Death Penalty: A Constitutional History Approach to the Debate


-Kruthika R.*

The Union Cabinet amended the Protection of Children from Sexual Offences (POCSO) Act, 2012 which makes child rape an offence punishable by death. The Government had intended to pass this Bill earlier but it lapsed when the Parliament was dissolved in May.

The brutal Kathua and Unnao child rape incidents triggered the move towards death penalty for child sexual abuse. This has, since then, reignited the debate on whether India should have death penalty as a form of punishment.

In this piece, I look at the constitutional history of the death penalty, and attempt to locate it in the Constituent Assembly Debates and the history of the freedom movement. This approach offers us valuable insights into the historical circumstances and reasons behind the constitutional choice on death penalty.

Demand for abolishing death penalty in pre-independent India:

The first demand to abolish death penalty can be traced to 1931: Gaya Singh, member of the Central Legislative Assembly introduced a Bill to remove death penalty as a form of punishment. But the Bill was not taken up. Interestingly, in the same year, Bhagat Singh, Sukhdev and Rajguru were hanged in the Lahore Conspiracy case.

A week after these hangings, at its Karachi Session, the Indian National Congress passed the Karachi Resolution which abolished capital punishment. This disposition of the leaders of the freedom movement on the death penalty continued into the next decade: another Historical Constitution, the Gandhian Constitution for Free India (Shriman Narayan Agarwal, 1946) mirrored a similar stance.

Unpacking the Constituent Assembly Debates:

The framers of the Indian Constitution tackled the question of death penalty during a debate on the need to confer criminal jurisdiction on the Supreme Court. Several members of the Constituent Assembly took this opportunity to express their opinions on death penalty.

Shibban Lal Saxena, drew from his personal prison experiences during freedom movement and opposed death penalty. He recalled how several inmates, whom he believed to be innocent, were hanged. Dr. PK Sen pointed out to foreign jurisdications that have done away with death penalty. He also noted that Britain’s experience of capital punishment was tardy. Ambedkar supporting a similar stance noted: ‘the proper thing for this country to do is to abolish the death sentence altogether’. He argued that India’s ancient principle of non-violence must be treated as a moral mandate to abolish death penalty.

The death penalty also came up during discussions around the right to equality. Z. H. Lari sought to introduce a new article in the Constitution: ‘11-B. Capital punishment except for sedition involving use of violence is abolished’. He put forth three arguments: First, human judgment in deciding a case is not infallible – if the court makes a mistake in determining the guilt of the accused; it will cost a person’s life. Second, awarding death penalty does not guarantee a reduction in crimes – around 30 countries had done away with this punishment and have not witnessed an increase in crimes. Third, death penalty is brutal and does not represent the sentiments of the century – instead, he argued, the criminal justice system must adopt a reformative approach.

K. Hanumanthaiah disagreed with Lari: he argued that death penalty did have a deterrent value of punishment and was necessary for the security and stability of the State. In the end, the Assembly rejected the proposal.

The attitude of the framers of the Constitution seems ambiguous. While most members felt that the death penalty had to be abolished, proposals to include such a provision were rejected. This is also reflected in the final text of the Constitution of India, 1950 that the Assembly adopted which does not take a stance on the death penalty; it neither supports nor abolishes it. It, however, does make the implicit assumption of the existence of the death penalty: Article 134 provides individuals punished by death a right to appeal to the Supreme Court.

As Martin Loughlin argued:

Constitutions present themselves as devices of settlement but in reality are arrangements that thrive on evasion. And a Constitution is able to perform its function only if it maintains its ambiguous meaning. This explains the complexity of constitutional interpretation: a constitution must necessarily be subject to continuous re-interpretation.”

The constitutional silence or ambiguity around death penalty should be taken as an opportunity to engage with the Constitution as not a static document, but one that needs to be continously re-interpreted and adapted to new generation’s requirements.

Kruthika R. is a research associate at the Centre for Law and Policy Research, Bengaluru. She primarily works on the CADIndia and Supreme Court Observer websites.


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