Capital Punishment
Why in news?
Muzaffarnagar Additional District and Sessions Judge Ravi Kumar Diwakar has said that he would rather “die than be called a coward” while awarding capital punishment in a dowry death case, the 23rd death sentence handed down by him in the last five months.
UPSC Relevance
Prelims
Mains, GS2
Capital Punishment in India
Capital punishment (the death penalty) is the highest legal penalty awarded by the state for heinous offences. In India, it operates under the principle of procedural fairness under Article 21 of the Constitution, balancing state severity against individual rights.
Statutory & Legal Status in India
- Constitutional Validity: The death penalty is constitutionally valid under Article 21 (“no person shall be deprived of their life or personal liberty except according to a procedure established by law“).
- Substantive Framework (BNSS & BNS):
- Under the Bharatiya Nyaya Sanhita (BNS), 2023 (which replaced the IPC), capital punishment is retained for severe crimes, including aggravated murder, acts of terrorism, gang rape of a minor, and mob lynching resulting in death.
- Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 governs the execution process (hanging by the neck until dead).
- Procedural Safeguards:
- Confirmation by High Court: A death sentence awarded by a Sessions Court must be mandatorily confirmed by the High Court.
- Special Reasons: The trial court must explicitly provide “special reasons” in writing for awarding the death penalty instead of life imprisonment.
- Exemptions: Juveniles, pregnant women, and individuals suffering from severe mental illness are legally exempt from execution.
- Pardoning power
- President’s Power (Article 72): The President can grant a full pardon, reprieve, or commute any death sentence.
- The President acts on the advice of the Union Council of Ministers.
- Governor’s Power (Article 161): The Governor cannot grant a complete pardon for a death sentence. However, a Governor can commute or remit a death sentence.
- President’s Power (Article 72): The President can grant a full pardon, reprieve, or commute any death sentence.
Case Laws & Judicial Evolution
| Case Law | Legal Doctrine Established |
| Jagmohan Singh v. State of UP (1973) | Upheld the constitutionality of the death penalty, ruling it does not violate Article 19 or Article 21. |
| Bachan Singh v. State of Punjab (1980) | Formulated the “Rarest of Rare Cases” doctrine. Stated that life imprisonment is the rule, and the death penalty is an exception. Courts must weigh Aggravating vs. Mitigating circumstances before deciding. |
| Machhi Singh v. State of Punjab (1983) | Broadened the “Rarest of Rare” framework by outlining 5 categories (manner of crime, motive, anti-social nature, magnitude, and personality of victim). |
| Kehar Singh v. Union of India (1989) | Affirmed that the President’s exercise of pardoning power under Article 72 is subject to judicial review against arbitrary decisions. |
| Swami Shraddhananda v. State of Karnataka (2008) | Created an intermediate sentencing option: “Special Category Life Imprisonment” without remission for 20–30 years (or life) as an alternative to execution. |
| Shatrughan Chauhan v. Union of India (2014) | Ruled that inordinate and unexplained delay in deciding mercy petitions is a valid ground for commuting a death sentence to life imprisonment due to psychological torture (“Death Row Phenomenon“). |
| Manoj v. State of MP (2022) | Mandated that trial courts must systematically collect psychological, socio-economic, and behavioural reports of the convict before considering the death penalty. |
Arguments In Favour (Pro-Retention)
- Retributive Justice: Satisfies societal outrage and provides moral closure to victims’ families for atrocious crimes (“lex talionis” or eye for an eye).
- Deterrence Theory: The severity of the penalty serves as a powerful deterrent against severe national threats and brutal violent crimes.
- National Security & Public Safety: Essential for combating state-sponsored terrorism, high treason, and organised violence that undermines sovereignty.
- Proportionality of Punishment: Preserves the faith of society in the criminal justice system by matching the gravity of the punishment to the brutality of the offence.
Arguments Against (Pro-Abolition)
- Irreversibility & Judicial Error: Fallibility in the judicial system poses the risk of executing innocent individuals, which cannot be undone.
- Lack of Empirical Evidence: Global studies and reports (such as the Justice Verma Committee, 2013) show no direct correlation between the death penalty and lower crime rates.
- Socio-Economic Bias: Death row statistics show that marginalised, illiterate, and poor defendants often lack access to top legal representation, bearing a disproportionate impact.
- Focus on Reformative Justice: Focuses purely on retribution rather than rehabilitation, violating human dignity.
- Judicial Vagueness: “Rarest of rare” remains subjectively applied across different benches, leading to inconsistency.
Global precedents on capital punishment
- UN Treaties: The ICCPR (Article 6) restricts executions to only “most serious crimes,” while the CRC (Article 37a) strictly prohibits the death penalty for juveniles.
- Abolitionist Protocols: The Second Optional Protocol to the ICCPR and Protocol 13 to the European Convention on Human Rights (ECHR) aim for total abolition.
- Global Trend: Over 70% of nations have legally or practically abolished capital punishment, supported by recurring UN General Assembly resolutions calling for a universal moratorium.
Law Commission Recommendations
- 35th Report (1967): Recommended retaining the death penalty, citing the need to maintain law and order.
- 262nd Report (2015): Recommended abolishing the death penalty for all crimes except terrorism-related offences and waging war against the state. It highlighted that the death penalty serves no penological purpose beyond retribution.
Way Forward
- Strict Adherence to Mitigation: Trial courts must strictly follow the Manoj (2022) guidelines by requesting psychological evaluations before passing sentences.
- Expanding Intermediate Options: Courts should rely more on “special category life imprisonment” (Shraddhananda case) without remission to avoid executing convicts while ensuring safety.
- Systemic Criminal Reforms for real deterrence: Focus on police investigation quality, forensic capabilities, and victim support mechanisms rather than relying on capital punishment as a silver bullet.
Practice MCQ
Q. With reference to the statutory and procedural framework governing capital punishment in India, consider the following statements:
- Under the Bharatiya Nagarik Suraksha Sanhita (BNSS), a criminal court is required to record “special reasons” in writing when awarding the death penalty instead of life imprisonment.
- The legal framework provides a statutory exemption barring the execution of death sentences on pregnant women and juveniles.
- The President’s power to grant pardon to a death sentence under Article 72 is entirely beyond the purview of judicial review.
Which of the statements given above is/are correct?
(a) 1 and 2 only
(b) 2 only
(c) 1 and 3 only
(d) 1, 2, and 3
Correct Option: (a) 1 and 2 only
Practice Question
What is the constitutional position on Capital punishment in India? How does the Rarest of Rare doctrine limit judicial discretion in death sentences? Analyse with recent judicial guidelines. (10 marks)