The Article ‘Capital Punishment in India’ by Sukriti Dubey is a thorough study of the death sentence in India and the categories of offences that come under its purview. The Article covers capital punishment in India and other countries along with the Law Commission Report. Various case laws have been discussed to describe the situations where the judiciary… Read More »

The Article ‘Capital Punishment in India’ by Sukriti Dubey is a thorough study of the death sentence in India and the categories of offences that come under its purview. The Article covers capital punishment in India and other countries along with the Law Commission Report. Various case laws have been discussed to describe the situations where the judiciary granted a death sentence to the culprit. There has been discussion on the Supreme Court and its validity on Capital punishment in India. The role of the judiciary has also been given paramount significance in order to grant justice and the India Judiciary has been praised for its contribution.

Introduction: Capital Punishment in India

Punishment simply means when a person breaches the law and has to be punished for wrongdoing. All punishments are based on the same proposition i.e. there must be a penalty for wrongdoing. 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. Capital punishment also rests on the same proposition as other punishments.[1]

Meaning of Capital punishment

“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”. – A.P.J. Abdul Kalam.

Capital punishment is also known as the death penalty. When a person commits an offence that is rarest of rare and terrible, sentenced to death after conviction of a criminal offence by a court of law. The death penalty or capital punishment is the highest degree of punishment that can be awarded to an individual under any penal law in force in any part of the world. Capital punishment is the legal procedure of the state in which it exercises its power to take an individual’s life.[2]

The term “Capital Punishment” stands for a most severe form of punishment. It is the punishment that is to be awarded for the most heinous, grievous, and detestable crimes against humanity.

The term death penalty is sometimes used interchangeably with capital punishment, though the imposition of the penalty is not always followed by execution, because of the possibility of commutation to life imprisonment. Whenever the court awards a punishment there is a theory or proposition on the basis of which it passes its Judgment. These theories are known as the ‘theory of punishment’:-

  • Deterrent Theory
  • Reformative Theory
  • Preventive Theory
  • Retributive Theory
  • Expiation Theory

Doctrine of rarest of rare

The “Doctrine of Rarest of Rare” is neither mentioned in any statute, law, or Act, nor it is founded in any legal book or reference; rather it is simply a result of the old practices and various conventions being followed by our Courts since ancient times in India.

If it is found that the case falls within the purview of this Doctrine which is extremely shocking and mind-shaking and commitment of such crime is an exception, thereafter having regard to its sensitivity or gravity, the decision of the capital punishment is pronounced by the Court, as the Judiciary usually refrains its role from giving the capital punishments to the accused instead in maximum sensitive cases it turns the punishment of the accused to life imprisonment instead of the death penalty. There should be the presence of both mens rea and actus reus.

The most important case related to this doctrine is Bacchan v. State of Punjab[2]. In this case, the Supreme Court held that, endeavoured to cut out a doctrine, particularly for offences culpable with death to decrease the ambiguity for courts regarding when to go for the highest punishment of the land. By the majority of 4 to 1, the constitutionality of the death penalty was upheld by the Supreme Court and a principle was laid down that the death penalty must be surrounded only in the “rarest of rare cases.”

However, the scope of this phrase was left undefined. The Ratio Decidendi of the Bacchan Singh case is that the death sentence is constitutional if it is prescribed as an alternative for the offence of murder and if the normal sentence prescribed by law for murder is imprisonment for life. This means that the death penalty can only be imposed on the “rarest of rare cases” where an alternative option is excluded.[3]

In the case of Shabnam v. Union Of India And Anr[4], a woman got the death penalty this incident happened in the year 2008 because Sabnam and her boyfriend killed the girl’s all family members because they disallowed her to marry his lover. They both also didn’t leave her 10-year-old nephew and also led him to drape with blood. She also submitted mercy to the president which got rejected because it was the rarest of the rare case. This was the first time in Indian criminal justice that a woman got hanged in Independent India.

Opinion on Death Penalty is more humane than life Imprisonment

There are two types of people, one who believes that the person who has committed the crime deserves to die. The second one is the view that the person who committed the crime should be given a second chance, it is not our place to decide who gets to live and who gets to die. The most successive contention for maintenance of capital punishment is that it’s basic to stop the act of murder in any case the killer would walk courageously. India is a developing country and simultaneously we can see an increasing rate of crimes.

There are many laws to stop the crimes, but irrespective of these laws the crimes are increasing at a higher rate as the punishments are not decent for the crimes. In the current scenario, India has witnessed an increase in murder and rape cases, there should be strict actions taken against the accused hence giving life imprisonment would make no sense. If there is the death penalty, in light of the fact that it makes individuals follow the law and order in the overall population. It is likewise considered social revenge and the state has full rights to execute the most noticeably awful crook.

Life imprisonment till death means the accused have to face mental disorder. It affects a lot of mental health. Research shows that, while it varies from person to person, incarceration is linked to mood disorders including major depressive disorder and bipolar disorder. In life imprisonment, they are depressed because they come into that world where there is no light, no family, no happiness, and only a negative environment.

Ediga Anamma v. State Of Andhra Pradesh[5] it was held that life imprisonment for the offence of murder is the rule and a capital sentence is an exception in certain cases. The death sentence was imposed because life imprisonment seemed inadequate considering the relevant circumstances of the crime and the inhuman torture committed on the victim which brought about her death of a son too.

Capital punishment in India

The Indian foundation of capital punishment is as old as the Indian culture. The death penalty has already been followed since ancient times, there are some original copies and law books of that period. During the Buddha age when Ahimsa was the standard of lead King Ashoka didn’t prohibit the act of Death punishment.

The possibility of capital punishment has additionally been uncovered in the Mahabharata which expresses that, if annihilating an individual or a family the general public is viewed as secure and perilous evidence it ought to be accomplished for the well-being of the individuals.

Capital punishment in other countries

Capital punishment remains legal in 55 countries worldwide. Of the 55 countries that still retain the death penalty, some significant include Bangladesh, China, Egypt, Ethiopia, India, Indonesia, Iran, Japan, Nigeria, Saudi Arabia, South Korea, Sri Lanka, Taiwan, and the United States. At the end of 2018, 106 countries had abolished the death penalty in law for all crimes, and 142 countries (more than two-thirds) had abolished the death penalty in law or practice.

Amnesty International recorded commutations or pardons of death sentences in 29 countries, including India, Afghanistan, Bahrain, Bangladesh, Barbados, Benin, Botswana, China, Egypt, etc. Amnesty International recorded at least 2,531 death sentences in 54 countries, a slight decrease from the total of 2,591 reported in 2017.[6]

Supreme court on the validity of Capital punishment in India

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme court held that capital punishment should be followed in only “rarest of the rare case”.

In Jagmohan Singh v. State of Uttar Pradesh AIR 1973 SC 9479, then in Rajendra Prasad v. State of Uttar Pradesh AIR 1979 SC, and finally in Bachan Singh v. State of Punjab AIR 1980 SC 89811, the Supreme Court affirmed the constitutional validity of the death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.

Law Commission of India’s report on the death penalty

The 262nd report of the Law Commission titled “The Death Penalty” which had recommended abolishing the death penalty in the country. A 272-page draft report of the Law Commission, circulated among members, favored speedy abolition of the death penalty from the statute books, except in certain cases where the accused is convicted of involvement in a terror-related offence and waging war against the country as practiced in countries like the United Kingdom.

The Law Commission of India received a reference from the Supreme Court in Santosh Kumar Satishbhushan Bariyar v. Maharashtra [(2009) 6 SCC 498] and Shankar Kisanrao Khade v. Maharashtra [(2013) 5 SCC 546], to study the issue of the death penalty in India to “allow for an up-to-date and informed discussion and debate on the subject.” Last year, the Commission was tasked by the Supreme Court to study the issue of the death penalty and submit a report on it.

  1. The Commission held wide-ranging consultations on the issue where the majority of the participants, including the representatives of some political parties, favored the abolition of the death penalty. This is not the first time that the Law Commission has been asked to look into the death penalty.
  2. The 35th report on “capital punishment”, notably is a key report in this regard. In 1962, the Law Commission, in its 35th report, recommended the retention of the death penalty in India. It is imperative to bring out here that at the end of 2014, 98 countries were abolitionists for all crimes, seven countries were abolitionists for ordinary crimes only, and 35 were abolitionists in practice, making 140 countries in the world abolitionist in law or practice. The list of 140 countries includes three that formally abolished the death penalty in 2015, i.e., Suriname, Madagascar, and Fiji.

Offences for which Capital Punishment is Prescribed under IPC

  • Section 121 Treason, for waging war against the Government of India
  • Section 132 Abetment of mutiny actually committed
  • Section 194 Perjury resulting in the conviction and death of an innocent person
  • Section 302 Murder
  • Section 305 Abetment of suicide by a minor, insane person, or intoxicated person


Death punishment is given for the rarest of rare and terrible cases. If the country has the death penalty then crimes will be reduced and criminals are afraid of wrongdoing. People will get justice and they will trust the law. A country like India which has the highest number of cases has to absolutely follow the Death penalty. That’s why the death penalty is more humane than life imprisonment for the rarest of rare and terrible cases.


[1] Constitutional Validity of Capital Punishment, Available Here

[2] AIR 1980 SC 898

[3] The Doctrine of Rarest of The Rare, Available Here

[4] Writ Petition (Criminal) No. 89 of 2015

[5] 1974 AIR 799

[6] Executions Around the World, Available Here

[7] Sanjeev Sirohi, Retain death penalty only for terror cases: Law Commission, Available Here

Updated On 8 July 2022 7:41 AM GMT


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