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India has a sizable population, and there are a significant amount of offenses perpetrated every day. Depending on the offense, different convicts receive different punishments. The punishment is more severe the more serious the crime is. The execution of a person who has been granted a death sentence after being found guilty of a crime by a court of law is known as capital punishment, sometimes known as the death penalty. It is a sanctioned procedure that is only used for serious crimes. The Latin word ‘capitalise’ which means ‘regarding the head’ is from where the term capital punishment originates. A death sentence is a judicial resolution to put someone to death; an execution is the actual killing of the person. The retributive and Deterrent theory of punishment is the foundation of the death penalty notion. Eye for an eye is justice, posits the retributive view of retribution. It is the most severe punishment that can be imposed on a criminal and is legal in India, but it can only be administered for the most serious offenses. Its constitutionality has been contested before the Supreme Court multiple times.  


The first law commission was appointed in India during British rule in 1834 under the provisions of the Charter of 1833. The aforementioned commission was headed by Thomas Babington Macaulay. They prepared the draft of the Indian Penal Code which was ultimately passed in 1860 and thus became the Indian penal Code 1860. Under the IPC, capital punishment can be awarded for a variety of crimes including murder, abetting the suicide of a minor, rape of a child below 12 years, etc. All the crimes for which this punishment can be granted are mentioned in 14 sections under the IPC. A few people expressed their opposition to the death penalty during the constituent assembly discussions after India gained its independence. However, no such provision was added to the Indian Constitution

In the next two decades, many bills (both public and private bills) were introduced in the Lok Sabha and Rajya Sabha, to remove the provision of capital punishment. In three decades, that is, from 1950-1980 around three thousand to four thousand executions took place. This illustrates how this clause has been abused and the importance of carefully considering this matter.


From time to time the constitutionality of capital punishment is challenged before the Supreme Court and High Courts for being violative of various articles of the constitution.

In the aforementioned case, the appellant, Jagmohan was awarded capital punishment by the trial court, for the murder of the respondent. Both the respondent and appellants were minors at the time of the commission of the crime. The appellant challenged before the court, the constitutionality of Capital Punishment. It was said to be in contravention of Articles 14, 19, and 21 of the constitution. The court upheld the validity of capital punishment. No one may be deprived of their life without following legal processes, according to Article 21. Thus, the court stated that if done in line with legal processes, life-taking is authorized. The five-judge bench also said that the facts and situations of each case are different, and thus require different interpretations. So, there is no reason for challenging capital punishment to be violative of Article 14.

Death Penalty was again challenged to be in violation of the rights guaranteed by the constitution. Herein, the appellant was accused of the murder of two people in a family feud. The court gave the judgment that the death sentence should be limited to ‘white-collar crimes’. It was stated that the death penalty is granted when it is necessary for the security of society and crime is risky to society. Otherwise, the death penalty will not be justified. According to Justice V Krishnaiyer and other judges, “three types of crimes should get the death penalty which is white-collar crimes, against social order or for eliminating dangerous killers who possess harm to society.”  

In the above-mentioned case, there were two major issues presented before the court which were, whether capital punishment granted under section 302 of the IPC is unconstitutional and if the circumstances of the case recognized by the trial court fall under “special reasons”. This landmark judgment of the Supreme Court gave the ‘rarest of rare doctrine’. The Supreme Court aimed at limiting the applicability of the death penalty to prevent misuse by the trial courts. It also stated that the trial court should not only look at the gravity of the offense but also the ‘reformability’ of the criminal. The Court has focused on the ‘person-centric’ approach because the Indian criminological approach believes in the reformative theory of punishment.

In this case, a family dispute in Punjab resulted in seventeen killings and a few injuries within two days in five nearby villages. If the facts of the case would fall under the “rarest of rare doctrine” established in Bachan Singh v. State of Punjab that was the question asked before the court. In this case, Justice Thakkar outlined five requirements that, if fulfilled, would justify the death penalty. These include the magnitude of the crime, the anti-social nature of the crime, the personality of the victim of murder, the motive, and the manner of commission of the crime. According to the judgment, the lack of alternative penalties can support the death penalty.

The two-judge bench of the Supreme Court in the aforementioned case stated that the nature and gravity of the crime should be the determining factor for choosing between the death penalty and life imprisonment. The nature of the criminal should not be considered for choosing the punishment. This was completely opposite to what was laid down in Bachan Singh v. State of Punjab according to which the ‘reformability’ of the criminal should be considered and thus ignoring the ‘person-centric’ approach that was established.

The Supreme Court was challenged to determine the mitigating circumstances and to establish a convict-centric approach so that the use of the death penalty becomes more uncommon, equitable, and morally sound. The Court noted that developing a fair and prudent sentencing policy would benefit greatly from an individualized approach that looks at the social, economic, emotional, and genetic components that made up the criminal rather than the offense. The Court declared that a ‘one size fits all’ approach while considering mitigating circumstances during sentence should stop.


Capital Punishment, though aimed at deterring future crimes, may be misused by the trial courts. It is also unconsidered inhuman by many countries in the world. A resolution was also introduced in the UN to abolish the death penalty. India is one among the 55 countries where capital punishment is still legal. As of 2022, of all crimes, seven have done it for common crimes (while keeping it in place for exceptional cases such as war crimes), and 24 have abolitionist policies in place. A properly defined framework for awarding capital punishment is the need of the hour by revisiting the provision of capital punishment in India. The granting of capital punishment mainly depends upon the opinion of the judge, thus there is a chance of misuse of the provision. It also affects the poor because the majority of death penalties are awarded to people who are uneducated and illiterate. The Supreme Court has come a long way in limiting the misuse of the provision, from around four thousand executions from 1950-1980 to only eight executions from 2004 till the present. But there is still a place for improvement. In the recent case of Irfan v. State of Madhya Pradesh, the Supreme Court has declared that it will prepare a detailed framework for granting this punishment.

Author(s) Name: Lavanya Chetwani (National Law University Odisha)