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SC refers ‘death penalty’ issues to a Constitution Bench

Published: 22nd Sep, 2022


The question of providing accused in death penalty cases a “meaningful, real and effective” hearing before a trial judge has been referred to a Constitutional bench by the Supreme Court.


What is the issue?

  • Sentencing after conviction is a complex problemin cases relating to capital offenses.
  • Many times, the mitigating factor for awarding the death penalty is not properly taken into consideration due to the lack of any laid norms.
  • Trial judges are called upon to make a decision on whether only a death sentence will meet the ends of justice, or a life term will be enough.

Supreme Court view:

  • The Supreme Courthas laid down that the death penalty can be imposed only in the “rarest of rare” cases.
  • Subsequent judgmentshave laid the principle by holding that the gruesome nature of the offense may not be the sole criterion to decide what brings it under the ‘rarest of rare category’.
  • Offender’s socio-economic backgroundand his state of mind must also need to be taken into account.

The Procedure is tilted against the Convict:

  • The sentencing part of the trial takes place after the court records a conviction.
  • It is only after the conviction that they are able to speak about mitigating circumstances.
  • The prosecution presents its case from the beginning on how heinous the crime was, and how much the accused deserved maximum punishment.
  • The courts must refer to the reports from the jail authorities, probation officers, and even trained psychologists to assess the mitigating factors in favour of not imposing the death penalty.

When is ‘capital punishment’ awarded?

  • The term “Capital Punishment” stands for the most severe form of punishment.
  • It is the punishment that is to be awarded for the most heinous, grievous, and detestable crimes against humanity.
  • While the definition and extent of such crimes vary, the implication of capital punishment has always been the death sentence.

In Jagmohan Singh vs State of UP’ (1973), then in ‘Rajendra Prasad vs State of UP’ (1979), and finally in ‘Bachan Singh vs the State of Punjab’ (1980), the Supreme Court affirmed the constitutional validity of the death penalty.

Arguments in favour

Arguments against

  • Forfeiture of life
  • Moral indignation of the victim
  • The highest form of Justice
  • Deterrent against crime
  • Proportional punishment
  • Prevailing lawlessness
  • Prevention of crime is non-existent
  • Eye for an eye is not the cure
  • Deterrence is a myth
  • The political tool of suppression
  • Reverence for life’ principle
  • Discriminatory nature


Way Forward

It is expected that the Constitution Bench may come up with new guidelines under which the trial courts themselves can hold a comprehensive investigation into factors related to the upbringing, education, and socio-economic conditions of an offender before deciding the punishment.

Verifying, please be patient.

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