Death Penalty in India: the need to revisit Bachhan Singh v. State of Punjab
Authored By- Aishwarya Bhat NS
Rarest of rare case, Retention of the death penalty, 35th Law Commission report, Punishment, Abolition of the death penalty.
Death Penalty is a mode of punishment from ancient times. It is practised to eliminate criminals and is used to punish an accused of committing a heinous crime. Punishment is imposed to create deter amongst the accused to the crime, an accused must be given an opportunity for reformation. Some people are in favour of the death penalty given as the punishment to an accused, while others are in favour of its abolition. This article covers the constitutional validity of the death penalty in India and the need to revisit the case of Bachhan Singh v. State of Punjab.
India is one of the 78 retentionist countries which have retained the death penalty only for ‘Rarest of Rare Cases’ and for special reasons as well. But, the Supreme Court as of now hasn’t answered about this.[I] The death penalty is an integral part of the penal systems of the world and also in India. The death penalty is where the offender is sentenced to death after conviction by the court of law for a criminal offence carried out by him. The imposition of the penalty is not always followed by execution because of the possibility of substituting to the life imprisonment.[II]
The constitutional validity of death penalty in India
The constitutional validity of the death penalty was challenged in the case of Jagmohan Singh v. State of UP where the Supreme Court rejected the argument and held that death penalty is a violation of the “Right to life” which is guaranteed under article 21 of the Constitution of India.
In Rajendra Prasad v. State of UP, the judge has stressed that the death penalty was violative of Articles 14, 19 and 21 of the Constitution of India. But in the Bachchan Singh v. State of Punjab by a majority of 4 to 1(Bhagwati J dissenting), the Supreme Court overruled Rajendra Prasad case and expressed the view with respect to the death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14,19 and 21 of Indian Constitution, because the public order observed by article 19 (2) to (4) of Indian constitution is different from “law and order” and also expressed the principle of awarding the death penalty only in the “Rarest of rare cases”. The Supreme Court in Machhi Singh v. State of Punjab laid down the broad outline of the situations when the death sentence should be imposed.[III]
The need to revisit Bachhan Singh v. State of Punjab
The report of the law commission presented to the government in the year 1967 and to the Lok Sabha in the year 1971 concluded that the death penalty should be withheld and that the executive should continue to possess the powers of mercy.
The apex court in Bachhan Singh’s case, on the question of the reasonableness of the death penalty, observed that “If notwithstanding of the abolitionists to the contrary, a very large segment of people still firmly believe that in the worth and necessity of the death penalty for the protection of the society, if in the perspective of an ongoing crime condition in India, contemporary to the public union conducted through the people’s representatives in the parliament, has repeatedly included; recently to abolish or specifically restrict the area of the death penalty, if the death penalty is still recognized legal sanction for murder in most of the civilized world, if the farmers of the Constitution of India were aware of the existence of the death penalty as the punishment for murder under section 300 of the Indian Penal Code,1860. If the 35th report of the law commission suggested to the retention of the death penalty”, and thereby recommended revision of the CrPC. The insertion of the new sections 235(2) and 354(3) of the CrPC was before the parliament, to look up for the revision of the CrPC.[IV] The death penalty is a part of the Indian law, unless it is altered by the legal or the constitutional amendment, the judge of every court is bound to apply, whenever and wherever the relevant legal tests are fulfilled.
The author concludes that the death penalty cannot be removed on humanitarian grounds or on the grounds of other alternative punishment that is available. An accused who is a perpetrator of other’s right to live can’t claim to have an absolute right to live which is conferred under Article 21 of the Indian Constitution. The Indian jurisprudence is a blend of reformative and deterrent theories. The punishments are to be imposed to deter an accused; it is an absolute part of the Indian penal jurisprudence. If the law is not enforced then cure is the enforcement, not revocation. If the death penalty is evil it is a necessary evil and a criminal chooses this voluntarily. Law can stop a criminal but not the crime. The death penalty is the only way to punish an accused, who has committed a heinous crime.
 (1973) 1 SCC 20  AIR 1979 SC 917  (1979) 3 SCC 727  AIR 1983 SC 957 References: [I] https://www.indianbarassociation.org/constitutionality-of-death-penalty/ [II]http://220.127.116.11/Refinput/New_Reference_Notes/English/CAPITAL_PUNISHMENT_IN_INDIA.pdf [III] https://madhavuniversity.edu.in/constitutional-validity-of-capital-punishment.html [IV] http://www.legalserviceindia.com/articles/cap_pp.htm