Constitutional Validity of Death Penalty or Capital Punishment in India

The death penalty, often referred to as capital punishment, has been a topic of legal, ethical, and social debate in India for decades. As one of the few countries that still retain this form of punishment, India justifies the death penalty under the “rarest of rare doctrine”, as established by the Supreme Court. While the Constitution of India guarantees the Right to Life under Article 21, it simultaneously allows for the deprivation of this right if done “by procedure established by law”.

Meaning of Death Penalty

The death penalty, also known as capital punishment, refers to the legal execution of an individual by the state as punishment for committing a serious crime. It is the highest and most extreme form of punishment awarded for heinous offences, such as murder, terrorism, or crimes against the state. 

The death penalty serves two primary purposes: deterrence, by instilling fear to discourage others from committing similar crimes, and retribution, ensuring justice for victims by proportionately punishing the offender. In India, the death penalty is awarded under the “rarest of rare doctrine“, as established by the Supreme Court, ensuring it is imposed only in exceptional circumstances where alternative punishments like life imprisonment are deemed insufficient.

Historical Context of Death Penalty in India

The concept of death penalty has existed since ancient times, where kings and rulers imposed capital punishment for heinous crimes to maintain order. Post-independence, the Indian Constitution inherited laws like the Indian Penal Code (IPC), 1860, which allowed for the death penalty, particularly for offences such as murder (Section 302), waging war against the State, and acts of terrorism.

In 1973, the Criminal Procedure Code (CrPC) was amended, which mandated that the death sentence should be awarded only in exceptional cases, requiring the recording of “special reasons” for imposing such punishment.

Constitutional Provisions and Challenges of Capital Punishment

Right to Life under Article 21

Article 21 guarantees the Right to Life and Personal Liberty. However, the phrase “except according to procedure established by law” creates an exception, allowing for the deprivation of life if done lawfully. Abolitionists argue that capital punishment violates this fundamental right, while retentionists point to the exception as legal justification.

Equality Before Law under Article 14

Article 14 guarantees equality before law and equal protection of laws. Critics argue that the arbitrary nature of awarding death penalties undermines equality, as cases are often subjective and lack uniform standards.

Freedom under Article 19

While Articles 19(1)(a)–(g) protect freedoms like speech and movement, they are not absolute and can be restricted for public order and morality. Retentionists argue that the death penalty serves a greater societal good, deterring crime and maintaining order.

Landmark Supreme Court Judgements on Capital Punishment

Jagmohan Singh v. State of Uttar Pradesh (1973)

• Challenge: First challenge to the constitutional validity of the death penalty under Articles 19 and 21.
• Court’s Decision:
  • The death penalty does not violate Article 21, as it follows “procedure established by law”.
  • The decision to impose the death sentence is made after a fair trial and judicial review of facts, crime, and circumstances.
  • The Supreme Court in Jagmohan Singh v. State of Uttar Pradesh upheld the validity of capital punishment.

Rajendra Prasad v. State of UP (1979)

• Challenge: Justice Krishna Iyer in Rajendra Prasad v. State of UP highlighted the need for a “special reason” for awarding death penalties.
• Key Observations:
  • Death penalties are valid only in cases where the accused poses a serious threat to social security.
  • Three categories warranting capital punishment:
    1. White-collar crimes.
    2. Elimination of dangerous killers.
    3. Crimes causing social disorder.
• Significance: Justice Iyer’s observations emphasised a reformative approach to punishment.

Bachan Singh v. State of Punjab (1980)

• Challenge: The validity of Section 302 IPC (death penalty for murder) and Section 354(3) CrPC (procedure for awarding death penalty).
• Court’s Decision:
  • By a 4:1 majority, the Supreme Court in Bachan Singh v. State of Punjab upheld the death penalty, stating it was constitutional if applied in the “rarest of rare cases”.
  • Doctrine of Rarest of Rare: Death penalty should only be imposed when alternative punishments (like life imprisonment) are inadequate.
  • Dissenting View (Justice Bhagwati): The death penalty is unconstitutional, violating Articles 14 and 21.

Machhi Singh v. State of Punjab (1983)

• Key Issue: Defining “rarest of rare cases.”
• Court’s Decision: Justice MP Thakkar in Machhi Singh v. State of Punjab laid down five guidelines for determining rarest of rare cases:
  1. Manner of Murder: Extreme brutality or torture.
  2. Motive: Depravity, meanness (e.g., hired killing).
  3. Anti-Social Nature: Crimes causing social outrage (e.g., dowry deaths, genocide).
  4. Magnitude of Crime: Multiple murders or large-scale crimes.
  5. Victim’s Personality: Vulnerable victims (children, women, public figures).

Recent Judgements and Notable Cases on Capital Punishment

Mukesh & Anr. vs. State for NCT of Delhi (Nirbhaya Case, 2020)

• Facts: A brutal gang rape and murder case that shocked the nation.
• Court’s Decision:
  • Death penalty upheld for all 4 convicts due to the heinous nature of the crime.
  • Justice R. Banumathi emphasised that aggravating factors outweighed mitigating circumstances.

Mohammed Ajmal Kasab vs. State of Maharashtra (2012)

• Facts: Involvement in the 26/11 Mumbai terrorist attacks.
• Court’s Decision:
  • Kasab was found guilty of waging war against India and mass murders.
  • The Supreme Court ensured a fair trial and awarded the death penalty.

Arguments For and Against Death Penalty

Arguments in Favor (Retentionist Perspective)

1. Deterrence: The fear of death deters individuals from committing heinous crimes.
2. Retribution: Ensures justice for victims and their families.
3. Public Order: Protects society from dangerous criminals and restores public faith in the justice system.
4. Legal Validity: The doctrine of “rarest of rare” ensures cautious application of the death penalty.

Arguments Against (Abolitionist Perspective)

1. Violation of Human Rights: Capital punishment denies criminals the opportunity for reform and violates the Right to Life.
2. Arbitrariness: Awarding death sentences lacks uniformity and is subject to judicial discretion.
3. Judicial Errors: Risk of wrongful convictions leading to irreversible consequences.
4. Ineffectiveness as a Deterrent: Studies show no conclusive evidence that the death penalty reduces crime rates.
5. Inhumane Methods: Hanging, as a mode of execution, is considered barbaric.

International Perspective on Capital Punishment

• Abolitionist Countries: Many countries, including the European Union, have abolished the death penalty, citing human rights concerns.
• Retentionist Countries: India, China, and the USA retain the death penalty but apply it selectively.
• UN Position: The UN General Assembly has repeatedly called for a moratorium on executions, encouraging nations to abolish capital punishment.

Alternatives to Death Penalty

1. Life Imprisonment Without Parole: Ensures that criminals remain in prison for life without the possibility of release.
2. Solitary Confinement: Acts as a deterrent while allowing offenders to reflect and reform.
3. Rehabilitative Programs: Focus on reforming offenders rather than retribution.

Conclusion

The constitutional validity of the death penalty in India has been upheld by the Supreme Court through various landmark judgements. While the “rarest of rare doctrine” aims to restrict its use to exceptional cases, the debate surrounding its ethical, legal, and social implications continues.

Retentionists view the death penalty as a necessary tool to deter heinous crimes and maintain societal order, whereas abolitionists argue that it violates human rights and offers no scope for reform. The growing support for alternative punishments like life imprisonment reflects a shift toward a more reformative justice system.

As India grapples with these questions, the death penalty remains a contentious issue, raising fundamental concerns about justice, human rights, and the role of punishment in modern society.