LEGAL METHODS

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ANALYSIS OF THE DEATH PENALTY IN INDIA

SUBMITTED TO: Prof. Ashwini Kumar (Faculty, Legal Methods)

SUBMITTED BY: Adishree Krishnan (2022-5LLB-06)

Year I

Semester I

NALSAR UNIVERSITY OF LAW, HYDERABAD

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 TABLE OF CONTENTS
Introduction ................................................................................................................2
Shabnam Ali v. State of Uttar Pradesh- Case Summary and Context .......................4
Evolution of the Death Penalty as a Legal Punishment in India ...............................5
Death Penalty through the Lens of Positivism ..........................................................7
Death Penalty from the Perspective of Higher Law, Naturalism and Morality ........9
Conclusion ...............................................................................................................11

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INTRODUCTION

The resurgence of the case of Shabnam Ali v. State of Uttar Pradesh in recent headlines has
resulted in the controversial topic of the death penalty once again coming to the forefront. This
project includes, inter alia, a study of the death penalty as a concept- its naturalistic, positivistic
as well as moral facets and its evolution through various judgements over the years.

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SHABNAM ALI V. STATE OF UTTAR PRADESH- CASE SUMMARY AND CONTEXT

In 2008, Shabnam Ali, along with her partner Saleem, was convicted of killing 7 of her family
members. The gruesome familicide resulted in the Amroha Sessions Court granting her the death
sentence in 2010, which was upheld by the Supreme Court on 15th May, 2015 and further upheld
by the then Chief Justice of India, SA Bobde in 2020.1
In 2015, Shabnam’s mercy plea was rejected by the then UP Governor, followed by another
rejection in 2016 by then President, Pranab Mukherjee.
Today, Shabnam remains the first woman to be on death row in independent India, with her
execution date pending.2

1
2015 6 SCC 632
2
Yashee, Who is Shabnam, the first woman who could be hanged since 1947? INDIAN EXPRESS (Aug. 15, 2022,
23:28PM), https://indianexpress.com/article/explained/explained-the-case-of-amrohas-shabnam-the-first-
woman-likely-to-hanged-after-independence-7195194/

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EVOLUTION OF THE DEATH PENALTY AS A LEGAL PUNISHMENT IN INDIA

In India, the issue of capital punishment as a legal deterrent was not raised in the Assembly until
1931- when a Minister advocated the introduction of a bill to abolish the death sentence for all
crimes covered by the IPC. In 1946, the then Home Minister of India, Sir John Thorne, stated
that, “The Government does not think it wise to abolish capital punishment for any type of crime
for which punishment is now provided”.3

India’s modern legal system contains a considerable number of British colonial legislations, such
as the Code of Criminal Procedure (CrPC) and the Indian Penal Code (IPC)- both of which
contain clauses for the awarding of capital punishment. Post independence, India’s legal
standpoint on the death penalty was cohesively shaped by a number of judgements, of which I
shall be elaborating on two- Bachan Singh v. State of Punjab (1980), and Channulal Verma v.
State of Chhattisgarh (2018).

Bachan Singh v. State of Punjab (1980)4

It remains to be one of the most noteworthy cases regarding the death sentence in India. The case
established the standard of “rarest of the rare”, with the Supreme Court upholding the validity of
capital punishment, insofar as the procedure is “just, fair and reasonable” and backed by special
circumstances. It laid down a framework for what would constitute “rarest of the rare”-
adjudging the verdict of capital punishment in those situations where justice wouldn’t be served
otherwise. Thus, “the death sentence became the exception and not the rule as far as the
punishment for murder was concerned.” This was reaffirmed in Macchi Singh & Ors. v. State of
Punjab.5

Channulal Verma v. State of Chhattisgarh (2018)6

This case involved the commutation of Channulal Verma’s death penalty, which had earlier been
given on the grounds of “rarest of the rare case” in 2013. The verdict propounded by the

3
4
(1982) 3 SCC 24
5
(1983) 3 SCC 470
6
(2019) 12 SCC 438

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Supreme Court in 2018 widened the ambit of the death sentence debate in India. It brought into
the picture the idea of reformative and restorative justice, and held that positive changes on the
behaviour of a death row convict should carry weight when it comes to deciding “whether the
alternative option is unquestionably foreclosed”7.

7
Utkarsh Anand, Explained: In the Supreme Court, some questions of Life and Death, THE INDIAN EXPRESS (Aug. 15th,
2022, 23:43PM), https://indianexpress.com/article/explained/explained-in-the-supreme-court-some-questions-of-
life-and-death/

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DEATH PENALTY THROUGH THE LENS OF POSITIVISM

“Legal positivism, which is the leading doctrine professing the nature of the law, maintains that a
realistic understanding of law must respect a distinction between law as it in fact is (de lege lata)
and law as it would like to be or should be enacted in its ideal form (de lege ferenda).” 8
This definition provides for a two dimensional interpretation of the legal positivist school of
thought- on the one hand, it could help define morally correct ideals in society as it should be
practised in law, while on the other hand, holding an authoritative grip over society, obligating
judges to apply the law as it is.

Hans Kelsen was a legal positivist famous for his Basic Norm theory- which propounded that all
laws derive their authority from some higher legal norm, and the chain continues, ultimately
ending with a presupposed, legally valid document (e.g. the Constitution). This end point is
called Grundnorm. Drawing from the Kelsonian theory, one can say that the legality of the death
penalty derives its meaning as long as there is some higher norm that recognises it, which in turn
provides a caveat for lower norms to derive their implementation from its recognition. For
example, the Indian Constitution does not contain a categorical ban on the death penalty. It does,
however, guarantee to every person a fundamental Right to Life subject to its deprivation by the
procedure established by law (Article 21)9. Hence, from a positivist’s perspective, the existence
of the death penalty is a legally valid one as the Constitution provides the normative authority to
it by not considering the Right to Life as an absolute one.

The observations drawn above can similarly be extrapolated to the positivist theories postulated
by HLA Hart. Hart’s theory rested on the idea of a “rule of recognition”10. He believed that the
legal system consisted of two types of rules- primary and secondary. The primary rules laid
down the basic rights and obligations of a society, while the secondary rules provided for the
framework as to how they could be modified or recognised. Out of all the secondary rules, the
rule of recognition was of utmost primacy. It acts as a test of legal validity.

8
K.A.A.N. Thilakarathna, NATURALISTIC AND POSITIVISTIC DEBATES ON IMPLEMENTING THE CAPITAL
PUNISHMENT, 10 THE LEX- WARRIOR: ONLINE LAW JOURNAL, 26
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IND. Const. Art. XXI
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The perennial nature of the death penalty as a social deterrent across societies remains the
primary source, obligating them to uphold the morals and values of society at a given point in
time. Similarly, the secondary source remains the caveat provided by Article 21 of the Indian
Constitution, along with the IPC and CrPC, which allows for the formation, recognition and
modification of the practice of capital punishment through judicial precedents. Hence, the Hart
school of thought also legitimizes the legality of the death penalty in India.

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DEATH PENALTY FROM THE PERSPECTIVE OF HIGHER LAW, NATURALISM AND MORALITY

L.L Fuller, a prolific critic of legal positivism, developed a procedural school of natural law
theory which rejected the idea that natural law consisted of inherent, inborn principles derived
from an abstract or higher source like nature and God.

Fuller, in his book- The Morality of Law11, spoke of the concepts of internal and external
morality. He stated that, for any law to gain validity in the legal system and in the eyes of
society, it needs to achieve internal morality of law, which made sure that the laws remained
coherent, stable and comprehensible, among other things. These principles are intrinsic to all
legal systems and anything otherwise is ingenuine. Once internal morality has been achieved, the
society can then focus on achieving external morality- a metaphysical utopia.

Fuller believed that “even in the most perverted regimes there is a certain hesitancy about writing
cruelties, intolerances, and inhumanities into law”12. Some enacted laws, according to Fuller,
were too morally incongruent to be obeyed. Even so, he argued that their positive effects laid
down a defensible moral duty to obey them. He opposed the concept of the death penalty, which
to him, went against the basic morals of human society.

The irreversibility of the death penalty, its judge- centric nature and the requirement of
principled sentencing in cases regarding the same is an important aspect which can be inferred
from Fuller’s theses, which stated that “it is the judiciary which has been entrusted with the duty
to prevent any sort of discrepancy between the law as declared and the law as practiced”. In
order to prevent a miscarriage of justice, it is vital that cases of such nature be dealt with in a
punctilious manner. However, this is not always the case- the 262nd Report of the Law
Commission13 elaborated upon the capricious nature of the granting of death penalties in India,
encouraging reviewing of the prevailing systems.

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LON LUVOIS FULLER, THE MORALITY OF LAW
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Although Fuller himself opposed the death penalty, his theory does provide for an interpretation
supporting it. From a theoretical aspect, the argument could be made of maintaining capital
punishment as a deterrent to safeguard state laws and hence achieve a form of external morality
or state utopia by combating severe deviances of behaviour. However, practically, this too
remains dubious, with various studies reporting zero decrease in crime rates.

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CONCLUSION

The death penalty as a concept remains a complicated one, with varying schools of thought,
along with continuous legal evolution. India’s stance on the death penalty today, is slowly
moving to a more reformative idea of justice, by retaining it for heinous crimes like terrorism.
However, we face a number of legal challenges in this sphere, with the pandemic limiting the
functioning of courts, resulting in the highest number of death row prisoners at the end of 2021.

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