(Along with 2018 criminal law amendment)

The constitution of India is well known for the rights and liberties it provides to the citizens of India. The ambit of Article 19 and 21 is way wide than one thinks and provides every citizen of India with basic 6 Fundamental rights.

Article 21 of the Indian constitution deals with the Right to life and personal liberty of a person. It clearly states that ‘no person shall be deprived of his life and personal liberty except for the procedure established by law’. Where on one hand the constitution itself ensures the right to life, on the other hand, we are talking about the death penalty.

For the purpose of avoiding this confusion, there are explanations and certain situation which demands that a person shall be punished with death for the offences committed by him. It is to be clearly understood that not all the offences are punishable with death. Rather, a person liable to capital punishment if he commits any of the heinous or serious crimes.

Also, in a landmark judgment, Supreme Court held that ‘if the punishment for an offence committed is death and the court awards a lesser punishment, in such cases the court has to give in writing the reason why it awarded the lesser amount of punishment’.

The constitutional validity of the death penalty has been on the issue for a long time. In order to maintain the scope and ambit of the death penalty, the Supreme Court in the case of ‘Bachchan Singh vs State of Punjab’ restricted the death penalty only to the case of murder.

The death penalty or capital punishment, as the name suggests, is the government-sanctioned process of talking a person’s life by the State Government following the due procedures of the law. Also, it is to be known that the death penalty is only given to a person who has committed a criminal offence. In the present situation, there is somehow a trend to abolish or remove the death penalty and punish a person according to the crime committed by him.

However, India is one of the countries where courts are authorized to punish a man with capital punishment or the death penalty. The death penalty is an extreme or aggravated form of punishment. As defined under the IPC, a man shall be punished with the death penalty if the act committed by him comes within the purview of ‘Rarest of rare cases’. In the case of ‘Machi Singh vs the State of Punjab’, the SC passed a few guidelines which need to be considered while deciding whether the case falls within the category of rarest of rare cases or not.

Guidelines Issues by SC in case of Machhi Singh

  • Manner of Commission of Crime-

The intention of a person can be very well understood by the manner of crime committed by him. The court stated that ‘if the crime committed in a very brutal and extreme condition, it will fall under the category of the rarest of rare cases. Say for example- if a man intentionally sets a house for another person on fire where he knows that such an act is likely to cause death or his intention is to burn alive the person, where extremely tortures another person. All these acts amount to the death penalty as these are heinous crimes.

  • The motive for the commission of the crime-

Motive and guilty intentions play a major role in establishing any criminal offence. To determine the nature of the crime, the motive of the commission of such crime needs to be proved.

  • The magnitude of the crime-

This means when the crime is committed against a large number of people. Say for instance, if a person kills all the members of a family, he is said to commit the offence which comes in the category of rarest of rare cases and is liable to the death penalty with the proper discretion of the court.

  • Socially abhorrent Nature of Crime-

If the crime committed is socially abhorred, this means awful or irrelevant, say for an example-killing a person belonging from a backward class or burning bride also known as dowry death, if the demand of dowry is not fulfilled and so on.

  • Victim of the Crime-

If the crime is committed against a minor child or a helpless woman, an old person, a mentally challenged person, or a public figure that is known to a large number of people, acts committed against such people would also fall in the category of rarest of the rare cases.


Changes Made Under the Criminal Law Amendment Act, 2018

  • After Section 376A of IPC section, 376AB is inserted, which imposes the imprisonment for a term of 20 years or Life Imprisonment or Death in case of rape with a woman under the twelve years of age.
  • After 376D two-section 376DA and 376DB are inserted. Section 376DB imposes the penalty of life imprisonment or death in case of gang rape with a woman under twelve years of age.



Hence, we can easily figure out that India being a democratic and republic country is one of the countries in the world that has retained the death penalty. Although, in India, the judiciary follows the reformative form of punishment, which means the long term of imprisonment depending on the nature and gravity of the offence committed. On the same hand, if such an offence has been committed that is very serious in nature and against the public tranquility as well as a wrong against the whole society; such a person shall be liable to the death penalty as prescribed by the court.

We have witnessed the recent amendments in the criminal law relating to the death penalty and the number of executions made to date.

The death penalty can only be relinquished or can lessen down by the orders of the President of India or the Chief Justice of India. The status still remains the same, whether the death penalty is abolished or shall be retained in the same manner.

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