CHAPTER 4

JUDICIAL APPROACH TOWARDS DEATH PENALTY FOR RAPE

4.1 Meaning and Concept of Death Penalty

A rapidly expanding country like India is mostly known for its rising crime rates and
criminals. Capital punishment which is commonly known as death penalty means execution
of an offender sentenced to death after conviction by a court of law for a criminal offense.
By common use in jurisprudence, criminology and penology, capital sentence means a
sentence of death. It is a legal procedure wherein a wrongdoer is executed for its crime by the
state. However, death penalty is used interchangeably with capital punishment as imposition
of penalty is not always followed by execution because of the possibility of commutation to
life imprisonment. Capital punishment is awarded for most serious and severe crimes such as
murder, rape and crimes against the state or nation. it is the punishment which is awarded for
the most heinous, grievous and detestable crimes against humanity.

Every punishment is mostly based on two principles, viz., firstly, a person who has done
something illegal should suffer as a result of it and secondly, the penalty for a crime instils
dread in the minds of criminals and other people. Capital punishment is said to have a
deterrent effect. Like any other penalties, capital punishment is intended to deter future crime.
The death penalty is awarded for egregious crimes against humanity. In India, death penalty
is recognized as a punishment under the Indian legal system. The Indian Penal Code (IPC)
has a provision for types of punishments wherein death sentence is one of them.

However, death penalty is also seen as a violation of human rights guaranteed by article 21 of
the Constitution of India. According to article 21, “No one shall be deprived of his or her
personal liberty unless in accordance prescribed by law.” Accordingly, the United Nations
(UN) has also explored the issue of “Abolition of the Death Penalty”, which it considers to be
a violation of human rights. The UN prioritizes reformative theory of punishment over
deterrent theory of punishment.

In a case, J. V.R Krishna Iyer stated that- “The special reason must relate, not to the crime but
to the criminal. The crime may be shocking and yet the criminal may not deserve the Death
Penalty”. The Constitution of India grants the president and governor of the nation or state
mercy authority to commute or forgive or postpone death sentences. Based on the facts of the
case, the Court may impose death sentence if it determines that life imprisonment is
insufficient punishment for the criminal.

4.2 Evolution of Death Penalty in India

From a global perspective, death penalty was first formally introduced in criminal laws in the
18th century by King Hammurabi of Babylon. The death sentence is prescribed by the
Hammurabi for 25 offences, including theft and perjury. The death penalty as punishment is
also mentioned in the Hittite code from the 14th century B.C and only the most heinous
offences carried the death penalty. In almost for all the crimes during the era of The
Draconian Code of Athens in the 7th century B.C, death penalty was the only punishment that
was awarded. During the colonial times in the United States the execution of death sentence
was documented for the first time in 1608 by officials of the Virginia government for
suspected conspiracy to betray the British to the Spanish. Moreover, around 1500 in
England, only major felonies carried the death penalty for offences such as treason, murder,
larceny, rape and arson. Similarly, the Greeks and Romans invoked the death penalty for a
wide variety of offences. The Bible prescribes death for murder and many other crimes
including kidnapping and witchcraft.

In India, the need for death penalty has been mentioned in Ramayana and Mahabharata. The
death penalty has been an accepted punishment since the ancient times. It has always been
used to deliver justice in India by rulers of various kingdoms through the centuries. Death
penalty is not utilized to deliver justice in India, but also in the majority of modern countries.
The Mauryan dynasty adopted the retributive theory of punishment which is an eye for an
eye, a hand for a hand and so on. According to Kautilya- “Punishment was the universal
means of ensuring public security.” In different kingdoms during ancient India, there were
various punishments in the form of death penalty imposed by the kings such as chopping for
the head, dragging the body by the horse until the individual died.

The Muslim jurisprudence also has the concept of capital punishment. According to the
Muslim jurisprudence, the main purpose of the death penalty is to have a deterrent effect on
the society to do certain acts which are against personal laws or laws meant or declared by
Prophet Mohammad.
During the independence of India in 1947, India got its 1861 penal code which provided for
the death penalty for murder. During the year between 1947 and 1949 for the drafting of the
constitution several members of the constituent assembly expressed the idea of abolishing the
death penalty but no such provision was incorporated in the constitution. A bill was also
introduced in both the houses of parliament over the next two decades, but it was not adopted.
It has been recorded that around 3000 to 4000 executions occurred between 1950 and 1980.
In the case of Bachhan Singh , the Supreme Court held that death penalty should only be
given int the rarest of rare cases, but what defines rarest of rare cases is not still clear.

1.6 Constitutionality of the Death Penalty in India

The constitution of India is an amalgamation of many constitutions i.e., the constitution of

America, Britain and Japan. The main provision of the constitution of India guaranteeing the
right to life has been borrowed from the American and the Japanese constitutions. The right
to life is an inalienable and indispensable right recognized by the constitution of India.

On the other hand, the concept of death penalty has always been challenged. In this regard,
the decision in Bachhan Singh v. State of Punjab is momentous. The constitutionality of
death penalty in India was first challenged in the above-mentioned case. In Bachhan Singh,
the court upheld the constitutionality of the death penalty and it sought to formulate a
framework to guide sentencing discretion in capital cases. In this case, an attempt was made
for the first time to guide the exercise of judicial discretion in sentencing.

With the debate which is going on since decades as to whether death penalty should be
abolished or not, the question of constitutionality of death penalty comes into the spotlight.
Many advocates the abolition of death penalty and a basic question comes to the mind of
many people as to how something so brutal, barbaric, uncivilized, inhumane and cruel be
constitutional.

The Article 21 of the constitution of India ensures the fundamental right to life and liberty for
all persons. It states that “no person shall be deprived of his or her personal liberty except
according to procedure established by law.” Article 21 construes that the state to deprive
someone of his or her life, it needs to frame a procedure which is fair and valid.

The concept of capital punishment as a penalty has been discretionary as it was first
introduced in the Indian Penal Code. Until 1955 the Code of Criminal procedure required
reasons to recorded if a capital crime was not dealt a death sentence. However, upon the
adoption of the new Code of Criminal Procedure in 1973, the courts were required to record
“special reasons” as to why they imposed the death penalty. This too was not able to wipe
away the doubts that a subjective element exists in awarding the sentence of death, leading to
several cases challenging the constitutional validity of the death penalty.

The constitutional validity of the death penalty was upheld in Jagmohan Singh v. State of
Uttar

Pradesh6. It was contended that the death sentence was unconstitutional as no procedure was

provided for awarding the death sentence, and that the procedure under the CrPC was
confined

only to findings of guilt. The court held that the choice of death sentence is done in
accordance

with the procedure established by law and observed that the judge makes the choice between

capital sentence or imprisonment of life based on circumstances and facts and nature of crime

brought on record during trial. The bench unanimously upheld that capital punishment was
not

violative of Articles 14, 19 and 21. It was later stressed in another case that that death penalty
is

violative of articles 14, 19 and 21, and to impose death penalty the special reason should be

recorded for imposing death penalty in a case and the death penalty must be imposed only in

extraordinary circumstances.

The principal cases on when the death penalty should be imposed are Bachan Singh v. State
of

Punjab and Machhi Singh v. State of Punjab. In the former, the Supreme court overruled its

earlier decision in Rajendra Prasad and was of view that death penalty is not unreasonable as
an

alternative punishment for murder and hence not violative of articles 14, 19 and 21 of the
Constitution of India. The rarest of rare doctrine was formulated in this case and it was held
that

the death penalty was only to be imposed in the ‘rarest of rare’ cases. The latter case
summarized

the former and laid down the broad outlines of the exceptional circumstances in which the
when

the sentence of death should be imposed, considering the nature of the crime and the

circumstances of the criminal, and taking into account all aggravating and mitigating

circumstances.

This resultant ‘rarest of rare’ doctrine serves as a guideline for awarding the death penalty.
The Court in Bachan Singh recognized that each case is unique and has to be decided on its
own facts and circumstances. For this reason, the Court refused to provide any categorization
of the kind of

circumstances that would invoke the death penalty. And courts were directed to determine
whether a case is rarest of rare keeping in mind judicial principles derived from a study of
precedents as to the kinds of factors that are aggravating and those that are mitigating.
Bachan Singh thus endorsed the twin elements of individualized yet principled sentencing10.
At the core of this doctrine lies the complete irrevocability of this punishment, which is why
the courts devised this to be one of the most demanding and compelling standards in the law
of crimes11. The emergence of the ‘rarest of rare’ dictum marked the beginning of the
constitutional regulation of the death penalty in India.