Death Penalty in India: Constitutional Validity and  Global Trends

ABSTRACT 

This piece examines the changes in the death penalty in India from an amended constitutional  law perspective throughout history. It stresses some of the critical judgments passed down from  the courts that shaped the whole ‘rarest of rare’ paradigm in the country. The article deals with  constitutional questions raised under articles 14, 19, and 21 of the Indian Constitution[1] concerning fairness, due process, and human dignity. It further puts the current status of India in  a global framework by tracing how many nations are heading toward abolishing capital  punishment and checking the gap between India’s present law and the developing international  norms. Finally, the article reflects on what India may have in store for capital punishment in the  future within the context of some present-day discussions and increasing push toward rights based debates. 

INTRODUCTION 

Capital punishment is still one of the most controversial topic in modern criminal justice systems  globally. India, being the largest democracy in the world, is an especially complicated case study  in capital punishment administration and constitutional legitimacy. Even as the rest of the world  

moves toward abolition, India retains the death penalty for the “rarest of rare” crimes,  providing a distinctive jurisprudential balance that seeks to reconcile constitutional entitlements  with public calls for justice. This article considers the constitutionality of capital punishment in  India, critiques the development of the “rarest of rare” doctrine, and places India’s stance  within an international movement towards abolition. 

CONSTITUTIONAL VALIDITY 

Court scrutiny regarding capital punishment in India has focused mainly on the Constitution’s  Part III fundamental rights. Through an intricate line of jurisprudence, the Supreme Court of  India has deftly pronounced a series of epoch-making judgments, constructing a pathway  whereby the state’s death-dealing powers is reconciled with the rights of the citizen. 

• Article 21 and the Right to Life-

Death penalty challenges are fundamentally anchored on Article 21 “No person shall be  deprived of his life or personal liberty except according to procedure established by law”  of the Indian Constitution. In the first case, A.K. Gopalan v. State of Madras[2], the  Supreme Court for the first time examined Article 21 and concluded that ‘procedure  established by law’ was much narrower than the modern interpretation surrounding it. In  his ruling, he expressed that the procedural fairness of the law was ‘statutory’ and  ‘prescribed’ . However, the case of Maneka Gandhi v Union of India[3] fundamentally  changed this paradigm. The Court stated that the procedure “just, fair, and reasonable”  and free from arbitrary, fanciful, or oppressive characteristics. Such judicial review  opened the door to examine the fairness of capital punishment. 

In Jagmohan Singh vs State of Uttar Pradesh[4] the Supreme Court first  comprehensively addressed the constitutional validity of capital punishment. The five judge bench rejected the argument that the death penalty violated Article 21, holding that the deprivation of life was constitutionally permissible if done according to procedure  established by law. 

• Article 14, 19, and the Due Process Challenge 

The other ground for a challenge to the death penalty was under Article 14 (entitled  equality before the law) and Article 19 (which includes freedoms of speech, expression  and movement, etc.). Such Article 19 challenges are not direct, and even the Section 14 concerns go slightly towards arbitrary application of the death penalty arguing with its  disproportionate impact based on crude socio-economic realities on deprived and  vulnerable sections of society with respect to legal representation. Such kinds of critiques  press against the value of equality. However, the preferred view of the courts has always  been that the death penalty as such does not violate Article 14, assuming that there are  definite sentencing guidelines for the exercise of discretion and that the exercise is  judicial and not arbitrary. 

• The Turning Point: Bachan Singh and the ‘Rarest of the Rare’ Doctrine 

The biggest change in how India handles death penalty cases came from a major court  decision called Bachan Singh v. State of Punjab[5]. This was a landmark ruling that  really shaped the legal landscape. This case challenged whether the death penalty  constitutional? The argument was that it violated two important rights: Article 19[1] and  Article 21[1]. The Supreme Court by a 4:1 majority vote, held death penalty  constitutional. But they completely changed how it should be used. They created what’s  now called the ‘rarest of the rare’ doctrine. This means the death penalty should only be  an option in the absolute worst cases, when there’s clearly no other choice. 

The court also introduced a new way of looking at sentencing. They called it the ‘doctrine  of aggravating and mitigating circumstances.’ Basically, judges now have to create a kind  of balance sheet. The prosecution has to show all the bad factors about the crime – how  brutal it was, why it happened, whether the victim was vulnerable. Meanwhile, the  defense gets to present all the factors that might make the punishment less severe – the 

person’s age, their background, mental health issues, whether they might change. Only  after weighing all these factors together can a judge decide on the sentence.  

• Refining the Doctrine: Machhi Singh and Beyond 

The Bachan Singh setup got more specific in Machhi Singh v. State of Punjab  (1983)[6]. The Court tried to list kinds of cases that could be rarest of the rare, for  example: 

∙ When a murder is super brutal, gross, evil, or disgusting. 

∙ When a murder shows crazy evil. 

∙ When the victim is from a Scheduled Caste or minority group, causing public  anger. 

∙ If the crime is anti-social, or society hates it, like contract killings or genocide. E. Procedural safety measures 

In the case of Mithu v State of Punjab[7], the Court shot down Section 303 IPC (which  said that if a prisoner serving a life sentence committed murder, they had to be put to  death) because it violated Articles 14 and 21[1]. This decision made it clear that required  death sentences are not allowed and that each sentence should be based on the person’s  individual circumstances. Over time, the Supreme Court has added more and more  procedural protections through its rulings: 

∙ Allauddin Mian v State of Bihar[8]: Said that people facing capital punishment  have the right to a lawyer. 

∙ Shatrughan Chauhan v Union of India[9]: Agreed that waiting too long to  carry out a death sentence goes against Article 21. 

∙ Santosh Kumar Bariyar v State of Maharashtra[10]: Pointed out that if  someone can be reformed, it should be considered a reason to make their sentence  less severe. 

• Final Appeals for Mercy (Articles 72 and 161)- 

For the very reason that they have spoken judicially, one final safeguard against a  potential miscarriage of justice or humanitarian concern is once more available to the  constitution. To condone, reprieve, respite, or remit any punishment, the President of  India under Article 72[1] and the Governors of states under Article 161[1] can suspend,  remit, or commute the sentence of any person convicted of any offence. This executive  power applies in the case of death sentences as well. 

Another landmark judgment, Shatrughan Chauhan v. Union of India[9], has now  added significantly to the grounds for judicial review of mercy petitions. The Court held  that an inordinate and unexplained delay in deciding a mercy petition, or the mental illness of the condemned prisoner, could be grounds for commutation of the death  sentence to one of life imprisonment. In this judgment, the growing humanitarian aspect  and dignity even of death row convicts seem to gain precedence. 

Trends Worldwide in Capital Punishment 

• Abolitionist Vs. Retentionist Nations 

Most reports of Amnesty International indicate that the majority of countries  worldwide have either abandoned capital punishment in law or practice. As of 2022  December, 112 countries had abolished the death penalty for each crime; 9 countries  abolished it only for ordinary crimes, while 23 countries are abolitionist in practice  (i.e. not carried out any executions for not less than ten years). Altogether, 144  countries are counted as being abolitionist in law or in practice; only 55 countries  remain in the minority, of which India is one [11]. 

• The International Human Rights Law

Since about today, the abolition journey is closely linked with the advancement of  International Human Rights Law. The Universal Declaration of Human Rights  (UDHR) does not count capital punishment out, but carries an in-built Article 3 the  right to live and Article 5 which prohibits cruel, inhumane, or degrading treatment or  punishment. Both these principles logically contradict capital punishment.[12] 

As pointed out, India is a party to the International Covenant on Civil and Political  Rights (ICCPR), whose Article 6 is much clearer. “The State has the power to  impose capital punishment. But this sanction must only be applied to the most serious  crimes and then it has to have a final court judgment and this is not contrary to the  provisions of the present Covenant and to the Convention on the Prevention and  Punishment of the Crime of Genocide.”[13]. Provisions must also exist whereby any  person sentenced to death can seek pardon or have the sentence commuted. Notably,  India has not yet ratified the Second Optional Protocol to the ICCPR aimed at the  abolition of the death penalty. 

• Comparative Constitutional Approaches

Several jurisdictions have declared capital punishment unconstitutional:

∙ S v Makwanyane[14]: South African Constitutional Court held death penalty  violated human dignity 

∙ Attorney-General v Kigula[15]: Uganda’s Supreme Court found mandatory  death sentences unconstitutional 

The Way Forward: Reform Ideas 

Legislative Changes

The Law Commission’s 262nd Report suggested getting rid of the death penalty for  all crimes except terrorism and waging war [16]. This seems like a practical middle ground that respects security needs while moving toward ending capital punishment.  

The main recommendations include: 

∙ Clear rules for deciding what counts as the “rarest of rare” cases 

∙ Requiring the Supreme Court to review every death penalty case 

∙ Creating victim compensation programs as other ways to achieve justice ∙ Better protections and procedures in trial courts 

Judicial Guidance

The Supreme Court could create detailed sentencing guidelines similar to those in the  Shankar Kisanrao Khade case [17]. These guidelines would provide: 

∙ Clear lists of what makes a crime worse or what might lessen the blame ∙ Required psychological evaluations for defendants 

∙ Organized sentencing hearings that include victim impact statements ∙ Regular checks on conditions for prisoners on death row 

CONCLUSION-

Legal acceptance of capital punishment in India is now quickly being questioned on  moral, empirical, and practical grounds. Technically, the application of capital  punishment should be limited by the “rarest of rare” doctrine; however, its exercise has  led to clear systemic arbitrariness against equality guarantees provided by the  Constitution. The obvious global trend is abolition, evolving to an increasingly realized  consciousness of human rights, which in itself sees capital punishment as an affront to  human dignity. 

However, with severe restrictions from the judicial setup, such capital punishment is still  a law in India. The Bachan Singh guidelines, the ruling against mandatory death  sentences in Mithu, and the jurisprudence regarding delay in mercy petition in  Shatrughan Chauhan — which together constitute a very cautious and case-by-case  retentionist scheme. On the other hand, India’s strong norms to counter arbitrariness,  improve transparency, and consider further narrowing or abolition of the death penalty  are further strengthened by international trends: UN moratorium voting and Amnesty’s  documentation of concentrated executions. Legislative clarification, procedural reform,  and public debate should be the next immediate steps. 

Due to the ever-changing global standards of human rights, so, too, would India’s  changing attitude towards capital punishment. The State thus has to interpret its  Constitution very carefully with the point of balancing between punishment for grave  crimes and respect for the sanctity of human life. Perhaps it was about time India would  come to terms with the fact that no one should be beyond saving, no matter what they  have done. Just because something appears legal in the Constitution does not make it  right.  

REFERENCES 

1. Art. 14, 19, 21, 72 and 161 of the Constitution of India (1950). 
2. A.K. Gopalan v. State of Madras, (1950) SCC 228 
3. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 
4. Jagmohan Singh v. State of U.P., (1973) 1 SCC 20 
5. Bachan Singh v. State of Punjab, (1954) 2 SCC 245 
6. Machhi Singh v. State of Punjab, (1983) 3 SCC 470 
7. Mithu v. State of Punjab, (1983) 2 SCC 277 
8. Allauddin Mian v. State of Bihar, (1989) 3 SCC 5 
9. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1 
10. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC  498
11. Amnesty International. (2023). Death sentences and executions 2022.  Amnesty International. p. 9. 
12. UN General Assembly. (1948). “Universal declaration of human rights” (217 [III] A). Paris. https://www.un.org/en/universal-declaration-human-rights/
13. UN General Assembly, International Covenant on Civil and Political Rights,  
14. United Nations, Treaty Series, vol. 999, p. 171, 16 December 1966,  https://www.refworld.org/legal/agreements/unga/1966/en/17703 14. State v. T Makwanyane, 1995 SCC OnLine ZACC 2 
15. Attorney General v. Susan Kigula and 417 Others, No. 03 of 2006, Uganda:  Supreme Court, 21 January 2009,  
16. https://www.refworld.org/jurisprudence/caselaw/ugasc/2009/en/68698
17. 262nd Law commission report on Death penalty (2015)  https://lawcommissionofindia.nic.in/reports/Report262.pdf 
18. Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546