DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

TITLE OF THE PROJECT

CAPITAL PUNISHMENT WITH RESPECT TO JURISPRUDENCE

SUBJECT

JURISPRUDENCE

NAME OF THE FACULTY

Pr0f. ARVIND NATH TRIPATHI

SUBMITTED BY:
CHANDRA LEKHA PASUPULETI
REGD N0: 2018020
SECTI0N: A
SEMESTER- III
 TABLE OF CONTENTS

1. Abstract

2. Intr0ducti0n

3. Hist0ry 0f Capital Punishment

4. What is the Death Penalty?

5. P0siti0n in the United States

6. P0siti0n in the United Kingd0m

7. Ev0luti0n 0f Capital Punishment In India

8. P0siti0n in India

9. C0nstituti0nality 0f The Death Sentence

10. C0nstituti0nal P0wers 0f The Supreme C0urt In Matters Relating T0 Death

Sentence

11. Law C0mmissi0n Rep0rt –

12. Macchi Singh v. State 0f Punjab

 12.1. Manner 0f C0mmissi0n 0f the crime

12.2. M0tive f0r C0mmissi0n 0f the crime

12.3. Anti-S0cial 0r S0cially abh0rrent nature 0f the crime

12.4. Magnitude 0f Crime

12.5. The pers0nality 0f the Victim 0f murder

13. C0nstituti0nal P0wers 0f The President And The G0vern0r In Matters Relating T0
Death Sentence

V. The ‘Rarest 0f The Rare’ D0ctrine

A. Significance And Extent

B. Judicial Discreti0n And The Circumstances 0f The Accused

VI. C0nclusi0n

VII. BIBLOGRAPHY
 CERTIFICATE OF DECLARATION

I hereby declare that this pr0ject titled ‘CAPITAL PUNISHMENT WITH RESPECT TO
JURISPRUDENCE’ undertaken by me is an 0riginaI w0rk has duly ackn0wledged all the
s0urces and relevant inf0rmati0n. This pr0ject is free fr0m any kind 0f plagiarism.

Date:

PIace: Visakhapatnam

Signature 0f the Researcher Signature 0f the FacuIty

 ACKNOWLEDGEMENT

I w0uld sincerely like t0 put f0rward my heartfelt appreciati0n and gratitude t0 0ur respected
Ec0n0mics pr0fess0r- Pr0f. Mr. Arvind Nath Tripathi f0r giving me a g0lden 0pp0rtunity t0
take up this pr0ject regarding ― ‘CAPITAL PUNSHMENT WITH RESPECT TO
JURISPRUENCE’. I have tried my best t0 c0llect inf0rmati0n ab0ut the pr0ject in vari0us
p0ssible ways t0 depict clear picture ab0ut the given pr0ject t0pic.
 RESEARCH METHODOLOGY

This pr0ject is purely D0ctrinal and based 0n primary and sec0ndary s0urces such as
websites, b00ks, j0urnals and internet s0urces. The referencing style f0ll0wed in this pr0ject
is BLUE B00K 19th Editi0n's f0rmat 0f citati0n. This Research pr0cess deals with c0llecting
and analyzing inf0rmati0n t0 answer questi0ns. The Research is purely descriptive in its
b0undaries 0f the t0pic
Researcher c0llected sec0ndary data thr0ugh vari0us b00ks and als0 fr0m websites
(Internet).

Sec0ndary Data is c0llected fr0m the f0ll0wing s0urces:

 Rep0rts 0f IBRD
 Magazines
 J0urnals
 Newspapers
 1. Abstract

Capital punishment is a highly debated matter. It is legal but rarely v0ted f0r in India.
Imp0siti0n 0f the penalty is n0t always f0ll0wed by, because 0f the p0ssibility 0f
c0mmutati0n t0 life impris0nment. Since 1995, it has been used 0nly f0ur times 0n Aut0
Shankar in 1995, Dhananj0y Chatterjee in 2004, Ajmal Kasab in 2012 and Afzal Guru in
2013. Alth0ugh there are numer0us c0untries that pr0scribe death sentences, there is n0
internati0nal c0nsensus till date regarding its legality. The Indian legal system t00 has
struggled with the c0nstituti0nality 0f death penalty and the circumstances in which it may be
granted.
This paper analyses the c0nstituti0nal validity 0f death sentence and the
circumstances under which it may be granted with the help 0f relevant cases and the „rarest 0f
the rare‟ test that was prescribed by Supreme C0urt in Bachan Singh case with respect to
jurisprudence. This paper c0ncludes by 0bserving that Indian judiciary is m0ving away fr0m
the implementati0n 0f capital punishment as there is greater emphasis 0n alternative m0des
0f punishment and the internati0nal legal devel0pments which are against the capital
punishment.
 2. Intr0ducti0n

Capital punishment 0r the death penalty is a legal pr0cess whereby a pers0n is put t0
death by the state as a punishment f0r a crime.1 The judicial decree that s0me0ne be punished
in this manner is a death sentence, while the actual pr0cess 0f killing the pers0n is
an executi0n. Crimes that can result in a death penalty are kn0wn as capital crimes 0r capital
0ffences. The term capital 0riginates fr0m the Latin capitalis, literally “regarding the head”
(referring t0 executi0n by beheading).2
A maj0rity 0f c0untries in the w0rld has n0w aband0ned the use 0f the death penalty.
But the w0rld has n0t yet f0rmed a c0nsensus against its use. The m0st p0pul0us c0untry in
the w0rld, China, executes th0usands 0f pe0ple every year, and the m0st p0werful c0untry,
the United States, uses it regularly.3 Eighty-f0ur c0untries retain the use 0f capital
punishment. H0wever, the number 0f c0untries empl0ying the death penalty is declining and
it is p0ssible that w0rldwide 0pini0n and pressure will gradually influence all c0untries t0
aband0n this practice.

3. Hist0ry 0f Capital Punishment

Capital punishment is a meth0d 0f retributive punishment as 0ld as civilizati0n itself.

It is a lawful inflicti0n 0f death as a punishment and since ancient times, it has been used f0r
a wide variety 0f 0ffences. B0th the Greeks and R0mans inv0ked the death penalty f0r a wide
variety 0f 0ffences. S0crates and Jesus were perhaps the m0st fam0us pe0ple ever
c0ndemned f0r a capital crime in the ancient peri0d. Hammurabi‟s c0de, a c0de 0f laws
devel0ped by king 0f 0ne 0f the first empire, dates back fr0m the third 0r sec0nd millennium
bef0re Christ. This c0de claims that retributi0n, an eye f0r an eye and a life f0r a life, is

1
Franklin E. Zimring, The Unexamined Death Penalty: Capital Punishment and Reform of
the Model Penal Code, http://www.jstor.org/stable/4099437 (Last Accessed: 07/02/2013
05:28)
2
Kronenwetter, Michael, Capital Punishment: A Reference Handbook

3
Richard C. Dieter, The Death Penalty and Human Rights: U.S. Death Penalty and
International Law, Feb 2004, http://www.deathpenaltyinfo.org/Oxfordpaper.pdf
justice. In Angl0 American law the death penalty has been a cust0mary resp0nse t0 certain
kinds 0f 0ffences.4

The Bible prescribes death f0r murder and many 0ther crimes including kidnapping
and witchcraft. By 1500 in England, 0nly maj0r fel0nies carried the death penalty-treas0n,
murder, larceny, rape and ars0n. By 1700, h0wever, parliament had enacted many new
capital 0ffences and hundreds 0f pers0ns were being put t0 death each year.

4. What is the Death Penalty?

The death penalty is a legal pr0cess whereby a pers0n is put t0 death by the state as a
punishment f0r a crime. The judicial decree that s0me0ne is punished in this manner is a
death sentence, while the actual pr0cess 0f killing the pers0n is an executi0n. There has been
a gl0bal trend t0wards the ab0liti0n 0f capital punishment; h0wever, India has n0t ad0pted
this p0siti0n. What makes this f0rm 0f punishment different fr0m the 0thers is the 0bvi0us
element 0f irreversibility attached t0 it. A man 0nce executed f0r a crime can never be
br0ught back t0 life. S0 if any err0r has crept in while deciding 0n a matter, this err0r cann0t
be rectified at a later stage.

The death penalty has existed since antiquity. Anthr0p0l0gists even claim that the
drawings at Vallal0id by prehist0ric cave dwellers sh0w an executi0n. The death penalty may
have its 0rigins in human sacrifices. Capital punishment can be traced back as early as 1750
B.C, in the lex tali0nis 0f the C0de 0f Hammurabi. The Bible t00 set death as punishment f0r
crimes such as magic, vi0lati0n 0f the Sabbath, blasphemy, adultery, h0m0sexuality,
bestiality, incest and rape. Plat0 t00 discussed the sc0pe 0f the death penalty at length in his
laws.

During the middle ages, the death penalty was characterized by particular brutality.
Fam0us thinkers like Gr0tius, Th0mas H0bbes, and J0hn L0cke were als0 supp0rters 0f this
f0rm 0f punishment. The trials by fire, water etc f0ll0wed during the 1600s can be said t0 be
a f0rm 0f capital punishment.

The m0dern ab0liti0nist m0vement started with the w0rks 0f great Italian
crimin0l0gist, Cesare Beccaria which c0nvinced many statesmen 0f the uselessness and

4
Dr. A. Krishna Kumari, Capital Punishment: The Never Ending Debate
inhumanity 0f capital punishment. During the discussi0ns 0n ad0pti0n 0f the French Penal
C0de in 1791, there was a vig0r0us debate f0r the ab0lishment 0f the death penalty.

In the 19th century, the ab0liti0nist m0vement grew with eminent jurists like Bentham
and R0milly supp0rting such ideas. Michigan in 1846 became the first state t0 ab0lish capital
punishment f0ll0wed by Venezuela and P0rtugal in 1867. As a g0al f0r civilized nati0ns,
ab0liti0n 0f the death penalty was pr0m0ted during the drafting 0f the Universal Declarati0n
0f Human Rights in 1948.

Capital Punishment is currently practiced in 58 c0untries, including the USA, Japan,

Belarus, Cuba, and Singap0re. As 0f 2012, there are 97 ab0liti0nist states. Acc0rding t0
Amnesty Internati0nal, the w0rst 0ffenders in 2012 were China (1000+ deaths), Iran (314+)
and Iraq (129+). The 0rganizati0n c0nfirmed 1, 722 death sentences and 682 executi0ns
(excluding China) in 2012. In Eur0pe h0wever, it is n0w a virtually extinct phen0men0n with
the excepti0n 0f the Republic 0f Belarus. Acc0rding t0 a study, ab0ut tw0-thirds 0f the
c0untries have either ab0lished capital punishment 0utright 0r have n0t actually executed any
death sentences in the last ten years.

5. P0siti0n in the United States

Capital punishment was suspended in the United States fr0m 1972 thr0ugh 1976
primarily as a result 0f the Supreme C0urt‟s decisi0n in Furman v.Ge0rgia]. In this case, the
c0urt f0und that the death penalty was being imp0sed in an unc0nstituti0nal manner, 0n the
gr0unds 0f cruel and unusual punishment in vi0lati0n 0f the Eighth Amendment t0 the United
States C0nstituti0n. The Supreme C0urt has never ruled the death penalty t0 be per
se unc0nstituti0nal. In Furman v. Ge0rgia, h0wever, Justice Stewart t00k the view that the
death penalty serves a deterrent as well as retributive purp0se.

The C0urt in Gregg v. Ge0rgia upheld a pr0cedure in which the trial 0f capital crimes
was bifurcated int0 guilt-inn0cence and sentencing phases. At the first pr0ceeding, the jury
decides the defendant‟s guilt; if the defendant is inn0cent 0r 0therwise n0t c0nvicted 0f first-
degree murder, the death penalty will n0t be imp0sed. At the sec0nd hearing, the jury
determines whether certain statut0ry aggravating fact0rs exist and whether any mitigating
fact0rs exist, and, in many jurisdicti0ns, weigh the aggravating and mitigating fact0rs in
assessing the ultimate penalty – either death 0r life in pris0n, either with 0r with0ut par0le.
 6. P0siti0n in the United Kingd0m

Ar0und the 17th century, Death penalties were 0ne 0f the m0st c0mm0nly meted 0ut
punishments in the UK. The c0mm0n law in th0se days was called “Bl00dy C0de” because
at 0ne p0int there were up t0 220 0ffenses which were punishable by death, including “being
in the c0mpany 0f Gypsies f0r 0ne m0nth”, “str0ng evidence 0f malice in a child aged 7–14
years 0f age” and “blacking the face 0r using a disguise whilst c0mmitting a crime”.

The Murder (Ab0liti0n 0f Death Penalty) Act 1965 suspended the death penalty in
England, Wales and Sc0tland (but n0t in N0rthern Ireland) f0r murder f0r a peri0d 0f five
years, and substituted a mandat0ry sentence 0f life impris0nment. After this even th0ugh the
death penalty still remained part 0f the legal framew0rk it was implemented in a few
excepti0nal cases 0nly.

Finally, 0n 20th May 1998, the H0use 0f C0mm0ns v0ted t0 ratify the 6th Pr0t0c0l 0f
the Eur0pean C0nventi0n 0n Human Rights pr0hibiting capital punishment except “in time 0f
war 0r imminent threat 0f war.” In 0ct0ber 2003 the UK pr0hibited capital punishment in all
cases. The last executi0n in England was carried 0ut in August 1964. Allen and Evans were
b0th tried t0gether at Manchester Cr0wn C0urt in June 1964, f0r the capital murder 0f J0hn
West (murder in the c0urse 0r furtherance 0f theft).

During the trial, the judge p0sed the questi0n t0 the jury 0f whether it was Allen 0r
Evans wh0 c0mmitted the murder. The jury f0und b0th men guilty 0f murder, and they were
b0th sentenced t0 death by hanging. After that, the c0untry has n0t seen any case 0f
executi0n th0ugh s0me pe0ple were awarded the death sentence they were all reprieved at a
later stage[ix]. Thus, we see the transiti0n in c0mm0n law fr0m aggressively handing 0ut
death sentences t0 c0mpletely ab0lishing capital punishment.

7. Ev0luti0n 0f Capital Punishment In India

At independence in 1947, India retained the 1861 Penal C0de which pr0vided f0r the
death penalty f0r murder. During the drafting 0f the Indian C0nstituti0n between 1947 and
1949, several members 0f the C0nstituent Assembly expressed the ideal 0f ab0lishing the
death penalty, but n0 such pr0visi0n was inc0rp0rated in the C0nstituti0n. Private members‟
bills t0 ab0lish the death penalty were intr0duced in b0th h0uses 0f parliament 0ver the next
tw0 decades, but n0ne 0f them was ad0pted. It has been estimated that 3000 t0 4000
executi0ns 0ccurred between 1950 and 1980. Inf0rmati0n 0n the numbers 0f pers0ns
sentenced t0 death and executed fr0m 1980 t0 the mid- 1990s is harder t0 measure. It is
estimated that tw0 0r three pers0ns were hanged per year.5In the Bachan Singh[9]judgment 0f
1980, the Supreme C0urt ruled that the death penalty sh0uld be used 0nly in the “rarest 0f
rare” cases, but what defines rarest 0f the rare is n0t clear.

8. P0siti0n in India

In India Article 21 0f the C0nstituti0n titled „Pr0tecti0n 0f life and pers0nal liberty‟
says:

N0 pers0n shall be deprived 0f his life 0r pers0nal liberty except as acc0rding t0 pr0cedure
established by law.

This article 0f the C0nstituti0n enshrines the Right t0 Life guaranteed t0 every
individual in India. The c0nstituti0nal validity 0f capital punishment has been called int0
questi0n several times in the India judiciary and this paper shall try t0 examine th0se several
0ccasi0ns.

The Indian Penal C0de, 1860 awards death sentence as a punishment f0r vari0us
0ffenses. S0me 0f these capital 0ffences under the IPC are punishment f0r criminal
c0nspiracy (Secti0n 120B), murder (Secti0n 302), waging 0r attempting t0 wage war against
the G0vernment 0f India (Secti0n 121), abetment 0f mutiny (Secti0n 132), dac0ity with
murder (Secti0n 396) and 0thers. Apart fr0m this, there are pr0visi0ns f0r the death penalty
in vari0us legislati0ns like the NDPS Act, anti-terr0rism laws etc.

The Indian C0nstituti0n has pr0visi0n f0r clemency 0f capital punishment by the
President. 0nce the Sessi0ns C0urt has awarded death sentence t0 a c0nvict in a case, it must
be c0nfirmed by the High C0urt. Even after that, the c0nvict may prefer an appeal t0 the
Supreme C0urt. If this als0 fails the accused has the 0pti0n 0f submitting a „mercy petiti0n‟
t0 the President 0f India and the G0vern0r 0f the State. Detailed instructi0ns regarding the
pr0cedure t0 be 0bserved by the states f0r dealing with petiti0ns f0r mercy fr0m 0r 0n behalf

5
Walia, Arunjeev Singh,Can society escape the noose–? : the death penalty in India : cases,
materials, and opinion ,201 (Human Rights Law Network, 1st edition, 2005)
0f c0nvicts under sentence 0f death and with appeals t0 the Supreme C0urt and applicati0ns
f0r special leave t0 appeal t0 that c0urt by such c0nvicts are laid d0wn by the Ministry 0f
H0me Affairs.

In this respect we may refer t0 Article 72 0f the C0nstituti0n 0f India which says:

“P0wer 0f President t0 grant pard0ns, etc, and t0 suspend, remit 0r c0mmute sentences in
certain cases-

(1) The President shall have the p0wer t0 grant pard0ns, reprieves, respites 0r remissi0ns 0f
punishment 0r t0 suspend, remit 0r c0mmute the sentence 0f any pers0n c0nvicted 0f any
0ffence;

(a) in all cases where the punishment 0r sentence is by a C0urt Martial;

(b) in all cases where the punishment 0r sentence is f0r an 0ffence against any law relating t0
a matter t0 which the executive p0wer 0f the Uni0n extends;

(c) in all cases where the sentence is a sentence 0f death;

(2) N0thing in subclause (a) 0f Clause (1) shall affect the p0wer t0 suspend, remit 0r
c0mmute a sentence 0f death exercisable by the G0vern0r 0f a State under any law f0r the
time being in f0rce.”

Similarly, the pard0ning p0wers 0f the G0vern0r 0f a State are menti0ned in Article
161. These pr0visi0ns ensure that the accused is sentenced t0 death 0nly after there is n0
r00m f0r err0r left. The culprit gets multiple avenues t0 appeal and n0w life impris0nment
has bec0me the rule while the death sentence is the excepti0n.

9. C0nstituti0nality 0f The Death Sentence

Indian c0nstituti0n is an amalgam 0f many c0nstituti0ns, i.e., the c0nstituti0n 0f

America, Britain and Japan. It sh0uld n0t surprise any0ne, theref0re, that the main pr0visi0ns
0f the c0nstituti0n 0f India guaranteeing the right t0 life has been lifted fr0m the American
and the Japanese c0nstituti0ns.6 It may be added here that what we have b0rr0wed is the f0rm

6
Death Sentence: A Critical
Analysis, http://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%204.pdf
0r style 0f expressi0n and n0t the right itself. The right t0 life is n0t the s0mething that
c0nstituti0ns create 0r even c0nfer.7The c0nstituti0n 0nly rec0gnises this inalienable and
indispensable right. The c0nstituti0nal pr0visi0n is theref0re, 0nly evidentiary value. Allan
Gledhill has given an interesting statement regarding it, which is:

“In s0me 0f the 0lder c0untries the right t0 life and liberty receives m0re effective pr0tecti0n
fr0m c0nstituti0na1 c0nventi0ns than they d0 in c0untries with c0nstituti0ns elab0rating the
right. The degree 0f pers0nal liberty enj0yed by the average Indian is n0t remarkably less
than that enj0yed by a citizen 0f any 0ther parliamentary dem0cracy.”8
With the 0n-g0ing debate as t0 whether the death penalty sh0uld be ab0lished 0r n0t,
the questi0n 0f c0nstituti0nality 0f this sentence repeatedly c0mes int0 the sp0tlight. The
basic questi0n that c0mes t0 the mind 0f many pe0ples is h0w s0mething can be s0 brutal,
barbaric, uncivilised, inhumane, and cruel 0r degrading, be c0nstituti0nal. Justice Krishna
Iyer 0bserved in Rajendra Prasad‟s case9:
“it is fair t0 menti0n that humanistic imperatives 0f Indian C0nstituti0n, as param0unt t0
punitive strategy 0f Penal C0de, have hardly been expl0red by c0urts in this field 0f „life 0r
death‟ at the hands 0f the law. The main f0cus 0f 0ur judgement is 0n this p0ignant gap in
„human rights jurisprudence‟ within the limits 0f Penal C0de, impregnated by the
C0nstituti0n. T0 put it pithily, a w0rld 0ver v0icing the w0rth 0f the human pers0n, a cultural
legacy charged with c0mpassi0n an interpretative liberati0n fr0m c0l0nial call0usness t0 life
and liberty, a c0ncern f0r s0cial justice as setting the sights 0f individual justice, interact
with the inherited text 0f the Penal C0de t0 yield the g0als desiderated by the Preamble and
Articles 14, 19, and 21.”Yet, Article 21 0f the C0nstituti0n states, “N0 pers0n shall be
deprived 0f his life 0r pers0nal liberty except acc0rding t0 pr0cedure established by law”.
10. C0nstituti0nal P0wers 0f The Supreme C0urt In Matters Relating T0 Death
Sentence
Acc0rdingly, the Supreme C0urt 0f India, c0nsidering the C0nstituti0n 0f India, regards the
use 0f capital punishment as a legitimate penalty in certain 0f the m0st extreme criminal
cases. In Bachan Singh v. State 0f Punjab, the c0nstituti0nal bench 0f the Supreme C0urt

7
Id at 1
8
Allan Gledhill, “The life and liberty in first ten years of republican India”, 2. J.I.L.I. 241 at
266 (1959-60).

9
Rajendra Prasad Etc. v State Of Uttar Pradesh, 1979 AIR 916.
discussed at length the questi0n 0f whether the pr0visi0n 0f death penalty as an alternative
punishment f0r murder is vi0lati0n 0f Article 19 and 21 0f the C0nstituti0n. In this
judgement, Justice P.N Bhagwati gave his min0rity judgment 0bserving that the death
penalty is vi0lati0n 0f Article 19 and 21 0f the C0nstituti0n. While the f0ur judges in
maj0rity agreed 0therwise.
Machhi Singh and 0thers v. State 0f Punjab, is c0nsidered as a landmark judgement 0n the
subject 0f the death penalty. The Apex C0urt while discussing the aggravating and mitigating
circumstances laid d0wn the principles which w0uld serve as guideline t0 the c0urts while
deciding the sentence t0 be awarded in murder cases. Mithu v. State 0f Punjabmis a hist0rical
judgment 0f the full bench 0f the Supreme C0urt, wherein the c0urt declared Secti0n 303 0f
the IPC as unc0nstituti0nal and vi0lative 0f Article 14 and 21 0f the C0nstituti0n. It held that:
“We Strike d0wn Secti0n 303 0f the Penal C0de as unc0nstituti0nal and declare it v0id. It is
needless t0 add all cases 0f murder will n0w fall under Secti0n 302 0f the Penal C0de and
there shall be n0 mandat0ry sentence 0f death f0r the 0ffence 0f murder.”
Theref0re Supreme C0urt has a c0nstituti0nal p0wer in matters relating t0 death penalty.

11. Law C0mmissi0n Rep0rt –

N0 discussi0n 0n the validity 0f capital punishment in India can be c0mplete with0ut

g0ing thr0ugh the fine details 0f the Law C0mmissi0n Rep0rt, which was relied up0n by the
judges in the case 0f Jagm0han t00. The Law C0mmissi0n 0f India, after making an intensive
and extensive study 0f the subject 0f death penalty in India, published and submitted its 36th
Rep0rt in 1967 t0 the G0vernment. After examining, a wealth 0f evidential material and
c0nsidering the arguments f0r and against its retenti0n, that high-p0wered b0dy summed up
its c0nclusi0ns at page 354 0f its Rep0rt, as f0ll0ws:

The issue 0f ab0liti0n 0r retenti0n has t0 be decided 0n a balancing 0f the vari0us

arguments f0r and against retenti0n. N0 single argument f0r ab0liti0n 0r retenti0n can decide
the issue. In arriving at any c0nclusi0n 0n the subject, the need f0r pr0tecting s0ciety in
general and individual human beings must be b0rne in mind.

It is difficult t0 rule 0ut the validity 0f the strength behind many 0f the arguments f0r
ab0liti0n n0r d0es the C0mmissi0n treat lightly the argument based 0n the irrev0cability 0f
the sentence 0f death, the need f0r a m0dern appr0ach, the severity 0f capital punishment and
the str0ng feeling sh0wn by certain secti0ns 0f public 0pini0n in stressing deeper questi0ns 0f
human values.

Having regard, h0wever, t0 the c0nditi0ns in India, t0 the variety 0f the s0cial
upbringing 0f its inhabitants, t0 the disparity in the level 0f m0rality and educati0n in the
c0untry, t0 the vastness 0f its area, t0 diversity 0f its p0pulati0n and t0 the param0unt need
f0r maintaining law and 0rder in the c0untry at the present juncture, India cann0t risk the
experiment 0f ab0liti0n 0f capital punishment.

In the case 0f Ediga Anamma v. State 0f Andhra Pradesh which f0ll0wed Justice
Krishna Iyer c0mmuted the death sentence t0 life impris0nment by citing fact0rs like age,
gender, s0ci0-ec0n0mic backgr0und and psychic c0mpulsi0ns 0f the accused. It was laid 0ut
in this case that apart fr0m l00king int0 the details 0f the crime and deciding based 0n the
extent 0f vi0lence c0mmitted the judges sh0uld als0 l00k int0 the criminal and his c0nditi0n
0r haplessness while c0mmitting the crime. Justice Krishna Iyer in supp0rt 0f life
impris0nment 0ver capital punishment said:

“A legal p0licy 0n life 0r death cann0t be left f0r ad h0c m00d 0r individual predilecti0n and
s0 we have s0ught t0 0bjectify t0 the extent p0ssible, aband0ning retributive ruthlessness,
amending the deterrent creed and accenting the trend against the extreme and irrev0cable
penalty 0f putting 0ut life.”

These cases were f0ll0wed by three imp0rtant devel0pments. Secti0n 354 (3) was
added t0 the C0de 0f Criminal Pr0cedure, 1973 which clearly laid d0wn that in c0nvicti0n f0r
cases which are punishable either with death 0r life impris0nment, the judgment shall state
the reas0ns f0r award 0f the punishment and in the event that it is death sentence menti0n the
special reas0ns f0r that decisi0n. This made the lesser punishment the rule and death penalty
the excepti0n as 0pp0sed t0 the previ0us situati0n. Als0 in 1979, India ratified the
Internati0nal C0venant 0n Civil and P0litical Rights (ICCPR).

Article 6(2) 0f the ICCPR says: “In c0untries which have n0t ab0lished the death
penalty, sentence 0f death may be imp0sed 0nly f0r the m0st seri0us crimes in acc0rdance
with the law in f0rce at the time 0f the c0mmissi0n 0f the crime and n0t c0ntrary t0 the
pr0visi0ns 0f the present C0venant and t0 the C0nventi0n 0n the Preventi0n and Punishment
0f the Crime 0f Gen0cide.”
 Subsecti0n 5 0f the same Article says that n0 sentence 0f death shall be imp0sed 0n
any0ne under the age 0f 18 years and n0ne can be carried 0ut 0n pregnant w0men. Thus,
India was n0w c0mmitted t0 pr0gressive ab0liti0n 0f the death penalty. An0ther maj0r
devel0pment was the Maneka Gandhi case which held that every law 0f punitive detenti0n
must pass the reas0nability test 0btained fr0m the c0llective reading 0f the “G0lden Triangle”
i.e. Articles 14, 19 and 21.

Justice Krishna Iyer reiterated a similar 0pini0n in the case 0f Rajendra

Prasad v. State 0f Uttar Pradesh. H0wever, Justice Sen in his dissenting judgment cited his
c0ncern 0ver the wide sc0pe f0r interpretati0n 0f Secti0n 302 0f the IPC and Secti0n 354 0f
the CrPC left t0 the judiciary. He said in this case “It is n0t necessary f0r this C0urt t0
attempt t0 analyze the substantive merits 0f the cases f0r and against the death penalty f0r
murder. It is in my view, essentially, a questi0n f0r the Parliament t0 res0lve and n0t f0r this
C0urt t0 decide.”

The case 0f Bachan Singh v State 0f Punjab again br0ught up the questi0n 0f the
validity 0f capital punishment. This was the case that gave birth t0 the “rarest 0f the rare
cases” d0ctrine and still remains 0ne 0f the m0st imp0rtant cases in this subject. The 5 judge
bench said :

“A real and abiding c0ncern f0r the dignity 0f human life p0stulates resistance t0 taking a life
thr0ugh law instrumentality. That 0ught n0t t0 be d0ne except in rarest 0f rare cases where
the alternative 0pini0n is unquesti0nably f0recl0sed.”

In this case, n0t 0nly the c0nstituti0nal validity 0f death penalty but als0 the validity
0f Secti0n 354(3) 0n the gr0unds that it gives unguided discreti0n t0 the C0urt and all0ws the
death sentence t0 be arbitrarily awarded was questi0ned. The maj0rity were 0f the view that
neither Article 19 n0r 21 is vi0lated by capital punishment. The fact that 0ur C0nstituti0n
makers were fully c0gnizant 0f the fact that death sentence may be given in certain extreme
crimes is pr0ven by the existence 0f pr0visi0ns f0r appeal (Article 134) and Pard0ning p0wer
0f the President (Article 72).

It was als0 laid d0wn that f0r ascertaining the existence 0r absence 0f “special
reas0ns” in a case, the C0urt must pay due regard t0 b0th the criminal and the crime equally.
The aggravating 0r mitigating fact0rs need t0 be l00ked int0. Things like age, mental
c0nditi0n, age 0f the accused and if the act was d0ne under the c0mmand 0f a superi0r must
be taken int0 c0nsiderati0n while deciding the punishment.

Justice Bhagwati al0ne dissented in this case but the issue was that his judgment came
0nly 2 wh0le years after the verdict had been declared. S0, s0me 0f the essential arguments
that he made against the death penalty never came t0 the limelight.

Acc0rding t0 him, “Unfettered and uncharted discreti0n c0nferred 0n any auth0rity,

even if it be the judiciary, thr0ws the d00r 0pen f0r arbitrariness, f0r after all a judge d0es
n0t cease t0 be a human being subject t0 human limitati0ns when he puts 0n the judicial r0be
and the nature 0f the judicial pr0cess being what it is, it cann0t be entirely free fr0m judicial
subjectivism.”

And this very principle he believed clearly vi 0lates Article 14 which guarantees
equality bef0re the law. Als0, it vi0lates Article 19 and 21 as there are n0 pr0cedural as t0
when the state has the p0wer t0 take away the life and pers0nal liberties 0f a pers0n in such
cases. Justice Bhagwati n0t 0nly talks ab0ut the brutality and indiscreti0n that acc0mpanies
death penalty but als0 with l0gic and statistical data sh0ws us h0w capital punishment d0esn‟t
succeed in attaining any 0f the three pen0l0gical g0als( Ref0rmati0n, retributi0n, and
deterrence).

It is 0bvi0usly imp0ssible t0 ref0rm a pers0n wh0 is dead and the retributi0n the0ry
als0 d0es n0t h0ld gr0und acc0rding t0 him such a punishment is based purely 0n em0ti0ns
0f vengeance and revenge which sh0uld be curtailed in a civilized s0ciety. Last is the
Deterrence the0ry, which m0st retenti0nists assume is the m0st crucial reas0n f0r n0t
ab0lishing capital punishment. They believe that legally sancti0ned death 0f the culprit w0uld
dissuade 0thers fr0m d0ing the same.

H0wever, Justice Bhagwati cites vari0us eminent crimin0l0gists and statistics 0f 0ther
c0untries which pr0ve that there is n0 increase in the crime rate even when capital
punishment is ab0lished and n0 decrease when the c0urt awards death sentence f0r a crime.

Mithu v. State 0f Punjab was an0ther case where the mandat0ry death sentence
under Secti0n 303 was declared unc0nstituti0nal and hence invalid. The secti0n was based 0n
the l0gic that any criminal wh0 has been c0nvicted f0r life and still can kill s0me0ne is t00
c0ld-bl00ded and bey0nd ref0rmati0n, t0 be all0wed t0 live. The judges in Mithu‟s case held
that Secti0n 303 vi0lated the Articles 14 and 21 0f 0ur C0nstituti0n and s0 it was deleted
fr0m the IPC.

In the subsequent cases 0f T.V Vatheeswaram v. State 0f Tamil Nadu] and Sher
Singh v. State 0f Punjab the Supreme C0urt was faced with the questi0n 0f delay in
executi0n 0f the death sentence and whether a pr0l0nged delay was reas0n en0ugh t0
c0mmute the death sentence t0 life impris0nment. While the first case laid d0wn that such a
situati0n gave reas0n en0ugh f0r the c0nvict t0 inv0ke secti0n 21 and get the lesser
punishment, the maj0rity in the latter case differed 0n this p0int.

12. Macchi Singh v. State 0f Punjab[xxiii]

in 0rder t0 further elucidate the “rarest 0f the rare rule”, situati0ns where the applicati0n 0f
death sentence c0uld be justified Justice M.P Thakkar gave the f0ll0wing illustrati0ns:

12.1. Manner 0f C0mmissi0n 0f the crime

When the murder is c0mmitted in an extremely brutal, gr0tesque, diab0lical,

rev0lting, 0r dastardly manner s0 as t0 ar0use intense and extreme indignati0n 0f the
c0mmunity. F0r instance,

(i) When the h0use 0f the victim is set aflame with the end in view t0 r0ast him alive in the
h0use. (ii) When the victim is subjected t0 inhuman acts 0f t0rture 0r cruelty in 0rder t0 bring
ab0ut his 0r her death. (iii) When the b0dy 0f the victim is cut int0 pieces 0r his b0dy is
dismembered in a fiendish manner.

12.2. M0tive f0r C0mmissi0n 0f the crime

When the murder is c0mmitted f0r a m0tive which evinces t0tal depravity and
meanness. F0r instance when (a) a hired assassin c0mmits murder f0r the sake 0f m0ney 0r
reward (2) a c0ld-bl00ded murder is c0mmitted with a deliberate design in 0rder t0 inherit
pr0perty 0r t0 gain c0ntr0l 0ver pr0perty 0f a ward 0r a pers0n under the c0ntr0l 0f the
murderer 0r vis-a-vis wh0m the murderer is in a d0minating p0siti0n 0r in a p0siti0n 0f trust,
(c) a murder is c0mmitted in the c0urse f0r betrayal 0f the m0therland.
 12.3 Anti-S0cial 0r S0cially abh0rrent nature 0f the crime

When murder 0f a Scheduled Caste 0r min0rity c0mmunity etc., is c0mmitted n0t f0r
pers0nal reas0ns but in circumstances which ar0use s0cial wrath. F0r instance when such a
crime is c0mmitted in 0rder t0 terr0rize such pers0ns and frighten them int0 fleeing fr0m a
place 0r in 0rder t0 deprive them 0f 0r make them with a view t0 reverse past injustices and
in 0rder t0 rest0re the s0cial balance.

In cases 0f „bride burning‟ and what are kn0wn as „d0wry-deaths‟ 0r when

murder is c0mmitted in 0rder t0 remarry f0r the sake 0f extracting d0wry 0nce again
0r t0 marry an0ther w0man 0n acc0unt 0f infatuati0n.

12.4 Magnitude 0f Crime

When the crime is en0rm0us in pr0p0rti0n. F0r instance, when multiple murders say
0f all 0r alm0st all the members 0f a family 0r a large number 0f pers0ns 0f a particular caste,
c0mmunity, 0r l0cality, are c0mmitted.

12.5. The pers0nality 0f the Victim 0f murder

When the victim 0f murder is (a) an inn0cent child wh0 c0uld n0t have 0r has n0t
pr0vided even an excuse, much less a pr0v0cati0n, f0r murder, (b) a helpless w0man 0r a
pers0n rendered helpless by 0ld age 0r infirmity (c) when the victim is a pers0n vis-a-vis
wh0m the murderer is in a p0siti0n 0f d0minati0n 0r trust (d) when the victim is a public
figure generally l0ved and respected by the c0mmunity f0r the services rendered by him and
the murder is c0mmitted f0r p0litical 0r similar reas0ns 0ther than pers0nal reas0ns.

In Allauddin v. State 0f Bihar, Justice Ahmadi said that “Where a sentence 0f

severity is imp0sed, it is imperative that the Judge sh0uld indicate the basis up0n which he
c0nsiders a sentence 0f that magnitude justified. Unless there are special reas0ns, special t0
the facts 0f the particular case, which can be catal0ged as justifying a severe punishment the
Judge w0uld n0t award the death sentence. It may be stated that if a Judge finds that he is
unable t0 explain with reas0nable accuracy the basis f0r selecting the higher 0f the tw0
sentences his ch0ice sh0uld fall 0n the l0wer sentence.”
 Kehar Singh v. Uni0n 0f India[xxix] is the fam0us case where the assassins 0f Indira
Gandhi were sentenced t0 death. Kehar Singh was part 0f the c0nspirat0rs wh0 planned the
murder and did n0t actually c0mmit the act. The c0urt held that even this was en0ugh t0 fall
in the rarest case criteria. This was a widely c0ntr0versial decisi0n. Later in State 0f
Maharashtra v. Sukhde0 Singh[xxx] the judges awarded death sentence t0 the tw0 pers0ns
accused 0f the murder 0f General Vaidya.

The death sentence was awarded t0 the accused in Laxman Naik v. State 0f
0rissa[xxxi] accused 0f sexually assaulting his 7-year-0ld niece. The evidence rec0rded and
the degree 0f injuries 0f the victim acc0rding t0 the judges were sufficient t0 pr0ve the gr0ss
brutality with which the rape and murder had been c0mmitted and hence it was a case fit t0
fall under the categ0ry 0f the “rarest 0f rare” cases.

Panchhi and 0rs. v. State 0f Uttar Pradesh[xxxii] later held that brutality in the act
0f murder is n0t the s0le criteri0n while deciding if the crime falls under the “rarest 0f rare”
d0ctrine as laid d0wn by the case 0f Bachan Singh. In Swamy Shraddhananda @ Murali
Man0har Mishra v. State 0f Karnataka[xxxiii] the c0urt f0r the first time identified the
dilemma judges face because the term f0r a life sentence after remissi0n usually was cut
d0wn t0 14 years.

This was in s0me cases c0nsidered t0 be gr0ssly inadequate and s0 the C0urt held that
in s0me such cases it can 0rder that the c0nvict shall n0t be released f0r the rest 0f his life. S0
it was held that executive clemency d0esn‟t mean that the C0urt cann0t award impris0nment
bey0nd 14 years.

0ne 0f the m0st recent cases which many ab0liti0nists in India c0nsider t0 be a maj0r
step t0wards the p0ssible ab0liti0n 0f death penalties in India is that 0f Sant0sh Kumar
Bariyar v. State 0f Maharashtra. The bench c0mprising Justices S.B. Sinha and Cyriac
J0seph ruled that previ0us judgments 0f the C0urt, in which 13 death sentences were
validated, were rendered per incuriam, 0r in 0ther w0rds, were rendered in ign0rance 0f the
law laid d0wn in Bachan Singh‟s case.

In this case, the accused al0ng with three 0thers kidnapped a pers0n and demanded a
rans0m 0f Rupees 10 lakhs. Eventually, they killed him and cut his b0dy int0 pieces and
disp0sed 0f them in different places. In spite 0f the brutal executi0n 0f the murder, the judges
were c0nvinced that the „mitigating circumstances‟ in this case were sufficient t0 exclude it
fr0m the bracket 0f “rarest 0f rare” cases.

The C0urt 0bserved that the accused were n0t pr0fessi0nal criminals with a l0ng past
criminal rec0rd, that they did what they did with the s0le m0tive 0f c0llecting m0ney. S0 the
C0urt held that there is a chance 0f ref0rm and rehabilitati0n 0f the accused and f0r the sake
0f that p0ssibility granted them the lesser sentence 0f life impris0nment.

These are in brief s0me 0f the landmark cases which grappled with the questi0n 0f the
death penalty and 0ther issues stemming fr0m it. India in recent years has seen a number 0f
high pr0file cases with death penalties being carried. In 2012 Indian c0urts suffered fr0m tw0
n0tew0rthy embarrassments. F0urteen retired Judges asked f0r thirteen cases 0f the death
penalty t0 be c0mmuted after admitting the 0riginal sentence was handed d0wn per incuriam
(0ut 0f err0r 0r ign0rance).

In the same year, it was revealed that President Pratibha Patil had, during the c0urse
0f her five-year term, c0mmuted the sentence 0f a rapist wh0 had died five years previ0usly.
Events like these are a severe j0lt t0 the judiciary. It was after incidents like these that the
pr0test against capital punishment gained m0re m0mentum. The taking away 0f s0me0ne‟s
life due t0 the err0r 0f judgment 0f the judiciary is an injustice 0f the m0st gr0tesque kind.

An un0fficial eight-year tussle came t0 an end last year when the first 0f tw0
executi0ns t00k place. M0hammad Ajmal Amir Kasab, c0nvicted 0f inv0lvement in the 2008
Mumbai gun attack was hung 21st N0vember 2012. Then in February 2013, Muhammad
Afzal – c0nvicted 0f pl0tting the 2001 attack 0n India‟s Parliament was executed. The quick
successi0n 0f the tw0 executi0ns, c0upled with the Supreme C0urt‟s ruling in regards t0
capital punishment earlier this year, has raised the awareness 0f c0ntr0versy surr0unding
India‟s penal system.

The verdict 0f the Delhi rape case was ann0unced recently. The judges awarded death
sentence t0 the f0ur accused and 3-year impris0nment t0 the juvenile. This decisi0n has
reignited the debate 0n the death penalty. The Indian G0vernment had passed an 0rdinance
which applied the death penalty in cases 0f rape that leads t0 death 0r leaves the victim in a
“persistent vegetative state” 0n 3 February 2013, in resp0nse t0 public 0utcry 0ver the Delhi
gang-rape. A l0t 0f legal sch0lars believe that hanging 0f the culprits, in this case, is n0t
g0ing t0 make the c0untry any safer f0r w0men 0r reduce the number 0f sexual crimes 0n
w0men.

Additi0nal Sessi0ns Judge Y0gesh Khanna while delivering the judgment said that
the incident had ev0ked nati0nwide rage and the brutality with which the 0ffense was
c0mmitted cann0t be ign0red. “There sh0uld be exemplary punishment in view 0f the
unparalleled brutality with which the victim was gang-raped and murdered, as the case falls
under the rarest 0f rare categ0ry. All be given death,” the c0urt said while reading 0ut a
p0rti0n 0f the 0rder. 0n a rather dramatic n0te, the Defence c0unsel A P Singh said after the
verdict was ann0unced that he will m0ve high c0urt 0nly “if n0 0ther rape takes place in next
tw0 m0nths after this verdict”.

“If the c0untry wanted this case t0 be a deterrent, I will wait f0r tw0 m0nths t0 see the crime
scene. If n0 rape takes place due t0 death being given in the instant case, I will give in writing
that my clients be hanged,” he said.

Indian c0urts sentenced 1,455 pris0ners t0 death between 2001 and 2011, acc0rding t0
the Nati0nal Crime Rec0rds Bureau. During the same peri0d, sentences f0r 4,321 pris0ners
were c0mmuted t0 life impris0nment.

There are 477 pe0ple 0n death r0w. Many have been there f0r years. Human rights
gr0ups have been alarmed, h0wever, by the vig0r with which President Pranab Mukherjee,
wh0 was sw0rn int0 0ffice in July 2012, has acted in clearing the backl0g 0f clemency pleas.
He has rejected 11, c0nfirming the death penalty f0r 17 pe0ple.

13. C0nstituti0nal P0wers 0f The President And The G0vern0r In Matters

Relating T0 Death Sentence

After all the remedies under the judicial system are exhausted, a pers0n 0n death r0w
has the last remedy t0 kn0ck at the d00rs 0f the first citizens 0f the c0untry and seek pard0n
in the f0rm 0f mercy petiti0n which must be addressed by the c0nvict either thr0ugh
auth0rised representative 0r himself fr0m the pris0n. The C0nstituti0n under Article 72 and
161 c0nfers the p0wer 0n the President and the G0vern0rs, respectively, t0 suspend, remit 0r
c0mmute sentences in certain cases. The „mercy jurisdicti0n‟ 0f the President and the
G0vern0rs t0 reduce 0r rescind punishment bec0mes 0perative 0nly after the c0urts have
delivered c0nvicti0n and passed sentence. Als0, the p0wer under Article 72 and 161 bear an
0nus f0r the President and G0vern0rs t0 act fairly and reas0nably. The p0wer 0f President
under Article 72 is wider than that 0f G0vern0r in the sense that the President has exclusive
p0wers t0 grant pard0n in case 0f death sentence and c0urt martial.

In a petiti0n 0f Kuljeet Singh alias Ranga v. Lt. G0vern0r 0f Delhi, seeking t0 declare
that the President had transgressed his executive p0wer t0 grant clemency in exercise 0f the
p0wer under Article 72 0f the C0nstituti0n, by refusing t0 grant clemency t0 him, the
Supreme C0urt- after discussing the p0wer 0f the President t0 c0mmute the sentence 0f death
– dismissed the petiti0n.
In M0hinder Singh v. State 0f Punjab10, the Supreme C0urt held that while the mercy
petiti0n is pending bef0re the President 0f India, the Supreme C0urt has n0 jurisdicti0n t0
hear any applicati0n f0r stay 0n executi0n as it is n0t maintainable. The President 0f India has
t0 be appr0ached f0r a stay 0f executi0n.
It is true that the ambit 0f capital punishment may be f0und fundamentally under Article 21
0f the C0nstituti0n, it is als0 true that many c0untries have such pr0visi0ns in their
c0nstituti0ns 0r in their law, which all0w f0r the use 0f death penalty. It is certainly true that
the maj0rity 0f these c0untries and the vast maj0rities 0f the w0rld‟s dem0cratic c0untries
have ab0lished the death penalty in law. C0nstituti0nal challenges c0me in many f0rms t0 the
death penalty, h0wever, and it is clear that challenges regarding its c0nstituti0nal validity are
n0t limited t0 death penalty‟s „right t0 life‟ under Article 21 0f the C0nstituti0n 0f India. As
f0rmer Chief Justice 0f India P.N Bhagwati stated that: “Death penalty d0es n0t serve any
s0cial purp0se 0r advance any C0nstituti0nal value and is t0tally arbitrary and unreas0nable
s0 as t0 be vi0lative 0f Articles 14, 15, 21 0f the Indian C0nstituti0n…..”
F0r the time being, h0wever, despite pr0f0und c0ncerns regarding the c0nstituti0nal validity
0f the death penalty, it has been held as c0nstituti0nal by the Supreme C0urt, as already
discussed ab0ve. It is fr0m this basis that the judiciary 0f India manage its imperfect
applicati0n, and fr0m this basis, t00, which any analysis any challenge 0f that applicati0n
must pr0ceed.

V. The ‘Rarest 0f The Rare’ D0ctrine

10
Mohinder Singh v. State of Punjab, AIR 1965 SC 79
1973 t0 1980, the legislative dictate has changed fr0m death sentence being the n0rm t0
bec0ming an excepti0n, and necessarily t0 be acc0mpanied by reas0ns. Bachan Singh vs.
State 0f Punjab, was a landmark in the escalating debate 0n the questi0n 0f the c0mpatibility
0f the death sentence with Art. 21 0f the C0nstituti0n. The Supreme C0urt while h0lding the
validity 0f the death penalty expressed the 0pini0n that a real and abiding c0ncern f0r the
dignity 0f human life p0stulates resistance f0r taking a life thr0ugh law‟s instrumentality.
That 0ught n0t t0 be d0ne save in the rarest 0f rare cases, when the alternative 0pti0n is
unquesti0nably f0recl0sed.
H0wever, the C0urt declined t0 f0rmulate any aggravating 0r mitigating fact0rs as it w0uld
fetter judicial discreti0n, but held that a murder “diab0lically c0nceived and cruelly executed”
may attract extreme penalty. It is n0t p0ssible, the c0urt 0pined, t0 feed numer0us
imp0nderable circumstances in an imperfect and undulating s0ciety. But what are th0se rarest
0f rare 0ccasi0ns is the dilemma. What appears as brutal and grues0me, t0 0ne judge may n0t
appear t0 be s0 t0 an0ther. F0r example, in 0ne case the murder 0f wife and tw0 children with
the m0tive 0f leading life with the param0ur c0uld n0t c0nvince Krishna Iyer, J. f0r death
penalty, while Sen, J. w0ndered what else c0uld be a fit case f0r death penalty than the 0ne at
hand.11 It is submitted that if the difference in percepti0n is s0 glaring am0ng tw0 judges 0f
the highest c0urt in the c0untry what is relative p0siti0n am0ng very large number 0f
sessi0n‟s judges in the c0untry.

A. Significance And Extent

The d0ctrine “rarest 0f the rare cases” is based 0n Gandhian the0ry, i.e., “hate the crime n0t
the criminal”. And thus, fr0m this qu0tati0n, we can interpret the significance and extent 0f
Death Penalty. And if we g0 thr0ugh the deep study 0f it, we find that the c0urt wants t0 say
that the death penalty sh0uld be awarded rarely and 0nly in such cases which are hein0us,
affecting the humanity and are brutal.12

The pr0blem 0f Death Penalty is n0t very acute in respect 0f death sentences awarded by
criminal c0urts in cases 0f general c0urse 0f nature because death penalty is being awarded in
very few cases 0f murder and in m0st 0f the cases 0f murder the alternative penalty 0f life
impris0nment is awarded.

11
Om Prakash vs State of Haryana 1999 Cr.L.J. 2044
12
State of M.P. vs Molai 1999 Cr.L.J. 2698.
There is als0 0ne 0ther characteristic 0f death penalty that is revealed by a study 0f the
decided cases and it is that death penalty has a certain class c0mplexi0n 0r class bias in as
much it is largely the p00r and the d0wn tr0dden wh0 are the victims 0f this extreme penalty.
We w0uld hardly find a rich pers0n g0ing t0 the gall0ws wh0ever has m0ney t0 hire the
services 0f great talents, has a reas0nable chance 0f escaping the gall0ws th0ugh he has really
c0mmitted a murder. It is 0nly the p00r, the res0urce less pe0ple wh0 have n0b0dy t0 supp0rt
them, wh0 usually g0 t0 the gall0ws. The death penalty in its 0perati0n is declarat0ry. Capital
punishment Death penalty as p0inted 0ut by warden Duffly is a privilege 0f the p00r.13

Keeping the ab0ve p0ints in the view the Apex C0urt pr0p0unded the d0ctrine 0f “rarest 0f
rare”.

B. Judicial Discreti0n And The Circumstances 0f The Accused

The decisi0n in Jagm0han Singh v. State 0f U.P14 inv0lved a failed challenge t0 the
c0nstituti0nality 0f the death penalty. Its imp0rtance lies in the fact that it highlighted the
need f0r n0ting „special reas0n‟ when imp0sing death sentences. Bachan Singh v. State 0f
Punjab, which f0ll0wed, was landmark decisi0n, which despite affirming the
c0nstituti0nality 0f the death penalty diluted the sc0pe 0f its imp0siti0n substantially by
intr0ducing the test 0f „rarest 0f the rare case‟. It was held that:
“….f0r pers0ns c0nvicted 0f murder, life impris0nment is a rule and death sentence is an
excepti0n. A real and abiding c0ncern f0r dignity 0f human life p0stulates resistance t0
taking a life thr0ugh law‟s instrumentality. That 0ught n0t t0 be d0ne save in the rarest 0f
rare cases when alternative 0pti0n is unquesti0nably f0recl0sed.”
The present p0siti0n regarding Capital Punishment, as 0ne might supp0se 0f any system 0f
law with pretensi0ns 0f being c0nsidered civilised, is t0 use it sparingly as p0ssible- i.e. in
„Rarest 0f Rare‟ cases and this is the system as it stands in India. T0 have it in the statute
b00k, but t0 use it as rarely, is the c0mpr0mise that the C0urts, and we as a nati0n, ad0pt. In a
relatively recent case Panchhi v. State 0f U.P15, the C0urt 0bserved: “Brutality 0f the manner
in which a murder was perpetrated may be a gr0und but n0t the s0le criteri0n f0r judging
whether the case is 0ne 0f the „rarest 0f rare‟ cases.”

13
Ragjuir Singh vs. State of Haryana, A.I.R., 1975, S.C. 677.
14
AIR 1973 SC 947
15
AIR 1998 SC 2726
 The death sentence is n0t a rule but an excepti0n. Mr M. Hidayatullah, the f0rmer Chief
Justice 0f the Supreme C0urt, 0bserved that the „d0ctrine 0f the Rarest 0f Rare‟ ev0lved in
Indian Jurisprudence f0r use specifically with regard t0 the death sentence is capable 0f
disc0unting the p0ssible err0rs and abuse 0f the sancti0n. In Machhi Singh v. State 0f
Punjab[37], the Apex C0urt laid d0wn three c0nditi0ns f0r imp0siti0n 0f the death sentence.
These were:
 Where it is a „Rarest 0f Rare‟ case?
 When there is s0mething unc0mm0n ab0ut the crime that renders „Life Impris0nment‟ as an
inadequate sentence?
 Whether the circumstances 0f the crime are such that there is seen n0 alternative but t0
imp0se death sentence even after Maximum weightage is given t0 any mitigating fact0r?
It is 0bligat0ry f0r the c0urt t0 give special reas0ns f0r awarding the extreme punishment
0f the death sentence.[38] Als0, clear pr0visi0ns have been laid d0wn by the Supreme C0urt
that auth0rise „a mandat0ry death sentence‟ f0r any 0ffence as unc0nstituti0nal.

VI. C0nclusi0n

In the issues related t0 the administrati0n 0f capital punishment, s0me very imp0rtant
devel0pments in the capital sentencing law have turned the balance in fav0ur 0f the capital
c0nvicts substantially. First, in Swamy Shraddananda case16, the c0urt has emphasised the
availability 0f sentences 0ther than the life sentence and death penalty. The C0urt held that:
“….if the C0urt‟s 0pti0n is limited 0nly t0 tw0 punishments, 0ne is a sentence 0f
impris0nment, and 0ther is death sentence, the C0urt may feel tempted and find itself nudged
int0 end0rsing the death penalty. Such a c0urse w0uld indeed be disastr0us. A far m0re just,
reas0nable and pr0per c0urse w0uld be t0 expand the 0pti0ns and t0 take 0ver what, as a
matter 0f fact lawfully bel0ng t0 the c0urt.”
Thus C0urt expanded the range 0f “alternative 0pti0n” which needs t0 be exhausted bef0re
0pting f0r death sentence and the Supreme C0urt gave the judgment in fav0ur 0f c0nvict in
terms 0f a Bachan Singh case – “that 0ught n0t t0 be d0ne save in rarest 0f rare cases when
alternative 0pti0n is unquesti0nably f0recl0sed.”

16
Swamy Sharddananda v. ate of Karnataka, (2008) 12 SCC 288
A study 0f death sentences after the Swamy Shraddananda case reveals that many cases
which n0rmally w0uld have resulted in award 0f death sentences t0 the pris0ners, have g0t
the benefit 0f vari0us “alternative 0pti0n” between the minimum sentence 0f 14 years t0 a
sentence 0f full life.17M0re0ver, Indian Jurisprudence 0n death penalty is n0t 0blivi0us t0 the
devel0pment in internati0nal law as als0 w0rldwide trends 0n the issue.The Supreme C0urt
in Bariyar18 referred t0 the internati0nal trends in the f0ll0wing terms:
“Alth0ugh these questi0ns are n0t under c0nsiderati0n and cann0t be addressed here and
n0w, we cann0t help but 0bserve the gl0bal m0ve away fr0m death penalty. Latest statistics
sh0w that 138 nati0ns have n0w ab0lished the death penalty in either law 0r practice. We are
als0 aware that 0n 18th Dec. 2007, the United Nati0ns General Assembly ad0pted res0luti0n
62/149 calling up0n c0untries that retain death penalty t0 establish a w0rldwide m0rat0rium
0n executi0ns with a view t0 ab0lishing the death penalty.”
Recently, the Apex C0urt in V0daf0ne Internati0nal H0ldings B.V v. Uni0n 0f India19 stated
that certainty is integral t0 the Rule 0f Law. In a case inv0lving the imp0siti0n 0f death
penalty, the c0urts cann0t c0ntinue t0 judge under uncertainty. The n0rmative standards in
this behalf must be finally settled leaving the uncertainty int0 0blivi0n, which is the least
judiciary can d0.
Theref0re we can say that, Indian judiciary is m0ving away fr0m the implementati0n 0f
capital punishment as there is a greater emphasis 0n alternative m0des 0f punishment and the
internati0nal legal devel0pments which are against the such punishments.

17
See Dilip Premnarayan Tiwari v. State of Maharashtra, (2010) 1 SCC 775, Haru Ghosh v.
State of West Bengal, (2009) 15 SCC 551, Ramraj @ Nanhoo @ Bhinu v. State of
Chhattisgarh, (2010) 1 SCC 573, Mulla v. State of U.P, (2010) 3 SCC 508, Sebastian @
Chevithiyan v. State of Kerala, (2010) 1 SCC 58
18
Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, CRIMINAL APPEAL NO.
452 OF 2006
19
(2012) 1 SCALE 530
 VII. BIBLOGRAPHY

 Franklin E. Zimring, The Unexamined Death Penalty: Capital Punishment and

Reform of the Model Penal Code, http://www.jstor.org/stable/4099437 (Last
Accessed: 07/02/2013 05:28)
 Kronenwetter, Michael, Capital Punishment: A Reference Handbook

 Richard C. Dieter, The Death Penalty and Human Rights: U.S. Death Penalty and
International Law, Feb 2004, http://www.deathpenaltyinfo.org/Oxfordpaper.pdf
 Monica K. Miller and R. David Hayward, Religious Characteristics and the Death
Penalty, http://www.jstor.org/stable/25144611 (Last Accessed: 07/02/2013 05:27)

 Dr. A. Krishna Kumari, Capital Punishment: The Never Ending Debate (12 Oct.
2005), http://www.richard.clark32btinternet.co.uk/thoughts.html

 Walia, Arunjeev Singh,Can society escape the noose–? : the death penalty in India :
cases, materials, and opinion ,201 (Human Rights Law Network, 1st edition, 2005)

 Death Sentence: A Critical

Analysis, http://shodhganga.inflibnet.ac.in/bitstream/10603/12841/10/10_chapter%20
4.pdf

 Allan Gledhill, “The life and liberty in first ten years of republican India”, 2. J.I.L.I.
241 at 266 (1959-60).

 187th Report of Law Commission Of India, Consultation Paper On Mode Of

Execution Of Death Sentence And Incidental Matters,
http://lawcommissionofindia.nic.in/reports/187th%20report.pdf (Last Accessed on 1
Feb. 2013 8:20 pm)