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Author: Ankita Kandari, III year of B.A.,LL.B.(Hons.) from Law College Dehradun (Uttaranchal University)


A developing country as India is similarly there is an increase in the crime rate also. The number of legislations has been enacted still the crime is increasing. Among the various forms of punishment provided in the Indian constitution one such severe form of punishment that is debatable is capital punishment also known as the Death Penalty. China has the highest number of executions per annum and excluding China, Saudi Arabia, iron and Iraq are the three countries responsible for more than 80% of the execution. 108 countries of the world have retained death punishment and 56 have abolished it. In this article, the basic introduction, evolution theories, Doctrine of Rarest of Rare, constitutional validity, the debate between human rights and capital punishment etc. have been explained.

Keywords: capital punishment, death penalty, crimes, murder, crimes


The word capital punishment also called the death penalty finds its origin from the word capital crimes /offences which are those crimes that are punishable by death. Some of the capital offences include murder, mass murder, terrorism, treason, espionage, piracy, drug trafficking, war crimes crimes against humanity, genocide and many more depending on the law of the country. Capital punishment means the legal killing of the wrongdoer by the state as punishment for crime. Etymologically, the term capital punishment is derived from the Latin word ‘capitalism’ in which lit refers to ‘of the head’ and caput refer to the head so it means execution by beheading. Death sentence means convicting a person with death and the act of carrying out that sentence is known as an execution.

According to the Bureau of Justice StatisticsCapital Punishment refers to the process of sentencing convicted offenders to death for the most serious crimes and carrying out that sentence. The specific offences and circumstances which determine if a crime is eligible for a death sentence are defined by statute and are prescribed by congress or any state legislature.

Evolution /origin of the death penalty

In the Code of King Hammurabi of Babylon which can be traced back to the Eighteen century, the death penalty was codified for 25 different crimes. The Draconian Code of Athens also made the death penalty compulsory for the commitment of all types of crimes. Before the tenth-century criminals were punished with harsh punishment like burning alive, drowning, cutting off limbs etc. The customary method of execution by hanging became common in Britain after the 10th century. Subsequently, it was not allowed except in cases of war.

Evolution in India

The provision for the death penalty for murder in the Indian Penal Code of 1861 was retained by India at Independence. Despite the idea of abolition of the death penalty during the drafting of the Indian constitution between 1947 and 1949, no such provision was incorporated. Private bills were introduced in both the houses of the parliament but none were adopted successfully. It was estimated that two or three people were hanged annually.

The constitutional validity of the death penalty and doctrine of rarest of rare

The first case dealing with the constitutional validity of the death penalty was Jagmohan Singh v. State of Uttar Pradesh. The appellant held section 302 of IPC as violative of Article 14, article 19 and article 21 of the Indian constitution. But the five-judge bench rejecting the contention held the death penalty to be constitutionally valid. The decision to award the death sentence was made by the compliance of the mandate of Article 21 of the constitution of India. In Rajender Prasad v. State of Uttar Pradesh, it was held that capital punishment would not be justified unless it is shown to the society that the criminal was dangerous to the society. The court held ‘ if the murderous operation of a diehard criminal jeopardizes social security in a persistent, planned and perilous fashion then his employment of fundamental rights may be rightly annihilated’. The Supreme court in Bachan Singh v. Union of India reiterated the decision made in Maneka Gandhi v. Union of India and held that the death penalty is an exceptional punishment that must be awarded in the “gravest cases of extreme culpability.’’ Thus the death penalty was restricted to the rarest of rare cases. In addition, there was no violation of the basic character of the constitution by the death penalty for murder offences granted under section 302 of IPC.

In Macchi Singh v State of Punjab, the criteria for assessing whether a crime fell into the category of rarest of rare was laid down. The criteria included –

(i) Manner of the commission of murder–If the commission of the murder took place in a barbaric, devilish or treacherous manner. For instance, if the body of the victim is cut into pieces or when the victim has been subjected to inhumane acts of cruelty.

(ii) Motive of the commission of murder- If the murder shows meanness and total depravity. For instance a cold-blooded murder with the motive of inheriting the property or a murder committed in the course of betrayal of motherhood.

(iii) Socially abhorrent nature of the crime– Act involving the murder of a person belonging to the scheduled caste or minority community which arouses social wrath. Dowry death is also known as bride burning is one such example.

(iv) Magnitude of the crime– Gravity of the crime is one such criterion for deciding. If the crime is enormous in proportion like mass murder like the murder of a whole family or community or locality are committed.

(v) Personality of the victim of murder– If the victim is an innocent child, helpless woman public figure and the murder is committed for political or other similar reasons.

The court in the case of Vatheeswaran v. State of Tamil Nadu has held that the delay in execution of the death penalty is unfair, unreasonable, unjust and inhumane which deprives the convict of the basic human rights under article 21 of the constitution of India.

Crimes for which the death penalty can be awarded

(i) Aggravated murder- Section 302 of the Indian Penal code provides the death penalty or (imprisonment for life) as punishment.

(ii) Terrorism related offences not resulting in death- The death penalty is the punishment in case of use of any special category of explosive to cause an explosion that could endanger the life or cause serious property damage.

(iii) Rape not resulting in death–Under the Criminal law Act, 2013 a person who inflicts injury in a sexual assault that results in death or is left in a ‘vegetative state’ may be punished with death.

(iv) Drug trafficking not resulting in death -A person convicted of a commission or attempt to commit drug trafficking or financing of a certain type of narcotic and psychotropic substances can be sentenced to death.

(v) Treason- Any person who wages or try to wage a war against the nation or government or helps the Navy, Army, Airforce, soldiers or member to commit a mutiny can be convicted for the death sentence.

(vi) Military offences not resulting in death– Mutiny, abetment of assault or attempt to seduce airmen, soldiers and sailors from their duty are punishable by death.

(vii) Other offences resulting in death

  • armed robbery

  • abduction for money where the victim is killed

  • committing or helping others to commit sati

(viii) Other offences not resulting in death

  • attempt to kill those sentenced to life imprisonment

  • providing false evidence with the intention of conviction of that person

Category of offenders excluded from capital punishment

(i) Minor- the Juvenile Justice Act defines a boy who has not attained the age of 16 years and a girl who has not attained the age of 18 years as a juvenile. Section 22 of the Juvenile Justice Act provides that no delinquent juvenile shall be sentenced to death.

(ii) Pregnant women- Section 416 of the Criminal Procedure Code provide that if a woman who has been sentenced to death is found to be pregnant then the high court shall order the execution of the sentence to be postponed and may if it thinks fit to commute the death sentence to imprisonment for life.

(iii) Intellectually disable-Who is either mentally ill or not able to understand the nature of the act.

Capital punishment and human rights

The use of the death penalty is a matter of huge debate around the world, whether it should exist or not. Protection of life and personal liberty has been provided under Article 21 of the Indian Constitution. There are some inherent rights to which a human being is entitled since birth and the right to life is one such right. Death is a phenomenon of irreversible nature and death often is regarded as the justice of revenge by the statesmen. Countries like the United States, China, Korea, Japan, and Pakistan including India are some countries where the death penalty is awarded as a punishment. China tops as the country where the execution is the highest. The application of the death penalty has always been a matter of debate among lawyers, judges, jurists and administrators. Criminals, like other humans, also deserve some basic human rights but considering the viewpoint of the victims, it is necessary to provide justice to them. The United Nations General Assembly has recognised that those countries that have not abolished the death penalty should administer it only in the rarest of rare cases. The person below the age of 16 years, pregnant women, new mothers and insane persons have been exempted from the punishment. Besides the right of appeal has also been granted to the people. It has been made mandatory that while the appeal is pending the punishment should not be executed.

Law commission report on death penalty 2015

On 31st August 2015, the Law Commission of India chaired by Justice A.P Shah submitted its 262nd report. In Santosh Kumar, Satish Bhushan Bariyar v. Maharashtra and Shankar Kisanrao Khade v. Maharashtra the Supreme Court referred to the issue. Earlier the Law Commission in its 35th report had recommended the retention of the death penalty. The Supreme Court in Bachan Singh v. Union of India upheld the constitutional validity of the death penalty but restricted it only to the rarest cases. Taking into consideration the changes in the social, economic and cultural contexts of the county since its 35threport with the realization that the death penalty is a sensitive issue the commission decided to take an extensive study. It was held by the commission that the penological goals of deterrence are no more served by the death penalty and that it failed to achieve penological goals. The rehabilitative and restorative aspect was lost and the uneven application has given rise to the state of uncertainty. It was also held that the exercise of mercy power under article 72 and 161 have failed as the final safeguard against the miscarriage of justice. Some of the problems besetting the system included the outdated source of investigation, poor legal aid, resource lack etc. The commission has also recommended that although there is no valid penological justification for treating terrorism different than other crimes however given the concern raised by the lawmakers that it might affect national security. The commission has recommended making it essential for states to establish effective victim compensation schemes to rehabilitate victims of crime. Witness protection scheme was also made essential to protect the voices of victims so that they are not silenced. Effective investigation and better police reforms were felt as the need of the hour.

Mode of execution of death sentence

At present according to Section 354(5) of the Code of Criminal Procedure 1973 the mode of execution of death sentence is hanging till death. In Bachan Singh v Union of India, the Supreme Court observed that the physical pain and suffering which the execution entails is inhumane and cruel. ‘The commission has recommended amending section 354(5) of the CRPC by providing an alternative mode of execution of death sentence by lethal injection until the accused is dead’. The convict shall be heard on the question of the mode of the execution of the death sentence before such discretion is exercised. As of now, there is no provision of the right of appeal against the sentence passed by the Court Martial under the Army Act, 1950 the Navy Act, 1957and the Air force act, 1950. It is also recommended that one of the present modes of execution of death that is by hanging should be replaced by administering lethal injection until the accused is dead. The commission finally recommended that death sentence matters should be heard by a five judge’s bench of the Supreme Court.


Live is precious and death is irrevocable and every individual must note to keep in mind that none has the right to take away one’s life. Still, harsh punishment is required to keep the potential convicts at bay. To protect the life of one convict the lives of thousands of others cannot be risked. Those who are deserving of death should be executed. But some of the people opine that a criminal need to be punished for the crime he committed but we as a civilization need in the direction of eliminating the offence not the illegal. Whether the death penalty should be abolished or not is still a matter of debate and there is no end to it.



  • Prof.S.N.Mishra ,Indian Penal Code (Edition2015)


  • https://lawcommissionofindia.nic.in




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