Published on 27th April 2025
Authored By: Jyoti Gupta
Manav Rachna University
Abstract
This article provides a legal analysis of capital punishment or popularly known as death penalty, on the grounds of its legitimacy in India and moral or humanitarian grounds. Capital Punishment is backed by history, not only in our country, but also in each and every country at some point or the other. There is hardly any country in this world, who has never given the punishment of death penalty yet. The author, by this piece of writing, will throw light on what constitutional status that this punishment carries and the justifications provided for it by judicial system. Also, it aims to deal with the pros and cons of death penalty and how it can be challenged on ethical and moral grounds.
Keywords: Capital Punishment, Legitimacy, Humanitarian Grounds, Justifications, Death Penalty
Introduction
The word “capital” is derived from the Latin word capitalis which literally means “concerning the head” and therefore, capital punishment means to lose one’s head. [1]In India, from Vedic Era to Mughals Era to today’s time, the punishment of death penalty has been upheld. It was a method of sanctioning for creating a limit on the freedom of people, as rulers from that time were expected to do justice to the victims of their kingdom.
Even the most pious Jain and Buddhist did not hesitate to inflict death penalty upon their subjects and King Ashoka himself sanctioned capital Punishment throughout his reign. Though Buddhists later adopted the path of peace and non-violence. But the key reason why King Ashoka was not afraid of giving such a harsh punishment was that, he knew the importance of it for the people. [2] The two major differences between the death penalty of that time and today’s time are:
During historical periods, the punishment was given publicly and even for petty offences, in various means like beheading, hanging, stoning, burning alive etc. But today the punishment is not given publicly, and that too for heinous crimes and only by the means of shooting or hanging.
There was never a time when India completely abolished this punishment. But, its true that the number of cases for death penalty are reduced to an extent, due to the rising dissent opinion of the people and their concerns about human rights.
Legal Status of Capital Punishment
The Indian Judicial System, through a number of cases has held the constitutionality of Death Penalty. There have been cases where this debate was there about death penalty being violative of Article 14 and Article 21 of Constitution. But the court in all the matters, justified the validity of the punishment.
Article 21 of Constitution of India, though mentions the right to life and dignity, but it also states that it can be taken under procedure established by law, thus supporting death punishments. Also, under the provisions of Bhartiya Nyaya Sanhita, 2023, which is the now criminal law of India, replacing IPC, provides the punishment of Death penalty for various offences like Murder, Murder by Life Convict, Rape of girl below 12 years of age, Terrorist activities resulting in death etc. The now Criminal Procedure of India, that is, Bhartiya Nyaya Suraksha Sanhita, under section 376 and section 393 (5), gives power to the courts to give death penalty by hanging around the neck. Other criminal acts like Narcotic Drugs and Psychotropic Substances (NDPS) provides for the punishment of death. But also, there is a power of commutation, provided to the president, where the punishment can be decreased to a lower hierarchy, as from death to life imprisonment.
Death as a punishment, is believed to favour the theories of deterrent and restoration, as the theories of punishment. Criminology has given various theories of punishment on the basis of determining the purpose that the punishment is supposed to fulfil. Theory of Deterrent means creating fear in the minds of people that if they if they commit any grave offence then they will be punished in the same manner as the offender, in the picture, is punished. This theory basically aims to discourage the current offender, as well as potential offenders in the society, to never commit a criminal act. This argument was given further credence by the research of a criminologist named Issac Ehrlich, who established that for every death penalty seven lives are saved because of the deterrence created in the society. [3] Speaking of Theory of Retribution, it is based on the concept of “eye for an eye, evil for evil”, which believes in the principle that the wrongdoer should be inflicted the same suffering as he inflicted upon the victim. This theory is about seeking justice for the victim, that the purpose of punishment would be fulfilled when death will be given to the wrongdoer, as punishment for killing someone, for instance.
Though there are 105 countries in the world that have totally abolished the punishment of death penalty like Norway, Turkey, Australia, France etc., but there are still 56 countries that have retained it in statutes, including China, India, Iran, Iraq and many more.[4] But, these countries cannot be compared to India, as they have different socio-political conditions as well as population. India, being the most populous country of the world, need to carry the punishment of death penalty, as a tool to control the crime rates.
India has always made its stand clear in international commitments by voting against the UN General Assembly Moratorium Resolution which aims at general suspension (not abolition) of Capital Punishment throughout the world. [5]
Doctrine of “Rarest of Rare”
The doctrine of “Rarest of Rare” case was introduced in the case of Bachan Singh v/s State of Punjab in 1980s. This means that, the death penalty should be given only in the cases of heinous crimes, which has traumatised the whole community of people and in the cases where no other punishment can serve justice to the victim.
Earlier, before the judgement of this case, it was argued that in the absence of any special guidelines, it was the discretion of judge to punish with death, which could be violative to article 14 as, different judges may or may not give capital punishment for the same case. To this, the court argued that the discretion of judge is not violative of article 14 as different cases have different circumstances and the court has to check the balance between aggravating and mitigating circumstances of the case. In another judgement of court, it was also held that not only the factors related to crime, but also, of criminal should be taken into account while giving punishment. The Supreme Court observed that there cannot be any straight jacket formulae for awarding death punishment only in particular cases, therefore it can be left on discretion of judge. [6]
After this, came the case of Bachan Singh, and another case of Machhi Singh v/s State of Punjab, the judgements of which, still serve as the precedent for judicial discretion on awarding death penalty. In the former case, mainly three observations were made by the court- firstly, the death penalty should be given only in “RAREST OF RARE CASES”, secondly, while sentencing the accused, both the circumstances of crime and accused should be given due consideration, and lastly it was observed that the balance sheet between the aggravating and mitigating circumstances should be made to check the justification of death penalty in that case, though this approach was later found faulty as it wouldn’t be possible to compare two dissimilar and different things. [7]
In the case of Machhi Singh, the questions were given by the court, that need to be answered for giving death punishment. These are- Is the offence really of such nature that there is no scope of awarding any other punishment? And, even when the weightage is accorded to the mitigating circumstances does the circumstances still warrants death penalty? It is believed that the discretion of judge is necessary so they can determine whether the justice is actually met in the case or not[8].
Challenges for validity of Punishment
The Human Rights Activists and now the general public also have become more aware of their rights and started posing challenges for execution of death penalty in India. They argue based on many points, one of them is, on the ground of humanity and morality. It is said that the punishment of death penalty is immoral and inhumane. It amounts to cruelty and is undesirable and unacceptable. Right to life is the natural right of a person and no government can intervene with it, or take away that right this easily. It says that the judicial system itself, cannot tale someone’s life.
Another point is that, the punishment is irreversible. Once granted the sentence, it cannot be taken back or the person cannot be brought back to life again. This associates with the risk of executing innocent person, that if by any chance, in further investigation, it gets proved that the accused was innocent, then who will take ethe burden of punishing an innocent to death? Our system works on the principle that, even 100 guilty people can be let go, but no innocent person should be punished. But this is not guaranteed under death penalty. So why go with such punishment, where if the court went wrong, it cannot be corrected also?
Also, it is argued that there is no evidence, that the punishment of death acts as a deterrent to the society. It is not proved anywhere, thereby, this questions the basis of theories of punishment, that it does not create fears in the mind of people. The principle of “Rarest of Rare” thus creates a balance between the arguments of both, in favour and against of this punishment. It is now taken care of, that an innocent is not punished by making the guidelines tough for awarding the death punishment.
Conclusion
Though it is true, that the punishment is cruel or can be considered to be immoral in nature, because, this is the first thing that we teach to others, that never to harm anyone or always forgive those who have done anything wrong to you, but its essentiality cannot be undermined as it is equally necessary to punish the wrongdoers, in order to provide justice to the people and for the peace and harmony in society. Lower the crime rate of any country, larger are the rate of hippiness and internal growth.
The duty of the state is to provide protection to its people. This is what the government is formed for, and thus, to fulfil its obligation, it should not hesitate to take the blame of taking someone’s life, who has done harm to others. The government should do this to win the faith of its people and tod demonstrate that they are still free to roam around safely, as government is here for their protection.
Moreover, when a crime takes place in a society, against any person, this means that, somewhere, the government is failed to provide protection to the people, and therefore, to compensate, at least, they are expected to punish the offenders in equal proportion as of their crimes. As we know, the rights and duties are said to go hand in hand. With every right of ours, comes certain duties, to protect the rights of others. If the accused has taken away someone else’s rights, that means they have given up theirs also, and thus no human rights are applicable to them.
For a country like India, where the population is more and the people belong to diverse background with different values, it is necessary for the government to use this measure as to remind people of their limited rights and powers, which they cannot use against others.
References
[1] Dr. Tauheed Alam, “The Death Penalty in History: Its Evolution, Legal Foundations, And Modern Reforms” ( 2024) Manupatra https://articles.manupatra.com/article-details/THE-DEATH-PENALTY-IN-HISTORY-ITS-EVOLUTION-LEGAL-FOUNDATIONS-AND-MODERN-REFORMS Accessed 12 March 2025
[2] Id. at 5
[3] Abhishek K. Singh, “The Meandering Course of Death Penalty Sentencing In India: A Critical Analysis” (2024) Manupatra https://articles.manupatra.com/article-details/THE-MEANDERING-COURSE-OF-DEATH-PENALTY-SENTENCING-IN-INDIA-A-CRITICAL-ANALYSIS-Author-Abhishek-K-Singh Accessed 13 March 2025
[4] Adhish Anilkumar Kulkarni, “Death Penalty: Should India Abolish It” ( 2024) Manupatra https://articles.manupatra.com/article-details/DEATH-PENALTY-SHOULD-INDIA-ABOLISH-IT Accessed 13 March 2025
[5] Id. at 13
[6] Abhishek K. Singh, “The Meandering Course of Death Penalty Sentencing In India: A Critical Analysis” (2024) Manupatra https://articles.manupatra.com/article-details/THE-MEANDERING-COURSE-OF-DEATH-PENALTY-SENTENCING-IN-INDIA-A-CRITICAL-ANALYSIS-Author-Abhishek-K-Singh Accessed 13 March 2025
[7] Id. at 9
[8] Id. at 10
