Constitutional Validity Of Death Penalty In India
In the words of Salmon law may be defined as ' the body of principles
recognized and applied by the state in the administration of justice.' That
means, to deliver justice to people law becomes a necessary part of the
structure of a nation. According to the theory of justice which came into being
in 1971 by an American political philosopher and moral, John Rawls, justice is
defined as fairness. But to maintain this fairness, sometimes the law enforcers
or the people who are to administer justice have to award some harsh sanctions.
One of such sanctions is capital punishment or death penalty.
When we look at this word separately, 'capital' comes from a Latin word
'capitalis' which means 'relating to the head'; Its first known traces can be
traced back in the early middle English. And punishment has roman backing which
more or less talks about sanctions. In the early times, it was believed that
giving punishment was 'doing god's work' and committing crime was synonymous to
Capital punishment, thus, is a punitive measure of awarding death to the convict
of a heinous crime, taken by the state as a retribution of the crime. In India,
This generally involves hanging or shooting by the fire squad till the convict
dies. But does that mean every convict of a heinous crime will be awarded death
Absolutely not. In this regard, the international law does not support capital
punishment. Article 5 of the universal declaration of human rights 1948 states
that no one shall be subjected to torture or to cruel, degrading or inhumane
treatment or punishment, Article 7 of the international covenant on civil and
political rights (ICCPR) 1966 provides for the same thing. Also, Almost all the
European nations felt that capital punishment is an inhumane and cruel way of
That is why, for the protection of convicts who are being awarded capital
punishment, resolution no. 50 of economic and social council provided that the
countries who are still practicing this punishment should award this only in
case of extremely serious offences. India, being one of such nations, practice
this punishment only in 'rarest of rare cases'.
In this regard, the doctrine of rarest of rare case evolved in 'Macchi Singh
and Others v/s State Of Punjab' which resulted in setting a legal precedent
for the application of death penalty, following the judicial precedent as laid
down in 'bachan singh vs state of Punjab' where the death penalty was awarded as
the correctional retribution in cases of extreme culpableness.
Constitutional validity:Now, if we look at the constitutionality of this punishment, the stances are
diversified. some people who believe in the reformative theory believe 'we
cannot cure by killing'. They believe that it gives the arbitrariness in the
hands of judiciary because with the vast scope of 'rarest of rare' doctrine,
courts can award this punishment on their discretion which will be violative of
Article 14 of the constitution of india by reason that similar offences might be
settled with life imprisonment in other cases.
It is also violative of article 245 of the indian constitution since it gives
extra and disproportionate delegation of legislative power to the judiciary as
the matter of punishment is left open-ended to the legislative only and no
criteria has been set for the judiciary to make such classification, but on the
other hand there are many supporters of death penalty as well.
These people are the believers of preventive theory and support the idea of
impairing the criminal before the crime is committed by him again and thus the
judiciary has spared this punishment for extraordinary infringement of law.
The basic idea behind this is to act as a deterrent in case of inhumane and
heinous crime and also to instill some fear in the minds of those who happen to
be insensitive to the humanity and law. Supporting this argument justice J Anand
and Justice NP Singh in one of the judgements, even stated:
"Imposition of appropriate punishment is the way by which one can respond to
society's cry for justice against the criminals. Justice asks for imposing
punishment and befitting crime, so, that it can contemplate hatred of the
In a nation as democratic as India, the welfare and safety of the people is of
paramount value but being a signatory of Universal declaration of human rights,
India has to maintain her civility as well. For this, she settled for using this
kind of harsh punishment in cases of extraordinary infringements of law only, or
in 'rarest of rare' cases.
Capital punishment is extremely harsh and degrading punishment in the eyes of
the world but even after that India maintains its stance on practicing it in
rarest of the rare cases so as to make sure that we are maintaining law and
order in the society by awarding proportionate punishment for the crime
committed. India also complies with ICCPR rules and thus saves itself from
infringing human rights.
In the end I'd just say that In my view, the prevalence of capital punishment in
india is valid and appropriate for I believe that the innocents should get
justice In crimes against humanity because if that will not be done, the entire
concept of justice will fail.
Written By: Samridhi Srivastava (LLB 2nd year, BBD University,
Law Article in India
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