Jigyasa Fonia and Muskaan Vijay, both Second year students of National Law University, Odisha discusses the validity of Capital Punishment with reference to various judgments.


All punishment forms on the same postulation that on committing an offence, there will be retribution—the two prime causes for imposing the retribution on the offenders. Firstly, if a person has committed an offence, then the person should face the consequences of it, and secondly, punishing offenders will stop others from committing an offence. Capital punishment also lies in similar postulations like other punishments. Capital punishment, which is also known as the death penalty, means the killing of an offender who is pronounced guilty for a criminal offence by the court and is condemned to death and is considered to be the most brutal form of punishment. This type of retribution is given for an utterly severe and abhorrent crime committed against mankind.

It was in 1931 when the abolishment of the death penalty was suggested but was dismissed immediately. However, India, at the time of independence, retained the Penal Code, 1861, which favoured the death penalty for an offence like murder, but even after that, bills were again presented to abolish, but none of them was approved. India is recognized as a democratic country that assures civil rights to its citizenries, but the debate concerning capital punishment has gathered much more attention recently. The growing civil rights movement in India raised questions on capital punishment of being unethical.

The apex court in Bacchan Singh V. State of Punjab asserted that capital punishment would only be given in a vicious murder case or in the most odious offence where the doctrine of rarest of a rare case can be applied too. In Rajendra Prasad V. State of Punjab, the court held that capital punishment could not be justified until it is proved that the convict is minacious to the world. In this case, the judge also asserted that capital punishment should be maintained in white-collar crimes. 


Article 21 talks about the right to life and personal liberty and are mentioned in the Indian Constitution. It has been rightfully created to mean if there is a process that is just and legal, then the state by formulating a law can deny a person of his life. Prisoners also have a right to life under Article 21 and have a privilege to defend, and if the prisoner cannot afford a lawyer, then the state has to appoint one. Therefore, it is significant, in keeping with their fundamental rights, that the execution of the sentence awarded to them is fast and simple and after permitting them to employ all legal resources. The Apex Court asserted the constitutional validity of capital punishment in cases like Jagmohan Singh V. State of UP, Rajendra Prasad, and Bacchan Singh, as mentioned above. Capital punishment can be given to the convicts but only in the rarest of a rare case, and the court is supposed to give specific explanations for sending convicts to the gallows. A convict can, however, file a petition of mercy in the Apex Court after High Court confirms his death sentence. Article 72 empowers the President, and Article 161 empowers the Governor to grant forgiveness, cancel or postpone the punishment, and these are also known as the clemency powers.


In the judgment of Bacchan Singh V. State of Punjab, the apex court laid down the postulates regarding what would comprise the ‘rarest of rare.’ Certain comprehensive explanatory principles were framed by the apex court, and they stated that these should be specified when the decision to give the retribution of life imprisonment indisputably foreclosed. It is solely dependent on the court’s choice to reach this inference. Three postulates were laid down by the Supreme Court- assessing, aggravating and alleviating situations. To determine whether justice will be not served if a punishment less than capital punishment is given, a balance sheet of alleviating and aggravating situations in a specific event needs to be drawn. The apex court held two major questions. Firstly, is there something unusual about the offence which renders the retribution of imprisonment for life deficient and calls for a death sentence? Secondly, are there circumstances of the crime such that there is no other option but to inflict capital punishment even after according maximal weightage to the alleviating situations which favor the criminals? The courts, therefore, have to decide on the basis of these two points that the nature of the crime was so heinous and grave that any other punishment given would not suffice to the unusual nature of the crime committed and that capital punishment is the last resort.


In a time where most of the countries are undergoing the process of abolishing the death penalty or have already done so, the other side of the same must also be looked upon. In India, the death penalty is given in uncommon cases, but this also brings us to be deliberate and opine that can this punishment be just and fair? The first point put forth is that when the apex court decides to give this punishment in the rarest of the rare cases, it does not violate or comes in conflict with Article 21. This was stated in the precedent of Jagmohan Singh v State of UP, where it was decided that the death penalty does not violate Article 21.  Further, in the case of Deena v UOI, it was held that hanging the prisoner is not a barbaric practice and thus did not breach Article 21.

Under Article 21, the state has the right to take away the life of any person in the name of law and society at large. This was discussed in the case of Mithu Etc v State of Punjab, where the apex court declared Section 303 of IPC to be unlawful as it violates Article 14 and 21, but the death penalty still remains valid in the special circumstances. Lastly, in the case of Bacchan Singh, the majority bench decided that the death penalty did not contradict Article 21 and was termed fair. 

Secondly, even though the death penalty violates the civil rights of the prisoners, it is advantageous for the society. While dealing with punishments, there are various theories that come into the light, one of these being the deterrent theory that stresses on the security of the citizens in the society by eradicating the accused. As per this concept, there are some purposes of retribution that would deter offenders from violating the law. Thus, capital punishment would be an example of the same. Similarly, under Article 21, pronouncing capital punishment shall be just and fair when the public at large is at stake, and eradicating the criminals would be fair on the part of the guardians of the law.

Lastly, the judiciary, while granting capital punishment uses its discretionary powers in accordance with the public at large and was laid in the case of Macchi Singh and Ors v State of Punjab, which provided guidelines that need to be fulfilled while awarding death penalty

The basic structure of our constitution keeps the people and their welfare at its heart, and when any heinous crime like murder or an act of terrorism or any grave crime is committed that affects the society, it must be punished by the guardians of the law. In India, where human rights are guaranteed, our constitution also provides for the death penalty for crimes that affect the public at large. The deterrent theory creates a fear in the minds of the people and therefore brings down the crime rate. Thus, it can be said that the death penalty in rare cases is justified and fair, keeping the welfare of the society at large.

Conclusion and Recommendations:

The authors would conclude by providing some recommendations when capital punishment is to be awarded. Firstly, proper laws must be laid as to what grounds are required for the sentencing death penalty as it creates a lot of confusion. Secondly, such a decision must be taken with care, and if the jurist feels that the accused has committed an unusual crime but will not harm the society in the near future must not be awarded the death penalty. Thirdly, there should be no bar on the age to grant death sentence because if a juvenile commits such a brutal crime suggests that he knew the nature of the crime. Lastly, the decision to award capital punishment must be taken after analyzing all the aspects by an experienced panel of jurists.

Jigyasa Fonia and Muskaan Vijay are Second year students from National Law University, Odisha.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.


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