Revisiting the Death Penalty Debate in India: Retribution vs.  Reform 

Abstract  

The death penalty represents the State’s ultimate punitive power—the taking of life through  legal sanction. While India continues to retain capital punishment for the “rarest of rare” cases,  the jurisprudential foundations, policy justifications, and human rights concerns surrounding it  have been increasingly questioned. This article explores the theoretical debate between  retributive and reformative justice, critically examines the constitutional and statutory  framework in India, evaluates the inconsistencies in judicial application, and situates India’s  death penalty discourse within the global movement toward abolition. With insights from the  Law Commission, the Death Penalty India Report, and recent Supreme Court verdicts, the  article argues that India must reconsider its moral and constitutional commitment to capital  punishment. 

Introduction 

In a constitutional democracy founded on the rule of law and human dignity, the death penalty  poses a paradox. On the one hand, it is the harshest punishment provided by law. On the other,  it is increasingly viewed as inconsistent with evolving standards of decency and human rights.  India retains the death penalty for heinous crimes but prescribes it sparingly under the “rarest  of rare” doctrine. Yet, as miscarriages of justice come to light and global jurisprudence moves  toward abolition, the continued relevance of capital punishment warrants a deeper, informed  examination. The recent codification of the Bhartiya Nyaya Sanhita, 2023 (BNS), replacing  the Indian Penal Code, 1860, offers an opportunity to reassess the legislative and moral  foundations of capital punishment. 

Legal Status of the Death Penalty in India  

India is a “retentionist” country—capital punishment is constitutionally and statutorily valid.  Key provisions include: 

No person shall be deprived of his life or personal liberty except according to procedure  established by law,” states Article 21 of the Constitution.

Indian Penal Code, 1860: Death is prescribed for offences like murder (Section 302),  terrorism (Section 121), rape resulting in death (Section 376A), and kidnapping for  ransom (Section 364A). 

The death penalty is still allowed under the Bhartiya Nyaya Sanhita, 2023. Key sections  include: 

Clause 101 – Punishment for murder: Death or imprisonment for life and fine. 

Clause 111– Terrorist acts resulting in death: Punishable with death or life  imprisonment. 

Clause 121 – Waging war against the State: Punishable with death or life imprisonment. 

Clause 176(2) – Murder committed by a group during dacoity: Punishable with death  or life imprisonment. 

Although BNS adopts contemporary language and classification, it maintains the  substantive penal framework of the IPC regarding capital punishment. 

Code of Criminal Procedure, 1973, Section 354(3): Mandates that a death sentence  must include “special reasons”, effectively making life imprisonment the rule and death  the exception. 

Doctrinal Evolution: “Rarest of Rare” Standard  

In Bachan Singh v. State of Punjab, the Supreme Court upheld the constitutional validity of  the death penalty, but limited its application to the “rarest of rare cases where the alternative  option is unquestionably foreclosed.”

This was followed by: 

Machhi Singh v. State of Punjab: Laid down five categories for rarest of rare cases—manner  of commission, motive, magnitude, anti-social nature, and personality of the victim. However,  this framework has proved subjective and inconsistently applied, as shown by varying High  Court and Supreme Court decisions.

Retribution: The Argument for Death Penalty  

• Moral Proportionality

Proponents of retributive justice argue that the punishment must reflect the gravity of the crime.  In this view, heinous crimes like premeditated murder or acts of terrorism demand death. 

• Deterrence

According to the deterrence principle, people won’t conduct the same crimes if they fear being  executed. Even though the deterrent effect is still up for debate, many people still think it  benefits society. 

• Public Sentiment

In high-profile crimes (e.g., the 2012 Nirbhaya case), public opinion overwhelmingly  demanded capital punishment. Democracies often weigh public confidence in law enforcement  and justice systems. 

Reform: Arguments Against the Death Penalty  

• Risk of Miscarriages of Justice

Multiple wrongful convictions have surfaced in India. In Ankush Maruti Shinde v. State of  Maharashtra, the Supreme Court acquitted convicts who had spent 16 years on death row for  a crime they did not commit. 

The Death Penalty India Report (2016) by Project 39A at NLU Delhi revealed:   74.1% of death row prisoners belonged to economically vulnerable backgrounds.   76% were from backward classes or religious minorities. 

Many lacked competent legal representation. 

No Empirical Evidence of Deterrence

The Law Commission’s 262nd Report (2015) concluded that:

“The deterrence concept states that if people dread execution, they will not commit the same  crimes. Many still believe that the deterrent impact is beneficial to society, despite the fact that  this is still up for debate.” 

• Arbitrary and Inconsistent Application

Studies show wide variation in how the “rarest of rare” standard is applied. In Rajendra  Pralhadrao Wasnik v. State of Maharashtra, the Court shifted from death to life  imprisonment based on the socio-economic background and mental state of the accused.  

• International Human Rights Concerns

India is a signatory to the International Covenant on Civil and Political Rights (ICCPR), which  urges states to move toward abolition. The UN General Assembly’s 2020 resolution called for  a moratorium on executions. India continues to abstain from supporting this resolution. 

Recent Supreme Court Developments: Reformative Trends  

In Manoj v. State of Madhya Pradesh, a three-judge bench emphasized the need for a  comprehensive psychological evaluation of the convict before imposing the death penalty. The  Court observed that sentencing must be individualised and evidence-based, not merely based  on the nature of the crime. 

Similarly, in Mofil Khan v. State of Jharkhand, the death sentence was commuted because  the trial court failed to consider mitigating circumstances, including the young age and poverty  of the accused. These cases signal a growing constitutional discomfort with capital punishment. 

Law Commission’s Recommendations  

The clearest argument for abolition to date was presented in the 262nd Law Commission Report  (2015), which was led by Justice A.P. Shah, recommending: 

• Abolition of death penalty for all offences except terrorism and waging war. 
• Focus on victim-centric justice and reparative mechanisms. 
• Emphasis on human dignity, non-discrimination, and rehabilitation.

The Commission stated: 

“The death sentence is not a more efficient way to achieve the penological goal of deterrence  than life in prison.” 

Global Perspective: A Move Towards Abolition  

As of 2024: 

• The death penalty has been outlawed in more than 110 nations. 
• South Africa declared it unconstitutional in S v. Makwanyane. 
• United Kingdom, Nepal, and Australia have fully abolished it. 
• Even retentionist nations like the USA have seen significant moratoriums at the state  level (e.g., California, Illinois). 
• India remains one of the few democracies to still carry out executions, such as the 2015 hanging  of Yakub Memon and the 2020 execution of the Nirbhaya case convicts. 

The Bhartiya Nyaya Sanhita: A Missed Opportunity?  

The BNS 2023 could have offered a transformative moment to initiate legislative abolition or  at least restrict capital punishment further. Instead, it has replicated the IPC’s framework with  minimal reform: 

• The death penalty continues as a sentencing option in broadly defined offences. 
• No mention is made of procedural safeguards or a statutory standard for applying the  “rarest of rare” doctrine. 
• There is no legislative guidance on mitigating circumstances, despite Supreme Court  recommendations in Sangeet v. State of Haryana (2013) and Shankar Kisanrao  Khade v. State of Maharashtra (2013).

Hence, BNS reflects continuity, not change, on this crucial penal issue.  The Path Forward: Policy Recommendations

• Abolish the Death Penalty: Introduce legislation to repeal capital punishment entirely  or restrict it further to exceptional national security cases. 
• Develop Alternatives: Create non-remissible life sentences with parole safeguards for  grievous offences. 
• Sentencing Reform: Institutionalize sentencing hearings with trained mental health  professionals and criminologists. 
• Strengthen Legal Aid: Ensure all death row prisoners have access to competent, well resourced legal defence. 
• Ratify UN Protocols: Align India’s obligations under international human rights law  by supporting UN moratorium resolutions. 

Conclusion  

The death penalty debate in India is not just a question of criminal policy—it is a constitutional  and moral question. The irreversible nature of the sentence, combined with systemic  inequalities and judicial inconsistencies, renders its continued use problematic. While society  demands justice, vengeance cannot be the foundation of a civilised legal system. India must  now choose: will it cling to a relic of punitive retribution, or will it embrace a justice system  grounded in dignity, reform, and constitutional morality? The death penalty may not be  unconstitutional per se, but its retention is increasingly indefensible in a rights-based  democracy. 

Footnotes (Bluebook Style)  

1. Indian Penal Code, 1860, §§ 121, 302, 364A, 376A.
2. Code of Criminal Procedure, 1973, § 354(3).
3. Bhartiya Nyaya Sanhita, 2023 (Government of India)
4. India Const. art. 21
5. Law Commission of India, 262nd Report on the Death Penalty (2015).
6. Death Penalty India Report (2016), National Law University, Delhi. 7. Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
7. Machhi Singh v. State of Punjab, (1983) 3 SCC 470
8. Shankar Kisanrao Khade v. State of Maharashtra (2013)
9. Ankush Maruti Shinde v. State of Maharashtra, (2019) 15 SCC 470. 11. Manoj v. State of M.P., 2022 SCC OnLine SC 677.
10. S v. Makwanyane, (1995) ZACC 3 (Constitutional Court of South Africa). 13. Mofil Khan v. State of Jharkhand, (2021) 2 SCC 520.
11. Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460.
12. Sangeet v. State of Haryana, (2013) 2 SCC 452
13. State (NCT) of Delhi vs Ram Singh & others (2016) 12 SCC 661
14. International Covenant on Civil and Political Rights (ICCPR), adopted Dec. 16, 1966, 999 U.N.T.S. 171
15. Amnesty International Death Penalty Reports (2023)
16. United Nations General Assembly Resolution 75/183 (2020).