The constitutional Validity of Capital Punishment in India


Rakshandha Darak.

Third-year student, B.A LL.B (Hons)

Alliance University, Bangalore.

All punishments are based on the ideology that is there must be a penalty for wrongdoing. Capital punishment also rests on ideology as the other punishment. Because of its drastic and irrevocable nature, it is always open to debate over its fairness, appropriateness and effectiveness than other punishments. Capital punishment has been a mode of punishment since time immemorial. The arguments for and against it has not changed much over the last few years. Capital punishment, as the mode of punishment, correlates to the culture and form of civilization from which they emerge.

India is one of those countries in the world which have retained the death penalty on the ground that it will be awarded only in the “rarest of the rarest cases”. The constitutional validity of death penalty has been challenged from time to time in numerous cases starting from Jagmohan Singh VS State of U.P [1]where the Supreme Court rejected the argument that, the capital punishment is the violation of the “right to life” which is guaranteed under article 21 of the Indian constitution. In another case, Rajendra Prasad Vs State of U. P[2], Justice Krishna Iyer has laid down that capital punishment is violative of articles 14, 19 and 21. However, a year a later in the landmark case of, Bachan Singh vs the State of Punjab[3], the Supreme Court overruled its earlier decision in Rajendra Prasad. The Supreme Court in Machhi Singh VS State of [4]Punjab laid down the broad outlines of the circumstances when the death sentence should be imposed.

India’s law commission in its 262nd report recommended that the concept of capital punishment should be abolished and it should be awarded only in the cases of terrorism-related offences to safeguard the nation’s security.[5] However, in 2015 the law commission made a statement that it feels the time has come when India should move on the path to abolish capital punishment in India.

Pre Maneka Period

All the challenges to the constitutional validity of capital punishment in India are mainly based on the fundamental rights guaranteed under article 14, 19 and 21 of the Indian constitution. It should be taken into consideration that the judicial interpretation of these articles got a new interpretative dimension in Maneka Gandhi Vs Union of India[6], so it is necessary to understand the constitutional validity of capital punishment in two periods;[7]

1) Pre Maneka period

2) Post Maneka period.

It is also known as the ‘Gopalan Period’ as the constitutional interpretation of the fundamental rights guaranteed by Article 14, 19 and 21 was governed by K. Gopalan Vs State of Madras[8]. In pre-Maneka period it was not possible to challenge the reasonableness of the procedure provided by the law for deprivation of life or personal liberty concerning article 21 of the Indian constitution. Article 21 would only be invoked by putting forward the argument that the law of statute had no procedure for deprivation of life or personal liberty. Thus, the constitutional validity of capital punishment could be challenged only in a limited way.

In the case of Jagmohan Singh Vs State of UP[9], the constitutional validity of capital punishment was challenged for murder under section 302 of IPC for the first time as it was contrary to articles 14, 19 and 21 of the Indian constitution. The court held that even assuming that ‘the right to life ‘was basic ‘right to the freedom’ as mentioned in article 19 of the Indian constitution and that no law shall deprive the life of a citizen unless it was reasonable and in the public interest, it would be difficult to hold that capital punishment as such, was unreasonable and not required in the public interest.[10]Thus, capital punishment does not violate or is not contrary to article 19 of the Indian constitution.

Thus, it was held in the case of Jagmohan Singh Vs State of UP that capital punishment is not contrary to articles 14, 19 and 21 of the Indian constitution.

Post Maneka Period

This time the constitutional validity of capital punishment was discussed in the case of Rajendra Prasad Vs State of Uttar Pradesh[11] , wherein Justice Krishna Iyer stressed on the fact that capital punishment is violative and contrary to articles 14, 19 and 21 of the Indian constitution. However, again one year later, in 1980 in the case of Bachan Singh Vs State of Punjab,[12] the Supreme Court altered the decision of Rajendra Prasad Vs State of Uttar Pradesh and held that the provision of capital punishment is an alternative punishment for murder in section 302 of IPC.

Macchi Singh Vs State of Punjab[13]

The Supreme Court, in this case, laid broad outlines of the circumstances when capital punishment should be imposed. The Supreme Court also laid down the views on how crime should be judged from the platform of motive or the manner of the commission of the crime such for instance:

1) Manner of commission of murder

2) Motive for commission of murder

3) Anti-social or heinous nature of the crime

4) Magnitude of crime

5) The personality of the victim of murder

Mithu Vs State of Punjab[14]

In India, the constitutional validity of mandatory capital punishment was considered by the Supreme Court in the case, as mentioned above. It was contended that section 303 was unreasonable and arbitrary and violative of article 14 and article 21 of the Indian constitution. The court also held that section 303 IPC providing for capital punishment was unconstitutional as it violated Article 14 and 21 of the Indian constitution. Thus, capital punishment is contrary to article 14 and article 21 of the Indian constitution.


Whenever a capital punishment is awarded to someone, it is always more than punishment; it is killing of a person in the name of law and justice. It is immoral, and it demonstrates disrespect towards human life. Capital punishment almost eliminates the scope of improvement, which would have certainly changed the life of a particular individual; this can be considered as one of the reasons why India follows reformative theory rather than deterrence theory.

The fact should not be neglected that, the criminal should be punished for the crime he has done in the society, but we as civilized people must understand the need to eliminate the crime rather than the criminal person. We always denote ourselves as ‘civilized society’ but to save the morals of the society; we usually kill the other human in the name of justice. The principle of capital punishment is based on the deterrent theory which aims at setting an example by inflicting fear in the mind of others, but there are also other possible ways by which an example can be set through reformative theory. The concept of capital punishment is ancient and barbaric, and it needs to be abolished as it involves taking someone’s life which is an immoral act in itself. The reformative theory should be more in practice than deterrence theory as it gives a person to change oneself and come back in society and live with peace and harmony.

In some cases, it becomes the need of the hour to award harsh punishment to such criminals. They have no scope of reforming themselves, in such situations, instead of awarding capital punishment one can be awarded rigorous life imprisonment without any possibility of parole and no protection of adequate behaviour relief which is provided for in the prison manual. This entire procedure will not be harsh against society as well, and it will not be immoral as well.

Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.


[1] 1973 (1) SCC 20 [2] AIR 1979 SC917 [3] 1979 (3)SCC727 [4] AIR 1983 SC 957 [5] Report No. 262, the Death Penalty, Law Commission of India, 2015. [6] AIR 1978 SC 597, (1979) 4SCC 16 [7] M. Swathi K. Roja, A critical study on capital punishment in India, pp 12-19 [8] AIR 1950 SC 27 [9]AIR 1973 SC 947 Cr. LJ 370,1973 S.C. Cr.162 [10] K.D Guar, Criminal Law, 7th Edition, pg 383 [11] AIR 1979 SC 916 [12] AIR 1980 SC 898, (1980) 2 SCC 684 {The majority led by YV Chandrachud CJ and RS Sakaria and AC Gupta held that capital punishment is constitutional and the minority led By justice PN Bhagwati held that it is unconstitutional. } [13] AIR 1983 SC 957, (1983) 3 SCC 470 {A feud between 2 families has resulted in tragic consequences. 17 lives were lost (men, women and children) in the course of the series of five incidents which occurred in quick succession in five different villages, situated in the vicinity of each other in Punjab between 12 and 13 August 1977.} [14] AIR 1983 SC 473

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