A PROJECT ON

“Capital Punishment – Position in India ”

[Submitted as a partial fulfilment of the requirements for B.A. LL.B (HONS.) 5 Year Integrated
Course]

Session: 2022-23

Submitted on: 24th May 2023

Submitted by: Submitted to:

UNIVERSITY FIVE YEAR LAW COLLEGE

i
 JAIPUR

DECLARATION

I, Dilraj Singh Chouhan hereby declare that this project titled “Capital Punishment- Position
in India ” is based on original research work carried out by me under the guidance and supervision
of Dr.Akhil Kumar.
The interpretation put forth is based on my reading and understanding of the original texts. The
books, articles etc. We have been relied upon by me have been duly acknowledged at the respective
places in the text.

For the present project which I am submitting to the University, no degree and diploma has been
conferred on me before, either in this or any other university.

Date: 24th May 2023 Dilraj Singh Chouhan

Roll no. 85

Semester: V -B

ii
 CERTIFICATE

Dr.Akhil Kumar Date:24.05.2023

Faculty

University Five Year Law College

This is to certify that Dilraj Singh Chouhan of Semester V section B of University Five Year Law
College, University of Rajasthan has carried out the project entitled “Capital Punishment –
Position in India” under my supervision and guidance. It is an investigation report of a minor
project. The student has completed research work in my stipulated time and according to the norms
prescribed for the purpose.

Supervisor

iii
 ACKNOWLEDGMENT
I have written this project “Capital Punishment – Position in India ” under the supervision of
Dr.Akhil kumar, Faculty, University Five Year Law College, University of Rajasthan, Jaipur. Her
Valuable suggestions herein have not only helped me immensely in making this work but also in
developing an analytical approach this work.

I found no words to express my sense of gratitude for Director ,Dr.Akhil Kumar for constant
encouragement at every step.

I am extremely grateful to librarian and library staff of the college for the support and cooperation
extended by them from time to time.

Dilraj Singh Chouhan

iv
 TABLE OF CONTENTS

Page No.

1. Title I
2. Declaration II
3. Certificate III
4. Acknowledgement IV
5. Abstract VI
6. Research Methodology VII
 Statement of Question
 Objective

7. Chapter-1 ……………………………………………………………….1
Introduction

8. Chapter-2 ……………………………………………………………… 2
Evolution and its position in India

9. Chapter-3 ………………………………………………………………. 4
Crimes punishable by death penalty

Chapter -4 ………………..……………………………………………...6

Supreme Court Stance over Capital Punishment

10. Conclusion ……………………………………………………………… 7

11. Web Sources …………………………………….……………………… 8

v
 ABSTRACT

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.
‘Capital punishment’, also known as the ‘death penalty’, is the harshest or most severe punishment
of the present time.

The purpose of the death penalty is to deter people from doing something by instilling fear in them
about the consequences. This punishment applies to heinous and traumatising offences to society
as a whole, such as murder, rape, rape with murder, etc. The death penalty is used when a crime is
so serious that it has the potential to terrorise society as a whole, but not all of the crimes mentioned
above necessarily warrant the death penalty. The death penalty is only applied to crimes that fall
under the ‘rarest of rare doctrine.

vi
 RESEARCH METHODOLOGY

The researcher has used non- doctrinal method and relied only upon secondary sources of data to
prepare this project.

Statement of Problems

• Critical Analysis of India’s position over Capital Punishment

Objectives

• To study the differential aspects attached to concept of Capital Punishment

vii
 CHAPTER 1
INTRODUCTION
The term ‘capital’ is derived from the Latin word ‘capitalis’, which means concerning the head.
Thus, to be subjected to capital punishment means to lose one’s head.

Capital punishment, also known as the death penalty, is the execution of a criminal who has been
sentenced to death by a court of law for a serious felony. It is known as the most severe form of
punishment. It serves as punishment for the most heinous, grievous, and abhorrent crimes against
humanity. Even though the definition and scope of such crimes vary by nation, state, and age, the
death penalty has always been the result of such crimes.

According to Encyclopedia Britannica, the death penalty is the execution of a person who has been
given a death sentence after being found guilty of a crime by a court.

Capital punishment is the punishment which involves the legal killing of a person who
has committed a serious crime such as murder.It is a legal punishment in India and is permissible
for some heinous crimes like Murder, Rape etc. under the country’s main substantive penal
legislation, the Indian Penal Code, 1860, as well as other laws.

The Law Commission in its 262nd report proposed that the death penalty should be abolished for
all crimes excluding terrorism-related offences and war. Although death for death leads society
to barbarism, it is also true that there should be a provision of appropriate punishment for the
offender for violating the right to life and the increasing heinousness of crimes at present suggests
that the abolition of capital punishment at present can cause problems.

1
 CHAPTER – 2

EVOLUTION AND ITS POSITION

Evolution:-

India retained the 1861 Penal Code at independence in 1947, which provided for the death penalty
for murder. The idea of abolishing the death penalty expressed by several members of the
Constituent Assembly during the drafting of the Indian Constitution between 1947 and 1949, but
no such provision was incorporated in the Constitution. In the next two decades, to abolish the
death penalty, private members bills were introduced in both Lok Sabha and Rajya Sabha, but none
of them were adopted. It was estimated that between 1950 and 1980, there were 3000 to 4000
executions. It is more difficult to measure the number of people sentenced to death and executed
between 1980 and the mid-1990s. It is estimated that two or three people were hanged annually. In
the 1980 Bachan Singh judgment, the Supreme Court ruled that the death penalty should only be
used in the “rarest of rare” cases, but it is not clear what defines the rarest of the rare.

Position in India :-

India opposed a UN resolution calling for a moratorium on the death penalty because it goes against
the Indian statutory legislation 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 says 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 government, abetment of mutiny, dacoity with murder, and anti-terrorism are punishable with
death sentences under Indian Penal Code (IPC). The president has the power to grant mercy in a

2
case of death penalty.The Court held that capital punishment will only be given in rarest of rare
cases.(Bachan Singh v.State of Punjab).

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 a ‘mercy
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-sentenced 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 or remissions of punishment or to
suspend, remit or reduce the sentence of any person who has been convicted of an offence.

3
 CHAPTER – 3

CRIMES PUNISHABLE BY DEATH PENALTY

The Commission of Sati (Prevention) Act, 1987

Any person involved in the commission of Sati directly or indirectly is subject to the death
penalty under The Commission of Sati (Prevention) Act, 1987.

Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985

Based on previous convictions, Section 31A of the NDPS Act has introduced the death penalty
for providing financial support or taking part in the production or sale of narcotics or
psychoactive substances in a predetermined amount (e.g., opium 10 kg, cocaine 500 grammes).

The Scheduled Castes And Scheduled Tribes (Prevention of Atrocities) Act, 1989

Forging evidence that leads to the conviction and execution of an innocent member of a
scheduled caste or tribe is punishable by death under the Act.

Army Act, 1950; Air Force Act, 1950 and Navy Act, 1957

Various offences committed by members of the military forces under military laws like the Army
Act, 1950; Air Force Act, 1950, and Navy Act, 1957, may also be punishable by death.

Indian Penal Code ,1860

1. Section 302 of the IPC imposes the death penalty for a person who commits murder.
2. Assisting or supporting a minor’s suicide has been associated with the death
penalty. Section 305 of the IPC deals with punishment for assisting or supporting a

4
 person under the age of 18 or an intellectually disabled person in committing suicide. As
a result, anyone who commits this crime can face the death penalty.
3. Kidnapping for ransom or other purposes is a serious offence punishable by death.
Kidnapping a person with the intent to cause them harm or death is specified
under Section 364A of IPC. Any person who commits this crime can face the death
penalty.
4. The following offences were added to the IPC by the Criminal Law (Amendment) Act
of 2013 for which a court may impose the death penalty:

• Section 376A specifies the death penalty for rape that results in death or a permanent
vegetative state of the victim.
• Under Section 376E, repeat rape offenders may face the death penalty.

Section 396 also provides for the death penalty in cases of dacoity with murder

8. One of the crimes that have been connected to the death penalty is waging war against India
or attempting to do so. Waging war against a country is a crime that is specifically defined
in Section 121 of the IPC. Anyone who attempts to wage war against India or is successful
in waging war may be sentenced to death.
9. The death penalty has also been associated with the abatement of mutiny. Abatement of
armed rebellion by an officer or member of the army, navy, or air force is specified
in Section 132 of the I.P.C and accordingly, anyone who abets in the commission of a
mutiny by an officer, soldier, sailor, or pilot in the army, navy, or air force of the
Government of India, so that mutiny will be committed as a result of that complicity, can
be punished by death.

5
 CHAPTER – 4

SUPREME COURT STANCE OVER CAPITAL PUNISHMENT

• Jagmohan Singh v. State of UP 1973 case: The Supreme Court held that according
to Article 21 deprivation of life is constitutionally permissible if that is done according to
the procedure established by law.
• Thus the death sentence imposed after a trial in accordance with legally established
procedures under Cr.PC and the Indian Evidence Act, is not unconstitutional under Art. 21.
• Rajendra Prasad v. State of UP 1979 case: The Supreme Court held that, if the murderous
operation of a criminal jeopardizes social security in a persistent, planned and perilous
fashion then his enjoyment of fundamental rights may be rightly annihilated.
• Bachan Singh v. the State of Punjab 1980 case: A Constitution Bench of the Supreme
Court propounded the dictum of ‘rarest of rare cases’ according to which death penalty
is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is
unquestionably foreclosed.
• Machhi Singh v. State of Punjab 1983 case: The Supreme Court laid down certain
considerations for determining whether a case falls under the category of rarest of rare
cases or not.
• In 2015, the Law Commission called for the abolition of the death penalty for ordinary

crimes, and activists continue to argue for abolishing it altogether.

6
 CONCLUSION

It is a controversial topic which is related to social and moral aspect. The Court expanded the range
of “alternative options” to be exhausted before the death sentence was chosen and the Supreme
Court ruled in favour of the conviction in the case of Bachan Singh. By retaining the death penalty,
we may execute someone to death who turns out to be innocent..

Although death for death leads society to barbarism, it is also true that there should be a provision
of appropriate punishment for the offender for violating the right to life and the increasing
heinousness of crimes at present suggests that the abolition of capital punishment at present can
cause problems.

But in a progressive democratic society where socioeconomic justice has been established, the
chances of heinous crimes will be very less. Thus, to eliminate crime in place of capital punishment,
efforts should be made towards establishing social and economic justice.

7
 WEB SOURCE & REFERENCES

BOOK :-

Jurisprudence and it’s legal theory ,V.D. Mahajan ,EBC publishing

WEB SOURCES :-

1. https://lawcommissionofindia.nic.in/reports/

2. https://www.livelaw.in/top-stories/death-penalty-executions-in-india-
post-2000-before-nirbhaya-case-154115