Death penalty in India: Constitutional Validity and Global Trends

Introduction

In hindu culture there are two terms HATYA and VADH, the purpose of both is same, to kill, bu the basic didderence is that the prior one means the unlawfull taking life of some innocent or killing an innocent one(not only person) and later means killing someone evil or someone sinner,^[1] that’s why in the scripturre when someone is killed, very evil it is he has been killed (vadh) andd when an innocent is killed the term used is HATYA. With this reference we can conclude that the killing a person veery evil and sinister is allowed and rewarded in our culture and why should it not be so, any civilization how much progress does it make it must never fail to draw line of tolerence and weakness and the wrong so sinnster that affecting the whole society muct be punished.

Almost every country before the 19^th centry was involved in practice of killing person who had done certain wrong which got faded in the 20^th century as most country do not praactice the capital offence or death sentence as they have become very sensitive towards the human rights and in their thinking it is wrong to kill someone how so sinister.^[2]

India and Death Penalty

India is a country along with its counterpart like USA, UK and china has not abolished the deathpenalty and it completely legal to punishsome with certain offence classified in it law to kill (obviously by state). The inspiration india has drawn to include this as punishment is quite historical and reson why its not been abolished yet after almost half a century and 20 more decades gone since independence, the reason lies in the social landscape of the nation. India is a home to various religon and cults, here the land has seen rise and fall of various philosophy and ideology which once ruled this pious land, so we’ll have evry philosphy chekced whether it validated killing and evil person. Statrting with the religon of land, hindu dhaarma which exclusively validates the killing of eveil and demon spirited person with various stories such  as Lord Ram did with the Evil Ravana and Krishna did with Kansha, filling the indian culture with the  concept of Dharma and Adharma. Later comes the budhhist philosophy which although preaches AHIMSA(Non violence) but  validates the killing of person to prevent the harm at large level such as it is lwfull to kill a person who is going to rape a 7 year old or kill her.^[3]the muslims also openly practised this and they used it mercilessly, further comes the britsh era who also practised and codified in their laws which independent india borrowed and adapted as theirs.o india has since ancient times beens used to this penalty and thus no thoughts were laid to changes them and abolish it.

But we can not solely blame the legislature only for not making effort to curtail this cause the social order and position of india is not very friendly with abolishment of this penalty as people will do more crime when they will see that there is no death penalty for murder or offence that’s why this is not beil abolsihed in india.

The capital punishemnt is exercised by the force of section 354(5) of Cr.PC which validates the prnalty and also provides the from in which penalty is exercised which is “hanging by neck till death.”the death punishment is also exercised by shooting if awarded in the court martial for matters related to army. Before and few years of independence the death penalty was inflicted for the specified offence without any discretion on the court as judge had to awrd the capital punishment as only option and if the life imprisonment was given in palce of death penalty the reason was to be recorded by judge as to why he has not inflicted the cap. Punishment. But this trend change in the amendment of crpc in 1954 when the legislature removed the concept of writing a reason for not awarding the death punishment, simply after amendment the court was truly free to awrd any punishment between the two. After 1973 crpc amendment the legislation enouraged the life imprisonment and in case of death a reason was to be recorded by judge, making the life imprisonment a norm and death penalty an exception.

Indian law on Capital Punishemnt

Capital punishement as told earlier originates from crpc and is awarded in the specified criminal matters such as murder or rape etc. the leading criminal law in india was INDIAN PRNAL CODE which got repealed by the bharatiya nyay sanhita in 2024 july, provides for various provision where in is provisioned the death penalty in following offences-

Section under BNS or other law	Nature of crime
§ 65(2) of BNS	Rape of a child below 12 years of age
§ 66 of BNS	Rape and injury which causes death or leaves a woman in a Persistent Vegetative State
§ 70(2) of BNS	Gang rape of a child under 18 years of age
§ 71 of BNS	Repeat offenses in the context of rape
§ 103(1) of BNS	Murder
§ 103(2) of BNS	Lynching
§ 104 of BNS	Murder by prisoner serving life sentence
§ 107 of BNS	Abetment of suicide of child or person of unsound mind
§ 109(2) of BNS	Attempted murder by prisoner serving life sentence
§ 111(2)(a) of BNS	Organized crime offenses causing death
§ 113(2)(a) of BNS	Terrorism resulting in the death of any person
§ 140(2) of BNS	Kidnapping or abducting in order to murder or for ransom
§ 147 of BNS	Treason against the Government of India
§ 160 of BNS	Abetment of mutiny, if mutiny is actually committed in consequence
§ 230(2) of BNS	Giving or fabricating false evidence with intent to procure conviction of capital offence resulting in death of innocent person
§ 232(2) of BNS	Threatening any person to give false evidence resulting in death of innocent person
§ 310(3) of BNS	Felony murder while committing dacoity or banditry

^[4]

Above mentioned are the offences which are punished with death penalty but its not like an absolute punishment^[5] but the court are free to inflict punishment by choosing between death penalty or life imprisonment.

Capital punishment in non-BNS offences

Act	Section	Offence description
The Organized Crime Act, 2001[6]	3 (1)	Organized crime resulting in death of person
Army Act, 1950	34	Offences in relation to enemy and punishable with death[specify]
Army Act, 1950	37	Mutiny
Army Act, 1950	38 (1)	Desertion
Assam Rifles Act, 2006[7]	21	Offences in relation to enemy and punishable with death[specify]
Assam Rifles Act, 2006	24	Mutiny
Assam Rifles Act, 2006	25 (1) (a)	Desertion
Assam Rifles Act, 2006	55	Civil offences[specify]
Bombay Prohibition (Gujarat Amendment) Act, 2009[8]	65A (2)	Death caused by the consumption of Laththa
Border Security Force Act, 1968[9]	14	Offences in relation to the enemy and punishable with death[specify]
Border Security Force Act, 1968	17	Mutiny
Border Security Force Act, 1968	18 (1) (a)	Desertion
Border Security Force Act, 1968	46	Civil offences[specify]
Coast Guard Act, 1978[10]	17	Mutiny
Coast Guard Act, 1978[10]	49	Civil offences[specify]
The Commission of Sati (Prevention) Act, 1987	41	Abetment of sati
The Defence of India, Act, 1971[11]	5	Person contravening with intent to wage war or assist external aggression or any violation of provision made under S.3
The Geneva Convention Act 1960[12]	3	Grave breaches[specify] of Geneva Conventions
The Explosive Substances Act, 1908[13]	3 (b)	Punishment for special category of offences relating to explosive substances, likely to danger life or cause serious harm
The Indo-Tibetan Border Police Force, Act 1992[14]	16	Offences in relation to enemy or terrorist
The Indo-Tibetan Border Police Force, Act 1992	19	Mutiny
The Indo-Tibetan Border Police Force, Act 1992	20 (1) (a)	Desertion
The Indo-Tibetan Border Police Force, Act 1992	49	Civil offences[specify]
The Karnataka Control of Organised Crime Act, 2000[15]	3 (1) (i)	Organized crime resulting in death of person
The Maharashtra Control of Organised Crime Act, 1999[16]	3 (1) (i)	Organized crime resulting in death of person
The Narcotics Drugs and Psychotropic Substances Act, 1985[17]	31A (1)	Repeated commission of offences involving commercial quantity of any narcotic drug or psychotropic substance

^[6]

Whom is iflicted the punishment on

The punishment is given to the person who has done offence abovementioned but it excludes to the minors and person of unsound mind. Womens are not exempted from this punishment and for a fact the session court of Neyyainkarra awarded the death penalty to a 24 year old Gresshma S.S.^[7] the old person alos are not exempted from this punishment^[8]

Process of punishment-

According to laws such as the Bharatiya Nyaya Sanhita, 2023, the death penalty procedure in India starts with a trial in a sessions court for serious crimes. If found guilty, a sentencing hearing establishes whether the case is “rarest of rare.” The death penalty is subject to Supreme Court appeal and must be confirmed by the High Court. There may be more reviews or requests for cures. The governor or president may grant clemency upon receiving a mercy petition. Execution by hanging takes place in prison with protections for humane treatment and constitutional compliance if all appeals are denied. With more than 500 people on death row as of 2025, executions are uncommon.

As described, India’s death penalty procedure is strict and strikes a balance between justice and constitutional protections. The “rarest of rare” theory guarantees that only extraordinary circumstances, such as horrific murders or acts of terrorism, call for the death penalty outside of the legal system. In cases such as *Machhi Singh v. State of Punjab* (1983), the Supreme Court’s developing jurisprudence places a strong emphasis on proportionality and societal impact. With presidents commuting sentences in cases like *Ranga-Billa* (1982), mercy petitions—which are frequently postponed for years—highlight humanitarian considerations. Ethical arguments surround hanging executions, with abolitionist movements pointing to Buddhist teachings on non-violence (*ahimsa*). Even with more than 500 death row inmates in 2025, executions are still uncommon, which reflects India’s cautious stance.

Can it be stopped–

The High Court and Supreme Court have the authority to reverse death penalties through appeals when they discover legal mistakes or flawed evidence or improper sentencing procedures. The Supreme Court accepts review petitions and curative petitions which provide additional opportunities to prevent executions from taking place. The President through Article 72 and Governors through Article 161 of the Constitution can grant mercy petitions to convert death sentences into life imprisonment or grant pardons when considering humanitarian factors such as age or mental health status or potential for rehabilitation. The President exercised his power to reduce sentences through the case of Kehar Singh in 1989. The decisions made in capital punishment cases get affected by both public support and foreign diplomatic efforts. The number of death row inmates exceeds 500 in 2025 but executions remain infrequent because of strict execution protocols and multiple chances to prevent capital punishment.

Constitutionality of Capital Punishment

The Supreme Court ruled in Rajendra Prasad v. State of UP (1979) that the death penalty would not be appropriate unless it could be proven that the defendant poses a serious and ongoing risk to social security. Three types of criminals, in the opinion of Justice Krishna Iyer, should get the death penalty:

(1) in cases of white-collar crimes,

(2) for crimes against the social order, and

(3) for eliminating a dangerous killer who poses harm to society.

The court further ruled that the imposition of the death penalty for a murder conviction under Section 302 of the Indian Penal Code, 1860, would not constitute a constitutional breach. Capital punishment may be imposed in severe circumstances of extreme guilt, but the convict’s health must be considered.

The Supreme Court in Machhi Singh vs the State of Punjab (1983) laid the guidelines for the circumstances in which death sentences can be imposed. J. Thakkar spoke about Five circumstances, which are mentioned below:

“Firstly: Manner of Commission of Murder – When the Murder is committed in an extremely brutal manner so as to arouse intense and extreme indignation in the community, for instance, when the house of the victim is set a flame to roast him alive when the body is cut to pieces, or the victim is subjected to inhuman torture.

Secondly: Motive – When the Murder is committed for a motive that evinces depravity and meanness, e.g. a hired assassin, a cold-blooded murder to inherit property or gain control over property of a ward, or a murder committed for the betrayal of the motherland.

Thirdly, The anti-social or socially abhorrent nature of the crime – where a scheduled caste or minority community person is murdered in circumstances which arouse social wrath, or the bride burning for dowry or remarriage.

Fourthly: Magnitude of the Crime – Crimes of enormous proportion, like multiple murders of a family or persons of a particular caste, community, or locality.

Fifthly: Personality of the victim of Murder.”

The test of whether the death penalty is constitutionally valid or not has been answered in Rajendra Prasad vs State of Punjab(1979), to which Justice Krishna Iyer empathetically stressed that the death penalty is violative of articles 14, 19, and 21. He laid down two things that must be required to impose the death penalty:

1. There must be a special reason which should be recorded
2. It must be imposed only in extraordinary circumstances

 In Bachan Singh v. State of Punjab (1980), the issue was revisited, and the five-judge bench of the Supreme Court reversed its earlier ruling in Rajendra Prasad by a vote of 4 to 1 (Bhagwati J. dissenting). Because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order,” it was expressed that the death penalty, as an alternative punishment for Murder, is not unreasonable and, therefore, is not in violation of articles 14, 19, and 21 of the Indian Constitution. It also enunciated the principle of awarding the death penalty only in the “rarest of rare cases.” In his opposing opinion, Bhagwati J. stated that “the death penalty is not only unconstitutional because it violates Articles 14 and 21 but also undesirable from several points of view.”

 The Supreme Court affirmed the death penalty for four prisoners in the case of Mukesh and Others v. State (NCT of Delhi), stating that the case qualified as “the rarest of rarest” and that the crime committed was shocking to mankind. Later, the Supreme Court dismissed the inmates’ requests for reviews. The death warrants were requested by the victim’s parents from the Delhi court.

The Delhi government also requested issuing death warrants for the four prisoners so that their death sentences may be carried out. The Tihar government is required by a Delhi court ruling to notify convicted individuals about their remaining legal options. Later, the Delhi High Court rejected Pawan Kumar Gupta’s argument that he was underage when committing the crime.

The Delhi High Court dismissed a complaint Pawan’s father made against the only eyewitness, who was asking for the filing of an FIR. The four prisoners were hanged to death on 22 January 2020 in Tihar Jail, Delhi.

Conclusion

In Hindu culture, *hatya* (unlawful killing of innocents) contrasts with *vadh* (justified killing of evil), as exemplified by Lord Rama’s slaying of Ravana, endorsing capital punishment for heinous acts. India’s retention of the death penalty, unlike global abolitionist trends, draws from its diverse religious and philosophical heritage, including Buddhist exceptions for preventing greater harm and Islamic and British colonial practices. The Bharatiya Nyaya Sanhita, 2023, and other laws codify its use for “rarest of rare” cases, as upheld in *Bachan Singh v. State of Punjab* (1980). India’s complex social landscape, balancing justice and crime deterrence, resists abolition despite human rights debates. With over 500 death row inmates in 2025, executions remain rare, reflecting constitutional safeguards and cultural validation of punishing grave sins to protect society, ensuring proportionality and judicial rigor.

References

^[1] Hindu ideology do not differe between an inncoent person and animal same as for the sinner or evil and uses the same term for the both

^[2] Almost 150 country have bolished the law or practice on the death penalty according to WORLD POPULATION REPORT of 2023 available at Countries with Death Penalty 2025

^[3] Upaya Kaushakya Sutra

^[4] wikipedia

^[5] Meaning that only death penalty is not provided as the punishment on these offences

^[6] wikipedia

^[7] Greeshma Case: What is the Sharon Raj murder case: All you need to know about the charges, murder and court observations – The Economic Times

^[8] Simon buxia case