www.ijlsi.

com ©2019 IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453

Death Penalty in India: An Overall View

S.R Muralivasan1 S T. Manasaa2

I. ABSTRACT
Human life place a great role in the society because of its importance where it paves a way to lot of emotions
and attachments in cycle of nature. That could be a reason why human life is important in this eternal world
which makes different from other living creatures in the world. Death penalty can be simply referred in simple
sense, where it where the life of a person is taken by the State by following the due procedure of law for the
grave offence, which the person has committed. But this death penalty is not new to this contemporary world,
where it got its existence from ancient time, which stands to be immortal. It was practiced in all centuries of
human life society. This 21st century has made something special , where it openly confesses that time has
come for abolishment of death penalty, by making up satisfactory opinions and arguments and posing certain
conditions on which death penalty should be imposed. This has become a debatable issue, where some of the
developing countries has made concerned to this issue and has abolished death penalty. India is a well – known
developing country, it didn‟t sort out any conclusion in abolishment of this capital punishment, but it has given
in rarest of rare cases as far as cases are concerned. Though there are many enactments and punishments
prescribed in law, concept of death penalty plays a vital role in criminal justice system. Imposing death penalty
has led to many issues in current society. Hence, this paper highlights and stretches out the overall view in
death penalty as far as India is concerned.

II. INTRODUCTION
Criminals do not die by the hands of the law. They die by the hands of other men.”

- Gerorge Bernard Shaw

Human life place a great role in the society because of its importance where it paves a way to lot of emotions
and attachments in cycle of nature. That could be a reason why human life is important in this eternal world
which makes different from other living creatures in the world. Death penalty can be simply referred in simple
sense, where it where the life of a person is taken by the State by following the due procedure of law for
the grave offence, which the person has committed. But this death penalty is not new to this contemporary
world, where it got its existence from ancient time, which stands to be immortal. It was practiced in all

1
Author is a student of School of Excellence in Law, Dr. Ambedkar Law University, Chennai, India
2
Author is a student of School of Excellence in Law, Dr. Ambedkar Law University, Chennai, India
International Journal of Legal Science and Innovation Page 1
www.ijlsi.com ©2019 IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453
st
centuries of human life society. This 21 century has made something special , where it openly confesses that
time has come for abolishment of death penalty, by making up satisfactory opinions and arguments and posing
certain conditions on which death penalty should be imposed. This has become a debatable issue, where some
of the developing countries has made concerned to this issue and has abolished death penalty. India is a well –
known developing country, it didn’t sort out any conclusion in abolishment of this capital punishment, but it
has given in rarest of rare cases as far as cases are concerned. Though there are many enactments and
punishments prescribed in law, concept of death penalty plays a vital role in criminal justice system. Imposing
death penalty has led to many issues in current society. Hence, this paper highlights and stretches out the
contemporary issues in death penalty as far as India is concerned.

III. DEATH PENALTY

Death penalty, otherwise known as capital punishment which also paves a way to certain doubtable questions,
where it enables us to think whether this capital punishment eliminates the criminals and crime from the
society? Whether it could an imaginable thing, in this society? Having deep concern on human nature, it is
unimaginable. It can be done only when the criminals rehabilitate themselves, change their attitude for a better
future. There has been a global trend towards the abolition of capital punishment; however, India has not
adopted this position. This form of punishment different from the others, because of the obvious element of
irreversibility attached to it. A man once executed for a crime can never be brought back to life. So if any error
has crept in while deciding on a matter, this error cannot be rectified at a later stage. As it is mentioned earlier,
death penalty has its existence since antiquity, where it got started back as early as 1750 B.C, moreover it has
been enumerated and its presence is notable in all ancient scriptures such as code of Hammurabi, Bible and
more on.. Even great scholars, like Plato, John Locke, Thomas Hobbes who spoke about the social contract
theory, supported and favored this type of punishment for grave offences. Where this was case being followed,
then this concept of punishment took a dimensional change in the society, whereby it lead to the abolishment of
this death penalty or capital punishment, where it became a debatable issue by Of one of the great
criminologist named Cessare Beccaria, who convinced many people that death penalty should be
abolished because it is inhuman, useless and technically speaking, a public assassination. In the year 1846,
Michigan became the first State to abolish the capital punishment, followed by Portugal and Venezuela in 1867.
Abolition of the death penalty was also supported by the United Nations during the drafting of Universal
Declaration of Human Rights in the year 1948.

IV. INTERNATIONAL SCENARIO AND ITS POSITION

Death penalty considered as a global issue, also has its importance in international scenario and in many
legislations of various countries all over the world, many arguments were held up in supporting the nature.
International Journal of Legal Science and Innovation Page 2
www.ijlsi.com ©2019 IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453
1 The United Nations (UN): The united Nations usually play a great role in protecting the human rights in that
way , they recognised that there is a need for high standard of fair trial to be followed by every country, and
Procedures to be followed must be just, fair and reasonable. Moreover, importance of human rights in criminal
justice system has been declared in many international conventions. Some are mentioned below:

 Article 5 of the Universal Declaration of Human Rights 1948 provides that no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.

 Article 7 of the International Covenant on Civil and Political Rights (ICCPR) 1966 provides that no
one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

 Later, the United Nations in regard to protection of human rights, instigated some suggestions when
death penalty should be applied or it should be removed. Some suggestions are as follows

 Countries which have not yet abolished capital punishment may impose it only for the most
serious crimes.

 Capital punishment may be imposed only in case of serious offences according to established law
for the time being in force. There must not be any retrospective effect of the punishment.

 Young persons at the time of commission of crime, whose age was below16 years, should not be
awarded death penalty.

 Death penalty must not be imposed upon pregnant women or on new mothers or insane persons.

 Any person sentenced to capital punishment shall have right to appeal to the higher court and
steps should be taken to ensure him right to appeal.

V. POSITION AND CONSTITUTIONAL VALIDLITY OF DEATH PENALTY IN

INDIAN SCENARIO
Capital punishment has gone through many dimensional changes , which involved in many forms of punishment
from immemorial period. Capital punishment in Indian scenario started from Indian penal code, where The Indian
Penal Code, 1860 (IPC) is the Public Law and substantive Criminal Law which defines crimes and prescribes
punishments. Section 53 of the IPC provides for death sentence and imprisonment for life as alternative
punishment. In present secenario, capital punishment is recognized as a legal death penalty in India. Capital
punishment has been declared to serious offences. Indian judiciary declares this, by giving importance to its
constitution, where Article 21 of the Indian constitution is “protection of life and personal liberty”. This article
says “No person shall be deprived of his life or personal liberty except as according to procedure established by
law”. This article says right to life is promised to every citizens in India. In India IPC provides death sentence as a

International Journal of Legal Science and Innovation Page 3

www.ijlsi.com ©2019 IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453
punishment for various offences such as criminal conspiracy, murder, waging war against the government,
abetment of mutiny , dacoity with murder, and anti -terrorism. The Indian Constitution has provision for mercy of
capital punishment by the President. Whenever, question of death penalty or capital punishment arises , this article
comes into play , where it instigates the judiciary members to analyse the case again, and make them to think
before granting a death sentence or punishment. Further Art. 14 of Constitution declares "equality before law and
equal protection of the laws", which means that no person shall be discriminated against unless the
discrimination is required to achieve equality. The concept of equality incorporated in Art. 14 finds echo in the
preamble to the constitution. Capital sentence, it seems, is therefore, an anti-thesis of one's right to life. It is an
inseparable fact that there is nothing in the Constitution of India which expressly holds capital punishment as
unconstitutional, though there are provisions that suggest that the constitutional scheme accepts the possibility of
capital punishment. However, there are several provisions in the constitution such as the preamble, the
Fundamental Rights and Directive Principles which can be relied upon for challenging the constitutionality of
capital punishment. It is clear that only a limited category of serious offenders visited with capital punishment. That
means a person's life is liable to be extinguished any time after he has extinguished the life of another or committed
some other serious offence. The crux of the whole issue is that each one of us has an inherent right to life and none
of us can divert any one of this precious right, and, if he does so, it has to be at the cost of his own life. There are
numerous legal practioners, scholars who argue that the very fact that the death penalty is retained in Indian
criminal statutes runs counter to one's right to life. It is submitted that these learned jurists probably over look the
fact that even right to life is not an absolute right. Constitutional validity of the capital punishment as provided in
the Indian Penal Code has been challenged in many cases and so far as the Supreme Court has always upheld that
the capital punishment provided in the Indian Penal Code is constitutionally valid. They were many arguments in
favour and against of capital punishment, moreover, Constitutionality of capital punishment may be considered in
respect of two aspects of the matter. Firstly, the question is whether the capital punishment as such is
unconstitutional and cannot be awarded in any case whatsoever. In other words, the problem is whether capital
punishment cannot be awarded for any offence and by following any procedure at all. Secondly, the question is that
even though the capital punishment as such may not be unconstitutional, whether capital punishment as provided in
various sections of the Indian Penal Code is unconstitutional because the provisions of the Indian Penal Code
forwarding capital punishment, is violative of certain provisions of the constitution. These two aspects of the matter
may have to be considered separately so as to have a clear vision on the subject at issue.

(i) Constitutionality of capital punishment as such.

(ii) Constitutionality of the provisions of I.P.C. providing for capital punishment.

International Journal of Legal Science and Innovation Page 4

www.ijlsi.com ©2019 IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453
VI. DISSCUSSION OF LAND MARK CASES DEALING WITH DEATH PENALTY
IN INDIA
Testing the constitutional validity of death sentence or capital punishment made an important criterion to think in
criminal justice system. Most of the landmark cases in India, involve in issues in granting death penalty as well as
testing the validity of death sentence. Moreover, the concept of RAREST OF RARE CASE came into force, in
discussing about the issue.

In the case of Jagmohan Singh v. State of U.P which was the first case dealing with the question of constitutional
validity of capital punishment in India. The counsel for the appellant, in this case, put forward three arguments
which invalidate section 302 of the IPC and judicial approach was carried on and where the council for the
appellant put forth the argument that capital punishment takes away all the rights guaranteed under Article 19 (1)
of the Constitution. The second argument which was given that the discretion of which capital punishment
was awarded did not follow any fixed standard or policy. Thirdly it was argued that this unguided and
unfettered discretion violated Article 14 of the constitution, which guarantees equality before the law. It was
stated that in many cases, the situation arose that where two individuals had committed a murder, one was awarded
the capital punishment, and other was awarded life imprisonment. . It was also contended that death penalty
violates not only article 14 but also articles 19 and 21 of the Constitution. Here procedure is not clear because
after the accused is found guilty, there is no other procedure established by law to determine whether death
sentence or other less punishment is appropriate in that particular case.

But this contention was rejected by the Supreme Court and the Court held “in important cases like murder the
court always gives a chance to the accused to address the court on the question of death penalty”. The Court also
held “deprivation of life is constitutionally permissible provided it is done according to procedure established by
Law. The death sentence per se is not unreasonable or not against public interest. The policy of the Law in
giving a very wide discretion in the matter of punishment to the Judges has its origin in the impossibility of
laying down standards. Any attempt to lay down standards as to why in one case there should be more punishment
and in the other less punishment would be an impossible task. What is true with regard to punishment imposed for
other offences of the Code is equally true in the case of murder punishable under section 302 I.P.C. No formula is
possible that would provide a reasonable criterion for infinite variety of circumstances that may affect the gravity
of the crime of murder. The impossibility of laying down standards is at the very core of the criminal law as
„administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of
punishment”.

But there was a contrast change in case of RAJENDRA PRASAD VS STATE OF U.P Krishna Iyer, J., observed
that “………………….the humanistic imperative of the Indian Constitution, as paramount to the punitive strategy of
International Journal of Legal Science and Innovation Page 5
www.ijlsi.com ©2019 IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453
the Penal Code, has hardly been explored by the courts in this field of „life or death‟ at the hands of the Law. The
main focus of our Judgement is on this poignant gap in human rights Jurisprudence within the limits of the
Penal Code, impregnated by the Constitution…..in the Post-Constitutional period section 302, IPC and section
354(3) of the Code of Criminal Procedure have to be read in the human rights of Parts III and IV, further
illuminated by the Preamble to the Constitution.” And moreover he held that capital punishment would not be
justified unless it was shown that the criminal was dangerous to the society. further held that giving discretion to
the judge to make choice between death sentence and life imprisonment on "special reasons" under section 354(3),
Cr.P.C., would be violative of Art. 14 which condemns arbitrariness. He pleaded for the abolition of death sentence
and retention of it only for punishing "white collar offences".It is submitted that the minority judgment is correct
because after the amendment in the I.P.C. and the decision in Jag Mohan Singh's case the death penalty is only an
exception and the life, imprisonment is the rule. The discretion to make choice between the two punishments is left
to the judges and not to the executive.

VII. LAW COMMISSION REPORT

Discussing about the landmark decisions of death penalty in India, law commission report plays a vital role and
remains as an inseparable component , where it discussion is based on validity of capital punishment which also
relied upon by the judges in the case of Jagmohan too. The Law Commission of India, after making an
intensive and extensive study of the subject of death penalty in India, having a deep research on particular area
it published and submitted its 36th Report in 1967 to the Government. The issue of granting death penalty or
capital punishment is based on balance of various arguments, arguments must be in fair, reasonable manner and
should bring weightage to the argument. It is difficult to rule out the validity of the strength behind many of the
arguments in all situations , and varies from different cases. The need for a modern approach, the severity of
capital punishment and the strong feeling shown by certain sections of public opinion in stressing deeper
questions of human values.

Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to
the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its
population and to the paramount need for maintaining law and order in the country at the present juncture, India
cannot risk the experiment of abolition of capital punishment.

Next most important judgment and landmark case Ediga Anamma v. State of Andhra Pradesh V.R. Krishna Iyer
and R.S. Sarkaria, JJ: substituted capital punishment by imprisonment for life not only for twelve years delay of
hanging but also on personal grounds such as youth, imbalance, sex and expulsion from her conjugal relation.

International Journal of Legal Science and Innovation Page 6

www.ijlsi.com ©2019 IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453
VIII. CONCEPT OF RAREST OF RARE
The concept of rarest of rare cases came into existence in the case of Bachan Singh v State of Punjab , one of
the most important case, which brings out the question of the validity of capital punishment. This was the case
that gave birth to the “rarest of the rare cases” doctrine and still where it resulted in debate on the question of
the compatibility of the death sentence with Art. 21 of the Constitution. The Supreme Court while holding the
validity of the death penalty expressed the opinion that a real and abiding concern for the dignity of human life
postulates resistance for taking a life through law's instrumentality. That ought not to be done save in the rarest
of rare cases, when the alternative option is unquestionably foreclosed. There was always a question in mind of
judicial judges at what circumstances , death penalty can be given , offences which come under death penalty,
the nature of crime and offence, how far it makes reliable over the punishment?, justice for the victim. It was
also laid down that for ascertaining the existence or absence of “special reasons” in a case, the Court must pay
due regard to both the criminal and the crime equally. The aggravating or mitigating factors need to be looked
into. Things like age, mental condition, age of the accused and if the act was done under the command of a
superior must be taken into consideration while deciding the punishment.

Justice Bhagwati alone dissented in this case but the issue was that his judgment came only 2 whole years after
the verdict had been declared. So, some of the essential arguments that he made against the death penalty never
came to the limelight. And this very principle he believed clearly violates Article 14 which guarantees equality
before the law. Also, it violates Article 19 and 21 as there are no procedural as to when the state has the
power to take away the life and personal liberties of a person in such cases. Justice Bhagwati not only talks
about the brutality and indiscretion that accompanies death penalty but also with logic and statistical data shows
us how capital punishment doesn’t succeed in attaining any of the three penological goals

Mithu v. State of Punjab was another case where the mandatory death sentence under Section 303 was
declared unconstitutional and hence invalid. The section was based on the logic that any criminal who has been
convicted for life and still can kill someone is too cold-blooded and beyond reformation, to be allowed to live.
The judges in Mithu’s case held that Section 303 violated the Articles 14 and 21 of our Constitution and so it
was deleted from the IPC.

Also in case of T.V Vatheeswaram v. State of Tamil Nadu and Sher Singh v. State of Punjab. the Supreme
Court was faced with the question of delay in execution of the death sentence and whether a prolonged delay
was reason enough to commute the death sentence to life imprisonment. While the first case laid down that
such a situation gave reason enough for the convict to invoke section 21 and get the lesser punishment, the
majority in the latter case differed on this point.

International Journal of Legal Science and Innovation Page 7

www.ijlsi.com ©2019 IJLSI| Volume 1, Issue 2 | ISSN: 2581-9453
In the case of Macchi Singh v. State of Punjab , where four men were awarded death sentence by the sessions
court and the High Court for shooting down seventeen persons including men, women and children within their
homes at night, in five incidents. The motive was a family feud. The Supreme Court upheld the death sentence
of the three of the four persons. Justice Thakkar, speaking for the court, was impelled to attempt a definition of
the 'rarest of rare'case, determining sentence in order to further elucidates the “rarest of the rare rule”, situations
where the application of death sentence could be justified Justice M.P Thakkar gave some points:

 Manner of Commission of Murder

 Motive for the commission of murder

 Nature of crime

 Magnitude of crime

 The personality victim of the murder

IX. CONCLUSION
Every individual must have a note in their mind that “No one has right to take away one‟s life “, unless it is
prescribed law. Recent scenario, contemporary issues in death penalty mainly results because there is a failure
in examining the nature of crime. There is question whether death penalty must exist still? most of all
countries death penalty has been abolished, but it can be reiterated that death penalty is a requirement in the
contemporary society where each man stands for himself. Harsh punishment is required to keep the potential
convicts at bay, and ensuring that the society is not harmed or the peace, tranquility and order of the society is
not compromised. The State cannot compromise the lives of hundreds and thousands of innocent persons only
for the life of one convict who does not even deserve to live among a society of civilized persons. Thus, death
penalty must continue to exist.

International Journal of Legal Science and Innovation Page 8