JAMIA MILLIA ISLAMIA

FACULTY OF LAW

PROJECT OF CRIMINOLOGY, PENOLOGY AND VICTIMOLOGY

TOPIC- CAPITAL PUNISHMENT IN INDIA

SUBMITTED TO

Mr. Rasheed C A

Faculty of Law

Jamia Millia Islamia

SUBMITTED BY

Name- Mahima Chanchalani

Student Id- 201908202

Roll no.-32

Course- B.A.L.L.B (Hons.) Regular

3rd year, 5th Semester, Batch- 2019-2024

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 Capital Punishment in India

1. Introduction

The word capital is taken from the Latin term ‘capitalis’ meaning ‘regarding the head’
(implying execution of sentence by beheading). Capital Punishment, also known by the name
of the death penalty where the execution of a punishment for an offence is death. It is the
crimes such as capital crime or capital offences that eventually lead to the death penalty. It is
based on the proposition that a person who inflicts pain on others must also suffer for it. It is
a system of deterrence that punishes the wrongdoers and act as a warning for those who want
to commit such harm.1

There are various forms of punishment but out of all of them, capital punishment is the most
contentious form of punishment among modern penologists. Capital Punishment plays an
important part in the Indian criminal justice system. This type of punishment can be granted
to a person only in exceptional circumstances i.e. in cases of brutal murder and gravest
offences against the state. Therefore, this is the point where the ‘rarest of rare case’ doctrine
comes into play. According to this doctrine, the Courts through various judicial
pronouncements have taken a stand on the effectiveness of the death penalty as a punishment
today.

This paper will analyze the concept of capital punishment and if it is still a prevalent form of
punishment in India. If it is, then what are the offences where the death penalty is awarded. If
it isn’t, then what is the alternate form of punishment in the offences so committed.

2. Understanding Capital Punishment

i) Definition

The Oxford Dictionary defines capital punishment as, “it is the legally authorized killing of
someone as punishment for a crime”.2

Capital Punishment, also known as the death sentence is awarded to offenders for capital
offences like crimes involving planned murder, multiple murders, repeated crimes; rape and
murder, etc. because such a person possesses gross danger to the existence of the society and
hence provides death punishment. Capital Punishment or the death penalty is a legal process
whereby a person is put to death by the state as a punishment for a crime.
1
Available at: Be Legal, Be Intelligent: CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT
(newindialaw.blogspot.com) (retrieved on October 10, 2021)
2
Available at: https://www.lexico.com/definition/capital_punishment (retrieved on October 10, 2021)

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 ii) Meaning

Capital punishment also termed as death penalty, is an execution of an offender sentenced to

death after conviction by a court of law for a criminal offense. Death penalty and capital
punishment are used synonymously, though the application of the penalty is not always
accompanied by execution (even when it is upheld on appeal), because of the possibility of
commutation of the death penalty to life imprisonment.3

iii) Retributive effect of Capital Punishment

Death sentence acts as an efficacious tool to acquire retributive justice for a long time. The
rationale behind this is that it is not illegal to inflict pain on someone who makes others
suffer. A person who kills another must be eliminated from society and therefore, his
execution is justified.4 The death penalty is awarded to take revenge or compensation of the
harm suffered by a party or a society. The method of vengeance is beneficial if regulated by
law. Legal vengeance solidifies social solidarity against lawbreakers and probably is the only
alternative to the disruptive private revenge of those who feel harmed.5

3. Offences where Capital Punishment is awarded under IPC

The offences which are punishable with death sentences under the Indian Penal Code, 1860 6
are:

i) Waging war against the State (Section 121)

ii) Abetment of mutiny (Section 132)
iii) Giving or fabricating false evidence leading to procure one’s connection for
capital offence (Section 194)
iv) Murder (Section 302)
v) Abetment of suicide committed by a child or insane (Section 305)
vi) Abetment to murder by life-convict if hurt is caused (Section 307)
vii) Kidnapping for ransom, etc. (Section 364-A), and
viii) Punishment for causing death or resulting in a persistent vegetative state of a
victim (Section 376-A)7
3
Available at: http://www.britannica.com/topic/capital-punishment (retrieved on October 11, 2021)
4
David Dresser, Reading in Criminology and Penology, 2nd edition (Columbia University Press, New York,
1972).
5
Ernest Van den Haag, Is Capital Punishment Just? 406 (Ethics & Public Policy Center Inc., United States,
1978).
6
The Indian Penal Code, 1860
7
The Indian Penal Code, 1860, sec. 376

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ix) Dacoity with murder (Section 396)

The punishment of death penalty is also granted to offenders under special laws for dealing
with special type of crimes like the menace of Drugs8 Terrorism9, etc.

4. Constitutionality of Capital Punishment in India

The Indian Penal Code contains regulations that allow a judge to convict a person to death if
they are convicted to live in prison. The sections that provide for both life imprisonment and
the death penalty for the same offence are most challenged by reformers. This is because a
criminal who commits the same offence may be treated unequally by the court, resulting in
disproportionate sanctions, which would be a violation of Article 14 of the Constitution.

Some people claim that it also violates Article 245 since it includes a disproportionate and
unreasonable delegation of legislative powers to the court. The major argument is that the
legislature did not create any foundation for the court to distinguish between the two
sentences, nor did they establish any principle by which the Court might do so. The question
of punishment has been left open-ended by the legislature.10

In certain cases, the court has sentenced the criminal to death, while in others, the court has
sentenced the convict to life in prison for the same offence. It demonstrates that the decision
on whether the offender should be sentenced to life or in prison or with death sentence is
made arbitrarily.11

Furthermore, judges are expected to make objective decisions because of the nature of their
profession. As a result, the penalties will not be imposed arbitrarily. Furthermore, the
offender can contest his sentence in a separate hearing under Section 235(2) of the Code of
Criminal Procedure. This safeguards the offender from any arbitrary decisions made during
the sentencing process.12

Section 354(3) of the Indian Penal Code additionally states that before imposing the death
penalty, the court must give sufficient justifications for their decision.13

5. Status of Capital Punishment in India

8
National Drugs and Psychotropic Substances Act, 1985
9
The Unlawful Activities (Prevention) Act, 1967.
10
K Gaur, “International Perspectives on Death Penalty” 39 Journal of Constitutional and Parliamentary Study
230 (2005)
11
S. Ayyathurai, “Should Death Penalty Go?” 49 Criminal Law Journal 50 (2000)
12
Code of Criminal Procedure 1973, Section 235(2)
13
Code of Criminal Procedure, 1973, Section 354(3)

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Capital Punishment is a legal death penalty in India. India gives capital punishment for
serious offences14. The Indian Constitution in its Article 12 corroborates within itself the
Fundamental Right to life and liberty for all persons. It further enumerates that a person shall
be deprived of his life or personal liberty but according to the procedure established by law.
The previous statement implies that a state has the authority to deprive a person of this
fundamental right of life only by the making of a law that is just and fair. However, the
Central Government has decided to keep the punishment of death penalty in the statute books
to act as a deterrent. To punish people who, possess a threat to society, the Supreme Court
has also upheld the constitutional validity of capital punishment in “rarest of rare” cases. 

In the cases of Jagmohan Singh v. State of Uttar Pradesh15, then in Rajendra Prasad v.
State of Uttar Pradesh16, and finally in Bachchan Singh v. State of Punjab17, the Supreme
Court attested to the constitutional validity of the death penalty. It said that if capital
punishment is provided in the law and the procedure is a fair, just, and reasonable one, the
death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare”
cases, and the courts should render “special reasons” while sending a person to the gallows.

In the case of Rajendra Prasad v. State of Uttar Pradesh, Justice V. R. Krishna Iyer observed:
(the prisoner) by now be more a vegetable than a person and hanging a vegetable is not death
penalty.18

6. Rarest of Rare Case

The principle of ‘rarest of rare case’ has been laid down by the Supreme Court in the
landmark judgment in Bachan Singh v. State of Punjab.

The meaning of the term rare event, according to the Oxford Dictionary, is an event or
situation that occurs occasionally. As a result, rare would be an apt qualifier and apply to
cases that are exceptional and do not happen in the ordinary course of events. A thing is
unusual when it does not happen often or during day-to-day activities, and when the
occurrence of the event is so unique and sparse that it stands out from everyday life events.
Even if a crime is of enormous magnitude and has been conducted in the most detailed
manner, it may not fall into the unusual category. The severity of an offence can be measured
14
Majumder, Sanjoy, “India and the Death Penalty”, BBC News, August 4, 2005
15
Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947 
16
Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916
17
Bachan Singh v. State of Punjab, AIR 1980 SC 898
18
Patrick Hudson, “Does the death row phenomenon violate a prisoner’s human rights under international Law”
11 EJIL 833-856 (2000)

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separately from the intensity and the method in which it was committed. As a result, the word
unusual should be construed broadly to encompass the intensity, manner, quantity, motive, as
well as revenge and remorsefulness. As a result, the following scenarios may be classified as
rarest of the rare:

1. When the act is meticulously planned, massive in scale, and horrifying in brutality and
abhorrence, reformation becomes a fallacy due to the nature of the act.

2. Where guilt is overshadowed by a burning desire for vengeance, and the impulse to avenge
and exact revenge takes on new dimensions and becomes the sole motivation.

3. Where the act is genocide or mass murder, i.e. killing a large number of people in a mass
killing that falls just short of being classified as a terrorist act, and is committed to reflecting
unjustified social and hierarchical superiority and dominance, the sole purpose for which it
has been committed or the act is simply an act of global terrorism killing a large number of
people for furthering an objective or misplaced ideology or a wrong and mistaken sense of
cause.

In the case of State of M.P. v. Babu Barkare 19, the Supreme Court has called death penalty
a “just desert” for crimes.

In the case of Surja Ram v. State of Rajasthan 20, the Supreme Court called death penalty a
punishment that reflects “society’s cry for justice against the criminal”.

7. Criminological approach of Capital Punishment in India

There are two types of theories of punishment involved in capital punishment.

1. Reformative theory

2. Preventive theory

Reformative Theory

Mahatma Gandhi said, "An eye for an eye blinds the whole world." The reformative theory of
punishment is based on this premise. All ideas are founded on the principle of reforming the
offender, as published in the International Journal of Pure and Applied Mathematics. All of
these theories have the same goal: to change the guilty person through personalised treatment.
The reformative theory's major goal is to teach or reform the offender on his own. An
19
State of M.P. v. Babu Barkare, 2005 5 SCC 413
20
Surja Ram v. State of Rajasthan, AIR 1997 SC 18

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offender is subjected to punishment solely for his gain. This notion has received support from
a variety of sources. Criminology is supported by reformative theory. Every crime, according
to criminology, is a disordered phenomenon, a weak sort of insanity. Reformative theory is
supported by criminal anthropology, criminal sociology, and psychoanalysis. This philosophy
tries to retrain criminal minds to behave properly so that they can live normal lives. This
ideology opposes all forms of physical punishment.21

1. Criminal Anthropology: Crime, according to current criminal anthropology, is an illness.

According to criminal anthropology, rather than punishing a criminal, it is vital to treat him.
Hospitals and welfare homes are better places to adopt than prisons for reducing crime.
Normal people commit crimes because of purposeful violations of moral law. Occasionally,
crimes are committed because of mental or physical impairment.

2. Criminal sociology: According to criminal sociology, it is more important to develop

social and economic conditions to eliminate inequities than punishing criminals. Punishment
will not change the crimes; however, justice and equality will change the offences.

3. Psychoanalysis: Criminal anthropology and criminal sociology are linked to

psychoanalysis. Reformative theory is supported by psychoanalysis. To prevent crimes,
education and psychoanalysis treatment are required instead of punishment.

Among the theories of punishment, the reformative theory is the best. Some crimes are more
beneficial to prevention theory than others.

Preventive Theory

"Prevention is preferable to cure" This preventative theory's major goal is to keep the
offender out of society. The primary goal of punishment, according to preventive theory, is to
set an example for others and deter them from engaging in illegal behaviour. Offenders are
sentenced to death or life imprisonment under this idea. Many law reformers backed
preventative theory because it has helped to humanise the penal code.

The primary objective of preventive theory is to ensure that the accused does not commit the
crime again after receiving punishment. Because of its adverse effect, this idea explains why
capital punishment is the harshest type of punishment. Another guy's life has been taken by a

21
Bachan Singh v. State of Punjab, AIR 1980 SC 898

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man. As a result, he bears responsibility for his death. In India, they practice preventive
medicine.22

8. Emergence of alternative punishment to Capital Punishment

The Supreme Court has enshrined the punishment of life sentence of a considerate number of
years as a response to concerns brought in death cases. In the case of Swamy Shraddhananda
alias Murli Manohar Mishra v. State of Karnataka 23, the Supreme Court in a three-judge
bench ruling, established the framework for this growing punitive approach as follows:

It's possible to look at the situation from a different perspective. There are two dimensions to
the issue of sentence. A sentence could be excessive and unnecessarily severe, or it can be
severely lacking. When an appellant comes to this Court with a death sentence pronounced
by the trial court and affirmed by the High Court, the Court may determine, as in this case,
that the case falls just short of the rarest of the rare, and maybe hesitant to uphold the death
sentence. However, given the nature of the crime, the Court may strongly believe that a
sentence of life imprisonment with remission, which generally equates to a term of 14 years,
would be appropriate. If the Court's punishment options are confined to two options, one of
which is a sentence of imprisonment for all intents and purposes of not more than 14 years
and the other which is death, the Court may be enticed and encouraged to support the death
penalty. A route like this would be devastating. Expanding the alternatives and taking over
what rightfully belongs to the Court, namely the enormous gap between 14 years of
imprisonment and execution, would be a considerably more just, reasonable, and proper
course. It is important to note that the Court would employ the enlarged option since, in the
facts of the case, a sentence of 14 years in jail would amount to no punishment.

Furthermore, the formalisation of a particular type of sentencing, even for a very limited
amount of cases, will have the significant benefit of having the death penalty on the legal
document but using it as infrequently as possible, in the rarest of cases.”

The observations in the Swamy Shraddhanand case have been followed by the Court in some
cases such as Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v. Sanjay
Kumar, Sebastian v. State of Kerala, Gurvail Singh v. State of Punjab where full life or
sentence of determinate number of years has been awarded as opposed to death penalty.24

22
M Swathi and K Roja, “A critical study on Capital Punishment in India ” 12.
23
Murli Manohar Mishra v. State of Karnataka, AIR 2008 SC 3040
24
Consultation Paper on Capital Punishment, 26–7 (Law Commission of India, India, May 2014).

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 9. Judicial Pronouncements

The Supreme Court, in the case of Bachan Singh v. State of Punjab25, overturned its earlier
decision in Rajendra Prasad's case and decided that the death penalty under Section 302 IPC
does not violate article 21. The International Covenant on Civil and Political Rights, to which
India became a signatory in 1979, does not eliminate the use of the death sentence. However,
it must be imposed in a reasonable and not arbitrary manner; it should be imposed in the most
severe offences.

"Judges should not be bloodthirsty," the Court said in this case. Resistance to taking a life
through the instrumentality of laws is predicated on sincere and abiding compassion for the
dignity of human life.  That should only be done in the most exceptional of circumstances i.e.
the rarest of rare cases, when the alternative is unquestionably foreclosed.”

In Sher Singh v. State of Punjab 26, the Chief Justice reversed the decision in Vatheeswaran,
in which the court held that a two-year delay in the execution of a death sentence would be
replaced by life imprisonment as a binding rule and rejected the plea for replacement of death
sentence by life imprisonment. When there is a delay in execution, the court must investigate
the grounds for the delay. As a result, the ruling of two judges was overturned by the bench
of three judges. The court decided that the length of time it takes to carry out a death sentence
is a significant factor to examine when deciding whether the penalty should be carried out.

In the case of Attorney General of India v. Lachma Devi 27, the Supreme Court held that
the method of carrying out the death penalty by public hanging is barbaric and in violation of
Article 21, and that procedural fairness must be maintained until the last breath of life, as held
in Triveni Ben v. State of Gujarat28.

In the case of Madhu Mehta v. Union of India29, the accused's mercy appeal has been
pending before the President of India for almost nine years. The petitioner brought this issue
to the attention of the court. Because there were no reasons to justify the prolonged delay, the
court ordered the death sentence to be commuted to life imprisonment, citing Article 21 of
the Constitution. The death penalty was not carried out for nine years and hence there was a
delay in the execution of the death sentence.

25
Bachan Singh v. State of Punjab, AIR 1980 SC 898
26
Sher Singh v. State of Punjab, (1983) 2 SCC 344
27
Attorney General of India v. Lachma Devi, AIR 1986 SC 467
28
Triveni Ben v. State of Gujrat, AIR 1989 SC 142
29
Madhu Mehta v. Union of India, (1989) 4 SCC 62

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In the case of Sushil Murmu v. State of Jharkhand, a young child of 9 years was sacrificed
before Goddess Kali by the appellant for his prosperity is what the prosecution alleges.
Hence, the Supreme Court in this case awarded death penalty to the accused.

In the case of State of U.P. v. Satish, the SC stressed that leniency in punishing grave crimes
would have serious consequences the Supreme Court has awarded the death penalty as a
means for the rape and murder of a six-year old girl.

10. Conclusion

The death penalty exists because some crimes shock society's conscience and, admittedly,
ought to be punished harshly.  This severe punishment, however, cannot take away the
offender's life. Although the criminal is a danger to society, he is nevertheless a member of
that community and should be reformed instead of expelling him. Since executions have been
the norm since the dawn of time, countries are hesitant to take the major step of abandoning
this practice, which necessitates political capital.

This is where the issue arises. A social shift is required before a legal change may be
implemented. The death penalty is unlikely to be abolished in the foreseeable future, as
society continues to believe that taking someone's life is justified in some circumstances. To
affect this shift, the public must be educated on the intricacies of criminology and penology.

The average person evaluates the value of a policy according to how it affects him, and he
favours the death penalty because it makes him feel safer. To modify his mind, he needs to be
shown a greater picture, one that is more essential and has a broader scope, which can be
obtained by studying criminology and penology.

Bibliography

Books

1. Prof. N. V. Paranjape, Criminology & Penology (including Victimology), (Central

Law Publications, Allahabad, 2021)
2. David Dresser, Reading in Criminology and Penology, (Columbia University Press,
New York, 1972)
3. Ernest Van den Haag, Is Capital Punishment Just? (Ethics & Public Policy Center
Inc., United States, 1978)

Journals

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 4. K. Gaur, “International Perspectives on Death Penalty” 39 Journal of Constitutional
and Parliamentary Study 230 (2005)
5. S. Ayyathurai, “Should Death Penalty Go? 49 Criminal Law Journal 50 (2000)
6. Patrick Hudson, “Does the death row phenomenon violate a prisoner’s human rights
under international Law” 11 EJIL 833-856 (2000)

Case laws

7. Madhu Mehta v. Union of India, (1989) 4 SCC 62

8. Triveni Ben v. State of Gujrat, AIR 1989 SC 142
9. Attorney General of India v. Lachma Devi, AIR 1986 SC 467
10. Sher Singh v. State of Punjab, (1983) 2 SCC 344
11. Bachan Singh v. State of Punjab, AIR 1980 SC 898
12. Murli Manohar Mishra v. State of Karnataka, AIR 2008N SC 3040
13. State of M.P. v. Babu Barkare, 2005 5 SCC 413
14. Surja Ram v. State of Rajasthan, AIR 1997 SC 18
15. Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916
16. Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947

Websites

17. www.lexico.com
18. www.newindialaw.blogspot.com
19. www.legalserviceindia.com
20. www.britannica.com
21. www.indialegallive.com

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