1. Revisiting death penalty jurisprudence

  • GS Paper 2 and 4- Indian Polity/Ethics.


A Bench of the Supreme Court of India, led by Justice U.U. Lalit, decided to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts. The challenge before the Court in the instant case of Irfan vs State of Madhya Pradesh was to identify the mitigating circumstances and to ensure a convict-centric approach so that the imposition of capital punishment becomes rarer, fairer, and principled.

What is Crime?

Crime has been correctly defined as an act of warfare against the community, reaching unprecedented depths of anarchy. Imposing deterrent punishments has three purposes:

(1) For a long period, to safeguard the community from heinous offenders.

(2) To communicate as plainly as possible to those who may be tempted to follow them into lawlessness on a war scale that if they are brought to trial and convicted, deterrent punishment will be imposed, and

(3) To dissuade offenders who are sentenced to long-term incarceration from repeating their illegal conduct in the future. Even from the standpoint of rehabilitative punishment, “prolonged and indefinite incarceration is justified not only in the name of preventive but also in the name of cure.” In one sense, the criminal has been considered as a patient, to be discharged only when he responds to therapy and may be regarded as “safe “for society.

Few Ethical Philosophies on Capital Punishment:

-Hobbes believed that under the natural order, every man has the right of retaliation for wrongs done to himself or others. He said that the social compact had given the sovereign this privilege while taking it away from everyone else.

-Kant believed that every political community owed it to the people to enact retributive justice.

-Rousseau believed that if the sovereign demanded the subject’s life, the subject should not object. If the culprit was beyond redemption, he saw death as a suitable punishment.

-“A society that does not feel outrage or indignation at outrageous behaviour is unlikely to have an efficient legal system” (Salmond).

Death Penalty or Capital Punishment:

  • The death penalty has been utilised as a kind of punishment since time immemorial for the abolition of offenders and as a punishment for heinous crimes. Indian criminal jurisprudence is founded on a mix of Deterrent and Reformative punishment philosophies.
  • While the consequences are to be applied to discourage criminals, the offenders must also be offered the option for rehabilitation.
  • India is one of the 78 nations that have kept the death penalty on the grounds that it will only be applied in the “rarest of rare circumstances” and for “special reasons.” Though neither the legislation nor the Supreme Court have defined what constitutes a “rarest of rare cases” or “unique causes.”
  • The Indian constitution gives to every individual a basic Right to Life, subject to deprivation via the legal process.
  • Abolitionists have contended that the death penalty in its current form violates the citizen’s right to life.
  • Furthermore, Article 14 of the Constitution states “equality before the law and equal protection under the law,” which means that no one shall be discriminated against unless the discrimination is necessary to promote equality.
  • The preamble to the constitution echoes the notion of equality established in Article. 14. The death penalty appears to be the polar opposite of one’s right to life. However, it is an undeniable reality that there is nothing in the Indian Constitution that specifically declares death punishment to be illegal.

The constitutionality of the death sentence has been called into question in a number of situations:

  • In Jagmohan Singh vs. State of Uttar Pradesh, a five-judge Supreme Court panel unanimously affirmed the constitutional legality of the death sentence, ruling that capital punishment did not violate Articles 14, 19, and 21. In this case, the legitimacy of the death penalty was challenged on the grounds that it violated Articles 19 and 21 by not providing any procedure. It was argued that the method outlined in the Cr.P.C. was limited to establishing guilt and not inflicting the death penalty. The Supreme Court ruled that the death penalty is imposed in conformity with the legal process. It was noticed that the judge chooses between the death penalty and life imprisonment based on the circumstances, facts, and nature of the offence as presented during trial.
  • In another case, Rajendra Prasad vs. State of UP, Justice Krishna Iyer emphatically emphasised that the death sentence violates articles 14, 19, and 21. He went on to say that in order to apply the death punishment, two conditions must be met:
  • The unique cause for inflicting the death penalty in a case should be noted.
  • The death penalty should only be used in exceptional situations.

The issue was revisited in Bachan Singh vs. State of Punjab, in which the Supreme Court’s five-judge panel reversed its earlier ruling in Rajendra Prasad by a vote of 4 to 1.

It stated that the death penalty, as an alternative punishment for murder, is not unreasonable and thus does not violate articles 14, 19, and 21 of the Indian Constitution, because the “public order” contemplated by clauses (2) to (4) of Article 19 is distinct from “law and order,” and it also enunciated the principle of awarding the death penalty only in the “rarest of rare cases.

Furthermore, in Machhi Singh vs. State of Punjab, the Supreme Court established the broad contours of when the death penalty should be inflicted.

Five types of circumstances may be regarded as the rarest of rare cases worthy of the most severe penalties. They are as follows:

  • The manner of commission of the murder – When the murder is committed in such a brutal manner as to arouse intense and extreme indignation in the community, for example, when the victim’s house is set on fire to roast him alive, when the body is cut to pieces, or the victim is subjected to inhuman torture.
  • Motive – When the murder is conducted for a reason that demonstrates depravity and meanness, such as a hired assassin, a cold-blooded murder to inherit or obtain control over a ward’s possessions, or a murder committed for betrayal of the motherland.
  • The crime’s anti-social or socially repulsive aspect – if a scheduled caste or minority group member is slain in circumstances that arouse: communal rage; or bride burning for dowry or remarriage.
  • The Crime’s Magnitude — Large-scale crimes, such as many killings of a family or members of a certain caste, community, or neighbourhood.
  • The personality of victim

In Sher Singh vs. State of Punjab, declared that the death penalty is legally legitimate and admissible within the restrictions of the Bachan Singh rule. This must be recognised as the law of the nation.

Similarly, in Triveniben vs. State of Gujarat, the Supreme Court said unequivocally that the death sentence is not prohibited by the constitution.

What are the Proponents of the Death Penalty’s Arguments?

Retribution: One of the fundamental ideas of retribution is that individuals should receive what they deserve in proportion to the gravity of their crime.

According to this reasoning, true justice requires people to suffer for their transgression and to suffer in a manner proportionate to the offence.

Deterrence: The notion that executing convicted murderers will prevent would-be murderers from killing others is frequently used to justify capital punishment.

It is frequently stated that the death sentence brings closure to the relatives of victims.

The constitutionality of the death penalty:

In the case of Jagmohan v/s State of Uttar Pradesh, the constitutional legality of the death penalty was challenged before the Supreme Court, and it was contended that the right to life was a fundamental right protected by Article 19 of the constitution. The Supreme Court rejected the argument, ruling that the death penalty could not be considered irrational or not in the public interest in and of itself, and hence could not be argued to violate Article 19 of the Constitution.

The Supreme Court stated unequivocally in Bachan Singh’s case that “it is not conceivable to hold that the provision of death sentence as an alternative punishment for murder, under Sec. 302, Penal Code, is irrational and not in the public interest.” The challenged provision in Section 302 contradicts neither the language nor the spirit of Article 19.”

Conclusion: –

  • “Violence exists at either extreme; goodness exists in the centre.” Aristotle
  • The death penalty is a component of Indian law, and unless changed by legal or constitutional amendment, it is a given that every judge in every Indian court is compelled to apply if the applicable legal tests are met.
  • Indian law is a synthesis of reformative and deterrent doctrines. While sanctions must be enforced to discourage criminals, it is also an inherent aspect of Indian penal law that convicts be given the option for rehabilitation. As a result of Cr.P.C. 1973, the general norm became life imprisonment, with the death penalty to be inflicted only under exceptional circumstances.
  • Retribution is still a socially acceptable punishment function. Man’s nature includes the need for vengeance.
  • Capital punishment does not serve two opposing purposes: retribution and deterrent. They are convergent aims that will eventually blend into one. The death sentence for a murderer is a kind of kindness for a sick society that wants to get rid of its nemesis.


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