Author- Ashina Hussain, Purnima Sharma

Cesar Beccaria once said- “Crimes are more effectively prevented by the certainty than the severity of punishment”.[1] The capital punishment, also known as death penalty is the harshest form of punishment authorized under any criminal legislation in existence anywhere in the world. The legal method through which the state exercises its power to take an individual’s life is known as capital punishment. However, executing another person in the name of justice is the same as slaying someone. Instead of focusing on eliminating criminals, we should emphasize on reducing crime. US oppessess death penalty concept and stated that “Life is precious, and death is irrevocable. However China is the only country in the world where the death penalty is used in highest number, with over 1000 executions per year, but in India, the “Rarest of the Rare” philosophy is maintained, and death sentences are frequently reduced to life imprisonment.

After India became a democratic country in 1947, the procedure for imposing death sentences underwent significant changes. In accordance with the rules entrenched in the Indian Constitution, the Indian Penal Code permitted for the imposition of capital penalty for certain specific offences. “No individual shall be deprived of his life or personal liberty except according to procedure established by law,” states Art. 21 of the Constitution[2], which guarantees every citizen the fundamental right to life”. This means that one’s right to life will never be taken away except by the due procedure established by law,  which means that the state can take away one’s life if it sees fit through the legal process. Not all crimes are punishable by death; in fact, most agencies do not seek capital punishment; rather, it is reserved for the most egregious of offences. In 1973, Jagmohan Singh vs. State of Uttar Pradesh[3] was the first challenge to the death penalty. This contended that  judges had the arbitrary power to impose the death sentence under Articles 14, 91, and 21 and  the death penalty annihilated all fundamental liberties under Article 19, and there was no fair sentencing procedure for the death penalty under Article 19. The next major breakthrough in capital punishment law was Maneka Gandhi vs Union of India, [4]which established two important safeguards: first, that all fundamental rights are not mutually exclusive. This meant that just though a legislation met the requirements of one fundamental right, it didn’t imply it couldn’t also be applied to other fundamental rights. A statute has to pass the test of Articles 14, 19, and 21 taken together in order to be pronounced constitutional. Furthermore, any procedure established under Article 21 must be “fair, just, and reasonable,” and cannot be “fanciful, repressive, or arbitrary,” according to this judgment. Therefore,  Bachan Singh vs State of Punjab[5],  a landmark case against capital punishment in 1980, was heard under this framework by a five-judge bench. In this case the Supreme Court held that the death penalty is only permissible when it is used as an exceptional penalty in the rarest of situations. Section 303 of the IPC was struck down in Mithu vs. State of Punjab[6] as a violation of Articles 21 and 14 of the Indian Constitution, because the offence under the section was punishable only by death and did not give the judiciary the power to exercise its discretion, resulting in an unfair, unjust, and unreasonable procedure depriving a person of his life. In India, there have been a diverse range of views on the death penalty, with some supporting for its continuation and others arguing for its abolition.

The death penalty has never been smooth in India; the convicts have to keep waiting years for their death day to come. The mental stress, pain, trauma and harassment that a convict and his family faces during those years is unimaginable. The family gets boycotted from society; they face harassment, their chance of getting jobs reduces, which is a gross violation of the Right to Life and Liberty. In the case of Md. Jamaluddin Nasir vs State of West Bengal[7], the convict, had to wait nine long years for the Supreme Court to confirm his death penalty, which wasn’t executed at all. Therefore, in such a situation where a convict has to wait for nine-ten years for the confirmation, and yet the punishment is not executed, the societal boycott, mental stress and trauma, the extreme pain faced by the convicts and his family is in itself a punishment. This issue was dealt with in the case of Shatrughan Chauhan v. Union of India,[8] wherein the court held that to execute a person who has been kept on death row for years on end with no answer to their plea for clemency is an act of torture that violates the prisoner’s fundamental right to life. Moreover, the 35th Law commission report also suggests that the death penalty should not be awarded in cases like murder.[9] It should strictly be given only for cases dealt with under Section 121 of the Indian Penal Code, i.e. waging war against the country or terrorism. Despite such suggestions and orders, it has still not been appropriately implemented, and criminals are given death sentences for crimes like murders and rapes. As per a report released by Project 39A, in 2020, 50 out of 77 cases of the total death sentences imposed by the trial courts involved sexual offences. However, there is a vast gap between the number of death sentences imposed by a court and the number of executions made. Like, a total of 8 convicts have been executed under the death penalty since 2000, the most recent one being on March 20, 2020, when Mukesh, Akshay Kumar Singh, Vinay Sharma and Pawan Kumar were executed for the December 2012 gangrape and murder of Jyoti Singh[10]. So, if the convicts are not executed, why is there a need to impose such harsh punishment? This is something that the justice system needs to reflect on.

About ten to eleven offences are punishable by death under the Indian Penal Code.  Aggravated murder, other crimes resulting in death, terrorism-related crimes resulting in death, terrorism-related cases not resulting in death, rape not resulting in death, kidnapping not resulting in death, drug trafficking not resulting in death, treason, espionage, and military offences not resulting in death are among the crimes punishable by death in India.  Under the Army Act of 1950, the Air Force Act of 1950, and the Navy Act of 1956, a death sentence can be issued for various offences committed by armed forces members. Apart from that, the death penalty has been included in other legislations as well.

In recent decades, the international landscape around the death sentence has changed, both in terms of international law and state practise. One of the primary treaties addressing the imposition of the death sentence in international human rights law is the International Covenant on Civil and Political Rights (ICCPR). Although the ICCPR does not prohibit the use of the death sentence, Article 6 does  guarantee the right to life and includes critical protections that must be followed. Member nations who support the death penalty are next, followed by those who oppose it. The Second Optional Protocol to the ICCPR, which aims to abolish the death penalty, is the only treaty directly concerned with the abolition of the death penalty that is open to signatures from all countries throughout the world. It was enacted in 1991 and is still in effect today and includes 81 signatures and 81 state parties.[11]

India still follows the traditional method of executing the death penalty like, hanging by ropes, as provided under Section 354(5) of the Code of Criminal Procedure. It is considered one of the most inhumane methods, as observed by the Royal Commission on Capital Punishment 1949-53. A similar observation was made by the United Nations Economic and Social Council (ECOSOC), which suggested that a convict must undergo minimum suffering while capital punishment is executed. The hanging method is also considered inhumane because sometimes the rope the convict has hanged breaks, causing extreme pain. The hanging method takes around 40 minutes for the convict to be declared dead, which contradicts the test in Deena v. Union of India (1983) 4 SCC 645, which held that the execution process should be as quick and simple as possible. It is time now that we replace such inhumane ways of executing the death penalty and come up with methods like electrocution adopted by the USA, use of lethal injection carried out in China, Vietnam, and the USA, which is less painful and quick. Every person has the right to die with dignity, so do the convicts and criminals, and therefore, they should not be given such a painful death.

APJ Abdul KAlam once said, “We are all the creation of god. I am not sure a human system created by a human being is competent to take away a life based on artificial and created evidence”.[12] The death sentence is a crime against humanity in and of itself. Life is a gift from God, and no government has the authority to take it away. As a result, the death penalty process should be considered unconstitutional and a violation of human rights. The government must assess the negative features of death sentences and take steps to remove such sections from the law. The262nd Law commission Report of 2015 also suggests that the death penalty should be abolished for all crimes other than terrorism related offence and a person should not be punished with death penalty for a crime like murder or rape[13]. As per the suggestions made by the United Nation death penalty breaches the right to life and the right to live free from cruel, inhuman or punishment. It is very important to punish a criminal to regulate the crime, however, the punishment should not be so harsh that it violates the very Right to die with dignity guaranteed under Article 21, ‘Right to Life’. As a human being, killing another human being in the name of crime regulation is no less a murder.

[1] visited 20-08-2021


[3] Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. (1973), S.C 947.

[4] Maneka Gandhi v. Union of India, AIR 597, (1978 )SCR (2) 621

[5] Bachan Singh vs State Of Punjab, AIR 1980 SC 898 (Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria)

[6] Mithu v. State of Punjab, AIR(1983 )SC 473

[7] Mohd. Jamiludin Nasir v. State of W.B., (2014) 7 SCC 443

[8] Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1

[9]Law Commission of India, ‘35th Report on Capital Punishment’ 1967

[10] Nidhi Jacob, In India ,404 prisoners are on death row,with uttar pradesh leading the list visited 16-08-2021

[11]  Ibid. pp.43-44

[12] visited 20-08-2021

[13] Law Commission of India, ‘262nd  Report on Capital Punishment’ 2015

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