DEATH PENALTY IN INDIA: CONSTITUTIONAL VALIDITY AND GLOBAL TRENDS

Introduction

The question of death penalty in India is quite controversial because this question is entrenched in the system of constitutional law and the international discussion of human rights. In this article, the issue of the constitutional validity of capital punishment in India is examined, with special attention paid to its compliance with the final rights, that are provided by the Constitution, especially, the right to life and personal liberty. It follows the history of judicial doctrine with its focus on the conflict between the power of the state to take away the life of a person and the constitutional protection of the rights of individuals. Besides, the article also focuses on the position of India in the international system where there is an apparent trend towards abolitionist policies as the international human rights standards are changing. The study evaluates the retentionist stance of India against the global trends which encourage the abolition of capital punishment using the analysis of the main provisions of the constitution and international legal commitments, such as the treaties to which India is a signatory. A comparative approach brings to the fore procedural protection, the inconsistencies of the judiciary, and the moral and legal theses that formed the basis of the global abolitionist movement. This discussion will seek to give a comprehensive insight on the constitutional validity of death penalty in India and its consequences in the face of international pressure to reform with respect to balance of justice, equality and human dignity.

Constitutional Validity and the Evolution of Judicial Doctrine

The constitutionality of the death penalty in India has developed over the decades of judicial interpretation, which is essentially influenced by the conflict between the state and its ability to take away life and the basic right to life as envisaged in Article 21. This legal journey does not just show how the Supreme Court is grappling to connect capital punishment and the constitution but also reflects the internal constraints of the judicial systems that are meant to avoid arbitrariness when dealing with issues that pertain to life and death.

The Fundamental Right to Life: Article 21

Article 21 of Indian constitution states that no individual shall be denied his life or personal liberty other than through procedure stipulated by law. The accuracy or inaccuracy of the interpretation of this provision is the key to the constitutionality of the death penalty, i.e. whether the words procedure established by law provide substantive power to the state to take away the life or whether it is a mere procedure. In the landmark of Jagmohan Singh v. State of U.P. (1973)[1], a five-judge Constitution Bench discussed this basic question by relieving the constitutionality of capital punishment. The Supreme Court also held that the right to life is not infringed provided the death sentence is meted out in a procedure that is provided by the law, which made it clear that Article 21 does not forbid deprivation of life provided that it is carried out in a procedure that is sanctioned by the constitution. The reason as given by the Court rested on the fact that the constitutional framers implicitly accepted that there was capital punishment by allowing a means of pardoning or commutation of death sentences, which allowed the Court to recognise the constitutional legitimacy of such punishment.[2]

The Early Constitutional Challenges and Judicial Foundations

The decision of Jagmohan Singh saw the light of the day as the result of the initial extensive constitutional test of the death penalty in India, with the petitioners claiming that capital punishment contravened Articles 14, 19, and 21 of the Constitution.[3] The jurisprudence in this case enabled the Supreme Court to formulate a number of principles upon which the death penalty remains to be applied even today. In Article 14 (right to equality) the Court ruled that, equality does not entail a lack of judicial discretion in the sentencing process so long as the discretion is judicially used in concurring aggravating and mitigating factors. The case stressed that various penalties against comparable offences do not always infringe equality in cases when judges take into account the exceptional conditions of the individual cases. On Article 19 (freedom rights), the Court ruled that although freedom of expression and other freedoms was critical, it did not specifically imply the right to life and the reasoned limitations on life in the best aptitude of the populace was constitutionally viable. The rationale of the Court was utilitarian approach which put more importance on the interests of the society rather than on the rights of the citizens, and this set a precedent that capital punishment is a valid state interest in preserving social order and preventing grave offences.[4]

The Birth of the “Rarest of the Rare” Framework: Bachan Singh v. State of Punjab (1980)

The landmarks of capital punishment in the Constitution were changed irreversibly with the case of Bachan Singh v. State of Punjab (1980)[5], that adopted the doctrine of the rarest of the rare and at the same time ruled that the death penalty was constitutional. Its Constitution Bench consisting of five judges with Y.V. Chandrachud presiding over the case passed a subtle judgement that made use of individualised sentencing to be the fundamental principle of the capital punishment jurisprudence. The majority opinion stated that the provision of the Indian Penal Code which states that death is an alternative form of punishment to murder in Section 302 of the Indian Penal Code was constitutional in the Articles of 14, 19, and 21 but it should be noted that capital punishment should still be an exception and not a regular procedure. The framework adopted by the Court required both the circumstances of the crime and circumstances of the criminal be taken into consideration that created a holistic approach to the capital sentencing that has gone beyond the analysis of the crime. The equalisation of aggravating and mitigating conditions ended up as the main methodology used by the Court where the life imprisonment was to be the rule and death as the exception. A dissenting opinion by Justice P.N. Bhagwati, however, made a prophetic objection that the death penalty was unconstitutional as it had offended Articles 14 and 21 and was unconstitutional and not desirable in a number of respects, anticipating many of the current objections to capital punishment.[6]

Post-Bachan Singh Jurisprudence: A Labyrinth of Inconsistency

Adoption of the Bachan Singh system has brought out an alarming storey of judicial inconsistency which has weakened the principles of the constitution it was meant to uphold. The ruling of the Supreme Court in Machhi Singh v. State of Punjab (1983)[7] saw the onset of a major shift in the individualised approach to sentencing by Bachan Singh, with the establishment of the categorical guidelines to the death eligibility offences. The Machhi Singh judgement created five types of cases that should receive a death penalty depending on the crime nature and severity, which in effect, allowed a death sentence to be administered under crime-focused review but not on the comprehensive appraisal as suggested by Bachan Singh. Such movement to categorization completely defied the direct warning of Bachan Singh against standardisation of death-qualified categories, which was considered to grossly affect individualised sentencing. Later judicial rulings have followed the same line of inconsistency, and the Supreme Court itself in successive adjudicative opinions has admitted that the state of uncertainty in capital sentencing law brought about by the extremely uneven application of Bachan Singh has become blatantly unconstitutional under the constitutional due process and equality principles. The Court has also acknowledged that such inconsistent application has rendered it cumbersome to draw the line between cases in which death has been imposed and the other cases in which the alternative, life imprisonment, has been imposed thus the constitutional regulation has failed in regulating arbitrary and freakish imposition of death sentence has been eliminated. This judicial dissimilarity has resulted in what researchers have dubbed a judge-oriented approach to capital sentencing, in which personal viewpoints of the judges instead of the guiding legal principles shape the course of the action, contravening the principle of equality according to Article 14.[8]

Procedural Safeguards and Post-Conviction Developments.

Development of the jurisprudence of the death penalty has been marked by substantial growth in procedural protections and post-conviction rights that have resulted in some of the most significant decisions in jurisprudence expanding the substantive rights of the death row convict. The Supreme Court in the case of  Shatrughan Chauhan v. Union of India (2014)[9] concluded that inordinate delays in disposal of mercy petitions are a violation of Article 21 and thus introduced delay as a valid reason to have death sentences commuted to a life imprisonment.[10] The Court ruled that any delay of this nature exposes death row convicts to intense mental suffering and uncertainty, which constitutes cruel and inhuman treatment, which is against their right to life and their own liberty. Such a verdict put a number of procedural rights in place on death row prisoners, such as the right against solitary confinement, the acknowledgment of mental illness as a commutation reason, and the need to promptly dispose of mercy petitions. The rationale of the Court in Shatrughan Chauhan was an extension of the interpretation of Article 21 to the right of life that includes the right to live with dignity even death row inmates have. Perhaps more recently, the Supreme Court has identified the possibility of retrospective application of procedural protections, which provide that all impending death row convicts shall enjoy newly-created protections, independent of the time of their convictions. These changes can be considered as an important shift in the Court thinking on capital punishment towards a substantive interpretation that is inclusive of dignity, mental condition, and human behaviour towards death row prisoners.[11]

Global Trends and International Law Perspectives

The international system of capital punishment has also witnessed a radical shift in the past few decades with the international community becoming more supportive of the abolitionist ideology, which puts the retentionist views of India under increasing pressure. By 2025, more than three-quarters of the nations in the world have been found to eliminate the death penalty, either legally or in practise (some countries, such as the United States and the United Kingdom, have additional restrictions on the death penalty). Such a sweeping tendency is not only a reflection of the altering political tastes, but a total transformation in perceiving the norms of human rights, in the transformation of the interpretation of international legal duties with regard to the right to life.[12]

The Global Abolitionist Movement: A Statistical and Normative Overview

In the modern world of the death penalty, there is a clear polarization of the few executing states versus a growing majority of abolitionist states. There was also a record low of only 15 executions in the year 2024 in the countries performing executions but at least 1,518 known executions were carried out in these countries that year, the highest number of executions in since the year 2015.[13] This contradiction reveals the so-called concentration effect that researchers recognise when the number of countries implementing more people increases. The international classification system splits nations into either de jure abolitionist (113 countries that have fully abolished capital punishment), abolitionist in case of ordinary crimes only, or abolitionist in practise (keep the legislation but observe moratoria).[14] The legal and moral incentives of this international change include various facets: appreciation of the natural dignity of human life as expressed in the jurisprudence of human rights that is developing and increasingly, an awareness of the systemic discrimination of criminal justice systems that are increasingly disproportionate to minorities and the financially disadvantaged, and a recognition of how the judicial error once made cannot be undone. Also, the emerging international practise of customary law is more to the effect of an agreement that the death penalty is inhuman, cruel and degrading, hence contravening the basic human rights principles.[15]

International Human Rights Instruments and India’s Obligations

The normative framework under the international law in capital punishment is based on Universal Declaration of Human Rights[16] and the International Covenant on Civil and Political Rights (ICCPR) of 1979 in which India is a signatory. Although the article 6 of ICCPR[17] does not directly forbid the death penalty, it places substantial limitations and states that it is preferable to abolish the capital punishment and nothing in [Article 6] shall be used to delay or prevent the abolition of the capital punishment of such a state party. In 1989, the Second Optional Protocol to the ICCPR was adopted and now is ratified by 92 states, requiring the abolition of the death penalty in all cases, as the international community is now determined to get rid of capital punishment.[18] The refusal of India to ratify this Protocol coupled with its widening the range of death-eligible offences to cover non-homicidal criminal offences puts India squarely on a path that is contrary to the emerging international human rights discourse. The Human rights committee has always understood the ICCPR to mean that states should gradually limit the application of capital punishment, and as such, it should be applied on the most serious crimes involving deliberate killing. The fact that India still has retained the death penalty against crimes like terrorism and other sexual offences that have not been proven to deter gives it a reason to be violative of these international obligations. Moreover, the traditional international law is becoming more aware of the fact that the effect of death row detention, arbitrary use of capital punishment, and inhuman modes of execution are violations of the ban on torture and cruel, inhuman, or degrading treatment.[19]

Comparative Jurisprudence: Constitutional Pathways to Abolition

The constitutional arguments which are used by democratic countries to remove the capital punishment are instructive examples which India can follow. The example of the United Kingdom on its way to total abolition is an illustration of a progressive legislative strategy, where the suspension of executions in 1965 was the first step towards the abolition of capital punishment, and the final stage was the ratification of Protocol 13 to the European Convention on Human Rights in 2002, which outlaws capital punishment in all cases.[20] The EU as a whole, demonstrates its belief in the right to life of everyone by its views on Protocol 13[21] which presupposes that the right to life is a principal value in a democratic society and that eliminating the death penalty is a crucial measure to safeguard this right. This Protocol does not allow derogation out of abolition, even in states of emergency, which shows the irrevocability of the European pledge not to continue capital punishment. The situation in the United States is more complicated, with the Supreme Court considering the longstanding ban of cruel and unusual punishment of the Eighth Amendment[22] prohibiting capital punishment as the basis of severe limitations rather than its full prohibition.[23] The American constitutional doctrine has been developed to outlaw executions of children and those with mental illnesses and in case of crimes like non-homicidal offences, the sentencing process must be individually conducted to avoid random enforcement. But the continuing controversies surrounding the execution procedures, disparities by race and the psychological tortures of death row prove that there are contradictions within the attempts to make death row more human. A Constitutional Court decision made in Hungary in 1990 is perhaps the most applicable precedent in India, with the court ruling that the capital punishment was unconstitutional on the basis that the state had no right to eliminate the content of the basic rights such as the right to life and the human dignity. The Court justified that any taking away of life was theoretically arbitrary and could not be granted constitutional acknowledgement of basic rights.[24]

India’s Position in the United Nations: Justifications and Contradictions

The constant opposition of India to resolutions of the UN general assembly demanding the international moratorium on executions indicates the strains that its local law system is undergoing with its international human rights commitments. India has voted against all UN Resolutions favouring a moratorium on the death penalty every two years since 2007[25], with the latest resolution of 2024 having an all-time high number of supporters of 130 against 32 countries, India included.[26] The arguments used by India in the international arena have always used the concept of sovereignty by saying that the resolutions are violating the statutory law in India, and that India has the right to fix the legal punishments in its own country. Indian representatives stress that capital punishment is used in the so-called rarest of rare cases, when the crime committed causes an outrage to the societal conscience, and in addition to procedural rights such as the right to trial, the presumption of innocence and an appeal to the court are mentioned. Nonetheless, these reasons portray a number of contradictions with the international legal obligations of India. To begin with, the commitments by India as the signatory of ICCPR puts binding obligations to reach a phased withdrawal of the capital penalty; the sovereignty arguments should not be legally viable to perpetuate the death penalty. Second, the available data proves that the India rare of rare standard has been been used unequally, resulting into random and unequal sentencing habits, which breach the principle of equality.[27] Third, the inclusion of offences other than homicide as death-eligible in India is a direct violation of the ICCPR Article 6 that restricted the crimes to the most serious crimes that involved intentional killing. The international reasons of the Indian government are increasingly presented as acts of rearguement to justify a practise that goes against the trends of international human rights, and even the constitution of India, which promises equality, due course of justice, and human dignity.

References

[1] Jagmohan Singh v State of Uttar Pradesh [1973] 1 SCC 20.

[2] Supreme Court Observer, ‘Court in Review: Death Penalty’ <https://www.scobserver.in/journal/court-in-review-the-death-penalty/> accessed 16 September 2025.; Cinta Johnson and Mini Shrivastav, ‘Death Penalty in India: A Comparative Study of Legal Precedents and Human Rights Perspective’ (2025) International Journal of Multidisciplinary Trends <https://www.multisubjectjournal.com/article/670/7-5-9-605.pdf> accessed 16 September 2025.

[3] The Constitution of India 1950, art 14, art 19, art 21.

[4] Sakshi Raje, ‘Jagmohan Singh vs. State of UP (1972)’ (iPleaders) <https://blog.ipleaders.in/jagmohan-singh-vs-state-of-up-1972/> accessed 16 September 2025.; Ananya Sharma, ‘Jagmohan Singh v State of Uttar Pradesh’ (LawBhoomi) <https://lawbhoomi.com/jagmohan-singh-v-state-of-uttar-pradesh/> accessed 16 September 2025.

[5] Bachan Singh v State of Punjab [1980] 2 SCC 684.

[6] Aashayein Law Education Center, ‘Rarest of the Rare case: Bachan Singh vs State of Punjab, (1980) 2 SCC 684’ (26 November 2024) <https://www.alec.co.in/show-blog-page/rarest-of-the-rare-case-bachan-singh-vs-state-of-punjab-1980-2-scc-684> accessed 16 September 2025.; Anup Surendranath and Maulshree Pathak, ‘Legislative Expansion and Judicial Confusion: Uncertain Trajectories of the Death Penalty in India’ (2022) 11(3) International Journal for Crime, Justice and Social Democracy <https://www.crimejusticejournal.com/article/download/2477/1272/9828> accessed 16 September 2025.; Ria Verma and Shefali Chitkara, ‘Bachan Singh v. State of Punjab (1980) : case analysis’ (iPleaders) <https://blog.ipleaders.in/analysing-the-judgment-of-bachan-singh-v-state-of-punjab-1980/> accessed 16 September 2025.; Aishwarya Agrawal, ‘Machhi Singh vs State of Punjab’ (LawBhoomi) <https://lawbhoomi.com/machhi-singh-vs-state-of-punjab/> accessed 16 September 2025.

[7] Machhi Singh v State of Punjab [1983] 3 SCC 470.

[8] Anup Surendranath, Neetika Vishwanath and Preeti Pratishruti Dash, ‘The Enduring Gaps and Errors in Capital Sentencing in India’ (2020) 32(1) National Law School of India Review <https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1077&context=nlsir> accessed 16 September 2025.; SB Sinha, ‘To Kill Or Not To Kill: The Unending Conundrum’ (2012) 24(1) Articles section of www.manupatra.com <https://docs.manupatra.in/newsline/articles/Upload/627A4CD3-FE12-46A0-87AB-7F6BC48E5AC8.pdf> accessed 16 September 2025.

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

[10] Khushi Tiwari, ‘SHATRUGHAN CHAUHAN V. UNION OF INDIA 2014’ (27 November 2024) <https://thelegalquorum.com/shatrughan-chauhan-v-union-of-india-2014/> accessed 16 September 2025.

[11] Zubin Dash and Shashank Singh, ‘A Case Against Delay as a Ground for Commutation of Death Sentences’ (2014) 7 NUJS Law Review 321 <https://docs.manupatra.in/newsline/articles/Upload/F2BE6961-2727-4663-864C-4F9161CE7BC3.pdf> accessed 16 September 2025.; Vikram Nath J, Sanjay Karol J and Sandeep Mehta J, ‘Revisiting Death Penalty Sentence under Article 32 for Violation of Procedural Safeguard’ (25 August 2025) SCO.LR <https://www.scobserver.in/supreme-court-observer-law-reports-scolr/vasanta-sampat-dupare-v-union-of-india-revisiting-sentence-article-32-violation-death-penalty/> accessed 16 September 2025.

[12] Amnesty International, ‘Death Penalty in 2024 – Facts and Figures’ <https://www.amnesty.or.th/en/news/2025/04/death-penalty-in-2024-facts-and-figures-en/> accessed 16 September 2025.

[13] Death Penalty Information Center, ‘Amnesty International Global Report 2024: Lowest Number of Countries Carried Out Highest Number of Recorded Executions in a Decade’ (2024) <https://deathpenaltyinfo.org/amnesty-international-global-report-2024-lowest-number-of-countries-carried-out-highest-number-of-recorded-executions-in-a-decade> accessed 16 September 2025.

[14] Death Penalty Information Center, ‘Abolitionist and Retentionist Countries’ (31 December 2024) <https://deathpenaltyinfo.org/policy-issues/policy/international/abolitionist-and-retentionist-countries> accessed 16 September 2025.

[15] International Bar Association, ‘The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalty’ (May 2008) <https://www.ibanet.org/medias/Deathpenalty-Paper.pdf?context=bWFzdGVyfEhSSS1yZXBvcnRzfDE1NjM3NnxhcHBsaWNhdGlvbi9wZGZ8YURZekwyaG1NeTg0T0RBd05qZ3pORGt4TXpVNEwwUmxZWFJvY0dWdVlXeDBlVjlRWVhCbGNpNXdaR1l8NGEzOWJiMTI1Yzk5YWI0YjJiZmM5ZGU1MzY4OWMwNzNiNjNmMTFlOTIyOGE2OGNkZmQ5NmU2MWFmZGYxNWQzMw&attachment=true> accessed 16 September 2025.; Penal Reform International, Is there an emerging trend to see the death penalty as torture or cruel, inhuman or degrading treatment?’ <https://www.penalreform.org/news/emerging-trend-death-penalty-torture-cruel-inhuman-degrading/> accessed 16 September 2025.

[16] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III).

[17] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 6.

[18] Death Penalty Information Center, ‘Human Rights’ <https://deathpenaltyinfo.org/policy-issues/policy/human-rights> accessed 16 September 2025.; Office of the High Commissioner for Human Rights, ‘Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty’ <https://www.ohchr.org/en/instruments-mechanisms/instruments/second-optional-protocol-international-covenant-civil-and> accessed 16 September 2025.

[19] The Death Penalty Project, ‘International Law and Abolition of the Death Penalty’ <https://deathpenaltyproject.org/wp-content/uploads/2022/11/The-Death-Penalty-Project_Policy-International-Law.pdf> accessed 16 September 2025.

[20] Equality and Human Rights Commission, ‘Article 1 of Protocol 13: Abolition of the Death Penalty’ (3 June 2021) <https://www.equalityhumanrights.com/human-rights/human-rights-act/article-1-protocol-13-abolition-death-penalty> accessed 16 September 2025.

[21] 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 (adopted 3 May 2002, entered into force 1 July 2003) CETS No 187.

[22] Constitution of the United States, amend VIII.

[23] ‘The Dichotomy of the Eighth Amendment and Capital Punishment’ (3 March 2024) Immigration and Human Rights Law Review <https://lawblogs.uc.edu/ihrlr/2024/03/03/the-dichotomy-of-the-eighth-amendment-and-capital-punishment/> accessed 16 September 2025.; Jane Paden, ‘The Sword of Damocles in American Law: The Cruel and Unusual Nature of the Death Penalty’ Washington University Law Review <https://journals.library.wustl.edu/wuulr/article/8962/galley/25721/view/> accessed 16 September 2025.

[24] Constitutional Court of Hungary, Decision 23/1990 (24 October 1990).

[25] ‘India Votes Against United Nations General Assembly Draft Resolution On Use Of Death Penalty’ (NDTV, 14 November 2018) <https://www.ndtv.com/india-news/india-votes-against-united-nations-general-assembly-draft-resolution-on-use-of-death-penalty-1947099> accessed 16 September 2025.

[26] United Nations General Assembly, ‘Moratorium on the Use of the Death Penalty’ (Resolution 79/179, 17 December 2024) UN Doc A/RES/79/179 <https://digitallibrary.un.org/record/4069732?ln=en> accessed 19 September 2025.

[27] Rajkumari and Ripu Daman Pratap Singh, ‘“The Doctrine of Rarest of Rare”: A Critical Analysis’ (2022) 2(4) Indian Journal of Integrated Research in Law 1 <https://ijirl.com/wp-content/uploads/2022/08/THE-DOCTRINE-OF-RAREST-OF-RARE-A-CRITICAL-ANALYSIS.pdf> accessed 19 September 2025.