Constitutionality of the Death Penalty in India:

Jagmohan to Bachan Singh1, this is the first case which was challenged the constitutionality
of the death penalty in India came in the year 1973 case of Jagmohan Singh v. State of U.P. the
Petitioner argued that the death penalty violated Article 14, 19 and 21 of the Constitution of
India. It was argued that since the death sentence extinguishes, along with life, all the freedom
guaranteed under Article 19(1) (a) to (g), it was an unreasonable denial of these freedoms and
not in the interests of the public. Further, the Petitioners argued that the discretion vested in
judges in deciding to impose death sentence was uncontrolled and unguided and violated
Article 14. Finally, it was contended because the provisions of the law did not provide a
procedure for the considerations of circumstances crucial for making the choice between
capital punishment and imprisonment for life, it violated Article 21. The decision of the US
Supreme Court in Furman v. Georgia in which the death penalty was declared to be
unconstitutional as being cruel and unusual punishment was also placed before the Constitution
Bench.
This case was decided before the CrPC was re-enacted in 1973, making the death penalty an
exceptional sentence. In Jagmohan, the Supreme Court found that the death penalty was a
permissible punishment, and did not violate the Constitution. The Court held that:
The impossibility of laying down standards is at the very core of the criminal law as
administered in India, which invests the Judges with a very wide discretion in the matter of
fixing the degree of punishment. That discretion in the matter sentences as already pointed out,
is liable to be corrected by superior courts The exercise of judicial discretion on well-
recognised principles is, in the final analysis, the safest possible safeguard for the accused.2
The Court also held that if the law has given to the judge a wide discretion in the matter of
sentence to be exercised by him after balancing all the aggravating and mitigating
circumstances of the crime, it will be impossible to say that there would be at all any
discrimination, since facts and circumstances of one case can hardly be the same as the facts
and circumstances of another3.
In the year 1973, just before the CrPC of 1973 in the case Ediga Anamma v. State of Andhra
Pradesh, the Supreme Court upheld that appellants conviction. While considering the
punishment awarded, the Court stated that at the sentencing stage, emphasis should be placed
on the crime as well as the criminal. In order to balance the reformatory component of
punishment with its deterrent element, the Court considered that it was important to examine
the social and personal factors concerning the convict while deciding the sentence4.
The laws changes were, in the view of the court, expressive of a tendency towards cautious,
partial abolition and a retreat from total retention.5 In a statement that reflects concerns that
has acquired a resonance, the court 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,

1
(1973) 1 SCC 20
2
Jagmohan Singh v. State of U.P. (1973) 1 SCC 20, at Para 26
3
Ibid Para 27
4
Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443, at Para 14
5
Ibid Para 21
abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend
against the extreme and irrevocable penalty of putting out life. 6
In the case Rajendra Prasad v. State of Uttar Pradesh7, Justice Krisha Iyer empathetically
stressed that death penalty is violative of article 14, 19 and 21. He further said Special Reasons
warranting the imposition of death penalty under Section 354(3) of the Code of Criminal
Procedure, 1973 (CrPC) would exist only if the accused was an irredeemable murderer
and was a threat to the survival of the state and society. The Court ruled that that manner of
commission of crime was immaterial while determining the sentence and capital punishment
could be awarded only if the murderous appetite of the prisoner would pose a grave threat to
the prison, locality or the society, if the prisoner was not executed. Further, it was observed
that the nature of the crime should not be considered for its barbarity but to find evidence of
incurable violent depravity. Finally, the Court held that Special Reasons meriting extreme
punishment must relate to the criminal and not the crime8.
In 1980, in the Bachan Singh case, the Supreme Court propounded the rarest of rare
doctrine and since then, life sentence is the rule and the death sentence the exception. This
judgement was in line with the previous verdicts in Jagmohan Singh vs. State of Uttar
Pradesh (1973), and then in Rajendra Prasad vs. State of Uttar Pradesh (1979). There is
no statutory definition of rarest of rare. It depends upon facts and circumstances of
particular case, brutality of the crime, conduct of the offender, previous history of his
involvement in crime, chances of reforming and integrating him into the society etc.
the expression special reasons in the context of this provision, obviously means exceptional
reasons found on the exceptionally grave circumstances of the particular case relating to the
crime as well as the criminal.9
It added:
it cannot be over-emphasised that the scope and concept of mitigating factors in the area of
death penalty must receive a liberal and expansive construction by the courts in accord with
the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty.
Hanging of murderers has never been too good for them. Facts and figures albeit incomplete,
furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty
with extreme infrequency - a fact which attests to the caution and compassion which they have
always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is,
therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines
indicated by us, will discharge the onerous function with evermore scrupulous care and humane
concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that
for persons convicted of murder, life imprisonment is the rule and death sentence an exception.
A real and abiding concern for the dignity of human life postulates resistance to taking a
life through law's instrumentality. That ought not to be done save in the rarest of rare
cases when the alternative option is unquestionably foreclosed.10

6
Ibid Para 26
7
(1979) 3 SCC 646
8
Ibid Para 88
9
Bachan Singh v. State of Punjab, (1980) 2 SCC 684, at para 161
10
Ibid Para 209
Justice Bhagwati in his dissenting opinion found the death penalty necessarily arbitrary,
discriminatory and capricious. He reasoned that the death penalty in its actual operation is
discriminatory, for it strikes mostly against the poor and deprived sections of the community
and the rich and the affluent usually escape, from its clutches. This circumstance also adds to
the arbitrary and capricious nature of the death penalty and renders it unconstitutional as being
violative of Articles 14 and 2111.
In the case T.V.Vatheeswaram v. State of Tamil Nadu12, the Supreme Court faced with the
question of delay in execution of the death sentence. The court for the first time gave an
appropriate guidance holding that, a delay exceeding two years in the execution of a sentence
of death should be considered sufficient to entitle the person under sentence of death to invoke
Article 21 and demand the quashing of the sentence of death. However, this case was over
ruled subsequently by a bench comprising of Justice Chandrachud, Y.V. (CJ), Justice
Tulzapurkar V.D. and Justice Varadarajan, The bench observed that while observing that
no absolute or unqualified rule can be laid down and in every case in which there is a long
delay in the execution of a death sentence, the sentence must be substituted by the
condemnation of life imprisonment. There are several other factors which must be taken into
account while considering the question as to whether the death sentence should be vacated 13.
This view was further augmented in the case of Smt. Triveniben & Ors v. State of Gujarat
& Ors14 , where the bench specified that the court may consider the question of inordinate
delay in the light of all circumstances of the case to decide whether the execution of sentence
should be carried out or should be altered into imprisonment for life. No fixed period of delay
could be held to make the sentence of death in-executable.
The ruling of Trivenbin case was persuading the Supreme Court for a long time until recent
past. In Bhullars case15 , the Supreme Court had concluded that those sentenced to death for
terrorist offences could not invoke the argument about inordinate delay in disposing of mercy
petitions due to the nature of crimes . This differentiation formulated by the court in Bhullars
case was over ruled subsequently in the recent case of Shatrugan Chauhan & Anr v. Union
of India&Ors16 . In this case, it was held that, the distinction drawn between Indian Penal
Code (IPC) and non IPC offences drawn in Bhullars case is invalid and furthermore, the court
opined that, if there is any delay in executing the death penalty, then the court would have the
power to commute the death penalty into life imprisonment. Following the Chauhan case, the
Supreme Court within one month has delivered a very controversial judgment in the case of
Murugan v. Union of India&Ors17 , wherein the court took the Chauhans case as the
precedent and has held that the assassinators of the former Prime Minister Rajiv Gandhi would
also have their sentences reduced from death sentence to life imprisonment due to delay in the
executions. This has created a lot of hue and cry from different groups in India and many have
questioned the Supreme Courts judgment. In all the cases that were discussed, the parties did
not challenge the final verdict of the court in awarding death sentence, but they had each filed
a petition due to the delay in carrying out the execution and how this delay was a valid reason

11
Ibid Para 81, Justice Bhagwati dissenting opinion
12
(1983) 2 SCC 68
13
Sher Singh v. State of Punjab 1983 AIR 465
14
1989 AIR 1335
15
Devender Pal Singh Bhullar vs State Of N.C.T. Of Delhi (2003) 6 SCC 195
16
MANU/SC/0043/2014
17
MANU/SC/0104/2014
to commute the death sentence. This decision has caused a heated political row especially with
Tamil Nadu Governments decision to release the assassinators. There is a wide spread debate
at this moment, regarding the pros and cons of considering delay as a valid ground for
commutation. The various aspects that are considered for this debate are summarized further
on.
Dhananjoy Chatterjee18 was executed in 2004, after a period of about 7 years since the last
execution. The previous recorded execution had been in 1997. After 2004, India had an
unofficial moratorium in executions for eight years, until Ajmal Kasab19 was executed in
November 2012. Two executions have happened since: Afzal Guru was executed in February
2013, and Yakub Memon was executed in July 2015.

18
(2004) 9 SCC 751
19
(2012) 9 SCC 1