This article titled “A Critical Analysis of the Law of Capital Punishment in India” delves upon the various facets of Capital Punishment and examines the idea of punishment. Since time immemorial, nature has had some laws that are considered eternal. These natural laws, though static in nature, got their dynamism from human beings. As human society started taking… Read More »

This article titled “A Critical Analysis of the Law of Capital Punishment in India” delves upon the various facets of Capital Punishment and examines the idea of punishment. Since time immemorial, nature has had some laws that are considered eternal. These natural laws, though static in nature, got their dynamism from human beings. As human society started taking shape, the anti-social elements also evolved with time.

I. Setting the Frame

The challenges of recent years have tested the patience of the Indian legal system in every measure. Still recovering from the menace of the Mumbai terror attacks, 2008, the problem of the safety of women attracted the attention of the entire nation as a result of the Nirbhaya gang-rape case, 2012 followed by the Unnao rape case. The issue of the death penalty meted out to the accused of both the prior mentioned cases once again came into light with the hanging of Yakub Razak Memon in 2015.

Before further delving into the various facets of Capital Punishment, let us first examine the idea of punishment. Since time immemorial, nature has had some laws that are considered eternal. These natural laws, though static in nature, got their dynamism from human beings. As human society started taking shape, the anti-social elements also evolved with time.

To control these anti-social elements which gave birth to crimes which were against the natural laws, the theory of punishment originated as a method of social control. In those days, the concept of basic human rights did not exist in its entirety as it does in the present context. Due to this, the nature of the punishment was ‘retributive’. Yes, it did serve as a deterrent but lacked the so essential aspect of ‘reformation’. But we have come a long way from those barbaric times where an eye for an eye was not believed to make the whole world blind.

With the evolution of the current legal system, the theory of punishment saw a radical shift from a retributive nature to that of a reformative one. Many of the ‘inhumane’ punishments like pelting of a person with stones, poisoning him and execution by beheading were done away with. Serving prison term, paying compensation and doing community service were adopted as punishments of these ‘sensitized’ legal systems of the world.

Nevertheless, there was one form of barbaric punishment which all countries retained, viz. Capital Punishment. However, the end of the twentieth century saw a tendency for the complete abolishment of Capital Punishment in many legal systems which resulted in the introduction of the International Covenant on Civil and Political Right (ICCPR), 1979, which proposes an optional protocol for the abolition of death penalty.

Though, a party to the convention, India is not a signatory to this optional protocol. On one hand, countries like Mexico and Philippines have completely done away with the practice of death sentence, countries like India, on the other hand, have retained this punishment with much passion. The last five years saw three executions of Capital Punishment by the Indian legal system in the infamous cases of Ajmal Amir Kasab vs. State of Maharashtra, Afzal Guru vs. State of Delhi and Yakub Abdul Razak Memon vs. State of Maharashtra. Some try to cover these executions with a blanket of terrorism but even then this is an extremely retributive approach to the situation.

Not to forget, the huge debate that ensued after the hanging of Yakub Memon, which many advocates and judges criticised as a clear violation of Article 21; but, amongst all this chaos, no one addressed the underlying issue of “procedure established by law” which legalises Capital Punishment as a contradiction to Right to Life. This phrase is an exception provided by the Indian Constitution to the Right to Life under Article 21. Though, the exception is applicable to the ‘rarest of the rare cases’, Yakub Memon’s case suggests otherwise.

II. Seeking The ‘Procedure Established By Law’

Post-independence, India’s stand on the phrase ‘procedure established by law’ with respect to Article 21 has undergone many modifications. These different interpretations provided by different judges under varied situations of the phrase have led to the currently existing elements of this exception validating the death penalty.

Here, we aim to give a bird’s eye view of the current meaning of the phrase as has been established by some of the landmark cases.

1. Jagmohan Singh v. the State of U.P.[1]

In the above case, one Jagmohan Singh, assisted by his cousin Jagbir Singh, murdered Chhotey Singh to avenge his father’s death in a pre-meditated conspiracy and was punished with death sentence under section 302 of the Indian Penal Code by the Trial Court. Later, the Allahabad High Court confirmed the sentence[2] and the appellant moved to the Supreme Court by a special leave petition under Article 136 of the Indian Constitution.

In the apex court, the main idea of discussion was the constitutionality of death sentence vis-à-vis the Fundamental Rights of the accused under Part 3 of the Constitution.

The counsel for the defence, Mr. Garg, claimed death penalty as a violation of Article 21 (Right to Life) of the Constitution which in turn deprives accused of all other rights and moreover, he contended that capital punishment is not in the interest of the general public. However, the prosecution pleaded that need for protecting the society and individual human beings must be borne before abolishing the death penalty – a contention of the Law Commission Report[3]. Moreover, the act was not done under any fit of anger or provocation which might have worked as a mitigating factor. Hence, the Supreme Court, finding it just, dismissed the appeal.

What was of importance, in this case, was the observation by the judges that the laying down of a fixed procedure that would guide the judge in sentencing a person was a legislative function. And thus, the court could not intrude into the legislative aspect of law-making, which was in all regards an impossible one in the case of ‘procedure established by law’, and therefore had to be left to the parliament. It also observed that if a legislative body has shown faith on the judges to provide them with discretion to the sentencing of a person, it should not be doubted.

2. Bachan Singh v. State of Punjab[4]

This case urged the Supreme Court to constitute a five-judge constitutional bench to construe the constitutional validity of a death sentence in cases of ‘murder’ under section 302, IPC and the ‘special reasons’[5] provided in the Code of Criminal Procedure as the only requirement for such brutal verdict. The bench decided to retain death penalty with a majority of 3 to 2, the majority consisting of the then Chief Justice of India, Y V Chandrachud. The Court laid down the following aggravating and mitigating factors in such cases.

Aggravating Factors:

  • if the murder has been committed after previous planning and involves extreme brutality; or
  • if the murder involves exceptional depravity; or
  • if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed –

(i) While such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

  • if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.

Mitigating Factors

  • That the offence was committed under the influence of extreme mental or emotional disturbance.
  • The age of the accused. It the accused is young or old, he shall not be sentenced to death.
  • The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
  • The probability that the accused can be reformed and rehabilitated.
  • The State shall by evidence prove that the accused does not satisfy the 3rd and 4th conditions above.
  • That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
  • That the accused acted under the duress or domination of another person.
  • That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.

3. Mithu v. State of Punjab[6]

This is one of the landmark cases where the Supreme Court, despite upholding the judgement of Bachan Singh[7], declared section 303 of IPC unconstitutional. This section provided for a compulsory death sentence to persons who commits murder on a sentence of life imprisonment already.

The five-judge constitutional bench led by Justice Y V Chandrachud, then Chief Justice of India contended that ‘it violates the guarantee of equality contained in Article 14 and also the right conferred by Article 21 that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”.

It was also argued by the defence counsel that the section discriminates between a person who has completed his life imprisonment and then commits murder and a person who is still under the sentence and commits murder. To this, the learned judge said ‘a person who stands unreformed after a long term of incarceration is not, by any logic, entitled to preferential treatment as compared with a person who is still under the sentence of life imprisonment.

The classification based upon such a distinction proceeds upon irrelevant considerations and bears no nexus with the object of the statute, namely, the imposition of a mandatory sentence of death’. With this ratio, the court held section 303 of the IPC unconstitutional and void.

4. Smt. Triveniben & Ors. v. State of Gujarat & Ors.[8]

This case embraces the idea of inordinate delay in the execution of death sentences which exerts a mental trauma upon the convict who is already passing his days with the burden of a death sentence on his shoulders.

The counsel for the appellants, in this case, pleads before the honourable court to commute their death sentence to life imprisonment on the grounds of the exorbitant delay of more than two years suffered by them[9].

However, the court contended that the ‘inordinate delay’ referred to in Vaitheeswaran Case[10] accounts for the delay in examining the mercy petitions by the executive and not the delay in court proceedings which was misjudged by the petitioner and thus, their appeal was rejected. Though the death penalty of these appellants was not commuted, it, however, did open the doors for the consideration of delay in executing the extreme penalty as a mitigating factor.


The above cases give us an almost exhaustive list of the elements of ‘procedure established by law’. Some level of the legislative structure needs to be laid down for ‘the rarest of rare’ cases so that it can be ensured that no one is hanged till death just to control the political turmoil of a country. With this, the legal systems around the globe need to work on reformative punishment.

India, especially, is in dire need to check and improve the condition of its jails and ensure that a criminal is not declared ‘hardened’ because of the shortcomings of the legal system instead of the degree of the crime he has committed. Also, with changing times, we need to emphasise on the immediate needs of the victims in such cases. We need to ensure that the victims are again accommodated in society and that they are able to lead normal lives up to a certain extent.

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

[2] Cr.P.C. § 368 (1973).

[3] 35th Report, Law Commission of India.

[4] Bachan Singh vs State Of Punjab, AIR 1980 SC 898.

[5] Cr.P.C. § 354(3) (1973).

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

[7] Supra note 4.

[8] Smt. Triveniben & Ors. v. State of Gujarat & Ors, AIR 1989 SC 1335.

[9] Vaitheeswaran v. State of Tamil Nadu, 1983 (2) SCR 348.

[10] Id.

  1. Rights, Duties & Wrongs: An overview
Updated On 18 March 2020 1:54 AM GMT
Mayank Shekhar

Mayank Shekhar

Mayank is an alumnus of the prestigious Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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