Constitutional Validity of Capital Punishment

Constitutional Validity of Capital Punishment

All punishment are based on the same proposition that is there must be a penalty for wrongdoing. Most systems of religion or ethics teach that bad action lead to bad consequence. There are two main reason for inflicting punishment on wrongdoers discourage others from doing wrong. The death penalty also rests on the same proposition as other punishment. Because of its drastic and irrevocable nature, It is even more open to debate over its fairness, appropriateness and effectiveness than other punishments. The proponents of death penalty believe that it is an effective way to stop crime. They focus on the death penalty as a deterrent or something that will stop or lesson crime. They believe that the death penalty brings the most justice to the victim of a heinous crime.

Death penalty has been a mode of punishment since time immemorial. The arguments for and against has not changed much over the years. Crimes are well as the mode of punishment correlate to the culture and form of civilization from which they emerge. At this point of time when the issue [whether capital punishment must be abolished or not ] is still raging, It will be appropriate to remind ourselves as to how the legislatures and apex court have dealt with this issue every time it has come up before them. Another issue is regarding the extent of judicial discretion.


According to oxford dictionary, Capital punishment is legally authorized killing of someone as punishment for a crime. (1) Capital punishment is the death sentence awarded for capital offences like crime involving planned murder, multiple murders, repeated crimes, rape and murder etc. where in the criminal provisions consider such persons as a gross danger to the existence of the society and provide that punishment. (2) capital punishment or the death penalty is a legal process by the state as a punishment for a crime.


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

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’.


The issue of death penalty has been debated, discussed, studied from a prolonged time but till now no conclusion can be drawn about the retention or abolishment of the provision. Death penalty has been a mode of punishment from time immemorial which is practiced for the elimination of criminals and is used as the punishment for the heinous crimes.

Various countries have different outlook towards crime in different ways. In Arab countries they choose the retributive punishment of “an eye for an eye” others have deterrent punishment. Of late there has been a shift towards restorative and reformist approaches to punishment, including in India.

India is one of the 78 retentionist countries which have retained death penalty on the ground that it will be awarded only in the “rarest in the rare cases” and so far “special reasons”. Though what constitutes a rarest of rare case or special reason has not been answered either by the legislature or by the Supreme Court.

The constitutional validity of death penalty was challenged from time to time in numerous cases starting from JAGMOHAN SINGH VS STATE OF U.P where the Supreme Court rejected the argument that the death penalty is the violation of the “right to life” which is guaranteed under article 19 of the Indian constitution. In another case Rajendra Prasad vs State of U.P.,Justice Krishna Iyer has empathetically stressed that death penalty is violative of articles 14, 19 and 21, But year a later in the landmark case of Bachan singh vs State of Punjab, by a majority of 4 to 1 (Bhagwati J. dissenting) the Supreme Court overruled its earlier decision in Rajendra Prasad. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence violative of articles 14,19, and 21, of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the “rarest of rare cases”. The Supreme Court in Machhi singh vs State of Punjab laid down the broad outlines of the circumstances when death sentence should be imposed.

Similarly in various other cases Supreme Court has given its views on death penalty and on its constitutional validity. But the punishment of death penalty is used in India, some time back the death penalty was given to Mohammed Ajmal Kasab. The Pakistani gunman convicted in 2008 Mumbai attacks was sentenced to death by hanging and after a long discussion, politics and debate was finally hanged on 21 November 2012. Next in the row is Afzal Guru, convicted in 2001 Parliamentary attacks was also hanged after a huge political discussion on 9 February 2013. The next convict in the death rows is Devendra Pal singh Bhullar, convict of 1993 car bombing will be hanged in the coming days as his mercy petition was rejected by the Supreme Court by holding that in some terror crime cases pleas of delay in execution of death sentence cannot be a mitigating factor.

There has been a diverse opinion regarding the death penalty in India as some are in the favor of the retention of the punishment while others are in the favor of its abolishment. Those who are in the favor of death penalty argue that it should be given in the most heinous and rarest of the rare crimes as for example Delhi gang rape case the demand for death penalty for the accused was raised. But the people who are against the capital punishment argue on the religious, moral and ethical grounds and declare it in human and callous investment by unsure and unkempt society. It is also suggested that it should be replaced with life imprisonment or any substitute must be brought out

Jagmohan singh vs State of U.P (1973) 1 SCC 20
Rajendra Prasad vs State of U.P, AIR 1979 SC 917.
Bachhan singh vs State of Punjab, (1979) 3 SCC 727.
Machhi singh vs State of Punjab, AIR 1983 SC 957.


Death penalty has already been abolished 139 countries and India also should join the majority of nations that have abolished the death penalty. Death penalty is against the Human rights and it violets the article 21 of constitution of India. There can be various alternative methods for punishing the convict such as rigorous life imprisonment without any possibility of parole and no protection of good behavior relief which is provided for in the prison manual.


  • Indian Penal Code, 1860.
  • The Constitution of India.
  • Indian Penal Code, Ratan Lal and Dhiraj Lal.
  • The Times of India.
  • Hindustan Times.

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