Is Capital Punishment Ethical in India?


The practice of awarding punishments is a very important part of the criminal justice system as it a form of society’s manifestation of the admonition of the crime by a collective conscience as specified by Durkheim. The entire goal of punishment can be justified by a sociological perspective and it attains legitimacy by a legal framework. As society, has evolved, the form of punishments has also changed with it. Earlier the sole object for punishing a delinquent was retribution i.e. to recompense from him the wrong he has committed or in other words because he deserves to be admonished. Retribution is revenge for an injury. For instance, in earlier times certain punishments could administer extreme brutality. However, such punishments are no more a part of the contemporary criminal legal system as they violate humanitarian grounds.

There are five different kinds of punishments awarded by the Indian Penal Code, 1860 under Section 53, and they are Death, Life imprisonment, Simple or rigorous imprisonment, Fine and Forfeiture of property.

The death sentence is a punishment which is sanctioned by the government and ordered by the court where a person is put to death for a crime acted by him. It is also referred to as ‘Capital Punishment’. The act of carrying out such practice is called execution. In India, the death penalty is given by the method of hanging. The other ways through which death sentences executed at world scenarios are stoning, sawing, blowing from a gun, lethal injection, electrocution, etc.

The subject of death sentence always has been a matter of controversy. While considering the Constitution as the supreme, the validity of death sentence v/s fundamental rights constantly came forward for the debates. However, the death sentences are rarely given in the Indian criminal courts. In the case of Bachan Singh vs. State of Punjab (AIR 1980 SC 898), the Supreme Court held that capital punishment shall be given in the “rarest of the rare” case. However, what constitutes the “rarest of the rare cases” is not prescribed by the Supreme Court or by the legislature.

The death penalty is given as punishment under IPC can be awarded for:

  • Abetment for an offence punishable with death or imprisonment for life (S. 115)
  • Concealing design to commit an offence punishable with death or imprisonment for life (S.118)
  • When armed rebellion i.e. waging, abetting to waging of war or attempting to wage war is made against constitutionally and legally established government (S. 121)
  • Uprising, supporting and encouraging the formation of the mutinous group of people in the nations armed forces (S.132)
  • With the intent to obtain a death sentence to an innocent by presenting concocted vexatious proof (S. 194)
  • Causing murder of another (S.302)
  •  When a life convict person murders another person (S.303)
  • Abetting suicide to an insane or minor person (S.305)
  • Kidnapping (S.364A)
  • Rape as per the Criminal Law Amendment Act, 2013 (S.376A)
  • Causing dacoity with murder (S. 396)

Some other Acts under which the death penalty covered as punishment are: 

  1. Section 4, part II of the Prevention of Sati Act- Abetting or aiding an act of sati.
  2. Section 31A of the Narcotic Drugs and Psychotropic Substances Act- Drug trafficking in cases of repeat offences.

However, the death penalty as a punishment is an exception to certain persons like intellectually disabled, pregnant women and minors.

Constitutional Validity of Death Penalty

The issue of the death penalty is not a recent issue. It has been discussed, studied and debated for a prolonged time. However, till today no conclusion is drawn about the abolition or retention of the provision. The death penalty has been the mode of punishment from the British era.

In the case of Rajendra Prasad v. State of U.P (1979 SCR (3) 78), Justice Krishna Iyer had empathetically stressed that the death penalty is violative of articles 14, 19 and 21. With this the Justice Iyer said two conditions under which the death penalty can be given:

  • While giving the death penalty the court shall record special reasons.
  • Only in extraordinary cases the death penalty to be imposed.

However, in the case of Bachan Singh vs. State of Punjab, within one year the five-judge bench (4:1- Bhagwati J. dissenting) overruled the decision of Rajendra Prasad’s case. The judgment expressed that the death penalty is not violative of Article 14,19 and 21 of the Constitution of India and pronounced that in the “rare of the rarest case” i.e. those cases in which the collective conscience of the community is so shocked that it will expect the judiciary to deliver the death penalty on the accused the death penalty can be ordered. Although, Justice Bhagwati in his dissenting judgment stated that the death penalty is not only being violative to Article 14 and 21 but also undesirable because of several other reasons.


Death as a penalty has plagued human mind perennially. Death sentence must fulfil the conditions for protection of human rights in Criminal Justice Administration in India.

In the words of P.N. Bhagwati, J. in Bachan Singh v. state of Punjab “the judges have been awarding death penalty according to their own scale of values and social philosophy and it is not possible to discern any consistent approach to the problem in the judicial decisions”.

Aishwarya Says:

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