In this article, the authors have discussed capital punishment and how it conflicts with the basic human rights and the right to life and liberty guaranteed under part III of the constitution of India.
This article has been co-authored by Priyanka Chauhan
Capital Punishment is a widely debated topic keeping in mind the situation that we are in today. Capital Punishment may be defined as ‘execution of the condemned criminal under a death sentence by a competent authority.’ The word ‘Capital’ has been derived from the Latin word ‘capitalis’ which means ‘of the head’.
In ancient times, capital punishment was executed by beheading the criminal so it was called capital punishment. Capital Punishment is widely prevalent in the justice system of various countries around the world. It has been present in India for a long time but it was codified by the Britishers.
Capital Punishment continued after Independence too. After the increase in the strengths of the Human Rights movement in India, the existence of capital punishment is seen as a violation of human rights, and Article 21 of the Indian Constitution. Capital Punishment is an integral part of the Indian Penal System. The term Capital Punishment stands for the most severe punishment for the offences which are considered most grievous, heinous, and detestable crimes.
It has been stated by the Supreme court that Capital Punishment should only be awarded in rarest of rare cases. While the definition and extent of crimes to be charged with capital punishment vary from country, state, age, gender, the severity of the crime, object, the implication of the capital punishment has always been a death sentence.
The British government was the first to codify the criminal laws and draft a systematic procedure for criminal trials. The death sentence was limited to the Indian Penal Code only. Since then various amendments have been made In the Indian penal code and other statues to systematize the awarding of a death sentence. Britishers were the ones who codified the death sentence as a punishment for grave offences in the Indian Penal Code as enacted in 1860.
The British Government’s policy on capital punishment before India gained Independence as stated by the then Home Minister Sir John Thorne was “The Government does not think it wise to abolish capital punishment for any type of crime for any type of crime for which that punishment is now provided.”
After Independence, India retained several laws made by the British Government including the Code of Criminal Procedure (1898), Indian Penal Code (1860). The IPC prescribed six punishments including the death sentence. The death penalty remains in effect even after the independence of India in 1947.
For the offences where death penalty was an option as given in Section 367(5) Code of Criminal Procedure, 1898 required courts to record reasons as to why the death sentence was not awarded. This section was later repealed in 1955. The death penalty was no longer the norm and the courts were not required to record any reasons as to why the death penalty was not awarded.
The death sentence of the convicts which was recently executed was of the four convicts of Nirbhaya case Akshay Thakur, Pawan Gupta, Vinay Sharma, Mukesh Singh.
In India, there are various offences which contain capital punishment as one of the punishments. It is the discretion of the Court on the basis of the gravity of offence to decide if the punishment that has to be granted is capital punishment.
However, it is not mandatory for the Court to grant a death sentence to the convict. It has been made clear by the Supreme Court that the death penalty can be granted only in “rarest of the rare cases”.
Generally, the test applied for the doctrine of “Rarest of the Rare” case while awarding the Death sentence to the convict is whether it is the demand of the society to give the death penalty to the accused so as to protect the peace and security of the members of the society and whether a failure of awarding death sentence would be against the interests of the society. Pre-planned, brutal, cold-blooded, and sordid nature of a criminal offence, without giving any chance to the victim, are generally considered as facts to make a decision whether a specific case falls under the doctrine of “rarest of rare”.
11 offences are punishable by death as mentioned in Indian Penal Code are:
Section 121 – Treason, waging of war against the Government of India.
Section 132 – Abetment of mutiny actually committed
Section 194 – Perjury resulting to conviction and death of innocent person
Section 195A – Threatening or inducing any person to give false evidence resulting in conviction and death of an innocent person.
Section 302 – Murder
Section 305– Abetment of suicide by a minor, insane person or intoxicated person.
Section 307(2) – Attempted murder by a serving life sentence convict
Section 364A – Kidnapping for ransom
Section 376A – Rape or injury which causes death or leaves the woman in a persistent vegitive state.
Section 376E – Certain repeat offenders in context of rape
Section 396 – Dacoity with murder
The provision for Capital punishment in other statutes like Commission of Sati (Prevention) Act, Prevention of Children from Sexual Offences Act, etc. The Army Act, The Navy Act, The Air Force Act, also have a provision for sentence of death. The aforementioned three acts is applicable only to persons serving in Army, Navy and Air Force.
Prevention of Children from Sexual Offences Amendment Act, 2019
Recently, the Parliament passed the bill of awarding death sentence to the offences committed under the POCSO Act. The Amendment Act increases punishment for sexual offences against children, with a provision of death penalty. The Act provides that those who use a child for pornographic purposes should be punished with imprisonment for up to five years and fine. However, in the event of a second or subsequent conviction, the punishment would be up to seven years and fine.
As per the Amendment Act, those committing penetrative sexual assaults on a child below 16 years of age would be punished with imprisonment up to 20 years, which might extend to life imprisonment as well as fine.
In case of aggravated penetrative sexual assault, the Act increases the minimum threshold punishment from ten years to 20 years, and the maximum punishment extends to death penalty.
As per The Criminal Law Amendment Act, 2018, the punishment for rape of a minor girl below 12 years of age was increased from a minimum of 10 years to 20 years and maximum from life imprisonment to death. Gang rape of minor of less than 12 years, the minimum punishment stands at life imprisonment which may extend to death.
Methods of Execution of Death Sentence
The Code of Criminal Procedure (1898) called for the technique of execution to be hanging. The same method was adopted within the Code of Criminal Procedure, 1973. Section 354(5) of the procedure reads as “When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead.”
This method was devised by William Marwood in Britain. The hanging method is a long drop where the person has their neck snapped as they fall flat through the trapdoor and is left hanging until they’re dead.
The Army Act, The Navy Act and The Air Force Act also provides for the execution of the death sentence. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for the offences mentioned in section 34(a) to (o) of The Air Force Act, 1950. Section 163 of the Act provides for the form of the sentence of death as:-
“In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death.”
This provides for the discretion of the Court Martial to either provide for the execution of the death sentence by hanging or by being shot to death. The Army Act, 1950, and The Navy Act, 1957 also provide for the similar provisions as in The Air Force Act, 1950. The Army Act, The Navy Act and The Air Force Act are not applicable to the civilians and the punishments is only applicable to the personnel serving in the Force.
Arguments in favour the Capital Punishment
Fundamental rights are integral to all the citizens but no fundamental right is absolute.
The advantages of capital punishment are that they give people an idea of what the law is capable of doing and the criminal can never escape from the punishment no matter who he/she is.
In addition, anyone who is thinking about committing a crime will think twice before committing a crime.
The International Covenant on Civil and Political Rights (‘ICCPR’) is one among the key documents discussing the imposition of death penalty in international human rights law. The ICCPR does not abolish the use of imposition of the death sentence, but Article 6 contains guarantees regarding the protection of rights, right to life, and contains important safeguards to be followed by signatories who retain the death penalty.
The principles on what would constitute the “rarest of rare” has been laid down by the Apex Court in the landmark judgment in Bachan Singh vs State of Punjab (1980). Supreme Court formulated certain broad illustrative guidelines and said it should tend only to be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was left completely upon the court’s discretion to reach this conclusion. However, the apex court also laid down the principle of weighing, aggravating and mitigating circumstances.
A balance-sheet of aggravating and mitigating circumstances during a particular case has got to be drawn to determine whether justice will not be done if any punishment less than the death sentence is awarded. Two prime questions, the Apex court held, may be asked and answered. First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence? Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?
States punish crimes with punishment, including death, in order that people don’t take law into their own hands and seek retribution directly. Punishment by the state is vital to keep ordinary citizens from taking the law into their own hands – some form of retribution is vital for closure, for righting wrongs.
Arguments against the Capital Punishment
The Indian Penal Code provides for death penalty as one of the forms of punishment. India ratified the International Convention and as a consequence is committed to the abolition of death sentence. However, death penalty imposition is treated as an exception and not the rule and the execution of death sentence varies from the practice of other countries(In other countries, the execution takes place by way of lethal injection, Gas chamber, be-heading, electrocution ) and India provides for execution by ‘hanging’ only. However, reasons have to be given for recording conviction with death.
It’s a violation of human rights and the Human Rights Commission strongly opposes capital punishment still many countries continue this practice. The disadvantages are that we do not give the person a second chance to change. Death sentence is the process of killing a person, who is accused of a heinous offence in the name of justice, it is not just a punishment but more than that as according to the principles of the Human rights it is immoral and determines the lack of respect for the human life. It is true that a criminal should be punished for his crime but a civilized society’s aim should be eliminating the offence, not the criminal. United Nations supporting the abolition of the death penalty and India is an active member of the United Nations, still, capital punishment is there in our statute book. even though we have the death penalty as capital punishment for like these heinous offences still it is not helpful for eliminating the crime instead the crime rates are rapidly increasing yearly. Therefore, the Legislation and judiciary while implementing any law should think in that way, we need to eliminate the crime and not the criminal instead we need to educate them for their good life. And for brutal offences, there should be some rigorous punishment rather than the death penalty. This would be more effective as they will remember their crime every time while facing rigorous imprisonment. The Death sentence is the killing of an offender in the name of justice. India follows the same phenomenon but as per the Indian constitution, it is the violation of the provisions of right to life and dignity provided in Article 21, still it is constitutionally valid.
Principles of Constitution
Article 21 of The Indian Constitution reads as: Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. The right to life and liberty is one of the fundamental rights. Fundamental rights are not absolute they are subject to reasonable restrictions. The words “except according to the procedure established by law” clearly state the intention of our founding forefathers that the state could make laws to some extent which alter the fundamental rights only according to the procedure established by law which is just and reasonable.
Under normal circumstances, it may have violated the law but in special circumstances in the interests of the security of the society it becomes necessary for the enactment of such laws, it would be permissible. Moreover, the judiciary acts as a guardian of our rights. The Apex Court itself withheld that Death Sentence is constitutionally valid and has laid down guidelines so that the punishment is not misused and there are other ways to apply for mercy once convicted and awarded punishment.
The Constitution Bench judgment of Supreme Court of India in Bachan Singh vs State of Punjab made it very clear that the sentence of death in India can be granted only in rarest of rare cases. This judgment was in line with the previous verdicts in Jagmohan Singh vs. State of Uttar Pradesh  and then in Rajendra Prasad vs. State of Uttar Pradesh. The Supreme Court of India ruled that the death sentence should be imposed only in “the rarest of rare cases.” While stating that honour killings fall within the “rarest of the rare” category, Court has recommended the death penalty be extended to those found guilty of committing “honour killings”. The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings.
The majority view was given keeping in mind and the Hon’ble Supreme Court was upheld the constitutional validity of
●death penalty for murder in 302 Indian Penal Code, 1860
●procedure in 354(3) Code of Criminal Procedure, 1973
There were two more issues which needed attention:
●Whether Article 19 of Constitution of India is at all applicable for judging the validity of the impugned provision in section 302 of Indian Penal Code, 1860?
●Whether the impugned limb of the provision of 302 of Indian Penal Code, 1860 contravenes Article 21 of the constitution?
It was finally held that the impugned provision of Section 302 Indian Penal Code,1860 violates neither the letter nor the ethos of Art. 19 of Constitution. As to the matter of 2nd point Art.21 of Constitution clearly brings out the implication that the founding fathers recognized the rights of the state to regulate law and order in state and impose death penalty on person in accordance with fair, just and reasonable procedure established by valid law.
There are also other indications, in the Indian Constitution which show that the Constitution makers were fully cognizant of the existence of death penalty for murder and certain other offences in the Indian Penal Code, 1860.
The constitutional validity of Section 354(3) of Code of Criminal Procedure is attacked on the ground that -A sentence of death is the extreme penalty of law and it is but fair that when a Court awards that sentence in a case where the alternative sentence of imprisonment for life is also available, it should give special reasons in support of the sentence. Accordingly, Sub-section (3) of Section 354 of the Code of Criminal Procedure,1973 provides: When the conviction is for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence.
Court with the majority of 4:1 rejected the challenge to the constitutionality of Section 302 of the Indian Penal Code in so far as it provides for the death sentence as also the challenge to the constitutionality of Section 354(3) of the CrPC, 1973.
According to Article 21 of the India Constitution, “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. In general sense, this means that if there is a procedure which has been legally codified, then the state has the power to deprive a person of his life according to the codified law. The Central Government has included the death penalty in the books of law to act like a deterrent for those who are a threat for the society at large.
The Supreme Court has upheld the validity of capital punishment, but restricted it for the “rarest of rare cases”. The Supreme Court in Jagmohan Singh vs State of Uttar Pradesh (1973), in Rajendra Prasad vs State of Uttar Pradesh (1979) and also in Bachan Singh vs State of Punjab (1980) observed that capital punishment is Constitutional.
The Supreme Court observed as “if capital punishment is provided in law and the procedure is fair, just and reasonable one, the death sentence can be awarded to the convict. This will, however, only be in the rarest of rare cases, and the courts should render ‘special reasons’ while sending a person to the gallows”.
Society has always used punishment to discourage would-be criminals from unlawful action. Crime is not against an individual, it is against the whole society. Hence, it becomes important to punish criminals to discourage them from committing any other offences happening in the future. There are two beliefs of inflicting punishments on wrong doers. One is the belief is both right and just; that a person who has done wrong should suffer for it; the other is the belief that inflicting punishment on wrongdoers discourages other from doing wrong. The death sentence also rests on the same proposition as other punishments. Human rights activists are of the opinion that we cannot give life so who are we to take it. The Constitution of India guarantees right to life and liberty still there is an existence of death penalty in India which is considered brutal. However, this is an odd argument as keeping one person alive at the cost of the lives of numerous members or potential victims in the society is unbelievable and in fact, that is morally wrong. Crime is against a society. Crimes like rape, child rape, murder are some of the offences where death penalty may be imposed based on the gravity of the crime committed. When a woman is raped she is not only physically hurt but also she is affected mentally. She loses confidence to face the world. Self-respect of woman is something very important to her, when a man without her consent touches her, commits rape on her, the damage that is done to her mentally is beyond repair. In due course of time physical wounds may heal but the trauma that she goes through stays with her till the rest of her life. When the activists talk about the right to life and liberty of a convict they forget about the right to life and liberty of the victim.
Human right activists claim that the order of death sentence may be misused by the Courts as sometimes the judgment delivered by Courts cannot be relied upon completely. The judiciary has been set up in our country to deliver justice to the people. Supreme Court is the protector of our rights. It is the Apex Court of our country. To a layman, Court is a place where he knows he will get justice; presenting the notion that not all orders of the Court could be relied upon may have a chance of creating anarchy among people. They would start taking law into their own hands.
A girl of 2 years of age, 5 years of age, boys of age 12, aged 7 get raped and several other children get raped. Their age is to play and enjoy their childhood, not to be a prey to somebody’s lust. The culprits of these heinous acts are beyond repair. They are leeches in the society which need to be punished severely to set an example that if a person is committing crime there would be no way he could escape punishment.
We all are aware of what happened to the victim in Nirbhaya Rape Case. The victim, a paramedical student, was not only raped but also glass bottle, rod was inserted in her vagina. The victim was thrown naked on the road from the running bus. She later succumbed to the injuries during her treatment.
These acts were utter crudeness on the part of culprits and deserved severe punishment. The trial for the case started on January 5, 2013, by the Trial Court. The four accused were found liable of the offence and the Trial Court sentenced them to death. The convicts filed a Review Petition in Delhi High Court. Delhi High Court upheld the death sentence. The convicts later filed an appeal in the Supreme Court. Supreme Court heard the matter afresh. On May 5, 2014, Supreme Court upheld the decision of death sentence, and mentioned that it falls under “rarest of the rare cases” and has created a “tsunami of shock”. The execution of the death sentence happened on 20th March 2020.
Before the execution, the convicts had filed a lot of appeals and curative and mercy petition. Only after the rejection of all appeals and petitions, they were hanged. The culprits were not hanged just after the pronouncement of judgment in fact they were given a total of 6 years to apply for petitions to reduce their sentences. And only after proper consideration by the Supreme Court and President, the petitions were rejected and their death sentence was upheld.
Another instance of a heinous rape case was of a child of 2 years old in Jalna, Maharashtra who was kidnapped by a man and that he raped the child for 4- 5 hours till she breathed her last breath. The culprit was awarded death sentence by Bombay High Court. The order was later appealed to the Supreme Court, the Apex Court upheld the sentence. Citing the reason that the victim was barely a two-year-old child.
The bench said that it is a case where trust has been betrayed and social values are impaired. The majority judgment held that the “convict had no control over his carnal desires (and) surpassed all-natural, social, and legal limits just to satiate his sexual hunger. “This offence lies under the aggravated penetrative sexual assault on a child below 12 years under the Prevention of Children from Sexual Offences Act.”
When a terrorists kills people, rapists rape women, rapists rape children, at will isn’t life of the victim important is not important to them. When people kill and rape other women or children out of the pleasure or revenge that it is utter brutal. Some offences are so grievous and heinous that it shocks the society to the core.
A punishment so severe which frightens the other future offenders becomes necessary as to discourage any other acts of such grievous offense to happen in the future. Supreme Court has held a death sentence to be constitutionally valid and in its decision in Bachan Singh vs. the State of Punjab has laid down guidelines as to how to deliver the sentence of death.
This article has been co-authored by Priyanka Chauhan
 (1980) 2 SCC 684
 1973 AIR 947
 1979 AIR 916