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The idea of administration of justice is essentially and intricately linked with punishing the offenders.As famously observed by the SC in the Nirbhaya case That imposition of appropriate punishment is the manner in which courts respond to society’s cry for justice against the crime. Punishment necessarily implies some kind of pain inflicted upon the offender or loss caused to him for his criminal act which may be either be intended to deter him from repeating the offense or may be an expression of society’s disapprobation for his anti social conduct or it may also be directed to reform and regenerate him and at the time protect the society from law breakers.

Amongst the many form of the punishments, one is, capital punishment, popularly known as death sentence or penalty.It has been recognised as the most appropriate punishment for the utmost grave,heinous and detestable crimes. Capital Punishment has a customary sanction for its widespread use since ancient times all around the world. However, with the development of society the conflict between human rights and death sentences has significantly deepened. The argument in favour of former is that capital punishment is a symptom of culture of violence and not a solution to it and the right to life is the foundation of a human society.

In favour of capital punishment, Jacques Barzun speaks if a person of adult bodyhas not been endowed with adequate controls against irrationally taking the life of another, that person must be judicially, pain-lessly, regretfully killed before that mindless body's horrible auto-mation repeats.

While the countries like Germany, Austria,Netherlands,Denmark and some Latin countries have abolished the capital punishment, India still retains it.

Stance taken by the Indian Judiciary

The position of death penalty in India has always been an engaging case study with notable evolution points. Firstly, section 354(3) CrPc mandates for recording of special reasons for awarding a convict with a death sentence. Secondly, over a period of time the SC has upheld constitutional validity of the capital punishment via numerous judicial pronouncements. In Jagmohan Singh v State of UP, SC succinctly observed deprivation of life is constitutionally permissible if that is done according to the procedure established by law. Subsequently, in Rajendra Prasad v State of UPSC emphasized on significance of 354(3) CrPc and observed The reasons must show why a life sentence would not suffice. Since taking life destroys the dignity of a person, the reasons must show why such a drastic step is justified; consequently, it can only be in exceptional circumstances that such a step must be taken. It was further held that the death sentence abrogates fundamental freedoms guaranteed under Article 19 of the Constitution of India, 1950 and therefore the exercise of the discretionary power to impose the death sentence must show that such a sentence is a reasonable restriction otherwise it would be violative of the Constitution. Further, in Bachan Singh v. State of Punjab The SC laid down the doctrine of rarest of rare cases for awarding death sentences. The said doctrine is crystallised in the observations that extreme penalty like capital punishment can only be inflicted only in gravest cases of extreme culpability and in deciding such matter due regard to circumstances of offender must also be paid. The resort to death sentence is to be taken when probability any alternative punishment is ‘unquestionably foreclosed’. The judgment in the Bachan Singh case is a milestone in judicial history of our country as well as in the incessant debate of Abolitionists and Retentionists in the sense as it articulately advocates for certain propositions argued by the Abolitionists while keeping in mind the incorrigible nature of certain crimes. The crux of the Bachan Singh case lies in the statement that aggravating circumstances must be weighed against the mitigating circumstances so as to ensure the option of life imprisonment is ‘unquestionably foreclosed’.

Subsequently cases have developed this position to that of the state (which the prosecuting agency) having onus to lead evidence to establish that there is no possibility of reformation of the accused for the court to impose capital punishment.

Another legal provision u/s 235(2) CrPC mandates that a Judge shall hear the convict on question of sentence and then pass the sentence on him according to the law. It thus creates a check and balance for exercise of discretionary power provided to the Judges in deciding the sentence. In Dattaraya v State of Maharashtra The death sentence of the accused was commuted to life imprisonment by the SC on the ground that adequate sentence hearing was not held. It was observed that “for effective hearing under Section 235(2) of the Code of Criminal Procedure, the suggestion that the court intends to impose death penalty should specifically be made to the accused, to enable the accused to make an effective representation against the death sentence, by placing mitigating circumstances before the Court. This has not been done.

The trial court made no attempt to elicit relevant facts, nor did the trial court give any opportunity to the petitioner to file an affidavit placing on record mitigating factors. As such the petitioner has been denied an effective hearing,”

The objective of the SC via Bachan Singh Case was to subject sentencing capital punishment according to law and not on individual whim. However even after almost 42 years ,there are significant inconsistencies in awarding death sentences by the lower courts throughout the country. The different approaches hence adopted have certainly posed a threat of arbitrariness creeping in the matter.

Where are we after the Bachan Singh case?

The recent uproar regarding the viability and procedural efficacy of awarding capital punishment is highlighted in two cases of this year. In Manoj & ors v. State of MP The SC pitched for coherence of procedural aspects regarding mitigating circumstances in the lower courts. It elaborately reiterated the framework laid down in and post Bachan Singh case. The holistic approach of collecting mitigating circumstances includes reports of probation officers, psychological evaluation, socio-economic conditions, criminal antecedents and age of the accused.

Further a three judge bench headed by CJI UU Lalit, in re: Framing Guidelines Regarding Potential Mitigating Circumstances To Be Considered While Imposing Death Sentences conclusively urged for urgent need for uniformity of approach in sentencing death penalty by lower courts keeping in mind the underlying principles of Bachan Singh Case. It thus referred the matter to a five judge bench to formulate a concrete set of mitigating circumstances to be followed. The court observed that inherent nature of irreversibility of the death penalty calls for utmost fairness to be ensured.

The SC in the aforesaid cases has acknowledged the efforts of Project 39A in highlighting the wide disparity in judgements concerning the death penalties, wherein more often than not, an accused is under represented and role of a probation officer is overlooked.


Nevertheless, the situation in hand has set a stage for development of Indian Jurisprudence on the matter. The judiciary has embarked on a notable path while carving out the mitigating circumstances for death sentences. The public conscience also urges for exploration in the probabilities of the reformation. The narrative of the society is subject to constant changes however the role of judiciary remains the same, that is, to strike a balance ! The basic principle of justice and human rights vests in the fair opportunity being given to both contesting parties. Indian judiciary has given a paradigm shift to debate regarding capital punishment and now it heads to concretise it.

This article is written by Aditi Singh Pal of Law Centre - I, Faculty of Law, University of Delhi.

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