Historical Background and Recent Development on Capital Punishment in India: Deep Analysis

As we all know that there has been lot of debate and discussion about provisions of capital punishment in India from decades. The main motive of this article is to give concept clarity on capital punishment. Let’s talk about it from very beginning i.e., from history of death penalty. Capital punishment is defined under section 354(5) of criminal code of procedure, 1973. In 1973, when CRPC was amended it was said that capital punishment should be awarded after giving “special reason” under section 354(3) and in Bachan Singh v. State of Punjab, May 1980[1]it was said that life imprisonment should be a norm and death penalty must be imposed in rarest of rare case. This significant change worked as a breakthrough in Indian judicial history. It was in Jagmohan Singh v. State of Uttar Pradesh 1972[2] when constitutional validity of death penalty was challenged on the grounds that capital punishment violates right to life and personal liberty Article 14 and Article 21of Indian Constitution but the court refuted the argument and said that procedure justifies and there is no violation of Article 21. After Jagmohan Singh case there was ambiguity about what constitute as special reasons. However, in Rajendra Prasad v. State of Uttar Pradesh 1979[3]Supreme Court discussed about ‘special reasons’ for sentencing death penalty on exceptional grounds. Even after that constitutional validity of death penalty was again challenged in Bachan Singh v. State of Punjab; May 1980however Supreme Court again affirmed the constitutional validity of death penalty and talked about doctrine of rare of rarest case or when other options were not foreclosed. There are numerous cases which we will discuss in the article itself from the very beginning.Recently, the Bench of the Supreme Court of India decided to examine the provisions regarding death penalty and unjust and unfair way by which judges’ award death penalty during trail.

Reason why this topic is important from present scenario is that we don’t have any exact data about number of prisoners in our jail which may face death penalty or persons who have executed in India. Due to lack of coordination, we don’t have accurate data. This fact speaks to larger concerns with data on the criminal justice system in India, when the country doesn’t even have the records of the number of people on whom it has imposed the highest punishment under law in India.


  • Section 354(3) of the Code of Criminal Procedure, 1973 states that “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”[4]
  • It is said that death penalty must be given in “rarest of rare case”[5] and when no alternate punishment can be given to the offender.
  • The most severe form of punishment awarded in this country, it is only awarded for the most heinous crimes against humanity.


Currently there are nearly 385 prisoners who are about to be executed for death penalty in India[6]. Last people who were executed for capital punishment in India were Akshay Thakur, Vinay Sharma, and Pawan Gupta at Tihar jail in Delhi under NIRBHAYA CASE. The concept of death penalty was dated back from 1898 where it is important for judges to give reason for awarding death penalty as punishment.In 1973, when the CrPC was amended further, life imprisonment became the norm and death penalty was to be imposed only in exceptional cases and required “special reasons”.


Since the beginning of the civilizations, the capital punishment was very common. The king can give capital punishment to anyone he wants and there is no one to question him. In the history, as capital punishment is very common not in India but in the world. Capital punishment is the death punishment and in the historical times there were different methods of capital or death punishment and most of those methods were horrible. On that time, the only reason behind giving the capital punishment is just to show the absolute power of the king.

The inception of Death Penalty can be traced back to the Code of King Hammurabi of Babylon, wherein death penalty was codified for 25 different crimes. Except in the 18th Century B.C, we can find instances in Draconian Code in Athens, where Capital Punishment was a compulsory procedure to be followed for all crimes committed.

Death Penalty was not a punishment awarded simply as a painless and dignified death but instead it seen as a means to serve punishment through brutal ways such as burning alive, drowning, beating to death, death, impalement etc. It was only in the Tenth Century A.D., that hanging was adopted as a customary method of execution in Britain. Another brutal means of awarding death penalty used was the electric chair.


The constitutional validity of the death penalty was challenged from time to time in numerous cases.

In Jagmohan Singh vs. State of Uttar Pradesh, the five judge bench of the Supreme Court, by a unanimous verdict, upheld the constitutional validity of death penalty. The punishment was not seen violative of Articles 14, 19 and 21. Here, the validity of death sentence was challenged on the ground that it was violative of Articles 19 and 21 because it did no procedure is provided. It was contended that the procedure prescribed under Cr. P.C. was confined only to findings of guilt and not awarding death sentence. The Supreme Court held that the option of death sentence, when exercised is in accordance with the procedure established by law.

Justice Krishna Iyer, in Rajendra Prasad vs. State of UP stressed upon the violative nature of articles 14, 19 and 21. He further set two conditions for imposing capital punishment, which were:

  • The special reason should be recorded for imposing death penalty in a case.
  • The death penalty must be imposed only in extraordinary circumstances.

The question was again considered in Bachan Singh vs. State of Punjab, The Supreme Court overruled its earlier decision of Rajendra Prasad case, with a 4-1 majority. It expressed the view that the punishment of death penalty for murder is not unreasonable and does not violate the articles 14, 19 and 21 of the Constitution of India. It was in this case where, the principle of awarding death penalty only in the ‘rarest of rare cases’ are propounded. Justice Bhagwati in his dissenting judgment observed that “death penalty is not only unconstitutional being violative of Articles 14 and 21 but also undesirable from several points of view.”

Further, The Supreme Court in Machhi Singh vs. State of Punjab laid down the broad outlines of the circumstances that may be considered as “rarest of rare cases deserving extreme penalty”. They are:

  1.  Manner of Commission of murder – When the murder is committed in an extremely brutal manner so as to arouse intense and extreme indignation in the community, for instance, when the house of the victim is set a flame to roast him alive, when the body is cut to pieces or the victim is subjected to inhuman torture.
  2. Motive – When the murder is committed for a motive which evinces depravity and meanness eg. a hired assassin, a cold blooded murder to inherit property, or gain control over property of a ward, or a murder committed for betrayal of the motherland.
  3. Anti-social or socially abhorrent nature of the crime – where a scheduled caste or minority community person is murdered in circumstances which arouse: social wrath; or bride burning for dowry, or for remarriage.
  4. Magnitude of the Crime – Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community or locality.
  5. Personality of victim of murder[7]


  • Retribution: The main reasoning behind the imposition of such a harsh punishment is because it is believed to be deserved. “An eye for an eye” is considered to be the approach here by the society as the penalty has to be paid by the wrongdoer. It is also a moral punishment in response to the crime as to ensure justice for the victims, their families, and/or society at large.
  • Procedure Established By Law: Article 21 of the Indian Constitution ensures the Fundamental Right to life and liberty for all persons which can only be taken away to procedure established by law. There is a legal aspect framework provided by the judiciary and hence by following the same, supporters find a legal justification for their arguments.
  • Deterrence: Deterrence is the most commonly expressed rationale for the death penalty. The essence of the theory is that “when there are executions, violent crime decreases”. It is perceived that the threat of being executed for committing a crime in the future is going to be considered a detriment by many to refrain from committing a heinous crime they otherwise would have committed, due to lack of fear of strict action.
  • Safety and Welfare the Citizens: India is the world’s largest democracy and hence relies on the state to ensure safety and security of the citizens. The government needs to act not just to provide but also to ensure the faith of the public in the legal system as the citizens need some hope and it is the State’s duty to ensure thee same. The Preamble of the Indian Constitution also refers to Social justice, sanother argument used by the supporters of capital punishment to defend the ground that state has the moral obligation to safeguard its citizens’ welfare and safety, which is facilitated by the .


  • Deflecting From Purpose of Punishment: Capital punishment does not rehabilitate prisoners, which is the very purpose of punishment. A human chanc to reflect upon your mistakes and improve is not given to the accussed.The accused is given punishment with the vision of making him capable of returning to society and function as a law abiding member of the community.
  • Immorality Associated With Retribution: People who oppose Capital punishment are of the view that retribution is immoral, and it is just a sanitized form of vengeance.
    • Further, the data from across the world could not conclusively prove that the death penalty does reduce the crime rate, especially rape.
      • Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold. This compels one to think whether the death penalty is an effective deterrent to crime or not.
  • Reciprocation of Cultural Violence: The ones who oppose death penalty argue that it reciprocates the existing cultural violence in society and does not offer a solution.
  • Blind Eye on Societal Failure: Hang till death only accounts for the ‘individual failure’ of the rapist and turns a blind eye on the ‘societal failures’.
    • People who oppose Capital punishment are of the view that through the political will of executing a rapist, the onus of making society safer for women is shifted upon individuals, and society is let free of its responsibilities.
      • According to the national figures, 74.1% of the prisoners sentenced to death in India are economically vulnerable according to their occupation and landholding and most death row prisoners belong to the lower strata of society.
  • Execution of the Innocent: One argument against capital punishment is the notion that mistakes or flaws in the justice system can lead to innocent people being killed.


In this debate on whether death penalty should be used as a punishment in India Legal system, the most important fact that focus should not only be on eliminating the criminal but also on elimination of the crime is highly undervalued and ignored. The purpose of punishment in criminal law is to achieve the goals of an orderly society and the main fact is to question whether the same is achieved through capital punishment.The answer to this question is an important one and hence the question itself deserves great importance. It is the debate and discussions to be held on the question of death penalty and the realization of the importance of the subject is what the current need of the hour is. The answer is of utter most importance and hence requires deliberation and in depth analysis of possibilities and find the best answer fitting the present socio-cultural conditions and respecting the legal authorities and morals of the past at the same time.

[1]AIR 1980 SC 898: 1982(1) SCALE 713: (1980) 2 SCC 684: (1983) 1 SCR 145

[2]1973 AIR 947, 1973 SCR (2) 541

[3]1979 AIR 916, 1979 SCR (3) 78

[4] Section 354(3) of the code of criminal procedure, 1973

[5] Bachan Singh v. state of Punjab

[6] Project 39a

[7] https://www.indianbarassociation.org/constitutionality-of-death-penalty/ accessed on 14th November 2022

Author: Ambika Chauhan

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