• A Capital Punishment or Death sentence is a legal process where a person

is put to death by the state as a punishment for a crime committed by him/

her.It is the highest degree of punishment that can be awarded to an
individual under any penal law in force in any part of the world.
• In India, section 368 of the Criminal Procedure Code gives the power of
con rmation of death sentence to the High Courts.
• Capital Punishment is a legal death penalty in India. India gives capital
punishment for a serious offences .In India capital punishment is awarded
for most heinous and grievous offence.
• In India Article 21 of the Indian constitution is“ protection of life and
personal liberty”. This article says “ No person shall be deprived of his life
or personal liberty except as according to procedure established by law”
• Mithu vs state of Punjab, the Supreme Court struck down the IPC Section
303 which provide mandatory death sentence for life convicts
Background:
• During the time of empires in India, the ruler of a certain state was the
ultimate authority and the source of all justice. The ruler, thus had the
power to condemn any man to death whoever may he or she be.
• In the British era also, there have been countless instances of Indians
being hanged after trial or even before itHowever, after 1947 when India
became a democratic state, the system of awarding death penalties
changed drastically.
• The Indian Penal Code in accordance with the provisions enshrined in the
Constitution of India provided for awarding of capital punishment for certain
speci c offences only.
• Article 21 of the Constitution, which guarantees to every citizen the
fundamental right to life, also expressly states that no person shall be
deprived of his life or personal liberty except according to procedure
established by law.
• Hence, not all offences are punishable by death, in fact, most of the
agencies do not elicit capital punishment; instead, it is only reserved for the
most heinous of crimes.
• CRIMINOLOGICAL APPROACH OF CAPITAL PUNISHMENT IN INDIA
• There are two types of theories of punishment in capital punishment
• 1. Reformative theory
• 2. Preventive theory
• 

Reformative theory: “an eye for an eye turn the whole world blind”by
Mahatma Gandhi. This line is the thrust of reformative theory of
punishment. All theories are based on the principle to reform the
offender.The main objective of all these theory is to reform the
convicted person through individual treatment.The main aim of the
reformative theory is to educate or reform the offender by himself. An
offender is punishment for his own bene t . This theory has been
supported from various sides. Reformative theory support criminology.
Criminology says every crime as a
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• diseased phenomenon,a mild form of insanity. criminal
anthropology ,criminal sociology and psychoanalysis supports Reformative
theory. This theory aims to correct the criminal minds into a good manner
and they can lead a life like normal citizen. This theory criticise all kind of
corporal punishment
• Criminal Anthropology :The modern criminal anthropology says crime is a
disease. Criminal anthropology says it is necessary to treat a criminal
instead of punishing him. Hospitals and welfare homes are better adoption
place to decrease crime than prisoners.Some crimes are happened by the
normal persons due to wilful violation of moral law. Sometimes crimes are
caused due to mental or physical defect.
• Criminal sociology: Criminal sociology says to improve social and economic
conditions to remove inequalities, than to punish the criminal. Punishment
cannot change the crimes and crimes can be changed by justice and
equality.
• Psychoanalysis: psychoanalysis is related to criminal anthropology and
criminal sociology. Psychoanalysis support reformative theory. Instead of
punishment education and psychoanalytic treatment is needed for
preventing crimes.Reformative theory is superior among theories of
punishment. Some crimes are more helpful to preventive theory.

• PREVENTIVE THEORY
• “ prevention is better than cure”
• The main aim of this preventive theory is to keep the offender away from
the society. According to preventive theory the main aim of punishment is to
set an example for others and prevent them from criminal activities. In this
theory the offenders are punished with death penalty ,life imprisonment.
Preventive theory was supported by many law reformers because
preventive theory has humanising Penal law. On many reformers view the
preventive theory has a real effect on offenders. The main purpose of
preventive theory is to take steps that accused person does not repeat the
crime after enjoyment of Punishment. This theory explains that capital
punishment as an most severe form of punishment because of its detriment
effect. A man has taken the life of another man. So he is responsible to be
deprived of his life.
Offences punishable by death in India:

According to the Indian Penal Code along with other acts eleven, offences
committed within the territory of India are punishable by death:
Section under IPC or
Offense
any other Act
Being a party to a criminal
120B conspiracy to commit a capital
offence
Waging, or attempting to wage
121 war, or abetting waging of war,
against the Government of India
Abetting a mutiny in the armed
132 forces (if a mutiny occurs as a
result), engaging in mutiny
Giving or fabricating false
194 evidence with intent to procure a
conviction of a capital offence
302, 303 Murder
305 Abetting the suicide of a minor
Kidnapping, in the course of
which the victim was held for
364A
ransom or other coercive
purposes
Rape if the perpetrator in icts
injuries that result in the victim’s
376A, Criminal law
death or incapacitation in a
amendment act, 2013
persistent vegetative state, or is
a repeat offender
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 Banditry with murder – in cases
where a group of ve or more
individuals commit banditry and
396 one of them commits murder in
the course of that crime, all
members of the group are liable
for the death penalty.
Part II, Section 4 of
Aiding or abetting an act of Sati
Prevention of Sati Act
31A of the Narcotic Drugs
Drug traf cking in cases of
and Psychotropic
repeat offences
Substances Act
 

Some other criminal statutes that provide for the death penalty as a form of
punishment.
▪ Direct or indirect abetment of sati is punishable with Death penalty under
the Commission of Sati (Prevention) Act, 1987.
▪ Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence
leading to the execution of an innocent member belonging to the SC or ST
would attract the death penalty.
▪ Besides these, rape of a minor below 12 years of age is punishable with
death under Protection of Children from Sexual Offences (POCSO) Act,
2012.
▪ Financing, producing, manufacturing as well as the sale of certain drugs
attracts the death penalty for repeat offenders under the Narcotic Drugs
and Psychotropic Substances Act, 1985.
▪ Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts
also provide the death penalty for certain speci ed offences committed by
members of the armed forces.

Role of International organizations in supporting removal of capital

punishment
• Well known International human rights organisations such as Amnesty
International, European Centre for Human Rights (ECHR), have
constantly been striving to achieve the goal of worldwide abolition of death
penalty for any offence.
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 • One of the major achievements of the international human rights
organisations has been the passing of Juvenile Justice (Care and
Protection of Children) Act, 2000. Before the passing of the Juvenile
Justice Act in 2000, although never practised, the law allowed people under
the age of 18 to be hanged.
• Moreover, United Nations is also making efforts to abolish the death
penalty.
• In the year 2007, the UN proposed to all its member nations to put a stop
on awarding death penalty in their respective states for any kind of offence.
However, India rmly rejected the proposal.
• In 2018, the UN adopted its seventh resolution for abolishing this
punishment. However, India again vote against the resolution.
Global capital punishment scenario

• According to Amnesty International, in 2017, 142 countries had abolished

the death penalty in law or practice.
• Burkina Faso abolished the death penalty in its Penal Code in June 2018.
In 2018, Gambia and Malaysia declared an of cial moratorium on
executions.
• In 2018, most known executions took place in China (highest executions),
Iran, Saudi Arabia, Viet Nam and Iraq. Excluding China, 78% of all reported
executions took place in just four countries: Iran, Saudi Arabia, Viet Nam
and Iraq.
• Several countries saw a rise in executions, including Belarus, Japan,
Singapore, South Sudan and USA.
• At least 690 executions were known to have taken place globally in 2018
which is a decrease of 31% compared to 2017 and reached the lowest
gure in the past decade.
• In 2018, Indian courts imposed 50% more death sentences than in the
2017 (162 from 108). which is the highest number of death sentences
imposed in nearly two decades.

Capital Punishment in International Human Rights Treaties

• The International Covenant on Civil and Political Rights (‘ICCPR’) is

one of the key documents discussing the imposition of death penalty in
international human rights law. The ICCPR does not abolish the use of the
death penalty, but Article 6 contains guarantees regarding the right to life.
• The Second Optional Protocol to the ICCPR, aiming at the abolition of the
death penalty is the only treaty directly concerned with abolishing the
death penalty, which is open to signatures from all countries in the world. It
came into force in 1991, and has 81 states parties and 3 signatories.
• Similar to the ICCPR, the Convention on the Rights of the Child (‘CRC’)
explicitly prohibits the use of the death penalty against persons under the
age of 18.
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 • The Convention against Torture and Cruel, Inhuman or Degrading
Treatment or Punishment (‘the Torture Convention’) and the UN
Committee against Torture have been sources of jurisprudence for
limitations on the death penalty as well as necessary safeguards. The
Torture Convention does not regard the imposition of death penalty as a
form of torture or cruel, inhuman or degrading treatment or punishment
(‘CIDT’). However, some methods of execution have been seen as forms of
CIDT by UN bodies.
• In the evolution of international criminal law, the death penalty was a
permissible punishment in the Nuremberg and Tokyo tribunals, both of
which were established following World War II. Since then, however,
international criminal courts exclude the death penalty as a permissible
punishment.
Of the treaties mentioned above, India has rati ed the ICCPR and the CRC, and
is signatory to the Torture Convention but has not rati ed it.
Challenging constitutional validity
• The constitutional validity of the death penalty has been challenged many
times but the decision has remained same to not to abolish capital
punishment.
• It was rst challenged in Jagmohan v. State of Uttar Pradesh in which the
Supreme Court upheld its validity stating that the capital punishment cannot
be abolished in the public interest as it violates Article 19 of the
Constitution.
• The 20th Law Commission in 2015, under the chairmanship of Justice A.
P. Shah, recommended the abolition of death penalty except in terror
related cases. However, the commission did not recommend this abolition
immediately, but in a way that its complete abolition can be brought about in
the near future.
In the case of Macchi Singh v. State of Punjab AIR 1983 SC957 in order to
further elucidate the “rarest of the rare rule”, situations where the application of
death sentence could be justi ed Justice M.P Thakkar gave the following
illustrations:
I. Manner of Commission of Murder
When the murder is committed in an extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense and extreme indignation of
the community. For instance,
(i) When the house of the victim is set a ame with the end in view to roast him
alive in the house. (ii) When the victim is subjected to inhuman acts of torture or
cruelty in order to bring about his or her death. (iii) When the body of the victim is
cut into pieces or his body is dismembered in a endish manner
II. Motive for Commission of murder
When the murder is committed for a motive which evinces total depravity and
meanness. For instance when (a) a hired assassin commits murder for the sake
of money or reward (2) a cold-blooded murder is committed with a deliberate
design in order to inherit property or to gain control over property of a ward or a
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person under the control of the murderer or vis-a-vis whom the murderer is in a
dominating position or in a position of trust, (c) a murder is committed in the
course for betrayal of the motherland.
III. Anti-Social or Socially abhorrent nature of the crime
(a) When murder of a Scheduled Caste or minority community etc., is committed
not for personal reasons but in circumstances which arouse social wrath. For
instance when such a crime is committed in order to terrorise such persons and
frighten them into eeing from a place or in order to deprive them of or make
them with a view to reverse past injustices and in order to restore the social
balance.
(b) In cases of ‘bride burning’ and what are known as ‘dowry-deaths’ or when
murder is committed in order to remarry for the sake of extracting dowry once
again or to marry another woman on account of infatuation.
IV. Magnitude of Crime
When the crime is enormous in proportion. For instance, when multiple murders
say of all or almost all the members of a family or a large number of persons of a
particular caste, community, or locality, are committed.
V. The personality of the Victim of murder
When the victim of murder is (a) an innocent child who could not have or has not
provided even an excuse, much less a provocation, for murder, (b) a helpless
woman or a person rendered helpless by old age or in rmity (c) when the victim
is a person vis-a-vis whom the murderer is in a position of domination or trust (d)
when the victim is a public gure generally loved and respected by the
community for the services rendered by him and the murder is committed for
political or similar reasons other than personal reasons.
• In Bacchan Singh v. The state of Punjab AIR 1980 CRLJ 653 the
Supreme Court made it clear that the death penalty could only be awarded
in the ‘rarest of rare’ cases which shows the intention of the court to
minimise the practice of awarding capital punishment. This judgement
became a benchmark for all the courts in India on which they were to base
their decisions of giving death sentences in cases where the guilty had
committed a capital offence.

In Ramnaresh and ors v. State of Chhattisgarh AIR 2012 SC1357 Supreme

Court asked to award death penalty to accused for his brutal act done by gang
rape and then murder. The victim has been raped by brother in law and his
drunken friends and while gang rape she was been strangulated to death. The
court while discussion imposed the principle of rarest of rare case for awarding
capital punishment. Supreme Court while awarding death penalty focuses on the
nature of offence, its circumstances, extent of brutality, motive concluded that it
is essential for the court to examine the cases on their facts in light of announced
principles. But apparently when we re ect these principles it says merely
because a crime is heinous it may not be a suf cient reason to award capital
punishment as the fact of both cases are different. The term rarest of rare
focuses to be imposed on exceptional case with special reason. This
principle has been divided into 2 parts i.e.
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 - Aggravating Circumstances - Mitigating Circumstances

Aggravating Circumstances: - A court may impose death penalty under his

discretion only -
x If the murder has been committed after pre planning and involve brutality.
x Murder involve exceptional immorality
x Murder is of member of armed force of union or of police or of any public
servant
committed which such member was on duty.
x Any consequence done by public servant in discharge of lawful discharge duty
under Sec 43 of CrPC
Mitigating Circumstances- Court shall take following circumstances
x Offence committed under mental or emotional disturbance.
x Young age accused shall not be penalised with capital punishment.
x Probability that accused would not commit crime against society
x Through fact and circumstance it was believe that the accused was morally
justi ed
while committing offence.
x Act was done under duress.
x Condition of accuse prove that he was mentally weak.
Supreme Court clarify that in mitigating circumstances the bench shall not
provide death penalty under rarest of rarest case.
After balancing both aggravate and mitigating circumstances and by following the
principle court came on conclusion that the guilt must be provided life
imprisonment. This decision was based on 3 important reasons -
- Accused were young
- Death caused by strangulation
- Victim was not a lawful married wife but having extra marital affair with accused
i.e brother in law
While correlating the two landmark judgment of Bacchan singh v. State of Punjab
and Jagmohon Singh v. State of UP where capital punishment applied on
principle of rarest of rare case was to protect the power from arbitrariness. In
Jagmohan singh v state of U.P the purpose of death penalty should be
established on the principles also mention that exercise of discretion on the
principle is the safest possible safeguard for accused. In Bacchan Singh v State
of Punjab it was held that in section 354(3) of Cr.PC the special reason is very
loose and hence needed an odd and random interpretation. But according to
court establishing a standard is a policy matter to be done by legislation. Earlier
in Jagmohan Singh v State of Uttar Pradesh it was held that the awarding of
death penalty will be court discretion by following the recognised principles.

In Ajmal Kasab Case who was caught in 26/11 Mumbai terror attack case where
the accused was awarded death penalty by Supreme Court by observing that the
whole crime was planned in Pakistan. To deal with this case court applied the
guideline which was established in Bachan and Machhi Singh’s case.
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 A milestone in the sentencing policy is the concept of ‘life imprisonment till the
remainder of life’ evolved in Swamy Shradhananda. In this case, a man
committed murder of his wife for usurping her property in a cold-blooded,
calculated and diabolic manner. The trial court convicted the accused and death
penalty was imposed on him which was af rmed by the High Court. Though the
conviction was af rmed by this Court also on the point of sentencing, the views of
a two-Judge Bench of this Court, in Swamy Shradhananda v. State of Karnataka
(2007) 12 SCC 282 differed, and consequently, the matter was listed before a
three-Judge Bench, wherein a mid way was carved. The three-Judge Bench, was
of the view that even though the murder was diabolic, presence of certain
circumstances in favour of the accused, viz. no mental offences were yet to
become a menace for the society compelling the Legislature to create special
slots for those offences in the Penal Code. At the time of Machhi Singh, Delhi
had not witnessed the infamous Sikh carnage. There was no attack on the
country's Parliament. There were no bombs planted by terrorists killing
completely innocent people, men, women and children in dozens with sickening
frequency. There were no private armies. There were no ma a cornering huge
government contracts purely by muscle power. There were no reports of killings
of social activists and `whistle blowers'. There were no reports of custodial
deaths and rape and fake encounters by police or even by armed forces. These
developments would unquestionably nd a more pronounced re ection in any
classi cation if one were to be made today. Relying upon the observations in
Bachan Singh, therefore, we respectfully wish to say that even though the
categories framed in Machhi Singh provide very useful guidelines, nonetheless
those cannot be taken as in exible, absolute or immutable. Further, even in those
categories, there would be scope for exibility as observed in Bachan Singh
itself.” physical pain being in icted on the victim, confession of the accused
before the High Court etc., made them reluctant to award death sentence.
However, the Court also realised that award of life imprisonment, which
euphemistically means imprisonment for a term of 14 years (consequent to
exercise of power of commutation by the executive), would be equally
disproportionate punishment to the crime committed. Hence, in Swamy
Shradhananda the Court directed that the accused shall not be released from
the prison till the rest of his life.
this Court in Sangeet and Another v. State of Haryana (2013) 2 SCC 452,
extensively analysed the evolution of sentencing policy in India and stressed on
the need for further evolution. The Court emphasised on making the sentencing
process a principled one, rather than Judge-centric one and held that a re-look is
needed at some conclusions that have been taken for granted and we need to
continue the development of the law on the basis of experience gained over the
years and views expressed in various decisions of this Court.
As dealing with sentencing, courts have thus applied the “Crime Test”, “Criminal
Test” and the “Rarest of the Rare Test”, the tests examine whether the society
abhors such crimes and whether such crimes shock the conscience of the
society and attract intense and extreme indignation of the community. Courts
have further held that where the victims are helpless women, children or old
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 persons and the accused displayed depraved mentality, committing crime in a
diabolic manner, the accused should be shown no remorse and death penalty
should be awarded.
In Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546, Justice
Madan B. Lokur (concurring) while elaborately analysing the question of
imposing death penalty in speci c facts and circumstances of that particular
case, concerning rape and murder of a minor, discussed the sentencing policy of
India, with special reference to execution of the sentences imposed by the
Judiciary. The Court noted the prima facie difference in the standard of yardsticks
adopted by two organs of the government viz. Judiciary and the Executive in
treating the life of convicts convicted of an offence punishable with death and
recommended consideration of Law Commission of India over this issue.
In Mukesh & Anr v. State of NCT of Delhi &ors 2017, the Supreme Court
observed, The question would be whether the present case could be one of the
rarest of rare cases warranting death penalty. Before the court proceed to make
a choice whether to award death sentence or life imprisonment, the court is to
draw up a balance-sheet of aggravating and mitigating circumstances attending
to the commission of the offence and then strike a balance between those
aggravating and mitigating circumstances. Two questions are to be asked and
answered:- (i) Is there something uncommon about the crimes which regard
sentence of imprisonment for life inadequate; (ii) Whether there is no alternative
punishment suitable except death sentence. Where a crime is committed with
extreme brutality and the collective conscience of the society is shocked, courts
must award death penalty, irrespective of their personal opinion as regards
desirability of death penalty. By not imposing a death sentence in such cases, the
courts may do injustice to the society at large.

Arguments in favor of Capital punishment

• A guilty must be punished proportionate to the severity of the crime.
• Giving a killer the death sentence will stop others doing such serious crime.
• The very small chance of executing the wrong person is balanced by the
bene ts to society of putting off other murderers.
• Death sentence in India should be there in the statute books to contain
terrorism.
• Capital punishment is an act of justice and not an act of vengeance.
• As per Japanese, the death penalty reinforces the belief that bad things
happen to those who deserve it. This reinforces the contrary belief that
good things will happen to those who are good.
Arguments against Capital punishment

• Everyone has a right to live, even those who commit murder, sentencing a
person to death and executing them violates that right.
• Innocent people might get killed because of mistakes or aws in the justice
system.
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 • Every State has the sovereign right to determine its own legal system and
appropriate legal penalties.
• Some capital crimes are committed in such an emotional state that the
perpetrator did not think about the possible consequences.
• Capital punishment is vengeance rather than retribution and is a morally
dubious concept.
• Death sentence has not served as a deterrent to control crime.
• Death sentence violates international human rights laws.
• Many executions are botched and thus produce excessive and unjusti ed
pain and torture.
• Most nations have banned capital punishment, and those nations that still
employ it are often very authoritarian and brutal nations.
CLEMENCY POWERS
If the Supreme Court turns down the appeal against capital punishment, a
condemned prisoner can submit a mercy petition to the President of India and
the Governor
of the State. Under Articles 72 and 161 of the Constitution, the President and
Governors, respectively have the power “to grant pardons, reprieves, respites or
remissions of
punishment or to suspend, remit or commute the sentence of any person
convicted of any offence” .Neither of these powers are personal to the holders of
the Of ce, but are to be exercised (under Articles 74 and 163, respectively) on
the aid and advice of the Council of Ministers.
Clemency powers, while exercisable for a wide range of considerations and on
protean occasions, also function as the nal safeguard against possibility of
judicial error or miscarriage of justice. This casts a heavy responsibility on those
wielding this power and necessitates a full application of mind, scrutiny of judicial
records, and wide ranging inquiries in adjudicating a clemency petition, especially
one from a prisoner under a judicially con rmed death sentence who is on the
very verge of execution.
JUDICIAL REVIEW OF EXERCISE OF MERCY POWERS
The Supreme Court in Shatrughan Chauhan case has recorded that the Home
Ministry considers the following factors while deciding mercy petitions:
a) Personality of the accused (such as age, sex or mental de ciency) or
circumstances of the case (such as provocation or similar justi cation);
b) Cases in which the appellate Court expressed doubt as to the reliability of
evidence but has nevertheless decided on conviction;
c) Cases where it is alleged that fresh evidence is obtainable mainly with a view
to see whether fresh enquiry is justi ed;
d) Where the High Court on appeal reversed acquittal or on an appeal enhanced
the sentence;
e) Is there any difference of opinion in the Bench of High Court Judges
necessitating reference to a larger Bench;
f) Consideration of evidence in xation of responsibility in gang murder case;
g) Long delays in investigation and trial etc.
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