Authored By: TANISHKA RAJPUT
ASIAN LAW COLLEGE
Introduction
Capital punishment, or the death penalty, remains one of the most controversial legal and moral issues in contemporary India. It pits the retributive demands of justice against the values of human rights and reformative justice. While the Indian Constitution allows for the death penalty in “rarest of rare” cases, debates around its efficacy, morality, and potential for miscarriage of justice continue to intensify.
This article examines the constitutional position of capital punishment in India, key judicial pronouncements, international perspectives, and the arguments for and against its continued existence.
Constitutional and Statutory Framework
The Constitution of India does not prohibit the death penalty. In fact, Article 21—which guarantees the right to life—permits deprivation of life by procedure established by law. Thus, any law that provides for capital punishment, if validly enacted and justly applied, passes constitutional muster.
Statutory Provisions Allowing Death Penalty
Some of the major laws prescribing the death penalty include:
- Indian Penal Code, 1860
- Section 302 – Murder
- Section 121 – Waging war against the state
- Section 376A – Rape resulting in death or persistent vegetative state
- Narcotic Drugs and Psychotropic Substances Act, 1985
- Protection of Children from Sexual Offences (POCSO) Act, 2012
Judicial Interpretation and Safeguards
1. Jagmohan Singh v. State of Uttar Pradesh (1973)
The Supreme Court upheld the constitutional validity of the death penalty, ruling that Article 21 allows deprivation of life if it follows a fair, just, and reasonable procedure.
2. Rajendra Prasad v. State of U.P. (1979)
Justice Krishna Iyer expressed moral skepticism about capital punishment and emphasized a reformative over retributive approach, but the court did not strike it down.
3. Bachan Singh v. State of Punjab (1980)
This landmark judgment upheld the death penalty but laid down the “rarest of rare” doctrine, stating that capital punishment should only be imposed when life imprisonment is “unquestionably foreclosed.”
Key Principle: Death penalty must be an exception, not the rule. The Court must balance aggravating and mitigating circumstances.
4. Machhi Singh v. State of Punjab (1983)
The Court elaborated on the “rarest of rare” test, laying down five categories such as the manner of commission of the crime, motive, and the magnitude of the offence.
5. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009)
The Court criticized inconsistent application of the rarest of rare doctrine and highlighted the risk of arbitrariness and prejudice.
6. Shatrughan Chauhan v. Union of India (2014)
The Supreme Court commuted several death sentences due to mental illness, delays in execution, and lack of procedural fairness, reinforcing procedural safeguards.
Presidential Clemency and Judicial Review
Under Article 72 and Article 161, the President and Governors have the power to grant pardons. However, in Kehar Singh v. Union of India (1989), the Court held that executive clemency is not above judicial review, especially if exercised arbitrarily or with mala fide intent.
Arguments in Favour of Capital Punishment
- Deterrence: Advocates argue that the death penalty deters heinous crimes and upholds societal order.
- Retributive Justice: For certain crimes, society demands proportionate punishment.
- Victim Rights: Families of victims often find closure when justice is served through the maximum penalty.
- National Security: Used in terrorism or waging war cases to protect the nation (e.g., Afzal Guru, Ajmal Kasab).
Arguments Against Capital Punishment
- Possibility of Miscarriage of Justice
- Studies show that socio-economically disadvantaged groups are overrepresented on death row.
- Wrongful convictions can result in irreversible harm.
- Arbitrariness in Application
- The Death Penalty India Report (2016) by National Law University, Delhi, documented arbitrary sentencing and lack of legal representation.
- Global Human Rights Norms
- India is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which advocates for the abolition of the death penalty.
- No Conclusive Evidence of Deterrence
- The Law Commission of India, in its 262nd Report (2015), concluded that there is no empirical proof that capital punishment deters crime more effectively than life imprisonment.
- Moral and Ethical Considerations
- Many philosophers and human rights activists argue that taking a life cannot be justified under any moral system.
Comparative International Perspective
- Abolitionist Countries: Over 140 countries, including Canada, Australia, and almost all of Europe, have abolished capital punishment either in law or practice.
- Retentionist Countries: India, the U.S., China, and a few others continue to retain it, albeit with decreasing frequency.
- The UN General Assembly has repeatedly passed resolutions calling for a moratorium on the use of the death penalty, which India has voted against.
Recent Developments
- In 2018, the Criminal Law (Amendment) Act introduced the death penalty for rape of girls below 12 years.
- The Nirbhaya case (2012) convicts were hanged in 2020 after extensive public and legal scrutiny, reigniting the debate on deterrence and justice.
Conclusion
The death penalty remains constitutionally valid in India, but its application is increasingly circumscribed by judicial safeguards and human rights concerns. The rarest of rare doctrine, while noble in principle, has shown inconsistency in practice. As India continues to evolve as a constitutional democracy, a wider public and legal dialogue is essential to determine whether capital punishment truly serves the ends of justice or merely satisfies retributive instincts.
Given global trends, institutional biases, and risks of wrongful execution, the time may be ripe for India to seriously consider abolishing the death penalty, except perhaps for terrorism and crimes threatening national security.
Reference(S):
Case Laws
- Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947
- Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916
- Bachan Singh v. State of Punjab, (1980) 2 SCC 684
- Machhi Singh v. State of Punjab, (1983) 3 SCC 470
- Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498
- Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1
- Kehar Singh v. Union of India, (1989) 1 SCC 204
Statutory Sources
- Indian Penal Code, 1860
- Criminal Procedure Code, 1973
- NDPS Act, 1985
- POCSO Act, 2012
- Constitution of India, Articles 21, 72, 161
Reports
- Law Commission of India, 262nd Report on Death Penalty (2015)
- Death Penalty India Report, National Law University, Delhi (2016)
