complex. Opposing the death penalty in such cases, might make one
seem to be insensitive and morally corrupted. Arguing for the life of a person
suspected of killing seven people including an infant, puts into question the
very integrity and compassion of a person. For the adversaries of capital
punishment a question arises - How should the death of seven people be avenged?
What is the appropriate punishment in such a scenario? If common citizens can
take away the life of others, why should the established courts of justice be
exempted from doing the same to provide justice to the victims? The situation of
law and order since the 35th report of the Law Commission has worsened and
currently shows no signs of improving. In this situation, abolishment of the
death penalty may lead to an unprecedented rise in the number of heinous crimes.
Apart from the jurisprudential standpoint, my personal understanding of the
situation is a little different. The reasoning of the legislature behind the
creation of Article 21 was to establish the right to life as a natural and
universal right to all citizens and even non- citizens. However, given the
subjective and unpredictable nature of humans, no right can be structured as an
absolute right with no limitations. As held by the court, death penalty is to be
awarded only in the rarest of rare cases and only for extremely heinous crimes.
For most participants on this debate, these heinous crimes remain abstract,
i.e., we have personally not been victims of such crimes, and neither have we
been emotionally connected to such cases. Thus, we debate about the repletion of
the capital punishment, but would we hold the same view, if someone close to us
becomes the victim of such a crime? Would we still look at the death penalty as
barbaric, if the victim is not just some stranger, but a near and dear one?
We enjoy a privilege when discussing the merits and demerits of capital
punishment, as we are exempt from the anguish felt by those who were the most
affected due to these crimes. Moreover, abolishment of the death sentence in the
absence of an 'appropriate' alternative punishment is not possible. Certain
crimes, the Delhi gang rape case for example, may be deemed to be too grave for
a sentence like life imprisonment.
- Government of India. (1967). Law Commission Report. Ministry of Law.
- Smt. Shashi Nayar vs. Union of India, 1992 AIR 395.
- Jagmohan Singh vs. State of UP and Bachan Singh vs. State of Punjab,
1980 2 SCC 684.
- Machhi Singh vs. State of Punjab, 1983 AIR 957.
- Maneka Gandhi vs Union of India, 1978 AIR 597.
- Rajendra Prasad v. State of Uttar Pradesh, 1979 AIR 916.