Death Penalty

death penalty

The Indian Penal Code, 1860 defines the offences and prescribes punishments for the offences. Chapter III of the Code deals with provisions related to punishments which are prescribed for various offences under the Code. Section 53 under Chapter III defines punishments. The provision includes death penalty as a punishment prescribed under the Code.

Death penalty- The rule of ‘rarest of rare cases’:

The punishments as prescribed under the Code are formulated by analysing various theories of punishments. In the case of Narotam Singh v. State of Punjab[i], the Supreme Court observed that the reformative approach to punishment should be the object of criminal law in order to promote rehabilitation without offending communal conscience and to secure social justice.

Therefore, the courts have stressed upon avoiding imposition of death penalty in many cases where there is scope for reformation of the convict. In the case of Bachan Singh v. State of Punjab[ii], the Supreme Court brought in the ‘rarest of rare cases’ formula for imposing death penalty.

The formulation of rarest of rare cases principle in imposing death penalty was further discussed by the Supreme Court in Macchi Singh v. State of Punjab[iii], where the court opined that the community is based on the foundation which always gives reverence to life. But that does not mean that in all cases the community supports death sentence in no case.  The Court upheld the rule of rarest of rare cases in the imposition of death sentence. Where the common conscience of the community is so shocked owing to the gravity of the crime committed, death penalty can be imposed to preserve the safety of the community.

Factors considered in awarding death penalty-

The Supreme Court in Macchi Singh’s Case[iv] further laid down five-fold factors to be considered while imposing death penalty-

Manner of commission of murder-

Death penalty is given in cases where the murder has been committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to shock the community conscience intensively. For instance-

a. Set aflame to the house of the victim to burn him or her alive in the house;

b. Victim being subjected to inhuman acts of torture so as to cause his or her death;

c. Cutting the body of the victim into pieces.

Motive of commission of murder-

The mental element involved in the commission of murder is considered while giving death penalty. If the motive is very intense and grave as to commit the murder like-

a. Committing a cold-blooded murder which was deliberately designed to inherit the property or to gain control over the property

b. Murder committed by a hired assassin for a reward

c. Murder committed to betray the motherland.

Nature of crime is anti-social-

This nature of the crime being anti-social means that the crime is committed to terrorize and frighten them to fleeing from a place or to surrender the benefits conferred upon them as a social justice measure. The crimes such as bride burning and dowry death of severe nature can be considered to understand this factor in more detail.

Magnitude of crime-

Crime is of enormous proportion like, killing all the members of the family or committing multiple murders.

Personality of victim of murder-

If the victim is an innocent child or a helpless woman or a public figure, then the case may be regarded as a rarest of rare case.

Principles to be applied in awarding death penalty-

In the case of Ramnaresh v. State of Chhattisgarh[v],the Supreme Court held that the court has to record special reasons for awarding death sentence. The court must examine the facts of each case in the light of enunciated principles. The factors as held in Macchi Singh’s Case[vi] must be considered by analysing the facts of every case on an individual basis.

The principles to be applied in awarding death penalty was divided into two categories by the Supreme Court in Ramnaresh’s Case[vii]as-

1. Aggravating circumstances

2. Mitigating circumstances.

It was observed that the courts should consider the cumulative effect of both the circumstances in order to decide on the sentencing policy. The court further, held that the court must adhere to the contents of the judgment as stated under Section 354(3) of the code of Criminal Procedure, 1973. The Court listed out the following principles to be followed in awarding death penalty-

1. Factors test should be applied to determine whether the case is a rarest of rare in nature.

2. The Court should be of the opinion that imprisonment in the case does not satisfy the ends of justice

3. Life imprisonment is the rule and death penalty is an exception

4. The option of sentencing to life imprisonment cannot be chosen if it is not cautiously exercised and necessary regard should be given to the nature of the crime

5. The method and manner of commission of crime should be such that the crime looks to be heinous.

The Court after considering these principles will draw a balancing conclusion between the aggravating and mitigating circumstances. This balancing approach also gives effect to the doctrine of proportionality which is vital in sentencing policy. This doctrine strikes balance between the nature of the crime and punishment prescribed. The Court thus not only examines what is just, but it also examines the impact of the judgment on the society at large to prevent the crimes in future.

Therefore, whenever the case falls in any of the exceptions to the rule of ‘rarest of rare cases’ the Court shall exercise its discretion in sentencing the convict to life imprisonment in place of death penalty.

Frequently Asked Questions

Can death penalty be held valid in the light of Article 21of the Constitution of India?

In Bachan Singh v. State of Punjab[viii], the Supreme Court upheld the validity of death penalty. It was held that awarding death penalty in rarest of rare cases is constitutionally valid and is not in violation of Article 21. Right to life and personal liberty under Article 21 of the Constitution is not an absolute right and it can be restricted by procedure established by law and provisions of the Indian Penal Code are considered as just, fair and reasonable restrictions.

Edited by Sakshi Agarwal

Approved & Published – Sakshi Raje


[i] AIR 1978 SC 1542

[ii] AIR 1980 SC 898

[iii] AIR 1983 SC 957

[iv] ibid

[v] AIR 2012 SC 1357

[vi] AIR 1983 SC 957

[vii] AIR 2012 SC 1357

[viii] AIR 1980 SC 898