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Constitutionality of Death Penalty

Posted by : Indian National Bar Association on | Jul 01,2015


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. Indian Criminal jurisprudence is based on a combination of deterrent and reformative theories of punishment. While the punishments are to be imposed to create deter amongst the offenders, the offenders are also to be given opportunity for reformation.
There has been a diverse opinion regarding the death penalty in India as some are in the favour of the retention of the punishment while others are in the favour of its abolishment.
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 of rare cases’ and for ‘special reasons’. Though what constitutes a ‘rarest of rare case’ or ‘special reasons’ has not been answered either by the legislature or by the Supreme Court. 
The constitution of India guarantees to every person a fundamental right to life subject to its deprivation by the procedure established by law , it has been argued  by abolitionists that sentence of death in the present form violates the citizen’s right to life. There are numerous legal luminaries who argue that the very fact that the death penalty is retained in Indian criminal statutes runs counter to one's right to life. It is submitted that these learned jurists probably overlook the fact that even right to life is not an absolute right.
Further Art. 14 of Constitution declares “equality before law and equal protection of the laws”, which means that no person shall be discriminated against unless the discrimination is required to achieve equality. 
The concept of equality incorporated in Art. 14 finds echo in the preamble to the constitution. Capital sentence, it seems, is therefore, an anti-thesis of one’s right to life. However, it is an indisputable fact that there is nothing in the Constitution of India which expressly holds capital punishment as unconstitutional.
The constitutional validity of the death penalty was challenged from time to time in numerous cases.
In Jagmohan Singh v. State of Uttar Pradesh  , the five judge bench of the Supreme Court, by a unanimous verdict, upheld the constitutional validity of death penalty held that capital punishment was not violative of Articles 14, 19 and 21 and .  In this case the validity of death sentence was challenged on the ground that it was violative of Articles 19 and 21 because it did not provide any procedure. It was contended that the procedure prescribed under Cr. P.C. was confined only to findings of guilt and not awarding death sentence. The Supreme Court held that the choice of death sentence is done in accordance with the procedure established by law. It was observed that the judge makes the choice between capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during trial. 
In another case Rajendra Prasad v. State of UP , Justice Krishna Iyer empathetically stressed that death penalty is violative of articles 14, 19 and 21. He further said that to impose death penalty the two things must be required:
The special reason should be recorded for imposing death penalty in a case.
The death penalty must be imposed only in extraordinary circumstances.
The question was again considered in Bachan Singh v. State of Punjab  in which by  a  majority  of  4  to 1  (Bhagwati J.dissenting) the  five judge bench of 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 not 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’. Bhagwati J. in his dissenting judgement observed that “ death penalty is not only unconstitutional being violative of Articles 14 and 21 but also undesirable from several points of view.”
Further, The Supreme Court in Machhi Singh v State of Punjab  laid down the broad outlines of the circumstances when death sentence should be imposed. Justice Thakkar speaking for the Court held that five categories of cases may be regarded as rarest of rare cases deserving extreme penalty. They are: 
Firstly: Manner of Commission of murder - When the murder is committed in an extremely brutal manner so as to arouse intense and extreme indignation in the community, for instance, when the house of the victim is set a flame to roast him alive, when the body is cut to pieces or the victim is subjected to inhuman torture. 
Secondly: Motive - When the murder is committed for a motive which evinces depravity and meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over property of a ward, or a murder committed for betrayal of the motherland. 
Thirdly: Anti-social or socially abhorrent nature of the crime - where a scheduled caste or minority community person is murdered in circumstances which arouse: social wrath; or bride burning for dowry, or for remarriage. 
Fourthly: Magnitude of the Crime - Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community or locality. 
Fifthly: Personality of victim of murder 
In Deena V. Union of India  the constitutional validity of section354(5) I.P.C. 1973 was challenged on the ground that by rope as prescribed by this section was barbarous, inhuman and degrading  and therefore violative of Art. 21. The court held that section 354(5) of the I.P.C., which prescribed hanging as mode of execution as fair, just and reasonable procedure within the meaning of Art- 21 and hence is constitutional.
In Sher Singh v. State of Punjab  Chandrachud C.J. expressing the view of the three judges of The SC held that death sentence is constitutionally valid and permissible within the constraints of the rule in Bachan Singh. This has to be accepted as the law of the land.
Similarly, In Triveniben v. State of Gujarat , the Supreme Court asserted affirmatively that the constitution does not prohibit death penalty.
In Mithu v. State of Punjab  S.303 of the IPC was struck down as violative of Article 21 and 14 of the Constitution of India, as the offence under the section was punishable only with capital punishment and did not give the judiciary the power to exercise its discretion and thus result in an unfair, unjust and unreasonable procedure depriving a person of his life.
Thus, to sum up, it is clearly evident from a study of the above cited case laws that death penalty is regarded as constitutional in India, despite several legislative attempts to abolish the death penalty in India have failed, and it is to this day prevalent in India as is evident from the recent case of Ajmal Amir Kasab, who was executed in 2012.