Right to Life and Personal Liberty is the most precious, sacrosanct, inalienable and

fundamental of all the fundamental rights of citizens.1 Guarantee of Life and Personal Liberty
is not only a restraint on the Government but also a part of the cultural and social
consciousness of the community. It determines to a great extent the quality of life in the
context of individual- State relationship. Our Constitution framers were conscious that people
must be protected against misuse of power by the Government. They, therefore, provided for
the Fundamental Rights in Part III of the Constitution whereunder the guarantee of life and
personal liberty, one of the most precious fights, is enshrined in Article 21 of the
Constitution. In view of the peculiar circumstances in which our infant democracy was
placed, initially the judiciary, the guardian of the Constitution, adopted a cautious approach.
The court gave a restrictive interpretation an limited the scope of this right by confining it in
its narrow literal boundaries. As the infant grew, the Supreme Court started providing
opportunities for its healthy growth and with it the right to Life and Personal Liberty also
came out and began to breathe fresh air. Decision in Maneka Gandhi's2 case and cases
thereafter gave a new dimension to Article 21 has acquired immense potentialities and
fledged jurisprudence has swung around this right.

The Supreme Court in India, the guardian of fundamental rights, has given wide
interpretation to term life and has often quoted the following observations of Field, J. in
Munn v. Illinois3

"By the term life as used here something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by amputation of an arm
or leg, or the putting out of an eye, or the destruction of any other organ of the body through
which the soul communicates with the outer world. The deprivation not only of life but of
whatever God has given to every- one with life or its growth and enjoyment is prohibited by
the provision in question if its efficacy be not frittered away by judicial decision".

With the expansive interpretation being given to this right, with passage of time, various new
rights such as right to livelihood4, right to medical care5, right to education6, right to privacy7,
right to pollution free environment8, prisoners rights like legal aid9, speedy trial10,
condemning torture of prisoners11, etc. hitherto not specifically granted under the
Constitution, were included in the plethora of rights available under Article 21.

1
Sunil Deshta and Kiran Deshta, Fundamental Human Right - The Right to Life and Personal Liberty, Deep &
Deep, New Delhi, 2003, p. 1
2
AIR 1978 SC 579
3
94US133(1877):
4
Re Sant Ram, AIR 1960 SC 932
5
Parmanand Katara v. Union of India, AIR 1989 SC 2039
6
Unni Krishnan v. State of Andhra Pradesh, AIR 1993 SC 2178
7
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
8
Subhash Kumar v. State of Bihar, AIR 1991 SC 420
9
Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369
10
Kartar Singh v. State of Punjab, (1994) 3 SCC 569
11
Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746
Article 21 of the Constitution, which deals with the Fundamental Rights of life and liberty,
states,

  “No person shall be deprived of his life or liberty except according to procedure established
by law.”

Thus, it can be seen that the death penalty is verily upheld by the Indian Constitution.
However, the same article, rather the same sentence, upholding two views at opposite ends
doesn’t stand too well with the spirit of the constitution. That is, even though it is logically
consistent, it is against the spirit of the Constitution. Being one of the most controversial
provisions in the Constitution, there have been many cases against the death penalty
throughout the course of time.

Jagmohan Singh’s case12 was important in the light that it challenged the constitutionality of
the death penalty as being violative of Articles 19 and 21 because it did not provide any
procedure. The Supreme Court held that the choice of awarding death sentence is done in
accordance with the procedure established by law. Accordingly a 5 member Bench of the
Court held that capital punishment was constitutionally valid. After this decision the
constitutional validity of death sentence was not open to doubt.

The Supreme Court again upheld the constitutional validity of the death penalty in Rajendra
Prasad v. State of Uttar Pradesh.13 The Court held that, “Death sentence should be imposed
only if otherwise public interest, social defence and public order would be smashed
irretrievably. ‘Special reasons’ necessary for imposing death penalty must relate, not to the
crime but the criminal. The extreme penalty can be invoked only in extreme situations.”

Because of some difference in the views expressed by the Supreme Court Judges in
Jagmohan and Rajendra, the question of the reasonableness of the death penalty was again
raised before the Supreme Court in the case of Bachan Singh v. State of Punjab,14 which can
be termed as a milestone in the Indian Criminal Jurisprudence. Again the Court opined by a
majority that the provision of death penalty, as an alternative punishment for murder is not
unreasonable and is in public interest is not violative of Article 21. This Article clearly brings
out the implication that the founding fathers recognised the right of the State to deprive a
person of his life or personal liberty in accordance with fair, just and reasonable procedure
established by law which is clearly stated in the Criminal Procedure Code. The Court
however, emphasized that the death penalty is an exception to the rule of life imprisonment
and it ought to be imposed only in the ‘gravest of cases of extreme culpability’ or in the rarest
of rare cases when the alternative option is unquestionably foreclosed.

Bhagwati, J. Dissenting from the majority held that the death penalty was violative of Article
21 as it gave the Court arbitrary power vesting such discretion on the court whether to
liquidate the accused or let him live.

12
Jagmohan Singh v. Uttar Pradesh, AIR 1973 SC 947
13
AIR1979 SC 916
14
AIR 1980 SC 898
To decide whether a case falls under the category of rarest of rare case or not was completely
left upon the court's discretion. However the apex court laid down a few principles which
were to be kept in mind while deciding the question of sentence. One of the very important
principles is regarding aggravating and mitigating circumstances. It has been the view of the
court that while deciding the question of sentence, a balance sheet of aggravating and
mitigating circumstances in that particular case has to be drawn. Full weightage should be
given to the mitigating circumstances and even after that if the court feels that justice will not
be done if any punishment less than the death sentence is awarded, then and then only death
sentence should be imposed.

In Macchi Singh v. State of Punjab15, the Supreme Court has emphasized reiterated what was
stated in Bachan Singh’s case. Further the Court formulated broad guidelines for determining
the “rarest of rare cases” in which murderers should be awarded the death penalty instead of
life imprisonment. The judges must answer the following 2 questions before determining
“rarest of rare cases”:

1. Whether there is something uncommon about the crime which renders life
imprisonment inadequate and calls for death sentence?
2. Whether no other alternative is available after maximum weightage to the mitigating
circumstances is given?

In December 1985 the Rajasthan High Court sentenced a man, Jagdish Kumar, and a woman,
Lachma Devi, to death for two separate cases of killing two young women by setting them on
fire. In an unprecedented move the court ordered both prisoners to be publicly executed. In a
response to a review petition by the Attorney-General against this judgment the Supreme
Court in December16 1985 stayed the public hangings, observing that “a barbaric crime does
not have to be met with a barbaric penalty.” The Court observed that the execution of death
sentence by public hanging is violation of article 21, which mandates the observance of a
just, fair and reasonable procedure. Thus, an order passed by the High Court of Rajasthan for
public hanging was set aside by the Supreme Court on the ground inter alia, that it was
violative of Article 21.

It may be concluded thus that, If upon taking an overall view of all the circumstances and
taking in to account the answers to the question posed by way of the test of rarest of rare
cases, the circumstances of the case are such that death penalty is warranted, the court would
proceed to do so.

Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be
said that such wide discretion has resulted into enormously varying judgments , which does
not portray a good picture of the justice delivery system. What is needs to be done; therefore ;
is to revise and review the guidelines and principles laid down in cases like Bachan Singh or
Machhi Singh, or if it is felt that these guidelines still stand firm and fit perfectly in the
present social scenario, then these guidelines have to be strictly complied with, so that the
persons convicted for offence of similar nature are awarded punishments of identical degree.
15
AIR 1983 SC 947
16
Attorney General of India v. Lachma Devi AIR 1986 SC 467
This situation has gone on unaddressed in a meaningful manner since the country gained
independence in 1947. As the world moves steadily away from the use of the death penalty, I
think it is time that India, too take the majority view and abolish capital punishment.
However, it has been comprehensively proved by studies that this is not so; that the death
penalty is as effective in the deterrence of crime as an ordinary life imprisonment. 

In a country like India where rights violations are common, the campaign against the death
penalty remains on the sidelines. Much like economic, social and cultural rights tended to be
seen as second-level rights, the death penalty seems to be a second level concern amidst the
vastness of other violations of human rights – particularly the thousands of extra-judicial
killings and disappearances and the countless cases of torture. Yet this is a not a numbers
game and the death penalty is emblematic. It symbolises the power of the State to end the life
of a person – by a process that is legally sanctioned, and officially sanitised. To paraphrase
Albert Camus, it is ‘theoretically defensible’ murder on the part of the State.

The arguments for abolishing the death penalty are numerous and they remain forceful and
persuasive. State killing condones violence and brutalizes society. The ever present risk of
the execution of the innocent is enhanced by an unsafe judicial system. The trauma and loss
suffered by the family of the victim (in murder cases) is inflicted in turn upon the family of
the person being executed, thereby continuing the cycle of violence. Thus, I would like to
conclude that judicial state killing has no place in the modern world and that India should
abolish the death penalty as soon as is practically possible.

“An eye for an eye leaves the whole world blind.” – Mahatma Gandhi