Saturday, 29 January 2022


                              DEATH PENALTY IN INDIA 


720 prisoners have been executed in India since 1947. In independent India, the assassins of Mahatma Gandhi Nathuram Godse and Narain D Apte were the first to be hanged to death (the two were hanged in Ambala Central jail in Haryana on November, 1949). The latest execution in India was on March 20, 2020 the four convicts of the Nirbaya gang rape case. In 1980, the Supreme Court said that death penalty should only be rewarded only in rarest of rare cases. In India the execution can be given by two ways, hanging by the neck until death and by being shot to death. Death by shooting is executed under the Army Act, Navy Act and Air Force Act. Death penalty is one of the punishment prescribed under section 53 of IPC. Death sentence is given in serious and heinous offences. 


1)Jagmohan Singh vs. State of UP (1973) – it is the first case where the constitutionality of death penalty was challenged on the ground of violation of Article 14, 19 and 21 of the constitution. In this case a five judged bench of the supreme court upheld the constitutional validity of death penalty and also held that capital punishment is not violative of Article 14, 19 and 21 of the constitution.

2)Bachan Singh vs. State of Punjab(1980) – in this case again the constitutionality of death penalty was challenged, but  this time it is under two specific grounds, the first one is that death penalty as a punishment for murder under section 302 of IPC was challenged and the second one is the procedure of sentencing death penalty. In this case the court upheld he decision which is given in Jagmohan Singh case. In this case court made a new doctrine that is doctrine of rarest of rare, the supreme court held that the death penalty only be constitutional when it is applied to exceptional penalty in the rarest of rare cases.

3)Macchi Singh vs. State of Punjab(1983) – this case strengthen the doctrine of rarest of rare and also in this case main three points are given to better understanding ,they are:

(i) To avoid death penalty court have to take care of two consideration, they are the factor of culpability (gravity and circumstances of the offence) and the circumstances of the offenders (socio-economic circumstances and other circumstances of the offender). 

(ii) Life imprisonment is the rule and Death punishment is an exception. Death penalty should only be given in exceptional case.

(iii) Court has to prepare a balance sheet of aggravating and mitigating circumstances. Only when aggravating circumstances outweigh the mitigating circumstances only then death penalty can be awarded.

4) Mithu Singh vs. State of Punjab – in this case section 303 of the IPC was declared unconstitutional. S.303 of the IPC was struck down as violative of Article 21 and 14 of the Constitution of India, as the offence under the section was punishable only with capital punishment and did not give the judiciary the power to exercise its discretion and thus result in an unfair, unjust and unreasonable procedure depriving a person of his life.


If one person is awarded death penalty he also have many remedies available, they are if the death penalty is given in lower court then they can approach the High Court(under section 366(1) of crpc), then also the court held the decision of lower court correct then they can give appeal in the supreme court, then also it is rejected then they can give review petition( if there is any new evidence), then also it rejected then they can file curative petition, the last hope will be the mercy petition( according to Article 72 for the  president and Article 161 of the constitution for state governor give the power of mercy petition). In Shabnam vs. Union of India, shabnam is awarded death penalty (she and his boyfriend killed her entire family), the mercy petition was filed to the president but it was rejected.


Asha Sebastian.


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