CAPITAL PUNISHMENT IN INDIA-ITS

CONSTITUTIONAL VALIDITY
A Dissertation to be submitted in partial fulfillment of
the requirement for the award of degree of
Master of Laws
In
Institute of legal studies
By
Aishwarya yadav
LL.M (CSL)
Semester II
Roll no. 202410301010099
Under the Guidance of
PRIYA MISHRA
Assistant professor (law)
Institute of Legal Studies (SRUM)

SHRI RAMSWAROOP
MEMORIAL UNIVERSITY
Lucknow- Deva Road, Uttar Pradesh
Session: 2024-2025

1
 TO WHOMSOEVER IT MAY CONCERN

This is to certify that Aishwarya Yadav, LL.M. (CSL) has completed

his dissertation, topic – “Capital punishment in India – its
constitutional validity”, under my supervision, for the award of degree
of Master of Laws at Shri Ramswaroop Memorial University.
Dissertation supervision will not be responsible for any type of
plagiarism, typological error or any factual legal infirmities. He has
completed all formalities as required under the ordinance and the
dissertation is forwarded for evaluation.

PRIYA MISHRA

Assistant professor (law)

Institute of Legal Studies (SRUM)

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 DECLARATION

I hereby declare that the dissertation entitled – “CAPITAL

PUNISHMENT IN INDIA- ITS CONSTITUTIONAL VALIDITY”,
is submitted by me in the fulfillment of the requirements for the award of
the degree of – Master of Laws of Shri Ramswaroop Memorial
University, is a record of my own work carried under the supervision of
Mrs. Priya Mishra, Institute of Legal Studies. To the best of my
knowledge this Dissertation has been submitted.

AISHWARYA YADAV

LL.M. (CSL)

Semester IInd

Roll no. 202410301010099

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 ACKNOWLEDGEMENT

I feel highly elated to work on the topic “capital punishment in India –

its constitutional validity”.

The practical realization of this project has obligated the assistance of

many persons. I express my deepest regard and gratitude to Mrs. priya
Mishra, for her supervision and crucial contribution. His constant
inspiration and invaluable guidance have been of immense help in
understanding and carrying out the nuances of the dissertation.

She has been guiding me from the very first day guiding me throughout
the research process, pointing out my mistakes and giving me
extraordinary experience and supporting me throughout the work. I have
learned a lot from her selfless and valuable guidance for students.

I would like to thank my family and friend without whose support and
encouragement, this project would not have been a reality.

I take this opportunity to also thank the University and for providing
extensive database resources in the library and through the internet.

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 LITERATURE REVIEW
As times have changed 80% of the references used were available online
and didn’t need to refer too many books. The researcher in order to
understand, examine and broaden the perspective on the title disciplines
referred to some publications of national and international authors. Some
of the notable ones are enumerated as follows:

 Arunjeev Singh Walia, “treading the path toward abolition of the

death penalty”, Arunjeev Singh and Colin Gonsalves, can society
escape the noose?, The human Rights Law Network, India, June
2005:The Article by the author helped me in understanding that it
is the poor and underprivileged, who are easy target of death
penalty. Rich can easily go free using his power, but it is poor, who
suffers the most.
 Asim Sarode, “Journey toward Humanity”’ Arunjeev Singh and
Colin Gonsalves, can society escape the noose? The human Rights
Law Network, India, June2005: the article gives a list of people
executed from 1950 to 1996.
 Kelkar, Criminal Procedure, 6th edition, Eastern Book Company,
Lucknow, 2019: The author has created a legal classic which
studies in a logical manner the basic principle of the criminal
procedure in India. How the author treats the topic chapter by
chapter with the recommendations of judicial cases and writings
allows one to study the topic of criminal procedure in a sincere and
understandable way. Here, the author has tried his best to update
the criminal procedure with all the current and occurrences since
its publication including the 2018 amendment.
 Law Commission of India, 187 Report on Modes of Execution of
Death Sentence and Incidental Matters, 2001: The aforesaid report
deals with different modes of execution in Indian and procedural
ineffectiveness of appeal system in India. The report elucidates
lacuna of appeal system in India and recommends that provision of
automatic right to appeal shall be brought in Criminal System.
 Blackshield, “Capital punishment in India”, Journal of Indian Law
Institute, 21 JILI 137, 1979: The article discussed arbitrariness in

5
 imposition of death penalty is considerably accentuated by the
fragmentation of Bench Structure of our Courts where Benches are
inevitably formed with different permutation and combination from
time to time and cases relating to the offences of murder come up
before one bench, some times before another bench and so on.
 Dr. Muralidhar, “India’s Travails with Death Penalty”’ Journal of
Indian Law Institute, 40 JLI (1998): The author discusses
uncertainty of mercy jurisdiction and mental trauma and torture
caused to prisoner because of this uncertainty.
 Dr. Raizada, “ Trends in sentencing; a study of important penal
pronouncement of High Court and Supreme Court,” Journal of
India Law Institution, JILI 137 1978: The author has indentified
large number of High Court and Supreme Court cases where
inconsistency in award of punishment have been made by the
Judges.
 K. Gururaja Chari, Supreme Court Rules, Practice and Procedure,
2005 edition, Wadhwa and company, Allahabad, 2005: The book
explains the different rules and practices of the supreme court, pre
and post constitution.
 P.K Das, Supreme court on Rarest of Rare Case,2011 edition,
Universal law Publishing co, NEW Delhi, 2011: The aforesaid
book helped me in understanding the rarest of rare guideline and
judicial discretion in applying rarest of rare guidelines.
 Report no. 262nd The death penalty by law Commission of India :
Shankar kisanrao khade v. State of Maharashtra 1: In this case
the Supreme Court of India expressed its concern with the lack of a
coherent and consistent purpose and basic for awarding death and
granting clemency. Due to this judgment 262nd report of law
commission came into picture.
 Batra and Bikram Jeet, “The Lethal lottery: The death penlty in
India”, Amnesty international and People’s Union for Civil
Liberties, Tamil Nadu and Pondicherry, May 2008: The report is a
complete data of judicial discretion and procedural ineffectiveness
relating to death penalty. The report further expounds the need to
abolish death penalty with the help of guideline laid down by
International Bodies.

1
(2013) 5 SCC 546

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 Annual Statics Report 2020 is the 5th edition of the work conducted
under Project 39A. This project is of National Law University
Delhi and they are doing various searchers and serves related to the
Death Penalty.
 Manohar and Chaitley, The Air Manual, 6th edition, All India
Reporter Pvt. Ltd, Nagpur: The book is an encyclopedia of Cases
on Code of Criminal Procedure, 1973; the aforesaid book helped
me to make my research easier and faster.

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 STATEMENT OF THE PROBLEM

The researcher has the researched the various field of problem relating to
the judicial discretion in giving death sentence-

1. The judges have been awarding Death Penalty or refusing to award

it according to their own scale of value and social philosophy and it
is not possible to discern any consistent approach to the problem in
the judicial decision. Some Judges are readily inclined to sustain
death penalty, others are similarly disinclined and the remaining
wavers from cases to case. If a case come before one bench
consisting of judges who believe in social efficacy of death
sentence, the death sentence in all probability will be confirmed but
the same case goes before another bench consisting of judges who
are morally and ethically against the death penalty, the death
sentence will be commuted to life imprisonment.
2. There have been discretionary standards set up by the judges of the
Supreme Court. While in one case age could be a mitigating factor
sufficient to commute, in another it could be dismissed as a
mitigating factors. While in one case gruesome nature of crime
could be sufficient for the court to ignore the mitigating factor, but
in another same is not considered as mitigating.
3. If we study the judicial decisions given by the court over a number
of years, we finds judges resorting to wide variety of factor in
justification or confirmation or communication of death sentence
and these factors when analysed fail to reveal any logical pattern.
This is inevitable consequences of the failure of the legislature to
supply broad standards of guidelines dealing with “rarest of rare
case “which would structure and consider revising the discretion of
the court in the matter of imposition of death penalty.
4. There has always been a question of law that whether granting
death penalty is against the fundamental rights of an individual that
our constitution provide, as article 21 and 19 are abridged if death
penalty is imposed. Also, sexual offence, one of the most heinous
crimes that women and children face in our society is increasing
with the time. This study also makes check that whether granting

8
 death penalty acts as deterrent for this crime and also provides
justice to the society.

OBJECTIVE OF THE STUDY

The present research work has been undertaken by the researcher to find
answer to the following questions as well as to answer the hypotheses
mentioned above:

1. To suggest some steps and change in the present legal mechanism

related to the problem mentioned in this research paper
2. To analyse the constitutionality of the death penalty
3. To examine the various report of the Law Commission of India
4. To analyse the discretion of the judges in dealing with the death
penalty.

To examine the applicability of the rarest of rare doctrine. To study the

case laws and to examine the contradiction in them

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 LIST OF CASES

S. No. Name of Case Citation

1. Shankar Kisanrao Khade v. State of (2013)5 SCC

Maharashtra 546
2 Bachan Singh V. State of Punjab, AIR1980

3 Furman V. Georgia 408.U.S (1972)

4 Devendar Pal Singh Bhullar V. State (NCT) of JT 2002 10

Delhi 377/(2013) 6
SCC 195
5 Krishan Mochi V. State of Bihar JT 2002 4 186/
(2002) 6 SCC 81
6 Machhi Singh V. State of Punjab (1983) 3 SCC
470
7 Maneka Gandhi V. Union of India and ors. (1978) 1 SCC
248
8 Dhananjoy Chatterjee V. State of west Bengal 1994

9 Ravji@Ram Chandra V. State of Rajasthan AIR 1996 SC

787
10 Jagamohan Singh V. the State of U.P 1973 SCR (2)
541
11 Swamy Shraddananda@Murali Monahar V. 2008 AIR SCW
State of Karnataka 5110
12 Haru Ghosh V. State of West Bengal AIR 2009 SC

13 State of U.P V. Sanjay Kumar Air 2013 SC

14 Gurvail Singh @ Gala And Anr V. State of AIR 2013 SC

Punjab
15 Chhannula Verma V. State of Chhattisgarh AIR 2019 SC
243

10
16 Vodafone International Holdings B.V V. Union AIR 2012
of India &Anr

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 LIST OF ABBREVIATIONS

S. NO. Abbreviation Full Form

1 AIHC All India High Court Cases

2 AIR All India Reporter

3 All Allahabad High Court

4 Anr Another

5 App Appeal

6 Art. Article

7 CBI Central Investigation Bureau

8 CJ Chief Justice

9 C.P.C Code of Civil procedure, 1980

10 Crl. Criminal

11 Cri LJ Criminal Law Journal

12 Cr.P.C Code of Criminal Procedure,1973

13 DLT Delhi Law Times

14 Eg Example Gratia (For Example)

15 FIR First Information Report

16 i.e. Id est. (that is)

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17 Ibid In the same place

18 Id On the same page

19 ALL Indian Law Reports

20 IPC Indian Penal Code, 1860

21 J. Justice

22 JJ. Justices

23 JT Judgment Today

24 LR Law Reports

25 Misc. Miscellaneous

26 POCSO Act Prevention of children from Sexual

Offences Act,2012
27 PIL Public Interest Litigation

28 Viz Namely

29 Vol Volume

30 WP Writ Petition

31 BNS Bharatiya Nyaya Sanhita 2023

32 BNSS Bharatiya Nagarik Suraksha Sanhita 2023

33 SC Supreme Court

34 Ors. Other

35 SCC Supreme Court Cases

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36 SIT Special Investigation Team

37 Supp. Supplementary

38 U.P Uttar Pradesh

39 V. Versus

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 TABLE OF CONTENT

[Link]. TITLE PAGE

NO.
1 Certificate 2

2 Declaration 3

3 Acknowledgement 4

4 Literature Review 5-7

5 Statement of the Problem 8

6 Objective of the Study 9

7 List of Cases 10-11

8 List of Abbreviations 12-14

9 Table of Content 15-16

10 Preface 17

CHAPTER 1 INTRODUCTION 18-26

1.1 Introduction 18-22

1.1.1 Legal Provisions under Bharatiya Nyaya 22-25

Sanhita 2023
1.1.2 Other Legislations that provide for Death 25-26
Penalty
CHAPTER 2 MEANING OF THE TERM ‘CAPITAL 27-35
PUNISHMENT ‘& ITS THEORIES
2.1 Meaning of capital punishment 27-31

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 2.2 Theories of Punishment 32

2.2.1 Nature of punishment 32-33

2.2.2 Purpose of punishment 33-34

2.2.4 Most appropriate theory for the current 34-35

climate
CHAPTER 3 CONSTITUTIONAL VALIDITY OF 36-42
CAPITAL PUNISHMENT IN INDIA
3.1 Introduction 36-

3.2 Legal provisions governing capital 36-37

punishment in India
3.3 Judicial interpretations of the death penalty 37-39

3.4 Constitutional Challenges to Capital 39-40

Punishment
3.5 International Perspective & India’s Stance 40-41

3.6 Current Status & Execution Trends in 41

India
3.7 Conclusion: is capital punishment 41-42
constitutionally valid?
CHAPTER 4 CONCLUSION AND 43-45
RECOMMENATIONS
3.1 Conclusion 43-44

3.2 Recommendations 44-45

PREFACE

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The subject research work has been divided in four major chapters and
further divided into various sub topic and sub to sub topics. The first
chapter introduces the subject matter and gives and overview about the
topic. It talks about the history of the capital punishment and the capital
punishment in the ancient times, what type of punishment give to the
wrongdoer or the offender and also look about the provisions under the
IPC, which is replaced by the BNS in the 2023. Also talk about the other
legislations that provide for death penalty.

The second chapter of this work talks about the meaning the term “capital
punishment” and its theories. The theories of punishment divided in sub
topic that is nature of punishment and purpose of punishment. Present
time which is most appropriate punishment theory.

The third chapter of research work deals with constitutional validity of

capital punishment in India. It’s divided into sub topic that is talk about
the constitutionally challenges and judicial interpretations. And talks
about what the constitutional validity of capital punishment in the India

The fourth chapter of the dissertation is this dissertation gives conclusion

of the research work and certain valuable recommendations.

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 CHAPTER 1
INTRODUCTION TO CAPITAL
PUNISHMENT

1.1 INTRODUCTION
 The history of Capital Punishment is as old as that of mankind.
In the western world, the first example seems to be “Moses’
Law” which increases death for condemnation. 1170 BC
Murder was a capital crime between Egyptians and Greeks.
 In India, the criminal is being punished with slaughter in the
Indian epics, i.e. Mahabharata and Ramayana, which dissects a
little bit.
 In the modern world, capital crimes further covered drug
trafficking, kidnapping the aeroplanes, bribes, etc., some
Muslim countries like Saudi Arabia also want to add “artificial
insemination” to the list of capital crimes.

Capital Punishment, Death Penalty, or execution state is sentence to death

on a person, which is a punishment for a crime. Criminals that may result
in Death Penalty are known as a capital crimes or capital offences.

Death penalty means death sentence. It is the most severe or extreme

form of a sentence. The punishment is extreme because it ends a lot of
existence of human life. It is an irreversible punishment, only a terrible,
frightening, antisocial, serious and disgusting crime against humanity and
society2

Although the definition and boundary of these heinous crimes varies from
the country to the country and time from time to time, the implication of
capital punishment is always a death sentence. The death sentence has
been given as a timely sentence. Abolitionists and retentionists have
argued over the years, but there has been no consensus regarding the
debate on retention and elimination. 108 countries have abolished the
death penalty for all crimes, 07 countries have abolished the death penalty
2

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for ordinary crimes, as the abolitionist is 29 in behaviors and 54 countries
have maintained it, and the total number of total numbers in law or
practice is 142.

However, India chose to retain death penalty rather than abolishing it3

The purpose of has always been to provide a protection and protect

criminal and anti -social elements. The history of capital punishment in
India is shown during the medieval period which was provoked for the
elimination of criminals. In the 19th century, however, public opinion
was not in favor of the use of capital punishment for crimes other than
heinous crime. The irreversible nature of the death penalty gave rise to
many complications, which attracts the attention of the society.

Capital sentence is to be implemented in cases of brutal murder and most

serious crimes against the state, which is about the retention or idea of
capital punishment, the debate is highlighting the world among social
workers, legal reformers, legal reformers, judges, jurists, lawyers and
administrators. Criminologist and Penologist have attached themselves
into intensive study and research to find out some perennials on capital
punishment.

Does the death penalty fulfill the objectives of punishment? Will the
complete elimination of criminals end crime from society? Whether all
possible or complete elimination of crime from imaginative society?

Human civilization developed and shown reactions to criminal activities

over time. The attitude of our society towards criminals is extreme
because they consider criminals as a demon or hunting animal or as a
helpless victim of cruelty. Criminals are a bad and dangerous kind of
people about our society and for whom enough and quick punishment
should be provoked to protect the society from causing further damage. It
has been established that punishment, as a rule, depends on the guilty
capacity of a criminal act and the threat to the society.

There are various schools of criminal science that advocate capital

punishment and see that it is only appropriate in extreme cases that
include high levels of conviction that causes a lot of threat to society.

3
Amnesty International, Report on Death Sentences and Executions 2020

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During the British rule, the Privy Council and the wild courts were
generous in fulfilling the death penalty, although in the present time; The
courts resort to their punishment only in rare cases of rare cases. The
current situation about the death sentence, as any system of law can
assume with the excuse of being considered decent, is to use it as possible
in "rare cases of rare cases". The book of law in India has the best legal
status of death penalty, but rarely uses it. However, these guidelines are
not strictly performed, as judges cause arbitrariness in dealing with cases
of death penalty. Finally, it is the conscience of the judges who decide,
does a case come under the purview of "rare of rare". India has reached
the platform where every arbitrary decision given by the honorable judges
is criticized and analyzed by international bodies. This further compares
with the developed law of countries like the United States, where Furman
V. In Georgia4, the Supreme Court admitted whether the death sentence
violated the eighth amendment i.e. the ban on cruel and unusual
punishment.

Further, India violates the guidelines set by various international bodies,

which were established to curb the use of death penalty i.e. in 1966, for
the first time, for the first time, nations of the world adopted an
international conference, seeking to regulate the use of death penalty.
Many more conferences were then added to the elimination of the death
penalty.

In 1976, the United Nations adopted the international covenant on the

Civil and Political Right (ICCPR), which in Article 6, recognizes the
death penalty as an exception to the right to life. In 1989, the United
Nations General Assembly adopted the second alternative protocol state
that "the abolition of death penalty contributes to an increase in human
dignity and progressive development of human rights."

However, in India, judicial discretion almost imposes to follow the

guidelines prescribed by various international bodies. Judicial discretion
related to death penalty can be detected by the development of "rare of
rare" test in the landmark judgment of the Bachan Singh case.5

4
Furman V. Georgia,408 U.S 1972, the death penalty is violation of right to life. It is cruel, inhuman
and degrading. It is also severe affront to human dignity.”
5
(1980)2 SCC

20
In Justice Bhagwati in his dissenting opinion in the case of Bachan Singh
case, "It was not only a death sentence against national and international
norms and therefore unconstitutional, he also stated that the process of
death sentence in practice made a reference to arbitrariness and that it was
unsafe to give a complete evidence for any kind of justice." Their
conclusion will be allowed to be killed or lived, their conclusion will
depend on their approach , their prediction and their perceptions, their
value system and their social philosophy and the norms developing of
their social philosophy and decency and their reaction to the newly
developed concept and ideas.

The above observations made by Justice Bhagwati show scope of judicial

discretion in the grant of the death penalty. The best way to curb this
practice is a strong and effective punishment policy. However, the
criminal justice system in India fails itself by not providing effective
provisions to deal with the problem of the practice of this discretion. A
major lack of of the Indian criminal justice system is that there is no
automatic right to appeal.

There are many examples in the present era, where the difference of
opinion between the judges has give rise to the death penalty. In
Devendar Pal Singh Bhullar V. State (NCT) of Delhi6 , two accused
were tried under TADA for the offence of committing a bomb blast to
assassinate a political leader. While one accused, Daya Singh Lahoria
was acquitted, Devendar Pal Singh was sentenced to death by the trial
court. It was based on an extra-judicial confession, which was later
withdrawn. In the first appeal to a division bench of the Supreme Court,
there was a difference of opinion between the bench. The senior-most
judge gave his dissenting view and acquitted the accused of all charges,
but the other two judges convicted him and considered the case as “rarest
of rare” and confirmed.

Further in Krishna Mochi V. State of Bihar7, the death sentence was

imposed on four persons, who were accused of a group massacre relating
to castle conflict. The accused approached the Supreme Court. While in
minority approach, the senior-most judge acquitted one of the accused
and commuted the sentence of the other accused, the most of judges
6
JT 2002 20 377/(2013) 6 SCC 195
7
JT 2202 4 286/(2002) 6SCC 81

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confirmed the death sentence for all the accused. In the majority verdict,
the court distracted the theory and example established to bring the case
in category of “rarest of rare”. The aforesaid judgment expounds that
differences of opinion between judges can lead to the death penalty.
Many laws in India under which capital punishment is granted. They are
a way of punishment to give a strong message of social security and bring
justice to the victims. The punishment given in a case should be measured
on the oppression of the crime in the case, the conduct of the criminal and
the victim’s condition. The Court punished for a fair judged for crying to
the societies for justice against criminals and to respond to the societies to
give justice to the victim.

The court should punish about the impact of the crime so that the court
considers public hatred and hatred towards crime and society, considering
applying proper punishment. India stands in the midst of punishment and
global tendency to eliminate nations that are in favor of continuity of
execution, such as a decreasing number of many nations that still
implement the death penalty. In the last two decades, India has seen a
decrease in the number of execution done over the years

There are various provisions under the India Penal Code, replaced by the
Bharatiya Nyaya Sanhita 2023 and the other provisions of law that
provide for the death sentence.

1.1.1 Legal Provision under Bharatiya Nyaya

Sanhita 2023

 Punishment for rape

Section 65(2) of BNS provides punishment for anyone who
commits rape on a woman/girl less than 12 years of age.
Considering the age of innocence and the heinous crime, the
legislature makes the crime punishable with at least 20 years of
rigorous imprisonment, which may be extended to life
imprisonment (remainder of natural life) with fine, or death
penalty.
22
 Gang rape
For someone who commits gang rape on a woman, the crime is
punishable with rigorous imprisonment of minimum 20 years of
life imprisonment. However, as per Section 70(2) of Bharatiya
Nyaya Sanhita, 2023, when the victim is aged below 18 years, each
one of the offenders are punishable with life imprisonment and
with fine, or capital punishment, as the case may be.

 Punishment for causing death or resulting in persistent

vegetative state of victim.
While rape is in itself soul shaking act, when it results in the death
of the victim, or frequent vegetative state in which she is left
unconscious or brain dead, not truly aware of whatever happens
around them, the law makers have provided severe punishment.
Section 66 makes the culprit punishable with rigorous
imprisonment of not less than 20 years, extendable to life
imprisonment, or death penalty under BNS.

 Repeat offenders of rape

Anyone who has been convicted for an offence punishable under
Sections 64/65/66/70 and later convicted for one of the said
offenses is punishable with life imprisonment for remainder of life
or capital punishment under BNS Section 71.
 Murder
While tit for tat is for kids, “A life for a life” has been considered
to be the reason for punishing someone with death sentence for
murder. Section 103 of BNS is sentenced to murder. Any person
who commits murder under Section 101 is punishable with death
sentence or life imprisonment with fine.

 Mob Lynching
While the Indian Penal Code was silent about this, the Bharatiya
Nyaya Sanhita, 2023 addresses the newly torn thread of crowed
mob lynching in India. While sub-section (1) of Section 103 is
sentenced for murder, sub-section (2) said the punishment when
murder is caused by on the ground of race, caste or community,
23
 sex, birth place, personal belief, language or any other similar
ground. Each participant who commit the offence is punishable
with death penalty or imprisonment for life along with fine.

 Attempt to murder by person serving Life Imprisonment

As per Section 109 of BNS, if someone already giving a severe
sentence of imprisonment and attempts to commit murder that
giving the capital punishment in BNS for such intended action or
imprisonment of 10 years along with fine.

 Organised crime resulted in death of a person

Organised crime if the newly introduced offence in the New
Criminal Laws. As per Section 111(2) (a) of BNS, therefore
consequence organised crime in death of someone, the one who
committed the offence has to face capital punishment under BNS
2023 or imprisonment for life along with minimum fine of Rs 10
lakhs.

 Terrorist act result in death of a person

Terrorism is an international issue, and the Indian Penal Code
cannot particularly deal with the problem, since there were other
laws. However, the death penalty under Bharatiya Nyaya Sanhita
has been provided for terrorist act when it results in death of a
person, or with life imprisonment along with fine.

 Kidnapping/abduction to kill/for ransom

Section 137 of the BNS defines what kidnapping is, and Section
138 defines abduction. The Section 140 (2) says that punishes a
person who kidnaps or abducts another or detains such
detained/kidnapped person, and threatens to cause death or hurt to
such person, or gives reasonable apprehension of putting to or
actually causing death or hurt, just to compel the
Government/foreign State/international inter-governmental
organisation/ any other person to do or abstain from doing

24
 something or for paying ransom, with capital punishment in BNS,
or imprisonment for life along with fine.

 Waging/attempting/abetting war against Government of India

As per Section 147 of Bharatiya Nyaya Sanhita, any person who
wages war, or attempts/abets such war against the Government of
India shall be punishable with death penalty or imprisonment for
life with fine.

 Abetment to commit mutiny

Mutiny refer to an open rebellion against the against government.
When someone abets mutiny by an officer, soldier, sailor or
airman, in the Army, Navy or Air Force of the Government of
India has to face capital punishment under BNS after conviction.
BNS under Section 159 says that attempts to seduce any such
officer, soldier, sailor or airman from his allegiance or his duty,
commonly termed as honey traps.

1.1.2 Other legislation that provides for death

penalty
There are various other provisions in India except for the BNS 2023
which provides for death penalty for the heinous crime. They are-

 Under The Air Force Act, 1950for the commission of offences

about the enemy and punishment with death; or in offence of
mutiny; or offence of desertion and aiding desertion
 Under The Army Act, 1950 for the commission of offences to the
enemy and punishment with death; or offences of mutiny; or
offence of desertion and aiding desertion
 Under The Navy Act,1957 for the commission of offences of
misconduct by officers or person in command or by any person
other than those in command with intent to assist enemy or from
cowardice; or delay or discourage action or service commanded
with intent to assist the enemy; or offence of disobedience in action
in presence of the enemy; for the offence of spying for the enemy;
25
 or offence of correspondence with the enemy; or offence of
mutiny; or offence of desertion and aiding desertion; or offence by
officer in charge of the convoy who does not defend, refuse to
fight, cowardly abandons ship, damages ship, misuses the masters;
or for the offence of arson
 Under The Narcotics Drugs and Psychotropic Substance Act, 1985
for the commission of certain offences mention under this act if
there is a previous conviction under those same offences.
 Under The Explosive Substance Act, 1980 for the offence of
causing explosion using any special category of explosive likely to
endanger life or cause serious injury to property, whether injury to
any person or property has been caused or not
 According to The Protection of Children from Sexual Offences
(Amendment) act, 2019 seeks to provide for strict punishment for
those who are engaged in sexual offence against children, death
penalty in cases of aggravated sexual assault made on children.
This amendment bill aims at making the offences ‘gender neutral’
against children and this bill seeks to mend the POCSO Act 2012,
by providing strict punishment for offence for crimes against all
the children below the age of 18. This bill also brought an
amendment to the ‘punishment for aggravated penetrative sexual
assaults.

26
 CHAPTER-2
MEANING OF THE TERM ‘CAPITAL
PUNISHMENT’ AND ITS THEORIES

2.1 MEANING OF CAPITAL PUNISHMENT

 Capital Punishment is known as execution or death Penalty. Where
a person who has committed a grave or criminal offence is sent by
state to execution as a punishment, it is a process. Death penalty is
not punishable for all the offences.
 In old time or ancient times there were no proper laws, rules and
regulations for such crimes and mainly dependent on the discretion
of the king. Later, when the laws were codified, in most states it
became the duty of the state to punish the wrongdoer and protect
the rights of the other people.
 It is can be also said as the legal killing of the wrongdoer for a
crime/offence prohibited by the law.
 The process of carrying out the death sentence is known as
“Execution” of death sentence. The sentence that condemns the
defendant convicted to death is called “death sentence”.
 There have been two views regarding the same, some are pro-death
penalty whereas others are anti-death penalty irrespective of the
person committing the crime, accused, or the methods used for
execution.
 Punishments are mainly given with the intention that there should
be a penalty for the wrongdoing. There are two main reason for
giving a punishment, the first one being that a wrongdoer should be
punished for his wrongdoing and suffer for the same and the
second one is that punishing a wrongdoer discourage the other
potential people from committing an offence. Capital punishment
is also given with the same motive as other punishments.
 Among the theories of punishment namely , retributive theory,
deterrent theory, preventive theory, reformative theory,

27
 1. The first two theories support Capital Punishment without
any reservations.
2. The last theory namely the reformative theory does not
support Capital Punishment.
3. Those who argue for the retention of capital punishment are
called retentionists and those who advocate the abolition of
capital punishment are called abolitionists.
4. Retentionists of capital punishment argue that capital
punishment is necessary to maintain peace in the world since
it acts as a deterrent to potential offenders. In the beginging,
public opinion was also in favour of Capital punishment in
preference to life imprisonment.
5. On the other hand, abolitionists argue that capital
punishment failed as a deterrent and no major work of any
researcher ever proved its efficacy, the uneducated and the
downtrodden.
 Capital Punishment has been prevalent in India from times
immemorial
a. It is as old the Hindu Society. The Administration of
criminal justice as an integral part of the sovereign function
the of state did not seem to have emerged in India till the
smriti period.
b. The credit goes to smites, mainly Manu, and secondly to the
Artha Sastra of Kautilya. However, Artha Sastra was not a
penal code; hence it lacks a coherent schematization.
c. In Buddhist texts also, references to death penalty were
found. Idu Batuta in his writings, painted the picture of India
as it was in the 14th century. Capital punishment was in
vogue for the offences of moral turpitude.
d. Muslim period marks the beginning of a new era in the legal
history of India. The social system of Muslims was based on
their religion. Muslims, after conquering India, imposed
their criminal law on Hindus whom they had conquered.
e. The sources of Muslim law were Quran, Sunnies, and Sunna.
The traditional Muslim Criminal Law broadly classified
crime under three heads:
 Crimes against god,

28
  Crimes against Sovereign and
 Crimes against private individuals, and prescribed
capital punishment for the offences namely,
disturbance of public peace, highway robbery,
extortion on the pretext of collection of public taxes
and needless to say murder
 For the first time in 1846, the Law Commission under the
chairmanship of Lord Macaulay prepared Indian Penal Code and it
was adopted on 6th October8
 The India Penal Code, 1860 defines substantive offences and
prescribes punishments. After Independence also the same Indian
Penal Code has been in operation
 At the outset, the Indian penal code prescribes Capital punishment
for eight categories of offences namely,
 Waging war against the government of India (section121)
 Abetting mutiny by a murder of the armed forces (section
132)
 Fabrication of false evidence with intent to procure
conviction of a capital offence, with death penalty applies
only if an innocent person is executed as a result(section194)
 Murder(section302)
 Murder committed by a life convict (section 303), abetting
suicide of a child or insane person (section305)
 Attempted murder causing hurt, when committed by a
person already under sentence of life imprisonment (section
307)
 Dacoity with murder (396), while the criminal Procedure
Code provides the Procedure to be followed while awaeding
and executing the death penalty.
 The administration of justice through court of law is part of the
constitutional scheme and under that scheme, it is for the judge to
pronounce judgment and sentence and it is for the executive to
enforce them. Article 72 and 161 of the India constitution
empower the President or the Governor as the case may be to grant
pardon and also suspend, remit or commute sentence in certain

8
IPC is replaced and the new is BNS(Bharatiya Nyaya Sanhita 2023)

29
 cases. This power can be exercised by the executive heads, before,
during or after the trial.
 Furman came before the supreme court of America with a direct
attack on capital punishment based on the eighth amendment
guarantee against cruel and unusual punishment.
 The American Supreme Court which initially inclined not to
interfere with the mode of execution of death penalty heavily came
down capital punishment and declared it as violative of the eighth
amendment guarantee against cruel and unusual punishment.
 Furman divided the judges of the American Supreme court clearly
as abolitionist and retentionist’s judges and the abolitionist judges
utilized Furman to bury the capital punishment in American.
But ,the wisdom of Furman was short-lived when the retentionists
judges gained scored in Profit, Jurek and Gregg which had
overruled Furman and these decisions revalidated capital
punishment.
 It may be noted that capital punishment is not banned in the United
States and it has judicial approval also. However, the imposition of
capital punishment is much less and its implementation is very
rare, indeed.
 As far as Indian Supreme court is concerned, after the
Independence of the country, several times Bills were
introduced in both the Houses to amend the law regarding
Capital punishment. But, every time they were negative on
the ground that the time is not ripe to abolish capital
punishment in this country.
 After the legislative attempts failed in both the House of
Parliament to abolish the death penalty, the abolitionists
turned to Indian Supreme court with the hope that it would
declare death penalty as unconstitutional as was done by the
United States Supreme Court in the case of Furman. But, the
Supreme Court in Jagmohan’s case declared that death
penalty is unconstitutionally valid and it is not violative of
the fundamental rights guaranteed under article 14, 19, and
21 of the constitution.
 In that case the Indian Supreme Court did not agree with the
decision of the American Supreme court in Furman.

30
 The Supreme Court in Rajendra Prasad’s case while
commuting death penalty into life imprisonment pleaded for
the abolition of the death penalty. The court in Rajendra
Prasad extensively quoted the observations of the American
Supreme Court in Furman and did not refer to its subsequent
decisions which had overruled Furman. Rajendra Prasad’s
dictum did not have any impact on capital punishment.
 Later came Bachan Singh’s cases before the Supreme Court
in which reconsideration of its opinion expressed in
Jagamohan on death penalty was pleaded. It has contended
that reconsideration of Jagamohan opinion is necessitated
because of the new interpretation given by the court to
article 21 in Maneka Gandhi. Such an interpretation was not
available at the time when the court decided Jagamohan.
 The majority of the court in Bachan Singh approved the
death penalty, but with a rider. The court declared in
Bachhan Singh that death penalty is awarded only in
“rarest of rare cases”. It is to be noted that the court in
Bachhan Singh did not explain the scope of the doctrine of
“rarest of rare case”
 However, the Supreme Court in Machhi Singh elaborately
explained the scope of “rarest of rare cases”.
 The Supreme court in Deena while approving the mode of
execution o death penalty as prescribed under Criminal
Procedure Code as valid mode, exhibited its intention for
retention of the death penalty.
 However it was in the case of Mithu that the supreme court
declared the mandatory death penalty as prescribe under
Section 303 of the Indian Penal Court unconstitutional on
the ground that it offends the test of reasonable and fairness
under article 14 and 21 of the Constitution.
 Consequently, the Court on the ground of delay in execution
of death penalty converted death penalty into life
imprisonment.

31
2.2 THEORIES OF PUNISHMENT
 In this chapter is proposed to analyse various theories of
punishment.
 Austin considered sanction as an essential ingredient of law.
It is only through sanction that obedience to the law can be
secured. Sanction is nothing but inflicting pain or injury
upon the wrongdoer. This in a way can be called
punishment.
 The immediate consequence of a criminal act is punishment.
The term punishment is defined as, “pain, suffering, loss,
confinement or other penalty inflicted on a person for an
offence by the authority to which the offender is subjected”.
 Punishment is a social custom and institutions are
established to award punishment after following the criminal
justice process, which insist that the offender must be guilty
and the institution must have the authority to punish. In this
chapter, an attempt is made o discuss various their efficacy
and effectiveness in the light of modem penology.

2.2.1 NATURE OF PUNISHMENT:

The primary operation of punishment consist simply in announcing
certain standard of behavior and attaching penalties for deviation, making
it less eligible, and then leaving individuals to choose. This is a method
of social control which maximize individual freedom within the coercive
framework of the law in several different ways-

 The first moral duty of the community or State on its behalf is to

reassert the broken moral laws against the offender who has broken
them. For this reason, it must affirm his guilt and deal with him it.
To forgive may be right, condone is always wrong. A criminal act
must not be condoned. It must be punished.
 Government prohibits taking life, liberty or property of other and
specifies the punishments, and threatens those who break the law.
The intended effect of all legal threats is to deter people from doing
what the law prohibits. The threats must be carried out. Otherwise,
the threat are reduced to bluffs, and become incredible and
32
 therefore ineffective. Thus, all states punish people whom they
identify as criminals. How a punishment should be is still a
question to be answered.
 Another fact of the punishment is that it cannot be benign to the
criminal. But for society punishment is and should be a benign
process. So punishment is necessarily adverse to the interest of the
criminal, but to society, it is not necessary. The first duty of state is
to dissociate itself from the acts of its member. To in its will
against the will of the offending member. While acting so, it must
exhibit no antagonism in its will against the will of the offending
members. This is necessary for the preservation of its character, on
which the character of its citizen largely depends.”
 All punishment properly implies moral accountability. Community
wants the punishment to reach the criminal’s mind as a well as his
body; it wants him to suffer remorse for his evil deed; and to
realize that he had against him right as well as might. Unless the
community believes these conditions are attained it is unsatisfied
and the object of punishment is not fully realized.

2.2.2 PUPOSE OF PUNISHMENT

In primitive times, crimes were mainly attributed to the influence of evil
spirits, and the major purpose of punishment was to placate the gods.
Later, in the evolution of punishment, more stress was laid on social
revenge because the crime was considered a willful act of a free moral
agent. Society, outraged at an act of voluntary perversity, indignantly
retaliated. Thus, we started punishing primarily for vengeance or to deter
or in the interest of a just balance of account between “deliberate” evil-
doers on the one hand and an injured and enraged society on the other
hand.

According to Gouldne, member of society identify themselves with the

victim. Hence, the urge to punish the offender. Take rape as an
illustration. Since the victim of rape is females, we might hypothesis that
woman would express greater punitiveness toward the rapist men and that
degrees of hostility would correspond to real or imaginary exposure to

33
rape. Thus, young girls express more punitiveness than homely woman.
Among males, we can predict that greater punitiveness would be
expressed by those with more reason to identify with the victims. Thus,
males having sisters or daughters in the late teens or early twenties might
express more punitiveness toward rapist than males lacking vulnerable
hostages to fortune.

This notion in a perspective is well expressed by Sir James F. Stephen.

According to him the purpose of punishment is to gratify the desire for
vengeance by making the criminal pay with his body. To quote him “The
criminal law stands to the passion of revenge in much the same relation
as marriage to the sexual appetite.” Punishment gratifies of pleasure
experienced by individuals at the thought that the criminal has been
brought to justice. That desire ought to be satisfied by inflicting
punishment to avoid the danger of private vengeance. It is plain that
however futile it may be, social revenge is the only honest, straight
forward and logical justification for punishing the criminals. To carry to
this purpose we need authority. A criminal has a right to be punished.
Because he is treated as a moral agent- a person who chooses between
right and wrong –he is capable of choice.

According to Jackson Toby punishing the criminal is necessary

a) For preventing crime

b) For sustaining the morale of conformists and
c) For rehabilitation of offenders.

2.2.4 MOST APPROPRIATE THEORY FOR THE

CURRENT CLIMATE

According to the Supreme Court’s ruling in DR. Jacob George case9the

ultimate goal of punishment should be deterrent, reformative, retributive,
preventive, as well as compensating. It wouldn’t be a fair punishment if
one theory were to be preferred over others. Each theory must be
comprehended separately and implemented in light of the circumstances
of the case, the type of offence committed, and the perpetrator.

9
Dr Jacob George vs. State of Kerala (1999)

34
According to the Supreme Court, “every saint has a history and every
sinner has a fortune,” which means that regardless of whether a person is
considered to be an offender by the legal system or not, it is impossible to
say that they have never committed any wrongdoing. It cannot be said
that he had always committed crimes.

The Supreme Court essentially combined all the theories of punishment

in this case and recommended that each theory be implemented in
accordance with the specific facts and circumstances of each case.
The role of the authorities is to not only stop the crime from happening
again or to punish the offender in a way that serves as an example to the
rest of society, but also to reform the offender, comprehend his or her
background, and determine the motivation behind the crime, which is
something that the preventive theory of punishment neglects to do.
Preventive or even deterrence theory will prove to be excessive for first-
time offenders or minor offences; however it may be helpful when
dealing with significant crimes or repeat offenders. Punishment must be
administered with extreme caution.

The severity of the sentences a court imposes reflects the competence of

the judiciary as well as the morals of the entire legal system of a country.
Punishment, especially severe or protracted imprisonment, has a
significant impact on a person’s mental and physical capabilities.
Although punishment is unavoidable, it is important to maintain the
values of justice and human rights.

CHAPTER- 3

35
 CONSTITUTIONAL VALIDITY OF
CAPITAL PUNISHMENT IN INDIA

3.1 INTRODUCTION
Capital punishment or the death punishment remains one of the most
contentious issues in the Indian legal system. It involves state- sanctioned
execution as punishment for heinous crimes, typically those involving
extreme brutality. The debate over its constitutional validity revolves
around fundamental rights, judicial discretion, and evolving global human
rights standards.

Indian has retained the death penalty while gradually narrowing its scope
through judicial precedents and legislative reforms. While some argue
that capital punishment violates the right to life and personal liberty
(Article 21) of the Indian constitution other justify it as a necessary
deterrent and retributive form of justice. This paper examines the
constitutional validity of the death penalty in India analyzing judicial
pronouncements legal provision, and the role of international human
rights frameworks.

3.2 LEGAL PROVISION-CAPITAL PUNISHMENT

IN INDIA
The Indian legal framework provides for capital punishment under
various statutes, primarily the IPC and the Cr.P.C and new laws which is
replaced the old laws respectively BNS AND BNSS.

I. Statutory Provisions in IPC (New- BNS)

The death penalty are prescribed for crimes such as :
 Murder (section 302, IPC) – Punishable by
death or life imprisonment.
and the new law BNS Section is 103(1)

36
  Waging war against the state (section 121,
IPC) – Death penalty for acts endangering
national security.
In BNS section 147
 Terrorist Acts (Unlawful Activities
(Prevention) Act, 1967)- Death penalty for
causing mass casualties.
 Rape and Murder (Criminal Law
(Amendment) Act, 2018- Death penalty for
aggravated sexual offenses.
II. Judicial Discretion Under Cr.P.C (replace by the BNSS)
 Section 354(3) Cr.P.C: Requires judges
to provide “special reasons” for awarding
the death penalty over life imprisonment.
(Section 393(3) in BNSS).
 Section 366,Cr.P.C- Mandates
confirmation of a death sentence by the
High Court before execution(section 407
in BNSS)

These provisions establish a legal framework for awarding the death

penalty while ensuring procedural safeguards.

3.3 JUDICIAL INTERPRETATIONS OF THE

DEATH PENALTY
The Supreme Court of India has played a pivotal role in shaping the legal
landscape of capital punishment through landmark rulings.

1) Jagmohan Singh v. State of Uttar Pradesh(1973)

This was the first case where the Supreme Court
upheld the constitutional validity of the death penalty.
The petitioner challenged it under Articles 14(right to
equality), 19(freedom rights), and 21 (right to life),
arguing that the punishment was arbitrary. The court
ruled that the death penalty was not constitutional as
long as it followed due process.

37
 2) Rajendra Prasad v. State of Uttar Pradesh(1979)
Justice Krishna Iyer emphasized that Capital
punishment should be imposed only when it serves the
“interest of society” and in cases where the offender
posed a continuous threat to public safety.

3) Bachan Singh v. State of Punjab(1980)- the “rarest

of rare” Doctrine
This landmark case redefined capital punishment in
India. The Supreme Court ruled that:
 The Death penalty is constitutional but
should be awarded only in the “rarest of
rare” cases.
 Life Imprisonment is the norm, and the
death penalty is an exception.
 Sentencing must consider mitigating
factors, such sa age, background, and
possibility of reform.

This judgment set a high threshold for awarding capital punishment,

ensuring that it is used sparingly.

4) Machhi Singh v. State of Punjab(1983)- Expanding

the “ rarest of rare” test
The court elaborated on the “rarest of rare” doctrine,
stating that factors such as:
 Manner of commission of crime- If it was
brutal, diabolical, or cruel.
 Motive for crime- if it was depraved or carried
out for social humiliation.
 Personality of the victim- If it involved
vulnerable groups (women, children, elderly).

This case provided further guidelines for judicial discretion in death

penalty cases.

5) Mithu v. State of Punjab(1983)- Striking Down

Mandatory Death Penalty

38
 The Supreme Court ruled Section 303 of IPC
unconstitutional, which had previously mandated the
death penalty for life –term convicts who committed
murder. The court held that, mandatory death
sentences violate Article 21, as they remove judicial
discretion.

6) Shatrughan Chauhan v. Union of India(2014)-

Delayed Execution & Mental Health
This case emphasized the rights of death row convicts,
ruling that:
 Inordinate delays in execution violate Article
21.
 Mental illness of a convict should be a ground
for commutation of the sentence.

This reinforced the principle that capital punishment must align with
human dignity.

3.4 CONSTITUTIONAL CHALLENGES TO

CAPITAL PUNISHMENT
Several constitutional provisions are invoked in debate on the validity of
the death penalty:

A. Violation of Article 21( right to life)

 Argument Against:
 The death penalty takes away the fundamental right to
life, which is guaranteed under Article 21.
 Execution is irreversible and prone to judicial errors.
 Global human rights trends favor abolition.

 Counterargument:

39
  Article 21 allows deprivation of life through a fair,
just and reasonable procedure established by law (as
upheld in BACHAN SINGH).
 The state has a duty to protect society from heinous
criminals.
B. Violation of Article 14 (Right to Equality)
 Argument Against:
 Judicial discretion in sentencing leads to arbitrary
application, violating equality before the law.
 Rich and influential convicts often escape execution,
while the poor face harsher sentences.
 Counterargument:
 Courts have evolved guidelines (Bachan Singh,
Machhi Singh) to minimize arbitrariness.
 The law provides opportunities for review and
clemency petitions.
C. Violation of Article 19 (Freedom Rights)
 Some argue that capital punishment violates the freedoms
enshrined under Article 19. However, courts have dismissed
this, stating that convicted criminals have already forfeited
these rights.

3.5 INTERNATIONAL PERSPECTIVE & INDIA’S

STANCE
Globally, there has been a shift towards abolishing the death penalty:

 UN General Assembly Resolutions- Call for a moratorium

on executions.
 International Covenant on civil and political rights
(ICCPR) - Encourages abolition.
 European Union (EU)- Abolished the death penalty in all
member states.
 140+ countries have abolished or do not practice capital
punishment.

40
India, however, retains the death penalty but has significantly reduced its
use. The Law Commission of India (262nd Report, 2015) recommended
abolition except for terrorism related offences, citing the risk of judicial
errors and human rights concerns.

3.6 CURRENT STATUS & EXECUTION TRENDS

IN INDIA
 The number of death sentences awarded has declined over the
years.
 India executes convicts only in extreme cases- recent executions
include:
 Yakub Memon (2015) - 1993 Mumbai blasts.
 Nirbhaya Case Convicts (2020)- Brutal gang rape and
murder.
 Clemency petitions provide an additional safeguard under Article
72 (president’s power) and Article 161(Governor’s power).

CONCLUSION: IS CAPITAL PUNISHMENT

CONSTITUTIONALLY VALID?
The Supreme Court has consistently upheld the constitutional validity of
the death penalty but has restricted its application through legal
precedents. While Article 21 guarantees the right to life, the courts have
ruled that capital punishment is permissible if awarded through due
process and only in the rarest of rare cases.

However, concerns about judicial errors, bias, and arbitrariness in

sentencing persist. Global trends favor abolition and the Law
Commission’s 2015 report suggested limiting capital punishment to
terrorism-related cases.

41
India faces a dilemma: while public opinion often demands harsher
punishment for heinous crimes, there is also growing support for
reforming the justice system to focus on rehabilitation rather than
retribution. The future of capital punishment in India may ultimately
depend on evolving judicial interpretations, legislative changes, and
international human rights developments.

CHAPTER- 4
CONCLUSION AND RECOMMENDATIONS

42
1.1 CONCLUSION
Capital Punishment remains one of the most debated and
controversial aspects of criminal justice in India. While the
Indian legal system has upheld its constitutional validity,
judicial interpretations and evolving human rights standards
have significantly restricted its application. The Supreme Court
of Indian, through landmark judgments such as BACHAN
SINGH V. STATR OF PUNJAB (1980) and MACHHI SINGH
V. STATE OF PUNJAB (1983), has established the “rarest of
rare” doctrine, ensuring that the death penalty is imposed only
in exceptional cases. This principle seeks to balance the need
for justice with the constitutional guarantee of the right to life
under Article 21.

The constitutional validity of capital punishment has been

challenged multiple times, primarily on the grounds that it
violates Article 14(right to equality), 19(freedom rights, and 21
(right to life and personal liberty). However, the judiciary has
consistently held that capital punishment is not unconstitutional
as long as it is awarded in accordance with due process and fair
procedures. The courts have also recognized judicial discretion
and mitigating factors as essential in determining whether a
convict should receive the death sentence or life imprisonment.

Despite the legal safeguards in place, concerns remain regarding

arbitrariness, wrongful convictions, and the irreversible nature
of the death penalty. Studies show that individuals from
economically weaker sections and marginalized communities
are disproportionately affected by capital punishment, raising
serious questions about fairness and justice in sentencing.
Additionally, the 262nd Law Commission Report (2015)
recommended the abolition of the death penalty for all crimes
except terrorism-related offenses, citing the risk of judicial
errors and evolving global trends favoring abolition.

43
 Internationally, more than 140 countries have abolished or
discontinued the use of the death penalty, reflecting a growing
recognition of human rights and the fallibility of criminal justice
system. While India continues to retain capital punishment,
executions remain extremely rare, with courts preferring life
imprisonment without parole as an alternative in most cases.

Thus, while capital punishment remains constitutionally valid in

India, its use has been severely restricted through judicial
precedents and legal reforms. The future of the death penalty in
India will likely depend on continued judicial scrutiny,
legislative reforms, and international human rights
developments.

1.2 RECOMMENDATIONS
Considering the legal, ethical, and human rights concerns surrounding
capital punishment, the following recommendations can help reform
India’s approach to the death penalty while ensuring justice and
fairness:

1. Establishing Stricter Sentencing Guidelines

 The “rarest of rare” doctrine should be further refined and
standardized to minimize judicial arbitrariness.
 Sentencing guidelines should include a uniform framework for
considering mitigating factors, such as mental health, socio-
economic background, and potential for reform.
2. Strengthening Safeguards Against Wrongful Convictions
 Capital cases should require a higher burden of proof and
independent judicial review to prevent wrongful convictions.
 Mandatory Scientific and forensic evidence should be
required before imposing the death penalty.
 An independent review board should be established to
examine death penalty cases before execution.

3. Reducing Discrimination in death sentencing

44
  The government should address socio-economic disparities
in capital punishment cases to ensure fair and equal access to
legal representation.
 Free legal aid and experienced defense counsel should be
provided to all death row convicts to prevent biased
sentencing.
4. Encouraging Alternatives to the death penalty
 India should move towards abolishing the death penalty for
non-terrorism-related offense, as recommended by the Law
Commission’s 262nd Report (2015).
 Life imprisonment without parole should be promoted as a
viable alternative to capital punishment.

5. Reforming the Clemency Process

 Clemency petitions under Article 72 and 161 should be
processed more transparently and swiftly to prevent
prolonged delays.
 The executive must establish clear and fair guidelines for
granting mercy petitions to avoid arbitrary decisions.

While capital punishment is currently constitutionally valid in India, its

use has been greatly restricted by judicial scrutiny and evolving legal
principle. The ethical and legal concerns surrounding arbitrariness,
wrongful conviction, and human rights violations indicate that India must
rethink its approach to capital punishment. By implementing strong
sentencing safeguards, improving legal ensures justice while upholding
constitutional and human rights principles. Ultimately, a progressive shift
towards abolition, while balancing the interests of justice, may align India
with the growing gobal trend of moving away from the death penalty.

45
46