Capital Punishment, Pardoning Powers, and Indian Legal System

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Capital Punishment, Pardoning Powers, and Indian Legal System

When an individual commits a criminal offense, they are subject to various applicable laws. Subsequently, they undergo a trial, which results in a sentence being issued. The execution of such sentences requires the court to issue a warrant or take other necessary steps to ensure the sentence is carried out. The implementation of the death penalty in India is regulated by multiple provisions outlined in the Indian Penal Code, of 1860.

However, the suspension, remission, and commutation of sentences are vital aspects of the legal system and are governed by Article 72 and Article 161 of the Indian Constitution, with the Code of Criminal Procedure, 1973, dedicating a whole chapter to these processes.

This article delves into the history of capital punishment in India, the rarest of the rare doctrine, the execution of a death sentence, and the significance of suspension, remission, and commutation of sentences in the Indian legal framework.

Capital Punishment: Historical Perspective

Capital punishment is a practice as old as human civilization itself. It was frequently employed until the nineteenth century, even for relatively minor offenses. The recognition of the importance of humanity and justice in administering punishment came about when nation-states began to emerge.

In the context of India, the original Code of Criminal Procedure of 1898 made execution the norm for murder convicts, with judges required to provide specific written reasons if they chose to award life imprisonment instead. However, this requirement for written reasons was later eliminated by an amendment to the CrPC in 1995.

Subsequently, this amended position was incorporated into the Code of Criminal Procedure, 1973. Under the new provisions, life imprisonment became the norm, and the death penalty was to be awarded only in exceptional cases, backed by specific reasons.

Rarest of the Rare Doctrine

The death penalty remains a contentious issue across various legal spheres due to the profound moral, legal, and ethical questions it raises. Numerous human rights organizations argue that capital punishment is in direct conflict with Article 21 of the Indian Constitution, which guarantees the right to life to every citizen. Article 21 states that “no person shall, except and there the procedure prescribed by statute, be deprived of his life or personal freedom.”

 Under the Indian Penal Code, death sentences are provided for certain criminal offenses, such as criminal conspiracy, murder, waging war against the government, terrorism, and acts of dacoity that result in death. However, the Constitution provides for mercy in cases of the death penalty by granting the President of India the power to pardon.

Bachan Singh v. State of Punjab (1980),

In the landmark case, it was established that capital punishment should be reserved for the “rarest of the rare” cases. The court articulated that the imposition of the death penalty must be based on exceptional circumstances.

Furthermore, the Law Commission of India, in its 35th report to the Government of India in 1967, stated that “India cannot risk the experiment of the abolition of capital punishment” due to the vast diversity and social conditions in the country. The commission also asserted that capital punishment acts as a deterrent, as individuals generally fear death.

Execution of a Death Sentence

Execution of a death sentence is carried out in various ways in different countries, including hanging, beheading, shooting, lethal injection, stoning, electrocution, gas inhalation, and inert gas asphyxiation. In India, a death sentence is executed either by hanging (under the Indian Penal Code) or by shooting (under the Army Act, 1950).

The execution is typically authorized either by the sessions court, with the compulsory authorization of the high court, or directly by the high court itself, but only in the rarest of the rare cases, as established in Bachan Singh vs. State Of Punjab (1980).

Certain exceptions to capital punishment in India include minors, pregnant women, and intellectually disabled individuals. These individuals are not subject to the death penalty under Indian law.

Suspension, Remission, and Commutation of Sentences: Origins

As H.M. Seervai aptly noted, “Judges must enforce the laws, whatever they are, and decide according to the best of their lights; but the laws are not always just and the lights not always luminous.” Article 72 and Article 161 of the Indian Constitution govern the suspension, remission, and commutation of sentences. The origins of these pardoning powers held by the head of state in India can be traced back to the colonial era when the British crown had the prerogative of mercy.

The Government of India Act of 1935 granted the British crown the right to grant pardons, reprieves, respites, or remission of punishments. In the Indian context, the power to pardon is not a mere vestige of the past; it is a fundamental part of the constitutional framework. When justice is obscured by undue harshness or glaring errors in the operation of the law, executive clemency provides much-needed relief.

Provisions of Significance Regarding Suspension, Remission & Commutation

Article 72 empowers the President to grant pardons, reprieves, respites, remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offense. A similar power is granted to the Governor of a state under Article 161. Unlike the Governor, the President can offer pardons even when the accused has been sentenced to death. Another key distinction is that, unlike the Governor, the President can exercise clemency when the sentence has been imposed by a court martial.

While the Governor can grant pardons for offenses under state laws, the President can do so only for offenses under union laws. Additionally, the Criminal Procedure Code, 1973, includes provisions related to pardoning in Sections 432, 433, 433A, 434, and 435. Sections 54 and 55 of the Indian Penal Code provide competent authorities with the power to commute a death sentence or a life sentence in accordance with their provisions.

Maru Ram vs. Union of India (1980),

In the case of Maru Ram vs. Union of India (1980), the court emphasized that political vendettas or favoritism must not influence the exercise of executive clemency. The court also held that Article 72 is subject to judicial review and may be reviewed if the executive decision is entirely irrational, arbitrary, unreasonable, or based on malafide grounds, such as discrimination based on religion, caste, color, or political loyalty. The court set strict limitations on the judicial review, ensuring that it does not overstep its bounds.

Impact of Capital Punishment

Advocates of capital punishment argue that it serves as a deterrent to heinous crimes and provides an example of justice in society. Moral arguments maintain that capital punishment balances good and evil, and society has a moral and legal obligation to protect the lives of its citizens, which sometimes necessitates the execution of murderers. It is often presumed that execution is the only way to ensure that these individuals will not commit further heinous acts. Proponents of the death penalty contend that it saves society from premeditated murders.

However, there is no concrete evidence to support these claims. There is no conclusive proof that capital punishment is a more effective deterrent to violent crimes than a less severe alternative, such as life imprisonment.

Pardoning Powers

Execution, suspension, remission, and commutation of sentences are integral components of the justice system. They serve as correctives for judicial errors and reflect a more humane approach to the legal system. These powers instill virtues like forgiveness and perseverance and promote the rehabilitation and improvement of prisoners. However, there have been cases, such as the release of Bilkis Bano convicts, that raise questions about the fairness of the power to pardon, emphasizing the importance of judicial review.


While there is no conclusive evidence that the death penalty effectively deters crime, it imposes a heavy cost on society. Incarceration achieves the same goal as the death penalty without taking another life. Instead of safeguarding lives, the death penalty diminishes the value of human life. Valuable human resources that could be rehabilitated are lost to capital punishment. Moreover, judicial errors can result in innocent individuals being put to death, making it imperative for society to reflect on whether the death penalty is a duty or a detriment.

The power to pardon, as granted by the Indian legal system, serves as a ray of hope for death row convicts and contributes to a more just judicial system. In the words of Pathak, C.J., “In any civilized society, there can be no attributes more important than the life and personal liberty of its members.” The pardoning powers of the President and the Governor are crucial components of the Constitution, and it is hoped that these powers are exercised justly and impartially, with the judiciary acting as a watchdog to ensure fairness in these processes.

Frequently asked Questions

What is capital punishment in India?

Capital punishment in India refers to the legal execution of a person as a punishment for certain heinous crimes, such as murder and acts of terrorism.

What is the “rarest of the rare” doctrine in relation to capital punishment?

‘Rarest of the Rare’

The “rarest of the rare” doctrine, as articulated in the Bachan Singh case by the Indian Supreme Court, dictates that the death penalty should be reserved exclusively for the most exceptional and heinous cases.

What are Article 72 and Article 161 of the Indian Constitution, and how do they relate to pardoning powers?

Article 72 empowers the President of India to grant pardons, reprieves, respites, and remissions, or to suspend, remit, or commute sentences. Article 161 grants similar powers to the Governors of Indian states. These articles provide a mechanism for executive clemency.

Are there any exceptions to capital punishment in India?

Yes, there are exceptions, such as the prohibition of imposing the death penalty on minors, pregnant women, and intellectually disabled individuals in India.

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