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Author:Archisha Singh, IV year of B.A LL.B from Banasthali Vidyapith University, Jaipur

Co-Author:Niharika Choudhary, IV year of B.A LL.B from Banasthali Vidyapith University, Jaipur


All penalties are based on the same statement that misconduct must be punished. Most religious or moral systems teach that bad behaviour leads to bad consequences. The main reason for punishing wrongdoers is to prevent others from doing wrong. Because of its intense and irrevocable nature, its fairness, appropriateness, and effectiveness are more open to debate than other penalties. Supporters of the Capital punishment see it as a powerful tool to stop crime. They focus on the capital punishment as a deterrent or something to deter or teach crime. They believe that it brings the greatest justice to victims of heinous crimes.

The practice of capital punishment has changed over time in India. In the past, capital punishment was used more frequently, and it was more severe in terms of the crimes for which it was applied. For example, in the 1950s and 60s, capital punishment was used for a wide range of crimes, including rape, attempted murder, and drug-related offenses. However, since the 1990s, capital punishment has been reserved for more serious crimes, and it has been less frequently used. In 2010, for example, there were only 8 executions in India, compared to 151 in 1995.

Capital punishment has always been a topic of conflict not only in India but also in several developed countries. The United Nations declares the death penalty, or the death penalty, a crime against humanity in its Charter of Rights and calls on its member states to abolish the death penalty.


India is a country with diverse cultural and religious backgrounds. The Constitution of India allows for different forms of punishment, including the death penalty. In March 2012, the Indian Parliament passed a bill allowing for capital punishment in cases involving rape, child pornography and certain other crimes. Critics argue that this measure is unconstitutional because it goes against the principles enshrined in the Indian constitution, which includes non-retroactivity (preventing individuals from being punished twice for identical offenses) and equality before law (ensuring that all citizens are treated equally under law).

The main argument for imposing the death penalty is the theory of Retributive justice. This theory embarks that those who commit such serious crimes must also suffer Same fate. The death penalty is meant to be a deterrent effect to the society, so people have Fear of the consequences of crime.

Meaning of capital punishment

In criminal law, "punishment" refers to any pain, penalty, suffering inflicted upon a person by the court and conviction by a court of law that a person has committed a crime or disqualified him from performing legal duties. Punishment maintains law and order, it protects people and property. Sinful people do not do bad things out of fear of punishment, so punishment and law are inseparable.

The Capital punishment, also known as the death penalty, is the execution of a criminal who has been sentenced to death after being convicted by the Court of Law. Capital punishment is distinguished from extrajudicial executions which are carried out without due process of law. The term However, the death penalty is sometimes used interchangeably with capital punishment, though if the penalty is imposed its not always followed by the execution ( even when it is upheld on appeal)because of the possibility of commuting to life imprisonment.

Historical Background

The death penalty is an ancient sanction. There is hardly a country in the world where the death penalty has never existed. The history of human civilization shows that the death penalty has never been abandoned as a means of punishment. The death penalty for murder, treason, arson and rape was common in ancient Greece under the loss Draco (7th century BC), although Plato believed it should only be used for the hopeless. The Romans also used it for various crimes, although citizens were temporarily exempted from using it during the republic.

The history of capital punishment in India can be dated back to the Vedic period where harsh punishments were prescribed for crimes such as theft and murder. These punishments included public torture and execution. Over time, the perception of punishment changed and harsher punishments were abandoned in favour of moral reform. The death penalty continues to be a part of the Indian legal system, however, there is great debate surrounding its use.

Constitutional validity of Capital Punishment in India

The Capital punishment has undergone many dimensional transformations, bringing with it many forms of punishment from ancient times. The death penalty in the Indian context begins with the Indian Penal Code, where the Indian penal Code of 1860 (IPC) is the public law and substantive criminal law that defines crimes and regulates punishment. Section 53 of the IPC provides alternative to the death penalty that is life imprisonment as a punishment. Under the current circumstance, Capital punishment is recognized as a legal Death penalty in India. Capital punishment is only declared for grave criminal offences.

There has been a mixed opinion on the subject of the Capital Punishment in India, as few are in favour of keeping the punishment while others are in favour of its abolition. India is one of 78 retentionist countries that have retained the Capital punishment and is going to be approved only in rarest of rare cases" and for "special reasons". Although what comprises a 'rarest of the rare cases' or 'special reasons' has yet not answered by the legislature or the Supreme Court.

The Indian constitution guarantees everyone the fundamental right to life subject to its deprivation by the procedure established by law; abolitionists have argued that the death sentence in its current form violates the citizen's right to life. Article 14 of the Constitution of India declares that equality before law and equal protection of the lawwhich means that no person shall be divest of life or personal liberty except for according to policy established by law. The equality before law and equal protection of the laws guaranteed by this article imply that no person shall be discriminated against unless the discrimination is required to achieve the principle of equality. The concept of equality included in Article 14 finds echo in the preamble to the Constitution. Therefore, Capital punishment seems anti-thesis of one’s Right to life.

This is stated by the Indian judiciary, attaching importance to Indian constitution, where Article 21 of the Indian constitution reads "protection of life and personal liberty." This article says: "No one may be deprived of his life or personal liberty, except in accordance with the procedure established by law" according to this article right to life is promised to every citizen of India. In India, IPC prescribes the death penalty Punishments for various crimes such as criminal conspiracy, murder, war against the government, Promote insurgency, murder and Anti- terrorism. The Indian constitution provides provision for mercy of Capital Punishment by the President. Whenever the death penalty or the question of the death penalty arises, this article plays a role in encouraging judicial staff to re-analyze cases and make them think before the death penalty or death sentence.

From time to time constitutional validity of the capital punishment has been challenged.

The first case where the issue of constitutional validity of death sentence came before the Supreme Court was Jagmohan Singh V. U.P . Section 302 of Indian Penal Code, 1960 (Death sentence for murder) was set under the trial of constitutional validity. The main arguments presented before the Supreme Court was that it violates many fundamental rights that should be granted to the Citizens, especially in violation of Article 14, on the grounds that in two similar cases, the penalty for murder is life imprisonment and in some cases the death penalty. The Supreme Court rejected the claim held that the discretion of awarding death penalty or giving life imprisonment ruling that the death penalty or life imprisonment. Judges must examine the merits of the case, even Circumstances of a crime and therefore Section 302 of the Indian Penal Code, 1860 was not held Unconstitutional.

In the case of Bachan Singh vs. State of Punjabthe question of constitutionality of capital punishment was again considered by the Five judge Bench of the Supreme Court in which by a majority of four judges of the Supreme Court overturned their earlier decision in Rajendra Prasad. It stated the view that the death penalty as an alternative punishment for murder is not unreasonable and therefore does not violate articles 14, 19 and 21 of the Constitution of India, since "public order" examine by clause (2) and (4) of Article 19, differs from "law and order", and also proclaimed the principle of imposing the death penalty only in "the rarest of rare cases" in the dissenting judgement of Bhagwati ji it was held that “the death penalty is not only unconstitutional but also not desirable from several points of view”.

The Supreme Court in Machhi Singh vs. State of Punjab laid down the circumstances of when death sentence should be imposed. Speaking for the Court Justice Thakkar held that five categories of cases should be regarded as rarest of rare cases worthy extreme penalty. They are

  1. Manners of Murder Commission - When the murder was carried out in a very brutal way and caused intense resentment in the community, for example, the victim's house set fire to roast him alive. When the body is shredded, the victim is inhumanely tortured.

  2. Motive – When a murder is committed for a motive to prove corruption and despicableness, e.g., a cold-blooded killer who is hired to take over the property, a hired assassin or a murder committed out of loyalty to one's country.

  3. Anti-social or socially abhorrent nature of the crime –The social outrage caused by the murder of a scheduled caste or minority community person, burning bride for or remarriage.

  4. Magnitude of the Crime – Crimes which are in enormous propotion, including multiple murders of family members, specific castes, communities, and locality.

  5. Personality of Victim of murder-

  • A provocative innocent child who couldn't or didn't even provide an excuse,

For murder

  • Helpless women or those who have been helpless due to old age or weakness

  • If the victim is a person whose murderer is in control or trust

  • The victim is a public figure and from the community where he is loved and respected generally, who murdered for political or similar reasons other than personal reasons.

In the case of Deena vs. Union of Indiathe constitutional validity of Section 354(5) of the Indian Penal Code1973, was questioned on the ground that by rope specified by this section were barbaric, inhuman, degrading, and therefore violation of article 21. The court held that section 354(5) of the Indian Penal Code, which prescribes hanging as the most appropriate method of execution as fair, just, and rational procedure within the meaning of Art. 21, therefore, constitutional.

Powers of the President and the Governor in Death Sentence

After trying all the other legal remedies, a person on death row can petition the first citizens of the country for mercy. This petition must be submitted either through an authorized representative or the convict himself from prison. Article 72 and 161 of the Constitution give the President and the Governors the power to suspend, remit, or commute sentences in certain cases. The President and the Governors have the authority to reduce or rescind punishment only after the courts have delivered a conviction and passed sentence. The powers under Article 72 and 161 are responsible for ensuring that the President and Governors act fairly and reasonably. The power of the President under Article 72 is more extensive than that of the Governor in the sense that the President can pardon someone who has been sentenced to death and Court Martial.

In the case of Kuljeet Singh alias Ranga v. Lt. Governor of Delhi, the Supreme Court dismissed a suit seeking to declare that the President had transgressed his executive power to grant mercy in execution of the power under Article 72 of the Constitution by refusing to grant mercy to him.

In the case of Mohinder Singh v. State of Punjab it was held that the Supreme Court has no authority to consider any plea for stay of execution while the mercy petition is pending before the President of India since it is not maintainable. A request for a stay of execution must be made to India's President.

Recent Trend

In present scenario of our country, the death sentence still exists and is only applied in the rarest of the rare cases.

Delivering the judgement in the year 2018 ChhannuLal v. State o Chattisgarh Supreme Court Justice K. Joseph said, "The Constitutional directive of death penalty in Bachan Singh versus State of Punjab in 1980 is Failure to prevent the death penalty from being "arbitrarily and insanely imposed" and The death penalty has missed the constitutionally valid goal, The time has come to believe that we will recognize the necessity of the death penalty as a punishment Especially its purpose and practice. Furthermore, Justice Deepak stated, "We believe that since constitutional Bench in Bachan Singh vs. State of Punjab maintains death penalty, then there is no need to reassess same at this stage.

"The Supreme Court has reinstated the constitutionality of the death penalty in India. Although it is difficult to impose the death penalty compared to other Middle Eastern countries. This is because, in India, every case in which capital punishment is imposed involves a human life, and that life is afforded some constitutional safeguards under Article 21 of the Constitution the process should be maintained when imposing the death penalty on that person, some high constitutional criteria must be met, and they must be in accordance with constitutional principles. In the recent case of Mukesh & Anr. V. State of N.C.T. of Delhi (commonly known as ‘Nirbhaya Gang Rape Case) which made entire country sob and caused a tsunami in the Supreme Court. This case was an absolutely brutal case where a girl was brutally raped and killed by a gang. In this case, the motives behind such atrocities, as well as the atrocities committed by the criminals, are considered. When the incident came into the limelight, it drew national attention, sparking protests and candlelight marches across the country demanding justice for the victims. The study of the seriousness of the crime and the manner in which it was committed led to the revision of the Rape Act and the amendment of the Indian Penal Code of 1860. The death penalty has also been added to cases where harm was caused during rape and resulted in the victim's death or continued vegetative state. Four convicts were sentenced to death. Last-ditch efforts to stop the death penalty execution or commute the sentence were unsuccessful. The execution was not stayed by the Supreme Court, and they were hanged after exhausting all legal options.

The doctrine of rarest of rare

The doctrine of rarest of rare is a legal principle that holds that a person who has been convicted of a crime should not be subject to the death penalty unless all other remedies under the judicial system have been exhausted. The principle is based on the belief that the death penalty should only be used as a last resort. Machhi Singh v. State of Punjab is the Supreme Court decision that established the "rarest of rare cases" doctrine. This ruling followed the court's earlier decision in Bachan Singh v. State of Punjab (1982), in which it upheld the constitutionality of capital punishment but added the now-famous (though difficult to pin down) caveat that death sentences would only be given in the "rarest of rare situations." The Indian Supreme Court has debated the criteria for the rarest of rare situations from time to time, and various recommendations have been given in identifying the rarest of rare cases, such as "The reasons why the community as a whole does not favour the humanistic technique represented in the death sentence in no case doctrine are not far to seek”.

There is no direct jacket formula for applying "the rarest of doctrines". In a criminal case, the procedure consists of two points, the nature and seriousness of the crime. From these two points, the degree of punishment can be calculated. The Indian judiciary is obliged to find some harmony between aggravating and mitigating conditions and public outcry, adding that the reasons should be so sound that there is no choice but to impose the death penalty. Recently, the Supreme Court upheld the death sentence for Nirbhaya's rape and murder defendant, calling it a "rare case" that allowed for shameless discipline to ensure justice. In India, the "rare" rule is the benchmark for the death penalty.

Inception of the ‘rarest of rare doctrine’

In the case of Nathuram Godse v Crown (Assassination of Mahatma Gandhi), the Nathuram Godse case is the rarest and most important case to ever occur in free India. On the night of January 30, 1948, Nathuram Godse shot and killed Mahatma Gandhi at a petition in Birla Mandir, Delhi. After a delayed preliminary hearing, Judge Amanat handed down the death sentence, which was upheld by three judges of the Punjab High Court.

In Kehar Singh v Delhi Government, the Supreme Court upheld the death sentence imposed by the trial court, and the Supreme Court upheld the death sentences of [applicants Kehar Singh, Balbir Singh and Satwant Singh for conspiracy to conspire and obtain the murder of Smt. Indira Gandhi u/s 302, 120B, 34, 107 and 109 of Indian Penal Code. The cou0rt ruled that murder was the rarest of the rare cases that required special punishment for a professional killer and his conspirators.

In the case of Santosh Kumar Singh v Union Territory of Delhi (Mattoo Murder Case), santosh kumar was indicted for rapping the victim and breaking every bone in her body, but his actions were not measured severe enough to make the case "rarest of rare."

The death penalty was once obligatory in India under section 303 of the Indian Penal Code. In any case, the Supreme Court declared section 303 ultra vires the Constitution in Mithu Singh v State of Punjab in 1983, claiming that it violates articles 14 and 21 of the Constitution.


The Rarest of the rare formulation certainly continues the process of determining court declarations on the Death penalty in India. But it is not immune to criticism. By question which is probably asked by the Defendant: My life and death depend on the condition of the bench Form from time to time? This does not clearly violate the basic warranty In Articles 14 and 21? "Now the courts are also criticized for ignoring the background of the offender and his chances of recovery and rehabilitation, at least in some cases. It is argued that in most cases the punishment given always depends on the nature of the crime and the perpetrator's role in crimes involving wrongfully committed murders and attempts by the accused to destroy entire families".

The Supreme Court ruled in Karan Singh v. State of Uttar Pradesh, where the accused killed five members of a family. Confirmed the death penalty imposed by the High Court because the murders were committed in a heinous manner, and that the accused intended to kill the entire family."

Similarly in Ravji v. Rajasthan State "The defendant assassinated his pregnant wife and three little children. While departing the site of the crime, he also murdered an elderly man who was passing by. The court described it as a horrible act for which there is no rationale for death penalty commutation"

Again in the case of Surja Ram v. Rajasthan State the accused murdered his brother, his two small boys, and his elderly aunt by cutting their throats. He tried the same thing with his brother's wife and daughter, they were seriously hurt. The court recognised the victims innocence and helplessness as well as the fact that the murder was carried out with cruelty and precision. The court remarked that such events would shock society's conscience and decided that it will belong under the category of the rarest of rare."

In the case of Govindaswami v. State of Tamil Nadu, the court maintained the death penalty for the accused, who murdered five members of his uncle's family while they were sleeping , callous and deliberate attempt to seize his property.

In Holiram Bardolai v. State, in which the accused committed many killings in a deliberate, ruthless, and sadistic manner therefore, Supreme Court declared it to be a case of the rarest of rare.

Another noteworthy judgement is State of Maharashtra v. Suresh, which involves the rape and murder of a four-year-old child. Despite the fact that it was a "rarest of rare case," the court refused to impose the death punishment on the grounds that the death sentence pronounced by the trial court had been changed by the High Court.

According to the case Amrit Singh v. State of Punjab. A girl in second grade was violently raped. She died as a result of the heavy bleeding. The accused was found culpable and sentenced to death by both the trial and high courts under section 302. Despite the brutality of the rape, the Supreme Court ruled that the death was not deliberate.


If we look at the historical background of the death penalty, it has always been there Kings, as rulers of their dynasties, are always punished by death the death penalty existed during British India. The Indian Penal Code of 1860 was made during the British India period and had the death penalty. Before, 1955 death sentence as the punishment was the rule, life imprisonment was the exception, but in today's circumstances, life Prisons are the norm, and the death penalty is rare. In the international case There are two different theories for the scenario, namely that some countries support the death penalty and in the US some states still have the death penalty, but some states have abolished it. In India, the Supreme Court from its various judgments has not yet abolished the death penalty they still supports the death penalty. Although through different cases and with the changing times, the Supreme Court has also changed and was forcibly abolished the death penalty, claiming it violates Articles 14 and 21 of the Indian Constitution. But now the situation is that in rare cases the death penalty is imposed. In the end, the authors want to conclude that the death penalty should not be abolished, as we saw in Nirbhaya case, that there were so many desperate efforts to avoid execution. In some cases, restorative justice theory does not apply and offenders should be dealt with in accordance with retributive justice theory. Also in the author's opinion, the death penalty should not be completely abolished, as it still exists and acts as a deterrent effect in society. The death sentence should only be applied in the most extreme instances, and while it may not have a perfect deterrent effect on people, even if it instils dread in the minds of some, it is still beneficial to society.


Table of Authorities

  1. Jagmohan Singh V. U.P

  2. Bachan Singh vs. State of Punjab

  3. Machhi Singh vs. State of Punjab

  4. Deena vs. Union of India

  5. Kuljeet Singh alias Ranga v. Lt. Governor of Delhi

  6. Mohinder Singh v. State of Punjab

  7. ChhannuLal v. State o Chattisgarh

  8. Mukesh & Anr. V. State of N.C.T. of Delhi

  9. Nathuram Godse v Crown

  10. Santosh Kumar Singh v Union Territory of Delhi

  11. Karan Singh v. State of Uttar Pradesh

  12. Govindaswami v. State of Tamil Nadu

  13. Indian penal code

  14. Criminal Procedure code


  1. JN Pandey of constitution

  2. SN Misra of IPC

  3. 'Takwani' MC Thakker and CK Thakker of Crpc



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