India’s stance on Capital Punishment and its Constitutional cogency

Author: Elgiva Sarkar Student Vellore Institute of Technology, Chennai


Capital punishment has been a practice of punishment used to eliminate criminals for the most egregious crimes since aeons. It is a legally authorised practice that has been a hotly debated topic universally and has strong ethical dilemmas associated with it. India’s position on the matter has been highly conflicted, talks have been initiated and bills introduced to abolish death penalty over the years but no legislative changes were incorporated into the Constitution. The country seems to be standing at crossroads when it comes to capital punishment, since, on one hand, it acts as a deterrent and effectively curbs the rate of crime, whereas on the other it deprives individuals of the basic human rights they are entitled to. India is one among the 55 countries[1] that still retain capital punishment as a form of ultimate punishment, and uses it in the “rarest of rare cases”. In India, two methods of execution are used: hanging by the neck until death and being shot to death, with hanging being used in the civilian court system and hanging as well as shooting being used in the military court-martial system. Every so often legislative changes are made that result in the number of categories of offence that attract death penalty to shift.

Capital punishment has been challenged numerous times in the past century because of its arbitrariness, irreversibility and violation of human rights. It is thought to be a violation of Article 21 of the Indian Constitution, which states that “no person shall be deprived of his life or personal liberty except according to procedure established by law”[2]. In Jagmohan Singh vs. The State of U.P.[3], the Supreme Court maintained the constitutional legitimacy of capital punishment and determined that it did not violate Article 21. The Defence lawyer in the case, Mr. Garg contested the permissibility of death penalty and also tried proving it as an ineffectual deterrent. The Supreme Court found the reasons offered by the defence counsel to prove the unconstitutionality of Article 21 inadequate and established that under Article 21, a death sentence given following a trial in conformity with the law’s procedure is not unlawful. The 35th Report on Capital Punishment (1967)[4] in its recommendation stated that to cater to the diversity of its citizen’s social upbringing, the country’s inequality in morals and education, and to the country’s vastness, India cannot risk experimenting with the abolition of capital punishment[5]. The socio-economic and cultural conditions have indubitably evolved in the past 55 years but the position of the Constitution on death penalty remains the same, with some imperative legislative changes introduced over the years to keep the law pertinent to the present. With reformation and deterrent as primary social objectives, courts resort to capital punishment only in severe case. In the case of Rajendra Prasad vs. State of Uttar Pradesh[6], Justice Krishna Iyer stated that each case and its facts are unique, and that no straitjacket factor may be relied on while giving a capital punishment ruling. Furthermore, he found death penalty violative of Articles 14[7],19[8] and 21[9] of the Indian Constitution, resulting in a reduction of the sentence from capital punishment to life imprisonment. In Bachan Singh vs State of Punjab[10], the Supreme Court reversed its earlier ruling in the case of Rajendra Prasad[11] vs. State of Uttar Pradesh and went on to affirm that the six fundamental rights under Article 19 (1)[12] are not absolute and in addition made it apparent that Article 19 clauses (2) to (6) specifically subject to the state’s capacity to impose tenable restrictions on the enjoyment of citizen rights, arising from the reciprocal commitment of one member of civil society to use his rights in a manner that does diminish or impair the rights of others. The Supreme Court by a majority of 4:1 said that capital punishment does not contravene either the message or the spirit of Article 19 of the Indian Constitution and went on to establish the doctrine of “rarest of rare” specifically for crimes punishable by death, in order to reduce ambiguity for judges as to when to use the harshest punishment available. The death sentence has frequently been justified by the Supreme Court on the basis of deterrence. In Mahesh v. State of Madhya Pradesh[13], for example, the Supreme Court stated that the act of the convict was brutal, unpleasant, and horrific to the point of shocking the judicial conscience and that “[the common man] understands and appreciates the language of deterrence better than the reformative rhetoric.” The doctrine of “rarest of rare” was assessed and expanded upon in the case of Machhi Singh and Others vs State of Punjab[14] and the court noted that when a community’s collective conscience is so outraged that it expects the Judiciary to enforce the death penalty notwithstanding their individual beliefs, the community as a whole may endorse capital punishment and framed certain guidelines relating to the same, for instance when the crime is assessed in terms of the intent for the crime, the manner it was committed in, the anti-social or odious aspect of the crime, the severity of the crime or the personality of the victim. The Supreme Court also struck down Section 303[15] of the Indian Penal Code, which prescribed the death penalty for anyone who commits murder while serving a life sentence in another case, after concluding that Section 303 violated Articles 14[16] (right to equality) and 21[17] (right to life). It stated that all murders would fall under Section 302[18] of the Indian Penal Code, which would allow a judge to sentence someone to life in prison or to death. The constitutional legality of Section 354 (5)[19] of The Code of Criminal Procedure, 1973 was challenged in the case of Deena vs Union of India[20] on the grounds that the use of rope in the manner authorised by this section was barbaric, inhumane, and degrading, and thus violated Article 21 of the Indian Constitution. It also laid the grounds for basic execution guidelines and stated that, the act of execution should be as swift and simple as possible, free of anything that unduly heightens the intensity of the prisoner’s dread, generate immediate unconsciousness followed by death, be dignified, and not entail any disfigurement. In the case of State of Punjab vs Dalbir Singh[21], the Supreme Court declared in 2012 that the mandatory death penalty for offences under Section 27 (3)[22] of the Arms Act, 1959, was unconstitutional.

488 prisoners were on death row across India on 31st Dec 2021, numbers being the highest in 17 years[23]. Additionally, India voted against the United Nations Human Rights Council’s Resolution on the Question of Death Penalty. There is a scarcity of information available in India about people who have been sentenced to death, however, there have been over 720 accounted executions[24] in India since 1947. The last death sentence executed in India was that of the 2012 Nirbhaya gang-rape case convicts, who were hung to death on March 20, 2020.The crimes for which death sentences are issued provide the most vivid image, and have far-reaching implications for the victims as well as the society on the whole.

Whilst the fact that capital punishment is regarded as constitutional in India is evident. In any criminal justice system, the sentencing policy is crucially significant, particularly in circumstances involving the death sentence, because the death penalty once executed cannot be reversed. Thus, there is a need to thoroughly grasp the nature of the death penalty as a form of punishment along with taking into account political and philosophical issues around the death sentence in view of the fact that the terms of the law and the realities of its enforcement are vastly different.

[1] World Population Review, https://worldpopulationreview.com/country-rankings/countries-with-death-penalty (last visited Feb. 4,2022).

[2] India Const. art. 21.

[3] Jagmohan Singh vs State of U.P., AIR 1973 SCR (2) 541.

[4] 2015. The Death Penalty. [online] Law Commission Of India, p.12. Available at: <https://lawcommissionofindia.nic.in/reports/report262.pdf> [Accessed 22 February 2022].

[5] Law Commission of India, 35th Report, 1967.

[6] Rajendra Prasad vs State of Uttar Pradesh, AIR 1979 SCC (3) 646.

[7] India Const. art. 14.

[8] India Const. art. 19.

[9] Supra note 2.

[10] Bachan Singh vs State of Punjab, AIR 1980 SC 898.

[11] Supra note 5.

[12] Supra note 7.

[13] Mahesh vs State of Madhya Pradesh, AIR 1987 SCR (2) 710.

[14] Machhi Singh and Others vs State of Punjab, AIR 1983 SCR (3) 413.

[15] The Indian Penal Code, 1860, §303.

[16] Supra note 6.

[17] Supra note 2.

[18] The Indian Penal Code, 1860, §302.

[19] The Code of Criminal Procedure, 1973, §354 (5)

[20] Deena vs Union of India, AIR 1983 SCR (1) 1.

[21] State of Punjab vs Dalbir Singh, AIR 2012 SCC (3) 346.

[22] The Arms Act, 1959, §27 (3).

[23] Annual Statistics Report 2021, PROJECT 39A (Feb. 5, 2022, 10:52 AM), https://www.project39a.com/annual-statistics-page-2021.

[24] Press Trust of India, Death penalties in India: Convictions and Acquittals, THE WEEK (Dec. 17, 2019, 08:36 IST), https://www.theweek.in/news/india/2019/12/17/Death-penalties-in-India-Convictions-and-Acquittals.html.

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