Constitutional validity of Death Penalty or Capital punishment in India

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In the Supreme Court of India, the Constitutional validity of the death penalty was challenged many times in different ways. Among different nations in the world, India is one of the nations that have neither totally abolished the death penalty nor passed legislation that may highlight the validity or legality of death penalty or capital punishment. In India, death penalty is awarded on the grounds of rarest of rare doctrine. In 1973, the death penalty was firstly challenged in India in the case of Jagmohan Singh v. State of Uttar Pradesh. The judgment and order came before the re-enactment of the CrPC in 1973 whereby the death sentence was determined as an exceptional sentence. In this case, the validity of capital punishment was addressed on the basis that it infringed Articles 19 and 21 of the Indian Constitution. The Supreme Court held that “the choice of death sentence is done by the procedure established by law.” Moreover, during the hearing of the case, it was determined that the top Court decides between a life sentence and a death sentence based on different facts, type of crime, idea of the wrongdoing and circumstances presented before the Court during trial. While delivering the order and judgment on hideous crimes, there is an evolution in the top Court’s views that raises various questions in association with existing judgments.

Historical judgments by Supreme Court related to Death Penalty

In 1979, Rajendra Prasad v. State of UP case, the Supreme Court ruled that the death penalty would be inappropriate unless it has been proved in the Court that the defendant poses an ongoing serious risk to social security. As per the opinion of Justice Krishna Lyer, three types of criminals should get the death penalty which include, white collar crimes, to eliminate a dangerous killer who may harm the society, and for crimes against social disorder. The top Court then ordered that the death penalty imposed on an accused for a murder conviction under Section 302 of the IPC (Indian Penal Code) did not abuse the basic feature of the Constitution.

Later on, in Bachan Singh v. the State of Punjab case, the five-judge bench of the Supreme Court held that the death penalty was reasonable; therefore it does not violate Articles 14, 19 and 21 of the Indian Constitution. In this case, the bench reversed the judgment delivered in the Rajendra Prasad case by a majority ratio of 4:1. Majority opinion of the bench stated that the principle of awarding death penalty is applicable only in ‘rarest of rare cases’. The dissenting opinion by Justice Bhagwati stated that “the death penalty is not only unconstitutional because it violates Articles 14 and 21 but also undesirable from several points of view.” The Supreme Court order for the case was, “In accordance with the majority opinion the challenge to the constitutionality of Section 302 of the IPC in so far as it provides for the death sentence as also challenge to the constitutionality of Section 354(3) of the Code of Criminal Procedure, 1973 fails and is rejected. The Writ petitions and other connected matters may now be placed for hearing, in the usual course, before the division bench for consideration of the individual cases on merits, in the light of the principles enunciated in the majority judgment.”

After this landmark judgment, there came the judgment of Machhi Singh and others v. State of Punjab case where a total seventeen people were murdered in succession in five different villages in Punjab on August 12, 1977. The primary issue addressed in this case was “Whether a death penalty could be given to the accused (Macchi Singh) and other convicts by applying ‘rarest of the rare cases,' identified in India for imposing death sentence in a murder case or not?” After hearing the contentions and arguments from both sides, Justice MP Thakkar reached a conclusion and stated that “Death penalty is to be awarded only in the rarest of rare cases.” In addition to this, the Court also highlighted different guidelines of the circumstances in which death penalty or capital punishment can be imposed on the accused. Manner of commission of murder (victim’s body cut into pieces, victim’s house is set on fire to roast him alive, or victim is subjected to inhumane torture and cruelty leading to death), motive of the murder (evinces depravity and meaness), magnitude of crime (single murder, multiple murders or genocide), anti-social or socially abhorrent nature of crime (murder of minority community or scheduled caste nor for personal reasons but for social wrath or bride burning for dowry or remarriage), and victim’s personality (innocent child, helpless women, public figure, etc.) are the five circumstances on the basis of which decision would be taken, whether to give death punishment or not. 

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Recent judgments on Capital Punishment

Mukesh & Anr. vs. State for NCT of Delhi & Ors. (Nirbhaya Case)

Bench: Justice Dipak Misra, Justice Ashok Bhushan, and Justice R. Banumathi

Facts of the case: A 22 year-old girl was beaten brutally, gand raped by the accused and tortured to extent that it resulted in her death, all this was done in a private bus in which she was travelling. 

During the proceedings: On January 2, 2013, the Altamas Kabir (then Chief Justice of India) inaugurated FTC (Fast Track Court) for speed trial in sexual offence cases. FTC started proceedings on January 17, 2013, against five adult accused. Later on March 11, 2013, one of the convicts, Ram Singh, committed suicide in Tihar jail. On September 13, the trial Court awarded the death penalty to all 4 convicts whereas the fifth accused, being a juvenile, was awarded a three-year term at probation home. Following this, the High Court reserved the verdict of the trial Court and upheld the death penalty to all the 4 convicts on March 13, 2014. The case was then presented before the Supreme Court and the top Court halted the execution of all 4 convicts on March 15, 2014. Later in February, 2019, the victim's parents moved to Delhi High Court for issuance of death warrants of the convicts. Along with this, the convict’s approached the top Court with pleas seeking review of their death penalty. On March 20, 2020, the Supreme Court ordered the execution of all four convicts in the 2012 Nirbhaya gang rape case.

Supreme Court Held: “The hideous crime was committed in connivance and collusion of six who were on a notorious spree running a bus, showcasing as a public transport, with the intent of attracting passengers and committing crime with them.” Justice R. Banumathi stated that “There is not even a hint of hesitation in my mind with respect to the aggravating circumstances outweighing the mitigating circumstances and not find any justification to convert the death sentence imposed by the courts below to ‘life imprisonment for the rest of life.” All four convicts were ordered to be executed and the same was done at 5:30 am in Tihar Jail.

Mohammed Ajmal Mohammad Amir Kasab vs. State of Maharashtra

Bench: Aftab Alam and C.K. Prasad

Facts of the case: Kasab was found guilty of committing 80 offences, those included murder and waging war against India along with other crimes like possessing explosives, and other charges. He was sentenced to death on four counts and to life imprisonment on five counts, His hanging took place on 21/11/12 within the premises of Yerwada Central Jail in Pune.

During the proceedings: The primary argument during the court proceedings was whether the accused (Kasab) went through fair trial or not. This question was fairly answered during the proceedings as Kasab was initially assigned with a lawyer from Pakistan as per his demand. Moreover, the top Court also provided him with the lawyer but it was fully the appellant’s wish whether to take or not. Therefore, there was no violation of the provisions of the constitution. Moreover, the top Court ensured that the appellant was provided the equitable death sentence as he was accused of a hideous crime of killing innocent people. Some other arguments in this case include, little time allowed to the lawyer for preparation, waging war against the government of India and conspiracy.

Supreme Court Held: The Supreme Court awarded five death penalties and five life imprisonments to the accused because of his unacceptable and hideous crimes. 


Awarding the Death penalty is a topic of debate but it also raises questions on methods of investigation and procedure of law, time taken to deliver justice, and other such factors. In India, the Supreme Court has been cautious and reluctant in awarding death punishments. Although, the doctrine of rarest of rare has been put to question by many jurists. Hanging itself has come under the radar of human right activists who think it is a barbaric method. Death penalty may be punitive but is a crime against humanity and it has been argued that it does not give criminals a chance to repent his actions or feel remorse about it. Alternate punishments like life imprisonment, solitary confinement are being considered as alternatives to death punishment. But it is hard to say whether it is the fear of law or the fear of punishment that stops a man from committing crime.

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