Capital Punishment


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The state-sanctioned death of a person as a punishment for a crime is known as capital punishment. Capital Punishment[2], often known as the death sentence, has been a component of our legal system since the British Era. In India, it is still a legal method of punishment for offences. While 109 nations have abolished death penalty, 55 countries continue to practise it. A few countries do not practise capital punishment yet have capital punishment provisions in their legal structure. For some crimes, countries such as India, Pakistan, China, the United States, and Japan have preserved capital punishment.

The death penalty or capital punishment was the punishment for murder in India under the Code of Criminal Procedure of 1898. Even before the courts could rule on the death penalty’s legality, the 35th Law Commission declared in its 1967 report that the death penalty should be kept because it works as a deterrent and instils fear in offenders.

About Capital Punishment[3]:-

The constitutionality of the death penalty has been questioned on several occasions, and there have been some revisions in the idea of the death penalty since the re-enactment of the Code of Civil Procedure in 1973. A court must offer grounds for not imposing the death sentence under the 1898 Act, but under the 1973 Act, specific reasons must be presented for giving the death penalty rather than life imprisonment under section 354(3).

In the case of Jagmohan Singh vs. The State of Uttar Pradesh[4], the constitutional legitimacy of death penalty was challenged for the first time. This case was determined prior to the introduction of the Code of Criminal Procedure, 1973. According to the petition, the death sentence breaches Articles 14, 19, and 21 of the Indian constitution because no method is prescribed. The processes created under the Act, it was argued, were limited to determining guilt and not to imposing a death sentence.

The Supreme Court ruled that the decision to impose a death sentence is made in line with legal processes, and that the judge chooses between the death penalty and life imprisonment based on the nature of the crime, circumstances, and facts presented in evidence during the case’s trial. The Indian Constitution’s Articles 14, 19, and 21 were not violated, according to a five-judge bench of the Supreme Court.

Following this case, the Code of Criminal Procedure was re-enacted in 1973, with significant modifications to processes involving the application of capital sentence. Justice Krishna Iyer decided in Rajendra Prasad Vs. The State of Uttar Pradesh[5] that capital punishment is not justifiable unless the defendant poses a threat to society.

Giving judges freedom to choose between capital sentence and life imprisonment for exceptional reasons, he claimed, would be a violation of Article 14 of the constitution. Justice Sen, who sat next to him, disagreed with him on several grounds, but agreed that it violated Indian constitutional requirements.

However, in Bachan Singh Vs. The State of Punjab[6], the Supreme Court overruled the judgement in Rajendra Prasad Vs. The State of Uttar Pradesh[7] by a 4:1 majority, holding that the death penalty is an alternative punishment for murder and does not violate any of the constitution’s fundamental rights. The notion of the rarest of rare was proposed in this case.

The ‘rarest of rare’ theory established in Bachan Singh compels judges to weigh aggravating and mitigating factors when deciding whether a death sentence is justified.

The Supreme Court, in Machi Singh Vs. the State of Punjab[8], re-established and re-emphasized the principles of sentencing policy promulgated in Bachan Singh’s case.

Following Bachan Singh’s case, landmark cases established the following conditions/guidelines:

1. Only in the most egregious of circumstances should the death sentence be used. Section 121 of the IPC, Section 302 of the IPC, and other extremely unusual situations are only a few examples.

2. Judges should examine both aggravating and mitigating factors.

3. The nature and seriousness of the offence, as well as the criminal’s possibilities of rehabilitation, should all be considered.

The Supreme Court ruled in Santosh Kumar Bariyar vs. State of Maharashtra[9] in 2009 that life imprisonment is the norm and death punishment is an exception.

India is a signatory to the International Covenants on Civil and Political Rights, which were signed in 1966 and ratified in 1979. The Covenant’s Article 6 acknowledges an individual’s “inherent right to life” and demands that it be safeguarded by legislation. It is a “superior right” to which no exceptions may be made and which must be construed broadly. Article 6 does not outright outlaw the death sentence, but it does limit its use to the “most heinous offences.”

The UN Human Rights Committee sees the Article as “strongly implying that abolition is desired” and considers any progress toward the elimination of the death penalty to be progress toward this right. This covenant has two optional protocols connected to it, the second of which binds members to abolishing the death sentence inside their boundaries. India is not a signatory to the second optional protocol and has made no promise to eliminate the death penalty at the international level.

All issues regarding the death sentence being cruel, contradictory to human rights norms, and violative of Articles 14, 19, and 21 are, in my opinion, not to be examined at first; the seriousness of the offence is to be seen first, and are there any prospects of reformation? Has the individual who has been convicted been given a fair chance?

Article 21[10] of Constitution states that:-

Article 21 of India’s constitution provides that “no individual shall be deprived of his life or personal liberty unless in accordance with legal procedures.”

“No individual should be deprived of his life or personal liberty unless in conformity with legal processes,” according to Article 21 of India’s constitution.

Article 21 says unequivocally that no one’s life would be taken from them unless they follow the legal procedure. The death penalty is not imposed arbitrarily; it is imposed when due process has been followed, and the condemned individual has recourse even after the death penalty has been affirmed by the Supreme Court.

Even if the review petition is dismissed, the convicted individual has the right to submit a curative plea with the President and Governor of the state, according to a notion developed by the Supreme Court in Rupak Ashok Hurra vs Ashok Hurra and others[11], 2002. In my opinion, the death sentence should be reserved for the most heinous of crimes, and it will also serve as a deterrent.




[4] A.I.R. 1973, S.C 947

[5] AIR 1979 SC 918

[6] 1980 SC 898

[7] AIR 1979 SC 918

[8] 1983 AIR SC 957



[11] AIR 1999 SC 2870

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