Death Penalty in India: Constitutional Contours and Shifting Global Perspectives

Introduction

The question of whether the death penalty should continue to form part of the criminal justice system has long divided opinion within India and across the world. The issue touches upon fundamental questions of morality, justice, human rights and state sovereignty. Advocates of capital punishment argue that it serves as an effective deterrent for the most heinous crimes, ensures justice for victims and upholds societal order. Conversely, opponents emphasize its finality, potential for judicial error, moral concerns about taking human life and its incompatibility with contemporary human rights standards.

India, as a democratic nation with a robust constitutional framework, navigates this complex terrain with caution. While the Constitution does not explicitly ban the death penalty, it provides important safeguards and limitations that influence its application. Over the decades, Indian courts have shaped a jurisprudence that emphasizes restraint, procedural rigor and the recognition of individual rights.

Internationally, the global trend has been shifting away from the use of capital punishment. Many countries have abolished it altogether, citing human rights concerns, ethical considerations and the desire to align with international norms. This evolving global landscape has profound implications for India, which continues to retain the death penalty but faces mounting pressure to reconsider its stance.

This comprehensive analysis aims to explore the constitutional basis of the death penalty in India, examine key judicial pronouncements that have shaped its application and situate India’s approach within the broader context of global trends towards abolition. It will also consider the future trajectory of capital punishment in India, taking into account legal, ethical, social and international factors.

Constitutional Framework: The Death Penalty Under Indian Law

Despite periodic calls for its abolition, India’s Constitution does not explicitly prescribe the death penalty. Instead, it constructs a framework that simultaneously recognizes the state’s authority to impose capital punishment  and mandates the safeguarding of individual rights. The legal debate primarily revolves around the following provisions:

1. Article 21 – The Right to Life  and Personal Liberty

At the core of Indian constitutional protections lies Article 21, which guarantees that “no person shall be deprived of his life or personal liberty except according to procedure established by law”[1]. The phrase “procedure established by law” has been interpreted by the Supreme Court to mean a process that is fair, just and reasonable. This interpretation has been pivotal in discussions concerning the legality of the death penalty.

The landmark case of Bachan Singh v. State of Punjab (1980) marked a turning point[2]. The Court acknowledged that the death penalty is constitutionally permissible but emphasized that it must be reserved for the “rarest of rare” cases. This doctrine introduced a judicial constraint, limiting the scope for arbitrary or disproportionate use of capital punishment. It underscored that the procedure must ensure fairness, with the judiciary exercising discretion to prevent the imposition of death in inappropriate cases.

2. Article 14 – Right to Equality

  Article 14 guarantees equality before the law and the equal protection of laws[3]. While it permits reasonable classification, the imposition of the death penalty must not be arbitrary or discriminatory. Courts have vigilantly scrutinized cases to ensure that the application of capital punishment remains within the bounds of constitutional reasonableness and fairness.

In Maneka Gandhi v. Union of India (1978), the Court emphasized that the procedure for deprivation of life must be fair, just and reasonable, reinforcing the importance of procedural safeguards[4]. When it comes to capital punishment, this necessitates thorough judicial examination, ensuring that the punishment is proportional and justified.

3. Articles 72  and 161 – Pardoning Powers

 The powers of clemency vested in the President (Article 72) and the Governors (Article 161) serve as critical safeguards against miscarriages of justice[5]. These discretionary powers allow the executive to grant pardons, reprieves, respites, remissions, or commute sentences, offering a vital check on the judiciary’s imposition of the death penalty.

The exercise of these powers ensures that exceptional circumstances, new evidence, or humanitarian considerations can influence the final outcome. They act as a constitutional safety valve, emphasizing that capital punishment is not an inexorable consequence but subject to review and mercy.

Judicial Pronouncements  and Case Law

India’s courts, particularly the Supreme Court, have played an active role in defining the contours within which the death penalty can be imposed. Several landmark judgments have refined the understanding of constitutional limits, procedural safeguards and ethical considerations.

1. Bachan Singh v. State of Punjab (1980)

This case is foundational in Indian jurisprudence regarding the death penalty. The Court upheld the constitutionality of capital punishment but established that it should be imposed only in the “rarest of rare” cases. The judgment emphasized judicial discretion, requiring courts to consider aggravating and mitigating factors before sentencing. It mandated a careful, case-specific analysis and discouraged the routine imposition of the death penalty.

The “rarest of rare” doctrine has become the guiding principle, limiting the scope of capital punishment and emphasizing its exceptional nature. This case also clarified that the death penalty is not unconstitutional per se but must be exercised with restraint.

2. Machhi Singh v. State of Punjab (1983)

Building upon Bachan Singh, this case provided more detailed criteria for determining whether a case qualifies as “rarest of rare”[6]. The Court outlined considerations such as brutality, premeditation, motive and the social impact of the crime. It stressed that the death penalty should be reserved for cases that shock the conscience of society.

This judgment reinforced the need for judicial circumspection and emphasized that the punishment must be proportionate to the gravity of the offense. It also clarified that aggravating factors such as cruelty or premeditation weigh heavily in the decision-making process.

3. Shankar Kisanrao v. State of Maharashtra (2014)

 In this case, the Court commuted a death sentence to life imprisonment due to procedural delays that caused mental trauma to the prisoner[7]. The Court acknowledged that delays in execution could violate the right to a fair trial and the principles of natural justice enshrined in Article 21[1].

This ruling underscored the importance of timely justice and highlighted procedural safeguards as integral to constitutional protections. It signaled a cautious approach, recognizing that even lawful sentences must be executed within a reasonable timeframe to uphold human dignity.

4. Rajiv Gandhi Assassination Case (2014)

The Supreme Court upheld the death sentences of individuals convicted of Rajiv Gandhi’s assassination, reaffirming the gravity of the crime and the necessity of strict judicial scrutiny. However, the Court emphasized that the process must be transparent, fair and adhere to constitutional safeguards. It also underscored the importance of considering individual circumstances and mitigating factors before imposing the death penalty[8].

This case reflected the judiciary’s effort to balance the need for justice with the constitutional protections of individual rights, reinforcing the principle that capital punishment should be an exception rather than the rule.

Global Trends in Abolition of Death Penalty :

 Over the past several decades, there has been a decisive global shift away from the death penalty. By 2023, over two-thirds of the world’s countries have either formally abolished capital punishment or do not practice it in reality[14]. This movement is closely linked to human rights advocacy, changing ethical standards and increasing international cooperation.

1.Key International Human Rights Instruments 

Universal Declaration of Human Rights (UDHR)  and the International Covenant on Civil  and Political Rights (ICCPR) are foundations in shaping global attitudes.

Universal Declaration of Human Rights (UDHR, 1948):  

•   Establishes the basic principles of dignity and equality.
•   Notably, omits an explicit prohibition on the death penalty[9].

International Covenant on Civil and Political Rights (ICCPR, 1966):

• Limits use of the death penalty to “the most serious crimes.”
• Requires that application be non-arbitrary and non-discriminatory[10].

Second Optional Protocol to the ICCPR (1989):

• Explicitly aims for the abolition of the death penalty.
• Ratified by 89 countries, reflecting significant global momentum against capital punishment[11].

2.Europe: Leading the Abolition Movement

• The European Union has achieved a unanimous abolition of the death penalty among its member states[12].
• The European Convention on Human Rights (Protocol 6) formally prohibits executions, even in peacetime[13].
• Abolition is a formal prerequisite for EU membership, reflecting an underlying commitment to human dignity, the right to life and the prohibition of cruel or inhuman punishment.

3.Asia: A Diverse Landscape[15] 

Retentionist States ( China, Iran, Saudi Arabia & Pakistan)[16]:

•  Actively implement the death penalty for a broad range of offenses.
•  Justify its use on grounds such as public order, deterrence and political stability.

 Abolitionist States (Nepal, Bhutan & Philippines)[17][18]:

• Have abolished the death penalty, often as part of wider human rights reforms or democratization efforts[19].

The region exhibits significant diversity in cultural, political and ethical perspectives regarding capital punishment[20].

4.The United States: Ongoing Debate

 The United States is one of the few Western countries retaining the death penalty[21].Its overall use has declined, with some states abolishing it  and a federal moratorium on executions since 2021.

Key issues fueling debate include[22]:

•     Wrongful convictions
•     Racial bias in sentencing
•     Doubts about deterrent effects

India’s Evolving Stance :

India maintains the use of the death penalty within its legal framework, adhering to the doctrine of the “rarest of rare,” which stipulates that capital punishment should only be imposed in the most exceptional cases. However, the application of this penalty is carried out with considerable judicial restraint which includes Ongoing legal  and ethical debates , Influence of global trends  and growing human rights awareness , Increasing pressure both international  and national  , suggests that India’s approach may become more cautious  and reform oriented and  Future alignment with global abolitionist practices remains highly possible as these debates evolve[23].

Although , Indian courts exercise extreme caution and discretion when considering death sentences, often opting for alternative punishments such as life imprisonment, reflecting the country’s cautious approach to this form of punishment.

Currently, there is an ongoing and vibrant debate surrounding the legality, morality and ethical implications of the death penalty in India. Legal scholars, human rights activists and judicial authorities continue to engage in discussions about whether the retention of capital punishment aligns with modern principles of human rights and justice. These debates are further influenced by evolving global standards and the increasing recognition of human dignity as a fundamental value.

Internationally, there is a noticeable trend toward the abolition of the death penalty, driven by growing awareness of human rights concerns and the global movement favoring more humane forms of justice. This international shift exerts considerable influence on India’s domestic policies and societal attitudes. Increasing pressure from international organizations, diplomatic entities and global human rights advocates suggests that India may be compelled to reconsider its stance and move toward a more cautious and reform-oriented approach.

As these legal, ethical and international discussions continue to develop, it remains highly plausible that India’s approach to the death penalty will gradually align more closely with global abolitionist trends. While immediate abolition may not be imminent, the trajectory appears to be shifting toward greater restraint, potential reforms and perhaps eventual alignment with international norms that favor the abolition of capital punishment. The ongoing evolution of these debates indicates a future where India might adopt a more cautious stance, reflecting both internal societal values and external pressures for reform.

Future of the Death Penalty in India: 

The future trajectory of the death penalty in India hinges on multiple factors—legal reforms, judicial perspectives, societal values and international pressures.

Legal  and Ethical Dimensions

• The presence of the death penalty continues to ignite debates around ethics  and human rights.
• Courts, while authorized to impose it, exercise considerable restraint.
• Growing concerns highlight issues of fairness  and the potential for judicial error[24].

 Global Abolition Movement:

• International trends increasingly favor the abolition of capital punishment.
• India faces rising diplomatic  and societal pressure to realign its practices.

Judicial  and Social Dynamics:

• Courts actively reinterpret the conditions for capital punishment, making its application even rarer.
• Public awareness of human rights is steadily growing, fueling demand for reform.

Possible Trajectory for India

While immediate abolition appears unlikely in the near term, a gradual shift towards reform is foreseeable. The judiciary may increasingly favor life imprisonment as a default punishment, with death sentences reserved for the most extreme cases under strict procedural review.

Political and societal debates are likely to intensify, with advocates pushing for moratoriums, commutations, or complete abolition. External factors, such as international diplomatic pressures and the global human rights climate, could accelerate this process.

The trajectory may involve incremental reforms such as mandatory review of death sentences, enhanced procedural safeguards and greater transparency culminating in a more restrained approach. Over time, this could evolve into de facto abolition, aligning India more closely with the global trend[25].

 It is summarised that :

• Although immediate abolition is unlikely, India is witnessing increased caution in both legal processes  and societal attitudes.
• Ongoing debates  and external influences suggest a gradual shift toward reform-oriented approaches.
• Should current trends persist, India may slowly gravitate toward the global movement against the death penalty, though any concrete change is expected to unfold incrementally.

Conclusion  

The debate over the death penalty in India is multifaceted, involving constitutional legality, moral philosophy, social justice and international norms. While the constitutional framework provides a basis for its retention, the application remains highly restrained, guided by judicial prudence and the “rarest of rare” doctrine. The evolving global consensus against capital punishment and rising human rights awareness exert increasing influence on India’s policies[26].

The future of capital punishment in India hinges on ongoing legal debates, societal attitudes and international engagement. As India continues to modernize its justice system and societal values shift towards emphasizing human dignity, the country may gradually move toward reducing or eliminating the use of the death penalty. Such a transformation would reflect a maturation of India’s commitment to human rights, justice and humane governance, aligning it with the broader global movement away from state-sanctioned killing.

References  

1. The Constitution of India 1950 –  21 (Right to life and personal liberty) 
2. Bachan Singh v. State of Punjab [1980] 3 SCR 408.
3. The Constitution of India 1950 – Articles 14 (Right to equality)
4. Maneka Gandhi v. Union of India [1978] 1 SCR 248.
5. The Constitution of India 1950 – 72 (Pardoning power of the President) and 161 (Pardoning power of the Governor)
6. Machhi Singh v. State of Punjab [1983] 3 SCR 470.
7. Shankar Kisanrao Khade v. State of Maharashtra [2014] 2 SCC 323.
8. Rajiv Gandhi v. State (NCT of Delhi) [2014] 9 SCC 79.
9. Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A (III).
10. International Covenant on Civil and Political Rights (adopted 16 December 1966) 999 UNTS 171.
11. Second Optional Protocol to the ICCPR (adopted 15 December 1989).
12. European Convention on Human Rights (opened for signature 4 November 1950) ETS No 5.
13. Protocol No 6 to the European Convention on Human Rights (adopted 28 April 1983).
14. International Commission against the Death Penalty, ‘Global Trends in Abolition’ (2023) <https://www.icadp.org/global-trends> 
15. Amnesty International, ‘Death Penalty in Asia’ (2022) <https://www.amnesty.org/en/what-we-do/death-penalty/> 
16. D Rejali, Torture and Democracy(Princeton University Press 2009).
17.  UN Human Rights Office, ‘Report on the Death Penalty and Human Rights’ (UN doc A/HRC/PRST/2021/1, 2021).
18.  Death Penalty Information Center, ‘Global Overview of the Death Penalty’ (2023) <https://deathpenaltyinfo.org/> 
19. Amnesty International, ‘Death Sentences and Executions 2021’ (2022) <https://www.amnesty.org/en/press-releases/2022/04/asia-pacific-2021-death-penalty/>
20. Subedi S, ‘Abolition of the Death Penalty in Nepal’ (2018) 13 Asian Journal of Comparative Law 123.
21. Death Penalty Information Center, ‘The Death Penalty in the United States’ (2023) <https://deathpenaltyinfo.org/> 
22. National Academy of Sciences, ‘Deterrence and the Death Penalty’ (2016) 113 Proceedings of the National Academy of Sciences 5657.
23. D Chandrachud, ‘Death Penalty in India: A Judicial Perspective’ (2014) 5 Indian Journal of Law and Justice 45.
24. M Radhakrishnan, ‘Legal and Ethical Dimensions of Capital Punishment in India’ (2019) 8 Indian Law Review 215.
25. D Rejali, “Torture and Democracy” (Princeton University Press 2010)
26. Human Rights Watch, ‘India: Abolition of the Death Penalty’ (2021) <https://www.hrw.org/news/2021/07/14/india-abolish-death-penalty>