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Author: Anurag Moga, III year of B.A., LL.B. from Army institute of Law, Mohali


As we know that the constitution of India is supreme. The rules and provisions in the constitution of India are of at most importance. Any person or authority including parliament has zero power to disturb the basic structure of the constitution. Here, article 21[1] of the constitution states the right to life and personal liberty.

Right to life is a basic natural right embedded in the constitution for human's well-being. Every person has the right to life, it includes those criminals too, who had been convicted for less serious crimes. But, the right to life can be waived off according to the procedure established by law. Article 21 states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. So, it can be concluded that there are few instances or provisions through which the right to life can be waived off by the Indian judicial system.

Death penalty awarded by the court is the best example of revocation of the right to life. The death penalty is the last resort to prevent actions considered inhumane. The death penalty is abolished by 70% of countries but still followed by some large democracies such as the United States, India etc. Globally out of 193 united nations, 108 countries completely abolished it but 54 countries still retain it as capital punishment[2]. According to a report published by Amnesty International, Asian countries mostly rely on an idea about the execution of capital punishment or the death penalty for heinous crimes. Mostly China, Saudi Arabia, Iran and North Korea confers the death penalty. In India, it can be executed only in extreme cases.

Death penalty in India

capital punishment is commonly considered as the Death penalty or a Death sentence. In India, the death sentence is awarded for only heinous crimes such as rape, murder or multiple murders, the act of terrorism or for any other offence where there is a requirement of death penalty prescribed under law. The death penalty is given to an antisocial person, who committed heinous offence due to which he would be considered a threat to society. Punishment conferred in the manner of the death penalty sometimes has a deterrent effect on society.

The apex court faced many cases regarding the constitutional validity of the death penalty. Article 21 which states Right to life is a foremost hindrance in the path of awarding death penalty even in rarest of rare cases. However, Apex court till now has not abolished the death penalty. Apex court in a row of judgments declared that capital punishment is a need of the hour but shifted to another shore by declaring section 303 of Indian Penal code,1860 as unconstitutional.

Is the death penalty constitutional?

The primary situation where the question of the constitutional validity of death penalty preceded the apex court was in Jagmohan Singh V. State of U.P[3]. Section 302 of IPC(provision of the death penalty for the murderer) was put under the trial of constitutional validity. The main contention puts under the watchful eye of the apex court is, the death penalty is a violation of Article 14 because in two comparative cases the punishment awarded for murder is life imprisonment and sometimes death. The learned judges rejecting this contention held that death penalty given under section 302 of IPC, 1860 is constitutional.

Another case where the death penalty is held to be constitutional was Bacchan Singh V. State of Punjab[4]. Facts- Accused Bacchan Singh was already convicted for killing his wife. After serving the whole punishment, his brother Hukum Singh sheltered him. During one night Bacchan Singh killed 3 of the four children with an axe while they were asleep. The Trial court gave the death penalty to Bacchan Singh but High court upheld the decision. When the case is laid before the watchful eye of the Supreme Court, there are two main issues.

1. Whether Death Penalty provided for the offence of Murder in section 302 IPC is unconstitutional?

2. Whether sentencing procedure in sec 354(3) is unconstitutional on the ground of unguided discretion?

Held- The death penalty is not unconstitutional because in Article 21 it was stated that the right to life can be waived off according to the procedure established by law. The procedure prescribed by law must be reasonable, just and sensible, not whimsical, arbitrary or oppressive.

The court also emphasizes 35th Law Commission Report[5], the framers of the constitution have an ideology that in a wide diversity of India, the Death penalty is need of the hour to suppress the crimes.

The principle of 'rarest of rare' has been laid down in the landmark judgement, the Apex court said section 354(3) is constitutional and bound the Judges to provide special reasoning for imposing a death sentence. The Court while imposing death penalty should consider circumstances of crime along with the position of criminal.

Mandatory death penalty under section 303 of IPC

obligatory death punishment means, if an individual commits a specific sort of offence then he could be punished handiest with the death sentence. There are eleven offences under IPC,1860 i.e punishable by death sentence. For Murder, multiple murders, ex-Murder, Dacoity escorted by murder, Abetment of suicide by minor or insane person etc. Section 303 IPC[6] prescribed obligatory capital punishment for the offence of murder committed by an individual who is under a sentence of life detainment. The fundamental condition to grant Death penalty under 303 is, an individual should commit murder who is as of now carrying out a life sentence. Section 303 makes capital punishment compulsory when a murder is committed by life-convict.

The reason behind the inclusion of section 303

The framers of India penal code must have the following ideology or reasons behind the inclusion of section 303.

1. First and foremost reason is to offer insurance to prison staff.

2. Another essential object is to treat murders committed by an ordinary person and those by a lifer differently.

3. The sentence of life imprisonment was not adequate to reform the culprit and the convict was solidified to murder while carrying out that punishment, the loan punishment which he deserved was a death sentence.

4. It turns out to be certain that numerous administrations are not keen on equity and justice, but instead concealment and control.

5. By utilizing capital punishment so subjectively, authorities show that what's inadmissible' in society.

Constitutionality of section 303

The question of the constitutional validity of mandatory death sentence(section 303 of the Indian Penal Code, 1860) came up under the watchful eye of the apex court in case of Mithu V. State of Punjab[7]. The primary contention laid before the apex court regarding the constitutional validity of section 303 of IPC,1860 is a violation of Article 21(Right to Life) and Article 14[8](Right to equality) of Indian constitution,1950.

The judgement was conveyed by Chief Justice Chandrachud, heading a five judges constitutional bench that section 303 of the IPC is void and unconstitutional because it violates Right to life and personal liberty enshrined in Article 21 and also Article 14 as it infringes the guarantee of equality. The legislation assumes that life convicts are a hazardous type of mankind as a class, the court declares that the assumption is not supported by any scientific data and justification, so won't be put outside the domain of Article 14 of the Constitution of India. The learned judges also observed that the section was initially considered debilitating attacks by life-convicts on prison staff, but surpasses its aim. However, the procedure by which section 303 authorizes the deprivation of life is unfair and vile, the section is unlawful. Under Mithu Singh case, The court said that there is no logical distinction in punishments of the person committing murder who is under life imprisonment and a person who commits murder and they are not under a life sentence.

The court struck down section 303 because according to the 42nd report of the Law Commission[9] "the primary object of making the death sentence mandatory for an offence under this section seems to give protection to prison staff", the provision was embedded to reduce the murders of white officers being committed by revolutionaries during British rule. The Inclusion of section 303 during British Rule turns out to be certain that governments are not interested in justice, but rather concealment and control. However, in today's era section 303 is not a necessity.

Reasons behind the poor implementation of Section 303

1) Signal differences/ lack of coordination: The first and primary reason for this poor enforcement of judicial declaration is the signal failure between different branches of the government. If Judiciary once makes a declaration it must be properly communicated to the Executive and also to the Legislature.

So, this has not happened because that was a lack of coordination between the different branches.

2) Active non-compliance: There was a lack of active non-compliance of judicial declaration, other organs such as Legislature and Executive didn't make sure that final decisions were enforced.

3) Lack of communication: There is no official channel or method for sharing information about such a decision. For any bureaucratic structure to survive, there is a stepwise hierarchy. The decision taken by the higher court's or authorities must be properly communicated to the lower level too.

4) Amendment of the statute by Parliament: Parliament is not amending the statute to remove the provision that is declared unconstitutional. Unless the parliament has taken up steps to remove the void provision it will continue in a statute book.

5) Lack of notifications: The government officials should consult notifications and circulars issued by relevant ministries.

6) Absence of a formal system for information sharing.

Conclusion and suggestions

Indian judiciary does not have the proper authority to enforce its own decisions. The Supreme Court declared the law unconstitutional but after the declaration, it does not have the authority to enforce the decisions. There is a need to avoid human error in enforcing judicial decisions. And the implementation of such unconstitutional laws is a denial of the right to life and personal liberty of an individual. People will suffer the indignity of lawless arrest because there is no such law. Those peoples who were detained and arrested will stand to lose their rights, there is a need to move from a system where communication about judicial decisions is at the mercy of the offices.



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