Revisiting the Death Penalty Debate in India: Law, Morality, and Reform

Abstract

This essay critically analyzes the status and future of the death penalty in India by examining its legal, moral, and reformative dimensions. While capital punishment is constitutionally and statutorily recognized, its application has been narrowed by the Supreme Court’s “rarest of rare” doctrine to prevent arbitrariness. The essay outlines the constitutional provisions, statutory framework under IPC and the Bharatiya Nyaya Sanhita (BNS), procedural safeguards in CrPC and BNSS, and key judicial interpretations that have shaped death penalty jurisprudence. It presents arguments both for and against the death penalty, highlighting issues of deterrence, retribution, and national security on one hand, and the risks of wrongful execution, discrimination, and human rights violations on the other. The morality section explores ethical concerns about the irreversible nature of the punishment and its disproportionate impact on marginalized communities. The essay concludes by examining significant reformative efforts, especially the 262nd Law Commission Report, which calls for the abolition of capital punishment except in terrorism-related cases. It also suggests humane alternatives such as life imprisonment without parole, restorative justice, and systemic prison reforms, urging a shift towards a more rehabilitative and constitutionally aligned criminal justice system.

Introduction:

        Capital punishment or the death punishment (penalty) is the state sanctioned execution of an individual as punishment for a crime. In India, the death penalty is legally permitted but it used sparingly guided by the Supreme Court’s “rarest of rare” doctrine. The “rarest of rare” principle, established in Bachan Singh v. State of Punjab, is being revisited to ensure consistent and fair application of the death penalty.  The death penalty remains one of the most contentious issues in criminal jurisprudence, straddling the lines between retribution and human rights, justice and vengeance, legality and morality. However, recent developments, including debates on miscarriages of justice, evolving moral standards, and international pressure, have reignited discussions on its continued relevance. This essay explores the death penalty in India through the lenses of law, morality, and potential reforms.

Law: Legal Framework for Capital Punishment in India:

• Constitutional provisions
• Statutory Provisions
• Procedural Safeguards
• Judicial Interpretation

1. Constitutional provisions:

• Article 21 : Protection of life and personal liberty
• Article 72 & 161: Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases

2. Statutory provisions

^[1]India retains capital punishment in its legal statutes. The Indian penal code(IPC),1860 prescribes death as a punishment for certain offences, including:

• Section 121: Waging, or attempting to wage war, or abetting waging of war, against the Government of India.
• Section 302: Punishment for murder.
• Section 364A: Kidnapping for ransom
• Section 376A: Punishment for causing death or resulting in persistent vegetative state of victim.

           Bharatiya Nyaya Sanhita (BNS), 2024 – Offences Punishable with Death

• Clause 67: Waging, or attempting to wage war, or abetting waging of war, against the Government of India. (Previously IPC Section 121)
• Clause 101(2): Punishment for murder, where the gravity and circumstances fall under rarest of rare. (Previously IPC Section 302)
• Clause 138(2): Kidnapping for ransom resulting in death or risk to life. (Previously IPC Section 364A)
• Clause 113(2): Punishment for causing death or persistent vegetative state of the victim in cases of sexual assault. (Previously IPC Section 376A)

3. Procedural Safeguards :

 The Code of Criminal Procedure (CrPC) 1973

• ^[2]Section 235(2) : Requires hearing the accused on the question of sentence.
• Section 354(3): Mandates that the judgement must record special reasons for awarding the death penalty .

Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 – Procedural Safeguards

• Clause 401(2) (corresponding to CrPC Section 235(2)):
  Requires that after the accused is found guilty, the court must hear the accused on the question of sentencing, allowing them to present mitigating factors before the punishment is determined.
• Clause 367(3) (corresponding to CrPC Section 354(3)):
  When awarding death or life imprisonment, the court must provide special reasons in the judgment for choosing the death penalty. This ensures the punishment is not arbitrary and is reserved only for the gravest cases.

4. Judicial Interpretation :
   1. Bachan Singh v. State of Punjab AIR 1980 SC 898
   2. Machhi Singh v. State of Punjab (1983) 3 SCC 470
   3. Jagmohan Singh v. State of U.P. AIR 1973 SC 947
   4. Ravji vs State of Rajasthan (1995) 2 SCC 175
   5. Shatrughan chauhan v. union of india (2014) 3 SCC 1

• Bachan Singh v. State of Punjab AIR 1980 SC 898

           ^[3] The Supreme Court ruled that the death penalty should be given only in the rarest of rare cases, where life imprisonment is clearly not a suitable option. Trial courts must consider not just how serious the crime is, but also the background and possibility of reforming the accused. However, the Court did not declare the death penalty to be unconstitutional.

• Machhi Singh v. State of Punjab (1983) 3 SCC 470

          The Supreme Court has laid down certain exceptions under which the death penalty can be awarded by applying the “rarest of rare” rule. It may be invoked in cases where the murder is committed in an extremely brutal and horrifying manner that shocks the conscience of the community, where the motive behind the act shows complete moral depravity and cruelty, or where the crime is exceptionally grave and large in scale. However, recent judgments such as Lochan Shrivas v. State of Chhattisgarh (2021) and Bhagchandra v. State of Madhya Pradesh (2021) reflect the judiciary’s growing focus on identifying factors that may help avoid the death penalty. These factors include the convict’s socio-economic background, mental health, heredity, family environment, upbringing, level of education, and social conditions all of which can influence the possibility of reform and justify a lesser sentence like life imprisonment.

• Jagmohan Singh v. State of U.P. AIR 1973 SC 947

^[4]After examining the facts and circumstances of the case, the five-judge bench of the Supreme Court unanimously upheld the constitutional validity of capital punishment, ruling that it does not violate Articles 14, 19, or 21 of the Indian Constitution.The bench clarified that Article 19 protects freedoms such as speech, expression, and trade, but does not directly address the right to life. The right to life, protected under Article 21, is the basis for all other rights, but it can be restricted through due process of law. The provision for capital punishment under Section 302 of the IPC satisfies this requirement and is constitutionally valid. The Court further noted that the framers of the Constitution must have accepted the legitimacy of the death penalty, as seen from the inclusion of Articles 72 and 134, which allow for pardon, suspension, remission, and commutation of sentences. Hence, the death penalty cannot be considered unreasonable or unconstitutional. The Court emphasized that each case must be evaluated individually, based on its specific facts and gravity, and accordingly, the appeal was dismissed.

• Ravji vs State of Rajasthan (1995) 2 SCC 175

The Supreme Court held that it is the nature of the crime, and not the character of the criminal, that is relevant in deciding the punishment an approach that is completely contrary to the principle laid down in Bachan Singh, which emphasized considering the circumstances of the offender as well.

• Shatrughan chauhan v. union of india (2014) 3 SCC 1

^[5]In this case, the Supreme Court commuted the death sentences of 13 convicts due to delays, and of 2 convicts on the grounds of mental illness. The Court took a humanitarian approach and acknowledged the fundamental rights of prisoners and those on death row. Justice Sathasivam stated that retribution has no place in India’s constitutional framework. The Court aligned itself with the evolving global human rights perspective, which encourages countries to move towards the abolition of the death penalty. It also laid down guidelines to ensure the proper handling of mercy petitions, although it did not set a specific time limit for their disposal. This judgment can be seen as a progressive move and possibly the first step towards ending capital punishment in India.

^[6]Arguments in Favour of the Death Penalty

1.     Deterrence

Supporters believe the death penalty can stop serious crimes like murder, rape, and terrorism by creating fear in the minds of potential criminals.

2.     Retributive Justice

They argue that some crimes are so terrible that the criminal deserves the same level of punishment. This idea is based on the belief of “an eye for an eye.”

3.     Public Opinion

In many high-profile cases, especially involving rape or terrorism, the public strongly supports the death penalty. It is seen as a way to show society’s anger and demand for justice.

4.     National Security

For crimes like terrorism or waging war, the death penalty is seen as necessary to protect the country and to send a strong warning to others.

5.     Justice for Victims’ Families

Some believe that executing the offender helps the victim’s family feel that justice has been done, giving them a sense of closure and relief.

 

^[7]Arguments Against the Death Penalty

1.      Risk of Wrongful Execution

If a mistake is made—because of poor investigation, lack of proper legal help, or false evidence—an innocent person could be wrongly executed, and the error can never be fixed.

2.     Unfair and Unequal Use

Reports show that the death penalty is mostly given to poor people, Dalits, tribal communities, and minorities, showing that the system is not always fair.

3.     No Clear Proof It Stops Crime

Research has not shown that the death penalty actually reduces crime more than life imprisonment.

4.     Violation of Human Rights

Critics say it goes against the right to life and can be cruel and degrading, which is against both Indian law and international human rights standards.

Morality:  In Death Penalty

• Moral Justification and Retribution
• Irreversible Error
• Disproportionate Impact
• Human Rights Violation

1. Moral Justification and Retribution:
              Capital punishment is often morally justified as retribution — the idea that certain crimes deserve the ultimate punishment. However, this is increasingly challenged by those who uphold the sanctity of human life.
2.  Irreversible Error:
               The death penalty is irreversible. In India, systemic flaws like custodial torture, inadequate legal aid, and investigative errors increase the risk of executing the innocent. The Death Penalty India Report (2016) found that most death row inmates are from Dalit, tribal, or economically poor backgrounds.
3.   Disproportionate Impact:
                Capital punishment disproportionately affects marginalized communities. Factors like caste, religion, and poverty influence legal outcomes, raising serious concerns about equality before the law under Article 14 of the Constitution.
4. Human Rights Violation:
                Many argue the death penalty violates the right to life and the prohibition of cruel or degrading punishment under international law (ICCPR). Despite being a signatory, India retains the death penalty, drawing global criticism.

Reform: Reformative and Alternative Approaches

• The “Rarest of Rare” Doctrine
• Law Commission of India – 262nd Report (2015)
• Evolving Judicial Interpretation
• Alternatives to Capital Punishment

1. The “Rarest of Rare” Doctrine

 ^[8]The foundation for limiting the application of the death penalty in India was established in Bachan Singh v. State of Punjab (1980), wherein the Supreme Court held that capital punishment should be imposed only in the “rarest of rare” cases. This doctrine was introduced to address the arbitrary imposition of the death sentence by mandating a careful judicial assessment that balances aggravating and mitigating circumstances before arriving at a decision to impose the ultimate punishment.

2. Law Commission of India – 262nd Report (2015)

^[9]The 262nd Report of the Law Commission of India (2015), led by Justice A.P. Shah, recommended abolishing the death penalty for all crimes except terrorism and waging war. Departing from its earlier 1967 stance, the Commission argued that capital punishment lacks deterrent value and is applied arbitrarily. It highlighted systemic flaws like poor legal aid, custodial torture, and delays in mercy petitions, making the death penalty discriminatory and unreliable. The report also pointed out that death row conditions violate Article 21. It called for victim compensation, witness protection, and police and judicial reforms to create a more humane justice system.

Evolving Judicial Interpretation

Indian courts have progressively adopted a more restrained and humane approach in the adjudication of death penalty cases. In Machhi Singh v. State of Punjab (1983), the Supreme Court further clarified the “rarest of rare” doctrine by outlining specific criteria for its application. Subsequently, in Shatrughan Chauhan v. Union of India (2014), the Court held that inordinate delays in the disposal of mercy petitions, as well as the deteriorating mental health of the convict, constitute valid grounds for the commutation of death sentences.

3. Alternatives to Capital Punishment

There is an increasing shift in support toward humane alternatives to the death penalty, reflecting evolving standards of justice and constitutional morality. These alternatives include life imprisonment without the possibility of parole for the most serious offences, restorative justice mechanisms that facilitate dialogue and healing between victims and offenders, and comprehensive prison reforms aimed at ensuring mental health care and effective rehabilitation.

Global Trends and India’s Position :

           Globally, 70% of nations have abolished the death penalty either in law or in practice, reflecting a significant shift toward humane criminal justice systems. Established democracies such as South Africa, the United Kingdom, and most European nations have completely done away with executions. The United Nations has consistently advocated for a worldwide moratorium, emphasizing the absence of credible evidence that capital punishment deters crime and highlighting the irreversible risk of wrongful execution. Although India is a signatory to the International Covenant on Civil and Political Rights (ICCPR), it continues to retain the death penalty, thereby facing increasing international scrutiny and calls for reform.

Conclusion:

         ^[10]Everyone should remember that “no one has the right to take someone’s life” unless it is allowed by law. In recent times, the problems related to the death penalty mostly arise because the true nature of the crime is not properly examined. The death penalty in India, though legally valid, is increasingly being questioned on legal, moral, and human rights grounds. Judicial trends, Law Commission reports, and global shifts point towards limiting its use. With growing concerns about wrongful convictions, arbitrariness, and human dignity, India must move toward reformative justice and consider abolishing capital punishment, except in the gravest cases like terrorism.      

[1] ‘The Indian penal code ‘ (18 jun 2025) https://www.indiancode.in

[2] The code of criminal procedure, 1973 ( 18 jun 2025) https://www.indiankanoon.org

[3] ‘Death penalty in india’ (19 jun 2025) https://www.shankariasparliament.com

[4] ‘Jagmohan vs state of up’ (19 jun 2025 ) https://www.textbook.com

[5] ‘ Shatrughan chauhan vs union of india’ (19 jun 2025 ) https://docs.manupatra.in

[6] Ethics of capital punishment’ (19 jun 2025) https://www.vishionias.in

[7] Ethics of capital punishment’ (19 jun 2025) https://www.vishionias.in

[8]‘ The doctrine of Rarest of the rare’ (19 jun 2025 ) https://www.legalserviceindia.com

[9] The 262^nd report of the law commission of india’ ( 19 jun 2025 ) https://docs.manupatra.in

[10]‘ Death penalty in india: overall view’ (20 jun 2025) https://ijlsi.com