Report No. 262

Chapter II

History of the Death Penalty in India

A. Pre-Constitutional History and Constituent Assembly Debates

2.1.1 An early attempt at abolition of the death penalty took place in pre-independent India, when Shri Gaya Prasad Singh attempted to introduce a Bill abolishing the death penalty for IPC offences in 1931. However, this was defeated.52 Around the same time, in March 1931, following the execution of Bhagat Singh, Sukhdev and Rajguru by the British government, the Congress moved a resolution in its Karachi session, which included a demand for the abolition of the death penalty.53

52. Law Commission of India, 35th Report, 1967, at para 12, available at
http://lawcommissionofindia.nic.in/1-50/Report35Vol1and3.pdf
(last viewed on 24.08.2015).

53. Special Correspondent, It's time death penalty is abolished: Aiyar, The Hindu, 7 August 2015, available at
http://www.thehindu.com/news/national/its-time-deathpenalty-is-abolished-aiyar/article7509444.ece (last viewed on 24.08.2015).

2.1.2 India's Constituent Assembly Debates between 1947 and 1949 also raised questions around the judge-centric nature of the death penalty, arbitrariness in imposition, its discriminatory impact on people living in poverty, and the possibility of error.54

54. See Constituent Assembly Debates on 3 June, 1949, Part II available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).

2.1.3 For example, on the possibility of error, Pandit Thakur Das Bhargava said:

It is quite true that a person does not get justice in the original court. I am not complaining of district courts. In very many cases of riots in which more than five persons are involved, a number of innocent persons are implicated. I can speak with authority on this point. I am a legal practitioner and have been having criminal practice for a large number of years.55

55. Constituent Assembly Debates on 3 June, 1949 Part II, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).

2.1.4 An issue of much debate had to do with the right to appeal a death sentence. In this context, Prof. Shibban Lal Saksena said:

I do feel that the people who are condemned to death should have the inherent right of appeal to the Supreme Court and must have the satisfaction that their cases have been heard by the highest tribunal in the country. I have seen people who are very poor not being able to appeal as they cannot afford to pay the counsel.

I see that article 112 says that the Supreme Court may grant special leave to appeal from any judgement, but it will be open to people who are wealthy, who can move heaven and earth, but the common people who have no money and who are poor will not be able to avail themselves of the benefits of this section.56

56. Constituent Assembly Debates on 3 June, 1949 Part II, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 24.08.2015).

2.1.5 Dr. Ambedkar was personally in favour of abolition saying:

My other view is that rather than have a provision for conferring appellate power upon the Supreme Court to whom appeals in cases of death sentence can be made, I would much rather than have a provision for conferring appellate power upon the Supreme Court to whom appeals in cases of death sentence can be made, I would much rather support the abolition of the death sentence itself. That, I think, is the proper course to follow, so that it will end this controversy.

After all, this country by and large believe in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.57

57. Constituent Assembly Debates on 3 June, 1949 Part II, available at
http://parliamentofindia.nic.in/ls/debates/vol8p15b.htm (last viewed on 26.08.2015).

2.1.6 However, he suggested that the issue of the desirability of the death penalty be left to the Parliament to legislate on. This suggestion was eventually followed.