DEATH PENALTY IN INDIA: DETERRENCE OR RETRIBUTION

ABSTRACT

In the world of offences and criminal activities, there are many punishments are made by the judicial and legislative members who are the main bodies to charge the significant aspects of the criminal jurisprudence but the most cruel punishment given to any criminal is death penalty given in very serious offences¹. In the diverse and democractic country, India, which is the most emotional and tolerant country in the world, does not favour death penalty and mostly prefer to give life sentences in many cases because death penalty is categorised in the category of the ‘rarest of rare’ cases by the Indian judiciary². Futhermore, the research paper critically gives the rationale behind the retention and implementation of capital punishment in India, focusing on whether it serves as an effective deterrent to crime or merely functions as a tool of retributive justice³.

The paper explains about the historical changes in the country as different judgements are passed by the Supreme Court which shaped the modern framework for the capital punishment, such as Bachan Singh vs State of Punjab⁴ and Macchi Singh vs State of Punjab⁵. The assessment of the research paper results with the subject of exploring the socio-economic and psychological biases that often influence death row sentencing in India, disproportionately affecting marginalized communities⁶.

Ultimately, the paper will argue on the pursuit of justice that whether the Indian criminal justice system can align better forms of punishment, excluding the death penalty as it stands against the human dignity, reformative justice, and constitutional morality⁷ and may also contradict criminological theories and international human rights standards in a negative way, disrupting peace and harmony in society⁸.

KEYWORDS

Death Penalty, Capital Punishment, Rarest‑of‑Rare Doctrine, Deterrence vs. Retribution, Indian Judiciary, Supreme Court Judgments, Bachan Singh case, Macchi Singh case, Criminal Jurisprudence, Socio‑economic Biases, Marginalised Communities, Human Dignity, Reformative Justice, Constitutional Morality, International Human Rights Standards, Criminological Theories, Legislative Framework, Peace and Harmony

INTRODUCTION

The death penalty, as the most extreme form of punishment, has long been a subject of intense legal, moral, and philosophical debate across the world. In India, a democratic republic grounded in constitutional values, the issue of capital punishment evokes strong and often polarized opinions. While some view it as a necessary deterrent against heinous crimes, others see it as a relic of a retributive justice system incompatible with human rights and modern reformative ideals. The Indian legal system, though retaining the death penalty, emphasizes its use only in the “rarest of rare” cases, a doctrine laid down by the Supreme Court in Bachan Singh v. State of Punjab⁹. However, the application of this principle has not been without controversy, often criticized for being arbitrary and inconsistent¹⁰.

The rationale behind capital punishment is largely founded on two opposing theories: deterrence and retribution[1]. The deterrent theory posits that the fear of the death penalty discourages individuals from committing grave offences, thereby maintaining law and order¹¹. On the other hand, the retributive theory is based on the notion of moral vengeance — that the offender must suffer in proportion to the crime committed, especially in cases of murder or terrorism¹². In a country like India, where public opinion, political pressure, and judicial discretion significantly influence sentencing, the debate between these two theories gains heightened relevance. Moreover, global trends indicate a gradual shift away from the death penalty, prompting questions about India’s position and the effectiveness of capital punishment in achieving justice¹³.

This research paper aims to critically analyze the relevance and application of the death penalty in India, examining whether it functions primarily as a deterrent or serves as a tool of retribution. It will explore judicial interpretations, statistical evidence on crime rates, international human rights obligations, and the socio-legal implications of capital punishment. By evaluating both theoretical underpinnings and practical realities, the study seeks to contribute to the ongoing discourse on whether India should retain, reform, or abolish the death penalty in pursuit of a more equitable criminal justice system.

HISTORICAL AND LEGAL EVOLUTION OF DEATH PENALTY IN INDIA

he death penalty has been an integral aspect of India’s criminal justice system, both in its ancient jurisprudence and modern legal framework. Tracing its roots from early civilizations to contemporary legal debates, the evolution of capital punishment in India reflects the socio-political and legal transformations of the country over centuries.

Historically, the practice of awarding the death penalty in India dates back to ancient Hindu scriptures and legal texts such as the Manusmriti and Arthashastra, which prescribed capital punishment for various crimes, including murder, theft, and treason. These texts justified the death penalty as a means of retribution and social deterrence. However, the emphasis was also laid on the principles of proportionality, repentance, and reform, depending on caste and social hierarchy, demonstrating the influence of social stratification in punishment¹⁴. The medieval period, particularly under Mughal rule, saw the continuation of capital punishment, often administered in cruel and inhumane forms¹⁵.

The British colonial administration codified and systematized the criminal laws in India through the Indian Penal Code, 1860 (IPC), which remains the cornerstone of India’s penal law to this day. Section 302 of the IPC prescribes the death penalty or life imprisonment for murder, and various other sections of the IPC and special laws provide capital punishment for offences such as treason, terrorism, and certain drug-related crimes¹⁶. The Code of Criminal Procedure (CrPC), initially enacted in 1898 and later replaced by the CrPC of 1973, provides procedural safeguards for death penalty cases, including the requirement that a death sentence must be confirmed by a High Court¹⁷.

Post-independence, the Indian Constitution laid down the foundation for a just legal order, incorporating the right to life and personal liberty under Article 21. This article has been the basis of constitutional challenges to the death penalty. The landmark case of Jagmohan Singh v. State of Uttar Pradesh (1973) was the first to challenge the constitutionality of capital punishment. The Supreme Court upheld its validity, ruling that it did not violate Article 21 since the death sentence was awarded through a procedure established by law¹⁸. In Rajendra Prasad v. State of U.P. (1979), the Court stressed the need for rare use of capital punishment, advocating for its abolition except in the rarest of rare cases¹⁹.

The pivotal judgment came in Bachan Singh v. State of Punjab (1980), wherein the Supreme Court laid down the “rarest of rare” doctrine, which remains the guiding principle for awarding the death penalty in India. The Court held that life imprisonment is the rule and the death penalty is an exception, to be awarded only when the alternative is unquestionably foreclosed²⁰. Subsequently, Machhi Singh v. State of Punjab (1983) elaborated upon the doctrine by laying down five categories where the death sentence could be justified²¹.

Despite this jurisprudential narrowing, India has not abolished the death penalty. The Law Commission of India, in its 262nd Report (2015), recommended its abolition for all crimes except terrorism and waging war against the nation, citing arbitrariness, irreversibility, and lack of deterrent value^2[2]. However, the recommendation has not been implemented. Meanwhile, the retention of capital punishment continues, with recent executions such as those in the Nirbhaya rape case (2020) reflecting public demand for harsh retribution²³.

According to my opinion, the evolution of the death penalty in India illustrates a complex interplay between tradition, colonial legacy, constitutional values, and evolving jurisprudence. While the judiciary has sought to restrict its application through judicial guidelines, the political and societal consensus on its complete abolition remains elusive.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The death penalty remains one of the most controversial issues in Indian criminal jurisprudence. It reflects the tension between society’s demand for retribution and the individual’s right to life and dignity. India retains the death penalty but restricts its application through constitutional safeguards and a robust statutory framework. These provisions are designed to ensure that capital punishment is awarded only after a fair trial, through due process, and only in the “rarest of rare” cases.

Constitutional Provisions

The Indian Constitution does not explicitly abolish the death penalty, it provides a strong framework of fundamental rights and procedural safeguards to regulate its use. The most significant among these is Article 21, which guarantees the right to life and personal liberty, subject only to a fair and just legal process. Additionally, Articles 72 and 161 empower the President and Governors to grant pardons and commute sentences, acting as a final check against judicial errors. These constitutional provisions ensure that the death penalty is imposed sparingly and with due respect for human rights[3].

The Indian Constitution is not explicitly abolishing the death penalty, embeds procedural and substantive safeguards to protect individuals from arbitrary and unjust imposition of capital punishment which is also explained below:

Article 21 – Protection of Life and Personal Liberty

Article 21 of the Constitution guarantees that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This provision lays down the foundation for the right to life and has been expansively interpreted by the Supreme Court to include the right to a fair trial, legal aid, protection against torture, and dignity even in custody²⁴.

In Maneka Gandhi v. Union of India, the Supreme Court gave Article 21 a transformative interpretation by holding that the “procedure established by law” must be just, fair, and reasonable, and not arbitrary, fanciful, or oppressive²⁵. This widened the scope of procedural due process and established that the death penalty must pass the test of fairness at every stage—from investigation to conviction and sentencing.

Articles 72 and 161 – Executive Clemency Powers

Articles 72 and 161 of the Constitution vest the President of India and the Governors of states, respectively, with the power to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit or commute the sentence of any person. These provisions act as a last-resort humanitarian safeguard for convicts on death row²⁶.

In Epuru Sudhakar v. Government of Andhra Pradesh, the Supreme Court held that while the clemency powers under Articles 72 and 161 are discretionary, they are not immune from judicial review in cases of mala fide, arbitrary, or discriminatory exercise²⁷. This ruling reaffirmed that executive discretion must also adhere to constitutional values.

Statutory Provisions

The statutory framework governing the death penalty in India is primarily embedded in two central legislations — the Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure, 1973 (CrPC). While the IPC defines the offences that are punishable by death, the CrPC prescribes the procedure for investigation, trial, sentencing, and appeal in such cases. Together, these laws ensure that capital punishment is awarded only in legally sanctioned circumstances and in a manner consistent with principles of fairness, justice, and due process. Some of the statutory provisions of the Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure, 1973 (CrPC) are given below:

Indian Penal Code, 1860

The IPC prescribes the death penalty for a range of heinous offences. The most significant provisions include:

Section 302: Punishment for murder. It provides for the death penalty or life imprisonment, along with a fine[4]. Courts usually apply the “rarest of rare” doctrine in deciding whether to impose the death penalty under this section²⁸.

Section 121: Waging war against the Government of India, which is considered an act of sedition and treason²⁹.

Section 376A: Added through the Criminal Law (Amendment) Act, 2013, this section provides for the death penalty in cases of rape where the act results in the victim’s death or leaves her in a persistent vegetative state³⁰.

Section 364A: Involves kidnapping for ransom, particularly when accompanied by threats to life or actual harm³¹.

Section 396: Dacoity with murder is also punishable with death under specific aggravating circumstances³².

These provisions reflect the legislature’s intent to retain capital punishment for crimes that shock the collective conscience of society.

Code of Criminal Procedure, 1973

The CrPC provides important procedural safeguards to ensure that the death penalty is not imposed arbitrarily:

Section 235(2): Mandates a separate sentencing hearing post-conviction, where the accused must be given an opportunity to present mitigating factors such as age, health, background, and possibility of reform³³.

Section 354(3): Requires the court to record “special reasons” for awarding the death sentence instead of life imprisonment. This is crucial in preventing routine imposition of capital punishment³⁴.

Section 366: States that no death sentence passed by a Sessions Court shall be carried out unless it is confirmed by the High Court, adding an additional layer of judicial scrutiny^3[5].

Sections 377 and 378: These sections deal with appeals by the State and the accused, respectively, enabling both sides to seek review or enhancement/reduction of sentence³⁶.

Section 482: Recognizes the inherent powers of the High Court to make orders necessary to secure the ends of justice or prevent abuse of legal process³⁷.

Juvenile Justice (Care and Protection of Children) Act, 2015

Section 21 of this Act strictly prohibits sentencing a juvenile (below 18 years) to death or life imprisonment without the possibility of release³⁸. This aligns India with international legal obligations under the UN Convention on the Rights of the Child and reflects a rehabilitative approach to juvenile justice.

• Judicial Doctrines and Interpretation

Supreme Court has given several judgements in which it has mentioned the judicial doctrines and the interpretation on the death penalty in India. It has played a vital role in regulating the imposition of the death penalty:

• In Bachan Singh v. State of Punjab, the Supreme Court upheld the constitutionality of the death penalty and laid down the “rarest of rare” doctrine. The Court stated that capital punishment can only be imposed when the alternative option of life imprisonment is unquestionably foreclosed³⁹.
• In Machhi Singh v. State of Punjab, the Court elaborated on the aggravating and mitigating circumstances, such as brutality, social impact, and the possibility of reform, which must be considered during sentencing⁴⁰.
• In Shatrughan Chauhan v. Union of India, the Court emphasized the need to consider delays in the execution of mercy petitions, mental illness of the convict, and solitary confinement as factors rendering the execution unconstitutional⁴¹.

The Indian Constitution does not abolish the death penalty, it ensures that the imposition of such a sentence is subject to stringent legal and procedural safeguards. The Indian judiciary and legislature have maintained a cautious and conservative approach, ensuring that capital punishment is not used indiscriminately[6]. In balancing the interests of justice, deterrence, and human dignity, the constitutional and statutory provisions work together to ensure fairness, proportionality, and accountability in the use of the death penalty.

‘RAREST OF RARE’ DOCTRINE: JUDICIAL INTERPRETATION

The ‘rarest of rare’ doctrine is a judicially evolved principle by the Supreme Court of India aimed at guiding the imposition of the death penalty. Rooted in the idea of balancing the mitigating and aggravating circumstances of an offence, this doctrine attempts to restrict the imposition of capital punishment to only those cases where the alternative of life imprisonment is unquestionably foreclosed.

The foundation of this doctrine was laid down in the landmark case of Bachan Singh v. State of Punjab, where the Supreme Court upheld the constitutionality of the death penalty under Section 302 of the Indian Penal Code, 1860, read with Section 354(3) of the Code of Criminal Procedure, 1973. The Court observed that death penalty should be awarded only in the “rarest of rare cases” where the alternative option is unquestionably foreclosed⁴². This phrase was not defined, but the Court emphasised the need for sentencing discretion to be exercised judicially, considering both aggravating and mitigating factors⁴³.

Further elaboration came in Machhi Singh v. State of Punjab, where Justice Thakkar laid down specific categories such as the manner of commission of murder, motive, antisocial or socially abhorrent nature of crime, and magnitude of the offence, as guiding parameters to determine if a case qualifies as rarest of rare⁴⁴. The Court opined that when collective conscience of society is shocked, the death penalty may be justified⁴⁵.

Judicial interpretations over time have emphasised that the doctrine is not to be mechanically applied[7]. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, the Supreme Court stressed that sentencing must follow a principled and reasoned analysis, and procedural fairness must be adhered to, especially considering mitigating circumstances and the possibility of reformation⁴⁶. The Court further held that failure to consider such factors would render the sentencing unconstitutional⁴⁷.

In Swamy Shraddananda (2) v. State of Karnataka, the Supreme Court introduced the concept of life imprisonment for the rest of the convict’s life as an alternative to the death penalty, to balance the necessity of punishment with the possibility of future reform⁴⁸. This was later upheld in Union of India v. V. Sriharan, where the Court held that the ‘special category’ of punishment—imprisonment till the end of the natural life of the convict—could be applied to cases falling just short of the ‘rarest of rare’ threshold⁴⁹.

The doctrine was revisited in Shatrughan Chauhan v. Union of India, which underscored the importance of considering post-conviction circumstances such as mental illness, delay in execution, and procedural lapses before confirming the death sentence⁵⁰.

Through these cases, the Supreme Court has refined the ‘rarest of rare’ doctrine as a constitutional standard aimed at humanising the criminal justice system while acknowledging the gravity of heinous crimes[8]. This doctrine, while preserving judicial discretion, ensures that the death penalty is not imposed arbitrarily and remains a punishment of last resort.

THE ROLE OF THE SUPREME COURT AND CLEMENCY POWERS OF THE PRESIDENT

The death penalty jurisprudence in India is shaped significantly by the interpretative role of the Supreme Court and the constitutional clemency powers vested in the President under Article 72 of the Constitution of India. Both these institutions function as vital checks against the miscarriage of justice in capital punishment matters, reflecting a balance between judicial scrutiny and executive mercy.

The Supreme Court plays a pivotal role in scrutinizing death penalty cases under its appellate, review, and curative jurisdiction. After a trial court awards the death sentence, it must be confirmed by the High Court as per Section 366 of the Code of Criminal Procedure, 1973⁵¹. The accused then has the right to appeal to the Supreme Court under Article 136 of the Constitution. The Supreme Court has repeatedly laid down that the imposition of the death sentence must pass the test of fairness, reasonableness, and proportionality⁵². The Court examines aggravating and mitigating factors, socio-economic conditions of the accused, the possibility of reformation, and the impact on the collective conscience of society⁵³.

Moreover, in Bachan Singh v. State of Punjab, the Supreme Court upheld the constitutionality of the death penalty and laid down the doctrine of the “rarest of rare” as a guiding principle⁵⁴. This doctrine is essential in ensuring that capital punishment is used sparingly and only in cases where alternative punishment is unquestionably foreclosed. The Court further reinforced due process in death penalty cases through its judgments in Santosh Bariyar, Shatrughan Chauhan, and Mohd. Arif, ensuring procedural fairness, mandatory consideration of mitigating factors, and greater judicial scrutiny in capital appeals⁵⁵.

Despite the rigorous judicial scrutiny, the Constitution also provides for an executive safeguard through the clemency power of the President under Article 72. This power allows the President to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offence, particularly in cases involving the death sentence⁵⁶. This power is not bound by the limitations of judicial reasoning and allows for a broader perspective including humanitarian, diplomatic, and political considerations⁵⁷.

The exercise of clemency power, however, is not absolute and is subject to judicial review[9]. In Epuru Sudhakar v. Government of Andhra Pradesh, the Supreme Court held that while the President’s decision is not justiciable on its merits, it can be examined on grounds such as arbitrariness, mala fide intent, or violation of constitutional principles⁵⁸. The Court clarified that executive pardon is an act of grace, but it cannot be exercised arbitrarily or in a manner that defeats the ends of justice⁵⁹.

Further, in Kehar Singh v. Union of India, the Supreme Court affirmed that while the President is not sitting in appeal over the judiciary, he may consider the evidence afresh, seek additional inputs, and act in a manner appropriate to the executive realm⁶⁰. However, the power must be exercised on the advice of the Council of Ministers as mandated under Article 74(1), making it a political-executive decision rather than a personal prerogative of the President⁶¹.

Thus, the Supreme Court’s adjudicative function and the President’s clemency power operate in tandem as part of India’s constitutional safeguards against unjust executions[10]. While the judiciary ensures a legal framework for fair sentencing and proportionality, the executive provides a last window of mercy that can account for elements beyond the scope of judicial reasoning.

GLOBAL TRENDS IN CAPITAL PUNISHMENT: ABOLITION VS RETENTION

Capital punishment has remained a deeply polarising issue in criminal justice systems worldwide. While traditionally employed to serve retributive justice, incapacitate dangerous criminals, and deter heinous crimes, modern trends indicate a global shift away from its practice. The landscape of capital punishment is now divided between retentionist states, which still uphold the death penalty, and abolitionist states, which have either abolished it in law or ceased to apply it in practice.

Over the last few decades, there has been an unmistakable movement towards abolition, both de jure and de facto. According to Amnesty International’s 2024 annual report, 112 countries have abolished the death penalty for all crimes, 9 have abolished it for ordinary crimes, and 23 countries are considered abolitionist in practice—having not executed anyone in the last 10 years despite retaining the law⁶². This signifies that over two-thirds of the world’s countries have moved away from capital punishment, aligning with international human rights norms and evolving moral perspectives.

The United Nations has been a strong advocate for the abolition of capital punishment, particularly under its various human rights mechanisms. The International Covenant on Civil and Political Rights (ICCPR) does not outlaw the death penalty per se but urges nations to restrict its use and work toward abolition. Article 6 of the ICCPR provides that the death penalty, if not abolished, may only be imposed for the “most serious crimes” and must be carried out under stringent safeguards⁶³. The Second Optional Protocol to the ICCPR, adopted in 1989, specifically aims at the abolition of the death penalty and has been ratified by over 90 countries⁶⁴.

In Europe, abolition is near universal. The European Union prohibits the death penalty as a condition for membership. The Council of Europe, through Protocols 6 and 13 to the European Convention on Human Rights, requires member states to abolish the death penalty in peacetime and under all circumstances, respectively⁶⁵. Even in cases involving terrorism or war, European nations have opted for life imprisonment over execution, viewing the death penalty as incompatible with the principles of human dignity[11].

Meanwhile, several Asian and Middle Eastern countries remain firm in their retentionist stance. China, Iran, Saudi Arabia, and Egypt are among the countries with the highest execution rates globally⁶⁶. However, transparency remains a significant concern. For instance, China does not publicly disclose the number of executions, but it is widely believed to carry out more executions than the rest of the world combined⁶⁷. In many of these countries, the death penalty is also used for non-violent crimes such as drug trafficking, corruption, and even blasphemy, contrary to international legal standards.

In Africa, the trend toward abolition is gradually gaining momentum. Countries such as Rwanda, Burkina Faso, and Benin have abolished the death penalty in recent years. South Africa abolished capital punishment in 1995 following the landmark decision in State v. Makwanyane, where the Constitutional Court ruled it incompatible with the right to life and dignity⁶⁸.

In the United States, while federal law and several states retain the death penalty, there has been a significant decline in executions and new death sentences. As of 2024, 23 states have abolished capital punishment, while several others have imposed moratoriums⁶⁹. Additionally, growing public awareness of wrongful convictions, racial disparities, and botched executions has led to greater skepticism about the continued use of the death penalty.

India, though a retentionist country, follows the “rarest of rare” doctrine laid down by the Supreme Court in Bachan Singh v. State of Punjab, restricting the imposition of death sentences to the most heinous and exceptional cases⁷⁰. Nevertheless, Indian courts have continued to award capital punishment in cases involving terrorism, sexual offences against children, and gruesome murders. The Law Commission of India, in its 262nd Report (2015), recommended abolishing the death penalty for all crimes except terrorism-related offences and waging war, citing its limited deterrent value and potential for judicial error⁷¹.

Several arguments have fueled the abolitionist momentum. Firstly, empirical evidence does not conclusively support the deterrent effect of capital punishment. Studies from various countries have found no significant correlation between the death penalty and lower homicide rates⁷². Secondly, the irreversible nature of the punishment raises grave concerns about miscarriages of justice, especially in countries where the judiciary suffers from systemic flaws or political influence. Cases of innocent individuals being executed have prompted global outrage and strengthened calls for abolition.

Moreover, economic and procedural concerns also weigh against the death penalty. The legal process involved in capital cases is often more expensive and time-consuming than life imprisonment, due to the extensive appeals, reviews, and clemency procedures mandated to safeguard the accused’s rights⁷³.

In short, the global trend is clearly tilting towards the abolition of capital punishment, driven by human rights considerations, changing societal values, and recognition of its inefficacy in crime prevention[12]. While some nations continue to hold on to the death penalty due to cultural, political, or security reasons, the overarching movement at the international level strongly favors a world without state-sanctioned executions. As human rights evolve into a universal legal language, the future of the death penalty appears increasingly bleak.

CRITICAL ANALYSIS: DETERRENCE VS RETRIBUTION

The debate between deterrence and retribution as justifications for the death penalty remains deeply contested in India’s criminal justice landscape. In theory, deterrence posits that the imposition of capital punishment dissuades potential offenders from committing heinous crimes due to fear of the ultimate punishment. Retribution, on the other hand, is rooted in the idea of moral vengeance — that those who commit the gravest crimes deserve the gravest penalties as a form of justice for the victims and society. In the Indian context, courts have often vacillated between both approaches. The Supreme Court in Bachan Singh v. State of Punjab laid down the “rarest of rare” doctrine, indicating that the death penalty should be reserved for cases where the alternative option of life imprisonment is unquestionably foreclosed, thereby leaning toward a retributive rationale while still weighing deterrence as a legitimate objective.⁷⁴ However, empirical studies and legal scholarship suggest that there is little conclusive evidence to support the deterrent value of the death penalty in India.⁷⁵ Despite this, public sentiment and political rhetoric often advocate for capital punishment in cases involving sexual assault, terrorism, and child murder, believing it to be a necessary evil for the sake of societal order.⁷⁶ Ethical concerns, however, challenge this logic. The irreversible nature of the punishment raises serious moral questions, especially in a system fraught with investigative errors, caste and class biases, and limited access to competent legal representation.⁷⁷ There have been multiple instances, such as the acquittals of death row prisoners due to fresh evidence, which highlight the possibility of grave miscarriages of justice.⁷⁸

Moreover, a retributive model of justice often disregards the rehabilitative potential of individuals and may instead reinforce a culture of vengeance rather than justice. From a human rights perspective, capital punishment conflicts with the evolving standards of dignity, fairness, and the right to life enshrined in Articles 14 and 21 of the Indian Constitution.⁷⁹ The Supreme Court, while upholding the death penalty in some cases, has also acknowledged the need to interpret constitutional morality in a manner that gives primacy to life and dignity.⁸⁰ The Law Commission of India, in its 262nd Report, recommended abolishing the death penalty for all crimes except terrorism-related offences and waging war against the nation, recognizing the disproportionate application of the penalty and its incompatibility with human rights standards.⁸¹ This presents a significant ethical conundrum—should the State kill to prove killing is wrong? Consequently, there is an emerging consensus among jurists and scholars that a middle path may be more prudent[13]. This could involve replacing the death penalty with life imprisonment without the possibility of parole in the most egregious cases, thereby satisfying the demand for proportionate punishment while eliminating the risk of wrongful executions.⁸² Such an approach would allow the criminal justice system to uphold both justice and humanity. It would also align India with the global movement towards abolition and reaffirm its commitment to constitutional ideals and international human rights obligations.⁸³ Thus, while deterrence and retribution each have their place in the penal philosophy, the contemporary Indian context demands a nuanced, rights-oriented, and principled approach that balances justice with compassion.

WAY FORWARD AND RECOMMENDATIONS

The future of the death penalty in India hinges on a thoughtful reassessment of its place in a democratic society that upholds constitutional morality and human rights. A key recommendation is to move towards a moratorium on executions with the ultimate aim of abolition, as advocated by the Law Commission of India in its 262nd Report⁸⁴. This approach allows for a phased transition while acknowledging the complexities involved in a complete abolition. Judicial reforms are equally essential, particularly in ensuring that death penalty cases receive consistent and rigorous procedural safeguards. The Supreme Court itself in the case of Machhi Singh v. State of Punjab has highlighted concerns of arbitrariness in awarding capital punishment, indicating a need for a more structured sentencing framework⁸⁵. Mandatory judicial review mechanisms, better legal aid, and psychological assessments must become standard practice in capital cases.

Additionally, strengthening the criminal justice system is critical to prevent wrongful convictions and ensure fair trials. This involves improving investigative standards, forensic capabilities, and training of law enforcement personnel, particularly to reduce caste, class, and communal biases⁸⁶. Moreover, policy alternatives to capital punishment should be seriously considered. Life imprisonment without parole in the gravest offences can serve the objectives of deterrence and retribution without crossing the line of irrevocable punishment⁸⁷.

Restorative justice models, which emphasize reconciliation, rehabilitation, and victim involvement in the justice process, offer a more humane and forward-looking approach⁸⁸. These models not only shift the focus from punitive justice but also promote healing and societal reintegration. As India continues to evolve as a constitutional democracy, aligning its penal policy with international human rights standards and the values enshrined in Articles 14 and 21 of the Constitution becomes imperative⁸⁹. A nuanced, compassionate, and legally sound path forward must replace retributive instincts with rational and humane policy choices[14].

CONCLUSION

The continued existence of the death penalty in India reflects a profound tension between the goals of justice, societal expectations, and constitutional morality. While capital punishment remains legally sanctioned, its application is tightly circumscribed by judicial doctrines such as the “rarest of rare” principle, aimed at preventing arbitrariness and ensuring proportionality. The debate between deterrence and retribution continues to dominate academic, legal, and political discourse, with both theories offering compelling yet contested justifications. However, empirical data and global trends increasingly question the efficacy of the death penalty as a deterrent and highlight its irreversible and discriminatory nature⁹⁰.

India stands at a crossroads—torn between historical reliance on the death penalty and growing global and domestic pressures to abolish it in favor of more humane and reformative alternatives. The involvement of the judiciary and the President through clemency powers provides procedural safeguards, but concerns around wrongful convictions, systemic biases, and moral legitimacy persist⁹¹. The 262nd Report of the Law Commission of India and the evolving international human rights framework provide a roadmap for reform, if not abolition⁹².

Ultimately, the path forward demands a principled and rights-based approach that reconciles justice with compassion[15]. Replacing capital punishment with life imprisonment without parole in the gravest cases, strengthening procedural safeguards, and investing in restorative justice models can better align India’s criminal justice system with its constitutional ideals and international obligations⁹³. The goal must not only be to punish but to ensure that punishment itself upholds the values of dignity, fairness, and humanity⁹⁴.

REFERENCE(S):

Statutes And Treaties

• The Constitution of India, 1950.
• Indian Penal Code, Act No. 45 of 1860.
• The Code of Criminal Procedure, 1973, Act No. 2 of 1974.
• International Covenant on Civil and Political Rights, 1966.
• Second Optional Protocol to the International Covenant on Civil and Political Rights, 1989.
• European Convention on Human Rights, Protocols 6 and 13.

Reports & Institutional Publications

• Amnesty International, Death Sentences and Executions 2023 (Amnesty International Publications, London, 2024).
• Law Commission of India, The Death Penalty: 262nd Report (Government of India, New Delhi, 2015).
• National Crime Records Bureau, Crime in India (Ministry of Home Affairs, Government of India, various years).
• The Death Penalty Project, Global Perspectives on Capital Punishment (The Death Penalty Project, 2024).
• Death Penalty India Report, National Law University Delhi, Centre on the Death Penalty, Vol I (2016).

Authoritative Code & Academic Articles

• B.A. Mishra, “Death Penalty in India: A Study of Constitutional and Human Rights Dimensions” (2014) 56 Journal of the Indian Law Institute 329.
• Anup Surendranath & Jyotsna Yagnik, “Clemency in Capital Punishment Cases in India: Judicial and Constitutional Trends” (2018) 60 Journal of the Indian Law Institute 185.
• Justice P.N. Bhagwati, “Judicial Errors and Wrongful Convictions” (2010) 52 Journal of the Indian Law Institute 245.
• R. Basant & Anup Surendranath, “India’s Death Penalty System: A Litany of Discrimination” (2016) 51(4) Economic & Political Weekly 45.
• S. Muralidhar, “Restorative Justice in India: Challenges and Prospects” (2004) 46 Journal of the Indian Law Institute 479.
• Amnesty International, Death Sentences and Executions 2023 (Amnesty International Publications, London, 2024).
• Project 39A, Deathworthy: A Mental Health Perspective of the Death Penalty (National Law University Delhi, 2021).

Landmark Case Law

• Bachan Singh v. State of Punjab, AIR 1980 SC 898.
• Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947.
• Rajendra Prasad v. State of U.P., AIR 1979 SC 916.
• Machhi Singh v. State of Punjab, AIR 1983 SC 957.
• Maneka Gandhi v. Union of India, AIR 1978 SC 597.
• Epuru Sudhakar v. Government of Andhra Pradesh, (2006) 8 SCC 161.
• Kehar Singh v. Union of India, AIR 1989 SC 653.
• Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
• Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 11.
• Union of India v. V. Sriharan, (2016) 7 SCC 1.
• Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.
• State v. Makwanyane & Another, 1995 (3) SA 391 (CC) (Constitutional Court of South Africa).

[1] B. Sivakumar, “Capital Punishment in India: A Critical Analysis”, 6(2) Journal of Legal Studies 45–59 (2019).

² Raj Kumar, “Rarest of Rare Doctrine: Myth or Reality?”, 57(1) Journal of the Indian Law Institute 23–41 (2015).

³ Law Commission of India, Report No. 262: The Death Penalty (August 2015).

⁴ Bachan Singh v. State of Punjab, AIR 1980 SC 898.

⁵ Macchi Singh v. State of Punjab, AIR 1983 SC 957.

⁶ Ujjwal Kumar Singh, Human Rights and the Law: Discourse of Justice in India (SAGE Publications, 2009) 147–149.

⁷ Andrew Ashworth, Sentencing and Criminal Justice, 6th edn. (Cambridge University Press, 2015) 82–86.

⁸ Amnesty International, Death Sentences and Executions 2023 (2024), available at https://www.amnesty.org/en/documents/act50/6957/2024/en/.

⁹ AIR 1980 SC 898.

¹⁰ Anup Surendranath and Vrinda Bhandari, “The Death Penalty in India: A Law in Search of Jurisprudence,” (2013) 8(1) NUJS L Rev 1.

¹¹ K.N. Chandrasekharan Pillai (ed.), R.V. Kelkar’s Criminal Procedure (Eastern Book Company, Lucknow, 6th edn., 2017) 51.

¹² Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, Cambridge, 6th edn., 2015) 92.

¹³ Amnesty International, “Death Sentences and Executions 2023,” available at: https://www.amnesty.org/en/documents/act50/7028/2024/en/ .

¹⁴ Manusmriti and Arthashastra, Ancient Hindu texts (translated by P. Olivelle, Oxford University Press, 2005) 137-142.

¹⁵ Iqbal Husain, “The Administration of Criminal Justice Under the Mughals” (1979) 16(3) Indian Historical Review 354.

¹⁶ The Indian Penal Code, 1860, s. 302.

¹⁷ The Code of Criminal Procedure, 1973, s. 366.

¹⁸ Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947.

¹⁹ Rajendra Prasad v. State of U.P., AIR 1979 SC 916.

²⁰ Bachan Singh v. State of Punjab, AIR 1980 SC 898.

²¹ Machhi Singh v. State of Punjab, AIR 1983 SC 957.

²² Law Commission of India, Report No. 262 on “The Death Penalty” (August 2015) https://lawcommissionofindia.nic.in/reports/report262.pdf .

²³ Mukesh v. State (NCT of Delhi), (2020) 10 SCC 120.

²⁴ Constitution of India, art. 21.

²⁵ Maneka Gandhi v. Union of India, AIR 1978 SC 597.

²⁶ Constitution of India, arts. 72, 161.

²⁷ Epuru Sudhakar v. Government of Andhra Pradesh, (2006) 8 SCC 161.

²⁸ Ibid., s. 121.

²⁹ Ibid., s. 376A.

³⁰ Ibid., s. 364A.

³¹ Ibid., s. 396.

³² Code of Criminal Procedure, 1973, s. 235(2).

³³ Code of Criminal Procedure, 1973, s. 235(2).

³⁴ Ibid., s. 354(3).

³⁵ Ibid., s. 366.

³⁶ Ibid., ss. 377–378.

³⁷ Ibid., s. 482.

³⁸ Juvenile Justice (Care and Protection of Children) Act, 2015, s. 21.

³⁹ Bachan Singh v. State of Punjab, AIR 1980 SC 898.

⁴⁰ Machhi Singh v. State of Punjab, AIR 1983 SC 957.

⁴¹ Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

⁴² Bachan Singh v. State of Punjab, AIR 1980 SC 898.

⁴³ Ibid.

⁴⁴ Machhi Singh v. State of Punjab, AIR 1983 SC 957.

⁴⁵ Ibid.

⁴⁶ Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.

⁴⁷ Ibid.

⁴⁸ Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767.

⁴⁹ Union of India v. V. Sriharan, (2016) 7 SCC 1.

⁵⁰ Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

⁵¹ Code of Criminal Procedure 1973, s 366.

⁵² Mithu v. State of Punjab, AIR 1983 SC 473.

⁵³ Machhi Singh v. State of Punjab, AIR 1983 SC 957.

⁵⁴ Bachan Singh v. State of Punjab, AIR 1980 SC 898.

⁵⁵ Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

⁵⁶ Constitution of India 1950, art 72.

⁵⁷ Maru Ram v. Union of India, AIR 1980 SC 2147.

⁵⁸ Epuru Sudhakar v. Government of Andhra Pradesh, (2006) 8 SCC 161.

⁵⁹ Ibid.

⁶⁰ Kehar Singh v. Union of India, AIR 1989 SC 653.

⁶¹ Constitution of India 1950, art 74(1).

⁶² Amnesty International, Death Sentences and Executions 2024, Amnesty International Publications, London, 2024, p. 6.

⁶³ International Covenant on Civil and Political Rights, 1966, Art. 6.

⁶⁴ Second Optional Protocol to the ICCPR, Aiming at the Abolition of the Death Penalty, 1989.

⁶⁵ Protocol No. 6 and 13 to the European Convention on Human Rights, Council of Europe, 1983 & 2002.

⁶⁶ Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective, 5th edn, Oxford University Press, Oxford, 2015, p. 29.

⁶⁷ Ibid.

⁶⁸ State v. Makwanyane, (1995) 3 SA 391 (CC).

⁶⁹ Death Penalty Information Center, The Death Penalty in 2024: Year-End Report, available at https://deathpenaltyinfo.org.

⁷⁰ Bachan Singh v. State of Punjab, AIR 1980 SC 898.

⁷¹ Law Commission of India, 262nd Report on the Death Penalty, 2015, p. 4.

⁷² Jeffrey Fagan, “Capital Punishment: Deterrent Effects & Capital Costs” (2010) 4 Ohio State Journal of Criminal Law 255.

⁷³ Philip Alston and William Schabas, Abolishing the Death Penalty: The UN’s Role in Changing the World, Cambridge University Press, Cambridge, 2019, pp. 95–98.

⁷⁴ Bachan Singh v. State of Punjab, AIR 1980 SC 898.

⁷⁵ Baxi, Upendra, “The Crisis of the Indian Legal System” (Vikas Publishing House, 1982) 162.

⁷⁶ Bhandari, Rohit, “Public Perception and the Death Penalty in India”, (2016) 2(1) Indian Journal of Criminology 54.

⁷⁷ Amnesty International, “Justice in Jeopardy: The Death Penalty in India” (2008) 12–14.

⁷⁸ People’s Union for Democratic Rights, “Death Penalty: A Case for Abolition” (2014) 8.

⁷⁹ Constitution of India 1950, arts 14 and 21.

⁸⁰ Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.

⁸¹ Law Commission of India, Report No 262, The Death Penalty (2015).

⁸² Ramraj, Victor V., “Life Imprisonment without Parole: A Constitutional Middle Path”, (2017) 5 SCC J 20.

⁸³ United Nations General Assembly, “Moratorium on the Use of the Death Penalty”, A/RES/62/149 (18 December 2007).

⁸⁴ Law Commission of India, Report No 262, The Death Penalty (2015).

⁸⁵ Machhi Singh v. State of Punjab, AIR 1983 SC 957.

⁸⁶ Amnesty International, “Justice in Jeopardy: The Death Penalty in India” (2008) 12–14.

⁸⁷ Ramraj, Victor V., “Life Imprisonment without Parole: A Constitutional Middle Path”, (2017) 5 SCC J 20.

⁸⁸ Zehr, Howard, The Little Book of Restorative Justice (Good Books, 2002).

⁸⁹ Constitution of India 1950, arts 14 and 21.

⁹⁰ Bachan Singh v. State of Punjab, AIR 1980 SC 898.

⁹¹ Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

⁹² Law Commission of India, 262nd Report on the Death Penalty, August 2015.

⁹³ Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767; Union of India v. V. Sriharan, (2016) 7 SCC 1.

⁹⁴ Maneka Gandhi v. Union of India, AIR 1978 SC 597; Constitution of India, Arts. 14 and 21.