Death Penalty in heinous crimes: Comment


Author Name: Priya Shah

First of all, I would like to start by defining what exactly are heinous crimes, the juvenile justice (care and protection of children) Act, 2015 defines offences as:

Heinous offence: any offence which attracts a minimum penalty of 7 years imprisonment under any existing law.

Capital punishment is legal in India but the problem is its implementation. The Supreme Court of India in Mithu vs. State of Punjab struck down Section 303 of the Indian Penal Code, which provided for a mandatory death sentence for offenders who committed murder while serving a life sentence.

In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to end the institution of capital punishment globally[1].

The first hanging in Independent India was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15 November 1949.

Under Article 21 of the Constitution of India, no person can be deprived of his life except according to the procedure established by law which reads as follows: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

Punishments are classified into the Following Kinds in Relation to the object thereof:[2]

  1. Corporal Punishment, viz: punishments inflicted on the human body such as execution, whipping, imprisonment, etc.
  2. Physical Punishments: Punishments whose object is the offender’s mind rather than the body, such as exhortation, intimidation, and threatening.
  3. Pecuniary Punishment: Punishments whose object is the material possessions of a person, such as diyat, mulct, and confiscation.

At present the Indian Penal Code provides death penalty only for the following:-[3]

  1. Waging or attempting to wage war or abetting the waging of war against the Govt. of India (S. 120)
  2. Abetment of mutiny actually committed. (S. 132)
  3. Giving or fabricating false evidence upon which an innocent person suffers death (S. 194)
  4. Murder (S. 302)
  5. Murder by a life convict (S. 303)
  6. Abetment of suicide of a child, an insane or intoxicated person(S.305)
  7. Attempt to murder by a person under sentence of imprisonment for life if the hurt is caused (S. 307)
  8. Dacoity with murder (S. 396)

The supreme court of India in Bachhaan Singh VS State Of Punjab[4], Jagmohan Singh Vs. State Of Uttar Pradesh (1973), and then in Rajendra Prasad Vs. State Of Uttar Pradesh (1979)has rightly ruled that the death penalty can be awarded but only in RAREST OF THE RARE CASES.

The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok HurraVs. Ashok Hurra and Anr. (2002)where the question was whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court, after the dismissal of a review petition. The Supreme Court in the said case held that to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in the exercise of its inherent powers.[5]

The kind of death penalty in India is hanged till death in which the offender is hanged by the neck until he dies.

Inspite of tons of legislations being framed in India to stop and control the crime, the crime rates are increasing and increasing the reason being for the same is because the punishments are not sufficient for the crimes. They are different types of punishment in India like capital punishment, life imprisonment, imprisonment, fine, etc. of which capital punishment is known to be the most severe form.

The people who are against the death penalty in India argue that it is violative of Article 21 of the constitution of India which guarantees right to life to an individual but the death penalty awarded by the court is a legal procedure that gives the power to take an individual’s life. It has been in existence since the inception of the State itself. In the British era, there have been countless instances of Indians being hanged after the trial or even before it. The dawn of Independence brought about a new era in the judicial system of India. It was in stark contrast to the British Judicial system in which the Indians hardly had any access to justice, or the time of empires and kingdoms before it when the ruler of a certain state or kingdom was its ultimate authority and the source of all justice wherein his or her statements verbatim, were adopted as the law of the land. The ruler, thus had the power to condemn any man to death whoever may he or she be, even on a whim.[6]

The Law Commission of India in its 35th report 1967, favoured, a cautious approach and pleaded its retention as an exceptional penalty. It maintained that the problem of retention and abolition could not be discussed without going into the conditions prevailing in India.

The constitution of India has pardoning power of capital punishment by the President. Also if the sessions court has awarded the death penalty, it has to confirmed by the High Court. After that, if the convict wants they can file an appeal to the Supreme court. After this as well, the convict will still have the right to file a mercy petition to the President of India. This power is given under article 72 of the constitution of India which reads as follows:

Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence

(a) in all cases where the punishment or sentence is by a Court Martial;

(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;

(c) in all cases where the sentence is a sentence of death

(2) Noting in sub-clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force

In the case of Jagmohan Singh Vs. State of U.P[7].

In this case, the counsel for the appellant relied upon 3 basic arguments.

  1. That the execution of the death penalty takes away all the fundamental rights guaranteed under Article 19 of the constitution of India and thus, it is unreasonable.
  2. There is no fixed standards or policy for execution and it is completely on the discretion of the judges and thus, violative of Article 14 of the Indian Constitution.
  3. Article 21 of the Constitution guarantees the right to life and thus, considered to be unconstitutional.

After looking into the arguments from both sides, the five-judge bench upheld the decision and held that deprivation of life is permissible if performed by due process of law.

EdigaAnamma v. State of Andhra Pradesh[8]

In this case, the court commuted the death sentence to life imprisonment by citing factors like age, gender, socio-economic background and psychic compulsions of the accused. It was laid out in this case that apart from looking into the details of the crime and deciding based on the extent of violence committed the judges should also look into the criminal and his condition or haplessness while committing the crime. Justice Krishna Iyer in support of life imprisonment over capital punishment said:

“A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”

In 1979, India ratified the International Covenant on Civil and Political Rights, Article 6(2) of the ICCPR reads as follows:

Article 6(2) of the ICCPR says:  “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.”[9]

Bachan Singh v State of Punjab[10]

This is the case that gave birth to the principle or concept of “rarest of rare cases”. The five-judge bench, in this case, held that “A real and abiding concern for the dignity of human life postulates resistance to taking a life through law instrumentality. That ought not to be done except in rarest of rare cases where the alternative opinion is unquestionably foreclosed.” The court in this clearly held that none of the articles 14 & 21 are being violated by the death penalty.

Macchi Singh v. State of Punjab[11]

In order to further elucidate the “rarest of the rare rule”, situations, where the application of death sentence could be justified Justice M.P Thakkar, gave the following illustrations:

  1. Manner of Commission of crime.
  2. The motive for the commission of a crime
  3. Nature of crime
  4. Magnitude of crime
  5. The personality of the victim

Kehar Singh v. Union of India[12]

In this case, the murderers of Indira Gandhi were sentenced to death. Kehar Singh was part of the conspirators who planned the murder and did not actually commit the act. The court held that even this was enough to fall in the rarest case criteria. This decision attracted a wide range of controversies.


We can see that there is still a difference in opinions in India regarding the death penalty. It is not just a debate about the constitutionality of the death penalty but also about social aspects. It is basically based on the principle of “eye for an eye”. But along with it also attracts fear in the mind of the people.

I completely agree that not much reduction is seen in the crime rates but then being equally heinously punished for the crime committed heinously will at least compel a criminal to think twice before committing a crime also it will make a criminal commit a crime with fear in his mind.

[1]“General Assembly GA/10678 Sixty-second General Assembly Plenary 76th & 77th Meetings”. ANNEX VI. Retrieved 30 July 2013.



[4]1980 2 SCC 684



[7]Jagmohan Singh v. State of U.P , (1973 1 SCC 20)

[8]EdigaAnamma v. State of Andhra Pradesh , AIR 1973 S.C. 774



[11]Macchi Singh v. State of Punjab (1983) 3 SCC 470

[12]Kehar Singh v. Union of India,  (AIR 1962 SC 955)