Analysis of Death Sentence in India

By | April 2, 2022
Analysis of Death Sentence in India

Last Updated on by Admin LB

This article is a detailed analysis of the death sentence in India and the categories of offences that come under its purview. The death penalty has long been a contentious issue, based on the deterrence principle of punishment. Despite the fact that many prominent philosophers, sociologists, and jurists oppose capital punishment, India has kept it because of the disparity in social upbringing, education, and morals among its enormous population.


“Guilt once established the punitive dilemma begins.”

                                        – Late Justice V. Krishna Iyer

The death penalty is a legal punishment in India, and it is permitted for certain offences under the country’s main substantive penal legislation, the Indian Penal Code, 1860, as well as other statutes. The four men convicted of the gang rape and murder of Jyoti Singh in Delhi in December 2012 were hanged in the Tihar Prison Complex in Delhi in March 2020, the most recent executions in India. The Indian laws do not have a consistent stance on the death sentence, nor do they completely prohibit it.

The Indian Penal Code 1860 recommends offenses chargeable with the death sentence, such as Section 121 (taking up arms against the state), Section 302 (murder), Section 364A (kidnapping with ransom), and so on.

Fear-based oppression and assault-murder cases are two of the most well-known cases involving prominent death row inmates. The ‘rarest of rare doctrine’ can be broken down into two sections: Aggravating and mitigating circumstances: In the case of aggravating circumstances, the Judge may impose a capital penalty at his discretion; however, in the case of mitigating circumstances, the Bench will not grant capital punishment unless in the rarest of cases.

In its most basic form, death punishment entails the state taking a person’s life. The state abuses its authority and power to take an individual’s life and liberty. Taking an individual’s life and liberty after they have committed a serious crime.

Now, which are these offences that entail capital punishment in India? Let’s have a look at those

There are some serious offences that are punishable by the Indian penal code, such as murder (Section 302). Rape with injuries that may result in a victim’s death, as well as a repeat offender. waging an all-out attack on the country Offenses relating to terrorism. In some circumstances, our country’s courts have the power to sentence an accused person to death. Aside from these, the Arms Act, Narcotic Drugs and Psychotropic Substances Act, SC and ST Prevention of Atrocities Act, Army Act, Navy Act, and Air Force Act all include provisions. These include provisions that include the death penalty as one of the penalties.

“The state shall not take away an individual’s life or liberty except according to the method established by  law,” says Article 21.

Several petitions have been filed before the Supreme Court questioning the constitutionality of the death penalty. These petitioners argued that the death penalty is a violation of Article 21, the Indian Constitution’s fundamental right to life. However, the Supreme Court found in favour of the plaintiffs.

Jagmohan Singh v. State of Uttar Pradesh[1], and in Rajendra Prasad v. State of Uttar Pradesh[2], The court clarified that the death penalty does not constitute a violation of Article 21. The Supreme Court ruled that a procedure existed and that this procedure is fair. It is because of this procedure that an accused is given the maximum amount of time to prove his innocence, yet it is also because of this procedure that the state seizes an individual’s life and liberty. As a result, the death penalty is legal in this country.

In the Jagmohan case, a five-judge panel of the Supreme Court maintained the constitutionality of the death penalty, ruling that it did not violate Articles 14, 19, or 21. The judge chooses between capital punishment and life imprisonment based on the circumstances, facts, and nature of the offence, as stated by the judge and the court.

In Rajendra Prasad’s case justice Krishna Iyer empathetically stressed that the death penalty is violative of Articles 14,19, and 21 and said-

“To impose the death sentence  two things are required;

  • the special reason should be recorded for imposing a death sentence
  • the death sentence should be imposed in extraordinary circumstances.”

In Bachan Singh v. State of Punjab[3], the Supreme Court determined in this case that the death penalty should only be used in the most extreme of circumstances. The Supreme Court determined in this instance that judges must provide extraordinary reasons for sentencing someone to the gallows. That is to say, death sentences should not be given in every case, but only in the rarest of rare cases.

What is this rarest of the rare cases? Let’s have a look at another Supreme Court of India decision

Macchi Singh v. State of Punjab[4], The Supreme Court ruled in this case that capital punishment should only be used when the option of life imprisonment is absolutely ruled out. To decide whether cases fall under this rarest of the rare doctrine, the Supreme Court held that two tests must be completed.

  1. something uncommon about the crime.
  2. The circumstances in the crime render life imprisonment inadequate even after the judge gives maximum weightage to mitigating circumstances which speak in favour of the accused

An example of a unique situation A physiotherapy student was gang-raped in a moving bus on December 16, 2012, according to the Nirbhaya case. Five men rapping a victim is a rare occurrence with this crime. This isn’t all. This crime was carried out in a horrifying, gruesome manner. The defendants took turns rapping the victim. One of the defendants grabs an iron rod and inserts it into the victim’s genitals, rupturing her intestines in the process. So this crime was a little out of the ordinary. As a result, these are vexing circumstances. Judges will have to evaluate aggravating and mitigating circumstances, according to the Supreme Court.

A hypothetical example of mitigating circumstances: A is a person who has not eaten for two days and requests a slice of bread from B bakery owner, who refuses and beats A as a result. As a result, A kills B. This is homicide. He broke the Indian Penal Code’s Section 302 by committing a crime. There are, nevertheless, some mitigating situations. A does not have a criminal record, for example.

This is his first time committing a crime. A is in desperate need of a piece of bread in the second mitigating situation. As a result, this crime was not carried out in a prearranged manner. That is to say, there are some mitigating circumstances on his side. These factors may not excuse the crime, but they may provide an explanation.

Even after giving utmost weight to these mitigating factors that speak in favour of an accused, if you believe that a life sentence is unjust, give capital punishment, according to Macchi Singh v. State of Punjab.

What was Sec 303 of IPC?

Let’s use sec 303 as an example. Commit a heinous crime. For such a crime, A is condemned to live in jail. A gets into a confrontation with a prisoner in the jail at that time, and A murders him. We had something called Section 303 of the Indian Penal Code for such a specific circumstance.

In Mithu v. State of Punjab[5] the Indian Penal Code’s Section 303 has been declared unconstitutional by the Supreme Court. It infringes on Article 14 of the Indian Constitution, which guarantees equality, as well as Article 21 of Part III of the Indian Constitution, which guarantees the right to life.

The Supreme Court declared that murder must be charged under Section 302 of the Indian Penal Code and that the courts in this country will decide whether or not to impose the death penalty. Section 302 will have to be used to prosecute murder. The Supreme Court ruled that Section 303, which calls for a mandatory capital penalty in some circumstances, is unconstitutional and void, and that it should be repealed.

 Avenues that are available to a death convict

  •  A trial court that awards the death penalty sentence must be confirmed by High Court.
  • The sentence cannot be executed until High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferred appeal has expired.
  •  The High Court confirms the death penalty and it is upheld by Supreme Court, the convict can file a review petition.
  • If the review petition filed by the convict is rejected, a convict can file a curative petition for reconsidering judgment.

The curative petition is rejected. Then what is the alternative available to the convict? Convict can file what is known as a mercy plea before the President of India under Article 72 of the Indian Constitution.

Delay In Execution 

Before a criminal is executed, the law establishes a lengthy procedure. An inmate, his or her relations, or even a public figure may be eligible for commutation of the death penalty if there is an unforeseen delay in execution. In this regard, there are three significant cases.

In Vatheeswaran v. State of Tamil Nadu[6] The Supreme Court held in this case that if there is a two-year delay, the death penalty will be converted to life imprisonment.

In another case Sher Singh v. State of Punjab[7] In this instance, the court rejected the Vatheeswaran decision, ruling that a two-year delay does not invariably result in a death sentence being converted to life imprisonment.

In Triveniben v. State of Gujarat[8], the Supreme Court determined that delay is a factor that will be considered, and as a result, an accused’s death sentence will be converted to life imprisonment.

But in Shatrughan Chauhan v. Union of India[9], the Supreme Court ruled in this landmark case that if there is an unexplained delay on the part of the executive, if the executive is unable to fully convince the judiciary as to why this mercy petition was not decided in a timely manner, why there was such a long delay in disposing of this mercy petition, the death sentence will be commuted to life imprisonment.

Can the order of execution be challenged in a court of law?

Two important landmark cases in the history of Constitutional India Shatrughan Chauhan v.Union of India and the second, Allahabad High Court in Peoples Union for Democratic Rights v. Union of India (2015).

The Supreme Court decided on these matters. The Supreme Court ruled in favour of Shatrughan Chauhan, and the Allahabad High Court ruled in favour of the Peoples Union. In these circumstances, the courts have determined that if a mercy plea is denied, a 14-day time must be given. That indicates that during this 14-day time, the condemned will not be hanged and can settle his worldly problems. That is, every criminal should be given this 14-day respite, and no one should be executed at that time.

Second, if the offender has a fatal illness or is suffering from schizophrenia, he or she should not be hanged. In this case, the death penalty was commuted to life imprisonment.

Execution Of Death Sentence carried out in India?

There are two possibilities. One involves changing the accused by the neck till death, and the other involves fire by the death squad. The death squad is usually used in cases involving the Army Act, Navy Act, or Air Force Act. In India, there are two methods for carrying out this death sentence. The Supreme Court has made a decision.

In Deena v. Union of India[10], the Supreme court held that hanging by the neck is not unconstitutional.

Rarest of Rare Doctrine

In Bachan Singh v. the State of Punjab, the death sentence can only be applied in the rarest of rare cases. Is this a sufficient safeguard to prevent arbitrariness?

Things we need to look into while applying the principles of rarest of rare doctrine are;

  •  Manner of commission of murder

In the case of Asharfi Lal & Ors. v. State of Uttar Pradesh[11], The accused appellants were two brothers who were found guilty of murdering their nieces to settle a feud over an agricultural property. A gandasa struck the younger girl, causing her neck to be severed. A banka was used to strike the other one in the head and neck, and her right hand was hacked off with a gandasa. Because of the severe violence with which the crime was committed, the Court determined that this is a one-of-a-kind instance.

  • The motive for the commission of murder

In Henry Westmuller Roberts v. State of Assam[12], the accused kidnapped a juvenile boy with the intent of extracting a ransom and then murdered the child in cold blood. The appellant was given the death punishment by the court because the crime he committed was the rarest of the rare. He carried out a horrible and premeditated crime.

  • Anti-social or socially abhorrent nature of the crime

In Sushil Murmu v. State of Jharkhand[13], the accused-appellant was found guilty of offering a nine-year-old child to Goddess Kali in exchange for personal success and prosperity. The Court decided that the crime’s socially reprehensible aspect could not be overlooked, because no superstition, belief, or thought can be used to justify a savage and premeditated act.

  • Magnitude of crime

In the case of Munawar Harun Shah v. State of Maharashtra[14], famously known as the “Joshi-Abhyankar Massacre Case”, Munawar Harun Shah and two other men were found guilty of ten murders, as well as robbery and dacoity. Because of the gravity of the crime, the heinous nature of the crime, and the chilling way in which it was committed, the Court determined that this case belongs in the rarest of the rare category.

  • The personality of a victim of murder

In the case of Kehar Singh & Ors. v. State (Delhi Administration)[15], the three appellants were found guilty of plotting to assassinate India’s Prime Minister, Smt. Indira Gandhi. “The crime accused was not just murder of a human being, but it was the crime of the assassination of the constitutionally elected Prime Minister of the country,” the Court said, describing the case as one of the rarest of the rare.

Mohinder Singh v. State of Punjab[16] case was determined by a two-judge bench, Justice P. Sathasivam and Justice Fakeer Khalifullah. Mahinder Singh raped his own daughter in this instance. He was sentenced to 12 years in prison for his actions. Mahinder Singh was released on parole in 2005. He murders both his wife and the daughter he raped while on parole. Mahinder Singh was sentenced to death in this case by the trial court.

The High Court upheld the death sentence, but the Supreme Court, led by Justice P. Sathasivam and Justice Fakeer Khalifullah, determined that this was not the rarest of the rare cases. In this case, the Supreme Court ruled that Mahinder Singh is not the gravest threat to the security of the people. A week later

In [email protected] v. State Transport Inspector of Police[17] Justice P. Sathasivam and Justice Jagdish Kehar decide again on a similar case. In this case, a person kidnapped a 7-year-old boy and killed him after he was kidnapped. In this instance, the Supreme Court declared that it is the rarest of rare cases.

Image the sorrow of the family, imagine the plight of the parents of the 7-year-old boy who lost their sole male kid who would’ve carried on the family’s lineage, as the Supreme Court determined, among other things. Take note of the patriarchal worldview of the country’s judges. As a result, the rarest of the rare theory is insufficient to justify the imposition of the death penalty.

Kumudi Lai v. State of U.P[18]   the court refused to confirm the death sentence in a case involving the rape and murder of a fourteen-year-old girl.

In Amrit Singh v. State of Punjab[19] a girl of the second standard was severely raped. She died as a result of the heavy bleeding. The accused was found guilty under section 302 and sentenced to death by both the trial and high courts. Despite the brutality of the rape, the Supreme Court ruled that the death was not intentional.

Recent  cases

Mukesh & Anr v. State For Nct Of Delhi & Ors on 5 May 2017

On December 17, a three-judge bench of the Supreme Court dismissed the last of the Nirbhaya case’s pending review petitions. On December 16, 2012, the court upheld the death penalty for the accused in the gang rape and murder of a physiotherapist, prompting four convicts to file review petitions.

The bench, which included Justices Dipak Misra, R. Banumathi, and Ashok Bhushan, upheld the trial court’s decision to impose the death penalty in September 2013 and the High Court in 2014.

In the order, Justice Banumathi stated that the “incident shocks the collective conscience of society.” Collectively, the order found that the mitigating circumstances outweighed the aggravating factors and that the brutality, cruelty, and perverse nature of the crime made it the rarest of rare cases, thereby giving effect to the 2013 amendment. Until 2012, the definition of rape was limited to sexual intercourse only. The Criminal Law (Amendment) Act of 2013 expanded the definition of rape.

Govindaswamy v.  State Of Kerala on 15 September 2016

The Supreme Court sentenced Govindachamy to life in prison for violating section 302 (murder) of the Indian Penal Code, which allows for the death penalty, despite his claim that he had no intention of killing the victim and was only trying to sexually assault her by keeping her in a supine position.

Shabnam v. Union Of India And Anr on 27 May, 2015

  • Bench: A.K. Sikri, Uday Umesh Lalit

Shabnam and her lover Saleem were convicted in 2008 of murdering seven members of her family: father Shaukat Ali (55), mother Hashmi (50), elder brother Anees (35), Anees’s wife Anjum (25), younger brother Rashid (22), cousin Rabia (14), and Arsh, Anees’s 10-month-old son. They were sentenced to death by an Amroha sessions court in 2010, which was upheld by the Allahabad High Court in 2013 and the Supreme Court in May 2015.

The nature of the crime, the planning that went into carrying out the murders, and the fact that Shabnam had murdered all members of her family, including a helpless infant, were all deemed sufficient to classify this case as “rarest of the rare,” deserving of the death penalty.


  • Standardized guidelines should be established: a uniform guideline should be established that includes criteria for classifying cases as the rarest of the rare. This can help to clear the fog that has formed in the minds of various jurists, causing confusion.
  • The decision must be made with caution and logic: when considering the death penalty, it is important to remember that, while the accused has committed a heinous act, if there is any chance that the accused will not cause further harm to society, he or she should not be sentenced to death.
  • The death penalty should not be postponed once it has been imposed: the Supreme Court ruled in Triveni Bai v. State of Gujarat that the execution process must be postponed on reasonable grounds so that the accused can receive a fair trial. However, it is suggested that there should be no delay following the imposition of the death penalty. This is not to say that the accused should not have the right to appeal, but it should only be available for a limited time.
  • The death penalty should not be imposed in haste: before imposing the death penalty, the constitutional bench should carefully consider all aspects of the case and ensure that it is not imposed in haste.


There are no proper guidelines for determining whether a case falls under this category or not, the rarest of the rare doctrine has been the subject of endless unprecedented controversy. Because of the change in circumstances and conditions of life over the years, the need for change in the guidelines provided in Bachan Singh and Macchi Singh was first held in Swami Shraddananda v. State of Karnataka.

This was also emphasized in the landmark Santosh Bariyar decision, in which the Court stated that this doctrine had been “variedly and inconsistently applied by the various High courts as well as this court.”


[1] Jagmohan Singh v. State of U.P., 1973 AIR 947

[2] Rajendra Prasad v. State of U.P., 1979 3 SCC 646

[3] Bachan Singh v. State of Punjab, 1980 2 SCC 684

[4] Macchi Singh v. State of Punjab, 1983 SCR(3) 413

[5] Mithu v. State of Punjab, 1983 SCR (2) 690

[6] Vatheeswaran v. State of Tamil Nadu, 1983 SCR (2) 348

[7] Sher Singh v. State of Punjab, 1983 SCR (2) 582

[8] Triveniben v. State of Gujarat, 1989 SC 1335

[9] Shatrughan Chauhan v. Union of India, WRIT PETITION(CRL) NO. 55/ 2013

[10] Deena v. Union of India, 1983 4 AIR 1155

[11] Asharfi Lal & Ors. v. State of Uttar Pradesh, 1987 AIR 1721

[12] Henry Westmuller Roberts v. State of Assam, 1985 AIR 823

[13] Sushil Murmu v. State of Jharkhand, 2004 2 SCC 338

[14] Munawar Harun Shah v. State of Maharashtra, 1983 3 SCC 354

[15] Kehar Singh & Ors. v. State (Delhi Administration), 1988 AIR 1883

[16] Mohinder Singh v. State of Punjab, AIR 1965 SC 79

[17] [email protected] v. State Tr. Insp. of Police, on 5 February, 2013

[18] Kumudi Lai v. State of U.P, 1999 4 SCC 108

[19] Amrit Singh v. State of Punjab, 2007 1 SCC Cri 41

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Author: Adv Lekshmi VS

School of Legal Studies CUSAT

2 thoughts on “Analysis of Death Sentence in India

  1. Dhaaranee Karunagaran

    The death sentence in the Indian judiciary has been transformed a lot from the past, which we could witness from various case laws, from the deterrent theory of punishment we have opted currently the reformative theory of punishment. This article has very clearly stated the cases where the death sentence was awarded and how the bench came to conclusion for giving such higher punishment. This article would help one to very easily analyse the evolution of death sentences in the criminal justice system.


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