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Key issues:
Indian Penal Code of 1860 - Constitutional provisions - the history of the debate pre and
post independence - political parties and the discussion on the subject including
abolition - widening the scope of the penalty and its reasons (drugs, terrorism, social
crimes) - Judicial interpretationsÊ
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The position: Legal, Constitutional, Political

Capital Punishment is laid down as a penalty in several legislative Acts, such as the
Indian Penal Code, 1860, (IPC) and the penalty provisions of national security and anti-
narcotics legislation. Under the IPC eleven offences are punishable by death. A death
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sentence may also be imposed for a number of offences committed by members of the
armed forces under the Army Act, 1950, the Air Force Act, 1950 and the Navy Act 1956.
The death penalty has been used by the Government of India since India¶s
independence (1947). According to the Supreme Court of India, the Constitution of India
envisages use of capital punishment as a legitimate penalty in criminal cases. Article 21
(µprotection of life and personal liberty¶) states:

No person shall be deprived of his life or personal liberty except according to

procedure established by law. (emphasis added)
Article 72 empowers the President of India to grant pardons µin all cases where the
sentence is a sentence of death¶. These provisions together implicitly recognise that the
death penalty itself is constitutional, although its application is subject to certain
constitutional constraints. The Supreme Court has accordingly concluded that µin the
face of these indications of constitutional postulates it will be very difficult to hold that
capital sentence was regarded per se unreasonable or not in the public interest.
(Jagmohan Singh v State of Uttar Pradesh AIR 1973 SC 947 at 952).
Several legislative attempts to abolish the death penalty in India have failed. Before
Independence a private Bill was introduced in the 1931 Legislative Assembly to abolish
the death penalty for penal code offences. The British Home Secretary at the time
however rejected the motion. The Government of independent India also rejected a
similar Bill introduced in the first Lok Sabha (lower house of the Indian Parliament).
Resolutions introduced in the Rajya Sabha (upper house) in 1958 and 1962 met with a
similar fate; but the Government agreed to forward copies of the 1962 house debates of
the Law Commission which was at the time reviewing the Indian Penal Code, 1860 and
the Code of Criminal Procedure, 1908. The Law Commission in its Report presented to
the Government in 1967 and to the Lok Sabha in 1971 concluded that the death penalty
should be retained and that the executive (President) should continue to possess
powers of mercy.
National discussion about the death penalty has resurfaced from time to time.The Lok
Sabha specifically discussed abolition of the death penalty in 1983. While the Prime
Minister at the time publicly favoured abolition, her Minister in Home Affairs denied that
the Government was considering any specific proposals to abolish the death penalty.
More recently the debate over death penalty was reinvigorated when all 26 defendants
in the Rajiv Gandhi assassination case were sentenced to death.
In fact in recent years the Indian Parliament (Lok Sabha and Rajya Sabha) has
dramatically extended the scope of the penalty. The Terrorist and Disruptive Activities
(Prevention) Act, 1985 (TADA) which was extended in 1987 empowered special courts
to impose the death penalty for certain broadly defined µterrorist¶ acts. Although the
Parliament decided to let this hugely unpopular and controversial Act lapse in 1995 it is
now considering new legislation, in the form of the Prevention of Terrorism Bill which
would reintroduce many aspects of TADA.
Use of the death penalty has also been extended through other legislation. The
Commission of Sati (Prevention) Act, 1987, which prescribes punishment by death for
any person who either directly or indirectly abets the commission of µsati¶ (immolation of
a widow). The Narcotics, Drugs and Psychotopic Substances (Amendment) Act, 1988,
introduced the death penalty as a punishment for financing, or engaging in the
production, manufacture or sale of narcotics or psychotopic substance of specified
quantities (e.g. opium 10 kgs, cocaine 500 gms) after previous convictions. The
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, introduced
the death penalty for fabricating of providing false evidence that results in the conviction
and execution of an µinnocent¶ member of a scheduled caste or scheduled tribe. In April
2000 the Government announced it would consider imposing the death penalty for
individuals convicted of rape (Hindustan Times 19 April 2000). It is questionable whether
any government would be able to obtain sufficient political support for such further
legislative enactments now.

Judicial Interpretation

According to the Supreme Court of India specific Articles of the Constitution (such as
Articles 21 and 72) anticipate exercise of the death penalty thus implicitly indicating that
it is a constitutional option for the State to use, even though its application is subject to
specific constitutional constraints.
The Supreme Court addressed the question of constitutionality of the death penalty for
the first time in Jagmohan Singh v State of Uttar Pradesh (AIR 1973 SC 947). The facts
established premeditated murder motivated by ill-feeling nurtured for years ± and the
death sentence was held proper. In response to the main arguments raised on behalf of
those facing capital punishment the Court held that
· The death sentence does not extinguish all the freedoms guaranteed under Article 19
(1) (³Protection of certain rights regarding freedom of speech etc´) and therefore it
cannot be regarded per se as unreasonable or not in the public interest;
· The provision does not suffer from vice or excessive delegation on the ground that the
legislature has abdicated its essential function in not providing by legislative standards in
what cases the judge should pass the death sentence;
· It is not violative of Article 14 (³Equality before the law´) of the Constitution on the
ground that unguarded and uncontrolled discretion is given to judges to impose either
capital punishment or imprisonment for life;
· Death sentence is not unconstitutional on the ground that no procedure is laid down by
law for determining whether the sentence of death or something less is appropriate in a
given case.
The Court concluded that death penalty was constitutionally permissible provided it was
imposed after a fair trial pursuant to a procedure established by law (emphasis added).
In rendering its decision the Court also emphasised that the discretionary judgments of
the trial Courts were subject to appellate review.
A number of developments subsequent to the Jagmohan decision raised fresh doubts
about the constitutionality of the death penalty. First the revised Criminal Procedure
Code of 1973 required that any judgement imposing the death penalty must state
specific reasons for choosing that penalty. In this way the Criminal Procedure Code
suggested that death penalty could be imposed only when special circumstances
warranted its use (emphasis added). Thus the death penalty became the exception
rather than the rule.
In addition, the Court decided in Rajendra Prasad v State of UP (1979 3SCC 646) that
the special reasons necessary for imposing a death penalty required a searching case
by case evaluation. The law could no longer prescribe the death penalty for all persons
committing certain crimes; instead the circumstances surrounding the commission of
each offence would have to be considered in every individual case. In other words, there
had to be a subjective analysis and evaluation. The Court concluded that death penalty
could be imposed only if the circumstances indicated that this penalty is compelled by
state security, public order and/or the interests of the general public.
Finally in 1976 India ratified the International Covenant on Civil and Political Rights
(ICCPR) thereby committing itself to further restriction on the use of the death penalty.
Consequently, these various developments prompted a new wave of constitutional
jurisprudence on the death penalty. The µRarest of Rare¶ Doctrine
In Bachan Singh v State of Punjab (AIR 1980 SC 898) the death penalty was challenged
on the grounds (inter alia) that
· It was irreversible and could, given the fallibility of the process of legal mechanisms,
result in the execution of innocent people;
· No convincing evidence existed to prove that death penalty served a legitimate
penological interest and
· Execution regardless of the means chosen or the offence involved constituted a cruel
inhuman and degrading punishment.
The Court by a majority of 4:1 including the then Chief Justice while rejecting these
arguments set out important limitations on awarding the sentence of death. In its most
significant departure from earlier jurisprudence on the subject it stated:
A real and abiding concern for the dignity of human life postulates resistance to taking
life through law¶s instrumentality. That ought not to be done save in the rarest of rare
cases, when the alternative option is unquestionably foreclosed. (emphasis added)
The test of µrarest of rare¶ cases was obviously meant to limit the use of death penalty.
The court¶s decision however, provided little direction to guide the exercise of judicial
discretion. Further, the court rejected the framework outlined in Rajendra Prasad as
overly restrictive, holding that sentencing judges should have discretion to weigh
µaggravating¶ and µmitigating¶ circumstances in determining the proper sentence.
Justice Bhagwati (the next Chief Justice of India), giving the minority view categorically
stated that section 302 of the India Penal Code in so far as it provides for imposition of
death penalty as an alternative to life sentence was ultra virus and void as being
violative of Article 14 and 21 of the Constitution, since it does not provide any legislative
guidelines as to when life should be permitted to be extinguished by imposition of death
sentence. (p 945)
In Macchi Singh vs State of Punjab (AIR 1983 SC957) the court summarised the
propositions set out in Bachan Singh and explained the task of a sentencing judge:
A balance sheet of aggravating and mitigating circumstances has to be drawn up and in
doing so the mitigating circumstances have to be accorded full weight and a just balance
has to be struck between the aggravating and mitigating circumstances before the
option [to award the death penalty] is exercised.
The court listed various factors to be considered in determining whether a case should
be considered one of the µrarest of rare¶.

(i) Manner of commission of murder ± whether death of victim caused by torture or other
cruelty;
(ii) Motive for murder ± whether crime involved total depravity and meanness;
(iii) Anti±social or socially abhorrent nature of the crime ± murder of a member of
schedule caste or minority community arousing social wrath or involving µbride burning¶
or µdowry death¶;
(iv) Magnitude of the crime ± multiple murders of members of a family or particular
caste, community or locality and
(v) Personality of the victim of murder ± an innocent child, helpless old of infirm or a
public figure murdered for political rather then personal reasons.
Bachan Singh and Machhi Singh thus affirmed that death penalty was the exception not
the rule and both decisions demonstrated the courts resolve to structure a fair and
consistent sentencing scheme to determine when the sentence should be imposed.
Nevertheless, there are cases involving conflicting perceptions of what is a µrarest of
rare¶ case. Six months ago the Supreme Court set aside a judgement of the Delhi High
Court confirming death sentence on a man convicted for raping and then killing a one
and a half year old child arguing that it was not quite the µrarest of rare¶ cases. Public
bodies, particularly women¶s organisations fighting child abuse and violence against
women were up in arms claiming that the crime was as heinous if not more than the
assassination of a political leader such as Prime Minister Indira Gandhi. The argument
ran that in view of the politically and emotively charged state of the country the accused
in the latter case (whose guilt is still being questioned), was executed as a consequence
of the µpopular¶ response to the problem while the state fails to address the problems
inherent within the criminal justice system as well as within societal attitudes.
The Advisory Council of Jurists of the Asia Pacific Forum of National Human Rights
Institutions in its Final Report of the Reference on the Death Penalty (December 2000)
has commended India for its ratification of the International Covenant of Civil and
Political Rights (ICCPR) (Article 6 of which envisages abolition of death penalty as a
positive goal ± a conclusion recently reaffirmed by the UN Human Rights Committee)
and the Convention on the Rights of the Child (CROC) and it encourages India to move
towards ratification of the Second Optional Protocol to the ICCPR (Article 1 of which
states ³No one within the jurisdiction of a State Party to the present Protocol shall be
executed´) and the Convention Against Torture and Other Forms Cruel, Inhuman and
Degrading Punishment (CAT). While commending India for its constitutional provisions
including fostering of respect for international law and treaty obligations, the council
seeks to encourage India to take progressive steps towards de facto abolition of the
death penalty and ultimately its de jure abolition.
A major problem for those campaigning against the death penalty in India is the lack of
information about the number of death sentences and executions carried out. The Union
Government argues that executions are carried out by the States (29 of them now) and
the Union Government does not collect such information centrally. Publication of
information on the status of death sentence would obviously make an enormous
difference for particularly those such as campaigners and lawyers who try to track cases
in different states. Be that as it may, it is believed there were about 700 odd persons on
the death row in India between 1989 and 1998. The number of persons sentenced in
any one State in a year varies widely. For instance, in Uttar Pradesh, the largest state,
with a population of over 80 million, a minimum of 4 persons were awarded death
sentence in 1990 and 1996 and a maximum of 38 in 1997. In Bihar, the second largest
state, the minimum figure has been 4 and the maximum 37 in 1992. In Maharashtra, the
minimum was 2 in 1989 and the maximum 11 in 1993. In West Bengal, the minimum
number was 1 and the maximum 9 in 1998. (Times of India, 13 June 2001). However,
most if not all these cases would be going for review on appeal and some culminating in
Mercy Petitions to the Governor of the State or the President of India.
The Campaign Against Death Penalty, an umbrella organisation of different activists
wishing to co-ordinate work around the death penalty held its First National Conference
in New Delhi in July 2000. The Conference which brought together eminent jurists and
human rights campaigners headed by former Supreme Court Justice Krishna Iyer was
attended by 100 delegates from 15 states, who urged the central and state governments
of India to amend all laws which provide for death penalty. The Conference pointed out
that the State consistently fails to take any constructive action to prevent crime; it fails to
initiate effective prosecutions and then turns to the death penalty as a popular response
to crime. The delegates called for a ³death sentence on the death sentence´, arguing
that the death penalty was a violation of fundamental human rights and of the right not to
be subjected to cruel, inhuman and degrading punishment. They passed a resolution
seeking that the process ³---begin with a total moratorium on the death penalty for 10
years to be followed by absolute abolition as a pragmatic process´.
Some recent activity in this field was prompted in the case of one Ram Deo Chauhan
who claimed to have been a juvenile when the offence (of murdering four members of a
family) was committed and where a complaint against an award of death sentence was
referred to the National Human Rights Commission by a Reader of the Faculty of Law,
Delhi University. The Commission proceedings refer to the view taken by the dissenting
judge in the Supreme Court that the death sentence should not be awarded to a person
whose age is not positively established by the prosecution as being above 16 years on
the date of the offence and on that basis he came to the conclusion that sentence of
death deserves to be altered to that of imprisonment for life. The Commission has
therefore made a recommendation in terms of the aforesaid opinion of the dissenting
judge for µdue consideration by the Governor of (the State) of Assam and / or the
President of India as the case may be, in the event of a mercy petition being filed for the
purpose¶.
It is most difficult if not impossible to establish and operate a system with flexible
standards for judges to determine the µrarest of rare¶ case doctrine without having the
sentencing process result in uneven, discriminating and arbitrary treatment. The Special
Rapporteur on Extrajudicial, Summary or Arbitrary Executions has explained, ³it is
imperative that legal proceedings in relation to Capital Offences conform to the highest
standards of impartiality, competence, objectivity and independence of the judiciary in
accordance with the pertinent international legal instruments (E / CN 4/2000/3, para 64).
It is suggested that in practice, the Indian Criminal Justice System has not been able to
cope with the weight of an immense caseload, lack of resources, and the vital needs of
mostly impoverished defendants. One major problem with the system is that poor and
illiterate defendants generally do not have access to adequate legal assistance. ³While
these and other significant inequities which operate throughout the criminal justice
system do not generally mean that the institutional process should be suspended until
those problems are resolved, in cases of putting people to death, it does´,
There are any number of moralist attitudes and statements available in our land. Many
years ago, Mahatma Gandhi wrote in his newsletter µHarijan¶:
³God alone can take life
Because he alone gives it.´
In a message to the Delhi Conference against Death Penalty in 1979 a Gandhian leader,
Jai Prakash Narain said:
³To my mind it is ultimately a question of respect for life and human approach to those
who commit grievous hurts to others. Death sentence is no remedy for such crimes. A
more humane and constructive remedy is (required)---(which) may cast a heavier
economic burden on society than hanging. But I have no doubt that a humane treatment
even of a murderer will enhance man¶s dignity and make society more human.´
Then there are judicial statement, such as one of Justice Krishna Iyer, a former judge of
the Supreme Court and one of the leading abolitionists now:

««(The) retributive theory has had its day and is no longer valid. Deterrence and
reformation are the primary social goals which make deprivation of life and liberty
reasonable as penal panacea. The current ethos, with its strong emphasis on human
rights and against death penalty, together with the ancient strains of culture spanning
the period from Buddha to Gandhi must ethically inform the concept of social justice
which is a paramount principle and cultural paradigm of our constitution«
The main focus of our judgement is in this poignant gap in µhuman rights jurisprudence¶
within the limits of the Penal Code impregnated by the Constitution. To put it pithily a
world order voicing the worth of the human person, a cultural legacy charged with
 compassion, and interpretive liberation from colonial callousness to life and liberty, a
concern for social justice as setting the rights of individual justice, interest with the
inherited text of the Penal Code to yield the goals desiderated by the Preamble &
Articles 14, 19 and 21. (while delivering the judgment on behalf of the majority in
Rajendra Prasad, commuting the death sentence to life imprisonment).
To all the above, which I maintain too, I would add in conclusion my personal argument.
Brief though it may be I want to leave you all with it ± and that is the irreversibility of the
sentence. In the µrarest of rare¶ cases of a wrong conviction, I shudder at the thought of
an inability to reverse the wrong judgement against one who cannot be recalled. I think
this alone if none else should convince one and all of the need to abolish the death
penalty.
General References
· Final Report of the Advisory Council of Jurists of the Asia Pacific Forum of National
Human Rights Institutions with reference to the Death Penalty (2000)
· Facts and Figures on the Death Penalty Amnesty International, April 2001
· µThe Death Penalty Worldwide: Developments in 2000¶,Amnesty International May
2001
· µAbolition of the Death Penalty¶, South Asian Human Rights Documentation Centre¶s
submission to the National Commission for the Review of the Working of the
Constitution, November 2000)
· The Constitution of India; The Indian Penal Code; relevant cases (references in text)
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