TITLE: DEATH PENALTY JURISPRUDENCE: A COMPARATIVE STUDY OF INDIA, SOUTH AFRICA, AND THE EUROPEAN UNION

The death penalty is one of the most controversial and ethical problematic subjects confronting modern jurisprudence. The study performs a comparative legal analysis of the developments  in India, South Africa, and the EU and examines the interaction between constitutional interpretation, human rights, and societal standards in determining whether a society retains, or abolishes, capital punishment.

 India retains the death penalty in its criminal justice system but restricts it to only in the rarest of rare cases as stipulated in Bachan Singh v. State of Punjab (1980).

In contrast, South Africa eliminated the death penalty in S v. Makwanyane (1995). South Africa’s Constitutional Court found that the death penalty, in light of the spirit of the new post-apartheid Constitution, contravened the right to life, and the right to dignity found in the new Constitution.

The EU is a model of categorical abolition rooted in both the Charter of Fundamental Rights and the European Convention on Human Rights. The removing of capital punishment is a condition of EU integration.

In this paper, evolving standards of decency and international trends towards abolition. We assert that the swift evolution of death penalty jurisprudence reflects the fact that it is increasingly converging on human dignity and procedural fairness as core legal principles.

KEY WORDS:- Death Penalty, Comparative Constitutional Law, Abolition of Death Penalty,  Post-Apartheid Legal Reform, Rarest of Rare Doctrine.

INTRODUCTION

The death penalty is one of the most controversial mechanisms of criminal justice in the world…. While some countries are still willing to retain capital punishment as a viable form of deterrence and punitive measure for crimes, other countries abhor capital punishment as being an outmoded tool of an obsolete justice system out of step with the current standards of human dignity. The trend since the late 20th century has mostly been in the direction of abolition or even on the least restrictive use of the death penalty, and, like other gradual trends, this can be seen as both moral and legal developments toward the sanctity of life and human dignity.[1]

This paper looks at the legal and constitutional history of capital punishment in the three comparative jurisdictions of India, South Africa, and the European Union. These jurisdictions provide a valuable comparative lens: India is a retentionist country with restrictions imposed by the courts; South Africa is a country that abolished the death penalty in the context of post-apartheid; and the European Union is an entirely abolitionist regime with no use, and collectively expressed vision in supranational obligations. Each jurisdiction has different constitutional philosophies and commitments to human rights, including how the courts have dealt with their respective use of capital punishment.

This study’s primary purpose is to understand the jurisprudential trajectory of the death penalty in these regions considering constitutional interpretation, the reasoning of the courts, available defenses, the balance between public morality and constitutional values, etc. Therefore, it critically examines how the constitutional courts have constructed, upheld or abolished the death penalty through landmark decisions and legal reform, as well as how the concepts of “rarest of rare”.

Death Penalty in India

India replace the death penalty with legality and judicial constriction. Since independence the death penalty has moved in various directions, both legally and judicially. Although capital punishment is still recognized as a legal penalty in Indian law, the judiciary has curtailed its application to the “rarest of rare” cases, indicating the concerns of constitutional morality and its evolution.[2]

Statutory and Constitutional Framework

The Indian Penal Code, 1860 (IPC) provides for the death penalty for certain offences, particularly murder under Section 302, waging war against the state (Section 121), rape causing death or a persistent vegetative state (Section 376A).[3] In addition, the Code of Criminal Procedure, 1973 (CrPC) under Section 354(3) requires judges to give a proper statement for giving the death penalty.[4]

Further Article 21 which states “No person shall be deprived of his life or personal liberty except according to procedure established by law” has become an important constitutional protection against arbitrary executions over the years.[5]

Judicial Development

1. Jagmohan Singh v. State of U.P. (1973)

This was the first instance where the Supreme Court upheld the constitutional validity of the death penalty as it was argued that capital punishment did not violate Article 21 if it carried out fair, just, and reasonable procedure.[6]

2. Bachan Singh v. State of Punjab (1980)

Bachan Singh was the first case to fully elucidate the “rarest of rare” doctrine. In Bachan Singh, the court stated “The death penalty should only be imposed in cases of murder in the rarest of rare cases (as abovementioned) where the alternative of life imprisonment is “unquestionably foreclosed.” The court also highlighted all mitigating factors that may be relevant in capital cases and stressed the importance of individualised sentencing. Judicial discretion in capital sentencing became central after Bachan Singh.[7]

3. Machhi Singh v. State of Punjab (1983)

Machhi Singh also clarified the “rarest of rare” test further by enumerating aggravating and mitigating factors to consider like the manner of commission, motive, and vulnerability of victim.7 Further, critics of Machhi Singh have noted that these criteria also provide some subjective interpretation and aids in development of inconsistency.[8]

Procedural Safeguards and Emerging Jurisprudence

1. Shatrughan Chauhan v. Union of India (2014)

Under the facts of this case, the Court commuted the death sentences of 15 persons on the basis of inordinate delay in resolving mercy petitions and the mental illness factor of the accused. The Court found that the delay violated the right to life as per Article 21.[9]

2. Mental Health and Juvenile Factors

The role of mental health, socio-economic condition, and age in mitigation has partly evolved in recent years. The Court has come out in favour of taking the psychological evaluation and pre-sentencing report into consideration. In Mohd. Mannan v. State of Bihar (2019), the Court held[10]

Continued Issues

Although safeguards exist, India’s capital punishment jurisprudence is still subject to criticism related to: Inconsistency in application of the “rarest of rare” test

The Death Penalty India Report (2016) of Project 39A stressfully claimed an arbitrary capital punishment system and discernable class-caste realities operating in the sentencing process.[11]

 III. South Africa: The End of the Death Penalty and Constitutional Morality The death penalty jurisprudence in South Africa represents a dramatic shift, manifest in the context of the country’s constitutional ideal post-apartheid. As South Africa ended the death penalty in 1995 with a landmark judgement of S v. Makwanyane, [12]where court emphasized that the right to life and the right to dignity cannot coexist with the death penalty. The ruling caused considerable upheaval in the death penalty abolition jurisprudence that incorporates notions of constitutional morality, restorative justice, and human dignity.

Historical background: The use of the death penalty in South Africa during apartheid.

During apartheid, the death penalty in South Africa was often viewed as an instrument of government repression. South Africa had one of the highest execution rates in the world.[13] Most of those executed were black South Africans, and many executions had political motivations. The democratic transition to a new constitutional order in South Africa in 1994 relied on basic rights and confronting the injustices inherent in systemic oppression.[14]

One Important Event in Constitutional Interpretation: S v. Makwanyane (1995)

In the case S v. Makwanyane, which captured whole world audiences, the Court found the death penalty to be unconstitutional and  violation of sections 10 (right to dignity) and 11 (right to life) of the 1993 Interim Constitution. In his majority decision Justice.[15]

Some significant considerations in arriving at the decision included:

• a repudiation of the penal purposes of the death penalty in the name of deterrence and retribution
• a dismissal of the notion of human dignity as a cheapened concept
• the authority of international human rights treaties (including the ICCPR) and comparative constitutional law
• making available constitutional normative values as a superior source, despite evidence of majority will in support of the death penalty

The Court found that a just society could not impose capital punishment and that, in any case, it should never be permissible to do so when majority consent was present in support of the death penalty. The Makwanyane ruling represented a powerful confirmation of judicial independence and transformative constitutionalism.[16]

All death sentences were converted to life imprisonment post-Makwanyane and Parliament repealed death penalty laws.[17]

While support for the death penalty has emerged again based on rising violent crime including gender-based violent crime, the Constitutional Court has repeatedly upheld abolition.[18] The example of South Africa illustrates how judicial courage under a rights-based constitution can lead to moral and legal change, regardless of public and political opinion.

The European Union: The Collective Abolition Model

The European Union (EU) exemplifies an instance of complete and irreversible abolition of the death penalty both in law and in principle. All EU member states are prohibited from practicing capital punishment, and the abolition of the death penalty is a requirement for membership, as clearly established in both the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights (ECHR).[19] This starkly delineates a strong legal and moral consensus at a supranational level, which places the EU as a global abolitionist norm-maker.

Legal Basis

The Charter of Fundamental Rights of the European Union is legally binding since the Treaty of Lisbon (2009) and prohibits the death penalty under Article 2(2). The Article states: “No one shall be condemned to the death penalty, or executed.” [20]Also, with the European Convention on Human Rights (ECHR) under Protocol No. 6 (1983) and Protocol No. 13 (2002), both require all countries that are a party to the Conventions to abolish the death penalty in peacetime and at all times, respectively.[21] Collectively, these texts become a double layer of legal protection against the imposition of the death penalty.

All 27 EU countries are signatories to both Protocols and are explicitly or implicitly forbidden from reinstating it through constitutional measures or legislation.[22] In Al-Saadoon and Mufdhi v. United Kingdom (2010), the court solidified the prohibition that even indirect exposure to the risk of execution, as by transferring prisoners to jurisdictions where their execution could be ordered, would constitute a violation of the ECHR.[23]

Political and Institutional Conditionality

The EU’s policy not only extends outside its borders, it shows its accession conditions, sometimes referred to as the Copenhagen Criteria. Any country seeking membership in the EU must illustrate their commitment to human rights, including the complete abolition of the death penalty. The EU has also adopted an external diplomatic policy on the death penalty in a Common Position (2008), aimed at abolishing the death penalty globally.[24]

Public Consensus and Enforcement

With the exception of the instances when public opinion in India or South Africa is divided or supports capital punishment, almost all EU populations are in consensus to abolish capital punishment.[25] This consensus, combined with solid prohibitory law and strong institutional enforcement makes it certain that the abolition of death penalty in Europe is essentially de jure and de facto.

Challenges and Contemporary Debates

• India: The Continuity of Populism and Procedure Gaps

India continues to face populist demands for retribution, especially in cases of terrorism, rape, or crimes against women and children.¹ The Supreme Court has tried to humanize sentencing under the “rarest of rare” formula, but inconsistency and arbitrariness continue.[26]

Our critical problems include:

Lack of prescribed sentences, and procedures as noted in Shatrughan Chauhan v Union of India the Court admitted procedural follies in death penalty cases.[27]

Clemency petitions take too long, leading to mental torture of convicts.

Empirical studies reveal large scale socio-economic and caste discrimination such as revealed in the Death Penalty India Report.[28]

In addition, India’s refusal to agree to international documents such as the Second Optional Protocol to the ICCPR reflects unwillingness to internationalise human rights standards into its domestic policy.[29]

• South Africa: Push to Reinstate the Death Penalty

 Reinstatement of capital punishment in South Africa has come as a result of escalated calls for it to be reinstituted in response to a rise in violent crime, particularly gender-based violence and child abuse.[30]While Makwanyane firmly rejected capital punishment, there is considerable public support for such punishment, as surveys show growing favourability towards capital punishment.

However, the Constitutional Court has maintained their position that constitutional rights cannot be taken lightly, even in the midst of increasing crime statistics. The challenge is to fight crime without losing rights and to assess whether the state can foster transformative justice rather than punitive populism.

• European Union: External Diplomacy, Internal Homogeneity

The EU is also engaged in significant external diplomacy challenges around extradition, and despite existing extradition regimes with retentionist nations, the EU often finds itself in uncomfortable positions. As with Protocol No. 13 of the ECHR, the ECtHR decisions in Soering and Al-Saadoon hold significant meaning for extradition and counterterrorism purposes for the EU. In both cases, the Court found it was unlawful to extradite an individual to a jurisdiction where they might face execution.[31]

This principled approach sometimes runs against the grain of external foreign policy opportunities such as mutual legal assistance with the U.S., India, and China. The EU faces a classic dilemma of idealism vs. realism in diplomacy, and reconciling a human rights leadership role with the reality of realpolitik diplomacy with retentionist nations.

• Global Trends: Towards Normative Abolition

The death penalty is increasingly seen as noncompliant with international human rights norms. The UN General Assembly has passed nine resolutions on a world moratorium. Courts in Kenya, Malawi, and Taiwan are only the most recent to invalidate mandatory death sentences, providing a ripple effect and proving that constitutionalism can cross borders.[32]

However, powerful retentionist states exist like China, Iran, and the U.S., which have an established routine of killing people. Likewise, India is at the crossroads of a moral and strategic imperative toward a global leadership role, yet remains wedded to increasingly outdated punishment.[33]

CONCLUSION

India has a retentionist legal system, applying the “rarest of rare” rule, while experiencing inconsistent sentencing as well as existing socioeconomic biases and public pressure for retributive justice. Although, the death penalty is still applied on limited occasions, its existence on the books ultimately reflects hesitancy to fundamentally engage with a rights-based penal philosophy. Judicial attempts at procedural safeguards remain reactive, rather than transformative.

In contrast, South Africa’s categorical abolition of the death penalty—vigorously articulated in The Makwanyane decision unequivocally recognized human dignity, the right to life, and constitutional morality; focused on these key principles, the judgement was intentionally made so as to resist populist sentiment. The South African example illustrates that strong judicial leadership, based in a transformative vision of justice, can irrevocably change the parameters of punishment in a nation.

The European Union has completed abolition through a combination of supranational and treaty obligations, and domestic constitutional amendments, and has become a moral leader in abolitionist diplomacy due to the EU’s refusal of extradition of individuals to countries of potential execution, and their constant positional advocacy around the world. Nevertheless, balancing values with strategic concerns for foreign policy continues to be a challenge.

Together, these jurisdictions demonstrate that abolition is not simply a legal reform, it is a moral imperative—anchored in a commitment to human rights, judicial accountability, and international standards.

Recommendations

1. For India

India should eliminate its death penalty through the legislative process or through constitutional adjudication, replacing the death penalty with designations of life without possibility of parole in sufficiently aggravated cases.

India should ratify the Second Optional Protocol to the ICCPR as a sign of its commitment to international human rights.

India should create a common sentencing framework to help limit judicial discretion and provide victims with procedural fairness.

India should focus on restorative justice models emphasizing the victims rather than a retributive model.

2. For South Africa

South Africa needs to respond to populist calls to return to prize capital punishment and support public education about their constitutional rights and a restorative justice approach.

South Africa needs to develop and strengthen victim support services and identify efficiencies in its policing and prosecution systems and reduce dependency on punitive symbolism.

3. For the EU

It needs to continue to maintain its strong extradition safeguards and to continue to push its abolitionist agenda through bilateral or multilateral treaties.

It needs to develop and provide technical and legal support to abolitionist movements in retentionist countries, through diplomatic and civil society efforts.

4. Global Recommendations

Encourage retentionist countries start moratoriums on the death penalty as a stepping point to abolishing the death penalty itself.

Promote comparative judicial dialogues as a platform for building global abolitionist jurisprudence.

Invest in public education and legal literacy opportunities to start tackling the populist discourse described in recommendation three above.

REFERENCE(S):

• Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 (India).
• S v. Makwanyane and Another 1995 (3) SA 391 (CC) (S. Afr.).
• Soering v. United Kingdom, App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989).
• International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
• Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, Apr. 28, 1983, ETS No. 114.
• Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the Abolition of the Death Penalty in all Circumstances, May 3, 2002, ETS No. 187.
• EU Charter of Fundamental Rights, 2000 O.J. (C 364) 1.
• Amnesty Int’l, Death Sentences and Executions 2023, AI Index: ACT 50/2023/001 (Apr. 2024), https://www.amnesty.org.
• U.N. Human Rights Comm., General Comment No. 36: Right to Life, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018).
• Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective (5th ed. 2015).

[1] Amnesty Int’l, Death Sentences and Executions 2023, https://www.amnesty.org/en/documents/act50/6871/2024/en/ (last visited July 22, 2025).

[2] See Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

[3] Indian Penal Code, No. 45 of 1860, 121, 302, 364A, 376A, 376AB, 376DB.

[4] Code of Criminal Procedure, No. 2 of 1974, § 354(3).

[5] INDIA CONST. art. 21.

[6] Jagmohan Singh v. State of U.P., (1973) 1 SCC 20.

[7] Bachan Singh, (1980) 2 SCC at 738.

[8] Machhi Singh v. State of Punjab, (1983) 3 SCC 470.

[9] Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

[10] Mohd. Mannan v. State of Bihar, (2019) 16 SCC 584.

[11] PROJECT 39A, Death Penalty India Report (2016), https://project39a.com/dpir.

[12] S v. Makwanyane and Another, 1995 (3) SA 391 (CC) (S. Afr.).

[13] Amnesty Int’l, When the State Kills: The Death Penalty v. Human Rights 111–113 (1989).

[14] Heinz Klug, Constituting Democracy: Law, Globalism and South Africa’s Political Reconstruction 197–202 (2000).

[15] AFR. (Interim) CONST., 1993,10, 11.

[16] Makwanyane, 1995 (3) SA at ¶ 35 (referencing ICCPR art. 6).

[17] Criminal Law Amendment Act 105 of 1997 (S. Afr.).

[18] See Julia Sloth-Nielsen, Public Opinion and the Death Penalty in South Africa, in Capital Punishment: Strategies for Abolition 75, 85–88 (Peter Hodgkinson & William A. Schabas eds., 2004).

[19] See Consolidated Version of the Treaty on European Union art. 49, Oct. 26, 2012, 2012 O.J. (C 326) 13.

[20] Charter of Fundamental Rights of the European Union, art. 2(2), 2012 O.J. (C 326) 391.

[21] Protocol No. 6 to the ECHR, Apr. 28, 1983, ETS No. 114; Protocol No. 13, May 3, 2002, ETS No. 187.

[22] European Union Agency for Fundamental Rights, Abolition of the Death Penalty in Europe, https://fra.europa.eu/en/theme/death-penalty (last visited July 22, 2025).

[23] Al-Saadoon and Mufdhi v. United Kingdom, App. No. 61498/08, 2010-II Eur. Ct. H.R. 61.

[24] European Council, Copenhagen European Council—Conclusions of the Presidency (June 1993), available at https://www.europarl.europa.eu.

[25] Pew Research Center, Global Views on the Death Penalty (2021), https://www.pewresearch.org.

[26] Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646.

[27] Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1.

[28] PROJECT 39A, Death Penalty India Report (2016), https://project39a.com/dpir.

[29] International Covenant on Civil and Political Rights, Second Optional Protocol, Dec. 15, 1989, 1642 U.N.T.S. 414.

[30] Mail & Guardian, Calls to Reinstate the Death Penalty in SA Rise Amid Violent Crime, (2023).

[31] Soering v. United Kingdom, App. No. 14038/88, 11 Eur. Ct. H.R. (ser. A) 1989; Al-Saadoon and Mufdhi v. UK, App. No. 61498/08, 2010-II Eur. Ct. H.R. 61.

[32] G.A. Res. 77/222, Moratorium on the Use of the Death Penalty, U.N. Doc. A/RES/77/222 (Dec. 15, 2022).

[33] Amnesty Int’l, Global Report: Death Sentences and Executions (2023).