Jurisprudence Of The Death Penalty

Jurisprudence of the death penalty

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Meaning: Jurisprudence

Different jurists have assigned different meanings to the word ‘jurisprudence’. To some jurists it means something, to some other, it means something else. The word jurisprudence finds its root in the Latin term ‘ Juris Prudentia’ which means the” study, knowledge, or science of law.”[1] According to the Merriam Webster dictionary, Jurisprudence means the science or philosophy of law or a system or body of law.[2] According to the Oxford dictionary, Jurisprudence is a systematic and formulated knowledge or science of human law.[3]

Theory of punishment 

All the punishments in India are based on one proposition that is, there must be a penalty for wrongdoing. The theory of punishment is based on two bases:

  • The wrongdoer should suffer for the wrongdoings he/she has done 
  • The other belief is that if you punish one wrongdoer for his/her wrongdoing then it discourages other wrongdoers from wrongdoing.[4]

Meaning: Death penalty

Death penalty also known as capital punishment is an execution of an offender sentenced to death after conviction by a court of law for an offence. The term death/capital punishment is the most intense form of punishment. It is the punishment which is awarded for the most severe, odious and abhorrent crimes which are done by an individual against humanity. The extent of such crimes is not similar across the world, instead, it differs from the country, state, age, etc. Capital punishment has always been in the form of death punishment.[5]

Capital punishment or the death penalty shares a long history in India. Starting from the British era to the present time, many bills have been passed in history either to abolish or not to abolish the death penalty, and it has always been an issue of debate.

During Independence, India has retained several laws which were put up by the British colonial government which also includes the Code of Criminal Procedure, 1898 (Cr.P.C. 1898) and the Indian Penal Code 1860. IPC prescribed six punishments that can be imposed under law, including the death penalty.

Section 367(5) of Crpc states that if in any case death penalty was an option and court did not give the capital punishment, the court needs to record the’ Special reason’ for the particular Act.

Section 367(5) of Crpc is stated in the following way 

If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed. 

Section 367(5) which was repealed in the year 1955 stated that now courts are no longer needed to state the reason for not awarding the death penalty. In the year 1973 Crpc was re-enacted and major changes were made, notably in the section 354(3) which states that now judges have to mention the reason, why they have imposed the death penalty, contrary to the section 367(5) which stated that courts need to give Special reason that why they didn’t give the death penalty when it was an option 

Validity of Capital Punishment 

Article 21 which is a fundamental right of the Indian constitution states the life and personal liberty for all individuals. It says no individual should be deprived of his/her life or personal liberty except the procedure which is established by law. This means that if the law is making any procedure which is fair and valid but harms the individual’s life or personal liberty then the procedure which has been established by law is allowed.

The Supreme Court too has upheld the constitutional validity of capital 

punishment in “rarest of rare”  in the following cases: 

The Supreme Court affirmed the constitutional validity of the death penalty. The Apex court says that if the capital punishment is awarded and it has followed the procedure established by law which is fair and correct then death penalty can be awarded but the court further adds that it should only be in the Rarest of the rare case as stated in the case of Bachan  Singh v/s State of Punjab. and the courts should render “special reasons” [6]

Criteria for the Rarest of Rare

The concept of ‘Rarest of rare’ was laid down by the Supreme Court in the famous case of Bachan Singh vs State of Punjab (1980). Supreme Court formulated the broad guidelines and said the death penalty should be awarded only when the option of life imprisonment has been ‘unquestionably foreclosed‘ The decision of the death penalty was completely on the court’s discretion.

The courts were instructed to make a report which is to be known as  ‘Balance Sheet’ which should state that any punishment less than that of the death penalty if given in the particular case then it would be like no justice has been given to an individual who has suffered the wrongdoing.

There were two prime questions which the Apex court asked

  • That the crime which has been done was uncommon, so the decision of life and death penalty was called.
  • There was not any other option then awarding death penalty after keeping all the circumstances in mind.[7]

Clemency Powers 

If in any case, the Supreme court rejects the appeal of an individual against capital punishment then the individual has the right to go to President and governor of the state to submit the mercy petition. Under Article 72 and 161, President and Governor of the state respectively have the right to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. But these powers are not on a personal basis of President or Governor of the state, instead, these powers are exercised on the advice of the council of ministers under article 74 and 163.

Clemency Powers also helps in rectifying the mistake of the court if there are any. A document was drafted by the home ministry titled “Procedure Regarding Petitions for Mercy in Death Sentence Cases”. This was drafted by the ministry for guiding state government and the prison authorities to deal with the death sentence prisoners who have submitted the Mercy petitions.[8]

Judicial review of the exercise of Mercy powers

In the famous case of Shatrughan Chauhan, Supreme Court recorded the various factors which home ministry should look at while giving the mercy petition which is as follows:

  1. Accused personality
  2. Cases in which doubt was expressed by the appellate court.
  3. Cases in which it was alleged that fresh cases are obtainable.
  4. Appeals in which high court enhanced a sentence.
  5. If there is any difference in opinion of High court and larger bench of the court.
  6. Consideration of evidence in the case of a gang murder.
  7. Long delays in trial and investigation.

Many times it is seen that home ministry on whose basis the mercy petitions are decided does not follow the guidelines which have been prescribed for giving the mercy petitions. Writ Courts in various cases have examined how the executive has granted mercy petition. Supreme Court in the case of Shatrughan Chauhan heard 11 writ petitions because of the rejection of Mercy petition by the executive in a particular case[9]

Death penalty or capital punishment is a very severe kind of punishment which is awarded for the Rarest of the rare cases and for the heinous or grievous crimes done by an individual against humanity. The court is extra conscious while giving the death penalty because it is the point of someone’s life and liberty as stated in Article 21 of the fundamental right of the Indian Constitution. There are many provisions and acts made for capital punishment which has been stated above. The issue of the death penalty has always been debatable, whether it is correct to give capital punishment or not. As everything has its flaws so the law of death penalty as in the Rarest of rare case, is open to interpretation for the courts that whether the case is Rarest of rare or not, there is no common base when the case is considered rarest of rare, thus it may create ambiguity sometimes.


  • Merriam Webster dictionary


  • Oxford dictionary





  1. law.cornell
  2. Merriam Webster dictionary definition
  3. Oxford dictionary definition
  4. http://newindialaw.blogspot.in/2012/11/constitutional-validity-of-capital.html
  5. Capital Punishment in India by Dr Subhash C. Gupta, 2000, p. 1
  6. Indian Express, New Delhi, dated 27.5.2015
  7. Indian Express, New Delhi, dated 27.5.2015
  8. India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp.176, 179
  9. India. Law Commission of India, Report no.262 on Death Penalty, August 2015, pp.190-191

Arushi Agrawal

Arushi Agrawal


Arushi is an articulate and eloquent writer. She likes to do research on various legal issues and write about it. In her leisure time, she loves to do painting. For any clarifications, feedback, and advice, you can reach her at agrawalarushi463@gmail.com

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