Published On: December 8th 2025
Authored By: Anandi Chaturvedi
CHANAKYA LAW COLLEGE RUDRAPUR UTTARAKHAND
Abstract
The death penalty, or capital punishment, remains one of the most contentious issues in legal and human rights discourse globally. In India, its constitutional validity has been repeatedly challenged and upheld by the Supreme Court, but only under the “rarest of rare” doctrine. This article provides a comprehensive legal analysis of the death penalty in India, tracing its constitutional journey through landmark judgments. It delves into the evolution of judicial interpretation from Jagmohan Singh v. State of U.P. to Bachan Singh v. State of Punjab, and its subsequent refinement in cases like Machhi Singh and Shatrughan Chauhan. Furthermore, the article analyzes the global trend toward the abolition of the death penalty, contrasting India’s retentionist stance with the growing number of countries that have abolished it in law or practice. It also examines the key arguments for and against capital punishment, including the crucial issue of judicial fallibility, the principle of human dignity, and the role of public opinion. The article concludes by discussing the ongoing debate in India, highlighting the tension between a punitive justice system and evolving human rights principles, while also considering the recommendations of the Law Commission of India.
Introduction
The death penalty, or capital punishment, is one of the most debated issues in criminal law and human rights. It represents the most severe form of punishment, involving the deliberate taking of life by the state. Proponents argue for its deterrent effect and retributive justice, while opponents cite its irreversible nature, potential for error, and violation of fundamental human rights.
In India, capital punishment has survived despite constitutional challenges and shifting global attitudes. While the Indian judiciary has limited its use, the country continues to belong to the minority of retentionist states. This article examines the constitutional validity of the death penalty in India, the doctrinal framework developed by the Supreme Court, and situates these debates within global trends.
Constitutional Validity of the Death Penalty in India
The Indian Constitution does not expressly prohibit the death penalty. Article 21 guarantees the right to life and personal liberty, but explicitly provides that life may be deprived by ‘procedure established by law.’ This phrase was borrowed from the Japanese Constitution and initially understood narrowly in A.K. Gopalan v. State of Madras[1], where the Supreme Court held that any law enacted by the legislature was sufficient to deprive a person of life. However, the interpretation of Article 21 was broadened in Maneka Gandhi v. Union of India[2], requiring that any procedure depriving life must be fair, just, and reasonable. This widened the scope for challenging the arbitrariness of the death penalty.
Article 14, which guarantees equality before the law, serves as another safeguard, ensuring that sentencing must not be discriminatory or arbitrary. Articles 72 and 161 empower the President and Governors, respectively, to grant pardons, reprieves, or commutations, providing an additional layer of protection.
The Right to Life and Personal Liberty (Article 21)
Article 21, which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law,” is the cornerstone of the debate. Abolitionists argue that the death penalty is a direct violation of this right. However, the Indian judiciary has consistently held that the phrase “procedure established by law” includes the possibility of the death penalty, as long as the procedure is fair, just, and reasonable.
Jagmohan Singh v. State of U.P[3] was the first major case to challenge the death penalty’s constitutionality. A five-judge bench of the Supreme Court unanimously upheld its validity, rejecting the argument that it violated Articles 14, 19, and 21. The Court held that the “procedure established by law” was not limited to the trial process but also included the post-conviction sentencing phase. The Court emphasized that the choice between life imprisonment and the death penalty was left to the judge’s discretion based on the facts and circumstances of each case, thereby not being arbitrary. This judgment laid the groundwork for a more nuanced approach, moving away from a mandatory imposition and toward a discretionary one based on judicial consideration.
In Rajendra Prasad v. State of U.P., Justice Krishna[4] Iyer emphasized that capital punishment should be awarded only in the gravest circumstances for special reasons.
The landmark judgement of Bachan Singh v. State of Punjab[5], is the most significant judicial pronouncement on the death penalty in India. A five-judge bench, by a 4:1 majority, upheld the constitutional validity of the death penalty but introduced the “rarest of rare” doctrine. The Court ruled that capital punishment should be imposed only in cases where the alternative of life imprisonment is unquestionably foreclosed. Justice P.N. Bhagwati’s dissenting opinion argued that the death penalty was unconstitutional as it was arbitrary and lacked a rational principle for its imposition. The majority opinion, however, laid down a framework for judges to follow, balancing aggravating and mitigating factors. The Court affirmed that the death penalty serves a legitimate penological purpose, a mix of deterrence and retribution. The “rarest of rare” doctrine was designed to act as a safeguard against the arbitrary use of the death penalty, ensuring that it is reserved for only the most egregious crimes.
In the case Machhi Singh v. State of Punjab[6] the doctrine “rarest of rare” was further explained by providing a list of aggravating circumstances where the death penalty may be considered. These included the manner of commission of the murder (e.g., extreme brutality), the motive for the crime (e.g., depravity), the anti-social or abhorrent nature of the crime (e.g., caste-based violence, crimes against women), and the personality of the victim (e.g., murder of a child or an elderly person This ruling gave more specific instructions to guarantee that the death penalty was only applied to crimes that shocked the community’s collective conscience and not applied arbitrarily . With careful consideration of both aggravating and mitigating circumstance , the court stressed that the circumstances of the offender and the nature of the crime must be taken into account.
The Rule of Law and Judicial Review
The Supreme Court has consistently exercised its power of judicial review to ensure that the death penalty is not imposed in an arbitrary or unconstitutional manner. In Mithu v. State of Punjab[7] (1983), the Court struck down Section 303 of the Indian Penal Code, which provided for a mandatory death penalty for a person already serving a life sentence who committed murder. The Court found this provision to be violative of Articles 14 and 21, as it did not allow for judicial discretion and was inherently unjust. This ruling underscored the principle that a mandatory death sentence is unconstitutional, as it fails to account for the unique circumstances of each case.
The principle of “procedure established by law” has also been extended to include the right of the condemned prisoner to a speedy disposal of their mercy petition. In Triveniben v. State of Gujarat[8] (1989), the Court held that inordinate delay in the execution of a death sentence could be a ground for commuting the sentence to life imprisonment. This principle was further strengthened in Shatrughan Chauhan v. Union of India [9] (2014), where a three-judge bench commuted the death sentences of 15 convicts on the ground of inordinate delay in the disposal of their mercy petitions. The Court held that a prolonged and agonizing wait for execution violates Article 21 and constitutes torture. It also provided clear guidelines on the procedure for deciding mercy petitions, requiring a fair hearing and prompt disposal. These judgments reflect a deepening judicial conscience regarding the humane aspects of punishment.
Global Trends in the Death Penalty
The global landscape regarding the death penalty is marked by a clear trend towards abolition. As of 2023, the vast majority of countries have either abolished capital punishment in law or practice. This shift is driven by a growing recognition of human rights, the fallibility of the justice system, and the lack of conclusive evidence that the death penalty serves as a greater deterrent than a long-term prison sentence.
Annual reports on the death penalty from Amnesty International highlight the number of countries that have completely abolished the death penalty for all crimes has grown over the years to the point where over 140 countries have abolished the death penalty in law or practice (most of Europe and parts of Africa and the Americas), citing moral and ethical reasons, a belief in the inherent dignity of all human beings, and a risk of executing an innocent person, while a handful of countries, led by China, Iran, Saudi Arabia, and the United States are staunch retentionists. In 2023, the total number of recorded executions (excluding China, where data are a state secret) increased, with a few countries responsible for the majority of executions, and Iran accounting for the majority of all recorded executions. Reasons for retention often include the belief that the death penalty is a necessary deterrent to crime, that the death penalty is a necessary deterrent to crime, that there are no innocent people on death row, and that the death penalty is a necessary tool for maintaining social order.
The international community’s stance on the death penalty is reflected in various international treaties and conventions. The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), aimed at the abolition of the death penalty, is a key instrument. While India is a signatory to the ICCPR, it has not ratified the Second Optional Protocol, a move that aligns with its retentionist policy. This shows India’s cautious approach, balancing its domestic legal framework with evolving international norms. Regional treaties, such as the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, further illustrate the regional consensus on abolition. The United Nations General Assembly has also passed several resolutions calling for a worldwide moratorium on executions with a view to abolishing the death penalty, indicating a strong international consensus against capital punishment.
The Ongoing Debate in India
Despite the Supreme Court’s jurisprudence, the debate over the death penalty in India is far from settled. The discourse is marked by a deep philosophical divide between proponents of a retributive system and those who advocate for a more rehabilitative and humanistic approach.
The debate over the constitutional validity of the death penalty centers on competing principles of justice, deterrence, and human dignity. Proponents argue that capital punishment deters heinous crimes, protects society, and delivers justice to victims’ families. Opponents highlight its irreversibility, arbitrariness, and potential for wrongful convictions. Critics argue that the ‘rarest of rare’ doctrine lacks objective standards, leaving sentencing subject to judicial discretion.
The Law Commission of India, in its 262nd Report (2015), recommended abolishing the death penalty for all crimes except terrorism-related offences, citing concerns of arbitrariness and the lack of deterrence. Despite this, Parliament has expanded the scope of capital punishment in cases such as sexual offences against children under the Protection of Children from Sexual Offences (POCSO) Act.
Contemporary Issues in India
Current discussions of the death penalty in India are centered around a number of issues of pressing concern. One is delay in execution. In Triveniben v. State of Gujarat, (1989) 1 SCC 678, the Supreme Court acknowledged that prolonged delay in implementing a death sentence could be grounds for commutation.
Indignation in the public arena in the wake of atrocious crimes, for instance, the 2012 Nirbhaya gang rape incident, has usually precipitated calls to broaden the scope of the death penalty. Modifications to the Indian Penal Code and special legislation have broadened its application for sexual offences as well as terror.
While doing so, empirical studies, such as the Death Penalty India Report of 2016 by the National Law University, Delhi, have emphasized socioeconomic and caste-based disparities in the imposition of the death penalty, evoking allegations of discrimination
Balancing Human Rights and Justice
The core tension in the death penalty debate lies between human rights and retributive justice. Victims’ families often demand the harshest punishment as closure, while human rights advocates argue for abolition in favor of restorative justice models. Empirical evidence on deterrence is inconclusive, with studies showing no clear correlation between capital punishment and crime reduction. Moreover, the irreversible nature of executions poses risks of miscarriages of justice.
Conclusion
The death penalty in India occupies a complex and contested space. While the Supreme Court has repeatedly upheld its constitutional validity, it has done so with increasing caution and a strict framework to prevent its arbitrary use. The “rarest of rare” doctrine, though a significant step towards judicial restraint, has not eliminated the fundamental debate surrounding its morality and effectiveness. India’s retentionist stance contrasts sharply with the global trend towards abolition, and the arguments for and against capital punishment reflect a deep-seated tension between the demands of a punitive justice system and the principles of human rights.
The ongoing discourse in India, marked by cases that test the boundaries of the “rarest of rare” doctrine and appeals for clemency, signifies that the issue is far from resolved. The future of the death penalty in India will likely depend on the continued evolution of judicial interpretation, shifts in public opinion, and the nation’s alignment with international human rights norms. While the Supreme Court has sought to minimize the death penalty’s application, the ultimate decision on its future rests with the legislature, which must weigh the complex interplay of public demand, human rights principles, and the findings of legal and social research.
References
- A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
- Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
- Jagmohan Singh v. State of U.P., (1973) 1 SCC 20.
- Rajendra Prasad v. State of U.P., (1979) 3 SCC 646.
- Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
- Machhi Singh v. State of Punjab, (1983) 3 SCC 470
- Mithu v. State of Punjab, (1983) 2 SCC 277.
- Triveniben v. State of Gujarat, (1989) 1 SCC 678.
- Shatrughan Chauhan v. Union of India 2014 AIR SCW 793, 2014 (3) SCC 1
- Law Commission of India, 262nd Report on Death Penalty (2015).
- National Law University, Delhi, Death Penalty India Report (2016).
- United Nations General Assembly Resolutions on Moratorium on the Use of the Death Penalty
- Amnesty International, Amnesty International Death Penalty Report 2023.
- Indian Constitution, 1950.
- Indian Penal Code, 1860.
- Criminal Procedure Code, 1973
