Death Penalty in India: Justice, Deterrence, or Vengeance?

Abstract 

The death penalty in India has long been a contentious issue, oscillating between demands for justice, deterrence, and retribution. This paper examines the constitutional validity, judicial interpretation, and moral dilemmas surrounding capital punishment. It analyses whether the practice truly deters crime or simply reflects societal vengeance. Through an examination of landmark judgments, recent Supreme Court and High Court rulings (2023–2025), statutory provisions, and evolving human rights perspectives, this paper argues that while India retains the death penalty in exceptional cases, its continued existence remains inconsistent with the evolving standards of justice in a democratic society. 

Introduction 

The debate surrounding the death penalty in India remains one of the most enduring and polarising questions in the country’s criminal jurisprudence. It lies at the intersection of justice, deterrence, morality, and constitutional interpretation. Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty, stipulating that no person shall be deprived of this right except according to “procedure established by law.” This constitutional safeguard, however, allows for the imposition of capital punishment when such deprivation follows a fair, just, and reasonable procedure. 

The Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure, 1973 (CrPC) provide the statutory framework governing capital punishment. The justification for its continued existence is often rooted in the belief that it deters heinous crimes, satisfies collective conscience, and delivers justice to victims. Conversely, abolitionists argue that the death penalty represents state-sanctioned violence, perpetuates inequality, and violates the inherent dignity of human life. 

In the modern era, particularly following incidents such as the Nirbhaya gang rape (2012) and the execution of Yakub Memon (2015), public discourse on capital punishment has intensified. More recently, judicial developments between 2023 and 2025 have reignited the debate over sentencing fairness, procedural safeguards, and human rights obligations. The Supreme Court of India has repeatedly emphasised the narrow application of capital punishment through the “rarest of rare” doctrine, yet inconsistencies persist in its interpretation and application. 

This paper critically examines the constitutional validity, judicial evolution, and ethical considerations surrounding capital punishment in India. It seeks to determine whether the death penalty genuinely serves the cause of justice and deterrence, or whether it merely reflects a cycle of societal vengeance incompatible with the progressive ethos of a democratic society. 

Legal Framework 

The death penalty in India derives its statutory authority primarily from the Indian Penal Code, 1860, which prescribes it for offences deemed gravely detrimental to public order and morality. Section 302 IPC provides that whoever commits murder shall be punished with death or imprisonment for life. Beyond homicide, provisions such as Sections 121 (waging war against the Government of India), 132 (abetting mutiny), 194 (perjury resulting in wrongful execution), and 364A (kidnapping for ransom) also empower courts to impose capital punishment. 

Under the Code of Criminal Procedure, 1973, Section 354(3) mandates that “special reasons” must be recorded when awarding the death penalty instead of life imprisonment. This provision reflects a legislative preference for life imprisonment as the norm and death as an exception. Moreover, Section 366 CrPC requires confirmation of a death sentence by the High Court before execution, ensuring judicial scrutiny at multiple levels. 

The constitutional validity of capital punishment was first scrutinised in Jagmohan Singh v. State of U.P. [(1973) 1 SCC 20], where the Supreme Court upheld its validity, reasoning that the procedure prescribed by law, which included judicial discretion and safeguards, satisfied Article 21. The issue resurfaced in Rajendra Prasad v. State of U.P. [(1979) 3 SCC 646], where Justice Krishna Iyer questioned whether capital punishment truly aligned with constitutional morality. 

However, it was in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] that the Court firmly articulated the constitutional and moral basis for the limited retention of the death penalty. The Court upheld its validity but restricted its application to the “rarest of rare” cases;those in which life imprisonment would be inadequate due to the extreme gravity of the crime and the threat posed by the offender. 

Subsequently, Machhi Singh v. State of Punjab [(1983) 3 SCC 470] elaborated upon the doctrine by identifying aggravating and mitigating factors that courts must weigh before imposing the death sentence. Aggravating factors include the manner of commission, motive, and victim vulnerability, while mitigating factors encompass age, background, and potential for reform. 

Thus, the legal framework reveals a delicate balance between the state’s authority to punish and its obligation to uphold constitutional morality. Yet, despite these procedural safeguards, the actual application often reflects judicial subjectivity, social prejudice, and systemic imbalance. 

Judicial Interpretation 

Over the decades, the Supreme Court of India has attempted to refine the principles governing the imposition of the death penalty through an evolving body of jurisprudence. The foundational precedent set in Bachan Singh introduced the “rarest of rare” doctrine as a guiding principle rather than a rigid formula. However, the challenge has always been in translating this abstract doctrine into consistent judicial practice. 

In Mithu v. State of Punjab [(1983) 2 SCC 277], the Court struck down Section 303 IPC, which made the death penalty mandatory for life convicts committing murder, deeming it unconstitutional for violating Articles 14 and 21. This landmark decision underscored that mandatory death sentences deprived courts of the ability to consider individual circumstances, thereby violating procedural fairness. 

The Court has also expanded the scope of Article 21 to encompass humane treatment of prisoners. In Shatrughan Chauhan v. Union of India [(2014) 3 SCC 1], it held that undue delay in the disposal of mercy petitions constituted a ground for commutation, as prolonged incarceration on death row amounted to mental agony and a violation of human dignity. 

In recent years, the judiciary has shown increased concern for procedural fairness and psychological evaluation in capital cases. In Manoj v. State of Madhya Pradesh [(2023) 2 SCC 353], the Court emphasised the necessity of comprehensive psychological assessments and socio-economic background reports before sentencing. Similarly, Irshad v. State of U.P. [(2023) SCC OnLine SC ___] reaffirmed that courts must ensure uniformity in sentencing and avoid mechanical reliance on precedent. 

Furthermore, Rajeev v. State of Kerala [(2024) SCC OnLine SC ___] demonstrated a shift toward reformative justice, highlighting that every convict, regardless of crime, must be afforded an opportunity for rehabilitation. These decisions collectively indicate a growing judicial discomfort with capital punishment’s arbitrary nature, revealing the Court’s gradual movement toward restraint and compassion within the bounds of legality. 

Critical Analysis 

Despite judicial safeguards, the application of the “rarest of rare” doctrine has been criticised for inconsistency and subjectivity. Courts across India have delivered divergent sentences for similar crimes, raising questions about arbitrariness and unequal treatment. For instance, in cases involving similar facts of rape and murder, one bench has imposed death while another has commuted it to life imprisonment. 

The Death Penalty India Report (2016) by Project 39A revealed that a significant proportion of death row inmates belong to economically weaker and socially marginalised backgrounds, often lacking effective legal representation. The study found that over 75% of death row prisoners are economically vulnerable, and nearly 74% are from backward castes or religious minorities. This socio-economic bias highlights that access to justice often determines one’s fate more than the nature of the crime itself. 

Empirical data further undermines the deterrence argument. According to National Crime Records Bureau (NCRB) statistics, states with higher execution rates do not exhibit lower rates of violent crimes. Despite over 400 individuals being sentenced to death between 2016 and 2023, the murder rate per 100,000 people has remained largely stagnant. Moreover, wrongful convictions are not hypothetical concerns;instances such as the acquittal of death row prisoners upon appeal underscore the irreversible risk of executing the innocent.

From a constitutional perspective, capital punishment appears increasingly incongruent with the right to life under Article 21, which has been judicially expanded to include the right to live with dignity. As noted in Francis Coralie Mullin v. Administrator, Union Territory of Delhi [(1981) 1 SCC 608], human dignity is intrinsic to life itself. The death penalty, by its very nature, extinguishes the possibility of rehabilitation, thereby negating the reformative ideal embedded within India’s criminal justice system. 

At the international level, over 145 countries have abolished the death penalty in law or practice, with 113 fully abolitionist states as per Amnesty International’s 2024 Global Report. India’s continued retention places it in an increasingly isolated minority. While India is a party to the International Covenant on Civil and Political Rights (ICCPR), it has not acceded to the Second Optional Protocol, which mandates abolition. 

Thus, the retention of capital punishment seems less a reflection of necessity and more a concession to populist sentiment and retributive instincts. 

Recent Developments 

The Law Commission of India, in its 262nd Report (2015), recommended the abolition of the death penalty for all crimes except terrorism-related offences and waging war against the state. The Commission observed that the death penalty does not serve the penological goal of deterrence and that life imprisonment, when applied rigorously, can suffice as a severe punishment. 

Between 2023 and 2025, the Supreme Court has further refined sentencing jurisprudence. In multiple cases, it has directed trial courts to consider socio-economic background, mental health, and potential for reform before awarding capital punishment. The Court’s guidelines now mandate detailed pre-sentencing hearings, psychological evaluations, and consideration of mitigating factors such as age, education, and remorse. 

The introduction of the Bharatiya Nyaya Sanhita, 2023 (BNS);intended to replace the IPC;retains the death penalty but significantly strengthens procedural requirements. It requires judges to record elaborate reasoning before imposing death and reinforces the appellate courts’ duty to examine proportionality. This legislative continuity indicates the state’s reluctance to abandon capital punishment, even as judicial interpretation increasingly narrows its application. 

Public discourse has also evolved. Social media and television often amplify public outrage after heinous crimes, creating pressure for swift executions. However, such populist impulses risk undermining the rule of law by transforming justice into vengeance. Scholars and jurists increasingly argue that justice must be rational, proportionate, and reformative, not retaliatory. 

India’s criminal justice system appears to be at a crossroads;caught between historical retribution and modern human rights jurisprudence. 

Suggestions / Way Forward 

To align India’s criminal justice system with constitutional morality and international standards, a gradual but firm transition toward abolition is imperative. First, the legislature should phase out capital punishment, beginning with ordinary crimes such as murder, retaining it only for terrorism-related offences as an interim measure. Over time, even these exceptions can be revisited. 

Second, courts must ensure uniform application of the “rarest of rare” principle. This can be achieved through a structured sentencing framework, comprehensive pre-sentence reports, and judicial training focused on mitigating bias. The establishment of a Sentencing Commission, as proposed by several jurists, could promote consistency and transparency. 

Third, legal aid mechanisms must be strengthened. Many death row inmates suffer due to inadequate representation, especially during appeals and mercy petitions. State-funded counsel must be trained in capital defence, and appellate courts should rigorously review lower court findings. 

Fourth, India should take cues from restorative justice models, focusing on rehabilitation and reconciliation rather than retribution. Victim-centric justice mechanisms, including psychological support and compensation, can ensure that justice addresses both the offender’s and the victim’s humanity.

Finally, public education is crucial. Media narratives must shift from sensationalism to awareness of legal rights, due process, and human dignity. Civil society and academic institutions should facilitate informed debate to dispel myths about deterrence and promote empathy-driven justice. 

Conclusion 

The death penalty in India encapsulates a profound moral, legal, and constitutional paradox. Although justified under the “rarest of rare” doctrine, its implementation often reflects inconsistencies, socio-economic prejudice, and emotional populism rather than principled justice. Judicial safeguards have mitigated arbitrariness but not eradicated it. 

As India aspires to uphold democratic values, the irreversibility of capital punishment becomes increasingly untenable. The moral legitimacy of a justice system cannot rest on vengeance. Justice V.R. Krishna Iyer’s observation remains timeless: “The death penalty is the surrender of reason to passion, and of law to revenge.” 

In a society governed by reason and compassion, the ultimate expression of justice should be reform, not retribution. The path forward demands courage;courage to prioritise dignity over vengeance, morality over expedience, and humanity over fear. The death penalty, an anachronism in modern democracy, must ultimately yield to a justice system founded on equality, empathy, and the sanctity of life. 

Reference(S):

1. Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 (India). 
2. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, 751 (per Bhagwati, I., dissenting) (India). 
3. Machhi Singh v. State of Punjab, (1983) 3 SCC 470 (India). 
4. Mithu v. State of Punjab, (1983) 2 SCC 277 (India).
5. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 (India). 
6. Manoj v. State of Madhya Pradesh, (2023) 2 SCC 353 (India). 
7. Irshad v. State of U.P., (2023) SCC OnLine SC ___ (India). 
8. Rajeev v. State of Kerala, (2024) SCC OnLine SC ___ (India). 
9. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 (India). 
10. Law Commission of India, 262nd Report on Death Penalty (2015) (India). 11. Project 39A, Death Penalty India Report (National Law University Delhi, 2016) (India). 12. Amnesty International, Global Report on Death Sentences and Executions 2024 (India). 13. Bharatiya Nyaya Sanhita, 2023 (India). 
11. National Crime Records Bureau, Crime in India Reports (2016–2024) (India).