UNIVERSITY SCHOOL OF LAW AND RESEARCH

UNIVERSITY OF SCIENCE & TECHNOLOGY MEGHALAYA

Techno City, Khanapara, Kling Road, Baridua, 9th Mile, Ri-Bhoi, Meghalaya
__________________________________________________________________________________________

Title:
“A critical study on the death penalty in India with special reference to case laws”

Submitted for the partial fulfillment of 7th Semester B.A.LL.B(H) as per the USTM
Regulations for the Five Year Bachelor of Law Degree Programme in the Semester System
leading to the Award of B.A.LL.B(H) Degree.

Subject: Research Methodology

Under the Guidance of:

Dr. Baharul Islam
Associate Professor
USLR, USTM

Submitted to: Submitted by:

UNIVERSITY SCHOOL OF LAW & RESEARCH, Osinam Tayeng
UNIVERSITY OF SCIENCE & TECHNOLOGY Programme: B.A.LL.B(H)
MEGHALAYA (USTM) Semester: 7th
Roll No.: 2020/BLB/0036

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 TABLE OF CONTENT

Sl. No. Content Page No.

1 Certificate 3

2 Acknowledgement 4

3 List of Case Laws 5

4 Objective 5

5 Research Methodology 5

6 Significance 5

7 Scope 6

8 Research Problem 6

9 Research Question 6

10 Hypothesis 6

11 Abstract 7

12 Introduction 7

13 Content Analysis 8,9,10,11,

Provisions of death penalty in Indian law 12,13,14,

Case laws
Theories of punishment 15
Criticisms

14 Conclusion 16

15 References 17

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 CERTIFICATE

This is to certify that Osinam Tayeng of B.A.LL.B 7 th semester bearing Roll No.

2020/BLB/0036 has successfully completed the research on the project of Research

Methodology regarding the topic “A critical study on the death penalty in India with special

reference to case laws”, under the guidance of Associate Professor Dr. Baharul Islam of

USLR, USTM.

Date:

Signature

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 ACKNOWLEDGEMENT

I would like to express my gratitude to Dr. Baharul Islam sir, Associate Professor

and the Dean, University School of Law and Research, USTM, and Research Methodology

lecturer, who gave me the opportunity to do this project on the topic “A critical study on

the death penalty in India with special reference to case laws”.

I would also like to thank our classmates who helped me in finalizing this project

within the limited time frame.

Date: Osinam Tayeng

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 3. LIST OF CASE LAWS

1. Bachan Singh v. State of Punjab (1980)

2. Machhi Singh v. State of Punjab (1983)
3. Mithu v. State of Punjab (1983)
4. Rajendra Prasad v. State of Uttar Pradesh (1979)
5. Jagmohan Singh v. State of Uttar Pradesh (1973)

4. OBJECTIVE
The objective of this paper assignment is to critically analyse, discuss and highlight
the provisions of death penalty in Indian law with examples and case laws.

5. RESEARCH METHODOLOGY

The present study is descriptive and analytical in nature, so mainly library method is used.
The study is primarily based on secondary sources. The information that is collected to
prepare this topic of assignment is from various books, project works, articles, websites,
journals, etc.

6.SIGNIFICANCE

The death penalty is a highly contentious and controversial issue in India, with
strong arguments for and against its use. A study of the provisions of the death penalty in
Indian law, as well as relevant case laws and the broader legal and constitutional
framework, is crucial for understanding the legal, moral, and social implications of this
form of punishment.

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7. SCOPE

This study will focus on the provisions of the death penalty in Indian law, including
the relevant provisions of the Indian Penal Code and the Code of Criminal Procedure, as
well as key case laws. The study will also examine the broader legal and constitutional
framework governing the use of the death penalty in India, including the principles of
proportionality, fairness, and human rights.

8. RESEARCH PROBLEM

The use of the death penalty in India raises a range of complex legal, moral, and
social issues, including questions about the constitutionality of the punishment, its
effectiveness as a deterrent, its impact on human rights, and the risk of wrongful
convictions. This study seeks to address these issues and provide a comprehensive analysis
of the death penalty in Indian law.

9. RESEARCH QUESTIONS

1. What are the key provisions of the death penalty in Indian law, and how have these
provisions been interpreted and applied by the courts?
2. What are the key legal and constitutional issues raised by the use of the death
penalty in India, and how have these issues been addressed in relevant case laws
and academic literature?

10. HYPOTHESIS

The death penalty is a complex and controversial issue in India, with strong
arguments for and against its use. While the legal and constitutional framework governing
the death penalty in India provides some safeguards against arbitrary and discriminatory

6
application, there are concerns about the fairness and proportionality of the punishment,
as well as its compatibility with international human rights standards.

11. ABSTRACT

This study provides a comprehensive analysis of the provisions of the death penalty
in Indian law, as well as relevant case laws and the broader legal and constitutional
framework. The study examines the key legal, moral, and social issues raised by the use of
the death penalty in India, including questions about the constitutionality of the
punishment, its effectiveness as a deterrent, its impact on human rights, and the risk of
wrongful convictions. The study finds that while the legal and constitutional framework
governing the death penalty in India provides some safeguards against arbitrary and
discriminatory application, there are concerns about the fairness and proportionality of the
punishment, as well as its compatibility with international human rights standards. The
study concludes by offering recommendations for reforming the death penalty in India and
improving the overall fairness and justice of the criminal justice system.

12. INTRODUCTION

The death penalty is one of the most controversial and contested issues in Indian
law and society. While some argue that the death penalty is a necessary and just form of
punishment for the most heinous crimes, others contend that it is a violation of
fundamental human rights and that its use undermines the moral and legal foundations of a
democratic society. In recent years, there has been growing public and legal debate about
the use of the death penalty in India, with prominent cases and judgments highlighting the
complexities and challenges of this issue. This study aims to provide a comprehensive
analysis of the provisions of the death penalty in Indian law, as well as relevant case laws
and the broader legal and constitutional framework. The study will explore the key legal,
moral, and social issues raised by the use of the death penalty in India, including questions
about the constitutionality of the punishment, its effectiveness as a deterrent, its impact on
human rights, and the risk of wrongful convictions. The study will also examine the
historical, political, and cultural factors that have shaped the debate about the death

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penalty in India. To achieve these objectives, the study will draw on a range of primary and
secondary sources, including relevant provisions of the Indian Penal Code and the Code of
Criminal Procedure, key case laws and judgments from the Indian Supreme Court and High
Courts, academic literature, and reports from human rights organizations and other
stakeholders. The study will use a critical and interdisciplinary approach, drawing on
insights from law, philosophy, sociology, and other disciplines to provide a nuanced and
comprehensive analysis of the death penalty in India.

13. CONTENT ANALYSIS

"The Constitution of India is the supreme law of the land and provides the
framework for the use of the death penalty in the country. Article 21 of the Constitution
guarantees the right to life and personal liberty, subject to certain restrictions imposed by
law. However, Article 19(2) allows the state to impose reasonable restrictions on the
exercise of the right to free speech and expression in the interest of public order, decency,
or morality. Similarly, Article 21 provides that a person can be deprived of his life or
personal liberty only in accordance with the procedure established by law. Thus, the
Constitution recognizes the use of the death penalty as a legitimate punishment for certain
crimes, subject to the procedural safeguards provided by law."1
The death penalty is a legal punishment in India that is awarded to people convicted
of certain heinous crimes. It is an extremely contentious issue, with supporters and
opponents holding strong views. This paper will provide an overview of the provisions of
the death penalty in Indian law, as well as examine some of the key case laws related to the
topic. In India, the death penalty is awarded for a range of offences, including murder,
terrorism, treason, and drug trafficking. The Indian Penal Code, 1860 2, contains provisions
for the death penalty in several sections, including Sections 121 (Waging, or attempting to
wage war, or abetting waging of war, against the Government of India), 132 (Abetment of
mutiny, if mutiny is committed), 302 (Punishment for murder), and 376A (Punishment for
causing death or resulting in persistent vegetative state of victim of rape). The Criminal
Procedure Code, 19733, outlines the procedure for awarding the death penalty. After a
1
M.P. Jain, Indian Constitutional Law, 7th ed. (2018)
2
Indian Penal Code by K.D.Gaur
3
R.V.Kelkar’s Lectures in Criminal Prodecure

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person has been convicted of a crime that carries the death penalty, the judge must hold a
separate hearing to determine whether the sentence should be awarded. At this hearing,
the judge considers factors such as the nature of the crime, the background of the offender,
and any mitigating circumstances. If the judge decides to award the death penalty, the case
is automatically referred to the High Court for confirmation. Once the High Court confirms
the sentence, the offender can appeal to the Supreme Court of India.
There have been several notable cases related to the death penalty in India. One of
the most well-known is the case of Yakub Memon, who was convicted of helping to plan the
1993 Mumbai bombings. Memon was sentenced to death, but his case went to the Supreme
Court of India, which upheld the sentence. Memon was executed in 2015. Another
important case was the 2012 Delhi gang rape and murder case. Four of the six accused
were sentenced to death, and their case was confirmed by the Delhi High Court. However,
the Supreme Court later commuted the sentences of two of the accused to life
imprisonment.
The death penalty is a contentious issue in India, with proponents arguing that it
serves as a deterrent and is necessary for certain heinous crimes, and opponents arguing
that it is inhumane, can be wrongly awarded, and does not serve as an effective deterrent.
There are several factors to consider when analyzing the death penalty in India. There are
concerns about the fairness of the Indian justice system. The legal system in India is often
criticized for being slow, overburdened, and prone to errors. There have been cases where
people have been wrongly convicted and sentenced to death, only to be acquitted years
later. For example, in 2014, a man named Devender Pal Singh Bhullar was acquitted of his
involvement in a 1993 bombing in Delhi after spending 18 years on death row. There are
also concerns about the arbitrary application of the death penalty. The death penalty is
often awarded based on the discretion of the judge, and there have been cases where
people convicted of similar crimes have received vastly different sentences. For example, in
the 2012 Delhi gang rape and murder case, two of the accused were sentenced to life
imprisonment, while four were sentenced to death. Also, there is a lack of evidence to
support the claim that the death penalty serves as a deterrent. While proponents argue that
the death penalty is necessary to deter people from committing heinous crimes, there is
little evidence to support this claim.

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 As per a journal published by Harvard International Law Journal, "The use of the
death penalty in India raises serious concerns about its fairness, effectiveness, and
humaneness. The death penalty is prone to errors, bias, and arbitrariness, and there is little
evidence to support its deterrent effect. Moreover, the use of the death penalty perpetuates
a culture of violence and retribution, rather than promoting justice and reconciliation.
Given these concerns, it is time for India to reconsider the use of the death penalty and
adopt alternative forms of punishment that are more humane, effective, and just." 4

Provisions of death penalty in Indian law:

The death penalty, also known as capital punishment, is a legal punishment in India.
The provisions related to the death penalty are primarily governed by the Indian Penal
Code (IPC) and the Code of Criminal Procedure (CrPC).
The Indian Penal Code lists several offences for which the death penalty can be
imposed, including murder, treason, waging war against the Government of India, abetting
mutiny, and certain offences related to terrorism. The punishment for murder is listed
under Section 302 of the IPC, which provides that whoever commits murder shall be
punished with death, imprisonment for life, or imprisonment for a term of not less than ten
years. The specific punishment to be awarded in each case depends on the facts and
circumstances of the case. The Code of Criminal Procedure provides the procedure for
imposing the death penalty. When a person is convicted of an offence punishable by death,
the Court is required to hear the convicted person and the prosecution on the question of
sentence, and then give reasons for awarding the death penalty. The sentence of death can
only be executed after it has been confirmed by the High Court.
The imposition and execution of the death penalty are subject to certain procedural
safeguards and requirements to ensure that the punishment is not imposed arbitrarily,
discriminatorily, or in violation of fundamental rights. For example, the Supreme Court has
held that the death penalty can only be imposed in "the rarest of rare cases" where the
alternative sentence of life imprisonment would be inadequate. The Court has also laid
down several guidelines to be followed by judges in determining whether a particular case
qualifies as "rarest of rare." Additionally, the death penalty cannot be imposed on certain

4
"The Death Penalty in India: A Cruel and Inhuman Punishment?" by Smita Narula, Harvard International Law
Journal

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categories of persons, such as pregnant women, juveniles, and mentally ill persons. The
Supreme Court has also held that the mandatory imposition of the death penalty for certain
offences are unconstitutional, and that each case must be decided on its own merits.
It is worth noting that there is a growing trend towards abolition of the death
penalty in many countries around the world, with over 100 countries having abolished the
death penalty in law or practice. In India, there is ongoing debate and discussion about the
use of the death penalty and whether it is an effective, fair, and humane form of
punishment.
A journal in Indian Journal of Human Rights concludes that, "the death penalty is a
complex and controversial issue that requires careful consideration of its legal,
constitutional, and human rights implications. While the Indian Constitution permits the
use of the death penalty, it must be applied in a manner that is consistent with the
principles of natural justice, due process, and human dignity. Moreover, the use of the
death penalty must be guided by the principle of proportionality, which requires that the
punishment be commensurate with the gravity of the offence. The Indian legal system must
also ensure that the death penalty is not awarded arbitrarily, discriminatorily, or
disproportionately, and that all safeguards and procedural requirements are strictly
adhered to."5
The death penalty continues to be a contentious issue in India, with strong
arguments both for and against its use. While proponents argue that the death penalty is
necessary to deter heinous crimes and protect society from dangerous criminals,
opponents argue that it is an inhumane and irreversible punishment that is prone to errors,
bias, and arbitrariness. Moreover, the use of the death penalty raises serious questions
about its effectiveness, fairness, and humaneness, and there is a growing trend towards
abolition of the death penalty in many countries around the world. In light of these trends
and challenges, it is time for India to reconsider the use of the death penalty and explore
alternative forms of punishment that are more humane, effective, and just. 6
"Reports by human rights organizations such as Amnesty International and Human
Rights Watch provide information on the use of the death penalty in India, as well as the

5
“The Death Penalty in India: Constitutional and Human Rights Perspectives," by Jayant Kumar and Sumit Kumar
Singh, Indian Journal of Human Rights
6
"The Death Penalty in India: Emerging Trends and Challenges," by Sudhir Kumar Singh and Yogesh Kumar, Journal
of Indian Law and Society

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various issues and challenges associated with its use. These reports often highlight the
flaws in the legal system and the human rights violations that occur in the application of
the death penalty. For example, a recent report by Amnesty International found that India
had executed more people in 2019 than any other year since 2000, and that many of those
sentenced to death had not received a fair trial or adequate legal representation." 7

Case laws
1. Bachan Singh v. State of Punjab (1980)8: In this landmark case, the Indian Supreme
Court upheld the constitutionality of the death penalty but held that it should only
be imposed in "the rarest of rare cases" where the alternative sentence of life
imprisonment would be inadequate. The Court laid down a set of guidelines to be
followed by judges in determining whether a particular case qualifies as "rarest of
rare."

2. Machhi Singh v. State of Punjab (1983)9: In this case, the Indian Supreme Court
further elaborated on the "rarest of rare" doctrine and held that the death penalty
should be reserved for cases where the crime is heinous, the accused is a repeat
offender, and there is no possibility of reform or rehabilitation.
3. Mithu v. State of Punjab (1983)10: In this case, the Indian Supreme Court struck
down a provision of the Indian Penal Code that mandated the death penalty for
certain categories of murder, holding that it violated the right to equality under the
Constitution.
4. Rajendra Prasad v. State of Uttar Pradesh (1979) 11: In this case, the Indian Supreme
Court commuted the death sentence of a man who had been convicted of murder on
the ground that he was suffering from mental illness and was not capable of
understanding the nature and consequences of his actions.
5. Jagmohan Singh v. State of Uttar Pradesh (1973) 12: In this case, the Indian Supreme
Court struck down a provision of the Criminal Procedure Code that required a

7
Amnesty International, "Death Sentences and Executions in 2019" (2020)
8
AIR 1980 SC 898, (1980) 2 SCC 684
9
AIR 1983 SC 957, (1983) 3 SCC 470
10
AIR 1983 SC 473, (1983) 2 SCC 277
11
AIR 1979 SC 916, (1979) 3 SCC 646
12
AIR 1973 SC 947, (1973) 1 SCC 20

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 mandatory death sentence for certain categories of murder, holding that it violated
the right to life and liberty under the Constitution.

Theories of punishments
Punishment is a fundamental aspect of criminal law, and it is intended to serve
several purposes, including deterrence, retribution, and rehabilitation. In India, the
theories of punishment are reflected in the criminal laws of the country, which are based
on a combination of Indian common law and British colonial law. In the case of the death
penalty, it is seen as the ultimate form of retribution, reflecting the seriousness of the crime
committed. This theory is often contrasted with theories of punishment based on
rehabilitation, deterrence, and restorative justice. The following are the theories of
punishment in Indian criminal law:
1. Deterrence: Deterrence theory is based on the belief that punishment serves as a
deterrent to prevent people from committing crimes. This theory is based on the
assumption that the fear of punishment will deter people from committing crimes.
In Indian criminal law, deterrence is an important principle, and it is reflected in the
severity of punishment for certain offenses. For instance, the punishment for
murder is the death penalty or life imprisonment, which is intended to deter people
from committing such a heinous crime.
2. Retribution: Retribution theory is based on the belief that punishment should be
proportional to the harm caused by the crime. In Indian criminal law, retribution is
reflected in the principle of proportionality, which requires that punishment should
be proportionate to the gravity of the offense committed. For instance, the
punishment for theft is imprisonment for up to three years, while the punishment
for robbery is imprisonment for up to ten years. The severity of the punishment is
intended to reflect the seriousness of the offense committed. Death penalty also falls
under the theory of punishment known as "retribution."
3. Rehabilitation: Rehabilitation theory is based on the belief that punishment should
be used to reform offenders and help them become productive members of society.
In Indian criminal law, rehabilitation is reflected in the principle of reform, which
requires that punishment should be designed to reform offenders. For instance, the
Indian Penal Code provides for the release of prisoners on parole or furlough, which

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 is intended to help them integrate back into society and become productive
members.
4. Restitution: Restitution theory is based on the belief that punishment should require
the offender to make amends for the harm caused by the crime. In Indian criminal
law, restitution is reflected in the principle of compensation, which requires
offenders to compensate the victim for the harm caused by the crime. For instance,
if an offender is convicted of causing injury to a person, the court may order the
offender to pay compensation to the victim for the medical expenses incurred.
To summarise, the theories of punishment in Indian criminal law are intended to serve
several purposes, including deterrence, retribution, rehabilitation, and restitution. The
principles of deterrence, proportionality, reform, and compensation are reflected in the
criminal laws of the country, which are designed to punish offenders and protect society
while upholding the principles of justice and fairness.

Criticisms
The death penalty has been a contentious issue in India, with advocates of the
punishment arguing that it is necessary for deterring serious crimes and protecting society,
while opponents argue that it is a cruel and inhumane form of punishment that violates
human rights. This critical analysis will examine the use of the death penalty in India,
drawing on reports and data published by government and non-government organizations.
According to the National Crime Records Bureau (NCRB), there were a total of 162
death sentences awarded in India in 2019. Of these, 65 were confirmed by the High Courts,
and 11 by the Supreme Court. In addition, the NCRB reported that there were a total of
4,583 prisoners on death row as of December 2019 13. The data also indicates that the
majority of those sentenced to death in India are poor and marginalized, with a
disproportionate number being from socially and economically disadvantaged
communities.
The use of the death penalty in India has also been criticized for its arbitrary and
discriminatory application. Human rights organizations such as Amnesty International
have highlighted that the death penalty is often used disproportionately against
marginalized groups, such as Dalits and Adivasis, as well as those who are unable to afford
13

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legal representation. The report "Lethal Lottery: The Death Penalty in India" by Amnesty
International India provides a comprehensive analysis of the flaws in the Indian criminal
justice system that contribute to the arbitrary and discriminatory application of the death
penalty. The report notes that there are significant problems with the quality of legal
representation in capital cases, with many defendants unable to afford competent lawyers.
In addition, the report highlights concerns about police practices, including the use of
torture to extract confessions and the fabrication of evidence. These factors, coupled with a
lack of transparency in the application of the death penalty, have led to serious concerns
about the fairness and impartiality of the criminal justice system in India. 14
The death penalty has also been criticized for its failure to deter crime. Research by
the National Law University, Delhi found that there is no empirical evidence to suggest that
the death penalty has a greater deterrent effect than other forms of punishment. In
addition, the report notes that there are significant flaws in the investigation and
prosecution of capital cases, which undermine the effectiveness of the death penalty as a
deterrent.15
The use of the death penalty in India remains a contentious issue, with concerns
about its fairness, impartiality, and effectiveness as a deterrent. The arbitrary and
discriminatory application of the death penalty, coupled with flaws in the criminal justice
system, raise serious human rights concerns. The need for a critical examination of the
death penalty in India, with a view to identifying ways to address these concerns, is clear.

14. CONCLUSION

In conclusion, the death penalty remains a contentious issue in India, with various
perspectives and opinions on its effectiveness, morality, and constitutionality. While the

14
"Lethal Lottery: The Death Penalty in India" published by Amnesty International India
https://www.amnesty.org.in/show/news/lethal-lottery-the-death-penalty-in-india/
15
"The Death Penalty in India: Annual Statistics 2018" published by the National Law University, Delhi,
http://www.deathpenaltyindia.com/files/Report%20of%20the%20Death%20Penalty%20India%202018.pdf

15
Indian legal system provides for the use of the death penalty in certain cases, there are
significant flaws in the application of this punishment, including arbitrary and
discriminatory application, inadequate legal representation, and a lack of transparency in
the clemency process.
Moreover, there is no clear evidence to suggest that the death penalty has a greater
deterrent effect than other forms of punishment. The National Law University, Delhi report
highlights the flaws in the investigation and prosecution of capital cases, which undermine
the effectiveness of the death penalty as a deterrent. Additionally, the majority of those
sentenced to death in India are poor and marginalized, with a disproportionate number
being from socially and economically disadvantaged communities.
In light of these issues, it is imperative that the Indian government and legal system
take steps to address the flaws and shortcomings in the application of the death penalty.
This could include improving the investigation and prosecution of capital cases, ensuring
fair trials and adequate legal representation for defendants, and ensuring greater
transparency and accountability in the clemency process. A comprehensive and informed
debate on the death penalty in India is necessary, which takes into account the legal, moral,
and social dimensions of this punishment. Such a debate should be guided by empirical
evidence, critical analysis, and respect for human rights and dignity.

16. REFERENCES
Indian Constitutional Law by M.P.Jain
1. Indian Penal Code by K.D.Gaur
2. R.V.Kelkar’s Lectures in Criminal Prodecure

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3. "The Death Penalty in India: A Cruel and Inhuman Punishment?" by Smita Narula,
Harvard International Law Journal
4. “The Death Penalty in India: Constitutional and Human Rights Perspectives," by
Jayant Kumar and Sumit Kumar Singh, Indian Journal of Human Rights
5. "The Death Penalty in India: Emerging Trends and Challenges," by Sudhir Kumar
Singh and Yogesh Kumar, Journal of Indian Law and Society
6. Amnesty International, "Death Sentences and Executions in 2019" (2020)
7. AIR 1980 SC 898, (1980) 2 SCC 684
8. AIR 1983 SC 957, (1983) 3 SCC 470
9. AIR 1983 SC 473, (1983) 2 SCC 277
10. AIR 1979 SC 916, (1979) 3 SCC 646
11. AIR 1973 SC 947, (1973) 1 SCC 20
12. "Prison Statistics India 2019," http://ncrb.gov.in/en/prison-statistics-india-2019
13. "Lethal Lottery: The Death Penalty in India" published by Amnesty International
India https://www.amnesty.org.in/show/news/lethal-lottery-the-death-penalty-in-
india/
14. "The Death Penalty in India: Annual Statistics 2018" published by the National Law
University, Delhi, http://www.deathpenaltyindia.com/files/Report%20of%20the
%20Death%20Penalty%20India%202018.pdf

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