Published On: December 17th 2025
Authored By: Amisha Modi
Shri Ramswaroop Memorial University
Abstract:
The death penalty, or capital punishment, is one of the most debated issues in the criminal justice system. In India, it continues to exist in law but is surrounded by serious constitutional, moral, and human rights questions. While the Constitution guarantees the right to life under Article 21, the courts held that life can be taken away by a procedure established by law. Over the years, the judiciary has tried to restrict the use of the death penalty through the “rarest of rare” doctrine in Bachan Singh v. State of Punjab (1980) principle, but concerns about arbitrariness, fairness, and effectiveness still remain. Globally, there has been a significant movement towards abolition, with more than two-thirds of states abolishing or limiting the death penalty, guided by international human rights instruments. This article critically examines the constitutional validity of the death penalty in India, key judicial pronouncements, contemporary challenges, and its position in the broader global context. It concludes with suggestions for reform and possible movement towards eventual abolition in line with global human rights trends.
Keywords: Death Penalty, Capital Punishment, Right to life, rarest of rare doctrine, Constitutional validity, Human rights, Global trends and Abolition.
Introduction:
The death penalty, also known as capital punishment, has always been one of the most debated issues in criminal law. It raises serious questions about justice, morality, human rights, and the role of the State in taking the life of an individual. In India, the debate is even more complex because the Constitution strongly protects the right to life under Article 21, yet at the same time permits the State to deprive a person of life through a “procedure established by law.” This creates a constant tension between protecting fundamental rights and upholding the punishment of death in certain cases.
Over the years, the Supreme Court has played a crucial role in shaping the law on this subject. The principle laid down in Bachan Singh v. State of Punjab (1980) [1]7that the death penalty should only be awarded in the “rarest of rare” cases, has become the cornerstone of Indian jurisprudence on capital punishment. Still, concerns remain about whether this principle is applied consistently and whether the death penalty is truly effective as a deterrent.
Globally, most countries are moving towards abolition, guided by international human rights instruments and growing recognition that capital punishment may not serve justice in the long run. India, however, continues to retain it, which raises important questions about constitutional validity, human rights commitments, and future reforms.
Constitutional Validity of the Death Penalty in India:
The constitutional debate on the death penalty in India is centered on Article 21[2], which guarantees the right to life and personal liberty. While this right is fundamental, the Constitution also allows deprivation of life by a “procedure established by law; The phrase has been the foundation for judicial interpretation of whether capital punishment can coexist with constitutional protections.
In Jagmohan Singh v. State of Uttar Pradesh (1973), [3]the Supreme Court upheld the constitutional validity of the death penalty, reasoning that the sentencing process under the Indian Penal Code and the Code of Criminal Procedure provided adequate safeguards.
Later, in Rajendra Prasad v. State of Uttar Pradesh (1979), [4]Justice Krishna Iyer emphasized that the death penalty should only be used in exceptional cases where collective conscience demands it.
The landmark judgment, however, came in Bachan Singh v. State of Punjab (1980), where a five-judge bench reaffirmed the constitutionality of the death penalty but restricted its application to the “rarest of rare” cases. This principle, though widely cited, has been criticized for its subjectivity and lack of uniform application.
Subsequent cases such as Machhi Singh v. State of Punjab (1983) [5]attempted to give more clarity by laying down aggravating and mitigating circumstances to guide sentencing. Yet, even with these guidelines, questions remain about whether the death penalty can truly meet the test of fairness, justice, and reasonableness that Article 21 demands.
Global Trends and Human Rights Perspectives:
The global position on the death penalty has undergone a significant transformation over the last few decades. A large number of countries have either abolished capital punishment completely or placed it under an official moratorium. According to the United Nations, more than two-thirds of the world’s nations no longer carry out executions, reflecting a steady shift towards recognizing the right to life as absolute.[6]
International human rights law has also played a crucial role in shaping this trend. The International Covenant on Civil and Political Rights (ICCPR) allows the death penalty in limited circumstances but strongly restricts its application to “the most serious crime’[7]’. Morever the Second option Protocol to the ICPR adopted in 1989, specifically calls for the abolition of the death penalty. Many countries, including most of Europe and parts of Latin America, have ratified this protocol, signaling a global consensus against executions.
India, however, has not ratified the Second Optional Protocol and continues to retain the death penalty in its legal framework[8]. The Indian government often justifies this stance on the grounds of deterrence and the need to address crimes that shock the collective conscience of society. Yet, this position places India in contrast with the broader global movement towards abolition, raising questions about its alignment with evolving international human rights standards.
At the same time, it is important to note that the Supreme Court of India has occasionally referred to international human rights principles while interpreting fundamental rights under the Constitution. This shows a willingness to engage with global norms, though without committing to complete abolition.
Criticism and Challenges of Rarest and Rare doctrine:
The “rarest of rare” doctrine was introduced by the Supreme Court in Bachan Singh v. State of Punjab (1980) to limit the use of capital punishment. While the intention was to ensure that the death penalty is applied only in the gravest cases, in practice, the doctrine has faced several criticisms.
- Subjectivity and Inconsistency
One of the strongest criticisms is the subjective nature of the test. What shocks the “collective conscience of society” often depends on the personal perception of individual judges. For instance, in some cases of murder involving extreme brutality, one bench may consider it fit for the death penalty, while another may impose life imprisonment. This lack of uniformity undermines the principle of fairness under Article 14 of the Constitution[9].
Scholars and human rights groups have pointed out that similar crimes sometimes receive different punishments, showing that judicial discretion can lead to arbitrariness. This raises doubts about whether the doctrine truly provides a principled restriction on the death penalty or simply leaves sentencing to judicial choice.
- Aggravating and Mitigating Circumstances
The Court in Machhi Singh v. State of Punjab (1983) tried to make the doctrine clearer by listing aggravating factors (such as multiple murders or killings involving extreme depravity) and mitigating factors (such as young age or lack of criminal history).However, these factors are broad and often overlap, leaving judges with wide discretion. In practice, this has not eliminated the problem of inconsistency but has instead made sentencing more complex.
- Death Row Phenomenon and Delay
Another major challenge is the delay in execution. Convicts often spend 10–15 years or more on death row due to prolonged appeals, review petitions, and mercy petitions. The psychological trauma of living in constant fear of death has been recognized by courts as cruel and inhuman treatment. In Shatrughan Chauhan v. Union of India (2014), [10]the Supreme Court held that inordinate delay in deciding mercy petitions is a valid ground for commuting the death sentence to life imprisonment.
This means that even when the death penalty is upheld by courts, the actual execution may not take place for many years, creating an additional layer of uncertainty and suffering for the convict.
- Mercy Petitions and Executive Discretion
The Constitution provides for mercy powers under Articles 72 and 161,[11] giving the President and Governors authority to commute death sentences. While this safeguard is intended to act as the last protection against miscarriage of justice, in practice, the process has been criticized for being arbitrary and non-transparent. Some petitions are decided swiftly, while others remain pending for decades. There are also instances where mercy petitions have been rejected without clear reasoning, raising concerns about fairness.
- Socio-Economic and Representation Concerns
Studies such as the Death Penalty India Report (2016) by Project 39A (NLU Delhi)[12] reveal that a disproportionate number of death row prisoners come from marginalized and economically weaker backgrounds. Many of them lack effective legal representation, which increases the likelihood of receiving harsher punishments. This shows that the death penalty in India is not only inconsistent but also disproportionately affects the most vulnerable sections of society.
Deterrence Vs Retribution: Competing Justifications for the Death penalty
The justification for retaining the death penalty in India has often been explained in terms of two main theories of punishment: deterrence and retribution. Both, however, face serious challenges when applied to capital punishment.
1. Deterrence: Does the Death Penalty Prevent Crime?
The argument most frequently advanced in favor of the death penalty is that it acts as a deterrent, preventing others from committing heinous crimes. The logic is that the fear of losing one’s life will stop individuals from engaging in acts such as terrorism, brutal murders, or sexual assaults.
However, there is little empirical evidence to support this claim. The Death Penalty India Report (2016) noted that no conclusive data proves that the death penalty reduces crime rates more effectively than life imprisonment. Even the Law Commission of India, in its 262nd Report (2015), concluded that capital punishment does not serve the purpose of deterrence in ordinary crimes like murder and should be restricted only to terrorism-related cases.
The Supreme Court, while upholding the death penalty in certain cases, has itself acknowledged that deterrence is not always proven. In Santosh Kumar Bariyar v. State of Maharashtra (2009), [13]the Court emphasized that the death penalty should not be justified solely on deterrent grounds without concrete evidence.
2. Retribution: The Idea of Justice through Punishment
Another justification often used is retribution — the idea that punishment must reflect society’s outrage against the offender. In this view, certain crimes are so heinous that only the death penalty can satisfy the demand for justice and restore balance.
This reasoning has been reflected in the judiciary as well. For example, in Machhi Singh v. State of Punjab (1983), the Court stated that when a crime is committed with extreme brutality and shocks the collective conscience of society, retribution through capital punishment may be justified.
However, critics argue that retribution borders on revenge, which cannot be the basis of a modern justice system governed by the Constitution. The purpose of criminal law is reformative and protective, not merely retaliatory. The Supreme Court in Mithu v. State of Punjab (1983), [14]which struck down mandatory death penalty provisions, highlighted that punishments must not be arbitrary or inhuman.
3. The Middle Ground: Reformative Approach
Many scholars argue for a reformative approach, where the focus is on rehabilitation rather than execution. Life imprisonment without parole for a fixed term has been seen as a more humane alternative that still ensures public safety. The Supreme Court has increasingly used this approach by commuting death sentences to life imprisonment for 20 or 25 years without remission in several recent cases.
This shift indicates a growing judicial recognition that the goals of deterrence and retribution may not be fully served by capital punishment, and that reformative justice may better align with the constitutional mandate under Article 21.
Conclusions and Suggestions for Reform
The debate on the death penalty in India reflects a deeper conflict between constitutional values, societal demands for justice, and global human rights trends. While the Supreme Court has upheld the constitutional validity of capital punishment in Bachan Singh v. State of Punjab (1980), its application has been restricted to the “rarest of rare” Yet, decades of practice have shown that this doctrine suffers from inconsistency, arbitrariness, and lack of uniform standards.
Globally, there is a steady movement towards abolition, with over two-thirds of countries either eliminating or ceasing the use of the death penalty[15].India’s continued retention of capital punishment places it in contrast with these international developments and raises questions about its commitment to evolving human rights norms.
At the same time, empirical studies have shown that the death penalty has limited deterrent value, while its disproportionate impact on marginalized groups highlights structural inequalities in the criminal justice system[16]. The delays in executions and the psychological trauma of death row imprisonment further raise serious concerns under Article 21’s guarantee of fairness, justice, and dignity.
Suggestions for Reform
- Restrict Capital Punishment to Terrorism and National Security Offenses: Following the recommendation of the Law Commission’s 262nd Report, India may consider abolishing the death penalty for ordinary crimes and retaining it only in cases involving terrorism and threats to national security.[17]
- Strengthen Sentencing Guidelines: Clear and binding guidelines should be developed to minimize judicial subjectivity in deciding between life imprisonment and death sentences.
- Ensure Transparency in Mercy Petitions: The process under Articles 72 and 161 should be made time-bound and transparent, with detailed reasons given for acceptance or rejection of mercy pleas.
- Promote Reformative Justice: Greater emphasis should be placed on alternatives like life imprisonment without parole for fixed terms, which protect society while avoiding the irreversible nature of executions.
- Engage with International Norms: While India may not immediately abolish the death penalty, it should gradually align with global human rights practices by ratifying the Second Optional Protocol to the ICCPR and adopting a long-term abolitionist outlook.
References:
[1] Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 (India)
[2] INDIA CONST. art.21.
[3] Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 S.C.C 20(India)
[4] Rajendra Prasad v. State of Uttar Pradesh, (1979)3 S.C.C 646 (India)
[5] Machhi Singh v. State of Punjab, (1983)3 S.C.C 470(India)
[6] U.N. Secretary-General, Question of the Death Penalty, U.N. Doc. A/HRC/51/7 (July 13, 2022).
[7] International Covenant on Civil and Political Rights art. 6, Dec. 16, 1966, 999 U.N.T.S. 171.
[8] Second Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 15, 1989, 1642 U.N.T.S. 414.
[9] INDIA CONST. art. 14.
[10] Shatrughan Chauhan v. Union of India, (2014) 3 S.C.C. 1 (India).
[11] INDIA CONST. arts. 72, 161.
[12] Project 39A Nat’ I L Univ Delhi, Death Penalty India Report (2016)
[13] Santosh Kumar Bariyar v. State of Maharashtra, (2009) 6 S.C.C. 498 (India).
[14] Mithu v. State of Punjab, (1983) 2 S.C.C. 277 (India).
[15] U.N. Secretary-General, Question of the Death Penalty, U.N. Doc. A/HRC/51/7 (July 13, 2022).
[16] Project 39A, Nat’l L. Univ. Delhi, Death Penalty India Report (2016).
[17] Law Comm’n of India, Report No. 262, The Death Penalty (2015).][
