DEATH PENALTY: CONSTITUTIONAL VALIDITY AND GLOBAL TRENDS

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Published On: December 9th 2025

Authored By: M. Radhi Rudra
School of Law, S.R.M. Institute of Science and Technology, Chennai

Abstract

This paper explores the constitutional validity, procedural framework, and global trends surrounding the death penalty, with a particular focus on India. It examines the philosophical justifications and contrasts them with human rights concerns. Through landmark judgments, the study highlights the evolution of judicial reasoning on capital punishment. The global landscape is also analysed, showing a shift toward abolition in many countries, while others continue executions. The paper concludes by weighing the ethical dilemmas and legal safeguards that shape the future of capital punishment.

Keywords: Death Penalty, Rarest of Rare, Right to Life.

Introduction

When the government takes a person’s life as punishment for a very serious crimes (like rape, murder or terrorism), after following the legal process, it’s called the death penalty or capital punishment. It has existed in various forms throughout human history and remains one of the most controversial topics in criminal justice and human rights. Death Penalty is seen as the highest punishment for any crime, especially in India. The concept of Death Penalty dates back to ancient times, as seen the texts like by Kautilya which mentioned different punishments, including Death punishment. Manusmriti by Manu, another ancient scriptural text, also refers to the use of the Death Penalty.

According Amnesty International, Minimum 2,087 executions were recorded in 46 countries in 2024 and by the end of 2024, at least 28,085 people are under death sentence globally. Additionally, at least 1,518 executions in 15 countries in 2024, up by 32% from 2023.

The death Penalty has multiple purposes and justifications. One of the foremost justifications is retribution, which is based on idea that offenders who commit heinous crimes deserve punishment proportional to the harm caused. So, it basically means eye for an eye. Another commonly cited objective is deterrence which suggests that death penalty discourages people from committing serious crime by causing a fear of death as a punishment. Moreover, incapitation also another goal which as it permanently removes dangerous criminals from society, thereby preventing any future threat to public safety. Utilitarianism is also another goal which supports the death penalty if it benefits society by deterring crime, ensuring public safety, or preventing harm—focusing on the greatest good for the greatest number, even if ethical concerns exist. 

Despite its historical prevalence, the death penalty remains one of the most contentious issues in criminal jurisprudence and human rights discourse

Death penalty- Indian Scenario

In India, the death penalty is rarely carried out, with only a small number of executions taking place in the past few decades. The death penalty as a legal form of punishment for exceptional cases and the execution of the death penalty in India has remained under constant scrutiny, especially as significant legal, procedural, and societal changes have influenced how it is applied in recent years. According to Project39A, In India 564 number of prisoners on death row as of December 31, 2024 and death sentences imposed by trial (sessions) courts in 2024 are 139. 

The death penalty is typically imposed only in the ‘rarest of rare’ cases, a principle established by the Supreme Court in Bachan Singh v. State of Punjab (1980). This doctrine guides Indian courts to limit the use of capital punishment, ensuring it is applied only to the most serious and exceptional crimes that deserve the Death penalty. As per, Section 354(3)

There were several debates regarding death penalty in contrast to Right to life. The Indian Constitution of 1950 assured the right to life under Article 21 which States “No person shall be deprived of his life or personal liberty except according to procedure established by law.”  But Death is irreversible and extreme violent punishment and the exception allowing for the deprivation of life if done lawfully. Even, Critics argue that death penalty undermines nature of equality.

Procedure for Carrying Out the Death Penalty in India

The execution of a death sentence in India follows several carefully regulated steps to ensure justice is served:

  1. Trial and Sentencing: When a person is found guilty of a capital crime, the trial court may sentence them to death, but must provide specific “special reasons” for this decision, as required under Section 393(3) of the Bharatiya Nyaya Sanhita (BNSS).
  2. Appeals: The convicted individual has the right to appeal the death sentence in higher courts. The sentence must be confirmed by the High Court, even if the convict does not appeal.
  3. Review and Curative Petitions: After the appeal is dismissed, the convict can file a review petition. If that is also rejected, they may submit a curative petition to the Supreme Court to challenge the judgment further.
  4. Mercy Petition: As the last option, the convict can request clemency by submitting a mercy petition to the President of India (under Article 72) or the Governor of the respective state (under Article 161), seeking to have their death sentence commuted.
  5. Execution: If all legal remedies and mercy petitions are denied, the death sentence is carried out. In India, the prescribed method of execution is hanging.

Rarest of Rare Doctrine

It was in the landmark case of Bachan Singh v. State of Punjab that the Supreme Court introduced the “rarest of rare” doctrine to limit the application of the death penalty. The Supreme Court ruled that the death penalty is not unconstitutional and does not go against Articles 14, 19, or 21. The Court did not define ‘rarest of rare’, leading to ambiguity. In the Machhi Singh v. State of Punjab, the Supreme Court laid down criteria for this doctrine. The Constitutional Bench questioned whether giving the death penalty for murder under Section 302 of the IPC, 1860, was in line with the Constitution.

In the case of Kehar Singh v. Delhi Administration, the Supreme Court upheld the death sentence awarded by the trial court and confirmed by the High Court to the three appellants — Kehar Singh, Balbir Singh, and Sawant Singh. They were convicted for conspiring and executing the assassination of Smt. Indira Gandhi, the then Prime Minister of India, under Sections 302, 120B, 34, and 109 of the Indian Penal Code, 1860. The Court held that the offence constituted one of the “rarest of rare” cases, warranting the imposition of the death penalty due to the pre-planned and politically motivated nature of the murder, carried out by professional conspirators.

Landmark Judgements

Jagmohan Singh vs State of Uttar Pradesh. [1973 AIR 947, 1973 SCR (2) 541]

Facts: Jagmohan Singh was found guilty of murder and sentenced to death by the lower court. He challenged the death sentence, claiming that executing him would violate his constitutional right to life under Article 21, arguing that capital punishment is cruel and arbitrary.

Issues:

  • Does the death penalty violate the fundamental right to life and right to equality?
  • Is capital punishment itself against the Constitution?

Held: The Supreme Court had five judge bench and observed that the decision to impose the death penalty is lawful, and the judge may choose between life imprisonment and the death sentence based on the facts, circumstances, and the nature of the crime. The constitutional bench delivered a unanimous verdict, upholding the validity of the death penalty and ruling that it does not violate Articles 14, 19, and 21 of the Indian Constitution.

Bachan Singh v.  State of Punjab. [AIR 1980 SC 898, 1980]

Facts: Bachan Singh was convicted of murder and sentenced to death by the trial court. The case reached the Supreme Court, where he challenged the death sentence on constitutional grounds, arguing it violated his fundamental right to life under Article 21.

Issues:

  1. Whether death penalty provided for the offence of murder in Section 302, Indian Penal Code, 1860 is unconstitutional?
  2. Whether the Facts found by the lower Courts would be considered “special reason” for awarding the death penalty as is required under Section 354(3) CRPC?

Held: The Supreme Court, in a 4:1 majority, upheld the constitutional validity of the death penalty under Section 302 of the IPC, stating it is neither unreasonable nor against public interest and does not violate Article 19. It emphasized that the death sentence should be imposed only in the “rarest of rare” cases, under exceptional and grave circumstances, as per Section 354(3) of the CrPC.

Machhi Singh v. State of Punjab [1983 SCR (3) 413, AIR 1983 SUPREME COURT 957, 1983 2 CRIMES 268, 1983 SCC(CRI) 681]

Facts: The case arose from a series of brutal crimes committed by Machhi Singh and his associates on the night of August 12, 1977. As an act of revenge for a wrong done to one of Machhi Singh’s relatives, they launched a premeditated attack on a family, killing seventeen people—including women and children—and injuring three others. The horrific nature of the killings deeply shocked the community. Machhi Singh and his accomplices were tried in a Magistrate’s Court and convicted on multiple charges, including murder, criminal conspiracy, and unlawful assembly. Due to the deliberate and heinous nature of the crime, the trial court sentenced them to death. Fourteen of the convicts appealed to the Punjab and Haryana High Court, but their appeals were dismissed, and the death sentences were upheld. The case was then taken to the Supreme Court in 1983 through a special leave petition under Article 136 of the Indian Constitution.

Issues:

  1. What general guidelines should be followed to define the “rare of cases” criteria for imposing the death penalty?
  2. whether Machi Singh and other prisoners deserve the death penalty by applying the strictest conditions laid down under Bachan Singh vs the State of Punjab?

Held:

The supreme Court confirmed the Death Penalty for the accused, stating that it should be imposed only in the “rarest of rare” cases where the crime is so horrific that it deeply shocks the collective conscience of Society. Justice MP Thakur explained the rarest of rare doctrine. They are:

  • Method of Murder: Involves excessive cruelty or acts of torture.
  • Motive: Driven by extreme depravity or selfish intent, such as contract killings.
  • Anti-Social Nature: Crimes causing social outrage (e.g., dowry deaths, genocide).
  • Scale of the Crime: Cases involving multiple victims or mass violence.
  • Victim’s Personality: Vulnerable victims (children, women, public figures).

Global Trend

By early 2025, around 150 countries had either fully abolished the death penalty or placed a moratorium on its use. About 55 countries continue to retain and carry out executions. In 2024, the number of executions worldwide rose sharply, reaching over 1,500—the highest recorded since 2015.

All European nations have abolished the death penalty either in law or in practice, with the sole exception of Belarus, which still carries out executions. Russia retains the death penalty in its laws but has observed a moratorium since 1996. In the Americas, countries like Canada, Mexico, and most of South America have eliminated capital punishment. Malaysia abolished the mandatory death penalty in 2023, allowing judge’s discretion in sentencing. South Korea has not conducted any executions since 1997, though it has not officially abolished the practice.

China continues to be the world’s leading executor, though exact numbers are kept confidential as state secrets. Human rights groups estimate that thousands are executed there each year. Among countries with publicly available data, Iran led with at least 972 executions, followed by Saudi Arabia with 345, and Iraq with 63. The United States carried out 25 executions in 2024, marking its highest annual total since 2018. Excluding China, 87% of all reported executions took place in just two countries – Iran, Saudi Arabia.

Conclusion

The death penalty continues to provoke intense debate across legal, ethical, and societal domains. While Indian jurisprudence upholds its constitutional validity, it simultaneously imposes stringent safeguards to restrict its use. Landmark cases have shaped a nuanced framework that balances justice with humanity. Globally, the trend leans toward abolition, reflecting evolving human rights standards. As India navigates this complex terrain, the challenge lies in reconciling public sentiment, legal precedent, and international norms. Ultimately, the future of capital punishment hinges on whether society prioritizes retribution or rehabilitation, and whether irreversible justice can coexist with constitutional morality.

References

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