The Capital Punishment And The Indian Judiciary

The term ‘Capital Punishment’ stands for the most serious form of punishments. Usually it is given for the heinous, grievous and cruel crime against humanity. The roots of the punishment of death are based on the idea that immunity and vengeance are rooted in the principles that the guilty are worth to punish in the proportion to the severity of their crime.

Most of the Legal Systems of the world has a written Constitution that provides guarantee to its people against the arbitrariness and the lethargy of its executives and the legislature. Such constitutions often recognize ‘right to life’, ‘due process of law’ and ‘equality before law’. In addition to this it also ensures the ‘cruel and inhuman punishments’.

In many older countries the right to life and liberty has more valuable protection which are ensured by constitutional conventions than in such countries that has a relatively written constitution. The extent of personal liberty and freedom enjoyed by an average Indian is also not outstandingly anywhere less than that which is enjoyed by any citizen of the other countries having parliamentary democracy. 

Laws are made for humans so that a person can live his life with dignity and without affecting the rights of others. When any crime is committed by an accused, he must be punished by the state through the laws made in this regard as it affects the innocent public. As being a member of Universal Declaration of Human Right, our country did not abolish capital punishment but they limit its scope by awarding capital punishment on rarest of rare cases.

Capital punishment which is seen as a cruel and inhuman in some jurisdictions is constitutional in India and some other countries, and the right to life and human dignity as provided by the Indian Constitution does not prevent an offender from being executed if found guilty of certain crimes by a Court of competent Jurisdiction.

The theory of deterrence plays a vital role in giving the base while giving a capital punishment or death penalty. This theory says that, people are scared of getting caught while doing some wrong. The death penalty is given to make people scared of the crimes committed. This theory suggests that if a person commits any crime then he should be punished in such a way that others seeing him would think twice or keep themselves away from doing or committing the same offence again.

“It is an undeniable fact that there is nothing in the Constitution of India which clearly presents the punishment of death unconstitutional, although there are provisions that accept the constitutional scheme of death sentence”. However one can challenge its validity on the grounds of the Preamble, FR and DPSP. Therefore we can say that only limited offenders are met with the death sentences which are given only for grievous crimes. It means that a person encounters the death penalty only if he has taken another person’s life. The root of the whole issue is that every one of us has the inherent right of life and none of us can change this valuable right.

The validity of the death sentence was challenged on the ground that it did not provide for any procedure, in the case of Jagmohan Singh v. State of Uttar Pradesh[i]. “It was contended that it was violative of the Article 19 and 21 of the constitution. Mainly it was said that the procedure given under Cr.PC is only for finding out the guilt of the accused and not for awarding the death sentence. The Supreme Court held that the established law provides the choice for death sentence or life imprisonment to the presiding judge. Accordingly the judge decides among the death sentence or the life imprisonment on the basis of facts and circumstances of each case. Therefore, the death sentence or the capital punishment is constitutionally valid”.

In case of Bacchan Singh v. State of Punjab[ii], this is considered as the most landmark case for death penalty, the Supreme Court over ruled Rajendra Prasad Case and held that “the provisions given in IPC under Section 302 that provides for death penalty, is an alternative punishment for murder. It doesn’t violate Article 21 of the Constitution. Article 21 identifies the right to life of a person but at the same time it also recognizes that the State has a right to deprive a person of his life and liberty if there is an established procedure by law for the same. That law or procedure should be fair, reasonable and just. Moreover, nowhere in constitutional provision it is interpreted that the death penalty given by hanging is inhuman and cruel”. 

In a landmark case of Kehar Singh v. Union of India,[iii] the Supreme Court held that the right to Life and Personal Liberty is the very characteristic of a human civilization. It is having the inherent and essential value, which is why it is considered as the most important as all other features of a social and political society.

The cases differ on the basis of facts, the circumstances, the degree and the gravity of crime. All these things cannot be foreseen by the legislators. Therefore, they had provided the discretionary power to choose between life imprisonment and death sentence to the judiciary. After analyzing all the factual situations of each case, the judiciary accordingly applies its intelligence and award the sentence to the convict.

By keeping in mind the various circumstances in Indian culture, i.e. the variety of the social norms of its inhabitants, the difference in the moral thinking and education in the country, the vast area and the diversity of its population and moreover the need of some strict punishment, India cannot take a risk to abolish the death penalty in current scenario. 

The International scenario on the Capital Punishment both on international law and the State practices has evolved in the last few decades with the emergence of Human Rights Concept. Today a majority of the Nations of the world are moving towards the abolition of the death sentence and those who retain it are finding alternative ways to their traditional modes of giving the sentence to death. In all the international treaties the sentence to death has been discussed as one of the aspect against the Human Rights and Right to Life.

Many a time there has been a challenge to the constitutional validity of the death penalty as provided in other statutory laws in India. There has always been a clash between the right to life of the convict under Article 21 of the Constitution and the Penal provisions providing for the death sentence to the convict. But the judiciary of our country always tried to form a balance between the two. And nowhere in the constitution has the sentence to death been mentioned as unconstitutional.


S Swati Shet

Assistant Professor, Department of Law, Kalinga University, Raipur

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[i]  Jagmohan Singh v. State of Uttar Pradesh . A.I.R. 1973, S.C 947 

[ii]  Bacchan Singh v. State of Punjab A.I.R. 1980 S.C 898 

[iii] Kehar Singh v. Union of India, (1989) 1 SCC 204

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