Author: Gautam Tomar, Bharati Vidyapeeth University Pashchim Vihar East
ABSTRACT
The Punjab Government has once again stirred a volatile legal, ethical, and constitutional debate by proposing the introduction of the death penalty for acts of sacrilege against religious scriptures. In a move that is as much about political expediency and appeasing deeply entrenched religious sentiments as it is about lawmaking, the state has announced its intention to convene a special session of the Legislative Assembly to push forward amendments to existing penal provisions.
However, this legislative endeavour does not merely remain a question of state policy or electoral calculus; it raises profound challenges to the fundamental tenets of India’s constitutional democracy. By seeking to equate sacrilege with offences deserving capital punishment, Punjab’s proposed law appears to stand in direct confrontation with constitutional guarantees of life and liberty under Article 21, equality before law under Article 14, and the Supreme Court’s established jurisprudence that strictly limits the scope of the death penalty to the ‘rarest of rare’ cases involving heinous murders.
Moreover, this proposition carries implications that transcend domestic constitutionalism. It potentially places India in violation of its international obligations under treaties such as the International Covenant on Civil and Political Rights (ICCPR), which restricts the use of capital punishment to only the most serious crimes, typically interpreted as those involving intentional killing.
This article undertakes a comprehensive examination of the legal architecture, constitutional permissibility, and jurisprudential precedents relevant to Punjab’s controversial proposal. It also engages with the broader philosophical and ethical dilemma that looms over this debate: In a secular republic governed by constitutional morality, can the sanctity of faith ever override the inalienable fundamental rights guaranteed to every citizen?
TO THE POINT
Issue: Punjab seeks death penalty for sacrilege through state amendment
Action: Special Assembly session proposed
Legal conflict: Fundamental rights vs. state’s power to define capital offences
Key risk: Violation of Article 14, 21, Supreme Court rulings on “rarest of rare”
✔ Why it matters: Sets dangerous precedent undermining free speech, secularism, and proportionality in criminal law.
THE PROOF:
BACKGROUND:
In June 2025, amid mounting public outrage and escalating communal tensions sparked by a spate of sacrilege incidents across Punjab, the state Cabinet announced its decision to convene a special session of the Legislative Assembly with the singular objective of introducing the death penalty for acts of sacrilege against religious scriptures – with particular emphasis on the desecration of The fundamental holy text of Sikhism, the Guru Granth Sahib, is revered as a living Guru.
This proposed legislative amendment intends to expand the scope of Section 295-A of the Indian Penal Code (IPC) through a state-specific provision, thereby prescribing capital punishment as the ultimate penalty for sacrilege offences. In essence, the state seeks to establish an extraordinary punitive framework under which desecration of religious texts would no longer attract a mere custodial sentence, but rather the harshest retributive measure available within India’s penal jurisprudence – death by hanging.
However, here emerges the legal migraine that threatens to overshadow political intent with constitutional impossibility:
First, criminal law falls predominantly within the Union List, specifically under Entry 1 of List III (Concurrent List) of the Seventh Schedule. While states possess limited legislative competence to amend certain provisions of the IPC, any such amendment must necessarily obtain Presidential assent under Article 254(2) of the Constitution to avoid repugnancy with Central legislation, thereby raising serious questions of federal balance and legislative propriety.
Second, under the current statutory scheme:
Section 295 of the IPC penalises offences related to the desecration or defilement of places of worship or sacred objects, imposing penalties that may include imprisonment for up to three years or a monetary fine.
Section 295 sub clause A of the IPC prohibits intentional as well as malevolent acts which are aimed at offending the religious sentiments of any group by disparaging its religion or beliefs, punishable by a maximum of three years’ imprisonment, a fine, or both.
Thus, the proposed jump from a maximum of three years imprisonment to the death penalty represents a legal leap that defies the doctrine of proportionality, a cardinal principle of both criminal jurisprudence and constitutional law that mandates punishment must be commensurate with the gravity and nature of the offence.
Finally, it is crucial to recognise that Article 21 of the Constitution, guaranteeing the right to life and personal liberty, has been interpreted by The Supreme Court will only approve the death penalty in the “rarest of rare” cases, which are frequently reserved for horrific murders involving severe depravity, brutality, or threats to society’s collective conscience, as established in the landmark decision Bachan Singh v. State of Punjab (1980). Sacrilege, while deeply insulting to religious communities, does not fulfil this standard under current constitutional law.
LEGAL JARGON DECODED:
✔ Ultra vires
It literally means “beyond the powers”. When a legislature, authority, or even your college committee passes a rule it doesn’t actually have the power to make, it is acting ultra vires, making that law or action invalid in the eyes of the Constitution.
✔ Proportionality
In law, this simply means the punishment must match the seriousness of the crime. You can’t send someone to the gallows for stealing a goat. Or, as your Criminal Law professor might say, “Sentencing is not about revenge; it is about fair retribution.”
✔ Doctrine pertaining to essential religious practices The theory poses the question: “Is this practice so central to the religion that without it, the religion itself loses its identity?” Article 25 (Freedom of Religion) solely protects basic practices. Non-essential practices can be restricted or even prohibited if they violate constitutional principles (for example, the Sabarimala case or the triple talaq verdict).
✔ Doctrine of Repugnancy
Under Article 254, if a state law conflicts with a Central law on a Concurrent List subject (like criminal law), the Central law prevails. Unless the state law has Presidential assent, in which case it can override, but only within that state and only if it does not violate the Constitution itself. Basically, state laws cannot bulldoze over Parliament’s authority just because they want to sound tough in election season.
THE PROPOSED LAW ANTOMY:
Provision: Death penalty for sacrilege of Guru Granth Sahib and potentially other religious scriptures
✔ Objective: Deterrence amid rising sacrilege incidents
✔ Method: Special Assembly session to pass an amendment with Presidential assent
✔ Constitutional route required:
Must withstand Articles 14 (Equality before law), 19 (Freedom of expression), 21 (Right to life)
Must align with Section 53 IPC (Punishments) and CrPC procedures
Must pass judicial scrutiny for proportionality and arbitrariness.
CASE LAW:
1. Bachan Singh v. State of Punjab (1980) 2 SCC 684
The Supreme Court upheld constitutionality of death penalty under Section 302 IPC but confined its application to rarest of rare cases involving extreme depravity. Sacrilege, a non-homicidal offence, fails this threshold.
2. Mithu v. State of Punjab, 1983. According to 2 SCC 277, Section 303 of the IPC requires the death penalty for life convicts who commit murder. Struck down for violating Article 21, since the mandatory death penalty removes judicial discretion.
Implication: A universal death sentence for sacrilege might be illegal for the same reason.
3. Shreya Singhal v. Union of India (2015). 5 SCC 1
Section 66A of the IT Act was knocked down because it stifled free expression. Demonstrates the judiciary’s position on overbroad, disproportionate criminal measures that threaten fundamental rights.
4. Navtej Singh Johar v. Union of India (2018) 10 SCC 1
Affirmed constitutional morality over public morality. A reminder that state laws cannot reflect majoritarian religious sentiments if they infringe fundamental rights.
CRITICAL QUESTIONS:
Does sacrilege equate to murder to justify death penalty?
No. While sacrilege deeply wounds sentiments, criminal jurisprudence equates capital punishment with direct harm to life or extreme depravity threatening public order and life.
Can state law override IPC provisions?
Only with Presidential assent under Article 254(2), but it must still survive basic structure scrutiny.
Is it secular to protect only specific religious texts?
Article 14 demands equal protection of laws. The proposed amendment’s selective focus may fail the reasonable classification test.
Does it infringe Article 25?
While religious freedom is protected, punishing desecration with death overshoots “reasonable restrictions” envisaged in constitutional design.
Philosophical and Policy Dimensions (A Dose of Socratic Reality Check)
✔ Faith vs. Rule of Law: Are we punishing offence to God or threat to society? The criminal law protects public order, not divine retribution.
✔ Deterrence Myth: Death penalty has failed as deterrence even in murder or rape cases.
✔ International Law: India is party to ICCPR (International Covenant on Civil and Political Rights), restricting capital punishment to most serious crimes (interpreted as homicide).
CONCLUSION
The Punjab government’s decision to kill for sacrilege demonstrates a conflict between popular religious passion and constitutional morality. The Supreme Court’s consistent approach is on proportionality, human dignity, and secular criminal justice. By tying sacrilege to death-deserving acts, the proposed change risks being declared clearly arbitrary and unjustified.
In a plural, secular democracy, laws punishing sacrilege must tread lightly, ensuring public order without becoming tools of religious majoritarianism or retributive zeal. Faith is an intimate matter; its protection, however, must remain within the bounds of constitutional rationality rather than vengeful populism.
FAQS
Q1. Can the state government administer the death punishment for treason? Technically, these modifications can be submitted for Presidential approval, but the law must still adhere to the Constitution and Supreme Court judgements.
Q2. Has the Supreme Court ever authorised the death punishment for non-homicide offences? No, the “rarest of rare” principle in Indian law reserves the death sentence for the most severe crimes.
Q3. What happens if the law is enacted and challenged? It is likely to be challenged under Article 32 or 226, with a constitutional bench evaluating its constitutionality based on Articles 14, 19, and 21.
Q4. Why is sacrilege taken so severely in Punjab. Due to historical, theological, and sociopolitical issues, particularly those involving the Sikh faith and earlier instances that sparked turmoil.
