Updated: Feb 20, 2022
Written by: Gayathri Menon
Punishment, in general, is defined as the infliction or imposition of penalty as retribution for an offence. There are primarily two reasons why punishment is necessary. One is the notion that it is fair and just to make a person suffer for a wrong which he or she has committed and the second reason being that it will prevent others from doing the same. Capital punishment also relies on the same principle. Capital punishment is defined as the punishment by death that is imposed by the State on individuals committing heinous offences. The offences which invite capital punishment are murder, rape, terrorism, acts against the State, abetment to suicide and others. In India, execution is carried out by hanging.
HISTORY OF CAPITAL PUNISHMENT
Capital punishment was very much prevalent since ancient times. There were very few countries that did not have capital punishment as the most gruesome form of punishment. With time, various countries such as Netherlands, Venezuela, and Ecuador abolished capital punishment as it was considered barbaric and the intended purpose of reformation was not served. India has very much retained capital punishment and it has been in the Indian Penal Code since 1898. In colonial India, death was considered as a punishment and it was not modified even after getting independence from the British. Until the enactment of Section354(3) of Criminal Procedure Code 1973, judges were asked to cite reasons as to why they should not give a death sentence to the convicts which changed to the judges being asked to cite reasons for giving a death sentence upon the enactment. In the year 2007, India voted against the United Nations General Assembly resolution calling a moratorium on capital punishment. In November 2012, India retained its position by refusing to sign the United Nations draft resolution seeking to ban capital punishment.
CONSTITUTIONAL VALIDITY OF CAPITAL PUNISHMENT
The constitutional validity of capital punishment was first challenged in the case of Jagmohan Singh v. State of Uttar Pradesh (1972) in the year 1972. It was argued that the provisions of the law do not provide a procedure for the trial of factors crucial for choosing between life imprisonment and the death penalty and therefore violating Article 21. With respect to Article 19, it was argued that all the freedoms guaranteed under Article 19 are violated with the imposition of the death penalty. It was further argued that the imposition of the death penalty was arbitrary and it was solely dependent on the discretion of the judges which thereby violated Article 14 of the Indian Constitution. Dismissing the appeal, the Supreme Court held that the deprivation of life is constitutionally permissible if it is done through procedures established by law and hence does not violate Article 21. With regards to the argument put forward by the appellant concerning Article 14, the court held that the imposition of punishment by the judges was under the scrutiny and purview of the senior judges and is based on well recognized judicial principles.
In the year 1973, the Criminal Procedure Code was re-enacted and it introduced Section 354(3) wherein it was mandated that judges provide ‘special reasons’ for sentencing the convict for capital punishment. This is a stark change from earlier cases when the judges had to give ‘special reasons’ for not imposing capital punishment. The Criminal Procedure Code 1973 also introduced Section 235(2) which allowed a post-conviction hearing on sentencing which drastically changed the jurisprudence allowing a careful evaluation and analysis of circumstances around the jurisprudence of death sentence.
In the case of Rajendra Prasad v. State of Uttar Pradesh (1979), the Supreme Court emphasized the meaning of ‘special reasons’ for imposing the death sentence and held that while imposing the death penalty, the focus must be on the criminal, not on the crime. The Court also expresses the importance of capital punishment being seen in the light of deterrence rather than retribution.
In the landmark case of Maneka Gandhi v. Union Of India (1978) it was established that in order to be considered constitutional, a law needs to pass the test of Articles 14, 19 and 21 collectively. It also asserted that the procedures under article 21 should be ‘fair, just and reasonable. It is in this light that the Supreme Court decided to consider the challenges raised in the case of Bachan Singh v. State of Punjab (1980). In this case, Bachan Singh was convicted and sentenced for capital punishment under Section 302 of the Indian Penal Code and Section 354(3) of the Criminal Procedure Code. The judgement given by the five-judge bench is a detailed one and it looks into various aspects of the contentions raised by the appellants. Firstly, the judges examine the constitutional validity in the light of Article 19 of the Constitution. The judges reiterate in this judgement that Section 302 of the Indian Penal Code doesn’t violate Article 19. It observes that it is wrong to assume that the fundamental freedoms guaranteed under Article 19 is absolute and reinstated that all the freedoms are subject to reasonable restrictions and it was legitimate for the State to impose a death penalty and it was not violating Article 19 of the constitution. The court further held that the death penalty serves as a substantial deterrent against all the heinous crimes that are being committed. The Court also cites the opinions of various judges and parliamentarians, all of whom seem to agree that capital punishment acts as an effective deterrent and thereby concluded that all human beings are inherently scared of death thereby making it an effective deterrent. The judgement then proceeds to review the death penalty in the light of Article 21 which guarantees the right to life and liberty to the citizens of India. Since this judgement came after the Maneka Gandhi case, Article 21 was to be interpreted in a ‘just fair and reasonable procedure'. The court held that the life and liberty of a person could be taken away by the state in accordance with the ‘fair, just and reasonable' procedure established by law. Hence it was concluded that Section 302 is not violating Article 21. The Court further held that the death penalty is a way of showing society’s disapproval of the crimes committed. However, it also stated that the death penalty is a barbaric form of punishment and should be used only in the ‘rarest of rare' cases. It was in this case that the doctrine of ‘rarest of rare’ was established.
REPORTS OF THE LAW COMMISSION
35TH REPORT (1967)
In this report, the commission recommended the retention of capital punishment and it was observed that the discretion of the court is based on the judicial principles and that the exercise of discretion will be based on factors such as local conditions, social and cultural life etc. The commission also held that constitutional safeguards such as the power of appeal, review, mercy and legal assistance are ensured so that no errors are committed.
262nd REPORT (2015)
The law commission extensively studied various aspects of the death penalty such as the role of deterrence, victim justice etc. It was concluded that the death penalty does not serve the purpose of punishment and it should be applied only in the case of terrorism. The commission observed that by making capital punishment as the most gruesome form of punishment, it’s going against the basic nature of our constitution. Article 14 which ensures the right to equality is also being violated as the punishment heavily relies on the discretion of the judges.
India has still retained capital punishment as the ultimate punishment that can be imposed on convicts for the commission of heinous crimes. Even after continuous demands from society, India has so far not abolished capital punishment. However, there has been a decrease in the frequency of such a punishment in recent years. Many lawyers and sociologists are of the opinion that the death penalty indeed does not comply with the idea of reformation. They consider it as a barbaric form of punishment which holds no relevance in the twenty-first century and hence should be abolished.
 The Code Of Criminal Procedure,1973 available at https://legislative.gov.in/sites/default/files/A1974-02.pdf (Visited on May 4th,2021)  1973 AIR 947, 1973 SCR (2) 541  1979 AIR 916, 1979 SCR (3) 78  1978 AIR 597, 1978 SCR (2) 621  AIR 1980 SC 898  Law Commission Of India Report on Death Penalty available at https://lawcommissionofindia.nic.in/reports/report262.pdf (Visited on May 5th,2021)