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Capital punishment in India; Constitutional Validity of Capital Punishment


All punishments are based on the same premise: a penalty must be imposed for transgression. The penalty is inflicted for two basic reasons. One is the conviction that punishing wrongdoers is both right and just, while the other is the view that punishing wrongdoers deters others from committing wrong. The death penalty is based on the same premise as other penalties.[1] The discussion about capital punishment is the most widely relevant debate, given the current scenario. In India, capital penalty is a necessary aspect of the criminal justice system. With the growing power of India's human rights movement, the immorality of capital punishment is being questioned. However, this is a strange argument because keeping one person alive at the expense of the lives of many other members or prospective victims in society is unthinkable and, in fact, unethical.[2]


Capital punishment, commonly known as the death penalty, is the execution of a person who has been sentenced to death by a court of law. Extrajudicial executions carried out without due process of law should be separated from capital punishment. Because of the potential of commutation to life imprisonment, the terms death sentence and capital punishment are sometimes used interchangeably. However, imposition of the penalty does not always result in execution (even when it is sustained on appeal).[3] The term "Capital Punishment" refers to the harshest type of punishment. It is the retribution that will be meted out to those who commit the most egregious, severe, and abhorrent crimes against mankind. While the meaning and scope of such offences differ from country to country, state to state, and age to age, the death penalty has always been the connotation of capital punishment. The term "capital sentence" is commonly used in law, criminology, and penology to refer to a death sentence.[4]


The death penalty is a long-established sanction. There is almost no country in the planet that has never used the death sentence. The history of human civilisation indicates that capital punishment has never been abolished as a form of punishment.[5] Under the laws of Draco (fl. 7th century BCE), capital penalty for murder, treason, arson, and rape was commonly utilised in ancient Greece, however Plato thought that it should only be used for the incorrigible. It was also used by the Romans for a variety of misdeeds, though citizens were exempted for a brief while during the republic.[6] This is supported by Sir Henry Marine's statement that "the Roman Republic did not abolish the death penalty, while its non-use was principally controlled by the practise of punishment or exile, as well as the system of questions".[7]


The notion of the rarest of the rare cases governs capital punishment in India. According to this philosophy, in order to sentence someone to death, the crime test must be completely completed, and it must not favour the accused in any way. This theory is based on the belief that the court should take into account a range of variables such as society's abhorrence, the criminal's personality, the reason and manner of the crime's commission, intense indignation and antipathy to certain crimes such as rape of little girls, and so on.

The courts impose the death penalty because the situation requires it, and constitutional compulsion expresses society's will.

The theory of the rarest of rare cases was developed in the landmark case of Bachchan Singh v. State of Punjab (1980)[8], in which the Constitutional Bench questioned the constitutionality of the death punishment for murder under section 302 of the Indian Penal Code. The facts of the case were that the appellant had been convicted of three murders and sentenced to death by the Sessions Court under section 302 of the Indian Penal Code.

The appellant's appeal was dismissed by the High Court, which upheld his death sentence. The appellant appeared before the Supreme Court on Special Leave to Appeal to raise the question of whether the facts of his case were special reasons for dismissal.[9][10]

In this case, the Supreme Court dismissed the constitutional challenges to section 302 of the IPC and section 354(3) of the CrPC, concluding that: the impugned provision of section 302 of the IPC, 1860 violates neither the letter nor the ethos of Article 19 of the Constitution of India, and that a genuine and abiding concern for the dignity of human life precludes taking a life through the use of laws. That should only be done in the most extreme of circumstances.

The Court has established guidelines and principles to be followed and considered when a person is sentenced to death, which are listed below.


• If the assassination was carried out with unusual forethought and severity.

• If the murder is done with extreme depravity or if the victim is a public servant.

• Why The death penalty should not be used in every case. Instead, it should be based on the degree of responsibility in different circumstances. The circumstances of the offender and the offence must be considered before such a punishment is imposed.

• The penalty can only be imposed if life imprisonment is insufficient to punish the offender's offence.

• Both aggravating and mitigating elements must be examined, and a balance must be maintained between them.

The Supreme Court went on to say that the constitutional legality of this doctrine and the goal of this doctrine is not to be a deterrent but to be a gesture of society's disapproval of the crime, and that if this doctrine or death penalty is eliminated, it will be riskier for society.

As a result, in India, the idea of the rarest of rare circumstances is closely observed, with a great degree of attention given to the imposition of the death penalty, as offenders do have fundamental rights, but that does not imply they should be left alone. The circumstances and facts are carefully evaluated before the punishment is imposed, unless the crime is very heinous and affects society's ethics and serves as an example for others to avoid indulging in and committing similar crimes in the future.


India is one of the few countries that has not totally abolished capital punishment or enacted legislation establishing its legitimacy and constitutionality. Since the Indian Constitution was enacted, a number of Supreme Court petitions have been filed challenging the validity of the death penalty.

There are seven offences that can result in the death penalty being applied. These are some of them:

i. murder,

ii. dacoity in conjunction with murder,

iii. assisting a child, insane, or drunk person in committing suicide.

In 1973, Jagmohan Singh versus State of Uttar Pradesh [11]was the first challenge to the death penalty. In this case, it was alleged that judges had the arbitrary power to inflict the death sentence under Articles 14, 91, and 21, that the death penalty extinguished all fundamental liberties under Article 19, and that there was no fair sentencing procedure for the death penalty under Article 19. The Supreme Court ruled that the death sentence did not infringe any basic rights or freedoms and was therefore lawful.

The next major breakthrough in capital penalty law was Maneka Gandhi versus Union of India[12], which established two important safeguards: first, that all fundamental rights are not mutually exclusive. A statute has to pass the test of Articles 14, 19, and 21 taken together in order to be pronounced constitutional.

Furthermore, any procedure established under Article 21 must be fair, just, and reasonable, and cannot be whimsical, oppressive, or arbitrary, according to this ruling. Bachchan Singh versus State of Punjab[13], a landmark challenge against capital punishment in 1980, was heard under this paradigm by a five-judge bench.

In India, there have been a variety of viewpoints on the death penalty, with some advocating for its continued use and others advocating for its abolition.


At this time, the old methods of administering death punishment have been phased out, and new procedures are being used to decrease the physical anguish that the culprit feels while dying.

• Hanging

• Beheading

• Stoning

• Lethal Injection

• Shooting by fire squad

• Shooting

• Electrocution

• Gas chamber

• Falling from an undetermined height are some of the latest ways used for death punishment


In Rajendra Prasad v. State of U. P[14]., Justice Krishna Iyer emphatically said that the death sentence is a violation of articles 14, 19, and 21 of the Constitution. Her statement stated that in order to apply the death sentence, two conditions must be met:

• The special reason for imposing the death penalty in a case must be recorded; and

• The death penalty must be imposed only under exceptional circumstances.

Furthermore, in Machhi Singh v. State of Punjab[15], the Supreme Court established wide guidelines for when the death penalty should be applied. According to Justice Thakkar, speaking for the Court, five types of cases can be classified as the rarest of rare cases, deserving of the most severe punishment. They are as follows:

• Murder in the Manner of Commission. When a murder is carried out in the most heinous manner possible in order to elicit intense and extreme outrage.

• When the murder is performed for an animosity or depravity-based motive.

• When a person from a scheduled caste or minority group is murdered and his or her death is deemed to be socially reprehensible or anti-social.

• The severity of the crime must be taken into account. Multiple murders of family members or members of a certain caste or group, for example.

• Finally, the personality of the murder victim must be considered.


Many countries have abolished the death penalty or capital punishment, citing the fact that it is brutal and inhumane in nature, and that it violates citizens' rights to life and liberty. If a valid view is to be accepted, it is reasonable to conclude that capital punishment, especially in its most heinous form, is beneficial in lowering criminal offences and discouraging criminals to some extent.

Furthermore, if we're talking about the right to life, it's important to note that the Indian Constitution allows enough remedies and defenses to offenders, such as the access to legal assistance, treatment, and so on. In the instance of a convicted felon accused with committing a horrific crime against an individual or the country as a whole, the right to life is not an absolute right.

As a result, I believe that capital punishment is constitutionally valid and reasonable if it is used only in the most heinous and extreme circumstances. Furthermore, a person who does not value the lives of others or the integrity of his or her own country, in my opinion, should not be treated with empathy. Even though it is difficult to define which crimes deserve capital punishment, crimes of a grave nature such as rape, terrorism, and murder should always be punished with capital punishment or the death sentence.

[1] [2] [3] [4] Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1 [5] Op.cit. Capital Punishment by Dr. Subhash C. Gupta, 2000, p. 1 [6] [7] Op.cit. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1 [8],2. [9],special%20reasons%20for%20such%20sentence [10] [11] [12] [13],2. [14] [15]

This article is written by Parul Sagar of Bharti Vidyapeeth New Law College.

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