Author: Simarpreet Saluja

BA.LLB, First Year New Law College, Pune

Co- author: Kajal Mathur

BA.LLB, First Year New Law College, Pune


Harold Laski (political thinker) once said, “Rights are in fact those conditions of social life, without which no man seek in general, to be himself at his best.” Human rights are birth rights and they belong to human because of their virtue of being human. These rights are an inalienable right which means it cannot be separated from individuals.

On 10th of December, 1948 The United Nations proclaimed and adopted the “Universal Declaration of Human Rights”. It was the first time that human rights were codified and steps were taken for the preservation of human rights. Objectives of universal declaration of human rights are: To present the ideals of human rights and fundamental freedoms and to inspire every individual to strive for their progressive realization.

Death penalty: A Brief

Capital punishment, in simple terms, means to stake one’s life. The state using it security and its power to start the life and liberty of an individual who have committed some grave offences. Death penalty is a kind of capital punishment or legal penalty in India. It is a practice where a person is executed by hanging till death as a punishment and it is legally sanctioned by the government.

Over the past few years, we have seen three executions in this country. In its recent report, The Law Commission of India recommended an immediate abolition of the capital punishment, and if necessary, only in the cases dealing with waging war against the state. This is a landmark recommendation of India and if it gets accepted, India will enter a League of Nation, consisting more than hundred countries around the globe which have abolished capital punishment.[1]


(1) Which crimes implicate capital punishment in India?

(2) What has the Supreme Court ruled on the constitutional validity of the death sentence?

(3) What would be called as “rarest of the rare case”?

(4) What are the arguments in favour of capital punishment?

(5) What are the arguments against of capital punishment?


India being the democratic country follows and respect human rights and guarantees human rights to its citizens. The Constitution of India guarantees the right to life (Article 21)[2] subject to its deprivation by the procedure established by law. Due to increase in number of crimes or heinous crimes, the debatable topic of death penalty sometimes or another took up the forefront. Legislature of India has made many laws and also types of punishment in order to refrain people or to create fear of punishments in mind of the people to not to commit crime. In India, the first person against whom the death penalty was executed was NATHRUAM GODSE (Mahatma Gandhi assassinator). Mahatma Gandhi was the foremost proposer to abolish the death penalty.

Indian penal code, 1860(Section 302)[3] prescribes death penalty or life imprisonment as punishment for murder. It is not possible to hold the provisions of death penalty as an alternative or the only punishment for murder and also it is not in public interest. Thus, Supreme Court improvise the statue in Bacchan Singh V. State of Punjab[4] by ruling that, death penalty will be awarded only in rarest of rare case or crimes, where other remedy is unquestionable. Prior to the Criminal Procedure Amendment Act 1955 the death penalty was the rule and life imprisonment is exception. The situation got reversed and life imprisonment is the rule and death penalty is exception in capital offences

Later in Jagmohan Singh V. State of Uttar Pradesh[5], Supreme Court supports constitutionality of death penalty and held that it does not only prevent the crime but also it prevents the society at large scale.

Section 354 of Cr.Pc gave a right to accused for hearing of pre sentence under section 235(2) and compels the court to specify special reason for awarding death penalty. Then the question arises that what elements make the crime rarest of the rare?

Supreme Court in Macchi Singh v State of Punjab[6] clarifies the doctrine of rarest of rare case and gives five categories of murder which include:

1. Motive

2. Manner of commission

3. The extent of crime

4. Anti-social repugnant nature of crime

5. Personality of victim

Now the question here is what exactly is “rarest of the rare case”? The capital punishment is being given only when the opinion of life imprisonment is unquestionably fore-closed.

Supreme Court held that two tests need to be performed to determine which cases fits under this rarest of the rare case Doctrine. These two tests are: -

1) Is there something uncommon about the crime that if we give life imprisonment to the offender it would be travesty of Justice?

2) Are there circumstances in the crime which bring the life imprisonment as inadequate even after the judges give maximum weightage to mitigating the circumstances which speaks in favour of the accused?

Now the Indian penal code 1860, prescribes death penalty for offences such as:

1. Waging war against government(Section 121)

2. Abetting mutinity(Section 132)

3. By giving false evidence upon innocent person suffers death (Section 194)

4. Crime of murder(Section 302)

In India as per official statistics, 720 executions have been taken place in India after 1947. In majority of the cases death was commuted to life imprisonment and some acquitted by the higher courts.

The death penalty has impacted the socio economically vulnerable groups and this is the main reason why death penalty in India has been continually debatable. According to report it was found that nearly 75% of all prisoners sentenced to death are belong to marginalized communities. Also 62% of the prisoners had not completed secondary schools and 23% of prisoners had never gone to school. It was also found that nearly 75% prisoners have never met their lawyers outside the courtroom.

December 16, 2012, physiotherapist student was gangraped in a moving bus. What was so uncommon about the scene? Five Man raping a victim. Not only this, this crime was committed in a horrific and grossest manner. The accused turn in raping the victim, one of the accused took one iron rod and insert this iron rod into the genitals of the victim thereby rupturing her intestine. So, there was something uncommon about this crime. This crime was committed in a grossest manner. And in this crime if the life imprisonment is awarded to the accused it would be travesty of justice. So, these are aggravating circumstances. The Supreme Court rule that the judge will have to draw a balance sheet between aggravating circumstances and mitigating circumstances.

Mitigating circumstances:

(1) One does not have a post record of crimes.

(2) One did not commit a crime in a pre-mediated fashion. This was the crime that one committed in a fit of range that means it was not pre-determined.

This creates mitigating circumstances in favour of the accused. These mitigating circumstances might not excuse the crime but might of an explanation.

International Scenario

UDHR in its Article 3 clearly stated the “Right to life” which means everyone has the right to life; nobody has the right to take anyone’s

Life and Article 6(abolition of death penalty) of ICCPR are the reasons why UN supported the abolition of death penalty as its takes away the right to life of the offender or criminal. Capital punishment also called the death penalty is the execution of an offender sentenced to death after conviction by a court of a law for a criminal offence. The death penalty is seen as the most suitable punishment and effective deterrent for the worst crime. The morality of the death penalty is debatable all across the globe.


Principle of Retribution means that people should get what they deserve in proportion to the severity of their crimes. This argument states the real justice which requires people to suffer for their wrongdoing.

Principle of Deterrence justified the death penalty with the argument that by executing convicted murderers, it will deter would-be murderers from killing or doing any heinous crime. Thus, Thomas Aquinas noted that “By accepting the punishment of death, the offender was able to expiate his evil deeds and so escape punishment in his or her next life.” It concludes that the death penalty can lead to the rehabilitation of the individual’s life.

More points in favour.

(1) The death penalty is cheaper than feeding a murderer for life. From a lot of studies, it has been revealed that the capital punishment costs more than life imprisonment of an individual. This is because of a long process.

(2) Murderers actually deserves death. In India, there are some people who have shared their view in favour of death penalty while others opposed to it no matter what crime has been committed by the one. The ones who opposed it have also noticed that government is not a perfect institution to maintain the balance between the good and the bad.

(3) There should be ‘an eye for eye rule’ that means an individual who has committed a crime, he should be treated in the same manner, for example if anyone slaps you on the right cheek turn to them to the other cheek also.

(4) Family of the victim deserves closure- the family of the victim deserves the closure. Though the friends, family and the relative of the victim have to bear the loss of it for the entire life, even if the murderer is / is not punished with death penalty, then just for funding their loss one should be punished with capital punishment.

(5) The criminals who do such heinous crimes like murders spread culture of violence due to which the environment is badly impacted which may influence others to do such thing, maybe unknowingly.

(6) The murderers do not deserve to spend the life of leisure in prison. They must be punished with capital punishment.


The statics evidences and on practical grounds death penalty does not confirm that deterrence works. Some of those executed may not have been capable of being deterred because of mental illness or defect.

The most common arguments against death penalty is that sooner or later innocent people may get killed because of mistakes or flaws in the judicial interpretation. According to the Amnesty International, “As long as human justice remains fallible the risk of executing the innocent can never be eliminated.”

The death penalty report of The UN Secretary General reported that 170 states have abolished the practice of death penalty in law or have suspended the executions for more than 10 years.

(1) Capital punishment somehow disproportionately punishes minorities and the other backward ones because these are ones who are most likely to be sentenced to death.

(2) Accordingly, the people who are punished with life imprisonment instead of capital punishment do not live a life of leisure, unlike what people think who are in favour of death penalty.

(3) Too much power in the hands of state- death penalty is a punishment which cannot be given easily to anyone. If such a big punishment started becoming common in countries then it would result into worst situation. This led to so much power in the hands of the government.

(4) Miscarriage of Justice- sometimes an innocent can be punished with death penalty due to the absence of evidence in favour of him or her. But if an individual is innocent and has punished with life imprisonment there is a chance of his releasement and compensation by the state.

Despite being a member of UN charter, India does not sign the convention moved by the UN on death penalty and still it is legally valid to give death penalty in India. India is in view that allowing criminals guilty of having committed international cold-blooded deliberate and brutal murders to escape with a lesser punishment will deprive the law of its effectiveness and result in travesty of justice.[7]


Deterrence is most effective when the punishment happens soon after the crime. India is awaiting in execution of Nirbhaya’s rapist (2012 Delhi rape case) the inordinate delay in the execution of the death penalty has taken the sting out of the punishment. This is the reason why Hyderabad police encounter in Disha’s case (A doctor who was raped) was hailed by a large populace. In this context there is a need to expedite investigation at the hands of a well trained and equipped police system ably supported by fast track trials to reinforce the faith of the public in our legal system.

[1] Lawrence W. Sherman, Execution Without Trial: Police Homicide and the Constitution, Vol. 33, Vand L Rev., 71, (1980) [2] INDIA CONST. art. 21 [3] Ratanlal and Dhirajlal, The Indian Penal Code (Act XLV of 1860) [4] Bacchan Singh v. State of Punjab (1980) (2 SCC 684) [5] Jagmohan Singh v. State of U.P. AIR 1973 SC 947 [6] Macchi Singh v. State of Punjab 1983 AIR 957 [7] Roger Hood, Capital Punishment: A Global Perspective, Vol. 3, Punishment & Society, p. 331, 2014

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