Landmark Judgments:
Article 21 clearly highlights the Founding Fathers' recognition of the State's right to deprive a person of life and personal liberty, provided it is done in accordance with a fair, just, and reasonable procedure established by valid law. Several other provisions in the Constitution indicate that its framers were fully aware of the existence of the death penalty for murder and certain other offenses under the Indian Penal Code.

Entries 1 and 2 in the Concurrent List of the Seventh Schedule specifically refer to the Indian Penal Code and the Code of Criminal Procedure as they were in force at the commencement of the Constitution. Article 72(1)(c) specifically empowers the President to suspend, remit, or commute the sentence of any person convicted of an offense, including cases where the sentence is death.

Similarly, Article 161 grants the Governor of a State the power to suspend, remit, or commute, inter alia, the death sentence of any person convicted of murder or another capital offense within the State’s executive jurisdiction. Article 134, in turn, grants a person sentenced to death by the High Court on appeal, after a reversal of acquittal by the trial court, the right to appeal to the Supreme Court.

Under successive Criminal Procedure Codes, in force for over a century, the death sentence is to be carried out by hanging. Given these constitutional provisions, it is impossible to claim that the death penalty under Section 302 of the Penal Code, either per se or due to its execution by hanging, constitutes an unreasonable, cruel, or unusual punishment.

For the same reasons, it cannot be argued that the framers of the Constitution regarded the death penalty for murder or its prescribed mode of execution as a degrading punishment that would defile "the dignity of the individual" within the meaning of the Preamble. Similarly, it cannot be said that the death penalty for murder violates the basic structure of the Constitution.

Sections 432 and 433 of the Code of 1973 carry forward Sections 401 and 402 of the Code of 1898, with modifications aligning them with Articles 72 and 161 of the Constitution. Section 432 empowers the "appropriate Government" (as defined in subsection (7) of that section) to suspend or remit sentences, while Section 433 grants the government the authority to commute a sentence without the sentenced person’s consent. Under Clause (a) of Section 433, the government may commute a sentence of death to any other punishment provided by the Indian Penal Code.

Section 354(3) mandates that a court convicting a person for an offense punishable by death, or alternatively by life imprisonment or a term of years, should not impose the death sentence unless "special reasons" for such a sentence are recorded. The expression "special reasons" here clearly means "exceptional reasons" based on the exceptionally grave circumstances of the specific case concerning both the crime and the criminal. Thus, the legislative intent in Section 354(3) is clear: the extreme penalty should be imposed only in the most extreme cases.

The principles guiding the application of these provisions now follow the legislative directives in Sections 354(3) and 235(2), namely: (1) The extreme penalty may only be imposed in the gravest cases of extreme culpability; (2) In choosing the sentence, the court must consider not only the circumstances of the offense but also those of the offender.

From Sections 354(3) and 235(2), as well as other related provisions of the Code of 1973, it is evident that, in making a choice of punishment or determining the presence or absence of "special reasons," the court must consider both the nature of the crime and the character of the criminal.

Written By: S Kundu & Associates
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