RESEARCH PAPER ON

‘Constitutionality of capital punishment and the current

Trend in the Judicial attitude about capital punishment’

BY-

Divyatva .A. Umare

LLM I SEM

GROUP G ( CRIMINAL LAW)

UNDER THE GUIDANCE OF

Dr. Mrs. H.V. Menon

Professor and Head

‘Department of Law'

DR.AMBEDKAR COLLEGE OF LAW,

DEEKSHABHOOMI,

NAGPUR

2022-2023
 Acknowledgement

It is my duty to extend my sincere thanks to Dr. Mrs. H.V. Menon, Head of the Department,
Department of Law, Dr. Ambedkar College , Deekshabhoomi, Nagpur who was kind enough to
guide me through her suggestions for this Research paper. I am really thankful to her for spending
her valuable time in making us understand the process of writing a good Research paper and for
reading the drafts and suggesting improvements in them.

I also extend my sincere thanks to Shazia Bari ma’am for her help and guidance while writing
this Research paper.

I also express my sincere gratitude to all other Faculty members and the Staff members of the
Department for helping me in this endeavor in one way or the other.

Divyatva .A. Umare

LLM 1st SEM

(GROUP-G)
 INDEX

1. INRODUCTION………………………………………………………..1

2. HISTORICAL BACKGROUND……………………………………….2

3. POSITION OF INDIA ABOUT CAPITAL PUNISHMENT…….…….3

4. METHOD OF CAPITAL PUNISHMENT……………………..……….4

5. THE 'RAREST OF THE RARE' DOCTRINE…………………….……6

6. CURRENT TREND ABOUT CAPITAL PUNSIHMENT………….….7

7. CONCLUSION…………………………………………………….……8

8. BIBILOGROPHY……………………………………………….………8
‘Capital punishment’, also known as the ‘death penalty’ is the harshest or most severe
punishment of the present time. The crime rates in the world we live in today are constantly
increasing. The number of murders, abductions, rapes, terrorist attacks, and child abuse
cases has increased. According to the World Population Review of 2022, the overall crime
rate in India is 44.43. In such a situation, the legislation and penalties to deter and prevent
crime must be put into effect immediately. Punishment, which is one of the main pillars of
contemporary civilisation, is the use of coercion to uphold the law of the land. The state
must punish offenders in order to maintain law and order in society. There was no specific
law or order that governed these crimes in the past, and the severity of the punishment was
entirely up to the king of the state. Over time modern theories of punishment emerged, and
the state was given voluntary control over our rights and the power to maintain law and
order. The punishments range from fines and imprisonment to death and life imprisonment.

India is one of the 78 retentionist countries which have retained the death penalty on the
ground that it will be awarded only in the rarest of real cases and for "special reasons".
Though what constitutes a"rarest of rare cases" or "special reasons( for death sentence) has
not to reply either by the legislature or by the supreme court. Death Penalty is a very serious
topic as it means taking away the life of a person which is a very sensitive issue. This is the
reason why questions are raised against countries like China, India, USA, Arab countries
for awarding Death Penalty. Among these countries China alone carries out maximum
number of executions with over 60% in number. Whereas in India Capital Punishment is
given in rarest of rare cases. The punishment of death is extreme and severe; therefore it
should only be used as a last resort.o

Definition:
Capital Punishment can be defined as the lawful execution of an offender who was
sentenced to death after conviction by a Criminal Court. The lawful execution here indicates
adherence to the due process of law which specifies that capital punishment is different from
extrajudicial executions which are carried out without due process of law.

Meaning:
According to oxford university, Capital punishment is legally authorized killing of someone
as punishment for a crime.

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1) Capital punishment is a death sentence award for capital offences like crime
involving planned murder etc. where in the criminal provision consider such persons
as a gross danger to the existence of the society and provide the punishment.
2) Capital punishment or the death penalty is a legal process by the state as a
punishment for a crime.

The expression Capital Pinishment stands for most extreme type of punishment. It is the
punishment which is to be granted for the most gregious,and terrible violations against
human kind. While the definition and degree of such wrong doings from nation to nation,
state to state, age to age, the ramification of capital punishment has dependably been the
death sentence. By regular utilization in jurisprudence, criminoly and penology, capital
sentence implies a sentence of death .

HISTORICAL BACKGROUND

Capital punishment is an ancient sanction. Since the enactment of the Indian penal code,
in 1860 death penalty was a part of the code. It has survived since its inception, but with
some more subtle changes that needed to be done due to the change of time and this was
the way forward. When the code was implemented the death penalty was mandatory
under section 303. But section 303 gave the death penalty only to those who, despite
having been previously convicted of life imprisonment, had committed the offence of
murder. There was no classification of murders as such but the only difference between
sections 302 and 303 was that the mandatory death penalty would only be given to
offenders who have committed the offence of murder who were convicted and serving
life sentences. And the constitutional validity of the death penalty was challenged from
time to time in numerous cases. or by the supreme court.

Research Methodology:
Doctrine methodology is adopted for this project research. It involves the use of
secondary data which is collected from various articles, websites, books etc. Doctrinal
research asks what is law on a particular issue. It is concerned with analysis of the
doctrine and how it has been applied and developed. This type of research is known as
pure theoretical research. It consists of, either simple research directed at finding a
particular statement of law or more complex and in-depth analysis of legal reasoning.

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CONSTITION OF CAPITAL PUNISHMENT IN INDIA:

1) 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 the offences under the Indian Penal Code.
However, the motion was negatived after the then Home Minister replied to the
motion.
2) 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
3) India retained several laws put in place by the British colonial government, which
included the Code of Criminal Procedure, 1898 and the Indian Penal Code, 1860.
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
Crpc1898 required courts to record reasons where the court decided not to impose a
sentence of death
4) 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.
5) This is stated by the Indian judiciary, attaching importance to Indian constitution,
where Article 21 of the Indian constitution reads "protection of life and personal
liberty. This article says "No one may be deprived of his life or personal liberty,
except in accordance with the procedure established by law according to this article
right to life is promised to every citizen of India. In India, IPC prescribes the death
penalty Punishments for various crimes such as criminal conspiracy, murder, war
against the government Promote insargency, murder and Anti- terrorism. The Indian
constitution provides provision for mercy of Capital Punishment by the President.
Whenever the death penalty or the question of the death penalty arises, this article

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 plays a role in encraging judicial staff to re-analyze cases and make them think
before the death penalty or death sentence.

POSITION OF INDIA ABOUT CAPITAL PUNISHMENT

India opposed a UN resolution callng for a moratorium on the death penalty because it goes
against the Indian statutory legislaion as well as against each country’s sovereign right to
establish its own legal system.

In India, it is awarded for the most serious of crimes. It is awarded for heinousness
and grievous crimes. Article 21 say that no person shall be deprived of right to life’ which
is promised to every citizen in India. In India, various offences such as criminal conspiracy,
murder, war against the governmnt, abetment of mutiny, dacoity with murder, and anti-
terrorism are punishable with deth sentences under Indian Penal Code (IPC). The president
has the power to grant mercy in a case of death penalty. Bachan Singh vs State of Punjab the
Court held that capital punishment will only be given in rarest of rare cases.
Only the president has the power to confer mercy in cases related to death
sentences. Once a convict has been sentenced to death in a case by the Sessions Court, it
must be confirmed by the High Court. If the appeal to the Supreme Court made by the
convict fails then he may submit amercy petition to the President of India. Detailed
instructions on the procedure are to be followed by States to deal with petitions for mercy
from or on behalf of death-sentnced convicts. Appeals to the Supreme Court and requests
for special leave to appeal to that court by such convicts shall be set out by the Ministry of
Home Affairs. Under Article 72 of the Constitution of India, the President has the power to
grant pardon, reprieves, respites r remissions of punishment or to suspend, remit or reduce
the sentence of any person who has been convicted of an offence.

METHOD OF CAPITAL PUNISHMENT(DEATH PENALTY):

India has a large number of crimes and criminals. The punishments are given to the
wrongdoer on the basics of their motive to do that offence. There are two main reason behind
mposing those punishments, one is the wrongdoer must suffer for his mistake and the second

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one is that he must not repeat that mistake again in his lifetime. To punish the wrongdoer
the legslature has imposed may rules and various kinds of punishments.

Hanging:
All death penalty in India is actualized by hanging. After Independence, in Mahatma
Gandhi’s case Godse was the primary individual to be executed by the death penalty in
India. The Apex Court of India proposed that the death penalty must be awarded uniquely
to the rarst of rare cases in India.

Shooting:
In India, the Army Act and Air Force Act likewise give usage of the death penalty. In the
Air Force Act, 1950, Section 34 permits the Court military to push capital punishment for
the unlaful demonstration referenced in Section 34(a) to (o) of The Air Force Act, 1950. In
India the legislature generally utilizes the hanging technique to execute the death penalty.

Different Types Of Death Penalty Crimes

The wrongdoings and offences which are punishable with the punishment of death are:

i) Aggravated:
Murder is deserving of the death penalty as per Section 302 of the Indian
Penal Code, 1860. In Bachan Singh v. State of Punjab, the Supreme Court of
India held that capital punishment is sacred just when applied as a remarkable
punishment in the rarest of rare cases. In the Indian Penal Cod capital
punishment is given to an individual who murders during an armed robbery.
The abduction of the victim for the cash is punishable with capital
punishment if the victim is murdered. Organized wrongdoing inclusion, on
the off chance that it prompts death is deserving of death. Committing or
assisting with committing Sati to someone else is likewise deserving of
capital punishment. Terrorism related offences not bringing about death.

ii) Assault or Rape not bringing about death:

An individual who incurs injury in a rape that brings about death or is left in
a persevering vegetative state might be rebuffed with death under the

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 Criminal Law Act, 2013. Assaults are punishable with capital punishments.
These progressions were forced after the case of clinical understudy Jyoti
Singh Pandey’s assault and death in New Delhi in 2012

iii) Kidnapping not bringing about death:

According to Section 364A of the Indian Penal Code, 1860, kidnapping not
bringing about death is an offence deserving of death. In case any individual
confines anyone and takes steps to execute him or damage him during which
the criminal’s demonstration brought about the demise of the person in
question, he/she will be at risk under this Section.

iv) Drug Trafficking not bringing about death:

If an individual is convicted for a commission or attempt to commit, abet, or
financing conspiracy to carry out any of the scopes of dealing offences, or
financing of particular kinds and measures of narcotic and psychotropic
substances, the person can be condemned to death.

v) Treason:
Capital punishment is given to any individual who is pusuing or attempting
to wage war against the legislature and elping Navy, Army, or Air Force
officials, fighters, or individuals to commit a mutiny.

vi) Military Offence not bringing about death:

Abetment of attack, insurrection, or endeavouring to tempt an army, navy or
air force officer from his obligation, and different offences are deserving of
death whenever committed by an individual from the Army or Navy or Air
Force.

Category of offenders from capital punishment

i) Minor:
As per Indian law An individual who is younger than eighteen years at the time
of commitment to the crime cant be given capital punishment.

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 ii) Pregnant woman:
As per the alteration made in the year 2009, Clemency must be conceded to a
pregnant lady who is condemned to the death penalty.

iii) Intellectually disabled:

As indicated by the Indian penal code, an individual whereas committing out
griveius wrong doing was rationally sick cant comprehend that the nature of the
demonstration performed by him is risky cant be rebuffed by the capital
punishment.

THE ‘RAREST OF THE RARE’ DOCTRINE

The phrase "rarest of rare" does not have a fixed or exhausting statutory definition. The
manner, motive ad seriousness of the crime must be take into account through the criminal
trial in order to determine a suitable punishment. For the invocation of death penalty, it is
mandatory fie such extraordinary ground to exists which compel the court to give effect to
the execution. It must be the last reset for any court to sentence a person to death. The
detailing of rarest of rare, much the same as some other subject, isn’t liberated from analysis
by others. Numeros adversries have called attention to a perspective on this principle being
vague and dependent upon different translations. A strong anaysis emerged from Justice
Bhagwati himself who as he would like to think forewarned saying, such a basis would offer
ascent to a more notworthy measure of subjectivity in dynamic and would settle on the
choice whether an individual will live happy on the organiation of the Bench. He fights the
way that the life of a wongdoer depending on the psyces of seat is plainly violative of the
Fundamental Rights revered in Article 14 and 21 of the Indian Constitution.
The principal of rarest of rare has two bifurcation namely, aggravating and mitigating
circumstaces. The many point of difference between the two lies in the fact in the frmer
case, the judges is free to inflect the dath sentence by his will, whereas in the latter, such
sentences cannot be awarded by the bench even by application of the doctrine

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CURRENT TREND ABOUT CAPITAL PINISHMENT ;-

The Supreme Court said that it if a matter calls for imposition of death penalty, courts
will not avoid it and it has never been the effort of courts to make death penalty redundant.
It opined that it would reflect compromised objectivity if judges aimed to nullify statutory
provisions carrying the death sentence as an alternative punishment, even after it has been
held as constitutional

Over the time even the proposition of larger/longer term of actual imprisonment with
no remission or curtailed remission has also evolved but, it has never been the effort of the
courts to someho make this punishment (sentence of death) redundant and non-existent for
all practical purposes. The quest for justice in such cases with death sentence being awarded
and maintained only in extreme cases does not mean that the matter would be approached
and examined in the manner that death sentence has be avoided even if the matter indeed
calls for such a punishment the Court said.

The observations were made by a three-judge Bench of Justices 'AM

Khanwilkar, Dinesh Maheshwari' and 'CT Ravikumar' in the judgment of 'Manoj Pratap
Singh v State of Rajastha'n' while confirming the death sentence awarded to a man convicted
of kidnapping, raping and killing a seven-and-a-half-year-old mentally and physically
disabled girl. Interestingly, these observations come at a time when the apex court has
through a string of orders been attempting to streamline the entire death penalty
jurisprudence in te country. particularly in relation to procedural aspects. These observations
by the apex court compel one to examine the approach taen by the judicial process while
awarding death sentence.
While commuting the death sentences of three murder convicts to life imprisonment,
it was noted last month that it was the court's responsibility to examine the mitigating
circumstances of such cases liberally and expansively at the trial stage even in brutal crimes.
The apex court, in this regard also said that the responsibility of producing material to reflect
that the accused was beyond rehabilitation, to unquestionably foreclose the option of life
imprisonment fell squarely on the State. It has been emphasised that this duty was of
heightened importance in the Indian context since a majority of the accused had a poor or
rudimentary level of legal representation. In a judgment rendered in January the Court
commuted the death sentence of a convict belonging to a Scheduled Tribe community, to

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life imprisonment in a case of rape and murder of a minor girl. A three judge-bench noted
that while the trial court and the 'High Court took the gravity of the crime into account, they
failed to consider the mitigating circumstances including the convict's socio-economic
background and probability of reformation and rehabilitation. It was taken into account that
the convict was from a marginalised communit was about 25 years.

CONCLUSION

Many countries have abolished the death penalty or capital punishment because it violates
individuals rights to life and liberty and is cruel and brutal in nature. Death penalty has
already been abolished 139 countries and India also should join the majority of nations that
have abolished the death penalty. 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. Furthermoreif
we were to discuss the proper existence, it would be accurate to state that the Indian
Constitution gives criminals enough defenses and remedies as well as the required legal
assistance, the right to treatment etc. Additionally, a convicted criminal who was accused
of committing a few horrendous crimes against a person or the nation at large does not
necessarily have the right to life. Therefore I believe that the death penalty is
constitutionally acceptable and justifiable if it is applied to crimes that are particularly
serious and disproportionate. A guy or woman in my opinion who does not respect their
existence or the integrity of their country should no longer be regarded with empathy. Even
while it might be challenging to put a monetary value on the crimes that call for the death
sentence, heinous crimes like rape, terrorism, and murder should always result in the death
penalty.

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BIBILOGRAPHY;
Books:
1. JN Pandey of constitution.
2. SN Misra of IPC.
3. 'Takwani' MC Thakker and CK Thakker of Crpc.
4. Navin kumar Criminal Physiology(2015).

Websites:
1. http://ijlljs.in/capital-punishment-in-india-the-unending-conundrum/.
2. https://thelawbrigade.com/wp-content/uploads/2019.
3. https://www.blog.ipleaders.in.
4. https://indiankanoon.org.

Case Law:
1. Md. Ajmal Amir kasab .Vs St. of Maharashtra.(2012)
2. Manoj .Vs. St. of Madhya Pradesh.(2022)
3. Dhananjoy Chatterjee .Vs. St. of West Bengal.(2004)
4. Gurvail singh .vs. St. of Panjab. (AIR 1980 Sc 898)

References:
1. P.K. Supreme Court on rarest rare cases. Universal law publishing.2011.
2. Reena Mary George. Prisoneers voice from death row, Indian Express.2016.

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