PENALTY

ecommendations for revising the Code of Criminal Procedure 1898
reiterated this point. 6
Parliament was more categorical. The revamped Code of Criminal
Procedure 1973 read: “When the conviction is for an offence
punishable with death or, in the alternative, with imprisonment for
life or imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case of sentence
of death, the special reasons for such sentence” (Section 354).
Parliament had decided that the death sentence would be the exception.
A requirement was introduced at the same time that an accused,
upon conviction, must be heard before sentencing (Section 235).
CHALLENGES TO THE DEATH PENALTY
The court has been confronted with questions about the constitutionality
of the death penalty since the early 1970s. In 1972, when the death
penalty was challenged as unconstitutional, the court responded with
caution about its role in deciding these matters, and about the sentence
itself. It held that the Code of Criminal Procedure 1898 prescribed the
procedures to be followed in trial and punishment, that so long as these
had not been shown to be invalid, they were valid. 7
This formalistic approach to the death sentence changed in the late
1970s. The weight of imposing a sentence of death rests on courts,
and the deep discomfort with the existence and exercise of judicial
discretion in matters of life and death has found expression in the
judgments of courts through the years. 8
6 Law Commission of India, 35th Report (Capital Punishment), pp. 254-255, paragraphs 821 and
822; Law Commission of India, 41st Report (The Code of Criminal Procedure, 1898) (1969)
volume I, p. 232, paragraph 26.10, available from http://lawcommissionofindia.nic.in/1-50/Report41.pdf.
7 Jagmohan Singh v. State of Uttar Pradesh in judgment dated 3 October 1972, reported in AIR
1973 SC 947.
8 See, for instance, Rajendra Prasad v. State of Uttar Pradesh judgment dated 9 February 1979,
reported in (1979) 3 SCC 646; Ediga Anamma v. State of Andhra Pradesh in judgment dated 11
February 1974, reported in (1974) 4 SCC 443; Dalbir Singh v. State of Punjab judgment dated
4 May 1979, reported in (1977) 3 SCC 745, where the majority of two judges expressed their
opposition to the death penalty while the dissenting judge said that abolition was the task of Parliament
and not of the courts. Bachan Singh v. State of Punjab, reported in (1980) 1 SCC 754, was
referred on the same day, 4 May 1979, to a larger bench prompted by differences between two judges
on the bench (which was of three judges) on whether Rajendra Prasad v. State of Uttar Pradesh,
which held that “special reasons” for imposing the death sentence must relate not only to the crime
but also to the criminal, was good law.
In 1980, a Constitution Bench of five judges of the Supreme Court
debated the constitutionality of the death penalty. 9 Their decision
constitutes a landmark in the development of the law on the death
penalty in India. Four of the five judges were unwilling to hold that
the death penalty was unconstitutional. But at the same time, they
adopted the “rarest of rare” standard. “A real and abiding concern
for the dignity of human life postulates resistance to taking a life
through law’s instrumentality,” the court said. “That ought not to be
done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed.” The court was open to applying the test
of “aggravating” and “mitigating” circumstances when deciding on a
sentence, so far as that did not become a fetter on judicial discretion.
It also ruled that in “making the choice of punishment or for ascertaining
the existence or absence of ‘special reasons’ in that context,
the Court must pay due regard both to the crime and the criminal.” 10
The dissenting judge, Justice Bhagwati, held that “insofar as [the law]
provides for imposition of death penalty as an alternative to life sentence
it is ultra vires and void as being violative of Articles 14 and 21
of the Constitution since it does not provide any legislative guidelines
as to when life should be permitted to be extinguished by imposition
of death sentence.” 11
Since then, issues such as what constitutes aggravating and mitigating
circumstances, that the crime and the criminal ought both to
be considered in deciding the sentence, that hanging is a cruel and
unusual punishment, that it is not about a balance between mitigating
and aggravating circumstances but that there must be no mitigating
circumstances to explain sentencing a person to death, that the
possibility of reform must be considered, and the widely varying
consequences of judicial discretion that make it a “lottery” have
challenged judicial thought. 12 Recent years, especially since 2009,
have witnessed renewed concern about the death penalty, especially
regarding judicial discretion in imposing it.
9 Bachan Singh v. State of Punjab, judgment dated 9 May 1980, reported in (1980) 2 SCC 684.
10 Ibid., paragraphs 132, 207, 201 and 199.
11 Ibid., paragraph 210.
12 Amnesty International, Lethal Lottery: The Death Penalty in India—A Study of Supreme Court
Judgments in Death Penalty Cases 1950-2006 (London, 2008), available from www.amnesty.
org/en/library/info/ASA20/007/2008.
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