CAPITAL PUNISHMENT – Should it be done away with? by Kapil Devnani.


Capital punishment, also known as the death penalty, is a government-sanctioned punishment whereby a person is put to death by the state for committing a crime. The term capital is derived from the Latin word capitalis “of the head”, referring to execution by beheading.

In today’s period, Capital Punishment is a matter of controversy in almost all the countries of the world and different people have different opinions regarding it. In the European Union, Article 2 of the Charter of Fundamental Rights of the European Union prohibits the use of capital punishment. Also, The Council of Europe, which has 47 member states, prohibits the use of the death penalty by its members.

The United Nations General Assembly has adopted in 2007, 2008, 2010, 2012 and 2014 non-binding resolutions to end the Capital Punishment. Although most nations have abolished capital punishment, over 60% of the world’s population live in countries where executions take place, including the world’s four most populous countries: India, China, the United States, and Indonesia.

Today majority of countries have abolished the death penalty but still, 56 countries in the world give the death penalty for various crimes and India is also a member of that group.

We are going to discuss every aspect of Capital Punishment from the perspective of India in detail.

  1. Capital Punishment in India

For the first 5 years after the Constitution was made death penalty was the normal punishment for murder. In 1955, Discretion power was given to the session judge, so that he can decide whether to punish an offender with life imprisonment or with capital punishment.

In the year 1973, the Code of Criminal Procedure (CrPC) was enacted and a provision was added that the Session judge has to give a valid reason for awarding the death penalty or Capital Punishment.

Crimes which entail Capital Punishment in India include:

  • Grave offenses such as murder, rape with injuries that may result in the death of a victim.
  • Waging war against the State, and terrorism-related offenses causing death are some major crimes punishable with death under the Indian Penal Code.
  • Similarly, there are provisions under The Arms Act, The Narcotic Drugs and Psychotropic Substances Act, The Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, The Commission of Sati (Prevention) Act, The Air Force Act, The Army Act and The Navy Act wherein capital punishment is prescribed as one of the punishments for serious offenses.
  • The now-repealed Prevention of Terrorism Act (POTA) and Terrorist Disruptive Activities (Prevention) Act (TADA) also contained provisions for the death sentence.

There are 2 ways by which execution of the death sentence is carried out in India:

  1. Hanging the accused by the neck till death.
  2. Firing by the death squad.

Firing by the death squad is normally carried out in cases related to the Army Act, the Navy Act, and the Air Force Act.

In the case of Deena V. Union of India[1], the Supreme Court ruled that hanging by the neck is not unconstitutional in India and could be awarded after following the due process of law.

  1. Constitutional Validity of Capital Punishment in India

The Supreme Court in Jagmohan Singh V. State of UP[2] and Rajendra Prasad V. State of Up[3] ruled that Article 21[4] does not get violated because of Capital Punishment. The Supreme Court ruled that there exists a procedure and this procedure is a fair one. It’s because of this procedure that an accused is given the utmost time to prove his innocence and it is through this procedure that the state snatches the life and liberty of an individual and therefore death sentence is constitutional in this country.

In the case of Bachan Singh V. State of Punjab[5], the Supreme Court ruled that the death sentence can be applied only in the “rarest of the rare cases”. In this case, the Supreme Court ruled that judges have to give special reasons for sending someone to the gallows that means death sentence should not be awarded in every single case but be awarded in rarest of rare case.

But what does Supreme Court mean by “rarest of rare case”. For understanding this term, we have to look at another judgment of Supreme Court of India which is Machhi Singh V. State of Bengal[6]. In this case, the Supreme Court ruled that Capital Punishment should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. The Supreme Court held that 2 tests are needed to be performed to determine which cases fit under this “rarest of rare” doctrine:-

  1. Is there something uncommon about the crime that if we give life imprisonment to the offender it would be a travesty of justice?
  2. Are there circumstances in the crime which render life imprisonment as inadequate even after the judges give maximum weightage to the mitigating circumstances which speak in favour of the accused?

The facts of Nirbhaya Case[7] can help us to understand what the Supreme Court really means by these tests:-

On 16 December 2012, a 23-year-old physiotherapist student was gang-raped in a moving bus by 5 men. What was so uncommon about this crime? This crime was committed horrifically. How? The accused took turns in raping the victim. One of the accused took an iron rod and inserted that iron rod in the genitals of the victim, pulling and ripping her intestines apart. So there was something uncommon about this crime. This crime was committed in a gruesome manner and in this crime, if life imprisonment is awarded to the accused, it would be a travesty of justice. Thus, Capital punishment was awarded to the accused in this case.

One more question arises in the mind that what are these mitigating circumstances which speak in favor of the accused.

For understanding this let’s take an example, a hypothetical one:-

There is a boy who belongs to a very poor family. They have not eaten anything from the past 3 or 4 days. This boy entered into a shop and asked the owner for some food. The owner slapped that boy, abused him and in a fit of rage he took out the knife and killed that owner. This is murder. But there are some mitigating circumstances:-

  1. The boy does not have a past record of committing a crime.
  2. His family was in dire need of food.
  3. He committed that crime in a fit of rage and it was not a pre-planned murder.

These mitigating circumstances might not excuse the crime but might offer an explanation. So, the judges, in this case, Macchi Singh V. State of Punjab ruled that when you accord maximum weightage to these mitigating circumstances which speak in favour of an accused, even after that if you think that life imprisonment would be a travesty of justice, give Capital Punishment.

Justice Radhakrishan while delivering the judgment in Gurvail Singh V. State of Punjab[8] on 7th February 2013 said that these “rarest of the rare cases” does not depend upon the discretion of the judges, but upon the society’s abhorrence for certain crimes. So Supreme Court, in this case, ruled that we can award Capital Punishment only in those cases wherein the society as a whole thinks that this case is a rarest of rare case.

  1. Supreme Court View on Mandatory Death Penalty

In the case of Mithu V. State of Punjab[9], the Supreme Court declared Section 303 of IPC as unconstitutional.

Section 303[10] of IPC states, “Whoever, being under sentence of 1 (imprisonment for life), commits murder, shall be punished with death.” That means that if a person is already serving time for life imprisonment and thereafter commits an act of murder, in this case, the Supreme Court or the courts of this country have to award death sentence.

The Supreme Court, in this case, held that Section 303 of IPC violates Article 14[11] which is Right to Equality and Article 21[12] which is Right to Life provided under Part 3 of the Indian Constitution. The Supreme Court ruled that murder shall have to come only under Section 302 of the IPC in which the courts of this country will have the power to decide whether to award Capital Punishment or not.

  1. Avenues Available to a death-row Convict

Take an example, a person is awarded death sentence by a trial court, he will not be hanged unless and until the High Court also validates this Capital Punishment awarded by the trial court. He goes to the High Court and the High Court says that you are guilty and you will be hanged till death. He filed a petition before the Supreme Court of India. The Supreme Court of India also says that you are guilty and you will be hanged till death.

Then what are the avenues available to that person? He has an option to file another petition before the Supreme Court of India which is known as “Review Petition”. By this petition the accused used to beg before the Supreme Court to review its previous decision in which it provided Capital Punishment. The Supreme Court has an option to reverse its previous decision or to stand on its previous decision of awarding Capital punishment to that person. If the Supreme Court stands on its previous decision, then he has an option to file another review petition and this review petition is called “Curative Petition”. Then again Supreme Court has the choice to review its previous decision and change it, but if it does not change it then the accused has one more avenue available with him which is “Mercy Plea” filed before the President of India.

Under Article 72[13] of Indian Constitution, President has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of certain offense. If a death-row convict filed a Mercy Plea, he would be hanged only after it is rejected by the President of India. The Supreme Court has ruled that mercy petition is to be decided by the President of India on the advice of the Home Minister of India whose advice is binding on the President. But the President has an option either to accept the recommendation of Home Minister or to keep the Mercy petition pending which will result in a delay. There are some instances wherein a convict is on death row for 20 years because the President of India has neither accepted nor rejected the Mercy Petition of the convict. One question arises here is whether delay is a factor that can result in the commutation of death sentence to life imprisonment? There are 3 cases regarding this aspect:

  1. Vatheeswaran V. State of Tamil Nadu[14] – In this case, it was held that if there is a delay of 2 years, capital punishment will be commuted to life imprisonment.
  2. Sher Singh V. State of Punjab[15] – In this case, the court overruled the decision given in Vatheeswaran V. State of Tamil Nadu and corrected that if there is a delay of 2 years, the death sentence will not be commuted to life imprisonment automatically.
  3. Triveniben V. State of Gujarat[16] – In this case, the Supreme Court ruled that delay will form a factor and as a result of this death sentence will be commuted to life imprisonment
  4. Shatrughan Chauhan V. Union of India[17] – In this case, the Supreme Court ruled that if there is an unexplained delay on the part of the executive, then the death sentence will be commuted to life imprisonment

In the cases of Shatrughan Chauhan V. Union of India and Peoples Union for Democratic Rights V. Union of India[18], the Court ruled that when a mercy petition of a death-row convict is rejected, 14 days period would be given to that person (during these 14 days that person will not be hanged). These 14 days are given to the convict, so that he can settle his worldly affairs, meet his family and make peace with god. In simple terms, these 14 days are given so that the convict would be prepared mentally, psychologically and emotionally for the death sentence.

It was also held that if a person is suffering from a terminal disease, he shall not be hanged. In this case, his death sentence would be commuted to life imprisonment.

  1. Arguments in against of Capital Punishment

Capital Punishment is perfectly legal under Indian laws, but it runs counter to the core objectives of the criminal justice system and because of the following reasons it should be done away with:

  1. Arguments used in Beccaria’s treatise – In 1764, an Italian jurist Cesare Beccaria published his treatise, “An Essay on Crimes and Punishments”. In this Beccaria argued that abolition of Capital Punishment is crucial for the transition of the state from Barbarism to Civilise Refinement. In this treatise, Beccaria asked a question whether is it not absurd that laws that punish for homicide, should in order to punish homicide publically commit murder themselves? Beccaria’s arguments are based on 2 central arguments:
  • Beccaria argues that the objectives of the punishment are dual – to deter the future commission of the crimes and to reform the offender. Death Penalty does not achieve both the objectives of the punishments
  • The state does not have the right to snatch the life and liberty of an individual because it violates the social contract.

So basically, Cesare Beccaria is arguing that punishment for a crime should only be of that degree that it should deter others from committing that crime.

  1. The doctrine of Rarest of Rare Cases is absurd – The Supreme Court’s dictum in Bachan Singh V. State of Punjab resulted in the formation of the doctrine of “rarest of rare”. By simply looking one will find it as a sufficient safeguard to prevent arbitrariness, if the death sentence is awarded only in rarest of the rare case then there is no need of abolishing Capital Punishment from the statute books. But, if we look deeper into this concept of “rarest of rare cases”, then we will find that this doctrine is not as perfect as it looks. In the case of Mohinder Singh V. State of Punjab, Mohinder Singh raped his own daughter and for this act, he was awarded 12 years of imprisonment. In 2005 this man was released on parole and while on parole he killed both his wife and his daughter. For this specific act, the trial court awarded him the death penalty considering his act as rarest of rare. The High Court also confirmed this death sentence. But, a two-judge bench of Supreme Court comprising of Justice P. Sathasivam and Justice Fakkir Kalifulla ruled that this is not a rarest of rare case. In this case, the Supreme Court ruled that Mohinder Singh is not the gravest threat to the security of the people. A week later a two-judge bench of Supreme Court comprising of Justice P. Sathasivam and Justice Jagdish Singh Khehar declared the case of Sunder Sundararajan V. State Tr. Insp. of Police as rarest of rare case in which an individual had kidnapped a 7-year-old boy and after kidnapping he had killed that boy. The Supreme Court among many other things considered the plight of the parents of the 7-year-old boy who lost their only male child who would have carried forward the family’s lineage. So, by comparing these two cases we can conclude that this rarest of rare doctrine is not a sufficient ground on which you can say that the death sentence can be awarded rationally. This totally depends upon the way or the manner in which the judges interpret the facts of the case. Therefore, this doctrine of “rarest of rare cases” is arbitrary in nature and does not serve the purpose for which it was created. It is not at all a sufficient safeguard.
  2. Irrevocability – The most important argument against Capital Punishment is its irrevocability. Take for an example that a person has committed a crime and he is awarded life imprisonment by the judiciary, if after some time it is found that he has not committed that crime and he was wrongly imprisoned, he may well be released, but this thing will not work out if he had been already hanged. That means this death sentence is irrevocable and no one can revoke the sentence of death.

            In the case of Santosh Kumar Bariar V. State of Maharashtra[19], the Supreme Court rendered the previous 13 judgments per incuriam (in ignorance of the law) in which death sentence was awarded to the convicts. That means the Supreme Court accepted that the previous 13 judgments in which they awarded death sentence to the accused are given by wrongly reading the guidelines laid down by the Supreme Court in the Bachan Singh V. State of Punjab case. But, out of these 13 individuals, 2 were already been hanged. So this is fully against the principles of justice.

Gandhi’s India – India’s most prominent leader at the time of Independence, Mahatma Gandhi who is considered as the father of the nation also was not in the favor of Capital Punishment. His sons appealed to the government of India for not hanging the Nathuram Godse who had killed their father, only because their father was against Capital Punishment. Not only Gandhi but also B.R. Ambedkar opposed the provision of the death sentence.

No deterrence – One of the most used arguments in the favour of Capital Punishment which is used by its supporters is that Capital Punishment acts as deterrence and creates fear in the mind of the people because of which they avoid committing that act which attracts Capital Punishment. But, in case of the U.S. the states which have abolished Capital Punishment records far fewer homicide rates as compared to the states which still use Capital Punishment as a form of punishment. So, this case contradicts the argument provided by the supporters of Capital Punishment.

  1. Conclusion

Capital Punishment is totally against the principles of justice. By awarding the death penalty, the level of the state is also reduced to that of a killer or a terrorist who takes the life of someone. Capital Punishment does not provide an option of another chance to an individual which is necessary to achieve one of the most important objectives of the law that is to reform the offender. Around two-thirds of total death penalties in India are given to the people who belong to economically weaker sections of the society, Dalits or religious minorities which also raises suspicion.

Capital Punishment is usually given in the most highlighted cases or in the cases which affect the society on a large scale and because of this the sentiments and the emotions of all the people usually connect with the victim of that case. Take the example of Nirbhaya Case in which the whole nation was demanding death sentence for the convicts and in my opinion as well the judiciary did no wrong in awarding Capital Punishment to the convicts. But what if in a case, the court awarded the death penalty to the accused and after some time it is found that the person was not the real offender and till now he has already been hanged. It would be the biggest mistake of the judiciary because of which an innocent has been hanged and the real offender is living his life happily.

Capital Punishment is also very subjective in nature. It depends upon the discretion of the judge that what he thinks about the nature of the crime, whether it is so heinous and evil that it deserves the death penalty or not. So, it depends upon the mindset of the judge that what type of crimes according to him deserves Capital Punishment.

The supporters of Capital Punishment uses the argument of “Retribution” as their main weapon. They claim that Capital Punishment is valid on retributive grounds. But, does the state believe in Retribution? Does the state commit rape in response to rape? Does the state commit counter theft in response to a theft? The answer is NO. Therefore, the state does not believe in the theory of Retribution. So it cannot take the life of someone in response to homicide or murder as well.

Because of these sound reasons, Capital Punishment is a matter of debate in various states and countries. Many countries have abolished Capital Punishment completely and many are thinking about its abolition. In India also this matter is in controversy for a long time and certain jurists are changing their opinion from time to time. For India complete abolition of Capital Punishment is not so easy because of a great number of criminal and terrorist activities, but still there is a hope that judiciary will think about this matter seriously and will take some active steps in future.


[1] 1984 SCR (1) 1

[2] 1973 SCR (2) 541

[3] 1979 SCR (3) 78

[4] Constitution of India 1950, Article 21

[5] 1983 1 SCR 145

[6] 1983 SCR (3) 413

[7] Mukesh and Anr V. State for Nct of Delhi and Ors

[8] AIR 2013 SC 1177

[9] 1983 SCR (2) 690

[10]  The Indian Penal Code 1860, s 303

[11] Constitution of India 1950, Article 14

[12] Constitution of India 1950, Article 21

[13] Constitution of India 1950, Article 72

[14]  1983 SCR (2) 348

[15] 1983 SCR (2) 582

[16]  1989 SCR (1) 509

[17] (2014) 3 SCC 1

[18]  1983 SCR (1) 456

[19] 6 SCC 498

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