1 DEATH SENTENCE IN INDIA: IS IT RARE YET ARBITRARY? R. Venkata Rao  and Prakash Sharma  ABSTRACT India consider capital punishment as a legal penalty for certain unsual or exceptional offences, termed as rarest of rare cases. Over the years, the manner in which death penalty is being given raises serious questions. It becomes all the more relevant because not all convicts awarded death penalty are executed. Further, despite the rarest of rare doctrine, which was meant to limit capital punishment, the number of death sentences pronounced is high. The issue of capital punishment was twice dealt by the Law Commission of India and on both ocassions it recommended to retain capital punishment. In 1962, it supported the death penalty on the basis of India’s particular circumstances wherein it could not “experiment” with its abolition. Whereas in 2015, it called for abolition of the death penalty for ordinary crimes, yet recommended it for terrorism related offences and waging war. There are other differing views too, while few argue that “death penalty can never be administred fairly or rationally“—others opine that “life can only be seen to be protected if those who take it away are proportionately punished.“ Globally, the picture that emerges is that an unprecedented number of countries have abolished or suspended the use of the death penalty. The paper concludes that given the uncertainity and developments taking place world over, the constitutionality of the death penalty is bound to be challenged once again in near future. INTRODUCTION The history death penalty dates back to the beginning of civilisation. While the primitive societies considered the practice of capital punishment as act of defilement, the contemporary world considers it either unusual or exceptional. Similarly, there were times when the means through which executions were involved were cruel and painful, 1 which not only have been replaced but also reduced over the times. 2 Additionally, until 19th century, the death penalty was used as a generalised form of punishment for even minor offences; and with the emergence of modern nation states, justice came  Chairperson, Vivekananda School of Law and Legal Studies, Vivekananda Institute of Professional Studies, New Delhi. Former Vice-Chancellor of National Law School of India University (NLSIU), Bangalore.  Assistant Professor, Vivekananda School of Law and Legal Studies, Vivekananda Institute of Professional Studies, New Delhi. 1 Few of the methods are: breaking wheel, keelhauling, sawing, hanging, drawing, and quartering, burning at the stake, flaying, slow slicing, boiling alive, impalement, mazzatello, blowing from a gun, schwedentrunk, scaphism, blood eagle, and brazen bull. The brutal methods was followed in the contemporary world too, for instance see Editorial Board- Minnesota Law Review, “The Caryl Chessman Case: A Legal Analysis”, 44 Minnesota Law Review 941-997 (1960). 2 Currently, there are only four methods used to cause death penalty, namely, beheading, hanging, lethal injection and shooting. The method adopted in India is given under section 354(5) of the Criminal Code of Procedure, 1973 which suggest “hanging by neck till death.” The Law Commission of India in its 262 nd Report recommended amendment to allow use of lethal injection as a method of execution, in addition to hanging. See Law Commission of India, 262nd Report on The Death Penalty (2015) [hereinafter 262nd Report], available at: https://lawcommissionofindia.nic.in/reports/report262.pdf. See also S. Venugopala Rao, Facets of Crime in India (Allied Publishers, Bombay, 1967); Norman Mailer, The Executioner’s Song (Little Brown, Boston, 1979).