By Swarnalee Halder, Calcutta University, Department of Law.

Yakub Memon’s execution has reignited debate on death penalty in India. There has been a huge debate around the world over the use of death penalty; whether it should exist or not. Every man has a right to live. Article 21 of the Indian constitution provides to its citizens ‘protection of life and personal liberty’.

Efforts to Abolish Death Penalty

Legislative attempts to abolish the death penalty in India have failed. Before Independence, a private Bill was introduced in the 1931 Legislative Assembly to abolish the death penalty for penal code offences. The British Home Secretary at the time however rejected the motion. . The Law Commission in its Report presented to the Government in 1967 and to the Lok Sabha in 1971 concluded that the death penalty should be retained and that the executive (President) should continue to possess powers of mercy. The Government of independent India rejected a similar Bill introduced in the first Lok Sabha. Efforts were also made in Rajya Sabha to move resolution for abolition of death sentence in 1958 and 1962, but were withdrawn after some debate. The issue regarding the constitutionality of hanging as a mode of execution came up before the Supreme Court in Deena v. Union of India[1], though the Court asserted that it was a judicial function to probe into the reasonableness of a mode of punishment, it refused to hold the mode of hanging as being violative of Article 21 of the Constitution. In 2012, 14 eminent former Judges wrote to President Pranab Mukherjee detailing 13 cases in which the death penalty had been wrongly awarded. Two of the people in these cases had already been executed. However, India continues to add criminal sections that attract the death penalty. Most recently, the 2013 Criminal Law Amendment to India’s rape laws introduced death for aggravated rape[2]



Perhaps the most important goal of a criminal justice system is to impose just punishment. A punishment is just if it recognizes the seriousness of the crime. “Let the punishment fit the crime” is a generally accepted and sound precept.

The statistics, which talks of absence of any relationship between death penalty and occurrence of crime, cannot be straightway trusted for such an important policy decision as that of death penalty. The statistics derived from a quantitative method may not be an appropriate method to judge the basic truth about the qualitative aspects of those results[3]. Supporters of capital punishment argued that the threat of execution was a unique deterrent. Death penalty supporters contended that capital punishment self-evidently prevents more crime because death is so much more feared than mere restrictions on one’s liberty.

Capital punishment also serves to effectively prevent murderers from killing again. Even though Saddam Hussein was captured and tried via an Iraqi Tribunal in 2005, he still remained a threat; one of his Tribunal Judges was assassinated before the trial even began[4]. Some criminals are truly above the law, in that their influence can reach the outside world even if they are behind bars. With murder being the worst of all offenses, the victim is far from the only one to suffer. A victim’s family is obligated to attain justice for the victim

Constitutional Validity

A unique facet of the modern debate about capital punishment is the characterization of the death penalty as a human rights issue, rather than a debate about the proper punishment of criminals. In the case of Jagmohan V/s State of U.P[5] , the question of

Constitutional validity of death punishment was challenged before the S.C; it was argued that the right to live was basic to freedom guaranteed under Article 19 of the Constitution. The S.C. rejected the contention and held that death sentence cannot be regarded as unreasonable per se or not in the public interest, and hence could not be said to be violative of Article 19 of the Constitution. It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable, and hence not violative of Articles 14, 19 and 21 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases’[6].

Basis for awarding death sentence

The Supreme Court has given some guidelines on deciding whether a case falls under a category of rarest of rare cases. In Machhi Singh vs. State of Punjab[7], the Court laid down: – “In order to apply these guidelines inter-alia the following questions maybe asked and answered:
(a).Is there something uncommon about the crime, which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b). Are there circumstances of the crime such that there is no alternative but to impose death sentence, even after according maximum weightage to the mitigating circumstances which speak in favor of the offender?.

 One of the very important principles is regarding aggravating and mitigating circumstances. It has been the view of the Courts that while deciding the question of sentence, a balance sheet of aggravating and mitigating circumstances in that particular case has to be drawn.

Full weightage should be given to the mitigating circumstances and even after that if the Court feels that justice will not be done if any punishment less than the death sentence is awarded, then and then only death sentence should be imposed on offenders.

Risks Involved

Sometimes the claim is made that the possibility of executing an innocent person requires the abolition of the death penalty. Indeed, when one person, is hanged, there is no return. The Judiciary, after all, consists of human beings. There are some Judges who are more prone to handing out death sentences than others, there is no uniformity in factors that lead to a sentence being commuted and there is a real fear that innocent people may be hanged. There is no way to explain why a particular case invites the death sentence, and another doesn’t, or why a sentence is commuted and another is not. A sentence of death or life imprisonment, can vary from Judge to Judge, or bench to bench, was highlighted in a new study of 48 Supreme Court Judgment on the death penalty[8].

Justice K.T.Thomas stated “We need to relook at the rarest of rare cases of rare doctrine as laid down in Bachan Singh Judgment. Judges look at what they think is the rarest of rare cases. So the death penalty becomes judge-centric[9].


However, the death penalty is vital to carrying out the mission of the criminal justice system. It is just punishment for the deliberate taking of innocent human life. It prevents some murders through its deterrent effect and prevents other murders by permanently incapacitating the most dangerous killers. On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi, the Indian Government passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a “persistent vegetative state”[10].

Maybe the noose is often tightened around a neck that doesn’t deserve it but many were untouched like in the case of – Aruna Ramchandra Shanbaug vs Union Of India[11], Sushil Sharma v State of Delhi[12].

Executing a convict may not bring back a person who is already dead, but by doing so, future acts may be prevented. There can be no end to this debate but carrying out that debate is part of an ongoing struggle to secure our democracy.

[1] [1993] 4 SCC 645.

[2] Criminal Law (Amendment) Act, 2013

[3]Capital Punishment: Revisiting the Abolition-Retention debate.

[4] The Trial of Saddam Hussein & Death at the Hands of Human.

[5] 1973 AIR 947, 1973 SCR (2) 541


[7] 1983 AIR 957, 1983 SCR (3) 413.

[8] The Asian centre for Human Rights.

[9] The Telegraph editorial “You were wrong, My Lords”.

[10] DEATH PENALTY: CONTEMPORARY ISSUES [Indian National Bar Association] – Somya Deshwal.

[11] (2011) 4 SCC 454.

[12] 1996 CriLJ 3944(Delhi High Court), CRIMINAL APPEAL NO.693 OF 2007 (Supreme Court of India).


  • Consultation Paper on Modes of Execution of Death Sentence and Incidental Matters” Published by 35th Law Commission of India
  • The Telegraph ( Kolkata)