September 17, 2021


criminal law

Death penalty inter alia other penalties has been a tool in the laws of rulers to control the order amongst the rule, legally since the inception of the concept of statehood .Those who are advocate of retributive theory are to justify the authority of imposition of death penalty of the ruler as the fear of stringent penalty shall prevent the malicious mind to enable a person to author a heinous crime. The reformative theorist condemn it by arguing that crime is not just a personal phenomena ,rather it is a cumulative resultant of sociological disbalance.

The modern day states try to face off from their responsibilities as a ruler to harmonize the social disbalance in respect to rigorous punishments like death penalty and stand with the majoritarianism. Since the inception of statehood the rulers have been trying to capture the power in the name of their responsibility to maintain the law and order in the state .In the phenomena the rulers always justify their act in the form of legislators. Death penalty is awarded to people to have done rigorous crime that seems to be against the public order of any society.

Capital punishment in India is one of the legal penalties in India. It has been carried out in five instances since 1995, while a total of twenty-six executions have taken place in India since 1991, the most recent of which was in 2015. The basic aim of giving punishment is to transform a person from law-breakers to law -abiders.

In the case of Mithu V/s. State of Punjab, [1]the Supreme Court struck down Section 303 of the Indian Penal Code, which provided for a mandatory capital punishment for offenders who committed murder. Since Independence, the number of people executed in India is a matter of dispute; official government statistics claim that 52 people have been executed since 1947. However, research by the People’s Union for Civil Liberties indicates that the actual number of executions is in fact much higher, as they found records of 1,422 executions in the decade from 1953 to 1963 alone.

Research published by National Law University, Delhi on death penalty convicts since 2000, had found that out of the 1,617 prisoners who were sentenced to death by trial courts in India, capital punishment was confirmed in only 71 cases. NLU, Delhi confirmed that there have been 755 executions in India since 1947. According to a report of the Law Commission of India (1967), during 1953-63, 1410 was the total number of cases in which the death sentence was handed down in India.

In December 2007, India voted against a United Nations General Assembly resolution calling for a temporary prohibition on the death penalty. In November 2012, India again voted against the UN General Assembly draft resolution to uphold its stance on capital punishment by seeking to end the institution of capital punishment globally. The Law Commission of India submitted a report on 31 August 2015 to the government in which it was recommended to abolition of capital punishment for all crimes in India, except is someone wages war against the nation or for terrorism-related offences. The report cited several factors to justify why death penalty should be abolished, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect on criminals.

The trend of judgments being passed in recent years: The trend of passing death penalty is showing a legitimate change and as years passes on its resulting a fall in the verdict of capital punishment . As the report shows the Trial courts in India delivered 102 death sentences in 2019, over 60% fewer than the 162 death sentences passed in 2018. Most death sentences were imposed for murders, and murders involving sexual violence, at 45 and 58 respectively in 2018.In India, these sentences can been be handed out under various sections of the Indian Penal Code (1860).There are also 24 other state and central laws which contain provisions for the death penalty.

Since independence in 1947, the majority of executions have been carried out in Uttar Pradesh state, according to the National Law University in Delhi, that state has executed a total of 354 people, with the next highest number being Haryana with 90, and Madhya Pradesh with 73 executions since independence. The data shows that in 2018 alone, the courts imposed 162 new death sentences – 50% more than the previous year and the highest in nearly two decade.

What can be the reason behind the apex court to pass the death penalty? May be the apex court passes the judgment to reduce the crime by passing such verdict or the apex court passes the judgment in result to external pressure. In the year 2016 the death penalty awarded was 150 which again reduced to 108 in the year 2017 which showed a drastic increase by 162 in 2018 which again was slopped down to 102 in 2019. The reason behind the ups and down in the judgment can have many reasons and the report showed a slide down in recent year. In dealing with the social order and the role of criminal justice system the margin of human error can never be ruled out .At the same time crime control in a complex social structure is not a cake walk for any ruler where the judgment alone has more value in the democratic country like India.

Recommendation of law commission of India in abolition of the death penalty except in the cases of terror – According to the report of Law Commission of India, the principle of ‘rarest of rare’ cannot be operated free of arbitrariness. It also said that, life imprisonment better serves the goal of deterrence hence; capital punishment should not be given for any offences except for the cases of terrorism. This recommendation was however not unanimous. The purview of the law commission is to abolish the death penalty completely in the coming future .but due to few reasons the complete abolition doesn’t suits the recent judgment. The abolition of any particular thing is not that easy at all in the place where the judgment of the apex courts in few matters is so slow.

There are many debates that run regarding the abolishment of the death penalty, but like in any other topic this topic also has people towards it those who say that it must be awarded for a safer and harmonious society while few debate saying that it must be abolished because it’s against the human rights and even against the fundamental rights of a individual. The prior condition attached to it is that must be rarest of rare case to inflict death penalty. Having saying that with the changes in the changing world and society the concept of death penalty have been evolved to be different in the world of courts .And there have been many sinful crimes committed but keeping the mercy in the eyes of the judge giving the verdict at courts have exchanged the word of death penalty with life imprisonment .Many have been awarded with death penalty but very few cases have been prosecuted against the same.

While having a look at the theories of punishment being described in the criminal jurisprudence ,it prescribes the suitable punishment for the crime that is relevant to it .Talking about theories of punishment there are five theories: Deterrent Theory, Retributive Theory, Preventive Theory, Reformative Theory, Expiatory Theory

Whether death penalty is addressing these theories? Is death penalty the best form of punishment since life imprisonment also addresses the entire theories requirement? Once a person is executed the person is wiped out from the society nor can he be reformed or expiated. Any judgment passed erroneously it cannot be rectified as the person is executed. Material object has to be produced before reasonable time. The objective deriving from death penalty is also derived from life imprisonment .My opinion as a researcher over death penalty is there has to be speedy declaration of judgment with taking into account all the reasonableness while passing judgment.

The custom of death penalty persists even from the earlier history of Mohammedan law and other history so the abolition doesn’t sounds to be that easy and few many have thoughts like it must be abolished and few may even think it must not be . If in mere future the capital punishment is abolished may be the crime rates increase to the highest .the trend of the apex court has shown the number of cases that’s being converted or commuted from capital punishment to life imprisonment. There are crimes which will affect the society at large and there are offences which may affect only a particular individual so the terrorism is affecting the society at large and hence the law commission suggested the capital punishment for the terror cases or in the cases of abetment of waging a war.

Is the decision or recommendation in contrast to the judicial proceedings of the court?

There was a question arising that as to if the “rarest of rare “doctrine serves the purpose of prosecution and will the abolition of the benefit the society or make the crime ratios even more transitional in an upward direction. If we have a look at the judicial proceedings our country is a democratic as well as a country wherein the crime ratios are much higher than any other country so the judgment of the apex court also has to be adaptable to the situation of our country needs.

“Continued administration of death penalty asks very difficult constitutional questions…these questions relate to the miscarriage of justice, errors, as well as the plight of the poor and disenfranchised in the criminal justice system” [2]

The shifting era of death penalty to lethal injection in the mere future: Here the fundamental question that arises is whether the supreme court of India keeping the entire necessary situation into the hand, tilt towards the lethal injection from death penalty. There are many countries that have already from long time ago adopted the process of lethal injection instead of hanging .it completely depends on the court or the public authority to legalize the lethal injection.

Currently, India is one of 83 countries who have retained the death penalty. In India, usually, hanging or shooting is the way to award death penalty. Recently, the Law Commission of India came up with a document entitled ‘Consultation Paper on Mode of Execution of Death Sentence and Incidental Matter’. This document mainly contained a questionnaire of polling opinions on methods of execution. The questionnaire neither questions the use of the death penalty nor whether this method of punishment is necessary and justified. The ‘Consultation Paper’ has been confined mainly to the following three issues:

  • The method of execution in the death sentence;
  • The difference in judicial opinion among judges of the apex court in passing the sentence of death penalty in process of elimination;
  • The need to provide a right of appeal to the Supreme Court to the accused in such cases.

The changing parameters in the judgment of the supreme court in trend of death penalty- Indian Criminal jurisprudence is the combination of deterrent theory and reformative theory of punishment. To create deter amongst the offender and give them the opportunity to reform the punishments are to be imposed. Since some are in favor of retention of the capital punishment while others are in favor of its abolishment, hence there has been diverse opinion regarding death penalty.

India is one of the countries in the world which have retained capital punishment reasoning that it will be awarded only in the ‘rarest of rare cases’ and for ‘special reasons’. Neither legislature nor the Supreme Court have not come up with any categorization as to what constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the.

The concept of equality incorporated in Art. 14 finds echo in the preamble to the constitution. Capital sentence is therefore, against of one’s right to life. However, there is nothing in the Constitution of India which expressly holds capital punishment as unconstitutional. Time to time the constitutional validity of the death penalty was challenged from in numerous cases.

In Jagmohan Singh V/s State of Uttar Pradesh[3], it was held that that the death penalty was not violative of the article 14, 19 and 21 but it was violative of Article 19 and 21 because it did not provide any procedure as to how the procedure has to be executed. And on basis of circumstances and facts it is upon the judge whether to award death penalty or life imprisonment

In Rajendra Prasad V/s state of Uttar Pradesh [4]it was stated that the death penalty was violative of article 14, 19 & 21 he then emphasized on the point that to impose capital punishment there needs to be two ingredients present in it, special reason must be recorded as to on what basis the death penalty is being imposed. And the death penalty must only in imposed in extraordinary circumstances

Bachan Singh V/s State of Punjab[5], in this case the previous judgment was overruled. In this case the principle of “rarest of rare “was laid that .and stated that the person who is guilty for such an offence that can be termed as rarest of rare in nature. After that supreme court struck down the sec 303 of IPC which stated death penalty for murder and it was stated that just for a reason of murder the offender must not be executed for death penalty .it should also have reasonable grounds for infliction of death penalty and must come under the doctrine of rarest of rare.

In 2018, India was among top 7 countries to award death penalty. According to project 39 of the NLU, Delhi, and the lower court awarded 162 death penalties which are again subject to commutations. The highest death sentences awarded in the year 2018 was the highest in the century, previous highest being 154 in 2007.

Further, in the case of Machhi Singh vs. State of Punjab[6], the Supreme Court laid down the extent as to what rarest of rare cases Court held that five categories of cases may be regarded as deserving extreme penalty. They are:

  • Firstly: Manner of Commission of murder must be inhuman.
  • Secondly: there must be motive behind commission.
  • Thirdly: Anti-social or socially deterrent nature of the crime.
  • Fourthly: Magnitude of the Crime.
  • Fifthly: Personality of murderer.

In Deena vs. Union of India[7], the constitutional validity of section 354(5) IPC 1973 was challenged on the ground that by rope as prescribed by this section was barbarous, inhuman and degrading and therefore violative of Art. 21. The court held that section 354(5) of the I.P.C., which prescribed hanging as mode of execution as fair, just and reasonable procedure within the meaning of Art- 21 and hence is constitutional.

In Sher Singh vs. State of Punjab[8], it was held that death sentence is constitutionally valid as long as it comes in the purview of rarest of rare case as held Bachan Singh’s case. This has to be accepted as the law of the land.

In Mithu vs. State of Punjab[9], S.303 of the IPC was held violative of Article 21 and 14 of the Constitution of India and hence it was struck down, as the offence under the section was punishable only with capital punishment and the judiciary the power to exercise its discretion was not given and thus result in an unfair, unjust and unreasonable procedure depriving a person of his life.

Basis of commutation by the apex court There are several cases wherein the cases are being commuted and the reasons are many for the same if even after awarding the death penalty the cases are being commuted to life imprisonment then there is no point of death penalty because there are thousands of cases that is pending before the court for which the reason maybe absence of evidence or any other vital thing that is essential.

Commutation mainly occurs when the apex court substitutes the sentence provided with a lesser sentence. In the year 2018 apex court commuted 11 out of 12 death penalties were for non-homicidal offences and sexual violence. On other hand high court of India out of 58 capital punishment commuted 36 to life- imprisonment.

In the case ofShatrughan Chauhan V/s Union of India[10], he apex court held that the courts may also check if the executive examined all the relevant materials. Required while rendering a pardon, it also observed that failure to consider any superseding circumstances by president or governor while declining the requests for granting a pardon would be violative of article 21 of the constitution and it would make enough reason for the court to commute the death penalty to life imprisonment .

In the Rajiv Gandhi Assassination Case, the death sentence of three accused had been commuted by the apex court. Thereafter the state of Tamil Nadu proposed to remit the life sentences and exonerate all the seven convicts this proposal was challenged in the apex court and the apex court constructed several questions.

One of the question was, if life imprisonment as under section 54 R/w section 45 of the IPC would mean imprisonment for the rest of the lifetime of the prisoner and if any special classification can be made for the cases where instead of awarding death sentence, imprisonment of the rest of lifetime of the prisoner barring any application of remission may be substituted.

The apex court observed that life imprisonment could only mean imprisonment for the rest of the life of convicts .the right to claim commutation ,remission etc .as provided under Article 72 or Article 161 of the constitution of India would always be present.

To conclude, Indian democracy is at a place that to come to any conclusion about it is not possible because our judiciary works in accordance to various other factors, it works and functions according to factors like media trial, arbitrary pressures and various other factors. And any eminent change in our judiciary it takes lot years so seeing any shift in the parameters with respect to the judgment of apex court takes a lot of years.

Earlier our society was different and the degree of crime was different now in this changing world the crime scenario is way different as to how be the situation earlier. Before people were of a view that death penalty must not be abolished and the offender must be punished now the society is of the view that partially few people are in favor of it and few against it .we might reach to a situation wherein we don’t require to award capital sentence and our society might only believe be reformation of the offender.

The definition of rarest of rare as laid down by various precedents of judgments also may vary over time and has also varied from before. The societal concern of any country varies time to time and court in accordance to that particular crime modifies its basis and category of conviction.

Maybe in various situations the judgments passed by the apex court can have any type of human error and in that particular matter once the person is executed cannot be gotten back. As per the criminal jurisprudence theories the apex court might pass any judgment as a link to any theory for the betterment or development of society.


[1] Mithu V/s. State of Punjab on 27 March 2001
[2] Report of 20thLaw Commission on Death Penalty
[3] Jagmohan Singh V/s State of Uttar Pradesh1973 AIR 947, 1973 SCR (2) 541
[4] Rajendra Prasad V/s state of Uttar Pradesh1979 AIR 916, 1979 SCR (3) 78
[5] Bachan Singh V/s State of Punjab AIR 1980 SC 898 2 SCC 684, 1983 1 SCR 145
[6] Machhi Singh vs. State of Punjab1983 AIR 957, 1983 SCR (3) 413
[7] Deena vs. Union of India(1983)4 SCC 645
[8] Sher Singh vs. State of Punjab1983 AIR 465, 1983 SCR (2) 582
[9] Mithu vs. State of Punjab1983 AIR 473, 1983 SCR (2) 690
[10] Shatrughan Chauhan V/s Union of India on 21 January, 1947

Author Details: Anu C Nanda and Raisha Rout (Reva University, Bangalore)


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