Authored By: A V Cherishma
KL University
Abstract
The death penalty is the most severe form of punishment in the Indian criminal justice system. This research examines the legal, constitutional, and theoretical aspects of capital punishment in India. It traces the historical evolution of the death penalty from colonial rule to the present day and explains the major theories of punishment that justify or oppose it. The study also analyses key Supreme Court judgments that have shaped the “rarest of rare” doctrine and ensured constitutional safeguards. Further, it discusses the Law Commission of India’s 262nd Report, which recommends abolishing the death penalty except for terrorism-related offences. By comparing India’s position with global trends, the research highlights the ongoing debate between retention and abolition of capital punishment in a constitutional democracy.
Introduction
Punishment is a social institution through which society enforces its laws and maintains order. Every legal system prescribes punishment only after due process, depending on the seriousness of the offence. Among all punishments, the death penalty, or capital punishment, is the most severe and irreversible.
In India, capital punishment is recognised under Section 53 of the Indian Penal Code, 1860, and is imposed only in the rarest cases involving grave offences that shock the collective conscience of society. Although several countries have abolished the death penalty, India continues to retain it with strict judicial safeguards. However, prolonged delays in trials and executions have raised serious concerns regarding the human and constitutional implications of capital punishment.
Historical Evolution
The history of the death penalty in India demonstrates a striking continuity of state violence across the colonial and postcolonial divide, even as the justifications for it have changed. Under British rule, capital punishment was a key instrument of control. Between 1925 and 1944, executions averaged 577 per year, increasing as independence approached. Colonial justice thus became more violent, not less, during moments of political instability.
The interwar period saw the emergence of an abolitionist movement. Indian legislators, legal reformers, and newspapers questioned the morality of capital punishment, while some princely states significantly reduced its use. Cochin State abolished the death penalty in 1944, showing that reform was possible. However, the colonial government remained largely indifferent.
Independence did not lead to abolition. The violence of Partition, war, and the assassination of Mahatma Gandhi reinforced retentionist sentiment. While executions declined due to procedural reforms and executive restraint, the death penalty was retained. The Law Commission’s 1967 report justified this decision by invoking social conditions and public opinion, marking a shift from colonial authority to democratic legitimation.
The Supreme Court further reshaped capital punishment through the “rarest of the rare” doctrine in Bachan Singh (1980), while simultaneously grounding death sentencing in societal outrage through the “collective conscience” standard in Machhi Singh (1983). From the 1980s, populist and Hindu nationalist politics increasingly used the death penalty as a symbol of state power and protection. Recent legal reforms expanding capital offenses suggest that colonial-era violence has been rearticulated, not dismantled, in postcolonial India.
Theoretical Justifications for the Death Penalty
Punishment has traditionally been explained through four main theories: retributive, deterrent, preventive, and reformative. Insofar capital punishment is concerned, it corresponds the most to the retributive theory of punishment. Each theory seeks to justify punishment in a different way and carries its own strengths and limitations.
Retributive Theory
The retributive theory is one of the oldest explanations for punishment and is based on the idea that justice is achieved when an offender receives punishment proportional to the wrongdoing committed. Its roots can be traced back to the principle of “Tooth for Tooth, Eye for Eye, Limb for Limb and Nail for Nail”, as reflected in the Code of Hammurabi. According to this view, punishment is deserved because the offender has committed a moral wrong.
Serious offences often provoke strong emotional responses from victims and society at large. Crimes such as rape, kidnapping, and brutal murder commonly generate public outrage and a demand for severe punishment. Philosophers like Immanuel Kant argued that punishment does not aim to benefit the offender or society, but is justified solely because the wrongdoer must suffer for the wrong committed.
Over time, punishment came to be seen as a form of collective social response, where society reacts strongly against acts that violate its moral order. In this sense, punishment is justified as a reflection of society’s indignation toward serious crimes.
Deterrent Theory
While retributive theory focuses on deserved suffering, deterrent theory shifts attention to the consequences of punishment. From the eighteenth century onwards, criminal law increasingly aimed to prevent future crimes rather than merely inflict suffering. Punishment under this theory is intended to discourage both the offender and the public from committing similar offences.
Severe and exemplary punishment is believed to create fear of consequences, thereby deterring potential offenders. This approach justifies capital punishment on the ground that it serves as a warning to others and promotes compliance with the law.
Preventive Theory
This theory focuses on deterring offenders from criminality or repeating the same crime in the future. This is achieved by incapacitating the offender through punishments such as imprisonment or death. Capital punishment, under this theory, permanently removes the offender’s ability to repeat the crime.
Although earlier forms of preventive punishment included harsh physical penalties, modern criminal justice systems have moved away from such practices. Nevertheless, the death penalty continues to be retained in several countries as a means of ensuring social protection and public safety.
Reformative Theory
Reformative theory represents a shift from focusing on the crime to focusing on the criminal. Influenced by positive criminology, this theory holds that the purpose of punishment should be the rehabilitation of the offender rather than retribution or deterrence.
According to this view, criminal behaviour is often shaped by social, economic, and environmental factors rather than inherent moral fault. The goal of punishment is therefore to reform the offender and reintegrate them into society as a law-abiding citizen.
Capital punishment finds justification primarily under the retributive, deterrent, and preventive theories, as it is seen as a deserved response to grave offences, a warning to others, and a means of permanently incapacitating the offender. However, it stands in conflict with the reformative theory, which emphasises rehabilitation and rejects irreversible forms of punishment.
Constitutional validity of Death Penalty in India
At the time of Independence in 1947, India retained the Indian Penal Code of 1861, which prescribed the death penalty for the offence of murder. During the framing of the Constitution between 1947 and 1949, the issue of capital punishment was debated in the Constituent Assembly, where several members expressed support for its abolition. However, the Constitution ultimately did not prohibit the death penalty.
Judicial scrutiny of capital punishment has been extensive. In Jagmohan Singh v. State of Uttar Pradesh, a five-judge bench of the Supreme Court unanimously upheld the constitutional validity of the death penalty, holding that it does not violate Articles 14, 19, and 21 of the Constitution. The Court clarified that sentencing, including the choice between life imprisonment and death, follows the procedure established by law under the Criminal Procedure Code.
In Rajendra Prasad v. State of Uttar Pradesh, Justice Krishna Iyer adopted a restrictive approach, emphasizing that the death penalty should be imposed only in exceptional circumstances and that special reasons must be recorded. However, this view was overruled in Bachan Singh v. State of Punjab (1980), where the Supreme Court, by a 4–1 majority, reaffirmed the constitutionality of the death penalty while limiting its application to the “rarest of rare cases.” Justice Bhagwati, in his dissent, described capital punishment as unconstitutional and undesirable.
The contours of the “rarest of rare” doctrine were further clarified in Machhi Singh v. State of Punjab, where the Court identified factors such as the manner of commission of the crime, motive, anti-social nature, magnitude of the offence, and the personality of the victim.
In Mithu v. State of Punjab, the Supreme Court declared Section 303 of the IPC unconstitutional for violating Articles 14 and 21, as it imposed a mandatory death sentence without granting judicial discretion. The Court held that such a provision resulted in an unfair, unjust, and unreasonable deprivation of life.
In sum, judicial decisions establish that the death penalty remains constitutionally valid in India. Despite repeated efforts to abolish it, capital punishment continues to form part of Indian criminal law, as reflected in executions such as that of Ajmal Amir Kasab in 2012.
Law Commission of India’s Report on the Death Penalty
The Law Commission of India, in its 262nd Report titled “The Death Penalty”, recommended that capital punishment be abolished in India. The Commission circulated a detailed 272-page draft report among its members, proposing the removal of the death penalty from statutory law at the earliest opportunity. However, it suggested retaining the punishment in exceptional cases involving terrorism and acts of waging war against the nation, a practice followed in countries such as the United Kingdom.
The Supreme Court of India directed the Law Commission to re-examine the issue of capital punishment in cases such as Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra(2009) and Shankar Kisanrao Khade v. State of Maharashtra (2013). The Court emphasized the need for a contemporary and well-informed debate on the subject and entrusted the Commission with conducting a comprehensive study on the death penalty.
In response, the Law Commission carried out extensive consultations with various stakeholders. A majority of the participants, including representatives from several political parties, expressed support for abolishing capital punishment. This was not the first time the Commission had been asked to review the issue. Notably, in its 35th Report on capital punishment published in 1962, the Law Commission had recommended retaining the death penalty in India.
The global trend, however, reflects a growing move toward abolition. By the end of 2014, 98 countries had abolished the death penalty for all crimes, seven had abolished it for ordinary crimes, and 35 countries were abolitionist in practice. This brought the total number of abolitionist countries to 140. In 2015, countries such as Suriname, Madagascar, and Fiji officially abolished capital punishment, further reinforcing the international shift away from the death penalty.
Conclusion
The death penalty continues to remain legally valid in India, though its application is restricted to the “rarest of rare cases.” Judicial decisions have attempted to balance societal demands for justice with constitutional protections of life and dignity. While retributive, deterrent, and preventive theories support capital punishment, it conflicts with reformative ideals and raises serious human rights concerns. The Law Commission’s recommendation for abolition, along with global trends moving away from the death penalty, reflects a growing recognition of its limitations and risks. In conclusion, although capital punishment remains part of Indian law, the debate surrounding its moral, legal, and constitutional validity continues, calling for careful reconsideration in light of justice, human rights, and evolving social values.
