REVISITING THE DEATH PENALTY IN INDIA

Abstract

This article looks at the death penalty in India, exploring its legal side, moral questions, and whether reforms are needed. It traces the evolution of capital punishment from its colonial origins to the contemporary “rarest of rare” doctrine established in the landmark Bachan Singh case. The analysis explores the constitutional validity of the death penalty, its inconsistent application, and socioeconomic disparities in its imposition. The moral dimensions of capital punishment are scrutinized, questioning its deterrent effect and compatibility with human rights standards. The article also looks at different reform efforts, like the Law Commission of India’s 262nd Report, which suggests getting rid of some parts of the law instead of changing everything. By synthesizing judicial precedents, empirical data, and international perspectives, this article argues that India’s death penalty framework requires substantial reform to address procedural inconsistencies, socioeconomic biases, and human rights concerns while maintaining public safety and justice.

Introduction

The death penalty remains one of the most contentious aspects of India’s criminal justice system, situated at the intersection of legal doctrine, moral philosophy, and social policy. By 2025, India has 564 people on death row, which is the highest number since the early 2000s. This keeps the debate about the death penalty very much alive. Despite this high number of death sentences at the trial court level, the Supreme Court has shown increasing reluctance to confirm such sentences, with no death sentences confirmed for two consecutive years. The big gap between how often people are sentenced to death and how often those sentences are carried out makes you wonder what’s going on with the death penalty system in India.

The death penalty in India is applied only in the rarest of cases, based on the rule set out in the Bachan Singh v. State of Punjab case. In 1980, Punjab wanted to make it so that the death penalty was only used in the rarest of cases. However, the practical application of this doctrine has been marked by inconsistency, arbitrariness, and concerns about socioeconomic and religious biases. These issues have prompted ongoing debates about whether the death penalty can be administered fairly and whether it serves its intended purposes of deterrence and justice.

This article examines the death penalty in India through three primary lenses: legal framework and constitutional validity; moral and ethical considerations; and reform imperatives. By analysing judicial precedents, empirical data, and international standards, this article aims to provide a comprehensive assessment of capital punishment in India and explore pathways for meaningful reform.

Legal Framework and Constitutional Validity

Historical Evolution of  the Death Penalty in India

The death penalty has deep historical roots in India’s legal system, originating during the colonial era when it was the default punishment for murder under the Code of Criminal Procedure (CrPC) of 1898. After India gained independence, the country made some important legal changes. In 1955, they amended the Criminal Procedure Code so that there was no need to give a written reason if someone was not sentenced to death. In 1973, the CrPC was changed in a big way. From that point on, life imprisonment became the default punishment, and the death penalty could only be given if there were clear, specific reasons justifying it.

This evolution in legislation reflects a gradual shift towards restricting the application of the death penalty, though it has not yet led to its abolition. The historical trajectory illustrates how capital punishment has been increasingly constrained through legislative reforms, setting the stage for judicial developments that would further clarify its scope and application.

The “Rarest of Rare” Doctrine: Bachan Singh and Beyond

The landmark case of Bachan Singh v. State of Punjab (1980) established the “rarest of rare” doctrine, fundamentally reshaping India’s approach to capital punishment. The Supreme Court held that the death penalty should be imposed only in the “rarest of rare” cases where the alternative of life imprisonment is “unquestionably foreclosed”. The Court outlined a framework requiring judges to consider both aggravating and mitigating circumstances, with particular emphasis on the possibility of reformation and rehabilitation.

In Machhi Singh v. State of Punjab (1983), the Court further elaborated on this doctrine by specifying criteria for determining when a case might fall within the “rarest of rare” category. These criteria included the manner of commission, motive, socially abhorrent nature, magnitude of the crime, and personality of the victim. Despite these guidelines, subsequent judicial application has been inconsistent, with different benches interpreting and applying the doctrine in divergent ways.

Recent cases like Manoj v. State of Madhya Pradesh (2022) have attempted to address these inconsistencies by providing more structured guidelines for sentencing in capital cases. The Court emphasized the need to gather comprehensive information about the accused’s background, education, mental health, and potential for rehabilitation before imposing the death penalty. However, compliance with these guidelines remains problematic, with trial courts following them in only 7% of death penalty cases since the decision.

Constitutional Challenges and Judicial Responses

The constitutionality of the death penalty has been repeatedly challenged on grounds that it violates the right to life under Article 21 of the Indian Constitution. In Bachan Singh, the Supreme Court upheld the constitutionality of capital punishment, reasoning that the “rarest of rare” doctrine provided sufficient safeguards against arbitrary application. The Court held that the death penalty, when applied in exceptional circumstances and with procedural protections, did not violate constitutional principles.

Later cases have raised questions about how the death penalty is actually carried out and what it means for the Constitution. In Santosh Kumar Bariyar v. State of Maharashtra (2009), the Court acknowledged inconsistencies in applying the “rarest of rare” doctrine, noting that similar cases had resulted in different outcomes. This inconsistency raises serious questions about whether the death penalty, as currently administered, meets constitutional standards of fairness and non-arbitrariness.

The tension between constitutional principles and the practical application of the death penalty remains unresolved, with ongoing debates about whether procedural reforms can address these concerns or whether more fundamental changes are needed.

Moral and Ethical Dimensions

Detterence: Myth or Reality?

Many people think the main reason for the death penalty is that it might scare others from committing serious crimes. Proponents argue that the threat of execution prevents individuals from committing heinous crimes, thereby protecting society. However, empirical evidence supporting this claim is notably lacking, with studies failing to demonstrate a clear correlation between capital punishment and reduced crime rates.

A comprehensive meta-analysis of 700 studies on deterrence effects, including 52 focused specifically on the death penalty, found no conclusive evidence that capital punishment deters crime more effectively than long-term imprisonment. International experiences further challenge the deterrence argument, with countries that have abolished the death penalty often experiencing decreases in homicide rates following abolition. For instance, research by the United Nations Office on Drugs and Crime found that homicide rates declined by 61% between 2000 and 2008 in five European countries that abolished capital punishment in the 1990s.

In the Indian context, the high number of death sentences imposed by trial courts contrasted with the low rate of executions raises questions about whether the death penalty can function as an effective deterrent when its application is so uncertain. This uncertainty undermines the deterrent value of capital punishment and suggests that alternative approaches to crime prevention may be more effective.

Human Rights Perspectives

The death penalty touches on some big human rights issues, like the right to life, staying true to your dignity, and avoiding treatment that’s cruel or degrading. International human rights documents, like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, stress that every person has fundamental dignity and value. While these instruments do not explicitly prohibit capital punishment, there is a growing international consensus toward abolition, reflected in the adoption of the Second Optional Protocol to the ICCPR, which calls for the total abolition of the death penalty.

Critics argue that the death penalty violates the right to life and constitutes an inherently cruel form of punishment that degrades human dignity. This perspective holds that even individuals who have committed heinous crimes retain their fundamental humanity and rights, which the state should respect. Executing someone is permanent, which means there’s always a chance of wrongly putting innocent people to death. No matter how strict the rules or procedures, that risk can never be fully eliminated.

In India, these human rights concerns are particularly relevant given the documented issues with the administration of capital punishment, including inconsistent application, socioeconomic biases, and procedural irregularities. These problems make it seem like the way the death penalty is carried out right now might not follow international human rights rules.

Socioeconomic Disparities and Discrimination

One of the most troubling aspects of capital punishment in India is its disproportionate impact on marginalized communities. The Death Penalty Research Project by National Law University in Delhi found that more than 80% of people on death row didn’t finish school. Almost half of them started working before turning 18. Many of these prisoners come from poor backgrounds, marginalized communities, or religious minority groups. Dalits and Adivasis made up about a quarter of the people on death row, while religious minorities made up over 20%.

These differences show how bigger issues in the justice system, like money and social status, really shape what happens to people. Individuals from marginalized communities often lack access to quality legal representation, face language barriers in court proceedings, and may be subject to biases at various stages of the criminal justice process. As noted by UN human rights experts, “If you are poor, the chances of being sentenced to death are immensely higher than if you are rich,” making the death penalty “a class-based form of discrimination”.

The socioeconomic disparities in the application of the death penalty raise serious questions about its fairness and legitimacy. If capital punishment disproportionately affects the most vulnerable members of society, it may perpetuate rather than remedy injustice, undermining its moral justification.

Reform Imperatives

Law Commission Recommendations

The Law Commission of India released its 262nd Report back in 2015, and it was a big moment in the discussion about the death penalty. The report suggested removing the death penalty for most crimes, except those connected to terrorism. This recommendation represented a substantial shift from the Commission’s earlier position in its 35th Report (1967), which had supported retention. The Commission’s shift in views showed how their thinking about human rights has changed. They started to see that using the death penalty can be pretty random and unfair, especially when innocent people might get wrongfully convicted.

The 262nd Report noted that India’s social and cultural scene has changed a lot since the last time it looked at things, which makes getting rid of it seem more possible now. It emphasized that police reforms, witness protection schemes, and victim compensation programs should be implemented alongside any changes to the death penalty framework. While the report maintained an exception for terrorism-related offences due to national security concerns, it expressed hope that progress toward complete abolition would be “quick and irreversible”.

Despite these recommendations, legislative action has been limited, with Parliament not yet implementing the Commission’s proposals. This inaction reflects the complex political dynamics surrounding the death penalty, with public opinion and political considerations often influencing policy decisions.

Judicial Reforms and Sentencing Guidelines

Recent court cases have been looking into fixing issues with how death penalty sentences are handled, especially when it comes to procedural inconsistencies. In Manoj v. State of Madhya Pradesh (2022), the Supreme Court issued comprehensive guidelines for gathering and considering mitigating factors in capital cases. These guidelines require trial courts to collect information about the accused’s age, family background, education, mental health, and potential for rehabilitation before imposing the death penalty.

The Court also established a Constitution Bench in September 2022 to reform death penalty sentencing, responding to concerns about the increasing number of death sentences imposed by trial courts. These legal efforts show that more people understand how important it is to have clearer, more standard ways of deciding on capital punishment. Implementation still feels like a big obstacle, and most trial courts aren’t really following these rules. This difference between what the courts say and how things are done shows we need bigger changes. These reforms should cover not just the rules for carrying out the death penalty but also the deeper issues behind it.

Alternative Approaches and International Perspectives

Life imprisonment without parole (LWOP) represents the primary alternative to the death penalty in many jurisdictions. Some people say that life without parole lets society keep dangerous people off the streets and punish them, but it doesn’t end life the way execution does. However, LWOP also raises concerns about human dignity and the potential for rehabilitation, with some critics characterizing it as “another kind of death sentence”.

International trends show a clear movement toward abolition, with approximately two-thirds of countries worldwide having abolished the death penalty in law or practice. This change around the world shows how ideas about human rights and respecting people’s dignity are changing. It also considers whether the death penalty truly works and is fair.

India’s approach to the death penalty exists within this international context, with increasing pressure to align with global human rights standards. While cultural, social, and political factors influence each country’s approach to capital punishment, international experiences offer valuable insights for potential reforms in India.

Conclusion

The death penalty in India is at a point where a lot of concerns are coming up. There are growing worries about unfair procedures, how social and economic status might influence who gets sentenced, and doubts about whether it really helps prevent crime or is morally right. The “rarest of rare” doctrine, while intended to restrict capital punishment to exceptional cases, has been applied inconsistently, leading to arbitrary outcomes that undermine the fairness and legitimacy of the system.

The Law Commission’s suggestion to remove some parts of the law, recent changes in the courts, and worldwide moves away from the death penalty all show it’s time for India to rethink how it handles capital punishment. These changes should address both procedural aspects, such as sentencing guidelines and appellate review, and more fundamental questions about the role of the death penalty in a modern justice system.

India needs to find a way to balance a few important things: treating offenders with respect, caring for victims and their families, keeping the public safe, and making sure practices match up with current human rights standards. This balancing act requires thoughtful, evidence-based reforms that strengthen procedural safeguards while also engaging with deeper questions about justice, punishment, and human dignity.

Looking at whether India should have the death penalty isn’t just about the law; it’s also about what the country stands for and what kind of society it wants to be. It’s really about our values and what kind of country we want to be. By addressing the documented flaws in the current system and considering alternative approaches, India has an opportunity to develop a more just, humane, and effective response to serious crime.

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