Introduction:

Death penalty can be defined as the lawful infliction of death as a punishment for wrongful
act. The judicial decree that someone is punished in this manner is a death sentence, while the
actual process of killing the person is an execution.
Capital punishment can be traced back as early as 1750 B.C, in the lex talionis of the Code of
Hammurabi. Capital punishment is currently being practiced in 58 countries, including the
USA, Japan, Cuba and Singapore. Awarding death sentence has always been an hot topic for
debates in India as well as in other developed countries. Some of the countries have
completely struck down the concept of death penalty as a form of punishment.
Capital punishment is a legal death penalty in India. The first hanging in Independent India
was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on
15th November,1949. The number of people executed in India since the nation achieved
Independence in 1947 is a matter of dispute; official government statistics claim that 52
people had been executed since Independence. However, research by the People’s Union for
Civil Liberties indicates that the actual number of executions is in fact much higher, as they
located records of 1,422 executions in the decade from 1953 to 1963 alone. Research
published by National Law University, Delhi on death row convicts since 2000 had found
that of the 1,617 prisoners sentenced to death by Trial Courts in India, capital punishment
was confirmed only in 71 cases. National Law University, Delhi also confirmed that since
1947, there have been 755 executions in India. In 2015 alone, 101 convicts were given capital
punishment, but in 49 cases the sentence was eventually commuted to a life term. The most
recent of which was carried in 2015, was of Yakub Memon who was convicted for the 1993
Mumbai blasts. This gap, in the number of death penalties awarded and the number that is
actually carried out, is once again the result of the judicial confusion that exists over capital
punishment in India.
After the 35th Law Commission report which was published in the year 1967, the Criminal
Procedure Code was amended directing the Courts to furnish special reasons while
pronouncing Capital Punishment.
In this case of Bachan Singh v Union of India, it was said that “special reasons” are required
to be recorded by the Court for awarding Death Sentence. The Supreme Court also
announced important limitations on the death penalty by setting the ‘rarest of rare’ doctrine.
Issues Raised:
1) Whether the death penalty provided for the offence of murder in Section 302, Indian
Penal Code is unconstitutional?

2) Whether the sentencing procedure issued by Section 354(3) of the Code of Criminal
Procedure,1973 (Act 2 of 1974) is unconstitutional on the ground that it entitles the
Court with unfettered discretion?