Published On: December 19th 2025
Authored By: Tanushree Sagar Jaiswal
NMIMS Navi Mumbai
Introduction
The death penalty remains one of the most contentious issues in Indian criminal jurisprudence, embodying a clash between the state’s retributive authority and the individual’s fundamental right to life. While India retains capital punishment for a limited number of offences, judicial doctrine since the 1980s has sharply restricted its application. This tension reflects a broader global movement: more than two-thirds of countries have abolished the death penalty in law or practice, yet a minority — including India — continue to use it under stringent conditions. Indian courts have repeatedly confronted the question of whether the death penalty can coexist with constitutional guarantees of life, liberty, and equality. This article examines the constitutional validity of capital punishment in India, evaluates its procedural safeguards, and places Indian practice within a comparative international framework to explore possible pathways for reform.
Constitutional and Historical Context of the Death Penalty in India
The Indian Penal Code, 1860 (IPC), retained the death penalty for offences such as murder (Section 302), waging war against the state (Section 121), and certain aggravated forms of sexual violence introduced by later amendments. When the Constitution came into force in 1950, it did not abolish capital punishment, but Article 21 guaranteed that no person shall be deprived of life or personal liberty except “according to procedure established by law.” This clause formed the primary constitutional basis for retaining the death penalty so long as procedural fairness was observed.
The first major constitutional challenge came in Jagmohan Singh v. State of Uttar Pradesh, (1973)[1], where the Supreme Court upheld the validity of the death penalty under Section 302 IPC. The Court reasoned that the sentencing process was guided by the Criminal Procedure Code (CrPC) and judicial discretion, and therefore satisfied the constitutional requirement of “procedure established by law.” This early decision set the stage for later jurisprudence but offered no explicit guidelines for sentencing, thereby leaving judges wide discretion in awarding death sentences.
In parallel, the constitutional design offered two additional safeguards. First, Articles 72 and 161 vested clemency powers in the President and Governors, respectively, enabling executive commutation or pardon of death sentences. Second, Section 366 of the CrPC mandated that every death sentence passed by a Sessions Court be confirmed by the High Court before execution, introducing a mandatory appellate layer. Together, these safeguards reflected a cautious but deliberate retention of capital punishment at the constitutional and statutory levels.
Constitutional Validity of the Death Penalty and the “Rarest of Rare” Doctrine
The turning point in India’s death penalty jurisprudence came with Bachan Singh v. State of Punjab, (1980)[2]. A five-judge Constitution Bench upheld the validity of Section 302 IPC read with Section 354(3) CrPC but limited the death penalty to the “rarest of rare” cases in which life imprisonment was “unquestionably foreclosed.” The Court rejected the argument that the death penalty violated Article 19 or Article 21 per se but imposed a constitutional obligation on judges to weigh aggravating and mitigating circumstances before awarding capital punishment. This doctrine transformed the death penalty from a routine sentencing option into an exceptional punishment, aligning Indian practice with the narrowing trend in international human rights law.
The “procedure established by law” clause itself underwent a dramatic reinterpretation in Maneka Gandhi v. Union of India, (1978)[3]. Although not a capital case, Maneka Gandhi expanded Article 21 to require that any law depriving life or liberty must be “right, just, and fair” rather than arbitrary, fanciful, or oppressive. This substantive due process standard has since permeated capital punishment jurisprudence, compelling courts to ensure individualized sentencing, a meaningful hearing of mitigating factors, and reasoned written judgments.
Following Bachan Singh, the Supreme Court elaborated the “rarest of rare” framework in Machhi Singh v. State of Punjab, (1983)[4], identifying factors such as the manner of commission, motive, magnitude, victim characteristics, and social impact to guide judicial discretion. However, in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009)[5], the Court criticized the mechanical application of Machhi Singh categories and emphasized that aggravating circumstances alone are insufficient unless balanced against mitigating factors such as age, socioeconomic background, or post-conviction conduct. This evolution reflects a shift away from rigid formulas toward an evidence-based, individualized approach to capital sentencing.
Another constitutional safeguard is the power of executive clemency. In Kehar Singh v. Union of India, (1989)[6], the Court held that the President’s power to pardon under Article 72 is distinct from judicial power and not subject to merits review, but procedural fairness still applies. More recently, in Shatrughan Chauhan v. Union of India, (2014) 3 S.C.C. 1[7], the Court recognized prolonged delay in deciding mercy petitions as a ground for commuting death sentences to life imprisonment, linking constitutional clemency powers to evolving human rights principles. These decisions underscore the judiciary’s recognition that capital punishment requires heightened procedural safeguards to comport with Article 21.
Safeguards and Procedural Accountability in Indian Capital Punishment
India’s criminal justice system incorporates several statutory and judicial safeguards to minimize arbitrariness in death penalty cases. The Criminal Procedure Code (CrPC) contains multiple provisions to ensure that capital punishment is imposed only after rigorous scrutiny. Section 235(2) CrPC mandates a separate post-conviction hearing in which the accused may present mitigating evidence, allowing the court to weigh personal circumstances, prior conduct, and the possibility of rehabilitation. Section 354(3) further requires the court to provide “special reasons” for awarding the death penalty, ensuring that such sentences are supported by explicit reasoning rather than generalized assertions. Every death sentence passed by a Sessions Court must be confirmed by the High Court, which rigorously examines the conviction, evidence, and sentencing rationale. Subsequent appeals lie to the Supreme Court under Article 136, adding yet another layer of judicial scrutiny. These mechanisms collectively ensure that no death sentence is executed without multiple levels of review, reflecting India’s commitment to procedural accountability.
Global Trends and Comparative Perspectives
The international community has largely moved toward the abolition of the death penalty, both legally and morally. Article 3 of the Universal Declaration of Human Rights (UDHR, 1948) guarantees the right to life, while Article 6 of the International Covenant on Civil and Political Rights (ICCPR, 1966)[8] restricts capital punishment to “the most serious crimes” and prohibits arbitrary imposition. The Second Optional Protocol to the ICCPR explicitly seeks total abolition. Although India has ratified the ICCPR, it has not signed the Second Optional Protocol, thereby retaining legal flexibility over capital punishment.
Other international instruments, including the U.N. Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984), prescribe minimum standards such as fair trial guarantees, restrictions on executing minors or persons with mental disabilities, and nondiscriminatory application. Indian scholars and courts have frequently cited these safeguards to argue for narrowing or abolishing capital punishment, though India continues to exercise a retentionist stance.
Comparative jurisprudence offers instructive lessons. More than 70 percent of United Nations member states have abolished the death penalty either in law or practice. The United Kingdom abolished it for murder in 1965 and for all crimes by 1998. South Africa’s Constitutional Court, in State v. Makwanyane, 1995 (3) SA 391 (CC)[9], struck down the death penalty as unconstitutional, holding that it violated the rights to life and dignity and constituted cruel, inhuman, and degrading punishment. In contrast, the United States retains capital punishment under federal and state law but with stringent procedural safeguards. In Furman v. Georgia, 408 U.S. 238 (1972)[10], the U.S. Supreme Court invalidated existing death penalty statutes due to arbitrariness, creating a de facto moratorium. Subsequent statutes with guided discretion were upheld in Gregg v. Georgia, 428 U.S. 153 (1976)[11], illustrating how procedural safeguards can preserve the constitutionality of capital punishment. India’s “rarest of rare” framework mirrors this evolution, moving from unstructured judicial discretion toward a more regulated and evidence-based approach.
The U.N. General Assembly has repeatedly called for a global moratorium on executions, most recently reaffirmed in 2022. While these resolutions are nonbinding, they reflect growing international consensus against capital punishment. India has consistently opposed these resolutions, citing domestic sovereignty and security concerns, but the country faces increasing diplomatic and human rights pressure to align with global norms.
Indian Practice and Current Measures
Legislative amendments in India have sometimes expanded the scope of the death penalty. For instance, the Criminal Law (Amendment) Acts of 2013 and 2018 introduced or strengthened death penalty provisions for certain categories of rape, particularly involving minors under twelve years (Section 376AB IPC). These legislative changes demonstrate the influence of societal outrage and political considerations in shaping capital punishment policy.
The Law Commission of India, in its 262nd Report (2015), recommended abolishing the death penalty for all crimes except terrorism and waging war against the state. The report relied on empirical data and comparative trends to conclude that capital punishment does not achieve deterrence and is applied arbitrarily in India. While not binding, this report has influenced both judicial reasoning and academic discourse regarding the retention of the death penalty.
Project 39A at NLU Delhi[12] has provided detailed data showing that the majority of death row inmates come from marginalized and economically disadvantaged backgrounds, often with low educational attainment and inadequate legal representation. These findings highlight systemic inequities and suggest that even with constitutional safeguards, the practical application of the death penalty in India is vulnerable to bias and procedural shortcomings.
Challenges and Concerns with the Death Penalty in India
Despite procedural safeguards and judicial doctrines, several systemic challenges undermine the fairness and effectiveness of the death penalty in India. One of the most persistent critiques is the arbitrariness and inconsistency in sentencing under the “rarest of rare” doctrine. Another pressing concern is the socio-economic and caste bias in capital sentencing. Death row prisoners disproportionately belong to economically weaker sections and historically marginalized communities. Limited access to competent legal aid, poor socio-economic conditions, and insufficient defense resources exacerbate this disparity, undermining the constitutional guarantee of equality under Article 14. Studies indicate that defendants from disadvantaged backgrounds are less likely to benefit from mitigation hearings or post-conviction appeals, increasing the risk of unfair death sentences.
The deterrent value of the death penalty is also widely questioned. The Law Commission of India’s 262nd Report (2015)[13] analyzed both global and domestic data and concluded that there is no conclusive evidence linking capital punishment to lower crime rates. The Supreme Court, in Santosh Bariyar, echoed this skepticism, noting that retribution and public opinion often motivate the imposition of the death penalty rather than genuine deterrence.
Furthermore, psychological trauma and human rights concerns persist for death row inmates. Prolonged incarceration under the shadow of execution often extends over decades, causing severe mental distress. International human rights bodies, including the U.N. Human Rights Committee, consistently highlight such practices as incompatible with fundamental human rights norms.
Retention of the death penalty also carries diplomatic implications. When foreign nationals face execution, international pressure and appeals for clemency often arise, complicating bilateral relations and potentially tarnishing India’s reputation as a human rights-respecting state. These considerations, while external to domestic law, illustrate the broader consequences of capital punishment in a globalized world.
Recommendations for Reform and Comparative Lessons
Several reforms can enhance fairness, transparency, and alignment with international norms. First, codification of sentencing guidelines could reduce arbitrariness. India could legislate clear parameters, ensuring that judicial discretion under the “rarest of rare” doctrine is exercised predictably and consistently. This approach would make capital sentencing more transparent and equitable.
Second, enhancing legal aid and mitigation investigations is another critical reform. Establishing a specialized death penalty defense unit under the National Legal Services Authority (NALSA) would provide skilled representation at the trial stage. Reforms to the commutation and mercy petition process are also essential. Statutory deadlines for deciding petitions under Articles 72 and 161 would prevent prolonged death row incarceration. Judicial review could focus on procedural fairness rather than the merits of clemency, maintaining executive discretion while improving transparency and accountability.
Finally, India could adopt a human rights-oriented penal policy by expanding life imprisonment without parole for a fixed term (e.g., 30 years) as an alternative to the death penalty. This approach satisfies retributive needs without exposing the state to irreversible actions. Comparative experiences from countries such as South Africa, Canada, and the United Kingdom demonstrate that abolition of the death penalty does not lead to increased violent crime. India could additionally conduct public consultations with civil society, victims’ groups, and human rights organizations to ensure legitimacy and broader acceptance of reforms.
Conclusion
The death penalty in India occupies a complex legal and moral space. Judicial doctrine, beginning with Bachan Singh and refined through subsequent cases like Machhi Singh, Santosh Bariyar, and Shatrughan Chauhan, has limited the application of capital punishment to “rarest of rare” cases while emphasizing procedural safeguards under Article 21. Despite these measures, systemic challenges persist, including arbitrariness, socio-economic bias, questionable deterrence, and prolonged death row incarceration.
Global trends indicate a gradual movement toward abolition, with international instruments and comparative jurisprudence highlighting the inherent human rights risks of capital punishment. India’s retentionist stance, though increasingly restricted and procedurally sophisticated, places it in a shrinking minority of countries that continue to authorize executions. Reform measures such as codified sentencing guidelines, gradual abolition for non-terror crimes, enhanced legal aid, time-bound mercy petitions, and restorative sentencing can address systemic inequities and bring India closer to international best practices.
Ultimately, the constitutional and legal trajectory of the death penalty in India reflects a tension between retributive justice and human rights imperatives. Balancing public safety, societal demands for accountability, and the sanctity of life requires both legislative foresight and judicial prudence. While capital punishment may persist in limited circumstances, a transparent, evidence-based, and human rights-compliant framework is essential to ensure that the ultimate penalty is applied fairly, consistently, and with the utmost care for procedural justice.
References
[1] Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 S.C.C. 20
[2] Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684
[3] Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248
[4] Machhi Singh v. State of Punjab, (1983) 3 S.C.C. 470
[5] Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 S.C.C. 498
[6] Kehar Singh v. Union of India, (1989) 1 S.C.C. 204
[7] Shatrughan Chauhan v. Union of India, (2014) 3 S.C.C. 1
[8] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
[9] State v. Makwanyane, 1995 (3) SA 391 (CC)
[10] Furman v. Georgia, 408 U.S. 238 (1972)
[11] Gregg v. Georgia, 428 U.S. 153 (1976)
[12] Project 39A, National Law University Delhi, Death Penalty in India: Research Report (2020).
[13] Law Commission of India, Report No. 262: Death Penalty (2015), available at https://lawcommissionofindia.nic.in/reports/Report262.pdf.
