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Death penalty or capital punishment is the legal process by which a person is punished by

death as punishment for a crime committed.

Constitutional Validity of capital punishment under Article 21

The main issue that any person sentenced to death would most certainly raise in their defence
is that the decree for capital punishment in the instant case violates the Article 21 of the
Indian Constitution. The constitutional validity of Capital punishment is in question for a
long time.
In India Article 21 of the Constitution titled Protection of life and personal liberty says:
No person shall be deprived of his life or personal liberty except as according to procedure
established by law.

The state ensures the protection of life and liberty of all except under special
circumstances where it has the authority no to do the same according to the procedure

established by law.
The state may take away or abridge Right to life in the name of law and public order
according to provisions of law, but this process must be due process as held in
Mankea Gandhi v. Union of India.1

1 AIR 1978 SC 597.

Precedent cases:-

These are a few landmark cases which challenged the constitutional validity of capital
1. Jagmohan Singh v. State of U.P2 was one of the first cases to question the
validity of the decree of capital punishment. In this case it was contended that3:-

Firstly that execution takes away all the fundamental rights guaranteed under Clauses
(a) to (g) of Sub-clause (1) of Article 19.

Discretion invested in the Judges to impose capital punishment is not based on any
standards or policy required by the Legislature for imposing capital punishment in
preference to imprisonment for life

The uncontrolled and unguided discretion in the Judges to impose capital punishment
or imprisonment for life is hit by Article 14 of the Constitution because two persons
found guilty of murder on similar facts are liable to be treated differently one
forfeiting his life and the other suffering merely a sentence of life imprisonment

Lastly it was contended that the provisions of the law do not provide a procedure for
trial of factors and circumstances crucial for making the choice between the capital
penalty and imprisonment for life. The trial under the Criminal Procedure Code is
limited to the question of guilt. In the absence of any procedure established by law in
the matter of sentence, the protection given by Article 21 of the Constitution was
violated and hence for that reason also the sentence of death is unconstitutional.

The five judge bench held that it was not in violation of Article 14 and Article 21 citing that
there was no merit in the arguments made by the party. The five judge bench upheld the
constitutionality of death penalty and held that deprivation of life is constitutionally
2 AIR 1973 SC 947.
3 http://www.lawctopus.com/academike/death-penalty-an-overview-of-indiancases/

permissible for being recognised as a permissible punishment by the drafters of our

Constitution. In the result, the appeal fails and is dismissed by the Apex court.

2. In Bachan Singh v. State of Punjab4 the Supreme Court by 4:1 majority held that death
sentence under section 302 IPC does not violate article 21. The International Covenant on
Civil and Political Rights, to which India has become a party in the year 1979, does not
abolish imposition of death penalty wholly. But it must be reasonably imposed and not
arbitrary; it should be imposed in most serious crimes. In this case the Court held that5
Judges should not be blood thirsty. A real and abiding concern for the dignity of

human life postulates resistance to taking a life through laws instrumentality. That
ought not to be done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed.

4 AIR 1980 SC 898.

5 Death sentence and criminal justice in human rights perspective, I.G.Ahmad.

35th law commission report:-

35th Report in 1967 also had similar views with regard to Capital punishment. After
examining material facts and evidence it reached to a conclusion that6:-

The issue of abolition or retention has to be decided on a balancing of the

various arguments for and against retention. No single argument for abolition or retention can
decide the issue. In arriving at any conclusion on the subject, the need for protecting society
in general and individual human beings must be borne in mind.

It is difficult to rule out the validity of the strength behind many of the arguments for
abolition nor does the Commission treat lightly the argument based on the irrevocability of
the sentence of death, the need for a modern approach, the severity of capital punishment and
the strong feeling shown by certain sections of public opinion in stressing deeper questions of
human values.

Having regard, however, to the conditions in India, to the variety of the social upbringing of
its inhabitants, to the disparity in the level of morality and education in the country, to the
vastness of its area, to diversity of its population and to the paramount need for maintaining
law and order in the country at the present juncture, India cannot risk the experiment of
abolition of capital punishment

6 http://www.lawctopus.com/academike/death-penalty-an-overview-of-indiancases/


The State can do away with the life and liberty of a person if the following conditions are

1. There must be a law.

2. There must exist procedure prescribed by law which is just, fair, and reasonable.

The criminal procedure code is the legislation on which the judiciary relies on for
administration of criminal law in India. It acts as a tool providing rules and regulations for the
investigation of crime, apprehension of criminal, collection of evidence, determination of
guilt and administration of punishment of the guilty.
In Jagmohan singh v. State of U.P7the Supreme Court held that the choice of awarding death
penalty is done in accordance with law and the judge makes the choice between capital
punishment and life imprisonment based on the circumstances, facts and nature of the crime.
With the Judicial precedents presented along with the material facts, it is humbly submitted
before this Honble that the decree of capital punishment is not in violation of Article 14 and
Article 21 of The Indian Constitution.

7 AIR 1973 SC 40.