CONSTITUTIONALITY OF DEATH PENALTY

CONSTITUTIONAL
VALIDITY OF CAPITAL
PUNISHMENT
2015-16
SUBMITTED TO: Ms. Nida Naqvi
SUBMITTED BY: Saif Ali
3rd year(V Sem)

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Table of contents
Acknowledgement..3
Introduction..4
Origin of capital punishment6
Legislation for death penalty7
Constitutionality of death penalty.10
Phase wise development16
Meaning of rarest of the rare.25
Recent cases...28
Conclusion..29
Refrences.30

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Acknowledgements
On the completion of this project I find that there are many persons to
whom I would like to express my gratitude, since without their help and cooperation the success of this educative endeavour would not have been
possible.
I welcome this opportunity to express my sincere gratitude to my teacher
and guide Ms. Nida Naqvi, who has been a constant source of
encouragement and guidance throughout the course of this work.
I am grateful to the IT Staff for providing all necessary facilities for carrying
out this work. Thanks are also due to all members of the Library staff for
their help and assistance at all times.
I am also grateful to my friend Pankaj Kumar for being helpful in his
difference and for her constant support.

SAIF ALI

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Introduction
All punishments are based on the same proposition i.e. there must be a
penalty for wrongdoing. Most systems of religion or ethics teach that bad
actions lead to bad consequence. There are two main reasons for inflicting
the punishment. One is the belief that it is both right and just that a person
who has done wrong should suffer for it; the other is the belief that
inflicting punishment on wrongdoers discourages others from doing wrong.
The death penalty also rests on the same proposition as other punishments.
Because of its drastic and irrevocable nature, it is even more open to debate
over its fairness, appropriateness and effectiveness than other
punishments. The proponents of death penalty believe that it is an effective
way to stop crime. They focus on the death penalty as a deterrent or
something that will stop or lesson crime. They believe that the death
penalty brings the most justice to the victim of a heinous crime. Death
penalty has been a mode of punishment since time immemorial. The
arguments for and against has not changed much over the years. Crimes as
well as the mode of punishment correlate to the culture and form of
civilization from which they emerge. At this point of time when the issue
[whether capital punishment must be abolished or not] is still raging, it will
be appropriate to remind ourselves as to how the legislatures and the apex
Court have dealt with this issue every time it has come up before them.
Another issue is regarding the extent of judicial discretion.

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MEANING OF CAPITAL PUNISHMENT1:According to oxford

Dictionary, Capital punishment is the legally authorized killing of someone
as punishment for a crime. Capital punishment is the death sentence
awarded for capital offences like crimes involving planned murder, multiple
murders, repeated crimes; rape and murder etc where in the criminal
provisions consider such persons as a gross danger to the existence of the
society and provide death punishment2. Capital punishment or the death
penalty is a legal process whereby a person is put to death by the state as a
punishment for a crime.

CAPITAL PUNISHMENT: AN EFFECTIVE DETERRENT

TO CRIME:
1 http://oxforddictionaries.com/definition/english/capital%2Bpunishment

2 http://www.legal-explanations.com/definitions/capital-punishment.htm

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There is a great deal of debate over how powerful a deterrent capital

punishment is. Most of us have an instinctive feeling that the death penalty
must deter, at least to some extent. Deterrence is one of the fundamental
reasons for punishment of any kind. Since death is considered the harshest
punishment available under the law, it seems logical that it must also be the
most effective deterrent to crime. The English barrister Sir James Stephen
remarked, No other punishment deters men so effectually from
committing crimes as the punishment of death. In any secondary
punishment, however terrible, there is hope; but death is death; its terror
cannot be described more forcibly3. The federal prisons now have custody
of a man sentenced to life imprisonment, who, since he has been in prison,
has committed three more murderers on three separate occasions- both of
prison guard and inmates. There is no further punishment that he can
receive. In effect, he has a license to murder4.

3 Quoted by Leonard A. Stevens in Death Penalty: The Case of Life vs. Death in the United States
(New York: Coward, McCann & Geoghegan, 1978), 73

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ORIGINS OF CAPITAL PUNISHMENT:

The death penalty was prescribed for various crimes in Babylon at least
3700 years ago. Some of the ancient society imposed it only for the most
heinous crimes and some imposed it for minor offences. For example,
under Romes law in the 5th century B.C., death was the penalty for
publishing insulting songs and disturbing the peace of the city at night.
Under Greeces Draconian Legal Code in the 7th century B.C., death was the
punishment for every crime. Beginning in ancient times the executions
were frequently carried out in public. Public executions provided benefits
for everyone. For the surviving victims of the condemned criminals, the
execution provided the grim satisfaction of witnessing the final punishment
of those who had wronged them. For the authorities, executions served as
graphic demonstrations of their determination to protect the public safety.
Public executions even helped the authorities to do their jobs serving as
grisly object lessons for potential wrongdoers. The extent or the nature of
the punishment depended as much on the social standing of the criminal as
4
Bring Back the Death Penalty, U.S. News & World Report (April 1976); reprinted in The Death
Penalty, ed. Irwin Isenberg (New York: H.W. Wilson, 1977), 133

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on the nature of the crime. The commoners were executed much more often
than nobles. Minorities and foreigners were treated more harshly than
members of the dominant group. The methods of execution were also
varied. The common modes of inflicting death sentence on the offender
were drowning, burning, boiling, beheading, hurling the offender from
rock, stoning, strangling, impelling, amputating, shooting by gun or
starving him to death. Hanging and beheading were the most common
methods of execution in Europe and Great Britain. At present the common
modes of execution of death sentence are asphyxiation, electrocution,
guillotine, shooting and hanging. The method of execution by electrocution
was first used at Auburn State Prison, New York on 1890 and is now being
extensively used in USA, UK, USSR, Japan and other European countries.
The use of Guillotine for execution was introduced in France in 1792. The
method of hanging the condemned prisoner till death has been commonly
in use in almost all the countries since ages. In India public hanging is now
held to be unconstitutional5.

CAPITAL
PUNISHMENT
LEGISLATIONS IN INDIA:

UNDER

VARIOUS

Capital punishment is prescribed as one of the punishments in various

provisions of the Indian Penal Code 1860, The Arms Act 1959, The Narcotic
Drugs and Psychotropic Substances Act 1985, and The Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, The Commission of Sati
(Prevention) Act, 1987, The Air Force Act, 1950, The Army Act 1950 and
5
Lachma Devi v. State of Rajasthan, (1986) Cri L.J. 364

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The Navy Act 1957. In the Prevention of Terrorism Act, 2002 also, there
was a provision for death penalty for causing death of persons using bombs,
dynamite or other explosive substances in order to threaten the unity and
integrity of India or to strike terror in the people. It is also interesting to
note that under the Arms Act, NDPS Act and the Scheduled Caste and
Scheduled Tribes Act, Capital Punishment is the only punishment for the
offence covered by those sections, thus leaving no room for the judiciary to
exercise its discretion. It is doubtful whether these provisions can stand the
test of the constitutional validity in the light of the decision in Mithu v.
State of Panjab10 Because in this case section 303 of the Indian Penal
Code16 was struck down as violative of Article 21 and 14 of the Constitution
of India, as the offence under the section was punishable only with capital
punishment and did not give the judiciary the power to exercise its
discretion and thus resulted in an unfair, unjust and unreasonable
procedure depriving a person of his life.

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ARGUMENTS FOR THE RETENTION6:

1. Capital punishment acts as a deterrent: If the death sentence is
removed, the feat that comes in the mind of people committing murders
will be removed. Do we want more of murders in our country or do we
want less of them? All sentences are awarded for security and protection of
society, so that every individual may live in peace. Capital punishment is
needed to ensure this security.
2. Elimination of the criminals: When the public peace is endangered
by certain particularly dangerous forms of crime, death penalty is the only
means of eliminating the offender.
3. Possibility of repeated murders: Society must be protected from
the risk of a second offence by a criminal who is not executed and who may
be released, after release may commit murder again.
4. Condition in India: In countries where capital punishment has been
abolished, the figure of homicide is very low; four in a million, or even less
than that.
5. Public opinion: Public opinion is substantially in favor of capital
punishment, and it would be unwise to abolish capital punishment contrary
to the wishes of the majority of the citizens.
6
Law Commission of India, 35th Report Volume I-III (Capital Punishment) September 1967,Ministry of
Law, Government of India.

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6. Prison administration: Keeping murderers alive in the prison

greatly complicates the work of prison administration. If all convicted
murderers were imprisoned, safety of the prison staff and the general
public from the dangerous prisoners would be at risk.
7. Saving of funds: Money of the citizens should not be spent on
maintaining people who cause great harm. The taxpayers should not be
called upon to pay for the maintenance of anti-social criminals for an
indefinite or for a very long period.
8. Proportionate to crime: The punishment should bear a just
proportion to the crime. Therefore, capital punishment is the only fit
punishment for those who have deliberately violated the sanctity of human
life.
9. More humane: Capital punishment in a painless and humane form is
less cruel than imprisonment for life.
10. No miscarriage of justice: If there is miscarriage of justice in one or
two cases, the higher courts can be approached. The whole machinery of
the Government would be there to protect the life of a person who is really
innocent.

ARGUMENTS FOR THE ABOLITION7:

7
Law Commission of India, 35th Report Volume I-III (Capital Punishment) September 1967,Ministry of
Law, Government of India

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1. Capital punishment should be abolished because it is a legalized,

revengeful and cruel destruction of Gods most wonderful creation, the
human being.
2. Immoral:. Capital punishment is morally indefensible. Society has no
right to take the life of any person. It is morally wrong for the State in the
name of the law to take the life deliberately. In eliminating the criminals, it
is stated; the State does not erase the crime, but repeats it.
3. Inhuman: Capital punishment is essentially inhuman. Death penalty is
a form of cruelty and inhumanity unworthy of a humane civilization; even
the most efficient methods of execution do not result in instantaneous and
painless death. Humanity demands that capital punishment comes to an
end.
4. Non-violence: Indian ideology is based on non-violence. Indian
tradition is based on reformation of the mind and spirit. Where it was the
opinion that only God could take away life given by him. Therefore a
murderer should be sent to a penitentiary and there given every chance of
reforming himself.
5. Irrevocable: Capital punishment is irrevocable. If an innocent person
is sentenced to death and executed, the greatest injustice results. When as a
result of an erroneous conviction, a man is sent to prison, he can be
compensated. But death admits of no compensation.
6. Unjust: The sentence of death injures the family of the offenders, and
thus imposes suffering on persons who have done nothing to deserve the
suffering.
7. Unequal application: Death penalty is applied unequally. Some
persons who have not sufficient financial means to defend themselves or
are morally unable to do so, suffer.[31] The penalty, therefore, which
should be the expression of absolute justice, often leads in practice to
injustices against individuals.

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8. An eye for an eye: It will suffice to note that the system of individual
revenge is no longer recognized. The punishment should not be given to
any offender having this principle in the mind.

Constitutional
penalty:

validity

of

Death

Indian constitution is an amalgam of many constitutions, i.e., the

constitution of America, Britain and Japan. It should not surprise anyone,
therefore, that the main provisions of the constitution of India
guaranteeing the right to life has been lifted from the American and the
Japanese constitutions. It may be added here that what we have borrowed
is the form or style of expression and not the right itself. The right to life
is not the something that constitutions create or even confer. The
constitution only recognises this inalienable and indispensable right. The
constitutional provision is therefore, only evidentiary value. Allan
Gledhill has given an interesting statement regarding it, which is:
In some of the older countries the right to life and liberty receives
more effective protection from constitutiona1 conventions than they do in
countries with constitutions elaborating the right. The degree of personal
liberty enjoyed by the average Indian is not remarkably less than that
enjoyed by a citizen of any other parliamentary democracy. 8
In a case under Section 302 of the IPC, the judges are supposed to
choose between death and imprisonment for life. They enjoyed a
8
Budhan Choudhry V. State of Bihar, A.I.R. 1955 S.C. 191.

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discretion to that effect, though the discretion is not totally unqualified.

The question of life and death is left to a judge, susceptible to value
preferences and error or judgement like any other. It is here that the
constitutionality of laws providing Death Penalty becomes suspect.
In addition, the constitution of India guarantees to every person a
fundamental right to life subject to its deprivation by the procedure
established by law9, it can be argued that sentence of death in the
presentform
violates
the
citizen's
right
to
life.
Further Art. 14 of Constitution declares "equality before law and
equal protection of the laws", which means that no person shall be
discriminated against unless the discrimination is required to achieve
equality.10 The concept of equality incorporated in Art. 14 finds echo in
the preamble to the constitution. Capital sentence, it seems, is therefore,
an anti-thesis of one's right to life. It is an indisputable fact that there is
9
321 U.S. 1 (1943).

10
Supra note 7 at Page 196.

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nothing in the Constitution of India which expressly holds capital

punishment as unconstitutional, though there are provisions that suggest
that the constitutional scheme accepts the possibility of capital
punishment. However, there are several provisions in the constitution such
as the preamble, the Fundamental Rights and Directive Principles which
can be relied upon for challenging the constitutionality of capital
punishment. It is clear that only a limited category of serious offenders
visited with capital punishment. That means a person's life is liable to be
extinguished any time after he has extinguished the life of another or
committed some other serious offence. The crux of the whole issue is that
each one of us has an inherent right to life and none of us can divert any
one of this precious right, and, if he does so, it has to be at the cost of his
own life. There are numerous legal luminaries who argue that the very fact
that the death penalty is retained in Indian criminal statutes runs counter
to one's right to life. It is submitted that these learned jurists probably over
look the fact that even right to life is not an absolute right.
In India there is no Eighth Amendment, yet the constitutionality of
death penalty was challenged a number of times mainly in pursuance of
.Articles 14 and 21. In Buddhas case judicial discretion was challenged.
Justice S.R. Das rejected the challenge, and observed quoting,
The judicial decision must of necessity depend the facts and
circumstances of each particular case and what may superficially appear
to be an unequal application of the law may not necessarily amount to a
denial of equal protection of law unless there is shown to be present in it
an element of international and purposeful discrimination. 11
11
321 U.S. 1 (1943).

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Constitutional validity of the capital punishment as provided in the

Indian Penal Code has been challenged in many cases and so far as the
Supreme Court has always upheld that the capital punishment provided in
the Indian Penal Code is constitutionally valid. However the abolitionists
have not become disheartened by various pronouncement of the Supreme
Court declaring capital punishment to be constitutional. The various
arguments given by the abolitionists in support of their contention that
capital punishment is unconstitutional and replies to their contentions by
the Retentionists who argue that capital punishment as provided at
present is fully constitutional may be summarised as follows:
Constitutionality of capital punishment may be considered in
respect of two aspects of the matter. Firstly, the question is whether the
capital punishment as such is unconstitutional and cannot be awarded in
any case whatsoever. In other words, the problem is whether capital
punishment cannot be awarded for any offence and by following any
procedure at all. Secondly, the question is that even though the capital
punishment as such may not be unconstitutional, whether capital
punishment as provided in various sections of the Indian Penal Code is
unconstitutional because the provisions of the Indian Penal Code
forwarding capital punishment, is violative of certain provisions of the
constitution. These two aspects of the matter may have to be considered
separately so as to have a clear vision on the subject at issue.
(i)
Constitutionality
of
capital
punishment
as
such.
(ii) Constitutionality of the provisions of I.P.C. providing for capital
punishment.
But before discussing these two issues, we have to discuss the
cases in which constitutionality of the death sentence was challenged.

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In Jag Mohan Singh V. State of U.P. 12, the validity of death

sentence was challenged on the ground that it was violative of Articles 19
and 21 because it did not provide any procedure. It was contended that
the procedure prescribed under Cr. P.C. was confined only to findings of
guilt and not awarding death sentence. The Supreme Court held that the
choice of death sentence is done in accordance with the procedure
established by law. The judge makes the choice between capital sentence
or imprisonment of life on the basis of circumstances and facts and nature
of crime brought on record during trial. Accordingly a five member
Bench of the court held that capital punishment was not violative of
Articles 14, 19 and 21 and was therefore constitutionally valid. After the
decision of Jagmohan's case the constitutional validity of death sentence
was not open to doubt. But in Rajendra Prasad V. State of U.P. 13
Krishna Iyer, J., held that capital punishment would not be justified
12
A.I.R. 1973, S.C- 947

13
A.I.R. 1979, S.C- 916.

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unless it was shown that the criminal was dangerous to the society. He
further held that giving discretion to the judge to make choice between
death sentence and life imprisonment on "special reasons" under section
354(3), Cr.P.C., would be violative of Art. 14 which condemns arbitrariness.
He pleaded for the abolition of death sentence and retention
of it only for punishing "white collar offences", Sen, J., in his dissenting
judgment held that the question whether the death sentence should be
abolished or the scope of section 302 I.P.C. and section 354(3) should be
curtailed or not is a question to be decided by Parliament and not by the
court. It is submitted that the minority judgment is correct because after
the amendment in the I.P.C. and the decision in Jag Mohan Singh's case
the death penalty is only an exception and the life, imprisonment is the
rule. The discretion to make choice between the two punishments is left to
the judges and not to the executive.
In Bachan Singh V. State of Punjab14 the S.C. by majority
overruled Rajendra Prasad's decision and has held that the provisions of
death penalty under section 302, I.P.C. as an alternative punishment for
murder is not violative of Article 21. Article 21 of the constitution
recognises the right of the state to deprive a person of his life or personal
liberty in accordance with fair, just and reasonable procedure established
by valid law. In view of the constitutional provision by no stretch of
imagination it can be said that death penalty under section 302, I.P.C.
either per se, or because of its execution by hanging constitutes an
unreasonable cruel or unusual punishment. The death penalty for the
14
A.I.R. 1980 S.C- 898.

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offence of murder does not violate the basic feature of the constitution.
The International covenant of civil and political Rights to which India has
become party in 1979 do not abolish imposition of death penalty in all
circumstances. All that it requires is, that (1) death penalty should not be
arbitrarily inflicted, (2) it should be imposed only for most serious
crimes. Thus the requirements of International Convenant is the same as
the guarantees or prohibitions contained in Articles 20 and 21 of our
constitution. The Indian Penal Code prescribes death penalty as an
alternative punishment only for henious crimes. Indian Penal laws are
thus entirely in accord with international commitment.
In Deena V. Union of India15 the constitutional validity of section 354(5)
I.P.C. 1973 was challenged on the ground that by rope as prescribed by this
section was barbarous, inhuman and degrading and therefore violative of
Art. 21. It was urged that state must provide a humane and dignified
method for executing death sentence. The court unanimously held that the
method prescribed by section 354(5; for executing the death sentence by
hanging by rope does not violate Art. 21. The court held that section 354(5)
of the I.P.C., which prescribed hanging as mode of execution lay down fair,
just and reasonable procedure within the meaning of Art- 21 and hence is
constitutional. Relying on the report of U.K. Royal Commission 1949, the
opinion of the law commission, opinion of Prison Advisers and forensic
medicine, the court held that hanging by rope is the best and least painful
method of carrying out the death sentence than any other methods. The
judges declared that neither electrocution, nor lethal gas, or shooting, nor
15
(1983) 4 SCC 645.

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even the lethal injection has" any distinct or advantage" over-the system of
hanging by rope.
In Attorney General of India V. Lachmi Devi 16 has been held
that the execution of death sentence by public hanging is barbaric and
violative of Art. 21 of the constitution. It is true that the crime of which
the accused have been found to be guilty is barbaric, but a barbaric crime
does not have to be visited with a barbaric penalty such as public
hanging.
In Triveniben V. State of Gujarat 17 it has been held that a person
sentenced to death is also entitled to procedural fairness till his last breath
of life. Art 21 demands that any procedure which takes away the life and
liberty of such person must be reasonable, just and fair. Undue delay in
disposal of mercy petition by the President would certainly cause mental
16
A.I.R. 1986 SC 467.

17
A.I.R. 1989 SC 142; Sher Singh V. State of Punjab (1983) 2 SCC 344

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torture to the condemned prisoner and therefore would be volatile of

Article 21. A condemned prisoner has to suffer a degree of mental torture
even though there is no physical mistreatment and no primitive torture.
He may be provided with amenities of ordinary inmates in the prison/ but
nobody could succeed in giving him peace of mind. In such a situation,
the court will examine the delay factor in the light of the circumstances of
the case and in appropriate cases commute death sentence to the sentence
of life imprisonment.
In Madhu Mehta V. Union of India18 the mercy petition of the
petitioner who was sentenced to death was pending before the President
of India for about 8 or .9 years. This matter was brought to the notice of
the court by one Madhu Mehta, the National Convenor of Hindustani
Andolan. Following Triveniben's decision the court directed the death
sentence to be commuted to life imprisonment as there were no sufficient
reasons to justify such a long delay in disposal of the convict's mercy
petition. Speedy trial in criminal cases is implicit in the broad sweep and
content of Art. 21. This principle is no less important for disposal of mercy
petitions.

PHASE WISE CHANGE IN JUDICIAL

AWARDING DEATH SENTENCES:

MIND

IN

The attitude of the Supreme Court of India towards death penalty has been
considerably changed to one of observing more lenience to the offender
18
(1989) 4 SCC 62

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when his life is at peril. The court has to overcome many fetters
imposed by statutes. Thus, in Joseph Vs. State of Goa, Daman 19 Justice
V.C. Krishna Iyer stated that judges are bound by the statutes by the oath of
their office.20 This helplessness is implicit in many decisions and in
some cases the Supreme Court has gone to the extent of mentioning it. 21
In order to understand the judicial attitude towards death penalty in
the last five decades, this period can be divided in five phases depicting
the judicial response to the legislative changes made in this direction in
IPC's as well as Cr.PC's old codes. The five phases may be
Phase I When Death Penalty was a rule (1950-55)
Phase II Age of Judicial Discretion (1955-73)
Phase III When Life Imprisonment was a Rule (1973-80)
19
AIR, 1977 S.C. 1812

20
"... Judges must enforce the laws whatever they be, and decide
according to the best of their lights, but laws are not always just and
lights are not always luminous. Nor again, are judicial methods always
adequate to secure justice. We are, bound by Penal Code and Cr. P.C.,
by the very oath of our office." Id, at 1813.

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Phase IV Birth of the Doctrine: "Rarest of Rare Case"(1980-83)

Phase V Post Bachchan Singh's Case Era (1980-nwards)
The cases divided in these phases clearly indicate the trend of
judicial mind during the last 50 years.

Phase I - When Death Penalty was a Rule (1950-55)

In our country under the Code of Criminal Procedure, 1898 death
sentence was a rule and life imprisonment an exception in capital
offences and whenever the court preferred to award a lesser sentence than
death in such offences it was required under section 367(5) of Cr. PC., 1898
to record its decision.
Thus, in Kirpal & others Vs. State of U.P. 22, the Supreme Court
held. The appellant's act may probably be said not to be premeditated in
21

Shiv Mohan Singh Vs. State of Delhi, AIR

1977, SC 979,951.

22

AIR 1954 SC 706, also in Nawab Singh vs. State of U.P., AIR 1954 SC.
278

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the sense that he preplanned or lay in wait to get an opportunity to kill the
deceased Jairaj. But it is obvious that when he found him in a fallen and
helpless position lying on the ground, he must have been actuated by the
pre-existing enmity to finish the man. The nature of his stab was brutal
and fatal and this throws light on his deliberate intention. In such case, we
have no doubt to agree with the High Court, in awarding him the sentence
of death".
Moreover, In Sunderlal Vs. State of M.P.23, where both the
deceased and the accused went to a goldsmith with some ornaments. The
Court found that the ornaments were established to be of deceased and
the accused could not give any satisfactory explanation as to how he
came in possession of the same. The Court held that "the circumstancial
evidence, therefore, was sufficient to hold the accused responsible for
murder of the deceased and the accused was rightly convicted of the
offence under sec. 302 IPC and sentenced to death." 24 However, the Court,
in order to award lesser punishment, had to state reasons, thus, in Dilip
Singh Vs. State of Punjab25 the Supreme Court held: "This is a case in
which no one has been convicted for his own act but is being held
vicariously responsible for the act of others. When there are no means of
determining, who inflicted the fatal blow and who took in a lesser part, a
judicial mind can legitimately decide to award the lesser penalty."

Phase II - Age of Judicial Discretion (1955-73)

23

AIR 1954 SC 28

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Later on by an amendment in the year of 1955 section 367(5) of the

Cr.P Code, 1898 was omitted and thus, thereafter the courts became free
to award either death sentence or life imprisonment. The perusal of
following cases indicate the judicial mind to deal with the death sentences.
Thus, in Jaghir Singh Vs. State of Punjab26 where a person is
murdered in a cruel fashion. The dead body is taken in a procession on a
mare by the accused persons for a distance of one mile. At the end of this
horrid procession they chop away the head of the deceased. The Supreme
24

Also in Ram Bharosey vs. State of U.P. AIR 1954 SC. 704.
Kutuhal Yadav vs. State of Bihar AIR 1954 SC. 720.

25

AIR 1953 SC 364

26

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Court deprecated such a dastardly act and observed: "The murder was
ruthless and cold-blooded. There are no extenuating circumstances and
Supreme Court found it just and proper to inflict death penalty.26
But, in Mohan Singh Vs. State of Punjab27 - the Supreme Court
observed that Session's Judge sentencing accused, who were vicariously
liable but who did not give fatal blow, to imprisonment for life, while
sentencing Mohan (appellant), who was believed to have given fatal
blow, to death penalty. Supreme Court, however, held if the test applied
by the session's judge was correct, then Mohan too should have given the
benefit of that test and the circumstances, so imprisonment for life would
more appropriate for him than death penalty.28
The Supreme Court inspired by an expert study, was of the opinion
in Om Prakash vs. State of Haryana29, that imposition of death
sentence on accused, a boy of 19 years, was excessive when two co-accused
who were alleged to instigate the accused to fire the deceased, were given
benefit of doubt. Again Hazara Singh vs. State of Punjab 30, The
Supreme Court held that where there was no pre-meditation and when the
contending parties met accidentally and attacked each other, the conflict

AIR 1968 SC 43.

27

AIR 1971 SC 2519

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resulted in a sudden quarrel. The Court set aside conviction of death

penalty under Sec. 302 IPC, but sentenced each one of them to
imprisonment for ten years. Similarly, weighing the facts and
circumstances of the case, in Sultan vs. State of Haryana 31, Supreme
Court observed that if death is caused by firing gun shots by two persons
and it is found that the shots fired by one person were separately sufficient
in the ordinary course of nature to cause death but the shot which the other
accused hit was not sufficient to cause death, he can be awarded the
28

Also in Brahma Singh vs. State of U.P., AIR 1972 SC 1229

29

AIR 1971 SC 1388

30

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extreme penalty of death even if he had fired the gun with the intention to
kill.
But, in Hukum Singh vs. State of U.P.32 when the appellant was
forcibly taking his cart through the crops, he was causing a struggle out of
which the deceased lost his life. On appeal the Supreme Court held:
"When several persons are armed with lathis and one of them is
armed with hatchets and are agreed to use these weapons in case they are
thwarted in the achievement of their object, it is by no means incorrect to

AIR 1957 SC 469

31

AIR 1972 SC 811

32

AIR 1961 SC. 1541

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conclude that they are prepared to use violence in prosecution of their

common object and that they knew that in the prosecution of suchcommon
object it was likely that someone may be so injured as to die as a
result of these injuries."33 (And also in Maghar Singh vs. State of
Punjab34, the deceased was murdered by his second wife, his son and his
wife's paramour. On appeal the Supreme Court held: "It was a preplanned,
cold-blooded and dastardly murder in which as many as seventeen injuries
were caused on the deceased, most of which were on vital parts of his body.
There are no extenuating circumstances to justify the giving of any lesser
sentence by this court. 35In certain clear cases where the offence is proved
by circumstantial evidence, the Supreme Court had inflicted death penalty.
33

Id. at 1543, per Raghubar Dayal, J. Also in Shyam Bihari vs. State of U.P., AIR 1957
SC 320, Vadivelu vs. State of Madras, AIR 1957 SC 617, Mijazi vs. State of U.P, AIR
1957 SC 572, Kartar Singh vs. State of Punjab, AIR 1961 SC 1787, Muniappam vs.
Madras, AIR 1962 SC 1252.

34

AIR 1975 SC. 1320

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As in Mohan Singh vs. State of UP36 the Supreme Court on the basis of
evidence that shows that the accused gave the deceased three 'paras' and
within half an hour he became ill and died within two hours, that the food
which the deceased had taken did not contain any poison & that the
chemical examination shows that he had died of arsenic poisoning, held the
accused guilty of murder of deceased & confirmed the death punishment,

Phase III - Life Imprisonment as a Substitute of

Death
Sentence
(1973-80)
Now the Code of Criminal Procedure 1973 in its Section 354 (3)
provides that in case of death sentence special reasons are to be stated.
Now imprisonment for life was the rule and capital sentence was an

35

Id. at 1324, per Mutaza Fazal Alt, J.alsoinKalmavs. State of U.P., AIR
1965 SC 1 80
36

AIR 1960 SC 659.

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exception, Thus, in Asgar vs. State of U.P.37 where Appellant Asgar has
been convicted under Sec. 302 of IPC for intentionally causing the murder
of one Ramswaroop Singh on account of an alleged dispute concurring the
repayment of debt. On appeal Supreme Court held (Justice
UNITWALLIA):"The High Court while confirming the death sentence does
not seem to have clearly kept in view the change of law which was brought
about by the 1955 amendment of the old code, when the High Court held":
"The murder was premeditated and we hardly find any extenuating
circumstance in this case. He must, therefore, pay the extreme penalty of
death".
But for giving extreme penalty some case ought to have been made
out by the High Court as after the amendment, under the new code mere
absence of extenuating circumstance in favour of accused is not enough for
awarding extreme penalty." Perhaps the social, economic and psychic
conditions of the accused are one of the most conspicuous elements that
persuade the Supreme Court for taking a lenient view of the criminals
condemned to death.

37

AIR 1977 SC 2000.

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Ediga Anamma vs. State of Andhra Pradesh, 38 is a striking example.

A woman ... and her child were murdered. The tragedy happened
out of the jealousy of the appellant, a woman, beaten away by her
husband and in-laws but finding solace in a middle-aged shepherd who
had amorous clandestine relationship with both the deceased and the
appellant. Reducing the death penalty on the appellant, the Supreme Court
took account of the physical and psychic breakdown of the hopeless
appellant in the following words : "Here the criminal's social and personal
factors are less harsh, her femininity and youth, her imbalanced sex and
expulsion from the conjugal home and being the mother of a young boy
these individually inconclusive and communicatively marginal facts and
circumstances tend towards award of life imprisonment. We realise the
specultative nature of the correlation between crime and punishment in
this case as in many others, and conscious of fallibility, and the death
penalty."
Some judgments also went for personalisation of punishment taking into
consideration both physical and mental state of accused in reducing the
extreme penalty. Thus, in Thanglah vs. State of Tamil Nadu.39 The
38

AIR 1974 SC 1799.

39

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appellant was sentenced to death on the charge of committing the murder

of his wife, kothaiyaki. Justice Chandrachudh, for Supreme Court, held that
it is clear from the various facts and circumstances of the case that he had
committed the murder under the grave stress of acute poverty for which he
was taunted from time to time by his wife and other relatives. Considering
that the appellant had led a happy married life with the deceased for ten
years and the fact that the couple has three small children, the sentence
may with some justification be reduced to life imprisonment.
However, in Suresh vs. State of Maharashtra 40, where the accused was
charged with murder of the deceased Manibai. The Supreme Court found.
"That the evidence adduced by prosecution, that it was the
appellant alone who inflicted the stabs and thereby caused the death of
the deceased. The deceased was unarmed when the appellant came to the
room with the intention to kill her, although she tried to run away when she
received the first stab, the appellant pursued her and inflicted several stabs
on the vital parts of the body. There were as many as 13 injuries onher body
and seven among them were fatal. Thus, we see no mitigating factors and
therefore, we confirm the sentence." And to conclude, in Rajendra

AIR 1977 SC 1777.

40

AIR 1975 SC 783

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Prasad vs. State of U.P.41, the Supreme Court has observed that capital
sentence may be awarded where survival of the society is in danger. The
Court has expressed its fear that judicial discretion in awarding death
sentence may turn out in judicial tyranny and thus, violate Art. 14 of the
Constitution. In its opinion, section 302 IPC and Section 354(3) Cr.P.Code,
J973 have to be read in the humane light of part III and Part IV of the
Constitution, further illuminated by the Preamble of the Constitution.
Death sentence may be awarded in the case of planned motivation, white
collar criminals, persons guilty of adulteration etc., hardened murderes
beyond rehabilitation or where officers of law are killed by designers of
murder. Further, special reasons stated by the Court in awarding death
penalty must relate to criminal as well and not to crime alone.

Phase IV: Birth of the Doctrine "Rarest of Rare

Case"
(1980-83)
1973 to 1980, the legislative dictate has changed from death
sentence being the norm to becoming an exeption, and necessarily to be
accompanied by reasons. Bachan Singh vs. State of Punjab 42, was a
landmark in the escalating debate on the question of the compatibility of
the death sentence with Art. 21 of the Constitution. The Supreme Court
while holding the validity of the death penalty expressed the opinion that
a real and abiding concern for the dignity of human life postulates
resistance for taking a life through law's instrumentality. That ought not
to be done save in the rarest of rare cases, when the alternative option is
41

AIR1979Cr.LJ.792
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unquestionably foreclosed. However, the Court declined to formulate any

aggravating or mitigating factors as it would fetter judicial discretion, but
held that a murder "diabolically conceived and cruelly executed" may
attract extreme penalty. It is not possible, the court opined, to feed
numerous imponderable circumstances in an imperfect and undulating
society. But what are those rarest of rare occasions is the dilemma. What
appears as brutal and gruesome, to one judge may not appear to be so to
another. For example, in one case the murder of wife and two children with
the motive of leading life with the paramour could not convince Krishna
Iyer, J. for death penalty, while 'Sen, J. wondered what else could be a fit
case for death penalty than the one at hand. It is submitted that if the
difference in perception is so glaring among two judges of the highest court
in the country what is relative position among very large number of
session's judges in the country.

42

AIR 1980 SC 898

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It was, however, in Machchi Singh vs. State of Punjab43, where

four men were awarded death sentence by the sessions court and the High
Court for shooting down seventeen persons including men, women and
children within their homes at night, in five incidents. The motive was a
family feud. The Supreme Court upheld the death sentence of the three of
the four persons. Justice Thakkar, speaking for the court, was impelled to
attempt a definition of the 'rarest of rare'case, thus :
1. When the murder is committed in any extremely brutal manner.
2. When the murder is committed for a motive which evinces total
depratity and meanness.
3. Antisocial or socially abhorrent nature of the crime.
4. Crimes of enormous proportion, like multiple murders.
5. Personality of victim of murder eg. an innocent child or a helpless
woman. However, these are apparently the judicially evolved guidelines
which are to assist the courts in determining sentence.

Phase V: Post Bachchan Singh's Case Era (1983Qnwards) (A trial period to observe the posteffects of the doctrine)
Marring rejected legislative prescription of existing guidelines, and
have drawn up some frame work of reference for itself. Has the judicial
43

(1983) 3 SCC 470

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hierarchy adhered to its own dicta? A perusal of the Supreme Court's

decisions during the decade should, therefore, serve as pointers in
understanding the judicial mind.
Inconsistency
In Ujagar Singh vs. Union of India 44, where the accused was 17
years when the offence was committed. Taking into consideration the
extreme young age of the petitioner, the Supreme Court set aside the
sentence of death. On the other hand, it may not be a relevant factor where
the accused, "clearly shared the common intention of murder," the fact that
he was between 18 and 20 years could not be an extenuating
circumstance.45
Similarly Dousing her for dowry, may be an offence worthy only
44

1981 Supp. SCCS.

45

LokPal Singh vs. State of M.P., 1985 Supp SCC 76.

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CONSTITUTIONALITY OF DEATH PENALTY

of the death penalty in Kailash Kaur vs. State of Punjab 46 or there may
be factors external to the offence and the offender, like wrongful acquittal
by the High Court, which may be forceful mitigating circumstance, even
where it is a brutal bearing of a pregnant young wife (Delhi
Administration vs Laxman Kumar)47
Properly reasoned decisions are imperative, so that there is no
mistake in understanding the judicial mind of all the powers of the courts.
This power to deprive life naturally demands the most explicit exercise.
A term such as "terrific" murder has been considered too adjectival
to fulfill the requirements of perceptible justice, for what murder is not
terrifc? (Muniappan vs. State of Tamil Nadu)48 & while the sessions
court and the High Court had given "special reasons", the Supreme Court
was not able to agree that this was a proper case for death sentence.
46

(1987) 2 SCC 631

47

(1985) 4 SCC 470

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Till recently, it is very difficult to ascertain that what are exactly

the rarest of rare cases and this criterion is still solely on the sweet will of
the Judges. As in SK. Ishaque vs. State of Bihar49, murder of three
persons by burning them with the help of kerosene inside a shop, absence
of material on record showing which of the appellants actually sprinkled
the kerosene and set the shop on fire or that they knew that there were
three persons in the shop though appellants were armed with bombs and
firearms but they did not use the same against the victims, the Supreme
Court held that in such circumstances, death sentence is not justified.
Or, in Dharampal Singh vs. State of Rajasthan50, where accused
intentionally causing injuries on chest of deceased by fire arms, civil,
criminal and revenue cases pending between complainant party & the
accused party prior to incident, it was held not a rarest of rare case.
48

(1981)3 SCC 11
49

(1995) 3 SCC 392

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Also in State of M.P. vs. Manohar Singh 51, the accused, simply to
gratify his greed, caused death of an old man and attempted to murder
another old and helpless person, was not held as a rarest of rare case.

MEANING OF -Rarest of the rare

Protagonists of an "eye for an eye" philosophy demand "death for:
The Humanists, on the other hand, press for the other viz. death in no
case. A synthesis-has emerged in Bachan Singh v/s State of Punjab
wherein the 'rarest of rare case1, formula for imposing death sentence in a
X murder case has been evolved by the Supreme Court .Identification of
the guidelines spelled out in Bachan Singh in order to determine whether
or not, death sentence should be imposed is one of the problems engaging
our attention.
50

(1998) Cr.L.J, 3372.

51

(1998) Cr.LJ. 3630.

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The doctrine "rarest of the rare cases" is based on Gandhian theory,

i.e., "hate the crime not the criminal". And thus, from this quotation, we
can interpret the significance and extent of Death Penalty. And if we go
through the deep study of it, we find that the court wants to say that the
death-penalty should be awarded rarely and only in such cases which are
henious, affecting the humanity and are brutal. The problem of Death
Penalty is not very acute in respect of death sentences awarded by criminal
courts
in
cases
of
general
course
of
nature
because death penalty is being awarded in very few cases of murder and
in most of the cases of murder the alternative penalty of life
imprisonment is awarded. There is also one other characteristic of death
penalty that is revealed by a study of the decided cases and it is that death
penalty has a certain class complexion or class bias in as much it is largely
the poor and the down-trodden who are the victims of this extreme penalty.
We would hardly find a rich person going to the gallows whoever has
money to hire the services of great talents, has a reasonable chance of
escaping the gallows though he has really committed a murder. It is only
the poor, the resourceless people who have nobody to support them, who
usually go to the gallows. The death penalty in its operation is declaratory.
Capital punishment Death penalty as pointed out by warden Duffly is a
'privilege of the poor. Keeping the above points in the view the Apex Court
propounded the doctrine of "rarest of rare".
in Macchi Singh vs. State of Punjab52 that a division bench of the
Supreme Court on July 21, 1983 made an attempt to define the 'rarest of
52

(1983) 3 SCC, 470.

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rare cases'. Justice Thakkar speaking for the Court held that five categories
of cases may be regarded as rarest of rare cases deserving extreme penalty.
They are:
Firstly: Manner of Commission of murder - When the murder is
committed in an extremely brutal manner so as to arouse intense and
extreme indignation in the community, for instance, when the house of the
victim is set a flame to roast him alive, when the body is cut to pieces or the
victim is subjected to inhuman torture.
Secondly: Motive - When the murder is committed for a motive which
evinces depravity and meanness eg. a hired assassin, a cold blooded murder
to inherit property, or gain control over property of a ward, or a murder
committed for betrayal of the motherland.
Thirdly: Anti-social or socially abhorrent nature of the crime
where a scheduled caste or minority community person is murdered in
circumstances which arouse: social wrath; or bride burning for dowry, or
for remarriage.
Fourthly: Magnitude of the Crime - Crimes of enormous proportion,
like multiple murders of a family or persons of a particular caste,
community or locality.
Fifthly: Personality of victim of murder - When the victim is an
innocent child, a helpless woman, a public figure generally held and
respected - whose murder is committed for political or similar reasons
other than personal reasons.
In this background some propositions emerged from Bachan Singh's case
should also be taken into consideration when the question of the imposition
of death sentence arises:
(i)
(ii)

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The extreme penalty need not to be inflicted except in the

gravest cases of extreme culpability;
Before opting for the death penalty the circumstances of the
offender also require to be taken into consideration along with
the circumstances of the 'crime'.

CONSTITUTIONALITY OF DEATH PENALTY

(iii)

(iv)

(v)

Death sentence must be imposed only when life imprisonment

appears to be an altogether inadequate punishment having
regard to the relevant circumstances of the crime, and provided
and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised
having regard to the nature and circumstances of the crime and
all the relevant circumstances; A balance-sheet of aggravating
and mitigating circumstances has to be drawn up and in doing
so the mitigating circumstances has to be accorded full
weightage and a just balance has to be struck between the
aggravating and the mitigating circumstances before the option
is exercised.
Is there something uncommon about the crime which renders
sentence of imprisonment for life inadequate and calls for death
sentence?
Are the circumstances of the crime such that there is no
alternative but to impose death sentence even after according
maximum weightage to the mitigating circumstances which
speak in favour of the offender?

These are apparently the judicially evolved guidelines which are to assist
the courts in determining sentence. If taking an overall global view of all the
circumstances in the light of the aforesaid propositions and taking into
account the answers to the questions posed hereinabove, the circumstances
of the case are such that the death penalty is warranted, the court should
proceed to do so.

RECENT RAREST
PUNISHMENT:

OF

RARE

CASES

OF

CAPITAL

Dhananjoy Chatterjee v. State of West Bengal & Ors22. The

appellant, Dhananjoy Chatterjee was found guilty of offences punishable
under Sections 376, 302 and 380 of the Indian Penal Code by judgment and
was awarded death sentence by the session judge, confirmed by the High
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Court. A special leave petition was filed by the appellant. Leave was granted
but the appeal was dismissed by the Supreme Court.
Sushil Murmu v. State of Jharkhand23, A young child of 9 years was
sacrificed before Goddess Kali by the appellant for his own prosperity is
what the prosecution alleges. The Supreme Court awarded death penalty to
the accused. State of U.P. v. Satish24, Stressing that leniency in punishing
grave crimes would have serious consequences the supreme court has
awarded the death penalty to a man for the rape and murder of a six year
old girl.
Ajmal Kasab case25, on 3 May 2010, Mumbai Special Court convicted
Ajmal Kasab for murder, waging war on India, possessing explosives, and
other charges. On 6 May 2010, the same trial court sentenced him to death
on four counts and to a life sentence on five other counts. Kasab has been
sentenced to death for attacking Mumbai and killing 166 people on 26
November 2008. He was found guilty of 80 offences, including waging war
against the nation, which is punishable by the death penalty. Kasab's death
sentence was upheld by the Bombay High Court on 21 February 2011. And
on 29 August 2012 his death sentence was upheld by the Supreme Court
also. On October 5, 2012, Additional Sessions Judge Ramesh Kumar
Singhal of Delhi Court handed down the death sentence to the five persons,
who had mercilessly tortured and electrocuted the girl and her lover as they
were opposed to her plan of getting married to the boy belonging to a
Scheduled Caste26.

Conclusion
In the wake of above discussion and ground realities of present day world
following conclusions can be drawn:
The opposition to abolition of the death penalty stems from the myth that
it will lead an increase in the number of murders. The fact is that in the
state of Travancore there were 162 murders between 1946 and 1950 when
the death penalty was not in force, But in the five years from 1950 when it
was re-imposed. There were 967 murderers. It has been argued that it is not
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possible to fight such crimes by framing law. What we need is to target the
root of crime. Even Krishna Iyer J. conceded in Rajendra Prashads case
that death penalty may be awarded where the killer is such a monster or a
beast that he can never be reformed. Criminals, who can be hired to kill
anyone or to throw a bomb in a crowd killing many innocent men, women
and children, deserve no sympathy. We cannot ignore the interests of the
community or the country while considering whether death sentence would
be appropriate in a particular case. So far as juveniles are concerned they
have to be dealt with under the appropriate Acts for juvenile offenders and
there is no question of awarding death sentence in their case.; Thus, after
taking into consideration the interests of the individuals on the one hand
and interests of the community on the other, it would be highly imprudent
to abolish the death penalty.

REFERENCES BOOKS REFERRED

1. Mr. Gaur K.D, Indian penal code, fourth edition 2009, pg no.
492.
2. Law Commission of India, 35th Report Volume I-III (Capital
Punishment) September 1967,Ministry of Law, Government of
India.
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3. Bring Back the Death Penalty, U.S. News & World Report
(April 1976); reprinted in The Death Penalty, ed. Irwin Isenberg
(New York: H.W. Wilson, 1977), 133

WEBSITES REFERRED
1.http://oxforddictionaries.com/definition/english/capital
%2Bpunishmen .html
2. http://www.legal-explanations.com/definitions/capital-punishment.htm
3. http://www.localhistories.org/capital.html
4.http://faizlawjournal.blogspot.in/2007/12/capital-punishment-inindia.html
5.http://articles.timesofindia.indiatimes.com/2011-11
15/india/30401179_1_death-penalty-scjudge-the-rarest-of-rare-category
6.http://indiatoday.intoday.in/story/delhi-court-sentences-five-of-a
family-to-death-for-honourkilling/1/223521.html

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