Discuss the constitutionality of Death penalty. (250 words)

Death Penalty: Sec. 302 of IPC provides for Death Penalty as the alternative punishment for Murder.

Constitutional Provisions:

  • 21 allows the state to deprive any person of the right to life provided that it is done by a procedure established by law.
  • 34 and the subjects under the state list namely Public order & Police, implicity recognises death sentence.
  • 72 and Art.161 recognises the pardoning power of president and Governor of state respectively on the question of death sentence.

Presidential Clemency: Article 72 empowers the president to grant pardon a death sentence. However this power is to be exercised by the president on the advice of the union cabinet.

Interpretation by SC in various cases: In Jagmohan case (1973) the SC held that death sentence cannot be regarded as unreasonable perse or not in the public interest and hence could not be said to be violative of Art. A of the constitution.

   Later in other cases the SC held that death penalty should be awarded only in the rarest of rare cases as an exception.

The SC held that “the exercise of power of pardoning by the president is not subject to judicial review except where the presidential decision is arbitrary, irrational, malafide or discriminatory.

A petition cannot apply for mercy to the president second time, if his petition earlier is rejected.

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