PENALTY

THE DEATH PENALTY IN INDIA:
DOWN A SLIPPERY SLOPE
Usha Ramanathan 1
The death sentence has generated a great deal of agonized deliberation
over the decades. It has been in the Indian Penal Code since 1860 and
the Criminal Procedure Code since 1898. India’s Constitution, promulgated
in 1950, provided for the continuance of “all the law in force
in the territory of India immediately before the commencement of
this Constitution … until altered or repealed or amended” and “subject
to the other provisions of this Constitution” (Article 372). Article 21
of the Constitution reads: “No person shall be deprived of his life or
personal liberty except according to procedure established by law.”
This has been understood to mean that not only personal liberty, but life
itself, may be taken so long as it is “according to procedure established by
law.” This article in the Constitution does not establish the limits within
which this power over life and death is to be exercised; the challenge to it
has thus focused on judicial discretion, arbitrariness, delay, the method of
execution and how the president is to exercise clemency powers.
From 1950 to the early 1970s, Parliament concerned itself with taming
the death penalty. In the early 1960s, abolition of the death sentence
was raised in Parliament and sent to the Law Commission to be deliberated
upon. Since then, the Supreme Court has addressed it, in part
because of abolitionist judges on the bench who argued that the death
sentence was unconstitutional, and partly because of the vagaries that
judicial discretion in sentencing brought with it. 2 And since the 1980s,
Parliament has altered its position, introducing the death sentence in the
Terrorism and Disruptive Activities (Prevention) Act 1985, the Narcotics
and Psychotropic Substances Act 1985 and its amendment in 1988,
section 364-A of the Indian Penal Code, which made kidnapping for
1 Usha Ramanathan is an independent law researcher working on the jurisprudence of law,
poverty and rights.
2 Jagmohan Singh v. State of Uttar Pradesh judgment dated 3 October 1972, reported in AIR 1973
SC 947, which was a decision of a bench of five judges, Rajendra Prasad v. State of Uttar Pradesh
judgment dated 9 February 1979, reported in AIR 1979 SC 916, and Dalbir Singh v. State of Punjab,
with differing opinions by two judges on the death sentence in judgment dated 4 May 1979,
reported in AIR 1979 SC 1384, illustrate the turmoil in the court on the issue of the death penalty.
ransom punishable by death by amendment in 1993, the Prevention of
Terrorism Act 2002, and the Unlawful Activities (Prevention) Act 1967
as amended in 2004 for “commission of a terrorist act . . . if such act has
resulted in the death of any person.” 3 State legislatures have passed laws,
such as the Maharashtra Control of Organised Crime Act 1999, that
prescribe the death penalty where death results during the commission
of organized crime. 4
Until 1955, where an offence in the Penal Code was punishable by
either death or life imprisonment, the death sentence was the rule, and
a court imposing the lesser sentence was required, under Section 367
of the Criminal Procedure Code 1898, to set out “special reasons” for
that sentence. That requirement was repealed by Parliament in 1955.
A debate in Parliament in 1962 on abolition of the death sentence
led to the question being referred to the Law Commission for consideration.
The Law Commission concluded in 1967 that India was
not ready for abolition. 5 Addressing the question of whether a court
should be required to explain its choice between the death penalty
and any alternate punishment, the Commission said: “The adoption
of either alternative would mean, or be construed as meaning, a legislative
determination that the sentence for which reasons are to be
given is to be the exception, and the other sentence is to be the rule,”
and that the court should be required “to state its reasons, wherever it
awards either of the two sentences in a capital case.” A later report on
3 The Terrorism and Disruptive Activities (Prevention) Act lapsed in 1995, but cases registered
under the Act continued to trial and judgment and sentence. There are still prisoners on death
row under sentence of death convicted under this Act. The kidnapping provision was challenged
in the Supreme Court and referred to a larger bench of three judges in Vikram Singh v.
Union of India in judgment dated 2 July 2013, available from http://judis.nic.in/supremecourt/
imgs1.aspx?filename=40503. The matter is pending in the Supreme Court. Section 364A prescribes
that the court may impose the death penalty on a convict even where no death or hurt
was caused. Allegations of abuse of the provisions of Prevention of Terrorism Act resulted in the
law falling into political disrepute and being repealed by Parliament in 2004.
4 Section 3, Maharashtra Control of Organised Crime Act 1999. See also, section 3 of the Andhra
Pradesh Control of Organised Crime Act, 2001, and section 3 of the Arunachal Pradesh Control
of Organised Crime Act, 2002.
5 The Law Commission of India has periodically revisited the death sentence, in 1967 in its 35th
Report (Capital Punishment), available from http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf;
in 1997 in its 156th Report on the Indian Penal Code, volume I, chapter
III, “Death penalty”, pp. 42-61, available from http://lawcommissionofindia.nic.in/101-169/
Report156Vol1.pdf; in 2003 in its 187th Report on Mode of Execution of Death Sentence and
Incidental Matters, available from http://lawcommissionofindia.nic.in/reports/187th%20report.
pdf. In May 2014, the Law Commission issued a Consultation Paper on Capital Punishment as
a prelude to a research project on the death penalty.
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