The riddle of capital punishment

Penology and Victimology · Unit II · Topic 7 of 17 · 6 min read

Offences punishable with death under the BNS, the constitutional challenges, delay and mercy petitions, the arguments for and against, the Law Commission's 262nd Report, and a short account of euthanasia as the papers set it.

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On this page

1. Offences punishable with death under the BNS
2. The constitutional challenges
3. The arguments
4. The Law Commission
5. Euthanasia
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The syllabus calls it a riddle for a reason. Indian law keeps the death penalty, the Supreme Court has upheld it, and Parliament has extended it to new offences; yet the courts confine it to the rarest of rare, most death sentences are commuted on appeal, and the Law Commission has recommended abolition for ordinary crimes. A good answer explains all of that without taking sides until the conclusion.

1. Offences punishable with death under the BNS

Murder: section 103(1) (old 302); murder by a group of five or more on grounds of race, caste, community, sex, place of birth, language or personal belief: section 103(2), new.
Murder by a life convict: section 104 (old 303, struck down in Mithu; the BNS version allows death or life for the remainder of natural life).
Attempt to murder by a life convict if hurt is caused: section 109(2) (old 307, second para).
Abetment of suicide of a child or person of unsound mind: section 107 (old 305).
Rape causing death or a persistent vegetative state: section 66 (old 376A); rape of a girl under twelve: section 65(2) (old 376AB); gang rape of a woman under eighteen: section 70(2) (old 376DB); repeat offenders: section 71 (old 376E).
Organised crime resulting in death: section 111(2)(a); terrorist act resulting in death: section 113(2)(a), both new.
Kidnapping for ransom: section 140(2) (old 364A).
Waging war against the Government of India: section 147 (old 121); abetment of mutiny actually committed: section 160 (old 132).
Fabricating false evidence on which an innocent person is convicted and executed: section 230(2) (old 194).
Dacoity with murder: section 310(3) (old 396).

Special laws add more, for example the Narcotic Drugs and Psychotropic Substances Act, 1985 (section 31A, repeat offences) and the POCSO Act, 2012 (aggravated penetrative sexual assault, after the 2019 amendment).

2. The constitutional challenges

Validity: upheld in Jagmohan Singh (1972) and Bachan Singh v. State of Punjab, 1980 INSC 120, subject to the rarest of rare limit.
Mandatory death: struck down. In Mithu v. State of Punjab, 1983 INSC 34, (1983) 2 SCC 277, section 303 IPC, which made death mandatory for murder by a life convict, was held void under Articles 14 and 21: a sentence that allows no judicial discretion is arbitrary.
Method: in Deena Dayal v. Union of India, 1983 INSC 126, (1983) 4 SCC 645, hanging by the neck was held not to be a barbarous or degrading method and was upheld.
Delay in execution: in T.V. Vatheeswaran v. State of Tamil Nadu, 1983 INSC 10, (1983) 2 SCC 68, a two-judge Bench said delay of more than two years after sentence entitles the convict to commutation. Sher Singh v. State of Punjab, 1983 INSC 25, (1983) 2 SCC 344, rejected a fixed period. The Constitution Bench in Triveniben v. State of Gujarat, 1989 INSC 45, (1989) 1 SCC 678, settled the position: undue and prolonged delay after the judicial process has ended, in disposing of the mercy petition, can make execution unjust and may be a ground for commutation, but no fixed period applies and the time taken in judicial proceedings does not count.
Mercy petitions: in Shatrughan Chauhan v. Union of India, 2014 INSC 46, (2014) 3 SCC 1, the Court commuted fifteen death sentences for unexplained delay in deciding mercy petitions, insanity and illegal solitary confinement, and laid down guidelines: legal aid for mercy petitions, communication of rejection, a gap of fourteen days between rejection and execution, and a final meeting with family.

Section 472 BNSS now puts the mercy petition procedure into the Code for the first time. The convict, his legal heir or a relative may petition the Governor under Article 161 or the President under Article 72 within thirty days of being informed that the appeal or special leave has been dismissed; the jail Superintendent must ensure co-convicts also petition; and section 472(7) provides that no appeal lies against the President's or Governor's order and that the manner of arriving at the decision shall not be inquired into in any court. How far section 472(7) can limit the judicial review recognised in Shatrughan Chauhan is an open question.

3. The arguments

For retention:

Deterrence of the gravest crimes, especially terrorism and crimes against children.
Retribution: some crimes are so grave that only death is proportionate, and public confidence in law depends on it.
Incapacitation: the executed offender cannot kill again, in prison or after release.
It is used sparingly and with elaborate safeguards: rarest of rare, confirmation by the High Court, appeal, review, curative petition and mercy.

For abolition:

No reliable evidence that it deters more than long imprisonment.
It is irreversible, and judicial error cannot be undone. The Supreme Court itself has admitted that some death sentences were imposed per incuriam.
It is applied unevenly; Bariyar and Sangeet acknowledge the inconsistency, and studies show it falls mostly on the poor and those without effective legal representation.
It denies reformation, the purpose Indian courts treat as primary.
International trend: a majority of countries have abolished it in law or practice; the Second Optional Protocol to the ICCPR (1989) aims at abolition. India is not a party and has voted against UN General Assembly moratorium resolutions.

4. The Law Commission

35th Report (1967): recommended retention, given conditions in India at the time.
262nd Report, “The Death Penalty” (August 2015): recommended abolition of the death penalty for all crimes other than terrorism-related offences and waging war, and suggested moving towards complete abolition. It found that the rarest of rare test had not prevented arbitrary and inconsistent sentencing, that deterrence is not established, and that the focus should move to victim compensation and police reform.

Parliament has gone the other way: the Criminal Law (Amendment) Acts of 2013 and 2018 added death for some sexual offences, and the BNS added it for mob lynching, organised crime and terrorist acts. That contrast is the “riddle”.

5. Euthanasia

The August 2024 paper set a short note on euthanasia under this unit. The law is:

Gian Kaur v. State of Punjab, 1996 INSC 418, (1996) 2 SCC 648: the right to life does not include the right to die; attempt to suicide and abetment of suicide remain punishable. The Court left room for dignity in the process of dying.
Aruna Ramchandra Shanbaug v. Union of India, 2011 INSC 187, (2011) 4 SCC 454: active euthanasia is unlawful; passive euthanasia, withdrawing life support from a patient in a permanent vegetative state, is permissible with the approval of the High Court.
Common Cause v. Union of India, 2018 INSC 223, (2018) 5 SCC 1: a Constitution Bench held that the right to die with dignity is part of Article 21, recognised advance directives (living wills) and laid down a procedure for passive euthanasia. The procedure was simplified in Common Cause v. Union of India, 2023 INSC 77.

The BNS has no general offence of attempt to commit suicide corresponding to section 309 IPC; section 226 punishes only an attempt made to compel or restrain a public servant. Active euthanasia remains murder or abetment of suicide.

How this is examined

“Capital punishment in India” (February 2025, short note); “Explain the various offences for which capital punishment can be passed” (October 2023, 10 marks); “Euthanasia” (August 2024, short note). For the offences essay, use section 1 with both BNS and old IPC numbers, then add the constitutional cases. For the short note, give validity (Bachan Singh), the rarest of rare limit, Mithu, delay (Triveniben, Shatrughan Chauhan) and the 262nd Report.

Now try the real questions: Penology and Victimology past question papers.