Introduction:
As per the current scenario, we are noticing that the crime rates are increasing day-by-day in a brutal manner. We are evidencing, the most heinous crimes in our surroundings, whether it is murder, rape, kidnapping, torture, dowry death, terrorism, gang rape, acid attacks, child abusing …etc and in recent times we have been witnessed a harsh case of rape of a trainee doctor in R.G. Kar Medical College and Hospital case (2024 INSC 613). In the ancient times, the punishment was totally on the will of the ruler/king, and no specified law was there to punish the wrongdoer. Over the time, these things had been changed and now we have the list of the crimes for which the death penalty is given. For these heinous crimes, the punishment is in the form of Death Penalty or it is also considered as the “Capital Punishment” in the India. This punishment, is not for all the crimes, but applied to the crimes which fall under the “Rarest of the rare doctrine”. The purpose behind this, is to deter people from doing something by getting them into the fear about the aftermath. Considering, it to be the most severe in the present times. As the severity, scope and nature of the crime varies by the nation, state, age. But ultimately, it is the result of such severe, abhorrent crime against humanity.
Meaning:
Death Penalty that is also known as the “Capital Punishment”, generally means the execution of a criminal. This punishment, in generally means, the execution of a criminal who has been sentenced to death by the Court of law for a heinous or severe matter. The term ‘Capital’ is originated from the Latin word ‘caput’ or ‘capitalis’, which means ‘head’, that is, to lose one’s head. In ancient times, people were beheaded as punishment. The philosophical basis is rooted in the principle of Retributive Justice – an idea that severe crimes, especially murder, warrant a proportional punishment. This is totally based on the “Rarest of the rare doctrine (established in the case of Bachan Singh v. State of Punjab AIR 1980 SC 898)”. This is distinct from the extrajudicial executions, which lack the due process as well.
Evolution of death penalty in India:
In India, capital punishment is a very complicated interplay of ancient customs, colonial forces and constitutional law making. The different periods had their own significance and methods related to it.
- In Ancient India period, early kingdoms and their rulers, permitted death penalty for serious offences, as, murder or treason, so that to maintain the law-and-order along-with the royal authority.
- In Medieval period, during Sultanates and Mughal empire, death sentence was given for the grave offences, which often based on religious or customs. There, the concept of an ‘eye for an eye’ or ‘tooth for a tooth’ was applied.
- In British Colonial Period, the death penalty was codified and formal under IPC [1860], which was drafted under the leadership of Sir Thomas Babington Macauly, making that in a structured legal punishment.
- After Independence, adoption of constitution of India, death penalty that is the capital punishment was retained but made subject to the constitutional safeguards {Under Article 21 of the Indian constitution = Right to life and Personal Liberty}.
- Judicial Activism in the landmark case of Bachan Singh vs. State of Punjab, the Supreme Court, upheld the validity of the death penalty but limited it to the “rarest of the rare” cases.
- In Present times, Courts emphasizes Reformative justice, considering mitigating factors, along-with reflecting a more rights-based and cautious approach.
Legal provisions:
As the BNS [ Bharatiya Nyaya Sanhita,2023] replaced the IPC [ Indian Penal Code,1860], the legal status has also been reorganized.
- Murder is punishable with death penalty or life imprisonment [ Section 103(1)]. And Murder by a prisoner serving life imprisonment [Section 104] or Attempted murder by a prisoner serving life sentence [109(2)].
- Mob-lynching [ Section 103(2)]
- Terrorist related acts resulting in death of a person [Section 113(2)(a)].
- Organized crime resulting death, punishable with capital punishment or life imprisonment along with minimum fine of Rs 10 lakhs [ section 111(2)(a)].
- Rape resulting death or Persistent vegetative state punishable with rigorous imprisonment, or death penalty [ Section 66].
- Gang rape of Child under 18 years of age [ Section 70(2)].
- Repeat offenders of rape {those previously convicted under Section 64/65/66/70} faces life imprisonment or capital punishment.
- Kidnapping or abducting for murder or ransom [140(2)].
- Treason against govt. of India [section 147].
- Abetment of mutiny, if committed [160] or abetment of suicide of a child or person of unsound mind [ 107]
- Fabricating false evidence resulting in death [230(2)].
- Threatening for false evidence in death [232(2)]
- Dacoity with murder [310(3)].
- Rape of a child below 12 years of age [Section 65(2)].
Death penalty in special Acts:
- Repeat offenders in cases involving commercial quantities of narcotic drugs under Section 31A of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
- Abetment of sati [ 1987 Act of commission of sati (prevention)].
- Explosive substances act, 1908 for offences like endanger life.
- Terrorist acts resulting in death under Unlawful activities (Prevention) Act, 1967
- Child sexual abuse laws under POCSO Act, 2012.
- Giving false evidence leading to the death of member relating to the SC or ST under [SC and ST (Prevention of Atrocities Act), 1989].
Exemptions:
- Minors [ children under 18 years of age] as per the Juvenile Justice (care and protection of children), Act 2015.
- mentally ill or insane persons (Shatrughan Chauhan v. UOI 2014) under BNS, 2023 (Section 22).
- Pregnant Women under Section 456 of BNSS, 2023.
Method of Execution:
The Indian Law clearly mentions how a death sentence should be given/ carried out.
As per the Section 395(5), BNSS, 2023 it is clearly mentioned that:
“When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead”.
Exception:
- Execution in the Armed Forces [Army, Navy, Air Force members] is done by shooting or hanging, based on their laws as per the situation. The Court Martial can sentence someone to death. As per,
- Section 166 of Army Act, 1950.
- Section 147 of Navy Act, 1957.
- Section 163 of Air force Act, 1950.
Execution Process:
For the execution of a criminal to death penalty, there are 7 steps through which the execution is done:
- Trial Court Conviction. (The Session Court convicts the accused).
- Automatic appeal to High Court and must be confirmed by the High Court. (Section 407, BNSS,2023).
- Appeal to the Supreme Court, (Special Leave Petition that is SPL by convicts under Article 136 of Indian Constitution). Then, the Supreme Court have the certain powers that the court can:
- Uphold the death penalty.
- Reduce it to life imprisonment.
- Acquit the person.
- Review and Curative Petitions: after the conviction by Supreme Court, the convict can still;
- File a review petition.
- File a curative petition and this is the last legal remedy before mercy petitions which is reviewed by the most senior judges of the Supreme Court.
- Mercy petition to the President or Governor under Article 72[1] or 161[2] of Indian Constitution respectively.
- Execution Warrant, if all petitions are rejected then the trail court can issue the “black warrant”[3]. The jail is notified, then along with date and time.
- Final Execution as per the Section 393, BNSS, conducted inside a central jail including the presence of jailor, magistrate, and doctor.
Constitutional Validity
Death penalty, as a matter of debate has been challenged in courts many times as the Constitution of India provides Article 21 which guarantees ‘right to life’, so how can someone’s life is taken through death penalty.
Landmark cases:
- Jagmohan Singh vs. State of U.P. [AIR 1973 SC 947]
In this case, the petitioners said that death sentence was unfair and went against the constitution’s Article 14 and 21. But, the Supreme Court said that judges must be given the freedom to choose between life imprisonment and the death penalty based on the facts of each case.
- In Rajendra Prasad vs. State of U.P. [AIR 1979 SC 916]
&
- Edigo Anamma vs. State of Andhra Pradesh [AIR 1974 SC 799]
The Court said that death penalty should be given only when absolute necessity is there and the criminals shows no chance of being reformed.
Person’s age, past behaviour, and life circumstances must also be considered.
- Bachan Singh vs. State of Punjab [AIR 1980 SC 898]
The Supreme Court said that death penalty is constitutional, but it should be used in ‘rarest of the rare’ cases along with this, judges must look at the severity of the crime, possibility of reform and the circumstances of the criminal.
Conflict with the Human Rights:
As a human by nature, we have given certain rights by the nature which are universal and apply equally to all and they cannot be inalienable as well. Over the time, this concept of human rights evolved and moulded itself in different aspects like legal rights, fundamental rights, social rights, political rights, national or international rights, moral rights, natural rights….etc. The main thing here, is the Article 21 of the Indian Constitution, which provides the ‘Right to life’, and being a fundamental right place a point of debate on death penalty and the human rights.
Arguments against Death Penalty:
- This being, against the ‘theory of Punishment’ and by extension to natural justice as well, and considered as the sanitised form of vengeance/ revenge.
- Reformative Justice, means “Hate crime, not the criminal” [ M.K. Gandhi].
- This is considered as Discriminatory towards one Section, that is the poor.
- Social factors against Capital Punishment like, education, mental health, socialization, genetics, and others.
- Inadequate Sentencing Hearings and Mitigation along-with high rate of erroneous convictions.
- Non-Compliance with the due process safeguards like psychological evaluations reports, prison conduct records, probation officer reports.
- The principle of penology evolved to balance the other obligations of the society that is preserving the human life, be it of accused, unless termination thereof is inevitable and is to serve the other societal causes and collective conscience of society.
Recent trends:
The Constitutional validity of death penalty is often challenged, but the Supreme Court of India, upholding the validity of death penalty, has guided the trial court to also consider the mitigating circumstances which would lead to a lenient form of punishment.
- The Law Commission in its 262nd Report (Shah, 2015), discussed issued ranging from death penalty being a deterrent, to changing International and National scenario to arbitrariness in the decision making and existence of bias as some of the reasons for recommending abolition of death penalty except in case of terrorism or waging related offences.
- According to an Annual Report on Capital Punishment (published by Square Circle Clinic at NALSAR University of Law 2025), the Supreme Court of India has not confirmed a single death sentence in the past 3 years which reflects a highly restrictive approach towards death penalty.
Death Penalty is given in these cases:
- Ajmal Mohammad Amir Kasab @ Abu Mujahid vs. State of Maharashtra [AIR 2012 SC 3565]
The 26/11 case of Mumbai terror attack. The Supreme Court upheld the conviction and confirmed the death sentence awarded by the lower courts.
- Mukesh & Anr. Vs. State for NCT of Delhi & Ors. [ 2017 6 SCC 1]
The landmark case known as Nirbhaya case, where the brutal gangrape and torture lead to the death of the victim. The convicts were executed in 2020.
In the Recent times, the Court’s opinion on this capital punishment reflected in the judgement as Manoj Pratap Singh vs. State of Rajasthan, 2022, where the court upheld the death sentence awarded to the accused. The Court also opined that “It has never been the effort of Courts to somehow make the death penalty redundant and non-existent for all practical purposes”.
Conclusion:
The Death Penalty, as also considered as the Capital Punishment, the form of a punishment for the severe matters, is the most debatable and concerning topic, ultimately making the balance between the constitutional validity regarding human rights and death sentence in India. The reformative theory for the reformation of the criminal is one the imperative thing to change the criminal into a social being that is the positive socialization upheld towards. Thus, we can, hereby, conclude that the balancing nature must prevail to reform the convicts.
References
- Ijlmh.com.
- Blog.ipleaders.in
- gyansanchay.csjmu.ac.in
- Indiankanoon.org
- manupatra.in
- jstor.org
- blog.finology.in
- supremecourtcases.com
- lawweb.com
- insightsonindia.com
- scribd.com
- vajiramandravi.com
- api.sci.gov.in
- THE BHARATIYA NYAYA SANHITA, 2023 NO. 45 OF 2023 (bare act).
- THE BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 NO.46 OF 2023 (bare act).
[1] Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.
[2] Power of Governor to grant pardons, etc., and to suspend ,remit or commute sentences in certain cases.
[3] Official order to hang the convicts.
