Research ArticleConstitutional Law

Constitutionality of Capital Punishment: An Analysis

Author(s): Anshika Tyagi, 1st year student at Maharashtra National Law University, Mumbai & Ritika Guj, 1st year student at Dr. B.R. Ambedkar National Law University.


The meaning of capital punishment is death penalty and it is given to someone who has committed a heinous crime and since there are so many factors which support capital punishment while so many factors are there which oppose capital punishment. The aim of this research paper is to evaluate whether giving capital punishment is constitutional and a necessity in the society or is it unconstitutional and against human rights by discussing that how with time was capital punishment introduced in society and how did it evolve in different countries and regions, how today in many countries capital punishment has been banned and what is the state of capital punishment in India. The article also throws light upon different legal aspects which prescribe capital punishment, the times and cases when the constitutional validity of capital punishment was challenged in India and what has been different judgements over the time taken by judiciary in favour and against capital punishment in India. Just like every other situation, capital punishment has its pros and cons but still the question on constitutionality of capital punishment never has a definite answer because every individual carries different opinion and therefore the aim of this paper is to provide the facts related with capital punishment so as to help an individual form an opinion neutrally. 


India is a civilized state which means it is a country which aim to establish system and order in the society so that people can live harmoniously with each other for which various laws and provisions have been formulated which are obligatory on the people residing in it and in the otherwise scenario people are subjected to punishment as enshrined in the constitution and the statutes of the country. These laws are purported to serve the collective interest of the society, establish and maintain order in the society, establish a justice delivery mechanism by imposing punishments on the violators of the law, discourage others from any kind of deviation from the law and help in restoration of order in the society. The most rigorous of all the punishments is the capital punishment/ death penalty.

Capital punishment refers to the act of killing a person under a law or statutory authority for a crime.[1] Capital punishment as a punishment has been in practice from ancient times to cause suffering to the wrongdoers or criminals in a society for committing heinous crimes. In India, criminal jurisprudence is an amalgamation of reformative and deterrent objectives and theories of punishment[2] which means that imposition of punishments as a means of deterrence to maintain harmony and order in the society along with giving proportionate opportunity to reform to become suited to live again in the society among others without being a threat. Like other punishments, capital punishment is given only when it is found proportionate to the crime which is itself a very debating issue in the legal domain. Capital punishment, being a highly grave and irrevocable in nature, has always been a bone of contention among the jurists with respect to its impact, effectiveness, fairness, purpose, appropriateness as a punishment. Crimes and punishment both depend on the form of culture and society they propel in due to which there is still longing for a settled view about death penalty as a punishment in a civilized society.

Origin and Evolution of Capital Punishment

In western civilization, it is the Law of Mosses which is known for giving origin to death sentence and in India the epics like Ramayana and Mahabharata have the mention of the same which proves that from time immemorial there has been existence of capital punishment.[3] Human civilization history reveals that capital punishment as a mode of punishment has not been discarded during any time period. No country in the world exists which lacks the traces of existence of death penalty. During 7th century BCE, capital punishment used to be employed under Draco laws in ancient Greece for crimes such as murder, rape, treason and arson. It was even employed for many offences by the Romans.[4]

Death penalty in India was mainly brought into effect by various kings who would use it against their enemies under the pretext of a lawful punishment. It became even more profound at the time of Mughals. Not only this, it was also used as a weapon by the britishers to maintain their hold over the reins of power to protect their authority and position.[5]

At the time of Independence, several laws established by British colonial government were retained by India including Indian Penal Code, 1860 (IPC) and Code of Criminal Procedure, 1898. IPC gave 6 punishments including death that could be legally imposed.[6]

Section 367(5) of CrPC, 1898 obligated the court to furnish reasons for not imposing the sentence of capital punishment in cases which involved offences where death penalty was prescribed and was the norm.[7]

Section 367(5) of CrPC, 1898 was repealed by the Parliament in 1955 which changed the position of capital punishment. After the said sec. being repealed, courts were not required or obligated to cite reasons special and specific for not giving death penalty for the offences which were punishable by death. Due to this, death penalty no longer remained a norm. This also meant that there were equal probabilities of imprisonment and death in a capital case. In 1973, The Code of Criminal Procedure was again enacted after making several changes especially to sec. 354(3), which stated that for the cases involving offences where prescribed punishment is death or as an alternative life imprisonment or imprisonment for some years, the court is required to give reasons for the particular sentence and in the cases where death has been awarded, special reasons were required to be stated. This was a significant change of the position from what was established after the 1955 change as there reasons for not giving death penalty were not required to be given and it was a complete reversal from the position under law of 1898 where special reasons for not giving death were to be stated but with this 1973 change, special reasons for why death has been given had to be given.[8]

Raghunath Singh moved a bill in 1962 in Lok Sabha for abolishing capital punishment which was passed for further consideration to the law commission.[9]

The various acts, statutes and legislation which prescribe capital punishment are Indian Penal Code, 1860, Armed Forces and Para Military Legislations, Narcotic Drugs and Psychotropic Substances Act, 1985, Anti-Terror Legislations, Economic Legislations, Social Protection and Reform Legislations.

  1. The 1967 report on Capital Punishment by Law Commission of India–  For its 35th report, the law commission conducted an extensive research in consideration of abolition of capital punishment which included parameters like then existing socio-economic condition of the society, educational and literacy levels, crime rates and other cultural patterns and absence of empirical Indian research having contrary view and based on all its analysis, it contended the retention of death penalty. The commission stated that in the present condition of disparity level of education and morality, inhabitants’ social upbringing, population diversity, necessity to maintain law and order especially at that point of time, abolishing capital punishment would be no less than taking a risk with regards security of the people and the country itself.[10]
  2. 187th Report – In 2003, the commission considered again the issue of death penalty but this time it focused only on the mode or modus operandi of execution and did not deal on the aspects of it being constitutional and desirable as a punishment.[11]
  3. Clemency Powers – In case where SC rejects the appeal against death penalty, the convict has the provision to submit a mercy petition before the state governor and the President under ar. 161 and 72 of the constitution respectively. Both the authorities have the power to grant respites, reprieves, pardons, remit/commute any punishment. These powers have to be exercised under art. 163 and 74 respectively, on the aid and advice of the council of ministers and thus are not exercised in the personal capacity of the office holders. Clemency powers act as the final and last safeguard against any possible chances of judicial error to prevent miscarriage of justice. The procedure which is to be followed with respect to mercy petitions in cases of capital punishment is drafted by the Ministry of Home Affairs, GOI to guide the prison authorities and state governments.[12]


262nd Report of Law CommissionIt suggested that death penalty should be abolished for all the offences except crimes related to terrorism and waging war. This recommendation was based on the latest development with respect to death penalty, which was made limited to only ‘rarest of the rare cases’, concerns about the broadened horizon of Right to Life and related ‘due process’ conditions, existing standards of human dignity, public and constitutional morality. Though no penological justification has been provided for treating crimes related to terrorism and waging war different from other crimes but some concerns related to abolition of death penalty in cases of these two crimes, subjecting national security at risk were considered.[13] In this report, Justice Ajit Prakash Shah, who chaired the 20th Law Commission, gave the recommendation that the principle of rarest of the rare is highly vulnerable to arbitrariness and also emphasized that the punishment of death penalty in crimes (other than the 2 mentioned) does not serve the purported penological deterrence objective any way higher than what is done by the punishment of life-imprisonment.[14]

Retention of death penalty has mainly been on the grounds that the convict who has taken life of another human being loses his own right to life. Moreover capital punishment in such scenario is seen as form for response and expression of the sentiments of the family and the law abiding society, which were hurt by the crime. Capital punishment is claimed to be as an effective deterrent by its supporters for the grave violators of crime and morality for whom the punishment of even life imprisonment seem to be disproportionate to the brutality and severity of the crime. The supporters of capital punishment contend that the laws and procedures can be formulated and modified to ensure that it is not used in an arbitrary manner and capital punishment is given only in the deserving cases which would lead to a proper distribution of justice.[15]

On the other hand, the one seeking for abolition of capital punishment argue that by retaining death penalty, the law enforcers and protectors would themselves be legitimizing the very act of killing, for which punishment was instituted at the very first place and in a way is contradicting its own principles of morality and constitutionality. They argue it on the grounds of being degrading and inhumane. They point to the fact that death penalty does not serve as even more effective deterrent in comparison to that of imprisonment for long years or life imprisonment as suggested by different researches. The Opponents advance that prescribing capital punishment for a particular type of crime and labeling it as the one deserving death sentence would inevitably lead to discrimination and arbitrariness. They also point to other factors which hinder the application of capital punishment in some or the other way. These factors are unequal access to good and proper legal aid & assistance for the poor, religious, ethnic minorities and other people belonging to disadvantaged section of the society. Apart from this the emphasis is laid on the inevitability of errors in the judicial process.[16]

With respect to the arguments from both the sides and considering this aspect with respect to India, the historic events may serve as the testament to the future course of capital punishment in India. The primary one is the death penalty which was given to Nathuram Vinayak Godse for assassinating Mahatma Gandhi but this did not serve as any deterrence in the light of the assassination of political leaders like Prime Minister Indira Gandhi and Rajiv Gandhi including other political leaders like Beant Singh.[17] On the other hand, one cannot avoid the case of Nirbhaya rape case of Delhi in 2012, shook the entire country on the grounds of brutality, inhumanness, morality and human dignity where death punishment was itself demanded by the whole country which was eventually even given because along with deterrence, the purpose was to highly discourage in all the sense such an atrocious crime.

Constitutional Validity

The discussions about death penalty have been going on since a long time, but there has been no firm decision made on it yet, there are different opinions that it is constitutional, moral, ethical or not and to support all those decisions there has been court judgements made in past, there are many countries which have banned death penalty, India is one of the 78 countries where death penalty is still there but can only be given rarest in the rare case and due to special reasons[18].

The first time when the constitutional validity was challenged was in 1973 in Jagmohan Singh v State of Uttar Pradesh[19], in this court it was held by the supreme court that death penalty is violation of right to life under article 19 and therefore capital punishment was rejected.

The case in which the term rarest of the rare cases was defined was the landmark judgement of Bachan Singh v. State of Punjab[20] in the year 1980. In this case the appellant was charged for three murders and therefore under section 301 was sentenced for death penalty, when high court rejected his appeal, he appealed in Supreme Court through Special Leave with the question that whether his crime would come under the ‘special reasons’ under section 354(3) of Code of Criminal Procedure, 1973. During this judgement it was decided that the special reasons would be[21]

  1. The murder has been planned and was done extreme brutally.
  2. The person whose murder has been done was on public duty.
  3. Death penalty should only be given when the punishment of the crime that has been committed could not be life imprisonment.
  4. All the factors should be kept in mind before taking the decision for death penalty.
  5. All the circumstances in which the crime took place should be kept in mind.

The five-judge bench decided with majority that the crime committed by Bachan Singh is brutal and life imprisonment would fall short for punishment therefore the decision of death penalty is not unconstitutional is this case.

Justice Iyer during the case Rajendra Prasad v State of Uttar Pradesh[22] said that death penalty is violating article 14, 19 and 21 therefore a death penalty should be given only when two things are fulfilled that are

  1. There should be one of the special reasons.
  2. The circumstances are extraordinary and every other punishment seems less

In Macchi Singh v State of Punjab[23] Justice Thakkar said that there are five categories in which the case may be categorized as a rarest of rare case and deserve death penalty, the five categories are –

  1. The method of murder, if the murder has been don’t in intense way to amplify more pain.
  2. The murder is done with a motive behind it
  3. When the murder has been done of a person who is minority in the society and the murder has been done in a manner which reflects the dislike of other people.
  4. The extent of the murder should be kept in mind
  5. The personality of the person whose murder has been done should also be kept in mind.

During the case of Mithu v State of Punjab[24] it was held that Section 303 of IPC which stated that any person who is in imprisonment for lifetime for murder should be punished with death, is unconstitutional and was struck down as it was violating Article 21 and 14 as well. Later on, during the case Sher Singh v State of Punjab[25]. It was held by the supreme court that the factors which were decided during Bachan Singh v State of Punjab will be used as the constraints for future decisions.


Since 2000 until now in India there have been 8 executed until now, the two famous cases have been of Ajmal Kasab, he was convicted in Mumbai Special Court for the attack of 26/11 in Mumbai, in which 166 people were killed, he was charged for 80 offences[26] and even Supereme Court held that for this crime the only fit punishment is death penalty therefore in 2012 he was hanged. In the same way the famous Nirbhaya case which took place in 2012 in Delhi, the appellants were given death penalty but when they appealed for mercy in Mukesh & Anr v State for NCT of Delhi & Ors[27].  It was held that the crime has been done brutally and there is no way any other punishment is fit for the appellants, therefore only the minor one was relieved while the five appellants were hanged in March 2020.

There have been constant arguments whether capital punishment is constitutional or not, people have come up with there reasons of it being valid and invalid. As we read above in each case, the decision of death penalty has been given after considering a lot of things. India has a big population and every opinion varies from one another, therefore considering why death penalty could be helpful or could be a threat to society should be discussed:


  1. Capital Punishment would create a fear in people, if there will not be any hard, strict or strong punishments then people would not be scared of committing a crime like this, therefore if capital punishment will be there then other would take it an example and in future would think before committing as such.
  2. There are brutal crimes, like rapes, mass murder, where the criminal can not be punished with life imprisonment because ultimately that would be giving him a comfort that he is safe, the brutal crimes should have a brutal punishment that is capital punishment, this would not just bring justice but would also implement safety for the rest of the society.
  3. If a person is given lifetime imprisonment, then even after ruining many lives he would be living which is not justice more than that, the person could either escape from the prison and become a threat to the society or could even become a threat to the people who got him punished from inside, the people would be living in a constant fear[28].


  1. There are many countries which have banned capital punishment but the brutal crime rate there is low and ironically the countries with high rate of executation also have the high murder rate, therefore it can be said that even though, it is said that capital punishment is for creating a fear so that the same crime does not take place in near future but it does not seem to be effective.
  2. In India there are a lot many factors which are being considered before reaching to the ideal justice, ideal justice is hard to reach and due to that at times the decisions that are taken could be wrong, due to this many a times innocent people who were proven to be guilty due to lack of evidence could be given the punishment of death penalty. This would not bring justice either to the person who suffered before neither to the person proven to be guilty[29]
  3. When capital punishment is given, it takes away the chance that a person could change oneself for better, if a person is not someone who does crime and is seriously guilty then giving death penalty is taking way rights of a person for a better future and this is violating their rights.

The Indian Judiciary system has been a lot considerate keeping all the factors in mind and then taking a decision, but there would always be people who would be supporting a certain thing and some of them would not be supporting. Death penalty can be effective, the reason it could be lacking in brining justice is because the time which is taken by the Indian Judiciary system to take this decision, even though the time taken is for being sure that whether the decision that has been taken is right or not but in either way everyone suffers, if the decision is right then the justice is delayed and as it is said that justice delayed is justice denied and if the decision was wrong and further changes then the accused would loose many years of their life and more than that the society would never see them with same eyes. So, we could say that along with time though the judiciary had improved and got a clearer vision of its ideas, it is high time to take the decisions a bit fast too so that justice is brought on time.


The answer to the question whether capital punishment is constitutional or not is a long-time argument, from above we can see that everyone has their own perspective which can not be denied, the answer to this question varies from eyes to eyes. If one would step into the shoes of the victim and their family, then knowing the fact that the person who did wrong to you or your loved one is out there maybe in prison but still eating and breathing is disheartening but at the same time if one step into the shoes of the accused, then maybe the guilt and the desire to be a improved version of self and knowing the fact that the crime one did is going to effect their family too may make an individual a person who would deny death penalty being constitutional.

Death penalty is against human rights too, therefore 139 countries[30] has already abolished the idea of death penalty, India has a vast population and here the crimes are many times go unnoticed or unregistered because of lack of knowledge if there will be no death penalty then people would not be scared about committing horrific crimes. India could decide to abolish death penalty but then there should be more strict laws created which would make the accused responsible for the family of the victim too, it should be the responsibility of the victim to earn for them and it should be made sure that the victim is not getting any reliefs on the basis of good behavior by the police and neither he should be allowed to live a life like other criminals, who have not committed such horrific crimes, it should be made sure that he is not allowed to meet his family and no other concessions should be given. The people who are charged against heinous crimes like rape, terrorism should either be punished with heinous punishment which maybe brutal in nature but would bring justice or be given death penalty.


[1] Ananya Singh, Capital Punishment, Indian Law Portal (May 26, 2020)

[2] Tatheer Fatima, Constitutionality of Death Penalty, Indian National Bar Association,

[3] Ananya, supra note 1.

[4] Roger Wood, Capital Punishment, Britannica,

[5] Boolchandini R., Death Penalty: Constitutional Position, 2 IJLLJS 1, 165-187 (2015).

[6] Law Commission of India, Death Penalty, Report No. 262 (Issued in August 2015).

[7] Ibid.

[8] Ibid.

[9] Ananya, supra note 1.

[10] Boolchandani, supra note 5.

[11] Boolchandani, supra note 5.

[12] Supra note 6.

[13] Supra note 6.

[14] Boolchandani, supra note 5.

[15] Death Penalty: Capital Punishment, The Lawyers & Jurists,

[16] Ibid.

[17] Boolchandini, supra note 5.

[18]  Srijanaagrawal, Constitutional Validity of Capital Punishment, Legalserviceindia,

[19] Jagmohan Singh vs State of U.P (1973) 1 SCC 20.

[20] Bachhan Singh vs State of Punjab, (1979) 3 SCC 727.

[21] Srijanaagrawal, Supra note 18.

[22] Rajendra Prasad vs State of U.P, (1979) SC 917.

[23] Machhi Singh vs State of Punjab, (1983) SC 957.

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

[25] Sher Singh v State of Punjab, (1983) SCR (2) 587.

[26] Srijanaagrawal, Supra note 18.

[27] Mukesh & Anr v State for NCT of Delhi & Ors, (2017) 6 SCC 1.

[28] Pratyush Pandey, Capital punishment: Pros & Cons, lawtimes journal (Oct 10, 2020)

[29] Ibid.

[30] Dr. Dushyant Kumar, Constitutional Validity of Capital Punishment, Mahadev University,

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