Death Penalty in India: Constitutional Validity and Global Trends

Abstract 

The death penalty, often known as capital punishment, is one of India’s most contentious criminal justice issues.Its legality calls into question the state’s ability to punish while upholding fundamental rights to life, equality, dignity, and due process.This article explores the constitutional basis of the death sentence in India, its evolution, major case studies, and global perspectives.We examine whether the death penalty is still defensible in principle and in practice, how the “rarest of rare” doctrine has shaped Indian law, what trends are visible globally. 

Introduction 

The death sentence is the most extreme punishment that the state may give: taking a life for a crime. It is permanent, unchangeable, and brings up deep moral, legal, and constitutional issues. In India, capital penalty is legal, but constitutional law and judicial theory make it very hard to use. The Indian Penal Code and a number of specific statutes  and the Criminal Procedure Code prescribe the death penalty for certain severe offences However, since the landmark Bachan Singh v. State of Punjab (1980), the Supreme Court has held that even when the death penalty is permitted by statute, it may be imposed only in the “rarest of rare cases”, where no other punishment is adequate. India has refined doctrine, struck down mandatory death penalties, and wrestled with the global movement against capital punishment. 

Early Phase

After independence, many colonial statutes with death sentence provisions survived. The IPC (1860) had section 302 (murder), among others, which authorised death or life imprisonment, and section 303, which compelled execution for murder committed by someone already under life imprisonment . 

Constitutional Challenge and Bachan Singh (1980)

The waterways moment came in Bachan Singh v. State of Punjab (1980) 3 SCC 24. In that case, the Supreme Court addressed whether Section 302 IPC is constitutional under Articles 14 (equality before law), 19, and 21 (right to life and personal liberty) of the Constitution. The Court affirmed that the death penalty per se is not unconstitutional but applied strong restrictions: a death sentence may be imposed only in the “rarest of rare” cases, where the alternative punishment would be “unquestionably foreclosed”.The Court also insisted that the sentencing judge must record special reasons for choosing death. 

Striking Down Mandatory Death Penalty — Mithu v. State of Punjab (1983)

In Mithu v. State of Punjab (AIR 1983 SC 473), the Supreme Court knocked down Section 303 of IPC , as violating Articles 14 and 21. The Court held that removing judicial discretion and making death necessary is arbitrary, oppressive, and hence unconstitutional. The Court reiterated that sentencing must take into account mitigating and aggravating circumstances, as well as provide an opportunity for a hearing and explanation.

Recent Developments & Critiques

More recent opinions have consistently underlined the necessity to carefully evaluate whether a situation genuinely qualifies as “rarest of rare”.The Supreme Court in 2018 (Chhannu Lal Verma case) supported the constitutional legitimacy of the death penalty in principle; however, Justice Kurian Joseph in his dissent emphasised that the penological justifications have failed and remarked on arbitrary and bizarre implementation. Also, there have been petitions to evaluate whether the method of execution  breaches constitutional guarantees of dignity or causes cruel, inhuman or humiliating treatment. 

Transformation in Law Commission / Legislative Proposals

Scholarly literature and Law Commission studies argue about effectiveness, transparency, and arbitrary behaviour; some have advocated for elimination or severe restrictions.  For example, the 35th Law Commission Report (1967) discussed whether Section 303 should be amended or repealed. 

Case Studies

Some major cases have shaped the concept and its limits. Here are chosen case studies showcasing law in action.

• Bachan Singh v. State of Punjab (1980)

 Facts: Bachan Singh killed three persons. He was convicted under Section 302 IPC and condemned to death by trial and the High Court.

The constitutional validity of death sentence was challenged.

Holding: The Supreme Court upheld Section 302 as constitutional, but framed for its application strict limits: death sentence only in “rarest of rare” cases; sentencing judge must record special reasons; opportunity to hear; life imprisonment as normal punishment. This doctrine remains foundational. 

• Mithu v. State of Punjab (1983) 

Facts: Section 303 IPC demanded a death sentence if a person already serving life imprisonment commits murder. The applicant questioned the provision.Holding: Struck down Section 303 as unconstitutional: violates equality (Article 14) and right to life (Article 21), since the mandatory death sentence removes judicial discretion and undermines procedural fairness.

• Chhannu Lal Verma / 2018 Bench (Supreme Court verdict upholding constitutional validity of death penalty)

In 2018, a three–judge bench in Chhannu Lal Verma upheld the constitutional validity of the death penalty but with strong caveats and emphasizing that imposition must adhere to “rarest of rare” standard and the court must exercise high constitutional burden. One justice (Joseph) expressed concern that the “rarest of rare” doctrine has not prevented arbitrary and freakish application. 

• Method of Execution Review

The legal challenge to “hanging by the neck” method: whether it violates dignity or causes excessive suffering. The Supreme Court has agreed to constitutionally examine this. 

• Other Special Cases

There are several cases (rape and murder of minors etc.) where the death sentence has been awarded or sought, with the courts meticulously considering whether the case qualifies under the doctrine. Also, in many cases, trial and High Courts award death, but appellate courts (HC / SC) convert to life imprisonment on review, often on account of procedural or mitigating considerations. Literature also documents concerns about delay, mental state of the convict, mistakes, socio‑economic background etc. (though specific case names may vary) 

Global Perspective and Case Laws

To know whether India’s approach is different or part of global trends, and how other countries have dealt with the death sentence, below are worldwide viewpoints.

1. Abolition & Restriction Movements Worldwide

Many countries have taken away the death penalty altogether or for common crimes; others retain it but with strict limits called prohibitions. The global trend, especially among liberal nations and countries with strong human rights structures, has been toward reduction or eradication. 

2. Key Global Jurisprudence

S v. Makwanyane (South Africa, 1995): 

outlawed the death sentence on the argument that it contradicts our constitutional rights to life and respect for individuals. The court stressed that even for heinous offences, the state must respect human integrity, and the death sentence is not a necessary deterrence.

Soering v. United Kingdom (European Court of Human Rights, 1989): 

Not directly about the death penalty in the home state, but about extradition to a jurisdiction where it may be utilised, and whether delays or conditions constitute cruel or humiliating treatments. This example is essential because it indicates that the process and conditions, as well as the act of execution, are crucial.

3. Criticism Based on Human Rights, Errors, Deterrence

Many scholars, NGOs and international bodies argue that death penalty violates the human right to life and dignity; entails an irreversible risk of wrongful conviction; may not effectively deter crime; is applied disproportionately to marginalized, poor, minority, or mentally ill persons; delays and inhumane conditions of death row add to cruelty.

The phenomenon of “death row syndrome” / “death row phenomenon” has been recognized: the psychological torture of awaiting . 

4. Comparative Standards

Many countries that still use the death penalty limit it to murder and extremely heinous crimes; they offer proper procedure, the possibility of appeals, clemency, etc.  Some governments limit ways of execution to ensure less suffering; others prohibit any inhumane or degrading approach; and there is rising concern about what methods are acceptable.

Discussion & Analysis

Putting together the legal doctrine, case studies, literature and global comparison, several threads emerge. Here are core points of discussion.

1. Constitutional Legitimacy vs. Moral Contestation

Legally, Indian courts have recognised the death penalty as constitutional and have imposed harsh safeguards, also there are very minimum changes of the death penalty judicial discretion, special grounds, a hearing on sentence, and the right to evaluate mitigating elements.  Bachan Singh and Mithu are pillars.  However, moral criticisms persist, particularly given the irreversible nature and potential of error.  The judiciary system in nowadays is safeguarding people against the arbitration deciding decision made questionable.

2. “Rarest of Rare” Doctrine: Strengths and Weaknesses

Strengths: It serves as a filter to ensure death penalty is not routine; emphasizes proportionality; requires judges to distinguish between murder cases; compels recording of reasons; curbs legislative or executive haste.

Weaknesses: The doctrine is vague in what counts as “rarest of rare.” In practice, there is inconsistency across courts. What one court finds “rarest” another may not. Also, delay, lack of adequate defence, socio‑economic or geographical disparities can affect whether mitigating factors are effectively considered. Justice Joseph’s 2018 dissent (in Chhannu Lal Verma) discussed about that. 

3. Effectiveness & Deterrence

 Evidence for deterrence is weak. India’s criminal geometry is complex: crimes, poverty, inequality, delayed trials, under‑resourced enforcement, etc. The fear of punishment may not be real for many. Also, data show that relatively few death sentences are actually carried out; many are commuted, sometimes after long periods. This raises the question whether the death penalty functions more as symbolic law‑and‑order politics than as effective punishment.

4. Procedural Safeguards & Risk of Error

The Indian legal system has many levels of appealing, possibility of clemency, etc. However, issues of delay, mental health, quality of representation for poor defendants, forensic and investigative lapses, overburdened courts, all increase the risk of wrongful convictions. Also, the prolonged time on death row can itself be considered cruel or degrading. 

5. Global Pressure & Human Rights Norms

India is not a party to some abolitionist treaties . But international human rights discourse, UN resolutions, global trends matter: they influence legal norms, public opinion, jurisprudence. India often votes against UN moratoriums, but there is domestic debate informed by global practices. Also many comparative jurisprudence suggests constitutional courts elsewhere find death penalty inconsistent with modern human rights.

Observations

From the analysis above, here are key observations:

1. While Indian law upholds the validity of the death penalty, the area in which it can be used is tightly boxed by doctrine . 
2. The system is more symbolic and exceptional than routine in its application.
3. There is growing judicial concern regarding whether the concept is properly avoiding arbitrary or bizarre death sentences.
4. Public sentiment, often inflamed by heinous case tends to push for death penalty; sometimes courts reflect that, which raises worry about majoritarian pressure versus constitutional protection.
5. India has the issue of combining its legal heritage of capital punishment with increasing worldwide normative required. 
6. The method of execution and procedural features  remain thinly regulated; sometimes litigated, but not always uniformly addressed.

Suggestion and Regulation

Based on the constitutional and global analysis, the following suggestions and regulatory reforms could ensure that if death penalty is retained, it is applied more justly or to consider gradual abolition.

1. Clarify “Rarest of Rare” Doctrine

The Supreme Court could issue more detailed binding guidelines on what factors must or may be considered , to reduce judicial inconsistency.Perhaps convert “rarest of rare” into a more predictable multi‑factor test , so that litigants know what to expect, and lower courts are guided better.

2. Improve Procedural Safeguards

Ensure swift trial, reduce delay in appeals; minimize the time on death row; ensure timely reviews and clembetter. Strengthen legal aid and representation especially for poor, marginalized, minority, or mentally ill defendants.

3. Examine and Possibly Reform Method of Execution

If hanging is determined to cause excessive pain, investigate more humane alternatives or reassess whether any technique may be compatible with dignity under Article 21.

4. Restrict Death Penalty to Very Few, Truly Exceptional Offences

Perhaps limit statutory death penalty to a narrow set of offences (e.g., aggravated murder, terrorism with mass loss of life), rather than having many statutes that allow death for a variety of offences.

Exclude non‑violent offences, or offences lacking the highest culpability, or where motive / context reduce blameworthiness.

5. Transparency and Data Collection

Systematic reporting of number of death sentences awarded, commuted, executed; length of delay; demographic data of convicts (gender, caste, economic status) to reveal possible biases.

6. International Obligations

Consider signing or ratifying international treaties or protocols aimed at abolishing capital punishment.

Use international comparative jurisprudence in domestic courts to enhance protections.

Conclusion

The death penalty in India sits at the intersection of law, morality, human rights and societal demand for justice. The Indian Supreme Court has recognised that while the State may have power to impose the death penalty, it is not unfettered: only in the “rarest of rare” circumstances, with judicial discretion, exceptional justifications, and procedural protections. Landmark instances like Bachan Singh and Mithu have set out constitutional limits. Global tendencies increasingly favour abolition or restriction, while human rights principles challenge the permissibility of taking life as punishment.

Given the irreversible nature of the penalty, the risk of error, the need for dignity, and the weak evidential base for deterrence, India’s system should continue to reform: clarifying doctrine, improving procedure, reducing arbitrariness, and if possible, considering abolition for all but the most egregious offences. The continuing global movement and domestic jurisprudence suggest that retention of the death penalty is defensible only in very narrow, clearly defined circumstances; otherwise, the cost to justice, to constitutional rights, and to human dignity may outweigh any purported benefits.

References

• Bachan Singh v. State of Punjab, AIR 1980 SC 898.
• Mithu v. State of Punjab, AIR 1983 SC 473.
• India Today, “Supreme Court upholds constitutional validity of death penalty,” Nov 28, 2018. 
• The Times of India (or same) – method of execution issues. 
• Legal literature: “Constitutional Validity of Death Penalty in India: A Legal Study”, Pooja Sood & Jyoti Mangal, Panjab University Law Review (2023). 
• Radha Ranjan & Shivam Raj, “Constitutional Validity and Judicial Interpretation of Death Penalty in India”, ShodhKosh, 2024. 
• Comparison with S v. Makwanyane (South Africa) and Soering v. United Kingdom etc.