Capital Punishment in Indian Legal System: Chapter - 3

Chapter – 3
Capital Punishment in Indian Legal System
The history of capital punishment in India shows, during the

midlevel period inflection of capital punishment was commonly practiced
for the elimination of criminals. In 19th century, however the public
opinion disfavored the use of capital punishment for offences other than
the heinous crimes. The irrevocable and irreversible nature of capital
punishment gave rise to a number of complications which invited public
attention towards the need for abolition of this sentence.
Many Asian counties removed capital punishment but in 21st

century capital punishment plays an important role in India and it is
awarded in rarest of rare cases only. The aims of punishment are now
considered to be retribution, justice, deterrence, information and
protection and modern sentencing policy reflects a combination of several
or all these aims. The retributive element is intended to show public
revulsion to the offence and to punish the offender for his wrong conduct.
In the concept of justice as an aim of punishment growing emphasis is
laid upon it by much modern legislation but judicial opinion towards this
particular aim is varied an rehabilitation will not usually be accorded
precedence over deterrence means both that the punishment should fit the
offence and also that like offences should receive similar punishment.
Capital punishment means a sentence of death. It is the severest i.e.
an extreme point of sentence. The punishment is extreme because it
extinguishes the very existence of human life. This irreversible
punishment is to be awarded only for very wicked, gruesome, horrifying,
anti-social, grievous and disgusting crimes against humanity. Though the
definition and extent of such crimes vary from country to country and
time to time, the implication of capital punishment has always been death
sentence. There is probably no country in world where death penalty has
never existed. It has been in practice from the time immemorial.
According to Clarence Patrick who studied 128 countries on the use of
Capital Punishment came to this conclusion that 109 countries resorted to
it for a total of 109 crimes.
The very object of punishment has always been to guard the

society against the criminal and unsocial elements. A punishment
awarded to a particular person becomes a source of security to all and
helps in instilling some kind of fear or apprehension in like minds
'Punishment, thus, cannot be regarded as an act of wrath or vengeance
against a guilty or unfortunate individual who has given way to
mischievous inclinations but as an indispensable sacrifice to common
safety.
For thousands of years, capital punishment has been a dominated

penalty and was in practice as an effective measure to combat crime and
for centuries its legitimacy was not questioned. The ancient kings
believed that if the offenders were leniently let off, crimes were bound to
multiply. It was thought that the best way of protecting society from
dangerous criminals was to sentence them to death. Its acceptance, in
ancient societies, seems to have depended on three principles:
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Firstly, insignificant value attached to human life, or at least to the
life of any particular individual. Secondly, death of the criminal was
considered to be just and fair because for deviation he must pay. Thirdly,
the death penalty was to find natural support by the arrival or gradual
establishment of an all powerful state. These three reasons made the
recourse to death penalty necessary. But with the advancement of society
the voices against the death penalty began to arise and since last century
capital punishment has become a very hot and debatable matter in legal
world.
The measure of punishment in a given case must depend upon the

atrocity of the crime; the conduct of the criminal and the defenseless and
unprotected state of the victim. Imposition of appropriate punishment is
the manner in which the Court responds to the society’s cry for justice
against the criminals. The Courts should impose punishment befitting the
crime so that the Courts reflect public abhorrence of the crime. The Court
must not only keep in view the rights of the criminal, but also the rights
of the victim of crime and the society at large while considering
imposition of appropriate punishment.
India stands poised between the global trend to end the penalty and
those nations that continue to execute, like many of the diminishing
number of nations that still apply the death penalty, over the last two
decades, India has reduced the number of executions carried out.
The Indian judiciary has ruled that the death penalty for murder
must be restricted to the ‘rarest of rare cases’, but this instruction has
been contradicted by the legislature increasing the number of offences
punishable by death. The death penalty is mandatory under two of the
relevant laws, including for drug-related offences. There are grave
65
concerns about arbitrariness and discrimination in the processes that lead
to people being sentenced to death. Such factors would render India’s use
of the death penalty.
Amnesty International is urging the Government of India to declare

an immediate moratorium on executions with a view to abolishing the
death penalty. As an emerging global and regional power and a party to
the International Covenant on Civil and Political Rights and other
international human rights treaties, India has an opportunity to exercise
regional leadership and to strong signal of its determination to fully
uphold human rights by abolishing the death penalty.
Capital punishment can also be awarded under special Statute like

POTA, Narcotics, Drugs, and Psychotropic Substance Act. Under Indian
penal code and other laws capital punishment may be awarded on the
offenders in the following cases only:
a) Waging, or attempting to wage war, or abetting waging of war,
against the Government of India 1.
b) Abetting a mutiny in the armed forces (if a mutiny occurs as a
result), engaging in mutiny 2.
c) Giving or fabricating false evidence with intent to procure a
conviction of a capital offense upon which an innocent person
suffers death3.
d) Murder 4.
1
Section 121 of the Indian Penal Code.
2
3
4
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e) Murder by a life convict5.
f) Abetting the suicide of a minor, mentally ill person, or intoxicated
person6.
g) Attempt to murder by a person under sentence of imprisonment for
life if hurt is caused 7.
h) Kidnapping, in the course of which the victim was held for ransom
or other coercive purposes8.
i) Banditry with murder in cases where a group of five or more
individuals commit banditry and one of them commits murder in
the course of that crime; all members of the group are liable for the
death penalty 9.
j) Aiding or abetting an act of Sati10.
k) Drug trafficking in cases of repeat offenses11.
l) In Gujarat only Manufacture and sale of poisoned alcohol which
results in death(s)12.
Relevant Provisions under the Indian Penal Code:
A Draft Penal Code was prepared and submitted in 1837 by the

First Indian Law Commission presided over by Lord Macaulay. Capital
5
6
7
8
Section 364A of the Indian Penal Code.
9
10
Part II Section 4 of the Commission of Sati (Prevention) Act, 1987.
11
Section 31A of the NDPS Act, 1985.
12
Bombay Prohibition (Gujarat Amendment) Bill, 2009.
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punishment Death penalty was prescribed for offences like waging war
against the state, giving false evidence of a capital offence, murder,
perjury etc. On 30th May 1851 the revised edition of the Code was
circulated among Judges for comments. The draft code received the
assent of the Governor General on 6th October, 1860. At present the
Indian Penal Code, 1860 provides capital punishment only for the
following:
a) Waging, or attempting to wage war, or abetting waging of war,
against the Government of India. (Section 121.)
b) Abetting a mutiny in the armed forces (if a mutiny occurs as a
result), engaging in mutiny. (Section 132.)
c) Giving or fabricating false evidence with intent to procure a
conviction of a capital offense upon which an innocent person
suffers death. (Section 194.)
d) Murder. (Section 302.)
e) Murder by a life convict. (Section 303.)
f) Abetting the suicide of a minor, mentally ill person, or intoxicated
person. (Section 305.)
g) Attempt to murder by a person under sentence of imprisonment for
life if hurt is caused. (Section 307.)
h) Kidnapping, in the course of which the victim was held for ransom
or other coercive purposes. (Section 364A.)
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i) Banditry with murder in cases where a group of five or more
individuals commit banditry and one of them commits murder in
the course of that crime; all members of the group are liable for the
death penalty. (Section 396.)
Moreover, there are some other categories of cases of constructive

liability to death penalty:
1) Where an act which constitutes an offence punishable with

death is done by several persons in furtherance of common
intention of all, each of such persons is liable to be sentenced
to death13.
2) If five or more persons conjointly commit dacoity and any
one of them commits murder in so committing the dacoity,
every one of those persons is punishable with death 14.
3) In certain circumstances, abetment of offence punishable
with death is also punishable with death 15.
In case of above noted provisions of IPC, two options are available

to the courts: either to sentence the accused to death or to impose on him
a sentence of imprisonment for life. Now the law vests in the judge a
wide discretion in the matter of passing sentence, and as such the award
of death penalty is left to the discretion of the court.
(a) Treason or Sedition: Section 121 of the I.P.C. deals with Treason. It
says: “Whoever wages war against the Government of India, attempts, to
13
14
15
Sections 109 to 119 of the Indian Penal Code.
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wage such war, or abets the waging of such war, shall be punished with
death, or imprisonment for life, and shall also be liable to fine.”
This section embraces every description of war, whether by

insurrection or invasion. It punishes equally the waging of war against the
Government of India, or attempting to wage such war, or abetting the
waging of such war. The offence of engagement in a conspiracy to wage
war, and that of abetting the waging of war against the Government under
this section, are offences under the Penal Code only, and are not treason
or misprision of treason.
Neither the number of persons nor the manner in which they are
assembled or armed is material to constitute an offence under this section.
The true criterion is the purpose or intention with which the gathering
assembled. The object of the gathering must be to attain by force and
violence and object of a general public nature thereby striking directly
against the Government’s authority 16.
(b) Abetment of Mutiny: Section 132 of I.P.C. deals with Abetment of

mutiny, which says: “Whoever abets the committing of mutiny by an
officer, soldier, sailor, in the Army, Navy or Air Force of the Government
of India, shall, if mutiny be committed in a consequence of that abetment,
be punished with death or with imprisonment for life, or imprisonment of
either description for a term which may extend to ten years, and shall also
be liable to fine.”
This section deals with liability of an abettor of mutiny when

mutiny is committed in consequence of the abetment. It says that whoever
abets the committing of mutiny by an officer, soldier, sailor or airman, in
16
Maganlal (1946) Nag. 126.
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the Army, Navy or Air Force of the Government of India, and mutiny is
committed in consequence of the abetment, shall be punished with death
or imprisonment for life, or simple or rigorous imprisonment for a term
extending up to ten years, and shall also be liable to fine.
The word ‘whoever’ is to be understood in the light of Section 139

of the Code. Abetment can be by instigation, conspiracy or aiding as
provided by Section 107 of the Code. The expression ‘committed in
consequence of that abetment’ means committed in consequence of the
instigation or conspiracy or aiding. Sections 131 and 132 of the Code
should be read together. The offence under this section is cognizable,
non-bailable and non-compoundable, and is triable by Court of Session.
(c) Fabrication of false evidence leading to one’s conviction: Section

194 of I.P.C. deals with Fabrication of false evidence, which says:
“Whoever gives fabricates evidence, intending thereby to cause, or
knowing it to be likely that he will thereby cause, any person to be
convicted of an offence which is capital by the law for the time being in
force in India, shall be punished with imprisonment for life, or with
rigorous imprisonment for a term which may extend to ten years, and
shall also be liable to fine; and if an innocent person be convicted and
executed in consequence of such false evidence, the person who gives
such false evidence shall be punished either with death or the punishment,
hereinbefore described”.
To constitute an offence under this section the accused must give

false evidence intending thereby to cause some person to be convicted of
a capital offence. A person, who brings before a court a witness do that he
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has tutored to tell a false story concerning a murder case before it,
commits an offence under this section17.
Where the investigating Inspector concocted false evidence with

the help of two sarpanchas and villagers to rope in an innocent man its a
false murder case which led to his conviction by the sessions court and
during the course of the hearing of the appeal in the High court the so-
called murdered man appeared in person before the High Court, it was
held that the Inspector, the sarpanchas and the other witnesses were liable
to be prosecuted under Section 194, I.P.C., read with S. 340, Cr.P.C.18
(d) Murder: Section 302 of I.P.C. deals with Murder, which says:
“Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.”
This section provides punishment for murder; Section 304 for

culpable homicide not amounting to murder. Except in cases where there
were extenuating circumstances, the normal punishment under this
section was death. But under Section 354(3) of the Cr.P.C., 1973 a new
provision has been introduced to say that when the conviction is for an
offence punishable with death or in the alternative with imprisonment for
life, or imprisonment for a term of years, the judgement shall state the
reason for the sentence awarded and in the case of sentence of death, the
special reasons for such sentence.
Thus it seems that normal sentence for murder is no longer a

sentence of death but imprisonment for life and only for special reasons
to be recorded in the judgement a sentence of death can be awarded in
“rarest of the rare” cases. Where the two members of an unlawful
17
Sur Nath Bhaduri (1927; 50 All. 365).
18
Darshan Singh, 1985 Cr.L.J. NOC 71 (P & H).
72
assembly went forward to deal with their target by disposing him of and,
on being not able to get him, gunned down his two young girls whom
they chanced to spot on way back, the supreme court held that it was not
one of these “rarest of rare” cases in which death penalty would be
warranted 19.
These factors enabled the Supreme Court to pull out the case from
the category of “rarest of rare”. 20 On the other hand, the matter of Kehar
Singh21 was considered by the Supreme Court as one belonging to the
“rarest of rare” category. It was not simply a murder of a human being. It
was the crime of assassination of the duly elected Prime Minister of the
country. There was no personal motivation, the agreements was as to an
action taken by the Government in the exercise of Constitutional powers
and duties.
The security guards who were duty bound to protect the person of
the Prime Minister themselves assumed the role of assassins. It was a
betrayal of the worst sort. It was a murder most foul and senseless. Those
who executed the plot and those who conspired with them would,
therefore all fall in the “rarest of rare” category. Capital Punishment is
not awarded in cases where the origin of the transaction is not clear and
because of involvement of a number of persons it is not possible to
attribute a particular act to a particular accused22.
(e) Murder by a person undergoing a term of life imprisonment:

Section 303 of I.P.C. deals with Murder by a person undergoing a term of
life imprisonment, which says: “Whoever being under sentence of
imprisonment for life, commits murder, shall be punished with death.”
19
Allauddin Mian v. State of Bihar, AIR 1989 SC 145 1467.
20
Moorthy v. State of T.N., (1988) 3 SCC 207.
21
Kehar Singh v. State, (1988) 3 SCC 809.
22
Jagdish v. State of M.P., 1992 Cr.LJ. 981.
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This section has been struck down by the Supreme Court as void
and unconstitutional being violative of both Articles 14 and 21 of the
Constitution. It regards life convict to be a dangerous class without any
scientific basis and thus violates Article 14 and similarly by completely
cutting out judicial discretion it becomes a law which is not just, fair and
reasonable within the meaning of Article 21. So, all murders are now
punishable under Section 302 of I.P.C.
Out of the eight offences mentioned above death sentence was

mandatory only in case of murder committed by a person while he is
already undergoing a sentence for life imprisonment. For other offences
the Penal Code did not make it obligatory for the courts to award death
penalty and they were free to punish the offenders with an alternative
sentence. But the decision of the supreme court delivered on 7th April
1983 disposing of writ petition filed by Mithu 23 and other challenging the
constitutional validity of section 303 on the ground that it violated
Articles 14 and 21 of the constitution, the five judges constitution Bench
presided over by chief justice Y. V. Chandrachurn observed that section
303 of I.P.C. was unconstitutional and there shall be no mandatory
sentence of death for the offence of murder by life convict. In other
words, all murder cases would fall under section 302 which deals with
punishment for murder.
(f) Abetment of suicide by a child or woman: Section 305 of I.P.C.

deals with Abetment of suicide by a child or woman, which says: “If any
person under eighteen years of age, any in sane person, any delirious
person, any idiot, or any person in a state of intoxication, commits
suicide, whoever abets the commission of such suicide, shall be punished
23
Mithu v. State of Punjab, AIR 1983 SC 473.
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with death or imprisonment for life, or imprisonment for a term not
exceeding ten years, and shall also be liable to fine.”
This Section has been inserted because the ordinary law of

abetment is inapplicable. They apply when suicide is in fact committed.
Ingredients of this offence are as follows:
1. the commission of the suicide by a person;
2. the person who committed suicide was under eighteen years of age
or was insane, or delibious, or an idiot or intoxicated; and
3. the accused abetted the commission of such suicide.
(g) Attempt to murder: Section 307 of I.P.C. deals with Attempt to

Murder, which says: “Whoever does any act with such intention or
knowledge, and under such circumstances that, if he by that act caused
death, he would be guilty of murder, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall
also be liable to fine, and if hurt is caused to any person by such act, the
offender shall be liable either to imprisonment for life, or to such
punishment as is hereinbefore mentioned”.
When any person offending under this section is under sentence of

imprisonment for life, he may, if hurt is caused be punished with death.
This section seem to apply to attempts to murder, in which there has been
not merely a commencement of an execution of the purpose, but
something little short of a complete execution, the consummation being
hindered by circumstances independent of the will of the author. The act
or omission, although it does not cause death, is carrying it to that length,
the offender considers sufficient to cause death. It is sufficient if the act
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was one capable of causing death and there was an intention to cause
death. The High Court of Orissa has, however, held that causing injuries,
though with the intention of causing death but which do not result in
death does not fall under this section.
(h) Kidnapping for ransom, etc.: Section 364A of I.P.C. deals

Kidnapping, in the course of which the victim was held for ransom or
other coercive purposes, which says: “Whoever kidnaps or abducts any
person or keeps a person in detention after such kidnapping or abduction
and threatens to cause death or hurt to such person, or by his conduct
gives rise to a reasonable apprehension that such person may be put to
death or hurt, or causes hurt or death to such person in order to compel
the Government or any foreign State or international inter-governmental
organization or any other person to do or abstain from doing any act or to
pay a ransom, shall be punishable with death, or imprisonment for life,
and shall also be liable to fine.”
This Section was introduced in 1993 and was amended in 1995

with a view to provide punishment for kidnapping, abduction or detention
for ransom. This section provides for a very serious punishment against
the offender. Now the question arises that what could be the reason
behind providing of such a stringent penalty against the offender, where
as in cases where kidnapping and abduction is done either with an
intention to murder or disposing of as to be put in the danger of being
murdered then the punishment granted is only life imprisonment or
rigorous imprisonment which may extend to ten years and an liability to
pay fine.
Prima facie the imposition of punishment under this section

(Section 364-A IPC) as compared to the other sections related to
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kidnapping may appear to be highly unreasonable and unjust. But
determining the legislative intent and on application of the doctrine of
ejusdem generis it could be inferred that the application of this section is
to be made in highly particular and peculiar situations keeping in view the
feat of the terrorists and other anti-social groups who kidnap or abduct in
order to nag the government.
The rule of “ejusdem generic” has its head on application in

section 364-A of IPC, because the words "any other person" as mentioned
in the section should be interpreted only in light of its preceding words
i.e. government, foreign government...so on. This necessarily means that
any other person cannot embrace in its ambit any private body or an
individual. It has been held that where words of general nature follow
specific and particular words they should be construed as limited to
things, which are of same nature as those specified.
(i) Dacoity with murder: Section 396 of I.P.C. deals with Dacoity with
Murder, which says: “If any one of five or more persons, who are
conjointly committing dacoity, commits murder in so committing dacoity,
every one of these person shall be punished with death, or imprisonment
for life, or rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.”
Under this section extreme penalty of death may be inflicted on a

person convicted of taking part in a dacoity in the course of which a
murder is committed, even though there is nothing to show that he
himself committed the murder or that he abetted it. The section declares
the liability of other persons as co-extensive with the one who has
actually committed murder. Where in the course of a dacoity one man
was shot dead, and the accused who was tried had a gun and others of the
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dacoits also had guns, and there was no evidence that the accused was the
man who fired the fatal shot, the sentence was altered from one of death
to one of transportation for life.
The section says that if “any one of five or more persons, who are
conjointly committing dacoity, commits murder in so committing
dacoity” then every one of those persons shall be liable to the penalty
prescribed in the section. It is not necessary that murder should be
committed in the presence of all. When in the commission of a dacoity a
murder is committed. It matters not whether the particular dacoit was
inside the house where the dacoity is committed, or outside the house, or
whether the murder was committed inside or outside the house, so long
only as the murder was committed in the commission of that dacoity.
The essence of an offence under this section is murder committed

in commission of dacoity. It does not matter whether murder is
committed in the immediate presence of a particular person or persons. It
is not even necessary that murder should have been within the previous
contemplation of the perpetrators of the crime.
Indian Penal Code contained fifty one sections which prescribe life
imprisonment for various offences. The basic difference between Section
302 and the other sections was that whereas under these sections life
imprisonment is the maximum penalty which has to be imposed. The
court, however, made it clear that the ruling in Bachan Singh case
upholding the Constitutional validity of death sentence could not govern
the death penalty prescribed in section 303.
Referring to Section 235(2) of Cr.P.C. in context of Section 303

I.P.C., the Supreme Court held that if the Court itself has no option to
78
pass any sentence except the sentence of death it is an idle formality to
ask the accused as to what he has to say on the question of sentence. The
chief Justice further observed: “For us law cases to have respect and
relevance when it compels the dispensers of justice to deliver blind
verdicts by decreeing that no matter what the circumstances of the crime,
the criminal shall be hanged by the neck until he is dead”.
It must be stated that Section 307 (second part) of I.P.C. provides

mandatory capital punishment for an offence of attempt to murder by a
life convict and deprives judicial discretion in such cases. The object of
this provision is two-fold, namely, to provide protection to the prison
personnel; and to deter the prisoners.
An analysis of these provisions of the Penal Code further reveals

that there are valid reasons for allowing wider judicial discretion in cases
offences other than those falling under Section 303. To elaborate this
point further it would be convenient to classify the aforesaid eight
offences in to three broad categories, namely-
1. Offences against the Government (These include offences under
Sections 121 to 132, I.P.C.)
2. Offences against lawful justice (Section 194)
3. Offences against persons (Sections 302, 303, 305, 307 and 396
I.P.C.).
Capital Punishment in other Legislation:
In addition to the Indian Penal Code, a series of legislation enacted

by the Parliament of India have provisions for the capital punishment.
79
Sati is an inhumane practice involving the burning or burying alive
of any widow or woman along with the body of her deceased husband or
any other relative or with any article, object or thing associated with the
husband or such relative. Under the Commission of Sati (Prevention) Act,
1987 Part II, Section 4(1), if any person commits sati, whoever abets the
commission of such sati, either directly or indirectly, shall be punishable
with death.
The Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 was enacted to prevent the commission of offences
of atrocities against the members of the Scheduled Castes and the
Scheduled Tribes. Under Section 3(2)(i) of the Act, bearing false witness
in a capital case against a member of a scheduled caste or tribe, resulting
in that person’s conviction and execution, carries the death penalty In
1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was
passed which applied a mandatory death penalty for a second offence of
“large scale narcotics trafficking”.
In recent years, the death penalty has been imposed under new
antiterrorism legislation for people convicted of terrorist activities. On 3
February 2013, in response to public outcry over a brutal gang rape in
Delhi, the Indian Government passed an ordinance which applied the
death penalty in cases of rape that leads to death or leaves the victim in a
“persistent vegetative state”. The death penalty can also be handed down
to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.
But after some time the Indian Parliament amended this provision and
removed the word death penalty.
Present Scenario:
India stands poised between the global trend to end the capital
punishment and those nations that continue to execute. Like many of the
80
diminishing number of nations that still apply the death penalty, over the
last two decades, India has reduced the number of executions carried out.
The Indian judiciary has ruled that the capital punishment for
murder must be restricted to the “rarest of rare” cases, but this instruction
has been contradicted by the legislature increasing the number of offences
punishable by death. The capital punishment is mandatory under two of
the relevant laws, including for drug-related offences. Death sentences
have been imposed on people who may have been children at the time of
the crime, and on people suffering from mental illness. There are grave
concerns about arbitrariness and discrimination in the processes that lead
to people being sentenced to death. Such factors would render India’s use
of the capital punishment to be in violation of international laws and
standards.
Amnesty International is urging the Government of India to declare

an immediate moratorium on executions with a view to abolishing the
capital punishment. As an emerging global and regional power and a
party to the International Covenant on Civil and Political Rights and other
international human rights treaties, India has an opportunity to exercise
regional leadership and to strong signal of its determination to fully
uphold human rights by abolishing the capital punishment.
At independence in 1947, India retained the 1861 Penal Code

which provided for the death penalty for murder, requiring judges to state
the reasons if a death sentence was not imposed. During the drafting of
the Indian Constitution between 1947 and 1949, several members of the
Constituent Assembly expressed the ideal of abolishing the death penalty,
but no such provision was incorporated in the Constitution. Private
81
members bills to abolish the death penalty were introduced in both houses
of parliament over the next two decades, but none of them was adopted.
In 1973, the Supreme Court of India upheld the constitutionality of

the death penalty for the first time in the case of Jagmohan Singh v. State
of U.P.24. In the same year, a new Code of Criminal Procedure was
adopted. The new Code required judges to note ‘special reasons’ when
imposing death sentences and required a mandatory pre-sentencing
hearing to be held in the trial court. The requirement of such a hearing
was obvious, as it would assist the judge in concluding whether the facts
indicated any ‘special reasons’ to impose the capital punishment.
In recent years, the Supreme Court has reversed two practices that
had been observed for several decades in capital cases. The first practice
was not to impose a capital punishment where the judges hearing the case
had not reached unanimity on the question of sentence or of guilt. The
second was not to impose a death sentence on a person who had
previously been acquitted by a lower court. Since 1999 and 2003
respectively, the Supreme Court has imposed or upheld death sentences
in such cases.
Exemption to Minor and Mentally Retired Person:
The ICCPR25 prohibits the use of the death penalty against people
who were under 18 years old at the time of the crime26, as well as the
Convention on the Rights of the Child, another international human rights
treaty to which India acceded in 1992 27. Indian law came into conformity
with this prohibition in 2000 with the passage of the Juvenile Justice
24
AIR 1973 SC 947.
25
International Covenant on Civil and Political Rights.
26
Article 6(5) of the ICCPR.
27
Article 37(a) Convention of the Rights of the Child, 1992.
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(Care and Protection of Children) Act 2000. Before that, it was lawful for
a boy of 16 to be sentenced to death, but prior to 1986 there was no
minimum age prohibition, contrary to India’s obligations as a party to the
ICCPR.
While the current legal position must be welcomed, the practice

has not been clear-cut due to disputes over the age of offenders (birth
registration in India is at about 50 per cent, but the level varies
considerably across states). In such cases, as shown by the present study,
the Supreme Court has not given individuals the benefit of the doubt and
has upheld death sentences in cases in which there was evidence that the
individuals may have been under 18 at the time of the offence. One such
person, Amrutlal Someshwar Joshi28 was executed in Pune Central Jail
on 12 July 1995; the Supreme Court had dismissed the defence counsel’s
plea that a medical examination is carried out to determine his age.
Safeguard 3 of the UN Safeguards Guaranteeing Protection of the

Rights of Those Facing the Death Penalty states that “the death penalty
shall not be carried out on persons who have become insane.”29 The UN
Commission on Human Rights urged all states that still maintain the
death penalty not to impose the death penalty on a person suffering from
any mental or intellectual disabilities or to execute any such person.
The study found that while the Supreme Court had looked at
various facets of mental health as a factor in adjudicating on sentencing,
there was no consistent response to concerns about mental health, and no
established practice of seeking medical evidence in the face of such
concerns. In several cases the Court commuted sentences on grounds of
28
Amrutlal Someshwar Joshi v. State of Maharashtra, (1994) 6 SCC 200.
29
In resolution 2005/59, adopted on 20 April 2005.
83
questions over the mental health or state of mind of the appellant, while
in other cases such questions were ignored. Access to mental health
professionals by condemned prisoners or by the accused at trial stage is
extremely limited in India. There is no current research on the subject.
The study identified a number of concerns about legal

representation in capital cases. The concerns included lawyers ignoring
key facts of mental incompetence, omitting to provide any arguments on
sentencing, or failing to dispute claims that the accused was under 18
years of age at the time of the crime despite evidence to the contrary.
These facts came to light only because they were observed by the
Supreme Court in their judgments. On other occasions the Supreme Court
may have disregarded evidence of the absence or ineffectiveness of
counsel, leading the authors of the study to conclude that the number of
accused in capital trials who were been served by inadequate counsel is
probably high but remains unknown.
Terrorist Activities and Capital Punishment:
The study highlighted cases of people sentenced to death under

successive special antiterrorist laws. Major concerns include the broad
definition of ‘terrorist acts’ for which the death penalty can be imposed;
insufficient safeguards on arrest; provisions allowing for confessions
made to police to be admissible as evidence, unlike the provisions under
ordinary criminal procedure; obstacles to confidential communication
with counsel; insufficient independence of special courts from executive
power; insufficient safeguards for the principles of presumption of
innocence; provisions for discretionary in camera closed trial; provisions
for secrecy of witnesses identity; and limits to appeal.
84
The cases examined in the study that have been tried under special
anti-terror laws not only reveal capital trials in which safeguards for fair
trial have been inadequate; they also raise concerns that the suspension of
safeguards has been resorted to far too broadly, encompassing cases that
should not have been tried under special legislation at all, such as
kidnapping and communal violence. The fact that the death penalty is
involved only serves to heighten the concern.
Devender Pal Singh v. State, N.C.T. of Delhi & Anr.30, Devender

Pal Singh Bhullar was sentenced to death by a designated court in 2001
under the Terrorist and Disruptive Activities (Prevention) Act 1987
(TADA) after being found guilty of involvement in the 1993 bombing of
the Youth Congress Office in Delhi, which led to the deaths of many
persons. The prosecution’s case was that he had voluntarily confessed to
his role in the bombing to the police. The prosecution relied almost solely
on this alleged confession by the accused, which he subsequently
retracted.
Discretion and Capital Punishment:
While successive Supreme Court constitutional benches have

favoured judicial discretion rather than the setting out of detailed
guidelines on sentencing, the study demonstrated that judicial discretion
has proved inadequate as a safeguard against arbitrariness. The judgments
in numerous cases demonstrate that the courts, including the Supreme
Court, have not always followed the existing law and jurisprudence on
death penalty cases consistently.
30
(2002) 5 SCC 234.
85
In the same month, different benches of the Supreme Court have
treated similar cases differently, often apparently reflecting their own
positions for or against the death penalty. While in one case the
defendant’s youth could be a mitigating factor sufficient to commute the
death sentence, in another it could be dismissed as a mitigating factor. In
one case the gruesome nature of the crime could be sufficient for the
Court to ignore mitigating factors and in another case a similar crime was
clearly not gruesome enough.
In a judgment delivered in December 2006, a Supreme Court bench

admitted the Court’s failure to evolve a sentencing policy in capital cases
Aloke Nath Dutta & Ors. v. State of West Bengal31. The bench examined
judgments over the past two decades in which the Supreme Court
adjudicated upon whether a case was one of the ‘rarest of the rare’ or not
and concluded:
“What would constitute a rarest of rare case must be determined in

the fact situation obtaining in each case. We have also noticed
hereinbefore that different criteria have been adopted by different
benches of this Court, although the offences are similar in nature.
Because the case involved offences under the same provision, the same
by itself may not be a ground to lay down any uniform criteria for
awarding a death penalty or a lesser penalty as several factors therefore is
required to be taken into consideration.”
The frustration of the Court was evident when it stated: “No

sentencing policy in clear cut terms has been evolved by the Supreme
Court. What should we do?” In that particular ruling, the Court
commuted the appellant’s death sentence. On the same day, however,
31
(2007) 12 SCC 230.
86
another bench of the Supreme Court upheld the death sentence imposed
on an appellant who had convicted of murdering his wife and four
children Bablu @ Mubarik Hussain v. State of Rajasthan32.
After referring to the importance of reformation and rehabilitation

of offenders as among the foremost objectives of the administration of
criminal justice in the country, the judgment merely referred to the
appellant’s declaration of the murders as evidence of his lack of remorse.
There was no discussion of the specific situation of the appellant, the
motive for the killings or the possibility of reform in his case.
Mercy Petition and the Capital Punishment:
An appeal to a higher court during the judicial process is based on

a challenge to the evidence heard at trial that has a bearing on the guilt of
the accused or on the sentence imposed. The process focuses on the
appreciation of evidence placed before the courts and is therefore
circumscribed both by the nature of the evidence and by the rules for
assessment of the evidence. In contrast, the commutation powers of the
executive are not limited by the evidence that can be considered by the
courts. Mercy petitions to the executive are therefore often based on
background personal and social factors that explain the conduct of the
convicted person, their psychological and cultural background and other
special features, including material that could not be placed before the
courts.
In practice, the exercise of clemency has even more potential for

arbitrariness than the judicial process, especially since there is no
requirement to give reasons for either accepting or rejecting mercy
32
AIR 2007 SC 697.
87
petitions, and decisions are neither reported widely nor published. The
absence of transparency in the clemency process is a serious concern,
especially since the executive may be subject to pressures extraneous to
the case.
In the case of Gurmeet Singh v. State of Uttar Pradesh33, the

Supreme Court similarly refused to take into account a delay of a number
of years, caused in this case by the negligence of staff of the High Court
of Allahabad. In March 1996 Gurmeet Singh had sought special leave
from the High Court to appeal to the Supreme Court after the High Court
had confirmed his death sentence. Despite several reminders sent by the
jail authorities, there was no response from the High Court. Finally, after
a petition had been filed in the Supreme Court, an inquiry was ordered
which found that officials of the High Court had been negligent in failing
to respond, and action was initiated against the officers responsible.
Nonetheless, the Supreme Court refused to commute the sentence on the
ground of delay, relying on the position that only delays in mercy
petitions would be material for consideration.
The Criminal Procedure Code 1973 also contains a provision of

death sentence. Section 354 (3) of the code provides that while awarding
the sentence of death, the court must record, “a special reason” justify the
sentence and state as to why and alternative sentence would not meet the
ends of justice in that particular. Commenting on this provision of the
code Mr. Justice V.R. Krishna Iyer of the Supreme Court of India
observed that the special reasons with Section 354(3) speaks of provides
reasonableness as envisaged in Article 19 as a relative connotation
33
AIR 2005 SC 3611.
88
dependent on a variety of variables, cultural, social, economical and
otherwise34.
The rationale of the above procedural safeguards and the lawful

consequences of a death sentence on the convict, his family and society
were considered by the Supreme Court once again in the case of
Allauddin Mian v. State of Bihar35, in this case the Apex Court held that
when the court is called upon to choose between the convict cry ‘I, want
to live’ and the prosecutor’s demands “he deserves to die “, it must show
a high degree of concern and sensitiveness in the choice of sentence.
The Supreme Court further observed that special reason clause

contained in Section 354(3) of Cr.P.C. implies that the court can imposed
extreme penalty of death in fit cases. The provision of Section 235(2) of
the code calls upon the court that the convicted accused must be given an
opportunity of being hurt on the question of sentence. This provides the
accused an opportunity to place his antecedents, social and economic
background and mitigating and extenuating circumstances before the
court.
Besides the statutory provisions the Constitution of India also

empowers the President and the governor36 of the state to code of
offenders in appropriate cases. These powers are, however co-extensive
with the legislative powers, the power to cut short a sentence by an act of
executive clemency is not subject to judicial control. It is exclusive
domain of the executive in India and elsewhere.
34
Rajendra Prasad v.State of UP, AIR 1979 SC 916.
35
AIR 1989 SC 1456.
36
Article 72 of the Constitution of India.
89
The magistracy has more offend than not use Section 354(3) of the
Cr.P.C. to justify its stand either in support of or against capital
punishment. The abolitionists see these provisions of green signal for
dilution of capital punishment while for the receptionists the special
reasons contemplated by Section 354(3) implicitly suggest that death
sentence is legally and constitutionally permissible.
In India Capital Punishment plays an important role in the rarest of

rare cases. If we find out ratio of the capital punishment in India, very
few cases in which this sentence is granted. There are so many cases in
which the Supreme Court converted capital punishment into life
imprisonment; these grounds may be as under-
a) it constitutes a cruel, inhuman and degrading punishment;
b) it is irrevocable;
c) it is capable of being inflicted on the innocent;
d) it does not act as a deterrent to crime;
e) it is a violation of the right to life provisions of the Universal
Declaration of Human Rights and other international covenants.
Turning to the international situation, we find that the UN General

Assembly has taken the official position that it is desirable to abolish the
death penalty in all countries, that it should not be introduced for crimes
to which it does not already apply, that the crimes to which it applies
should be progressively reduced and that it should be employed only for
the gravest of crimes. But a large number of UN member states including
India have not respected this decision.
90
Rarest of Rare Doctrine and the Concept of Social Engineering:
What constitutes a ‘rarest of rare’ case is a highly debatable issue

in criminal law jurisprudence. Why this becomes so difficult is because
subjectivity always creeps in during interpretation of the test laid down in
the famous case of Bachan Singh 37. Recently, the death sentence awarded
to Azmal Kasab brought the very same issue into light yet again. The
rarest of rare doctrine is based on Roscoe Pound’s theory of ‘Social
Engineering’ which talks about the balancing of competing interests.
The doctrine does the same thing since it takes into consideration
the interests of the criminal while analyzing the case at hand. The chapter
is an attempt to trace the development of the doctrine and finally to draw
an analogy between the ‘Social Engineering’ theory and how it has been
put into practice in India.
In a world where life and liberty are fiercely guarded, the concept
of ‘capital punishment’ is largely debated. In most countries around the
world, sentencing one to death is fairly rare. In India, before the Bachan
Singh case, giving one a death sentence was not that uncommon. But
after the Supreme Court laid down certain directions in the Bachan Singh
case, it is only awarded in the ‘rarest of rare’ cases.
The principle that nobody should be sentenced to death without an

opportunity to put forward mitigation, about the nature and circumstances
of their offence, and about their own individual history, their mental and
social problems and their capacity for reform, reflects an evolving
international norm that it is wrong to sentence to death all those convicted
of murder and leave it to the mercy stage to decide who should live and
37
AIR 1982 SC 1325.
91
who should die. Rather the death penalty should be imposed by a Court
only for the worst cases of murder, where the crime is particularly
heinous and for the worst type of murderer where there are no significant
mitigating circumstances 38.
(a) Death penalty-a deadly lottery: The question may well be asked by
the accused, Am I to live or die depending upon the way in which the
Benches are constituted from time to time? Is that not clearly violative of
the fundamental guarantees enshrined in Articles 14 and 21?
Justice Bhagwati in his dissenting judgment: The impact of the

Bachan Singh judgment was palpable and almost all cases in the
following few years that came before the Supreme Court resulted in
commutation due to the understanding that the ‘rarest of rare’ formulation
restricted the sentence to be awarded to extreme cases only. Over the
years, while in a number of cases the ‘rarest of rare’ doctrine has been
followed; it has been ignored in various others. The case of Mulla v. state
of UP is an extraordinary judgment since represents the first instance
where socio-economic factors were used as a ground to commute a death
sentence. The real question lies regarding its arbitrariness.
The 48th Law Commission Report had suggested that many a

time’s crime is the result of socio-economic factors. While not a
justification for crime, such reasons may be counted among the
mitigating circumstances in the Court’s opinion. The Court also ventured
its opinion that socio-economic emancipation may lead to the criminal’s
reform. To quote from the judgment, “…they have committed these
heinous crimes for want of money.” Though we are shocked by their
38
A guide to sentencing in Capital Cases, Edward Fitzgerald QC and Keir Starmer QC.
92
deeds, we find no reason why they cannot be reformed over a period of
time”. This relates to the ‘reformative’ theory of punishment.
There have been many decisions where the death sentences have
been commuted not based on any set pattern. One such case where the
‘social’ life of the accused persons was taken into consideration was that
of Ronny v. State of Maharastra39, the court held that since the accused
were all educated persons ,the possibility of reform and rehabilitation
could not be ruled out and hence, it would not come within the purview
of the ‘Rarest of rare’ doctrine. There have been various cases with
similar cases but with a different result as to the application of the
doctrine.
(b) Concept of social engineering-an analysis: Roscoe Pound gave the

‘theory of social engineering’ which is the basis for the ‘Rarest of rare’
doctrine. The aim of social engineering is to build as efficient a structure
of society as possible, which requires the satisfaction of the maximum of
wants with minimum of friction and waste. It involves the balancing of
competing interests. Interests were further classified by Pound as
individual interests, public interests and social interests.
(1) Individual interests: Claims or wants or desires looked at from the

standpoint of the individual life. It includes personality (will, honor, and
reputation), domestic relations (parents, children, and husband) and
interest of substance (property, freedom of association).
(2) Public interests: Claims, demands or desires asserted by individuals

involved in or looked at from the standpoint of political life. This
39
(1998) 3 SCC 625.
93
category includes interests of the state as a juristic person and interests of
the state as guardian of social interests.
(3) Social interests: Claims or demands or desires thought of in terms of

social life generalized as claims of the social group. Social interests are
said to include Social interest in the general security, social interest in the
security of social institutions, social interest in general morals, social
interest in the conservation of social resources, general progress and
social interest in individual life.
There are, Karl. R Popper contended, two basically different ways

in which social engineers can use the results of a technological social
science to reform social institutions and this led him to his distinction
between two kinds of social engineering. Just as the main task of the
physical engineer is to design machines and to remodel and service them,
the task of the piecemeal social engineer is to design social institutions
and to reconstruct and run those already in existence.
Holistic or Utopian social engineering, as opposed topiecemeal

social engineering, aims at remodeling the ‘whole of society’ in
accordance with a definite plan or blueprint40.
Therefore, the concept of social engineering basically means that

the common intuition of the people as a whole is changed while changing
the popular perception of wrongdoing. In law, the social engineers are the
judges who interpret the law and have introduced the doctrine of ‘rarest
of rare’ as a pre-decision formula to judge in what cases the death penalty
should be imposed. This is an example of ‘piecemeal’ social engineering
since only a part of the perception has been changed and death penalty
40
Karl R. Popper, The Poverty of Historicism (Routledge&Kegan Paul, London, third edition, 1961),
p. 43.
94
has not been invalidated so far. The concept of social engineering is
resorted to produce a minimum of waste and friction. Though in some
cases, this socially engineered model might break due to public pressure.
The collective consciousness of the people might be awakened.
While there were very few judgments in which the Supreme Court
upheld a death sentence in the early 1980s, in both Kuljeet Singh alias
Ranga v. Union of India & Anr.41 and Munawar Harun Shah v. State of
Maharashtra42, public and media outrage and pressure played a vital role
in the Supreme Court’s rejection of pleas for commutation. Public
pressure also played a very dominant role in the Kasab case recently.
Recently, 14 retired judges of the SC and high courts across the

country to appeal to President Pranab Mukherjee to turn the capital
punishment imposed on nine persons into life sentence. Led by former SC
judge P.B. Sawant, the 14 retired judges signed up separate letters to the
President pointing out that the death sentences given to these nine persons
by various two-judge benches of the SC were “contrary to the binding
dictum of rarest of rare” propounded in the 1980 five-judge bench verdict
in Bachan Singh’s case.
The Bachan Singh prescription of weighing the circumstances

relating to “the crime as well as the criminal” before pronouncing a death
penalty was disregarded for the first time in 1995 in Ravji Ram Chandra
v. State of Rajasthan43 where a two-judge bench ruled that it was “the
nature and gravity of the crime but not the criminal, which are germane
for consideration of appropriate punishment in a criminal trial”. The ravji
approach served as a precedent for atleast 6 judgments thereafter, and this
41
(1981) 3 SCC 324, (the Billa-Ranga case).
42
AIR 1983 SC 585, (the Joshi-Abhyankar case).
43
1996 AIR 787.
95
was the reason for the appeal by the retired judges. The judges also stated
that death penalty ought to be awarded in a fair and just manner.
This recent development itself proves that although the desirability

of following the directions in Bachan Singh is high, it has not been
followed absolutely and has varied depending on the facts and
circumstances of each case and the Bench.
The debate regarding the validity of the death sentence is a never

ending one. The valid concern might be that while considering the
circumstances that the criminal was in as a mitigating factor, is it not a
logical deduction that the way of commission of crime is a reflection of
the nature of the criminal himself? That is something all of us need to
consider and look at. Perhaps, what matters is not the infliction of death
as a penalty but the certainty of conviction in gruesome cases. The
judiciary has carefully chosen a mid way in the situation so as to do
justice to the public as well as the accused.
Why Must Capital Punishment Continue to Exist?
The capital punishment debate is the most socially relevant debate,

keeping in mind the circumstances that have been brought about by the
21st century. Capital punishment forms an integral part of the criminal
justice system in the Indian State. With the increasing strength of the
human rights movement, the very existence of capital punishment is
questioned as immoral. This however is a surreal argument as keeping
one person alive at the cost of the lives of numerous members or potential
victims in the society is unimaginable and in fact, that is immoral.
The capital punishment debate has gathered much heat in the

present times. While the protagonists of death sentence claim that it must
96
be awarded to the most heinous of crimes, the persons who advocate
human rights are dead against the notion of the continuance of death
penalty as they allege it to be in violation of the basic human rights of an
individual. This chapter will go on to elucidate the reasons as to why the
existence of death penalty is material to achieving justice in the State.
Before delving into an explanation of the reasons for the continuance of
death penalty, it is first vital to note the meaning of death sentence, its
connotations, and when it can be awarded with respect to the present
times.
First, capital punishment is the sentence, which legally terminates

the natural life of a person. This means that a person’s life can be
terminated legally by taking recourse to law. This connotes that a
person’s life is cut short from the natural span of that person’s life.
Second, as according to Indian law, death penalty is awarded only in the
rarest of rare cases. This indicates that death penalty is given only for the
most heinous of crimes. In a recent 2007 Judgment of Omprakash & Anr.
v. State of Tamil Nadu44, the Court reiterated that the death sentence
could be invoked in the rarest of rare cases.
Capital Punishment is not a contemporary concept; it has been in

existence since the ancient times. In the ancient times the death penalty
(usually involved beheading the person) was awarded by the King for the
explicit non-compliance of by any person of any command issued by the
King or the non-compliance with any moral obligation imposed upon that
person. It was later incorporated into the Indian Penal Code, 1860,
leading to its legal incorporation and has been in legal existence in India,
ever since. In the 20th century, there was a movement for the abolition of
death penalty, which lead too many States complying with the movement
44
AIR 2007 SC 520.
97
and going ahead to abolish death penalty. However, in India the death
penalty has continued to exist. This has opened the ground for great
discussion and debate, with the human right activists coming out with
strong reasons for the abolition of death penalty.
Now, having understood the background of death penalty, it is

important to understand why the death penalty debate has gathered
limelight in the present times. The first reason is the execution Ajmal
Kasab, the lone surviving gunman of the 9/11 terror attack in Mumbai.
The second reason is the hanging of Afzal Guru, the individual convicted
of the attack on the Parliament. Owing to these two executions, the
human rights advocates have raised a strong voice against death penalty,
calling for its abolition. Even the Honorable Justice Krishna Iyer, stated
that death penalty should be abolished as the State had no right to take
away the life of an individual, the life that was endowed by God.
To conclude, the points can be summarized in the following

manner. The existence of death penalty can be viewed to be based on the
principle of free will. Every person (at least in most cases) is the master
of his own will. A person who commits the offence of murder for
instance, does it of his own free will (again, in most cases). The offence is
generally committed without any compulsion. As such every person is
free to choose the path he/she wants to tread on. A convict is fully aware
of the consequences of his actions; hence, it is only Just to ensure that the
convict is adequately punished for the crime committed by him/her.
The concept of death penalty can also be viewed from the

perspective of the most basic concept of psychology. It is a basic
psychological principle that death is the greatest fear for most of the
normal persons. Most humans have a natural fear of death. It is the basic
98
trait of humans to fear the unknown, and death is the most unexplored
area. Thus it has also been the most naturally feared. Thus when the
persons are made aware that for certain offences the inevitable
punishment is death, then this would definitely act as a deterrent by
preventing people from committing such heinous crimes. One of the
prospects of punishment is to serve as a deterrent.
This purpose is achieved by capital punishment just as much as any

other form of punishment. The issue of death penalty has been one of the
most debatable topics in the criminal justice system. The benefits or
rather, the requirement of death penalty in the contemporary times has
been made crystal clear. The humans have organized themselves into a
society, they behave and conduct themselves in a manner appropriate to a
civilized society, only because of the presence of laws that govern and
regulate their behavior. Law demarcates right acts from wrong acts i.e.
acts that are permitted by the law and those that are not permitted.
Constitutional Validity of Capital Punishment in India:
Capital Punishment is one of the most debated, ancient forms of

punishment in almost every society. Despite countless studies, several
researches and plenty of experiments no conclusions have been reached
yet, which can be socially, morally and legally accepted. India has also
been witnessing this debate 45. The Death Penalty has been a mode of
punishment since time immemorial. There are currently 58 countries
actively practice it and 97 countries have abolished it. India is one of the
78 retention list countries which have retained death penalty on the
ground that it will be awarded only in the ‘rarest of rare cases’ and for
‘special reasons’. Though what constitutes a ‘rarest of rare case’ or
45
Should capital punishment be abolished? The Times of India, June 27, 2004.
99
‘special reasons’ has not been answered either by the legislature or by the
Supreme Court.
Death penalty or Capital Punishment is a legal process or practice

of executing people or someone as punishment for a specific crime after a
proper & complete legal trial & whereby a person is put to death by the
state as a punishment for a crime. The crime or offences that can result in
death penalty are called death punishment. It is usually only used as a
punishment for particularly serious types of murder46, Abetment of
mutiny 47, Waging, or attempting to wage war 48, Kidnapping for ransom49
but in some countries treason, types of fraud, adultery and rape are capital
crimes. There are currently 58 countries actively practice it and 97
countries have abolished it.
Constitutional validity of the capital punishment as provided in the

Indian Penal Code has been challenged in many cases and so far as the
Supreme Court has always upheld that the capital punishment provided in
the Indian Penal Code is constitutionally valid. However the abolitionists
have not become disheartened by various pronouncement of the Supreme
Court declaring capital punishment to be constitutional. The various
arguments given by the abolitionists in support of their contention that
capital punishment is unconstitutional and replies to their contentions by
the Retentionists who argue that capital punishment as provided at
present is fully constitutional may be summarized as follows.
Constitutionality of capital punishment may be considered in

respect of two aspects of the matter. Firstly, the question is whether the
capital punishment as such is unconstitutional and cannot be awarded in
46
Defined in section 302 & 303 of IPC.
47
Defined in section 132 of IPC.
48
Defined in section 121 of IPC.
49
Defined in section 364(A) of IPC.
100
any case whatsoever. In other words, the problem is whether capital
punishment cannot be awarded for any offence and by following any
procedure at all. Secondly, the question is that even though the capital
punishment as such may not be unconstitutional, whether capital
punishment as provided in various sections of the Indian Penal Code is
unconstitutional because the provisions of the Indian Penal Code
forwarding capital punishment, is violative of certain provisions of the
constitution. These two aspects of the matter may have to be considered
separately so as to have a clear vision on the subject at issue.
(i) Constitutionality of capital punishment as such.

(ii) Constitutionality of the provisions of I.P.C. providing for capital
punishment.
In many countries there has been a demand for abolition of the

death penalty and in some this demand has been accepted and death
penalty has been abolished. In India, too there are many social workers
including lawyers and judges who have voiced their demand. So far as
constitutionality is concerned it has to be considered in the light of the
provision of the Constitution of India. The question of constitutional
validity of death penalty has been raised before the Supreme Court of
India more than once.
In Jagmohan Singh v. State of U.P50, the constitutional validity of

capital punishment was challenged before the Apex Court. It was argued
that the ‘Right to life’ was the basic Fundamental Right under Article 21
of the Constitution. The Supreme Court rejected the contention and held
that capital punishment could not be said to be violation of Article 21 of
the Constitution. It is noteworthy that Justice Krishna Iyer in Rajendra
50
(1973) 1 SCC 20.
101
Prasad v. State of U.P51. Justice Krishna Iyer has empathetically stressed
that death penalty is violation of articles 14, 19 and 21.
But a year later in the landmark case of Bachan Singh v. State of

Punjab52, by a majority of 4 to 1 the Supreme Court overruled its earlier
decision in Rajendra Prasad. It expressed the view that death penalty, as
an alternative punishment for murder is not unreasonable and hence not
violation of articles 14, 19 and 21 of the Constitution of India, because
the “public order” contemplated by clauses (2) to (4) of Article 19 is
different from “law and order” and also enunciated the principle of
awarding death penalty only in the ‘rarest of rare cases’.
With amendments to the Cr.P.C. indicating legislative backing for

the death sentence becoming an exceptional punishment, followed by
India’s accession to the International Covenant on Civil and Political
Rights in 1976, the stage was set for a renewed challenge to the
constitutionality of the death penalty for murder. Three main grounds
were raised in the challenge by the abolitionists:
1. The irreversibility of the sentence and the execution of innocent
persons.
2. The lack of Penological purpose- deterrence was not proven,
retribution was no longer an acceptable end and the primary
purpose of punishment, reformation was nullified by the sentence.
3. Execution by all modes was a cruel, inhuman and degrading
punishment.
51
AIR 1979 SC 916.
52
AIR 1980 SC 898.
102
In this case to the Supreme Court relied heavily on the Report of
the Law Commission published in 1967 and the argument that the death
penalty acted as a deterrent and served a Penological purpose. The
absence of any clinching evidence on lack of deterrence allowed the
Court to conclude: “It is sufficient to say that the very fact that persons of
reason, learning and light are rationally and deeply divided in their
opinion on this issue is a ground among others, for rejecting the
petitioner’s argument that retention of death penalty in the impugned
provision, is totally devoid of reason and purpose.”
Further the Court concluded that “execution by hanging could not

be to be unreasonable, cruel or unusual punishment. On the dangers of
irreversibility and innocence, the Court noted that there were ample
safeguards “which almost eliminate the chances of an innocent person
being convicted and executed for a capital offence.”
The Constitutional Bench also rejected the argument that Section

354(3) Cr.P.C. allowed imposition of the death sentence in an arbitrary
and whimsical manner, and it rejected the notion of laying down
standards or norms, arguing that such “standardization is well-nigh
impossible.”
Aggravating Circumstances- A court may however in the following

cases impose the penalty of death in its discretion:
a) If the murder has been committed after previous planning and
involves extreme brutality; or
b) If the murder involves exceptional depravity; or
103
c) If the murder is of a member of any of the armed forces of the
Union or of a member of any police force or of any public servant
and was committed:
1. While such member or public servant was on duty; or
2. In consequence of anything done or attempted to be done by
such member or public servant in the lawful discharge of his
duty as such member or public servant whether at the time of
murder he was such member or public servant, as the case
may be, or had ceased to be such member or public servant.
d) If the murder is of a person who had acted in the lawful discharge
of his duty under Section 43 of the Code of Criminal Procedure,
1973, or who had rendered assistance to a Magistrate or a police
officer demanding his aid or requiring his assistance under Section
37 and Section 129 of the said Code.
The Supreme Court also clarified that the mitigating circumstances

should receive a “liberal and expansive construction” with scrupulous
care and humane concern and “judges should never be blood-thirsty.” In
such a vein, the Court concluded: “A real and abiding concern for the
dignity of human life postulates resistance to taking a life through law's
104
instrumentality. That ought not to be done save in the rarest of rare cases
when the alternative option is unquestionably foreclosed.”53
The Supreme Court in Machhi Singh v State of Punjab54 laid

down the broad outlines of the circumstances when death sentence should
be imposed. This decision very aptly describes the mentality of the public
and gauges its reaction to capital punishment. The reasons why the
community as a whole does not endorse the humanistic approach
reflected in “death sentence-in-no-case” doctrine are not far to seek. In
the first place, the very humanistic edifice is constructed on the
foundation of “reverence for life” principle.
When a member of the community violates this very principle by

killing another member, the society may not feel itself bound by the
shackles of this doctrine. Secondly, it has to be realized that every
member of the community is able to live with safety without his or her
own life being endangered because of the protective arm of the
community and on account of the rule of law enforced by it. The very
existence of the rule of law and the fear of being brought to book operates
as a deterrent to those who have no scruples in killing others if it suits
their ends.
Every member of the community owes a debt to the community for

this protection. When ingratitude is shown instead of gratitude by
‘Killing’ a member of the community which protects the murderer
himself from being killed, or when the community feels that for the sake
of self preservation the killer has to be killed, the community may well
withdraw the protection by sanctioning the death penalty. But the
53
Lethal Lottery: The Death Penalty in India, Amnesty International.
54
AIR 1983 SC 957.
105
community will not do so in every case. It may do so (in rarest of rare
cases) when its collective conscience is so shocked that it will expect the
holders of the judicial power centre to inflict death penalty irrespective of
their personal opinion as regards desirability or otherwise of retaining
death penalty.
The community may entrain such a sentiment when the crime is

viewed from the platform of the motive for, or the manner of commission
of the crime, or the anti-social or abhorrent nature of the crime 55. In order
to apply these guidelines inter-alia the following questions may be asked
and answers:
a) Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and called for a death
sentence?
b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum
weightage to the mitigating circumstances which speak in favour of
the offender.” This is an extension of the ‘social abhorrence”
theory or retributive theory which is clearly demonstrated by the
use of the words ‘collective conscience is shocked’.
The Apex Court emphasized upon Section 354(3) of the Cr.P.C.
saying that under it life imprisonment as punishment was the rule and
death sentence was an exception to be awarded in the rarest of rare cases.
55
Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957.
106
This was the first time that the Supreme Court coined the concept of
‘rarest of rare cases’. In Machhi Singh, the Supreme Court further
explained the phrase ‘rarest of rare cases’ in the following words:
1. The extreme penalty of death need not be inflicted except in
gravest cases of extreme culpability.
2. Before opting for the death penalty, the circumstances of the
offender also require to be taken into consideration along
with the circumstances of crime.
3. Life imprisonment is the rule and death sentence is an
exception. In other words, death sentence must be imposed
only when life imprisonment happens to be altogether
inadequate punishment having regard to the relevant
circumstances of the crime and only provided the option to
impose sentence of imprisonment for life cannot be
consciously exercised having regard to the nature and
circumstances of the crime and all the relevant
circumstances.
4. A balance sheet of aggravating and mitigating circumstances
has to be drawn up and doing so the mitigating
circumstances have to be accorded full weightage and just
107
balance to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
Yet, one more ineffectual attempt was made in Shashi Nayar v.

Union of India56, to get death penalty unconstitutionally. Beside invoking
Article 21 of the Constitution and asserting that capital punishment did
not serve any social purpose, it was argued that the Law Commission’s
35th Report of 1967, which the majority opinion cited in support of the
capital punishment in Bachan Singh ought not to continue to guide the
Court since lot of time has elapsed since then. The Court rejected the
contentions and held: “The death penalty has a deterrent effect and it does
serve a social purpose….A judicial notice can be taken of the fact that the
law and order situation in the country has not only improved since 1967
but has deteriorated over the years and is fast worsening today.”
Similarly in various other cases the Supreme Court has given its
views on death penalty and on its constitutional validity. But the
punishment of death penalty is still used in India; sometime back the
death penalty was given to Mohammad Ajmal Kasab.
Cries for and against Capital Punishment:
The problem of Capital Punishment has remained controversial in

every nook and corner of the world. It has got some special significance
in India today, when the two diametrically opposed schools are pleading,
for and against its Abolition and Retention. The controversies are not
confined to the commentators alone, but its reflections may also be found
in the judicial pronouncements of different High Courts and the Supreme
Court of India.
56
AIR 1992 SC 215.
108
An humble attempt has been made in the following pages to
examine the Controversy, in the light of changing Socio-Economic
conditions in the country and suggest suitable measures for certain
reforms.
As mentioned above, the sentence of death has been the subject of

heated debate in different countries of the world for the last so many
years. During this period both retentionists and abolitionists, have
developed ritualistic arguments on the key issue of the controversy. But
the controversy has not been settled either by events, by legislation, or by
changing ideas. Abolitionists and Retentionists continue to throw
statistics at each other.
Thorstein Sellin has demonstrated a scientific study of crime rates

and trends which shows that the abolition or the re-establishment of
capital punishment in a country has never led to an abrupt and
appreciable rise in criminality. This is a strong argument for the
abolitionists. The figures themselves, however, must be interpreted with
particular case, because of the conditions peculiar to each country, the
forms and trends of delinquency and the nature, makeup and the action of
the bodies responsible for investigation, prosecution and punishment
under each system. The problem of Death Penalty i.e., the controversy
about its retention and abolition is to be studied in the list of new
circumstances and climate of the 20th Century.
In India, no issue regarding the abolition of capital punishment was

raised in the Assembly until 1931, when one of the members, Sri Gaya
Prasad gave a notice of motion, for circulation of the Bill but it was
defeated 57. Subsequently in 1933, a motion was adopted in the
57
Report of the Legislative Assembly Debates, Vol. 1, 1937, p.4.
109
Legislative Assembly of India at Shimla, granting leave to introduce a bill
to abolish the capital punishment for offences under the I.P.C. It seems
that the Bill was never moved, although leave was granted to introduce
the bill.
The government’s policy on capital punishment in British India

prior to independence was clearly stated twice in 1946 by the then Home
Minister Sir John Thome, in the debates of the Legislative Assembly,
“The government does not think it wise to abolish capital punishment for
any type of crime for which that punishment is now provided58.
Even after India attained independence, the government’s policy on

capital punishment remained unchanged and the then Home Minister
declared in Legislative Assembly on 29th March 1949, that the present is
not considered as an appropriate time for the abolition of Capital
Punishment 59.
In the year 1956, the Government of India sought the opinion of all
the states in India on the issue of abolition of Capital Punishment. It is
learnt that all the states, emphatically opposed abolition of capital
punishment.
Capital punishment was debated in Indian Parliament for the first

time on 25th April 1958, and then a resolution for the abolition of capital
punishment was moved. But out of 14 members of Rajya Sabha, 9
supported the retention of capital punishment.
The second time Capital punishment was debtaed in Rajya Sabha

on August, 25, 1961, this was in the form of a resolution to abolish
58
Report of the Legislative Assembly Debates, Vol.4, 1946, p. 2770.
59
Vol. 3, part 1, 1949, p. 1913.
110
capital punishment but this time, out of nineteen members who took part
in the discussion in Rajya Sabha, only six members advocated the
abolition of capital punishment.
Third time capital punishment was discussed, when a resolution

was moved in the Lok Sabha by a member of Parliament on 21, April,
1962, for its abolition. But this time out of fourteen members only five
spoke for the abolition of capital punishment.
Thus, on all the three occasions the abolitionists did not make a
deep impression. Not only were the members in favour of the retention of
capital punishment but some of them also suggested legislation for the
award of capital punishment for some additional offences like,
Adulteration of Food and Drugs, etc.
However, very recently under the title of “Death Penalty may be

abolished” the Times of India 60 writes: The South Asian Human Rights
Documentation Centre (SAHRDC) has suggested to the Constitution
Review Commission that it should recommend abolition of death penalty.
However, till it is abolished, the SAHRDC has asked for strict and
explicit standards which comply with the emergent international
consensus towards minimization of the death penalty. The commission
had approached the SAHRDC for suggestion on the death penalty.
With the increasing significance of human rights, individual

liberties and civil society, there has been an international trend towards
abolition of death penalty. The Supreme Court has repeatedly held that
the death penalty is not unconstitutional and does not violate Article 21 of
the Constitution. The Apex Court, however, has made its intentions clear
60
Times of India, dated : 19 Oct. 2000.
111
by refusing to define clearly as what constitutes the ‘rarest of the rare
cases’ and left it to the discretion of the judges hearing the case despite
knowing that the same would lead to a differing set of results.
Therefore, it is vividly clear that the judges have been awarding

death sentence according to their own scale of values, social philosophy
and exercise of judicial discretion as per the facts of the cases. There are
some very strong arguments for and against abolition of the death penalty
in India and these are discussed as follows:
Arguments in Favor of Abolition of Capital Punishment:
(a) Capital punishment is cruel, degrading and disproportionate:

Cesare Beccaria wrote that capital punishment is founded on vengeance
and retribution, and not on reformation of the criminals and prevention of
future crimes, which is the purpose of punishment, i.e., the deterrence
argument. There is considerable evidence to support this argument.
Scientific studies have consistently failed to find convincing evidence
that the death penalty deters crime more effectively than other
punishments.
The most recent survey of research findings on the relation

between the death penalty and homicide rates, conducted for the United
Nations in 1988 and updated in 2002, concluded that “it is not prudent to
accept the hypothesis that capital punishment deters murder to a
marginally greater extent than does the threat and application of the
supposedly lesser punishment of life imprisonment”.
(b) Fallibility of judgment in case of capital punishment: The

abolitionists are opposed to death penalty for reasons that utilitarian
support and also for reasons of fallibility of judgment. A judgment being
112
given by human beings based on evidence produced in courts, the
possibility of human error cannot be ruled out and the irreversibility of
death penalty makes it dangerous and opposed to the principles of
proportionality. As human justice remains fallible, the risk of executing
the innocent will never be eliminated. Justice P.N. Bhagwati in his dissent
in Bachan Singh’s case has made two astute observations. Firstly, that it
is impossible to eliminate the chance of judicial error. Secondly, the death
penalty strikes mostly against the poor and deprived sections of society.
(c) Reformative approach: In Narotam Singh v. State of Punjab61, the

Supreme Court has taken the following view: “Reformative approach to
‘punishment should be the object of criminal law, in order to promote
rehabilitation without offending community conscience and to secure
social justice.”
(d) Moral grounds: By allowing death penalty morally nothing is

achieved except more death, suffering and pain. Secondly, why should a
person be allowed to die a quick, almost painless death if he murdered
another person violently? Instead he must languish in prison up to his
natural death. In fact, if the social values really mean that killing is
wrong, then the society must abolish death penalty. Death penalty
legitimizes an irreversible act of violence by the state.
(e) Long delay in execution: It is an undisputed fact that litigation in

India is a very time consuming affair. Extensive delay in the execution of
a sentence of death does not serve any kind of purpose and is sufficient to
invoke Article 21 and demand its substitution by the sentence of life-
imprisonment.
61
(1985) 2 SCC 214.
113
(f) Ambiguity and lack of uniformity in what constitutes the ‘rarest
of the rare Cases’: The judgments do not provide a clue as to what
constitutes the ‘rarest of the rare cases’. The impossibility of laying down
guidelines could lead to an arbitrariness of the decision and also amount
to cruel and degrading punishment. The rationale of proportionality of the
crime and aggravating circumstances in practice have no objectivity as
one cannot objectify that ‘this’ minus ‘that’ equals death.
(g) Unfair distribution of punishment: Justice Bhagwati in Bachan

Singh’s case pointed out in his dissent that death penalty strikes most
against the poor and deprived sections of society. Most of the convicted
persons are poor and illiterate, who cannot afford a competent lawyer.
The defence lawyers provided by the State are often incompetent or do
not take serious interest in the case. To quote Justice O. Chinnappa
Reddy, experience shows that the burden of capital punishment is upon
the ignorant, the impoverished and the underprivileged 62. Unfair
distribution of punishment is highlighted by bringing into focus the
irrational racial discrimination in the USA.
Gary Slapper63 points out that more deaths have taken place due to
occupational hazards, due to negligence of private corporations than due
to homicide. Most of the former were foreseen but neglected. One could
illustrate this argument, with the glaring case of callous negligence on
part of the Union Carbide Management in Bhopal, which resulted in the
death of hundreds of innocent souls. Most of these deaths can be
considered more calculated and cold-blooded than many ‘murders’,
62
In Bishnu Deo Shaw v. State of West Bengal, AIR 1979 SC 964, O. Chinnappa Reddy, J. defined
‘special reasons’ as to those reasons which are special with reference to the offender, with reference to
the constitutional and legislative directives and with reference to the times, that is, with reference to
contemporary ideas in the fields of criminology and connected sciences, etc.
63
Gary Slapper, “Corporate Manslaughter: An Examination of the Determinants of Prosecutorial
Policy” (1993) 2 Social and Legal Studies 423 at 430. As quoted in Sakharani, Monica and Adenwalla
Maharukh, (2005).
114
which are not even prosecuted for. The definition of crime as an
individual wrongdoing where every person is punished for his wrong
doing, requiring the requisite mens rea allows most corporate crimes to
go unpunished.
Arguments against Abolition of Capital Punishment:
(a) Delay in executions is no ground for abolition: A considerable time

between imposition of the capital punishment and the actual execution is
unavoidable, given the procedural safeguards required by the courts in
such cases. This is in fact in favor of the convict. In Sher Singh v. State of
Punjab64, the Supreme Court refused to follow the rationale of T.V.
Vatheeswaran’s case65 for commuting death penalty to a sentence of life
imprisonment.
(b) Chances of mistake by the Judiciary are not possible: Firstly, the
Apex Court has confined the imposition of capital punishment to the
rarest of rare cases66 so few people, after long careful proceedings, are
awarded death penalty. Secondly, the processes of ascertaining guilt and
awarding sentence are separated by distinct hearings The sentence
awarded by the Session Courts is subject to automatic confirmation by
the High Court of the concerned State67.
It must be borne in mind that, 95% cases go to the Apex Court.

Even thereafter, these cases are subject to an endless procession of
clemency appeals, reprieves and pardons, etc. under Articles 72 and 161
of the Constitution of India. This eliminates even a single atom of judicial
error, which might have remained after such a long purification process.
64
AIR 1983 SC 465.
65
AIR 1983 SC 361.
66
(1983) Cr.L.J. 1457.
67
The Code of Criminal Procedure 1973, Section 235(2).
115
(c) Arguments, based on the theories of punishment deterrence
theory: If a convict is imprisoned for life, there is no deterrence for him
to kill others since there is no harsher punishment than life-imprisonment,
which already has been given to him. If one assumes that death penalty
will not operate as deterrence on some criminals then no other lesser
punishment can logically deter them too68.
(d) Appropriate punishment is imperative for security in society: In

Mahesh v. State of M.P.69, the Apex Court expressing a fear observed: “to
give the lesser punishment for the appellants would be to render the
justicing system of this country suspect. The common man will lose faith
in courts. In such a case, he understands and appreciates the language of
deterrence more than the reformative jargon. ”
Justice demands that courts should impose punishment befitting the

crime, so that the courts reflect public abhorrence of the crime. The court
must not only keep in view the rights of the criminals but also the rights
of the victims of the crime and also the society at large while considering
imposition of appropriate punishment. 70
In this connection, it is pertinent to note the observation of the

Supreme Court in Ravji v. State of Rajasthan71, which is as follows: “The
court would be failing in its duty if appropriate punishment is not
awarded for a crime which has been committed not only against the
individual victim but also against the society, to which the criminal and
victim belong.”
68
Praveen Kumar Jain, ‘Should Capital Punishment be given Capital Punishment? A Capital
Question’, IDLR (S) (2004).
69
AIR 1987 SC 1346.
70
Dr. A. S. Anand, J. in Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
71
(1996) 2 SCC 175.
116
(e) Legal arguments against abolitionists: Various arguments raised by
the abolitionists, may be well-countered in the light of following statutory
provisions and judicial precedents.
(1) Crimes under grave and sudden provocation: For crimes committed
in the heat of the moment, death penalty is either not possible or is not
awarded.72
(2) Fundamental Right to Life: In this regard, Article 21 of our

Constitution clearly provides: “No person shall be deprived of life or
personal liberty except according to procedure established by law”. The
implied meaning of Article 21 is that a person can be deprived of his life
or personal liberty according to procedure established by law. Moreover,
the Supreme Court in a catena of decisions has held such deprivation to
be constitutional. If death penalty is infringement of the Fundamental
Right to life, then logically, why should a convicted person also be given
life sentence since they also have right to freedom along with right to
life? 73
(f) The Stockholm declaration, 1977: The above Declaration did not
stand for the abolition of death penalty but required that the penalty ought
not to be awarded arbitrarily and must be confined to only to extremely
heinous crimes. Thus, the Indian position is identical to the Declaration
by virtue of Article 20 and 21 of the Constitution and Section 354(3) of
the Cr.P.C.74
(g) Moral grounds: It is a misconception that death penalty undermines

the value of human life. In fact, it is by exacting the highest penalty for
taking of human life that we affirm the highest value of human life.
72
Section 300 Exception 1, of the Indian Penal Code, 1860.
73
Article 19 of the Constitution of India.
74
(1980) 2 SCC 684.
117
(h) Murder versus capital punishment: Murder and execution are
morally equivalent because both of them kill people. But this does not
make sense. If that were so, it could be logically said that wrongful
confinement of an innocent person by a civilian and imprisonment of an
offender by the state are morally equivalent, because they both confine a
person. ‘Murder’ term is used for unlawful killings only and capital
punishment by the judiciary is not unlawful. Moreover every type of
killing even by civilians is not murder. Thus there is a fundamental legal
difference between killing innocent people (homicide) and capital
punishment for murder.
In the wake of above discussion and ground realities of present day

world following conclusions can be drawn: The opposition to abolition of
the death penalty stems from the myth that it will lead an increase in the
number of murders has been argued that it is not possible to fight such
crimes by framing law. What we need is to target the root of crime.
Even Krishna Iyer J. conceded in Rajendra Prashad’s case that

death penalty may be awarded where the killer is such a monster or a
beast that he can never be reformed. Criminals, who can be hired to kill
anyone or to throw a bomb in a crowd killing many innocent men,
women and children, deserve no sympathy. We cannot ignore the
interests of the community or the country while considering whether
death sentence would be appropriate in a particular case.
So far as juveniles are concerned they have to be dealt with under

the appropriate Acts for juvenile offenders and there is no question of
awarding death sentence in their case.; Thus, after taking into
consideration the interests of the individuals on the one hand and interests
118
of the community on the other, it would be highly imprudent to abolish
the death penalty.
If laws that regulate human behavior did not exist, it is not hard to
imagine, the consequences of such non-existence of these laws. Man is
deterred from committing crimes mainly owing to the existence of laws
that penalize the committing of such acts. There are very few persons
who believe it is immoral to commit wrongful acts. If laws preventing
wrongful acts do not exist, then the human society would be equaled to a
barbarous society that thrives on the principle of survival of the fittest.
Death penalty itself has a myriad of dimensions to it. But one

unchanging aspect is that some crimes are so culpable that death is the
only suitable penalty. Moreover no State is advocating the arbitrary
imposition of death penalty. There are appropriate checks and balances to
ensure that no life of an innocent is taken. This ensures adequate justice
to all the citizens of the State. While the abolitionists argue that awarding
death sentence serves no purpose, unfortunately keeping a person who
committed such a heinous crime alive, also serves no purpose, except for
the negative effect of putting the society at risk in the future.
Taking the example of India itself, it’s clear that death sentence is
very rarely awarded. Moreover even the imposition of death penalty is
not followed by execution, as has already been stated; there have
instances where the death sentence has been commuted to life
imprisonment. The death penalty debate has turned into the most socially
relevant debate owing to the recent executions. With the human right
activists (calling for the abolition of death penalty) garnering more
strength in their debate, it was considered material and essential to state
the viewpoints against the contentions of the activists (abolitionists). To
119
conclude, it can be reiterated that death penalty is a requirement in the
contemporary society where each man stands for himself.
Harsh punishment is required to keep the potential convicts at bay,

and ensuring that the society is not harmed or the peace, tranquility and
order of the society is not compromised. The State cannot compromise
the lives of hundreds and thousands of innocent persons only for the life
of one convict who does not even deserve to live among a society of
civilized persons. Thus, death penalty must continue to exist.
_________________
120

Capital Punishment in Indian Legal System: Chapter - 3

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Chapter – 3

Capital Punishment in Indian Legal System

The history of capital punishment in India shows, during the

Many Asian counties removed capital punishment but in 21st

The very object of punishment has always been to guard the

For thousands of years, capital punishment has been a dominated

The measure of punishment in a given case must depend upon the

Amnesty International is urging the Government of India to declare

Capital punishment can also be awarded under special Statute like

a) Waging, or attempting to wage war, or abetting waging of war,

against the Government of India 1.

b) Abetting a mutiny in the armed forces (if a mutiny occurs as a

result), engaging in mutiny 2.

c) Giving or fabricating false evidence with intent to procure a

conviction of a capital offense upon which an innocent person

f) Abetting the suicide of a minor, mentally ill person, or intoxicated

g) Attempt to murder by a person under sentence of imprisonment for

life if hurt is caused 7.

or other coercive purposes8.

i) Banditry with murder in cases where a group of five or more

individuals commit banditry and one of them commits murder in

j) Aiding or abetting an act of Sati10.

k) Drug trafficking in cases of repeat offenses11.

l) In Gujarat only Manufacture and sale of poisoned alcohol which

Relevant Provisions under the Indian Penal Code:

A Draft Penal Code was prepared and submitted in 1837 by the

a) Waging, or attempting to wage war, or abetting waging of war,

against the Government of India. (Section 121.)

b) Abetting a mutiny in the armed forces (if a mutiny occurs as a

result), engaging in mutiny. (Section 132.)

c) Giving or fabricating false evidence with intent to procure a

conviction of a capital offense upon which an innocent person

suffers death. (Section 194.)

d) Murder. (Section 302.)

e) Murder by a life convict. (Section 303.)

f) Abetting the suicide of a minor, mentally ill person, or intoxicated

person. (Section 305.)

g) Attempt to murder by a person under sentence of imprisonment for

life if hurt is caused. (Section 307.)

or other coercive purposes. (Section 364A.)

individuals commit banditry and one of them commits murder in

death penalty. (Section 396.)

Moreover, there are some other categories of cases of constructive

1) Where an act which constitutes an offence punishable with

In case of above noted provisions of IPC, two options are available

This section embraces every description of war, whether by

(b) Abetment of Mutiny: Section 132 of I.P.C. deals with Abetment of

This section deals with liability of an abettor of mutiny when

The word ‘whoever’ is to be understood in the light of Section 139

(c) Fabrication of false evidence leading to one’s conviction: Section

To constitute an offence under this section the accused must give

Where the investigating Inspector concocted false evidence with

This section provides punishment for murder; Section 304 for

Thus it seems that normal sentence for murder is no longer a

(e) Murder by a person undergoing a term of life imprisonment:

Out of the eight offences mentioned above death sentence was

(f) Abetment of suicide by a child or woman: Section 305 of I.P.C.

This Section has been inserted because the ordinary law of

1. the commission of the suicide by a person;

or was insane, or delibious, or an idiot or intoxicated; and

3. the accused abetted the commission of such suicide.

(g) Attempt to murder: Section 307 of I.P.C. deals with Attempt to

When any person offending under this section is under sentence of