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As 2012 Delhi gangrape case moves towards closure, some questions on death penalty answered

The death penalty in India is reserved for the “rarest of rare” cases. Even so, the law provides for a long process before the execution of the convicts actually takes place.

By: Explained Desk | New Delhi |
Updated: December 14, 2019 10:01:18 am
As Delhi bus gangrape case moves towards closure, some questions on death penalty answered The death penalty in India is reserved for the “rarest of rare” cases.

The horrific December 16, 2012 Delhi bus gangrape case is rapidly moving towards its final conclusion. Tihar jail is getting ready to execute the death sentence passed on the convicts, asking Bihar’s Buxar jail for hanging rope. On December 6, the Union Home Ministry sent the Delhi government’s recommendation to reject the mercy plea of Vinay, one of the four convicts, to President Ram Nath Kovind.

Another convict, Akshay, has filed a review plea before the Supreme Court, which will be taken up on December 17. The mother of the victim has told the court that she would like to be heard when it takes up the convict’s plea.

A day later, on December 18, a Delhi Additional Sessions Judge is scheduled to hear the convicts before deciding whether to direct Tihar authorities to expedite their execution.

The Supreme Court has already dismissed, more than a year ago on July 9, 2018, the review pleas filed by Vinay and another two of the convicts, Mukesh and Pawan. A fifth accused, Ram, hanged himself in his cell in Tihar, while the sixth, who was a juvenile at the time of the crime, was sent to a reform facility.

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The death penalty in India is reserved for the “rarest of rare” cases. Even so, the law provides for a long process before the execution of the convicts actually takes place.

What are the avenues available to a death-row convict?

After a trial court awards the death penalty, the sentence must be confirmed by a High Court. The sentence cannot be executed till the time the High Court confirms it, either after deciding the appeal filed by the convict, or until the period allowed for preferring an appeal has expired.

If the High Court confirms the death penalty and it is also upheld by the Supreme Court, a convict can file a review petition. If the review petition is rejected, the convict can file a curative petition for reconsideration of the judgment.


In 2014, a Constitution Bench of the Supreme Court ruled that a review petition by a death-row convict will be heard by a three-judge Bench in open court. Such cases were earlier being heard by two-judge Benches in the judges’ chamber.

A curative petition is still heard in judges’ chambers.

The Supreme Court also ruled in 2014 that unexplained delay in execution was a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.

How has the Supreme Court historically seen the death penalty?

The Supreme Court has always said that the death sentence should be given rarely.


In ‘Mithu vs State of Punjab’ (1983), the Supreme Court ruled that the mandatory death penalty is unconstitutional. It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case.

The Supreme Court ruled Section 303 violated Articles 14 (right to equality) and 21 (right to life) since an unreasonable distinction was sought to be made between two classes of murders.

It said that all murders would come under the ambit of Section 302, where a court would have the discretion to award life term or death sentence.

Similarly, the Supreme Court ruled in ‘State of Punjab vs Dalbir Singh’ in 2012 that mandatory death penalty as punishment for crimes under Section 27 (3) of the Arms Act, 1959, was unconstitutional.

Article 21 ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law.


This has been legally construed to mean if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.

While the central government has consistently maintained it would keep the death penalty in the statute books to act as a deterrent, and for those who are a threat to society, the Supreme Court too has upheld the constitutional validity of capital punishment in “rarest of rare” cases.


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

It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, the death sentence can be awarded to a convict. This will, however, only be in the “rarest of rare” cases, and the courts should render “special reasons” while sending a person to the gallows.


And what is a “rarest of rare” case?

The principles of what would constitute the “rarest of rare” were laid down by the top court in the landmark judgment in ‘Bachan Singh’. It formulated certain broad illustrative guidelines and said death penalty should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”.

While it was left completely to the court’s discretion to reach this conclusion, the apex court did lay down the principle of weighing aggravating and mitigating circumstances.

A balance-sheet of aggravating and mitigating circumstances in a particular case has to be drawn up to ascertain whether justice will not be done if any punishment less than the death sentence is awarded.

Two prime questions, the top court held, may be asked and answered.

First, is there something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for a death sentence?

Second, are there circumstances of the crime such that there is no alternative but to impose the death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offenders?

Courts have agreed that the Delhi gangrape case meets the test of rarest of rare.

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First published on: 13-12-2019 at 05:41:32 pm
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