Published on: 07th October 2025
Authored by: Anisha Raghav
G. D. Goenka University
Abstract
This article critically assesses the constitutional, judicial, and societal considerations of capital punishment in India, with special reference to Article 21, the development of the “rarest of rare” doctrine, and sentencing discretion. It questions the constitutional validity of the Indian model in the backdrop of international abolitionist trends and looks at important Supreme Court interventions intended to create homogenous sentencing practices. The article traces the social, economic, and psychological realities of capital punishment while emphasizing those realities that trace back to serious oppression against deprived communities and the lived trauma faced by death row convicts. It also examines the clemency powers of the executive and their strengths and limitations, the rapid technological and forensic thrust on the criminal justice system, and the urgent need for procedural safeguards in the evolving landscape. Drawing from deep wells of comparative insights, the article questions the very legitimacy and usefulness of the death penalty in India and calls for an alternative approach to justice founded on human rights, uniformity, and best practices across the globe.
Keywords
Constitutionality, Crime, Death Penalty, Execution, Punishment.
The Constitutional Tightrope: Article 21 and the Ethics of Execution
Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This fundamental provision has become the foundation of repeated constitutional challenges held against capital punishment, raising the question of whether a mere procedure can pass on any sort of legal sanction for the state taking life or whether limits of an inherent moral and human rights nature have to prevail. This clause has been used both to shield the individual rights and as a vehicle to pass the death penalty through a valid legislative procedure. The Supreme Court has been repeatedly faced with the dilemma of whether a procedure, ensure enacted by Parliament, can within a liberal democracy justly deprive someone of life.
Starting with the cause of Jagmohan Singh v. State of UP (1973)[1], the Supreme Court laid down that capital punishment does not per se violate Article 21 if it is given in accordance with the procedure established by law and after considering all the facts and circumstances. With Bachan Singh v. State of Punjab (1980)[2], the Court gave final shape to the “rarest of rare” doctrine and held that the death penalty could be imposed only in rarest of rare cases where extreme culpability of the crime is present and thereby set a global standard as to procedural safeguards[3].
Building on the Maneka Gandhi v. Union of India case[4], the Court insists that “procedure established by law” is supposed to be just, fair, and reasonable, depending upon the establishment of checks and balances in both substantive and procedural due process. In recent times, landmark Supreme Court rulings have further fortified such safeguards, namely in the Vasanta Sampat Dupare case of 2025[5]. Violations of mandatory safeguards may now overturn a death sentence upon review, after its confirmation: non consideration of all mitigating circumstances, psychiatric evaluation, or a denial of a due hearing.
Whether it is mental status or socio-economic background, such mitigating factors have, actually, acquired constitutional significance, a view strengthened by Justice Bhagwati’s dissenting opinion in the Bachan Singh case[6] on the principle that the death penalty is prima facie incompatible with dignity and equality[7].
The moral component under Article 21 is human dignity. The Indian judiciary has observed that the power of a state to execute must give way to irreducible principles of human worth, risks of erroneous executions, or possibilities of reform. Indian and international critics say that executions are unethical and unconstitutional in the backdrop of global trends and India’s responsibility to lay down rights-based precedents. The Supreme Court has passed judgments recognizing that delays in executions, solitary confinements, and the executions of the mentally ill are violations of the humane treatment clause under Article 21, leading to curtailments of such practices and the easing down of capital criminal standards.
While the Court insists that the death penalty, per se, is not a violation of Article 21 if it is applied through “just, fair, and reasonable” procedures, the growing rigour of procedural standards, coupled with the continuing moral onslaught against capital punishment, paints a picture of section 53 as a dynamic arena for contention between constitutional values and the changing morality of society. This constitutional tightrope walk reflects a judiciary striving to balance “procedure established by law” with “the dignity of man” and fundamental rights, acknowledging that as India’s democratic conscience matures, the scope for capital punishment further narrows[8].
Rarest of the Rare: Evolution or Enigma?
This doctrine of “rarest of rare” came about as a safeguard after the Bachan Singh case, basically to limit judicial discretion and confine capital punishment to the gravest of the grave. But the standards remain elastic, and open to interpretation. The Supreme Court, in Machhi Singh v. State of Punjab (1983)[9], tried to formulate guidelines: one must take into account the manner of commission of the crime, the motive and the magnitude of the social impact. But the decisions that followed have made for a discontinuous application of the principles[10].
A 2025 comparative analysis throws light on the divergence in the application of the doctrine. For instance, the brutal rape and murder cases in the R.G. Kar Medical College in Kolkata[11] led to life imprisonment instead of the death penalty, whereas in the Neyyattinkara district of Kerala[12], the court treated calculated poisoning with the death sentence on grounds of rarest of rare cruelty and premeditation. Critics are of the opinion that the doctrine, which glares in limiting principles, often sees the judge’s subjectivity take center stage, creating varied standards of what constitutes cruelty or societal outrage and therefore inconsistent end results.
- Judicial Discretion vs. Judicial Drift: How Consistent Is Sentencing?
In spite of unequivocal endorsement by the Supreme Court to the “rarest of rare” criterion, inconsistencies in sentencing remain. Public judgments of 2025 exhibited continued disparities in the granting of death penalties, frequently dependent on the distinct tastes of trial judges or the location of prosecution. The Supreme Court has also bent its attention increasingly toward such inconsistencies during recent times, now demanding very detailed recording of mitigating circumstances, including social history, psychiatric reports, and jail conduct, prior to sentencing[13].
An observation worthy decision in 2025 came with the review of earlier death sentences in the light of the newly evolved guidelines, based on the decision in Manoj v. State of Madhya Pradesh (2022)[14], which prescribes time-bound mitigation hearings and a detailed and uniform framework. On the other hand, this lacuna remains on the ground, thus invigorating the debate of whether the present system will ever be able to ensure uniformity in sentencing standards[15].
From Retribution to Reformation: Changing Philosophies Behind Punishment
The discourse on the death penalty in India speaks of an ongoing tug-of-war of varying justifications put forward in support of punishment: retribution, deterrence, and reformation. Colonial era codes, and the rulers before them, justified capital punishment as a deterrent since social order needed exceptional penalties for exceptional acts of violence. Gradually, however, global criminological and judicial thinking has taken a different path[16].
The Indian Supreme Court has of late reiterated the importance of reform and rehabilitation, and the sanctity of life. Yet public opinion, along with the occurrence of sensational cases, invariably agitate for retributive justice, thereby forcing legislators and courts into the retention and application of capital punishment for crimes being particularly atrocious and famous. This pendulum has often disregarded principled legal exchange, thereby leaving the actual sentencing scenario vulnerable to blatant populism and media glare.
International Law and India: Marching to a Different Drum?
India is party to the International Covenant on Civil and Political Rights (ICCPR), which, though its abolition is not mandatory, severely restricts the death penalty to ‘the most serious crimes,’ provides wide procedural safeguards, and disallows its use against juveniles and pregnant women. The Protection of Human Rights Act, 1994, provides that many substantive international covenants are enforceable in Indian courts; thus, domestic rights are linked with international standards. India, however, has yet to ratify the Second Optional Protocol to the ICCPR, which aims at the abolition of the death sentence, and it remains only a signatory to the Convention against Torture. The law in India, through the Constitution and penal statutes, still provides for capital punishment (in the “rarest of rare” cases), thereby setting it apart from the overwhelming majority of countries that have deemed the abolishment of capital punishment[17].
Death penalty abolition is perceived as a natural public demand, with reputation and public opinion considered psychological questions. India, bucking the global trend, is termed a retentionist country. The international legal surveys cite that more than 170 countries have abolished or extremely restricted the use of death penalty. Despite ratifying international human rights treaties, India continues to register capital punishment in its statutes like the IPC, NDPS Act, and terrorism-related laws.
Indian delegates have often abstained or voted against the UN resolutions for calling upon the global moratorium for the death penalty, mainly citing sovereignty and legal diversity. The Supreme Court has itself distinguished between Indian practice and the American notion of cruel and unusual punishment as espoused in Furman v. Georgia (U.S.)[18] and refused to import foreign constitutional reasoning into the Indian context. Thus, the growing international stigma attached to executions increasingly creates diplomatic and legal tensions worldwide as India aspires to take on international leadership responsibilities.
India has uniformly voted against United Nations General Assembly draft resolutions for a moratorium—and afterwards abolition—of the death penalty. In international forums, India justifies its position by citing the doctrine of “rares of rare,” procedural safeguards, and giving precedence to domestic statutory law. The delegates have further explained that abolition would come prematurely before adequate societal backing; finally, capital can serve as a deterrent in the rare cases[19].
Globally, a trend is very clear: more than 140 countries worldwide have abolished the death penalty in law or in practice as on 2025, and international legal experts and advocacy bodies continue to push India to move along this road. Where the UK, Australia, and South Africa have completely done away with capital punishment, even retentionist countries have either almost altogether narrowed the ambit of it or placed a moratorium on executions. The trend is for reforms even among other Asian powers: Malaysia has recently abolished mandatory death penalty, and Taiwan’s courts have narrowly construed its application.
Human Rights bodies and the UN have called India at various times to assure the highest diligence in protecting the rights of death row prisoners and to so limit the operation of capital punishment in accordance with Article 6 of the ICCPR. Domestic courts nowadays, especially in recent judgments, are increasingly becoming sensitive to such concerns and have been examining death sentences on procedural, humanitarian, or moral grounds. The preeminent instance execution of death penalties in recent times has put India under the shadows, half a century after independent India had initiated the abolitionist movement in the world. The death penalty still being carried out in India and India also voting against the abolition of the death penalty brings this country out of the ranks of modern working democracies and some other Asian democracies[20].
Hence, India is seen to be characterized as wrestling to a different drum: while the world is gathering towards abolition, it retains capital punishment. The retention of capital punishment is on account of its constitutional doctrine and sociopolitical context, but with the evolving standards of international law and mounting pressure from the international community, the prospects of the death penalty lying peacefully on its shelf seem dim; rather it may provoke an occasion for its sturdier examination and alignment with the international view toward abolition.
The Unheard Voices: Social, Economic, and Mental Health Dimensions
Here are the deep social realities lying beneath the judicial reasoning and constitutional debates. Studies reveal that in India, persons belonging to the marginalized sections are[21] disproportionately sent to death: the poor, uneducated, and socially disadvantaged. Justice in India is shaped by defective investigation, lack of good legal aid, and social prejudices[22].
More importantly, so many years in solitary confinement on death row inflict serious psychological damages on both the convict and their families. There are incidences recorded by human rights organizations of mental illness, suicides, and the present shadow of an uncertain life for a long time as an indelible stigma. Such experiences generally remain alien to judicial discourse, although in recent times, several judgments have emphasized considering convict’s mental and social background in sentencing.
- Clemency, Mercy, and Executive Power: The Final Gatekeepers
In India, under Articles 72 and 161 of the Indian Constitution, a clemency power vis a vis the death penalty is vested in the President and Governors, respectively. Article 72 gives the President a sole authority to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offence, including death sentences. Whereas, Article 161 states that the Governor has the power only to postpone or commute the sentences of subjects, but it cannot pardon death sentences. The Constitution thereby puts into place the final executive check on judicial orders for capital punishment and thus provides a safety exit for those cases where an execution is necessary due to violations of justice on account of some procedural lacunae or humanitarian grounds.
The Supreme Court’s December 2024 directive has essentially required all Indian states and Union Territories to establish dedicated mercy petition cells that shall concentrate on processing mercy petitions of death row convicts in a speedy and transparent manner. These cells effectively serve the purpose of coordinating with various arms, such as the prison authorities, judiciary, police, and secretariats of the Governor and President, to expedite the processing of petitions. Such an institutional reform seeks to eliminate the long-pending issue of unreasonable delays, which the court has considered to very greatly dehumanizing to the psychological anguish suffered by the convicts and also their families[23].
How can there be a clemency jurisprudence in the criminal law system without consideration for the delay in its efficacious exercise? As the Supreme Court remarked, delays in the hearings or decisions of mercy pleas are violative of Article 21-IV, which guarantees humane treatment. A significant holding of the Supreme Court was in Shatrughan Chauhan v. Union of India (2014)[24] that unexplained, inordinate delays by executive authorities in deciding mercy petitions can be treated by courts as sufficient ground for commuting death sentences into life terms, the court recognized that such delays amounted to cruel and inhuman treatment. Also, courts have emphasized that mercy should be granted if the convict suffers from some mental disorder, or if his solitary confinement causes trauma, or if some other supervening circumstance affecting the convict’s dignity and capacity arises[25]. Articles 72 and 161 empower the clemency process, which acts as an integral constitutional safeguard in India’s capital punishment regime. Judicial activism combined with recent institutional reforms reflects growing recognition of clemency’s vital role in protecting human dignity, rectifying judicial errors, and tempering punitive excesses. Viewing that procedural efficiency and transparency need to be further enhanced remains imperative to ensure justice is done at this crucial, penultimate stage in the handling of death penalties[26].
- Technology, Transparency, and the Future of Capital Punishment
In the digital age, newer tools are transforming the landscape of the death penalty. Thanks to the digitization of trial records and appeal proceedings, transparency can theoretically be strengthened, better evidence can be made accessible, and appellate review can be assisted. In the area of forensic science- DNA analysis, the digital tracking of evidence-wrongful convictions can be lowered while simultaneously opening up new arguments on whether the use of technology should be trusted in a death decision or not.
There is an increasing discussion about whether AI and data analytics may someday help oust some degree of subjectivity in sentencing or are themselves just another source of bias. For now, nonetheless, the good-luck charm and bane of technology is: with the promise of greater procedural fairness, along with the promise of errors and abuses with little safeguards[27].
Learning from Others: Comparative Reflections from Abolitionist and Retentionist Jurisdictions
A growing body of scholarship calls for an analysis of abolitionist experiences worldwide. Countries that have abolished capital punishment, including those of a similar common law jurisdiction, have mostly listened to empirical evidence that refutes deterrence, judicial fallibility, and irreversible error. Landmark studies from Europe, Canada, South Africa, and some Latin American countries have canvassed that abolition is not associated with an increase in violent crime but rather brings along a strengthening of human rights protections.
On the Indian soil, comparative law provides rich fertile ground on which to rethink the future of capital punishment. May lessons abroad inspire more humane sentencing frameworks, better alternatives to the worst crimes, and a criminal justice system more in tune with constitutional[28] morality and changing global norms?
Conclusion
Controversy surrounds the death penalty in India- crossing the boundaries of constitutional interpretation, ruffling socio-legal perceptions, and riding the global trends. While the “rarest of rare” doctrine is basically a safeguard against arbitrariness, it cannot work very well due to conflicted precedents and social pressure. More emphasis on mitigating factors, calls for procedural uniformity, and integration of experiences into sentencing standards constitute shafts of light in an otherwise profound darkness of philosophical disagreement[29].
A comparative study between global procedure, technological advancement, and a growing awareness of social inequities could act to lean the trajectory of the death penalty regime into a more just and consistent one for India. Whether India will “march to a different drum” for long or will open a fresh chapter on capital punishment is, therefore, an unanswered and pressing question at the very heart of the growing constitutional values and identity of the nation.
References
Books
- Laxmikanth, Indian Polity 5th ed.
- N. Pandey, Constitutional Law of India 58th ed.
- O. Agarwal, International Law & Human Rights
Articles
- Death Penalty in India: A Comparative Study of Legal Grounds and Ongoing Debate, 7 MultiSubject J. (2023),
- The Doctrine of Rarest of Rare: A Critical Analysis, International Journal of Innovative Research in Law (Aug. 2022),
- Priyanka Puri, Article 21: The Heart and Lifeline of the Fundamental Rights, Int’l J. for Multidisciplinary Research, Vol. 7, Issue 1 (Jan.-Feb. 2025),
- The Death Penalty and International Law: A Global Perspective, Jusscriptum Law Blog (Mar. 26, 2025),
- Aakriti & Tanmay, Death Penalty and Its Validity in Indian and International Context: An Overview, Indian J. Law Administration & Ethics (June 2025),
Websites
- Death Penalty Confirmed but Can Be Challenged Under Art. 32 Petition: SC, New Indian Express (Aug. 26, 2025),
- Supreme Court on Reconsideration of Death Sentence Under Art. 32, SCC Online Blog (Aug. 28, 2025),
- SC Sets Aside Death Penalty in POCSO Case: When Does the Rarest of Rare Doctrine Truly Apply?, LawBeat (Sept. 10, 2025),
- Death Penalty in India: Legal Grounds and the Ongoing Debate, LegalEye (Feb. 28, 2022),
- Debate on Death Penalty: Should India Abolish It in 2025?, DoonLawMentor (Mar. 20, 2025),
- India Votes Against UN Draft Resolution on Death Penalty, NDTV (Nov. 13, 2018),
- The Death Penalty and International Law: A Global Perspective, Jusscriptum Law Blog (Mar. 26, 2025),
- Human Rights and Constitutionality of Capital Punishment in India, South Asia Policy & Research Forum (May 20, 2024),
- Death Penalty: Damocles Sword Cannot Be Kept Hanging, Supreme Court Observer (Mar. 25, 2025),
- Supreme Court Issues Guidelines on Processing Mercy Petitions to States & UTs, Vision IAS (Dec. 10, 2024),
- Capital Punishment in India, Wikipedia (last visited Sept. 21, 2025),
- Pardoning Powers of the President, Vajiram & Ravi UPSC (last visited Sept. 21, 2025),
- The Death Penalty in India: Legal Framework, Ethical Dilemmas, and the Challenge of Deterrence, Int’l J. of Law, Language & Religion (2025),
- Constitutionality of Death Penalty, Indian Bar Association (Aug. 31, 2017),
Cases
- Jagmohan Singh v. State of UP, AIR 1973 SC 947.
- Bachan Singh v. State of Punjab, AIR 1980 SC 898.
- Maneka Gandhi v. Union of India, AIR 1978 SC 597.
- Vasanta Sampat Dupare v. Union of India, Supreme Ct. of India, 2025 (unreported).
- Machhi Singh v. State of Punjab, AIR 1983 SC 957.
- G. Kar Medical College Case (Kolkata), 2025 (unreported).
- Neyyattinkara District Case (Kerala), 2025 (unreported).
- Furman v. Georgia, 408 U.S. 238 (1972).
- Shatrughan Chauhan v. Union of India, (2014) 7 SCC 798.
[1] Jagmohan Singh v. State of UP, AIR 1973 SC 947.
[2] Bachan Singh v. State of Punjab, AIR 1980 SC 898.
[3] Priyanka Puri, Article 21: The Heart and Lifeline of the Fundamental Rights, Int’l J. For Multidisciplinary Research, Vol. 7, Issue 1 (Jan.-Feb. 2025),
[4] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
[5] Vasanta Sampat Dupare v. Union of India, Supreme Ct. of India, 2025 (unreported).
[6] Bachan Singh v. State of Punjab, AIR 1980 SC 898.
[7] Death Penalty Confirmed but Can Be Challenged Under Art. 32 Petition: SC, New Indian Express (Aug. 26, 2025),
[8] Death Penalty in India: A Comparative Study of Legal Grounds and Ongoing Debate, MultiSubject J. (2023),
[9] Machhi Singh v. State of Punjab, AIR 1983 SC 957.
[10] The Doctrine of Rarest of Rare: A Critical Analysis, Int’l J. of Innovative Res., Aug. 2022,
[11] R.G. Kar Medical College Case (Kolkata), 2025 (unreported).
[12] Neyyattinkara District Case (Kerala), 2025 (unreported).
[13] Supreme Court on Reconsideration of Death Sentence Under Art. 32, SCC Online Blog (Aug. 28, 2025),
[14] Manoj v. State of Madhya Pradesh, (2022) (unreported).
[15] SC Sets Aside Death Penalty in POCSO Case: When Does the Rarest of Rare Doctrine Truly Apply?, LawBeat (Sept. 10, 2025),
[16] Death Penalty in India: Legal Grounds and the Ongoing Debate, LegalEye (Feb. 28, 2022),
[17] Debate on Death Penalty: Should India Abolish It in 2025?, DoonLawMentor (Mar. 20, 2025),
[18] Furman v. Georgia, 408 U.S. 238 (1972).
[19] India Votes Against United Nations General Assembly Draft Resolution on Use of Death Penalty, NDTV (Nov. 13, 2018),
[20] The Death Penalty and International Law: A Global Perspective, Jusscriptum Law Blog (Mar. 26, 2025),
[21] Death Penalty: Damocles Sword Cannot Be Kept Hanging, Supreme Court Observer (Mar. 25, 2025),
[22] Human Rights and Constitutionality of Capital Punishment in India, South Asia Policy & Research Forum (May 20, 2024),
[23] Supreme Court Issues Guidelines on Processing of Mercy Petitions to States and UTs, Vision IAS (Dec. 10, 2024),
[24] Shatrughan Chauhan v. Union of India, (2014) 7 SCC 798.
[25] Capital Punishment in India, Wikipedia (last visited Sept. 21, 2025),
[26] Pardoning Powers of the President, Vajiram & Ravi UPSC,
[27] The Death Penalty in India: Legal Framework, Ethical Dilemmas, and the Challenge of Deterrence, Int’l J. of Law, Language & Religion (2025),
[28] Death Penalty and Its Validity in Indian and International Context – An Overview, IJLAE (June 2025),
[29] Constitutionality of Death Penalty, Indian Bar Association (Aug. 31, 2017),
