UNIVERSITY LL.

M Part II, GROUP – C (Penology)

TORT AND CRIME
OF Submitted to : Ms Gopa Chandra Mandal
CALCUTTA

Submitted by:

Justice: In the light of death penalty, should it Fatema Nissa, Roll

prevail or not? An Indian perspective

No: 12 Registration
No: 093053 of 2005-
2006Department of
Law (Hazra Campus)
 2

ACKNOWLEDGEMENT

I  would like to express my special thanks of gratitude to my teacher Miss Gopa Chandra

Mandal as well as Prof. (Dr.) Shachi Chakrabarty who gave me the golden opportunity to do

this assignment on the topic “Justice: In the light of Capital Punishment, should it prevail or

not? An Indian perspective.”

I have come to know about so many new things I am obliged and sincerely grateful to them for

giving this opportunity.

Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this

project within the limited time frame.

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Justice: In the light of death penalty, should it prevail or not? An Indian perspective

Contents

1. Introduction

2. Meaning to Death Penalty or Capital Punishment

3. Historical background

4. Capital punishment in India

5. International scenario

6. Capital punishment in International Human Rights treatises

7. Political Commitments regarding Capital Punishment globally

8. Capital Punishment: The current status-

a) Supreme Court on validity of Capital Punishment in India

b) Criteria for rarest and rare case

c) Mode of execution: By hanging till death

d) Sentencing procedure and framework: Landmark cases

9. Emergence of alternative punishment to capital punishment

10. Clemency Powers

11. Judicial Review of exercise of mercy powers

12. Law Commission of India’s report on Death Penalty

13. India’s History voting against moratorium and other international commitments

14. Conclusion

15. Annexure – I, II & III

16. Endnotes
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Abstract

“An eye for an eye will make the whole world blind”, so why in a country like India where
Gandhian philosophy is highly held and esteemed has retained the provision of death penalty to
administer justice? “Capital Punishment” or “Death Penalty” is the highest level of punishment
awarded in any society or democracy to maintain law and order. But killing another human being
in the name of justice is no better than murdering someone. We should focus on eliminating the
crime not the criminal. China is the only country in the world where the practice of death penalty
is still at its peak with over 1000 executions every year, whereas in India the doctrine of “Rarest
of the Rare” is followed and often the death sentence gets commuted to life imprisonment. Both
the countries have various similarities in the procedure and law of capital punishment, but in
China once the death penalty is awarded it cannot be revoked. This is the reason why United
Nation (UN) opposed the concept of death penalty and stated that “Life is precious, and death is
irrevocable”. Further UN also said that killing another human being in the name of justice also
kills the fact that we are human. We are no one to decide who gets to live and who gets to die.
Therefore instead of hanging someone to death we should adapt a different approach i.e. the
reformative approach so that one could improve himself and can live peacefully thereafter. This
paper says about the status of capital punishment all around the world and also defines the
concept of capital offence. It also explains about the modes of capital punishment in India . This
article explains two major theories related to capital punishment, namely reformative theory and
preventive theory. In this research the researcher also explained about rarest of rare cases. This
article mentioned about abolitionist and retentionist countries, also capital punishment in ancient
India. This article has a detailed view about the capital punishment in India and also the methods
of execution in India.

KEYWORDS: capital punishment, death penalty, legislation, capital offence, crimes.

 5

1. INTRODUCTION

Justice, in its broadest sense, is the principle that people receive that which they deserve,
with the interpretation of what then constitutes "deserving" being impacted upon by
numerous fields, with many differing viewpoints and perspectives, including the concepts
of moral correctness based on ethics, rationality, law, religion, equity and fairness.

Consequently, the application of justice differs in every culture. Early theories of justice were
set out by the Ancient Greek philosophers Plato in his work The Republic, and Aristotle in
his Nicomachean Ethics. Throughout history various theories have been established.
Advocates of divine command theory have said that justice issues from God. In the 1600s,
philosophers such as John Locke said that justice derives from natural law. Social
contract theory said that justice is derived from the mutual agreement of everyone. In the
1800s, utilitarian philosophers such as John Stuart Mill said that justice is based on the best
outcomes for the greatest number of people. Theories of distributive justice study what is to
be distributed, between whom they are to be distributed, and what is
the proper distribution. Egalitarians have said that justice can only exist within the
coordinates of equality. John Rawls used a social contract theory to say that justice, and
especially distributive justice, is a form of fairness. Robert Nozick and others said
that property rights, also within the realm of distributive justice and natural law, it maximizes
the overall wealth of an economic system. Theories of retributive justice say that wrongdoing
should be punished to insure justice. The closely related restorative justice (also sometimes
called "reparative justice") is an approach to justice that focuses on the needs of victims and
offenders. In other words punishment of the culprit helps restore justice.

All punishments are based on the same proposition i.e. there must be a penalty for
wrongdoing. There are two main reasons for inflicting the punishment. One is the belief that
it is both right and just that a person who has done wrong should suffer for it; the other is the
belief that inflicting punishment on wrongdoers discourages other from doing wrong. The
capital punishment also rests on the same proposition as other punishments.1

The capital punishment debate is the most generally relevant debate, keeping in mind the
situation that has been brought about by today. Capital punishment is an integral part of the
1
http://newindialaw.blogspot.in/2012/11/constitutional-validity-of-capital.html
 6

Indian criminal justice system. Increasing strength of the human rights movement in India,
the existence of capital punishment is questioned as immoral. However this is an odd
argument as keeping one person alive at the cost of the lives of numerous members or
potential victims in the society is unbelievable and in fact, that is morally wrong.2

The formal execution of criminals has been used in nearly all societies since the beginning of
recorded history. Before the beginning of humane capital punishment used in today’s society,
penalties included boiling to death, flaying, slow slicing, crucifixion, impalement, crushing,
disembowelment, stoning, burning, decapitation, dismemberment and scaphism. In earlier times,
the death penalty was used for a variety of reasons that today would seem barbaric. Some cultures
used it as punishment for magic, violation of the Sabbath, blasphemy, a variety of sexual crimes
including sodomy and murder. Today, execution in the US is used primarily for murder, espionage
and treason. In China, human trafficking and serious cases of corruption are punishable by death,
and several militaries around the world impose the death penalty for desertion, mutiny and even
insubordination. In middle-eastern countries, rape, adultery, incest and sodomy carry the death
penalty as does apostasy (the act of renouncing the state religion). While most industrialized
countries utilize lethal injection or the electric chair for capital punishment, many others still use
hanging, beheading or stoning. In some states in the US, death by firing squad is also still used. 

2. MEANING OF DEATH PENALTY OR CAPITAL PUNISHMENT

Capital punishment, also called death penalty, execution of an offender sentenced to death
after conviction by a court of law for a criminal offense. Capital punishment should be
distinguished from extrajudicial executions carried out without due process of law. The term
death penalty is sometimes used interchangeably with capital punishment, though imposition
of the penalty is not always followed by execution (even when it is upheld on appeal),
because of the possibility of commutation to life imprisonment. 3

The term "Capital Punishment" stands for most severe form of punishment. It is the
punishment which is to be awarded for the most heinous, grievous and detestable crimes
against humanity. While the definition and extent of such crimes vary from country to

2
http://www.allsubjectjournal.com/archives/2015/vol2issue4/PartK/62.pdf
3
http://www.britannica.com/topic/capital-punishment
 7

country, state to state, age to age, the implication of capital punishment has always been the
death sentence. By common usage in jurisprudence, criminology and penology, capital
sentence means a sentence of death. 4

Crimes that can result in a death penalty are known as capital crimes or capital offenses. The
term capital has a Latin origin from the term capitalist, literally “regarding the head”. It refers
to a sentence that condemns a convicted defendant to death. It is also an affliction or a
situation that is considered to be fatal; also a prognosis of death.

In India, section 368 of the Criminal Procedure Code gives the power of confirmation of
death sentence to the High Courts. A death sentence is normally given in case of murder, for
waging war against the state and also in cases cited as Rarest of Rarest Cases.

3. HISTORICAL BACKGROUND

Capital punishment is an ancient sanction. There is practically no country in the world where the
death penalty has never existed. History of human civilization reveals that during no period of
time capital punishment has been discarded as a mode of punishment. 5

Capital punishment for murder, treason, arson, and rape was widely employed in ancient Greece
under the laws of Draco (fl. 7th century BCE), though Plato argued that it should be used only
for the incorrigible. The Romans also used it for a wide range of offenses, though citizens were
exempted for a short time during the republic.6

This finds support in the observation made by Sir Henry Marine who stated that "Roman
Republic did not abolish death sentence though its non-use was primarily directed by the practice
of punishment or exile and the procedure of questions".7

4. CAPITAL PUNISHMENT IN INDIA

A careful scrutiny of the debates in British India's Legislative Assembly reveals that no issue was
raised about capital punishment in the Assembly until 1931, when one of the Members from
Bihar, Shri Gaya Prasad Singh sought to introduce a Bill to abolish the punishment of death for
4
Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
5
Op.cit. Capital Punishment by Dr. Subhash C. Gupta, 2000, p. 1
6
http://www.britannica.com/topic/capital-punishment
7
Op.cit. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
 8

the offences under the Indian Penal Code. However, the motion was negated after the then Home
Minister replied to the motion. The Government's policy on capital punishment in British India
prior to Independence was clearly stated twice in 1946 by the then Home Minister, Sir John
Thorne, in the debates of the Legislative Assembly. "The Government does not think it wise to
abolish capital punishment for any type of crime for which that punishment is now provided"8

At independence, India retained several laws put in place by the British colonial government,
which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the Indian Penal
Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be imposed under the law,
including death. For offences where the death penalty was an option, Section 367(5) of the CrPC
1898 required courts to record reasons where the court decided not to impose a sentence of
death: If the accused is convicted of an offence punishable with death, and the court sentences
him to any punishment other than death, the court shall in its judgment state the reason why
sentence of death was not passed.

In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly altering the position of
the death sentence. The death penalty was no longer the norm, and courts did not need special
reasons for why they were not imposing the death penalty in cases where it was a prescribed
punishment. The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several
changes were made, notably to Section 354(3): When the conviction is for an offence punishable
with death or, in the alternative, with imprisonment for life or imprisonment for a term of years,
the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of
death, the special reasons for such sentence. This was a significant modification from the
situation following the 1955 amendment (where terms of imprisonment and the death penalty
were equal possibilities in a capital case), and a reversal of the position under the 1898 law
(where death sentence was the norm and reasons had to be recorded if any other punishment was
imposed). Now, judges needed to provide special reasons for why they imposed the death
sentence. These amendments also introduced the possibility of a post-conviction hearing on
sentence, including the death sentence, in Section 235(2), which states: If the accused is
convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360,
hear the accused on the question of sentence, and then pass sentence on him according to law.9

8
Ibid. pp. 104-105.
9
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp. 17-18.
 9

Various laws under which death penalty can be prescribed as a possible punishment in India
are given at Annexure-I

5. INTERNATIONAL SCENARIO

The international landscape regarding the death penalty – both in terms of international law and
state practice – has evolved in the past decades. Internationally, countries are classified on their
death penalty status, based on the following categories:

 Abolitionist for all crimes

 Abolitionist for ordinary crimes

 Abolitionist de facto

 Retentionist

At the end of 2014, 98 countries were abolitionist for all crimes, 7 countries were abolitionist for
ordinary crimes only, and 35 were abolitionist in practice, making 140 countries in the world
abolitionist in law or practice. 58 countries are regarded as retentionist, who still have the death
penalty on their statute book, and have used it in the recent past. 10 While only a minority of
countries retain and use the death penalty, this list includes some of the most populous nations in
the world, including India, China, Indonesia and the United States, making a majority of
population in the world potentially subject to this punishment.

Country wise list of these four categories is given at Annexure-II.

6. CAPITAL PUNISHMENT IN INTERNATIONAL HUMAN RIGHTS TREATIES

 The International Covenant on Civil and Political Rights (‘ICCPR’) is one of the key
documents discussing the imposition of death penalty in international human rights law.
The ICCPR does not abolish the use of the death penalty, but Article 6 contains
guarantees regarding the right to life, and contains important safeguards to be followed
by signatories who retain the death penalty.11

 The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty
is the only treaty directly concerned with abolishing the death penalty, which is open to

10
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.38-39
11
Ibid. p.40-41
 10

signatures from all countries in the world. It came into force in 1991, and has 81 states
parties and 3 signatories.12

 Similar to the ICCPR, Article 37(a) of the Convention on the Rights of the Child (‘CRC’)
explicitly prohibits the use of the death penalty against persons under the age of 18. As of
July 2015, 195 countries had ratified the CRC.13

 The Convention against Torture and Cruel, Inhuman or Degrading Treatment or

Punishment (‘the Torture Convention’) and the UN Committee against Torture have been
sources of jurisprudence for limitations on the death penalty as well as necessary
safeguards. The Torture Convention does not regard the imposition of death penalty per
se as a form of torture or cruel, inhuman or degrading treatment or punishment (‘CIDT’).
However, some methods of execution and the phenomenon of death row have been seen
as forms of CIDT by UN bodies.14

 In the evolution of international criminal law, the death penalty was a permissible
punishment in the Nuremberg and Tokyo tribunals, both of which were established
following World War II. Since then, however, international criminal courts exclude the
death penalty as a permissible punishment.15

Of the treaties mentioned above, India has ratified the ICCPR and the CRC, and is signatory
to the Torture Convention but has not ratified it. Under international law, treaty obligations
are binding on states once they have ratified the treaty. Even where a treaty has been signed
but not ratified, the state is bound to “refrain from acts which would defeat the object and
purpose of a treaty”.16

7. POLITICAL COMMITMENTS REGARDING CAPITAL PUNISHMENT

GLOBALLY

 Several resolutions of the UN General Assembly (UNGA) have called for a

moratorium on the use of the death penalty. In 2007, the UNGA called on states to
“progressively restrict the use of the death penalty, reduce the number of offences for

12
Ibid. p.43
13
Ibid. pp.43-44
14
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.44-45
15
Ibid. p.46
16
Ibid. p.46
 11

which it may be imposed” and “establish a moratorium on executions with a view to

abolishing the death penalty.” In 2008, the GA reaffirmed this resolution, which was
reinforced in subsequent resolutions in 2010, 2012, and 2014. Many of these
resolutions noted that, “a moratorium on the use of the death penalty contributes to
respect for human dignity and to the enhancement and progressive development of
human rights.” In 2014, 117 States had voted in favour of the most recent resolution.
India has not voted in favour of these resolutions.17
 In a 2013 resolution, the UN Human Rights Council acknowledged “the negative
impact of a parent’s death sentence and his or her execution on his or her children,”
and urged “States to provide those children with the protection and assistance they
may require,” Human Rights Council resolution, 2014 noted that “States with
different legal systems, traditions, cultures and religious backgrounds have abolished
the death penalty or are applying a moratorium on its use” and deplored the fact that
“the use of the death penalty leads to violations of the human rights of those facing
the death penalty and of other affected persons.” The Human Rights Council urged
states to ratify the Second Optional Protocol to the International Covenant on Civil
and Political Rights.
 The law of extradition has been another tool for countries pushing for the abolition
of the death penalty. Several abolitionist countries either require assurances that
retentionist-extraditing countries not impose the death penalty, or have included such
a clause in bilateral extradition treaties.18

8. CAPITAL PUNISHMENT : THE CURRENT STATUS

Prior to the examination of Supreme Court of India, the abolition of the death sentence in
India was examined by the 35th Law Commission report in response to a resolution moved
by Raghunath Singh, Member of Lok Sabha. The Law Commission of India stressed on the
reasoning that the conditions in India demands the contrary position to the proposition of
‘abolition of death penalty’ and concluded the death penalty should be retained. It said that
the variety of upbringing, the diversity of the population, the disparity in the levels of

17
Ibid. pp.51-52
18
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.52-53.
 12

education and morality and the paramount need for maintaining law and order were
fundamental factors and issues that impede India from taking a favourable position to abolish
the capital punishment. However, the jurisprudence regarding the capital sentence
inordinately changed throughout various landmark judgments pronounced by the Supreme
Court of India.

(a) Supreme Court on Validity of Capital Punishment in India

The first challenge to the capital punishment in India came during the 1973 case of Jagmohan
Singh v. State of U.P, October 1972. The judgment came before the Code of Criminal
Procedure (in short CrPC ) was re-enacted in 1973, whereby the death sentence constituted
an exceptional sentence. It was argued that the death penalty violates to the right to life and
equality and guaranteed by the Indian Constitution. Moreover, the uncontrolled and unguided
arbitrary discretion in the judges to impose capital punishment violates Article 14 of the
Indian Constitution and the petitioners contended that the procedure for consideration of
circumstances in order to pronounce finding and reasoning to make judicial decision between
capital punishment and life imprisonment is not available under CrPC, 1898, therefore it
violated Article 21 of the Indian Constitution. However, the Supreme Court of India refused
to accept the argument and held that the death sentence is pronounced after detailed
recording and evaluation of the aggravating and mitigating circumstances, thus such
procedure justifies the imposition of capital punishment and does not violate Article 21 of the
Indian Constitution. Moreover, the criticism of judge-centric or wide discretion on the judges
on the fixation of the punishment is subject to the scrutiny of the superior judges and
premised on the well recognized judicial principles. The judgment also discussed the US
Supreme Court Decision in Furman v. Georgia, October 1971 where the US Supreme
Court struck down the death sentence scheme as it violated the Eighth Amendment of the US
Constitution as being cruel and unusual punishment. But, the Supreme Court of India refused
to accept the reasoning and stated that there is no rational basis for concluding the death
sentence as unconstitutional because the Indian Constitution does not have an equivalent to
the Eighth Amendment.

Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all
persons. It adds no person shall be deprived of his life or personal liberty except according to
 13

procedure established by law. This has been legally construed to mean if there is a procedure,
which is fair and valid, then the state by framing a law can deprive a person of his life. While
the central government has consistently maintained it would keep the death penalty in the
statute books to act as a deterrent, and for those who are a threat to society, the Supreme
Court too has upheld the constitutional validity of capital punishment in “rarest of rare”
cases. In Jagmohan Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State
of Uttar Pradesh (1979), and finally in Bachan Singh vs State of Punjab (1980), the Supreme
Court affirmed the constitutional validity of the death penalty. It said that if capital
punishment is provided in the law and the procedure is a fair, just and reasonable one, the
death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare”
cases, and the courts should render “special reasons” while sending a person to the gallows.19

Landmark cases on constitutionality of the death penalty

Since the incorporation of Code of Criminal Procedure, 1898, while imposing the death
sentence, the courts were obliged to provide ‘special reasons’ for not imposing the death
sentence. The true departure from death sentence as a norm to an exception came after the
introduction of Code of Criminal Procedure re-enacted in 1973. The CrPC 1973 introduced
Section 354(3) the section mandated that judge must provide ‘special reasons’ for inflicting
or imposing the death sentence. Also, the CrPC 1973 introduced the Section 235(2), which
allowed the post-conviction hearing on sentencing which drastically changed the
jurisprudence allowing a careful evaluation and analysis of circumstances revolving around
the jurisprudence of death sentence.

Rajendra Prasad v. State of Uttar Pradesh, February 1979[edit]

Post the re-enactment of CrPC 1973, there was ambiguity in the jurisprudential
understanding of ‘special reasons’ for imposing the death sentence.  The Supreme Court in
Rajendra Prasad v. State of Uttar Pradesh, February 1979 dealt with the legal policy on
sentencing discretion and also comprehensively discussed the meaning of ‘special reasons’
for inflicting death sentence on exceptional grounds. The Court departed
from retributive theory and emphasized on the deterrence and reformative theory as the

19
Indian Express, New Delhi, dated 27.5.2015
 14

social goals. Furthermore, the Court held that the ‘special reasons’ required to impose the
capital punishment must not relate to the crime, but focus must be on the criminal.

Bachan Singh v. State of Punjab, May 1980

The constitutional validity of death penalty was again challenged in the Bachan Singh v.
State of Punjab, in May 1980, and it was premised on multiple new developments. Firstly,
the re-enactment of CrPC 1973 had made the death penalty as an exception with regards to
the rule of imposing life imprisonment for offences consist of choice between life
imprisonment and death sentence. Secondly, the dictum of Rajendra Prasad v. State of Uttar
Pradesh, February 1979, had interpreted the parameter on which ‘death sentence’ must be
related to circumstance of the criminal and not the crime itself. Thirdly, it reviewed the death
sentence in the light of Maneka Gandhi v. Union of India, January 1978 since every punitive
action must satisfy the test of reasonableness after satisfying the golden triangle test of
Articles 14, 19 and 21 of the Indian Constitution.  The primary challenges to the death
penalty in Bachan Singh v. State of Punjab, May 1980 was that the death punishment is
unnecessary, cruel, inhumane and degrading treatment and the punishment of death sentence
does not serve the purpose of deterrence. Furthermore, the constitutional validity of Section
302 of IPC and Section 366(2) of CrPC was challenged in this case on the ground that the
imposition of death penalty is arbitrary and whimsical. However, the Supreme Court by a
majority of 4:1 did not accept this contention and affirmed the constitutional validity of death
sentence but propounded the doctrine of ‘rarest of rare’ as that the death sentence can only
imposed ‘in  the  rarest  of  rare  cases  when  the alternative option is unquestionably
foreclosed.” Moreover, the Supreme Court ascertained that the “special reasons” in the
context of inflicting death sentence must pay due regard to both the crime and criminal and
the relative weight has to be given both aggravating and mitigating circumstance prior to the
stating of special reasons for inflicting the death sentence. The Supreme Court recognized
that the mitigating factors includes the mental condition, the age of the accused, the
possibility of reforming or that the person committed the crime under the superior
orders. The Supreme Court recognized and emphasized on the individual yet principled
sentencing of the death sentence, the court refused to create categories, instead provided
discretion to the judges to apply the principled reasoning of inflicting death sentence in each
individual case on the basis of aggravating and mitigating circumstances.
 15

In the dissenting opinion written by Justice P. N. Bhagawati in August 1982, two years after
the majority's decision, he held the death penalty to be unconstitutional. He opined that the
capital sentencing system, which required ‘special reasons’ without any guidance on its
meaning, essentially left decision-making to the subjective assessment of individual judges,
making it arbitrary.

Mithu v. State of Punjab, April 1983[edit]

In this case, the court discussed Section 303 of the IPC which provided for a mandatory
death sentence for offenders serving a life sentence. This section was based on the logic that
any criminal who has been convicted for life and still can kill someone is beyond reformation
and so, the only suitable punishment left would be death. It was discussed that the original
idea behind drafting of this section was to discourage assaults by life convicts on the prison
staff, but the language chosen by the legislature had widely exceeded its intention. It was
held that Section 303 violated right to equality and right to life and personal liberty as
conferred under Articles 14 and 21 of the Constitution.

Channulal Verma v. State of Chhattisgarh, November 2018

In Channulal, the Supreme Court, through Justice Kurian Joseph noted that the time was
appropriate to review the constitutionality of the death penalty and take into consideration
reformative aspects of punishment. While dissenting on the question of propriety of the death
penalty, the remaining two judges on the bench emphasized on the duty of courts to be
constitutionally correct, even if its views are counter-majoritarian. Public opinion is generally
formed by emotionally charged narratives which need not necessarily be legally correct,
properly informed. They may even be against the values of rule of law and constitutionalism
that courts are bound by. The court reiterated the view in Santosh Kumar Satishbhushan
Bariyar v. State of Maharashtra that in death penalty sentencing, public opinion is neither an
objective circumstance relating to crime nor to the criminal. The death sentence was
commuted to life imprisonment after taking into consideration the possibility of reform and
rehabilitation of the appellant that was evidenced by his good conduct in prison.

(b) Criteria for Rarest of Rare

 16

The principle as to what would constitute the “rarest of rare” has been laid down by the top
Court in the landmark judgment in Bachan Singh V State of Punjab (1980). Supreme Court
formulated certain broad illustrative guidelines and said it should be given only when the
option of awarding the sentence of life imprisonment is “unquestionably foreclosed”. It was
left completely upon the court’s discretion to reach this conclusion. However, the apex court
also laid down the principle of weighing, aggravating and mitigating circumstances. A
balance-sheet of aggravating and mitigating circumstances in a particular case has to be
drawn to ascertain whether justice will not be done if any punishment less than the death
sentence are awarded. Two prime questions, the top court held, may be asked and answered.
First, is there something uncommon about the crime which renders the sentence of
imprisonment for life inadequate and calls for a death sentence? Second, are there
circumstances of the crime such that there is no alternative but to impose the death sentence
even after according maximum weightage to the mitigating circumstances which speak in
favour of the offenders?20

(c) Mode of Execution: By hanging till death

Death sentence or death penalty is a punishment sanctioned by the state, where the person is
killed for committing the offence. The act of carrying out such a sentence is known as an
execution. While the mode of execution adopted differs from nation to nation, hanging is still
the most widely used method.

Hanging is execution by strangling or breaking the neck by a suspended noose. Capital

Punishment has been a form of punishment since time immemorial and hanging has been used
for this since the medieval times. Nevertheless, with the advancement of technology and
medicine, countries are moving towards other methods of execution such as lethal
injections, electrocution, lethal gas and firing squad.

In India, as per the current position of law, capital punishment is awarded only in the ‘Rarest of
the rare cases’ and the primary mode of execution as given under Section 354(5) of the Criminal
Code of Procedure, 1973 is ‘Hanging by neck till death’. This mode of execution is widely
debated and the Law Commission in its report in 2015 stated that the shift from hanging to more
advanced methods execution must be made in India.
20
Indian Express, New Delhi, dated 27.5.2015
 17

In the case of Deena v Union of India, September 1983 the constitutional validity of execution
by hanging was challenged on grounds that hanging as contemplated under Section 354(5)
Cr.P.C was barbarous and inhuman and thereby infringed on the right to life of the person. The
court discussed various historical influences as well as the reports of the law commission and
held that execution by hanging was a fair, just and reasonable procedure within the meaning of
Article 21 and hence is constitutional.

In the case of Rishi Malhotra v. Union of India, October 2017, hanging as a mode of execution
was challenged in a writ petition and it was argued that Section 354(5) CrPC was not only
barbaric, inhuman and cruel but also against the resolutions adopted by the United Nations
Economic & Social Council (ECOSOC). This case brought out the discussion around the shift
from hanging to other advanced methods of execution in various developed countries. It was also
discussed that as per international standard, execution should be as quick and as simple as
possible and should produce immediate unconsciousness passing quickly into death.21

(d) Sentencing procedure and framework: Landmark cases 22

In Bachan Singh v. State of Punjab, May 1980, a five-judge bench of the Supreme Court of India
while upholding the constitutionality of the death penalty in India, also laid down an elaborate
sentencing framework, requiring sentencing judges to impose the punishment only in the ‘rarest
of rare’ cases. The ‘rarest of rare’ doctrine developed in Bachan Singh requires judges to balance
aggravating and mitigating circumstances while determining whether a death sentence is the
appropriate punishment. Other landmark judgments which have elaborated on the ‘rarest of rare’
framework are as follows:

Machhi Singh v. State of Punjab, July 1983

The Supreme Court attempted to explore the doctrine of rarest of rare in the Machhi Singh v.
State of Punjab, July 1983, three years after the Bachan Singh v. State of Punjab, May 1980
judgment. The court reinstated and reemphasized the principles of sentencing policy propounded
in the Bachan Singh case. Also, the Court listed the two question that needs to be answered prior
to the imposition of death sentence on individual cases. Firstly, is the offence committed so
exceptional that there is no scope for awarding any other sentence? Secondly, even when
21
https://en.wikipedia.org/wiki/Capital_punishment_in_India#cite_note-80
22
https://en.wikipedia.org/wiki/Capital_punishment_in_India#cite_note-80
 18

weightage is accorded to the mitigating circumstances does the circumstances still warrants death
penalty? It was held that the judges must prepare a balance sheet of aggravating and mitigating
circumstance of the crime and criminal and analyze the factors prior to making up choice
between death sentence and life imprisonment. However, the Supreme Court held that the death
penalty may imposed on the ground where the collective conscience of the society is shocked
that expect the judicial authorities impose the death sentence. Thereafter, it listed five categories
of the cases, where the death sentence is appropriate.

(i) Manner in which the crime was committed: Murder committed in an extremely
brutal, grotesque, diabolical, revolting or drastic manner so as to arouse intense and
extreme indignation of the community;

(ii) Motive behind the criminal act: Murder committed for a motive which evinces total
depravity and meanness;

(iii) The Nature of the crime: Murder that arouse social wrath (like homicide of a person
belonging to SC/ST or a minority community, dowry-death etc.);

(iv) The degree of the crime: Multiple murders of a family or a large number of persons of
a particular caste, community, or locality; and

(v) The Status of the victim: Murder of an innocent child or a helpless woman or a person
rendered helpless by old age or infirmity; murder of a person by the murderer who is
in a position of domination or trust or murder of a public figure generally loved and
respected by the community for the services rendered by him and the murder is
committed for political or similar reasons other than personal reasons.

It focused more on the ‘crime factors’ or adopted ‘crime centric approach’ on the sentencing
policy of the death sentence. Furthermore, it moved towards the practice of balancing
aggravating and mitigating circumstances to impose death sentence, where Bachan Singh
judgment mandated that death sentence be imposed where life imprisonment is unquestionably
foreclosed. Thus, this precedent and subsequent line of cases had systematically permitted the
justification of death sentence on the manner, nature and gravity of the crime, without taking into
the account of circumstances of the criminal, in order to exercise judicial discretion on the death
sentence.
 19

Ravji v. State of Rajasthan, December 1995

The fundamental contribution of Bachan Singh was that the focus of sentencing policy in regards
to the death penalty shifted from crime to crime and criminal both. However, this judicial
contribution was drastically altered in the Ravji v. State of Rajasthan, December 1995. The two
bench of Supreme Court held that the nature and gravity of the crime, not the criminal should be
considered as an appropriate method, for opting between choice of life imprisonment and death
penalty. Subsequently, the precedent in Ravji was relied on as authoritative precedent. These
judgments confirmed the death sentence without considering any mitigating circumstances
related to the criminal. This position was directly contradictory to Constitutional bench judgment
of Bachan Singh v. State of Punjab, May 1980. Finally, the Ravji v. State of Rajasthan,
December 1995 decision delivered by the Supreme Court of India was rendered as per incuriam
by another bench of Supreme Court in Santhosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, May 2009.

Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra, May 2009[edit]

The Santhosh Kumar Satishbhushan Bariyar v. State of Maharashtra, May 2009 judgment holds
an important position in the attempt of Supreme Court to principally regulate the judicial
discretion and bring consistency in the sentencing discretion of the judiciary in regards to death
penalty. The Supreme Court in Bariyar held that the exclusive focus on  the crime provided in
the Ravji v. State of Rajasthan, December 1995 precedent is per incuriam, as it breaches the
principles revolving around doctrine of rarest of rare propounded in Bachan Singh v. State of
Punjab, May 1980. The Bariyar judgment again reemphasized that the aggravating and
mitigating circumstances related to the sentencing discretion must not only be limited to crime
alone, but both the factor crime and criminal should be taken into account. It has interpreted the
Bachan Singh dictum in a radical manner, specifically on the sentencing aspect of death penalty.
The Court expressed concern that there is lack of consistency and coherence in the aspect of
sentencing discretion in regards to death penalty. The first and foremost contribution of Bariyar
judgment is that it undoubtedly rejected the strict channeling of discretion or classification of
particular types of offences deserves death sentence. The Supreme Court emphasized that the
weight accorded to the aggravating and mitigating circumstances must be decided on the case to
case basis. Furthermore, it also deconstructed the notion of ‘shock to the collective conscience’
 20

as standard to impose the death sentences. The Court categorically stated the relevance and
desirability of ‘public opinion’, is no more important in the jurisprudence and adjudication of
death sentences. It also disregarded the social necessity as criteria for the infliction of death
sentence. The Court asserted that the judiciary is a counter-majoritarian institution and individual
rights should be given more importance.

Sangeet v. State of Haryana, November 2012

The Supreme Court in Sangeet v. State of Haryana, November 2012, seriously expressed
reservation regarding inconsistent and incoherent application of sentencing policy with respect to
analyzing the aggravating and mitigating circumstances. The court critiqued the process of
drawing a balance sheet of aggravating and mitigating circumstances and stated that they cannot
be compared with each other as each of the factors are two distinct and different constituents of
the incident. Moreover, the court itself admitted that the doctrine of rarest of rare is not followed
properly and departed from the ‘principled sentencing’ to a judge-centric sentencing policy of
the death sentence. Furthermore, the Supreme Court also critiqued the categorization of the
crime (manner of commission of murder, motive for commission of murder, antisocial or
socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder)
propounded in Machhi Singh v. State of Punjab, July 1983. The Court noted that Machi Singh
standardization of the crime considerably enlarged the scope of imposing death sentence, which
was severely restricted in Bachan Singh v. State of Punjab, May 1980 and also affirmed that the
standardization shall not be taken as absolute or inflexible rule in the sentencing policy of the
death sentence.

Shanker Kisanrao Khade v. State of Maharashtra, April 2013

The Supreme Court in Shanker Kisanrao Khade v. State of Maharashtra, April 2013,
acknowledged that the difficulty in the application of ‘rarest of rare’ since there is lack of
empirical data for making two fold comparison between murder (not attracting death penalty)
and murder (attracting penalty). The Court also envisaged a new triple test, while awarding the
death sentence and it required ‘crime test’. ‘criminal test’ and the ‘rarest of rare test’ and this test
was not equivalent to ‘balance test’. The Court stated that the death sentence can only be
inflicted, once they satisfy the ‘crime test 100%’, ‘criminal test 0%’ (there must no mitigating
circumstances favouring the accused) such as possibility of reform, young age of the accused,
 21

lack of intention to commit the crime, no antecedents of criminal record. Once the aggravating
circumstances are the fullest extent and no mitigating circumstances, the court needs to be
satisfied with the rarest of rare case. The rarest of rare must be depended on the ‘society centric’
instead of ‘judge centric’ as to whether society approve death sentence in the awarding of the
death penalty.

Rajendra Prahladrao Wasnik v. State of Maharashtra, December 2018

In this case, the accused was convicted of the rape and murder of a three-year-old girl. In review,
a three-judge bench commuted his sentence to life imprisonment. Invoking Bachan Singh, the
Court observed that it was required to consider the probability of reform and rehabilitation and
not its possibility or its impossibility… ‘it is the obligation on the prosecution to prove to the
court, through evidence, that the possibility is that the convict cannot be reformed or
rehabilitated’. The Court also held that mere pendency of one or more criminal cases against a
convict cannot be a factor for consideration while awarding sentence.

Manoharan v. State by Inspector of Police, August 2019

The Supreme Court, through the majority opinion of Justice Nariman, upheld the sentence of
death imposed upon the appellant. Justice Sanjeev Khanna dissented on the question of sentence
and chose the lesser sentence of life imprisonment without remission. In his dissenting opinion,
Justice Khanna noted that the Court in Machhi Singh v. State of Punjab, July 1983 required two
questions to be answered to determine if a case was rarest of rare. These were whether there was
something uncommon about the crime which rendered life imprisonment inadequate and whether
the circumstances of the crime were such that there was no alternative but to impose the death
sentence. Justice Khanna opined that the five categories indicated by the court in Machhi Singh
v. State of Punjab, July 1983 (manner of commission of murder, motive of the murder, anti-
social or abhorrent nature of the crime, magnitude of the crime and personality of the victim)
related to the first question. The second question also has to be answered which could be done by
reference to mitigating circumstances. He reiterated that the death sentence could be imposed
only when the sentence for life is unquestionably foreclosed. In the facts of the case, Justice
Khanna noted that the appellant had confessed to the crime before a magistrate without
compulsion and this, he stated, was the first step back into society and should be treated as a
 22

mitigating circumstance. He therefore opined that the appropriate punishment in this case would
be life imprisonment without remission.

9. EMERGENCE OF ALTERNATIVE PUNISHMENT TO CAPITAL

PUNISHMENT

In the last few years, Supreme Court has entrenched the punishment of “full life” or life

sentence of determinate number of years as a response to challenges presented in death cases.

The Supreme Court speaking through a three-judge bench decision in Swamy Shraddhanand

[2] case laid the foundation of this emerging penal option in following terms:

“The matter may be looked at from a slightly different angle. The issue of sentencing has

two aspects. A sentence may be excessive and unduly harsh or it may be highly

disproportionately inadequate. When an appellant comes to this Court carrying a death

sentence awarded by the trial court and confirmed by the High Court, this Court may

find, as in the present appeal, that the case just falls short of the rarest of the rare

category and may feel somewhat reluctant in endorsing the death sentence. But at the

same time, having regard to the nature of the crime, the Court may strongly feel that a

sentence of life imprisonment subject to remission normally works out to a term of 14

years would be grossly disproportionate and inadequate. What then should the Court do?

If the Court's option is limited only to two punishments, one a sentence of imprisonment,

for all intents and purposes, of not more than 14 years and the other death, the Court may

feel tempted and find itself nudged into endorsing the death penalty. Such a course would

indeed be disastrous. A far more just, reasonable and proper course would be to expand

the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e.

the vast hiatus between 14 years' imprisonment and death. It needs to be emphasized that
 23

the Court would take recourse to the expanded option primarily because in the facts of

the case, the sentence of 14 years' imprisonment would amount to no punishment at all.

Further, the formalization of a special category of sentence, though for an extremely few

number of cases, shall have the great advantage of having the death penalty on the statute

book but to actually use it as little as possible, really in the rarest of rare cases ......."

The observations in Swamy Shraddhanand [2] case have been followed by the Court in a

multitude of cases such as Haru Ghosh v. State of West Bengal, State of Uttar Pradesh v.

Sanjay Kumar, Sebastian v. State of Kerala, Gurvail Singh v. State of Punjab where full life

or sentence of determinate number of years has been awarded as opposed to death penalty.23

10. CLEMENCY POWERS

If the Supreme Court turns down the appeal against capital punishment, a condemned

prisoner can submit a mercy petition to the President of India and the Governor of the State.

Under Articles 72 and 161 of the Constitution, the President and Governors, respectively

have the power “to grant pardons, reprieves, respites or remissions of punishment or to

suspend, remit or commute the sentence of any person convicted of any offence”24

Neither of these powers are personal to the holders of the Office, but are to be exercised

(under Articles 74 and 163, respectively) on the aid and advice of the Council of Ministers.

Clemency powers, while exercisable for a wide range of considerations and on protean

occasions, also function as the final safeguard against possibility of judicial error or

miscarriage of justice. This casts a heavy responsibility on those wielding this power and

necessitates a full application of mind, scrutiny of judicial records, and wide ranging
23
India. Law Commission of India. Consultation Paper on Capital Punishment, May 2014, pp.26-27
24
Indian Express, New Delhi, dated 27.5.2015
 24

inquiries in adjudicating a clemency petition, especially one from a prisoner under a

judicially confirmed death sentence who is on the very verge of execution.

The Ministry of Home Affairs, Government of India, has drafted the “Procedure Regarding

Petitions for Mercy in Death Sentence Cases” to guide State Governments and the prison

authorities in dealing with mercy petitions submitted by death sentence prisoners.25

11. JUDICIAL REVIEW OF EXERCISE OF MERCY POWERS

The Supreme Court in Shatrughan Chauhan case has recorded that the Home Ministry

considers the following factors while deciding mercy petitions:

a) Personality of the accused (such as age, sex or mental deficiency) or circumstances of the

case (such as provocation or similar justification);

b) Cases in which the appellate Court expressed doubt as to the reliability of evidence but

has nevertheless decided on conviction;

c) Cases where it is alleged that fresh evidence is obtainable mainly with a view to see

whether fresh enquiry is justified;

d) Where the High Court on appeal reversed acquittal or on an appeal enhanced the sentence;

e) Is there any difference of opinion in the Bench of High Court Judges necessitating

reference to a larger Bench;

f) Consideration of evidence in fixation of responsibility in gang murder case;

g) Long delays in investigation and trial etc.

25
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.176, 179
 25

However, when the actual exercise of the Ministry of Home Affairs (on whose

recommendations mercy petitions are decided) is analyzed, it is seen that many times these

guidelines have not been adhered to. Writ Courts in numerous cases have examined the

manner in which the Executive has considered mercy petitions. In fact, the Supreme Court as

part of the batch matter Shatrughan Chauhan case heard 11 writ petitions challenging the

rejection of the mercy petition by the Executive.26

12. LAW COMMISSION OF INDIA's REPORT ON DEATH PENALTY

The Law Commission of India in its 262nd Report (August 2015) recommended that death

penalty be abolished for all crimes other than terrorism related offences and waging war.

Complete recommendations of the Report are as follows:

 The Commission recommended that measures suggested that police reforms, witness

protection scheme and victim compensation scheme should be taken up expeditiously by

the government.

 The march of our own jurisprudence -- from removing the requirement of giving special

reasons for imposing life imprisonment instead of death in 1955; to requiring special

reasons for imposing the death penalty in 1973; to 1980 when the death penalty was

restricted by the Supreme Court to the rarest of rare cases – shows the direction in which

we have to head. Informed also by the expanded and deepened contents and horizons of

the Right to life and strengthened due process requirements in the interactions between

the State and the individual, prevailing standards of constitutional morality and human

dignity, the Commission felt that time has come for India to move towards abolition of

the death penalty.

26
India. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.190-191
 26

 Although there is no valid penological justification for treating terrorism differently 

from other crimes, concern is often raised that abolition of death penalty for terrorism-

related offences and waging war, will affect national security. However, given the

concerns raised by the law makers, the Commission did not see any reason to wait any

longer to take the first step towards abolition of the death penalty for all offences other

than terrorism related offences.

 The Commission accordingly recommended that the death penalty be abolished for all

crimes other than terrorism related offences and waging war.

 Further, the Commission sincerely hopes that the movement towards absolute  abolition

will be swift and irreversible27

13. India’s History voting against moratorium and other international commitments

The abolition of the death penalty has been a debatable question all across and has been
called upon for discussion in various international forums.  According to the International
Covenant on Civil and Political Rights (ICCPR) capital punishment has been regulated as
one part of right to life in the international human rights treaty. The covenant does not
abolish death penalty but under Article 6 it states that death sentence may be imposed only
for most serious crimes in accordance with the law and other provisions in the covenant.
Further the convict sentenced with death shall have right to seek pardon or commutation of
sentence and death sentence cannot be imposed on a person below 18 years of age or
pregnant women. The Convention on the Rights of the Child (CRC) also lays down
provisions on similar lines stating that no child (person below eighteen years of age) can be
subjected to torture or other cruel treatment such as life imprisonment without possibility of
release. The Convention against Torture and Cruel, Inhuman or Degrading Treatment or
Punishment or the Torture Convention itself does not declare death penalty as torture or
cruel, inhuman or degrading treatment or punishment but addresses the methods of execution
and the process of death row. Among the above mentioned treaties and conventions India has

27
India. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.217-218
 27

ratified the ICCPR and CRC and is only a signatory of the Torture Convention. But
according to Article 18 of the Vienna Convention on the Laws of Treaties the state is bound
to refrain from acts which would defeat the purpose of a treaty. Under the domestic laws, The
Protection of Human Rights Act, 1994 in Section 2(1)(d) states that, “human rights” means
the rights relating to life, liberty, equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and enforceable by courts in India.
Additionally Section 2(1)(f) states that, “International Covenants” means the
ICCPR. Reading together Sections 2(1)(d) and 2(1)(f) it can be said the ICCPR has been
incorporated into the given statute protecting human rights.

UN General Assembly has called for a moratorium on the use death penalty through
several resolutions. In 2007, the General Assembly called for taking a progressive step by
restricting the use of the death penalty, minimizing the number of offences imposing death
penalty and imposing a moratorium on the executions to respect for the human dignity and
enhance the development of the human rights. These resolutions for moratorium were reaffirmed
by the general assembly again in the subsequent years of 2008, 2010, 2012, 2014. India has
voted against these resolutions stating that it shall go against the statutory law of the land which
states that death sentences can be imposed in rarest of the rare cases.

14. CONCLUSION

In the words of Mahatma Gandhi, “An eye for an eye will make the whole world blind”,
therefore death penalty is itself an offense against humanity. God has given us life and
no state has the right to take it. Thus the process of death sentence although not
explicitly declared unconstitutional has been retained in various legal provisions in India
only to be used sparingly and after proper application of judicial mind.

Capital imprisonment, in most cases is being replaced with life imprisonment as a

better alternative. It is also to be borne in mind that the last two decades has
witnessed death penalty only in the rarest of rare cases and only to punish the
perpetrators of crime which shall act as deterrent for others similarly placed. In India
we follow an adversarial system of law which enables everyone to take legal recourse
and only after exhausting all legal remedies available; is death penalty issued.
(Annexure – III, List of Offenders executed in the 21st century in India)
 28

However the process of death sentence is long and therefore the convicted prisoners
undergo both physical as well as mental torture. This causes them to literally beg for
death. Such a situation must not be faced by any human being, be it a convict or not.
Although actual executions of convicts punished with death penalty are decreasing in
number, yet a lot has to be done to fasten the procedure for those waiting on death
row and also comply with India’s international commitments.

*** *** ***

15. ANNEXURE – I

Capital punishment in the Indian Penal Code

Section under
IPC or other Nature of crime
law
 29

120B of IPC Being a party to a criminal conspiracy to commit a capital offence

121 of IPC Treason for waging war against Government of India

132 of IPC Abetment of Mutiny actually committed

Giving or fabricating false evidence with intent to procure a conviction of a

194 of IPC
capital offence

Threatening or inducing any person to false evidence resulting in the conviction

195A of IPC
and death of an innocent person

302 of IPC Murder

305 of IPC Abetting suicide by a minor, an insane or intoxicated person

307 (2) of IPC Attempted murder by a serving life convict

364A of IPC Kidnapping for Ransom

Rape and injury which causes death or leaves women in a persistent vegetative

376A of IPC
state[6]

376AB of IPC Rape of a child below 12 years[7]

376DB of IPC Gang rape of a child below 12 years of age.

376E of IPC Certain repeat offences in the context of rape[8]

396 of IPC Dacoity with murder – in cases where a group of five or more individuals
commit dacoity and one of them commits murder in the course of that crime,
 30

all members of the group are liable for the death penalty.

Capital punishment in non-IPC offences

Act Section Offence description

Andhra Pradesh Control of

3 (1) Organized crime resulting in death of person
Organized Crime Act, 2001[9]

Offences in relation to enemy and punishable with

Army Act, 1950 34
death[specify]

Army Act, 1950 37 Mutiny

Army Act, 1950 38 (1) Desertion

Offences in relation to enemy and punishable with

Assam Rifles Act, 2006[10] 21
death

Assam Rifles Act, 2006 24 Mutiny

25 (1)
Assam Rifles Act, 2006 Desertion
(a)

Assam Rifles Act, 2006 55 Civil offences

Bombay Prohibition (Gujarat

65A (2) Death caused by the consumption of Laththa
Amendment) Act, 2009

Border Security Force Act, Offences in relation to the enemy and punishable
14
1968 with death
 31

Border Security Force Act,

17 Mutiny
1968

Border Security Force Act, 18(1)

Desertion
1968 (a)

Border Security Force Act,

46 Civil offences
1968

Coast Guard Act, 1978 17 Mutiny

Coast Guard Act, 1978[13] 49 Civil offences

The Commission of Sati

41 Abetting sati
(Prevention) Act, 1987

Person contravening with intent to wage war or assist

The Defence of India, Act,
5 external aggression or any violation of provision
1971
made under S.3

The Geneva Convention Act

3 Grave breaches Of Geneva Conventions
1960]

Punishment for special category of offences relating

The Explosive Substances Act,
3 (b) to explosive substances, likely to danger life or cause
1908
serious harm

The Indo-Tibetan Border

16 Offences in relation to enemy or terrorist
Police Force, Act 1992

The Indo-Tibetan Border

19 Mutiny
Police Force, Act 1992
 32

The Indo-Tibetan Border 20 (1)

Desertion
Police Force, Act 1992 (a)

The Indo-Tibetan Border

49 Civil offences
Police Force, Act 1992

The Karnataka Control of

3 (1) (i) Organized Crime resulting in death of person
Organised Crime Act, 2000

The Maharashtra Control of

3 (1) (i) Organized crime resulting in death of person
Organised Crime Act, 1999

The Narcotics Drugs and Repeated commission of offences involving

Psychotropic Substances Act, 31A (1) commercial quantity of any narcotic drug or
1985 psychotropic substance

List of capital offences challenged in the court

Section and offence

Act Judicial challenges
description

Bachan Singh v. State of

Indian Penal Code 302 - Murder
Punjab (1980)

364 - Kidnapping for Vikram Singh & Anr v. Union

Indian Penal Code
ransom of India (2020)

376 E- Certain repeat

Vijay Jadhav v. State of
Indian Penal Code offender in the context of
Maharasthra (2019)
rape

The Narcotics Drugs and

Indian Harm Reduction v
Psychotropic Substances Act, 31A (1)
Union of India (2011)
1985
 33

State of Punjab v. Dalbir

Arms Act, 1959 27(3) (Repealed)
Singh (2012)

The categories of people exempted from capital punishment

Categories Law or case

Section 21, Juvenile Justice Act (No child in conflict with law
Juveniles
shall be sentenced to death)

People suffering mental illness

Shatrughan Chauhan v. Union of India (2014) (Para 79- 87)
or insanity

ANNEXURE – II28

ABOLITIONIST AND RETENTIONIST COUNTRIES AS OF 31 DECEMBER 2014

The following are lists of countries in the four categories: abolitionist for all crimes, abolitionist

for ordinary crimes only, abolitionist in practice and retentionist.

1. ABOLITIONIST FOR ALL CRIMES: Countries whose laws do not provide for the death

penalty for any crime: Albania, Andorra, Angola, Argentina, Armenia, Australia, Austria,

Azerbaijan, Belgium, Bhutan, Bolivia, Bosnia and Herzegovina, Bulgaria, Burundi, Cambodia,

Canada, Cabo Verde, Colombia, Cook Islands, Costa Rica, Côte d’Ivoire, Croatia, Cyprus,

Czech Republic, Denmark, Djibouti, Dominican Republic, Ecuador, Estonia, Finland, France,

Gabon, Georgia, Germany, Greece, Guinea-Bissau, Haiti, Holy See, Honduras, Hungary,

Iceland, Ireland, Italy, Kiribati, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg,

Macedonia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco,

28
Source: Amnesty International Report 'Death Sentences and Executions, 2014' pp.64-65
 34

Montenegro, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niue,

Norway, Palau, Panama, Paraguay, Philippines, Poland, Portugal, Romania, Rwanda, Samoa,

San Marino, Sao Tome and Principe, Senegal, Serbia (including Kosovo), Seychelles, Slovakia,

Slovenia, Solomon Islands, South Africa, Spain, Sweden, Switzerland, Timor-Leste, Togo,

Turkey, Turkmenistan, Tuvalu, Ukraine, UK, Uruguay, Uzbekistan, Vanuatu, Venezuela.

2. ABOLITIONIST FOR ORDINARY CRIMES ONLY: Countries whose laws provide for

the death penalty only for exceptional crimes such as crimes under military law or crimes

committed in exceptional circumstances: Brazil, Chile, El Salvador, Fiji, Israel, Kazakhstan,

Peru.

3. ABOLITIONIST IN PRACTICE: Countries which retain the death penalty for ordinary

crimes such as murder but can be considered abolitionist in practice in that they have not

executed anyone during the last 10 years and are believed to have a policy or established practice

of not carrying out executions: Algeria, Benin, Brunei Darussalam, Burkina Faso, Cameroon,

Central African Republic, Congo (Republic of), Eritrea, Ghana, Grenada, Kenya, Laos, Liberia,

Madagascar, Malawi, Maldives, Mali, Mauritania, Mongolia, Morocco, Myanmar, Nauru, Niger,

Papua New Guinea, Russian Federation, Sierra Leone, South Korea, Sri Lanka, Suriname,

Swaziland, Tajikistan, Tanzania, Tonga, Tunisia, Zambia.

4. RETENTIONIST: Countries that retain the death penalty for ordinary crimes: Afghanistan,

Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana,

Chad, China, Comoros, Democratic Republic of the Congo, Cuba, Dominica, Egypt, Equatorial

Guinea, Ethiopia, Gambia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica,

Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Nigeria, North Korea, Oman,
 35

Pakistan, Palestine (State of), Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the

Grenadines, Saudi Arabia, Singapore, Somalia, South Sudan, Sudan, Syria, Taiwan, Thailand,

Trinidad and Tobago, Uganda, United Arab Emirates, USA, Viet Nam, Yemen, Zimbabwe.

ANNEXURE – III

List of offenders executed in the 21st century

All 21st Century Executions in India have been carried out by hanging

5 executions (8 persons executed)

Executed Nationalit Ag Date of

Sex Place of execution Victim(s) President
person(s) y e execution

Dhananjoy 14 August Alipore Central A. P. J.

Indian 39 M Hetal Parekh
Chatterjee 2004 Jail, West Bengal Abdul Kalam

21
Yerawada Central
Ajmal Kasab Pakistani 25 M November 26/11 victims
Jail, Maharashtra
2012

9 February Tihar Central 2001 parliament Pranab

Afzal Guru Indian 43 M
2013 Jail, Delhi attack victims Mukherjee

1993 Bombay
Yakub Nagpur Central
Indian 53 M 30 July 2015 bombing
Memon Jail, Maharashtra
victims

Mukesh 20 March Tihar Central Jyoti Singh Ram Nath

Indian 32 M
Singh 2020 Jail, Delhi Kovind

Akshay Indian 31 M
 36

Thakur

Vinay
Indian 26 M
Sharma

Pawan Gupta Indian 25 M

16. Endnotes

References

1. Bachan Singh v. the State of Punjab ,AIR 1980 SC 898

2. Bharu Singh v. the State of Rajasthan, 1994 SCR(1)1994
3. Amruta v. State of Maharashtraare, AIR 1983 SC 629
4. Dhanajoy Chatterjee v. State of West Bengal, 1994 SCR(1) 37
5. Kumudi Lai v. State of Uttar Pradesh, 1999 4 SCC 108
 37

6. State of Maharashtra v. Suresh, 1999 SCR 215

7. Santosh Kumar Singh v Union Territory of Delhi, 2010 9 SCC 747
8. Om Prakash v State of Haryana,1970 3 SCC 107
9. Shiv Ram v State of Uttar Pradesh, 1975 AIR 175
10. Deenadayal v Union of India and ors,1983 AIR 1155
11. Furman v. Georgia,408 US 238 (1972)
12. Gregg v. Georgia, 428 US 153 (1976)
13. Makwanyane v Muhunu,1995 ZACC 3
14. Triveniben v. State of Gujarat,1989 AIR 1335
15. Jagmohan Singh v State of Uttar Pradesh, 1973 AIR 947
16. Rajendra Prasad v. State Of UP, 1979 AIR 916
17. Deena vs. Union of India, 1983 AIR 1155
18. Sher Singh vs. the State of Punjab, 1983 AIR 465
19. Machi Singh v. the State of Punjab, AIR 1983 SC 957