Ensuring Justice Beyond Comprehension: Language Barriers in Indian Courts.

ABSTRACT 

The death penalty in India remains one of the most contentious issues in its criminal justice system, raising deep constitutional, moral, and human rights concerns. Rooted in colonial-era laws, capital punishment persists despite evolving global and domestic perspectives on the sanctity of life. The Supreme Court’s Bachan Singh v State of Punjab (1980) judgment upheld its constitutionality but confined its use to the “rarest of rare” cases, seeking to balance state authority with Article 21’s protection of life and personal liberty. However, inconsistencies in judicial interpretation, socio-economic disparities, and procedural shortcomings continue to challenge this balance. India’s legal framework provides for clemency under Articles 72 and 161 yet fails to ensure uniform application. In contrast, countries such as South Africa have abolished the death penalty as unconstitutional. This article explores India’s evolving legal and ethical position on capital punishment and advocates for reforms toward abolition and restorative justice.

 INTRODUCTION 

The death penalty continues to be a Constitutional and ethical divide in India’s criminal justice system. Following Bachan Singh (1980), the Supreme Court maintained the state’s authority to administer capital punishment but emphasized that it should be limited to instances deemed the “rarest of rare.” That formulation aimed to harmonize the State’s punitive power with the sanctity of life as per Article 21 of the Constitution, but it did not clarify who determines what is the “rarest” and according to which criteria. The death penalty involves the most essential Human Right, the Right to Life. Inconsistent sentencing practices weaken the rule of law, reinforce socio-economic prejudices and pose the danger of executing individuals when non-capital options would be adequate. The Indian Penal Code, designates death as a possible punishment for numerous crimes. The code of Criminal Procedure,(from hereon CrPC) mandates that exceptional reasons must be provided to warrant a death sentence instead of life imprisonment, and confirmation of the High Court is essential prior to execution. The authority clemency is still held by the President and Governors as per Articles 72 and 161 of the Constitution. The 262nd report from the Law Commission (2015) advocated for the elimination of the death penalty in all cases except terrorism. 

MAIN PART 

LEGAL FRAMEWORK 

Article 21 ensures the right to life and personal freedom, yet it does not in itself eliminate the death penalty. In Bachan Singh, the Supreme Court ruled that the death penalty is not inherently unconstitutional, however its application should be restricted to the “rarest of the rare” instances following thorough evaluation of both aggravating and mitigating factors. The Indian Penal Code still recognises death as the highest penalty for specific crimes, while the CrPC and appellate review processes introduce procedural protections, they fail to ensure consistency in the fact-checking process needed for capital punishment. Section 367(5) of the Criminal Procedure Code 1898, prior to its amendment in 1955, required a court sentencing a person convicted of an offence punishable with death to a punishment other than death to state the reasons why it was not awarding death sentence.

State narratives imply that capital punishment is awarded only in two categories of offences, namely treason and heinous murders. The two cases were the rulings in Jagmohan v State of Uttar Pradesh, 1973, which declared the death penalty to be constitutionally valid and the ruling of another three-member bench in Rajendra Prasad v State of Uttar Pradesh 1979, in which majority of two judges, ruled that when the trial court comes to a conclusion that the accused is guilty of murder, then the State through the Prosecutor should be called upon by the court to state whether the extreme penalty is called for. If the answer is positive, the court shall call upon the prosecutor to establish, if necessary by leading evidence, facts seeking the extreme penalty of law. It is relevant to note that back in 1997, India abstained when the Commission on Human Rights of United Nations passed a resolution, calling for an end to judicial executions in the world. However in India the Death penalty was mandatory punishment for murder in initial years after independence. 

In colonial India, death was described as one of the punishments in the Indian Penal Code, 1860, which listed a number of capital crimes. It remained in effect after independence in 1947. The first hanging in Independent India was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15 November 1949. A Bill abolishing the death penalty for India Penal Code offences in 1931 was initiated by Gaya Prasad Singh. However it was vehemently opposed. As it turned out, death penalty continues to be part of legal statutes.

JUDICIAL INTERPRETATION

The Bachan case is a landmark judgment by the Supreme Court of India on the Constitutionality of the death penalty in India. Bachan was convicted of murder and sentenced to death by the court. His appeal against the sentence was dismissed by the Hogh Court. The main issue was whether the death penalty was constitutional according to Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. The court held that it was constitutional and should be awarded on the “rarest of the rare” cases, where alternative punishment will be inadequate. 

The decision in Maneka Gandhi v Union of India required that every law of punitive detention both in its procedural and substantive aspects must pass the test of reasonableness upon collectively reading Articles 14, 19 and 21. Based on this interpretation it was held that the special reasons necessary for imposing the death penalty must relate not to the crime but to the criminal. 

RECENT DEVELOPMENTS

The Terrorist and Disruptive Activities Act 1987,(TADA), provides for the death penalty as an alternative punishment for the commission of a terrorist act. Amendment of Section 31 A of the Narcotics Drugs and Psychotropic Substances Act, 1988, prescribes a mandatory death sentence for certain offences committed by a previous offender under that act.

COMPARATIVE ANALYSIS

South Africa’s stance on the Death penalty was firmly established in the landmark Constitutional Case of S v Makwanyane (1995). The court examined Section 12 (1)(e) of the Constitution of the Republic of South Africa, 1996. Which guarantees every individual the right to freedom and security of the person, including the right not to be subjected to cruel, inhumane or degrading punishment. The court unanimously held that the death penalty violated these constitutional protections and was therefore unconstitutional.

CONCLUSION 

In conclusion, the death penalty in India remains a profound constitutional and ethical dilemma, balancing the sanctity of life under Article 21 with the state’s authority to impose capital punishment. Despite the “rarest of rare” doctrine established in Bachan Singh (1980), inconsistent judicial interpretations and socio-economic biases continue to undermine fairness and uniformity in sentencing. While legislative safeguards such as mandatory High Court confirmation and presidential clemency offer procedural protection, they fail to eliminate arbitrariness in application. In contrast, nations like South Africa have fully abolished the death penalty, recognizing it as incompatible with human dignity and constitutional rights. India’s retention of capital punishment, despite evolving human rights standards and the Law Commission’s recommendation for abolition (except in terrorism cases), highlights the urgent need for reform. The future of India’s justice system lies in aligning punishment with compassion, constitutional morality, and global human rights principles.

REFERENCE(S): LIST 

Constitution

1. India Const. art. 19, cl 1(a).
2. The Constitution of the Republic of South Africa, 1996.

Case law 

1. Bachan Singh v State of Punjab, (1980) 2 SCC 684, 751.
2. Jagmohan v State of Uttar Pradesh, (1973) 2 SCC 54.
3. Maneka Gandhi v Union of India,(1978) SC 2 597.
4. Rajendra Prasad v State of Uttar Pradesh, (1979) 33 SC 916.
5. S v Makwanyane (1995)  ZACC 3 BCLR 665.

Legislation 

1. Code of Criminal Procedure, 1973.
2. The Terrorist and Disruptive Activities (Prevention) Act, 1987.
3. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.

Journal Articles 

1. Muralidhar, S. HANG THEM NOW, HANG THEM NOT: INDIA’S TRIVAILS WITH THE DEATH PENALTY, 40. J.I.L.I. 143-73(1998).
2. Vatsa, A. Death Penalty In India: An Examination Of The Historical Discourse. 80, P.I.H.C. 1174-11182(2019).