Death Penalty in India: Constitutional Validity and Global Trends

Abstract 

In India, the death penalty is a hot topic in the criminal justice system. It tries to balance the  right to life promised by the Constitution with the State’s need for punishment and  prevention. This paper takes a look at the history and ideas behind capital punishment,  explains the legal framework, and explores how it aligns with Article 21 of the Indian  Constitution. Important Supreme Court cases like Jagmohan Singh, Bachan Singh, Machhi  Singh, and Shatrughan Chauhan show how the rules around the “rarest of rare” principle have  changed and outline measures to stop unfair sentences. The paper also discusses the  suggestions made in the 262nd Law Commission Report, placing India’s situation within the  larger picture of international human rights law and the global move towards abolishing the  death penalty. The paper concludes that while the constitutional validity of death penalties  has been upheld again and again, its forced implementation needs safeguards from a duly  constituted procedure, and this in itself should foster serious discussions into whether it is  still deemed to exist in its current form due to emerging world standards.

Introduction 

One of the most controversial issues in criminal justice systems around the world is still the  death penalty. Some countries still uphold the death penalty as the last resort for the most  serious crimes, but several have abolished it because they believe it is incompatible with  changing human rights standards. 

India one of the few nations in the world that still allows the death sentence under certain  conditions. This instrument will support the concept of justice when utilized appropriately,  taking into account both mitigating and aggravating circumstances, and primarily offering  legal representation to individuals accused who are from the lower socioeconomic stratum  and cannot pay the minimal costs required to employ a lawyer.[1] The constitutionality of the  death penalty in India has generated intense disputes among academics, decision-makers, and  the general public in the field of legal and ethical discourse.  

Many international groups have criticized such brutal killings that deprive prisoners of their  rights and liberties. World Day Against the Death Penalty is observed on October 10th of  each year. The idea of the death penalty lacks clear guidelines and is a very complex and  flexible concept. This can occasionally turn into a serious issue that needs to be looked into,  examined, and fixed. 

Death Penalty 

The death penalty, also known as capital punishment, is a punishment in which a person  convicted of an offense is sentenced to death. This is considered the most severe form of  punishment, which is reserved for crimes that are heinous or the rarest of the rare. It helps to  create deterrence in society so that no other person tries to commit an offense. Different  countries approach this issue in distinct ways, with some repealing it and others retaining it  for rare situations. 

Theories of Punishment 

1. Retribution Theory – ‘Tribution’ in Latin means “to pay back.” According to this  theory, the victim should get moral justice. The criminal should suffer the same  amount of pain that has been caused to the victim, i.e., the pain must be proportional.  This theory is also known as the Theory of Vengeance. If justice is not served  properly, then there will be personal vengeance, where the victim himself takes  revenge for the pain he has suffered, and a lack of trust towards the state. 
2. Deterrent Theory – It means creating a fear of punishment in like-minded people in  society. It tries to stop future crimes and sets a deterrent for the general public,  preventing them from engaging in any kind of criminal conduct. 
3. Preventive Theory – It is also known as the Theory of Disablement. It focuses on  ensuring that crime does not happen again. Under this theory, a criminal is punished  either with life imprisonment or the death penalty. It differs from the deterrence  theory as it focuses on the particular individual who has committed a crime, not on  society in general. 
4. Reformative Theory – According to this theory, some anti-social factors exist in our  society, and if we remove them by providing education, training, skills, etc., then that  person will become responsible. This theory mainly focuses on reforming the person  through rehabilitation of the offender and making them a law-abiding citizen. 

According to the retributive theory, a person who ends another person’s life should receive  the same treatment. According to the deterrence theory, people are deterred from committing  significant crimes by the threat of execution. According to the preventative theory, it’s a  means of getting rid of a hazardous individual so they can’t hurt anyone again. However, the death sentence is opposed by the reformative view since it denies the offender the opportunity  to grow and change. 

Legal Framework and Constitutional Validity 

The following offenses are punishable by death under the Indian Penal Code (IPC), which is  now known as the Bharatiya Nyaya Sanhita (BNS): 

• Section 302 IPC/103BNS talks about Murder  
• Section 121 IPC/147 BNS- Waging War against Government 
• Section 376A IPC/66 BNS- Rape  

The Bharatiya Nagarik Suraksha Sanhita (BNSS), formerly known as the Code of Criminal  Procedure (CrPC), offers procedural safeguards to control capital sentencing:  According to Section 354(3) CrPC and 393(3) BNSS, “special reasons” must be documented  before the death penalty is imposed.  

Together, these clauses guarantee that the death penalty is subject to judicial and executive  review, lowering the possibility of arbitrary sentencing. Mercy petitions under Articles 72[2] and Article 161[3]of Indian Constitution permit the President and Governors to commute death  sentences. 

The Indian death penalty is based on Article 21 of the Constitution[4], which protects  individual liberty and the right to life but permits the taking of a person’s life through a  “procedure established by law.” Accordingly, as long as due process is observed, the death  penalty is constitutionally permissible. The Supreme Court has rendered numerous significant  rulings about the interpretation of Article 21 of Indian Constitution in connection with the  death penalty. 

Bachan Singh v State of Punjab, 1980[5], it was the most important court ruling on the death  penalty in India. A Constitution Bench uphold the constitutionality of death penalty by  establishing the “rarest of rare” doctrine, which stipulates that the death penalty should only  be applied in the most extraordinary circumstances involving severe culpability, situations in  which life in prison would clearly be an insufficient alternative. The Court ruled that only in  cases when “the alternative option is unquestionably foreclosed” may the death penalty be  used. Before inflicting the death penalty, it instructed courts to take into account both  aggravating and mitigating circumstances of the offense and the offender. 

Machhi Singh v State of Punjab[6], in this case the Supreme Court went on to elucidate the  guidelines established in Bachan Singh’s case concerning the use of the death penalty. The  court reaffirmed the “rarest of rare” doctrine and offered a framework for determining which  situations demand for the death penalty to be applied. The ruling underlined how crucial it is  to take into account each case’s unique facts and circumstances before imposing the death  penalty on a person. 

The Supreme Court upheld the “rarest of rare” theory in the 2009 decision of Santosh  Kumar Satishbhushan Bariyar v. State of Maharashtra[7], reiterating that the death penalty  ought to be saved for the most extreme circumstances involving the most horrible crimes.  The ruling underlined the necessity of applying the death penalty consistently and  transparently, as well as the significance of balancing the seriousness of the crime with the  offender’s guilt. 

The Indian Supreme Court has affirmed that the death penalty is constitutional and subject to  the “rarest of rare cases” doctrine, meaning that it should be applied only in the most  exceptional circumstances, where no other punishment or remedy would be suitable for the  offense committed. 

Law Commission Report on Death Penalty in India 

35th Report, 1967[8] 

The 35th Law Commission Report examined whether the death penalty should be abolished  in India. The main findings were:  

Considering India’s socio-political circumstances, the death penalty was required for serious  offenses, and the country was not prepared for abolition because of worries about public  safety and crime deterrence.  

The death sentence was still used in India because of its legal system, even if global trends  supported its repeal. 

262nd Report, 2015[9] 

With the 262nd Law Commission Report, India’s position on the death penalty changed.  It suggested: 

The death penalty is abolished for all crimes other than those connected to terrorism.  Acknowledging that life in jail might be a suitable substitute, bringing India into line with  International Human Rights trends. 

This change in strategy demonstrates India’s developing position on the death penalty, which  strikes a balance between justice, deterrent, and human rights issues. 

Global Trends 

United Kingdom 

Being a founder of the common law tradition, the UK’s stance on the death penalty has had a  big impact on other commonwealth countries. The Homicide Act of 1957, which restricted  the death sentence to certain types of murder, marked the beginning of the UK’s abolitionist  path. The Murder (the Abolition of Death Penalty) Act of 1965 marked the complete  elimination of the death sentence for murder. It was rendered permanent in 1969 after first  suspending it for five years. The Crime and Disorder Act of 1998 completed the UK’s  transition to complete abolition of the death penalty for the remaining crimes, including  treason and piracy. This course was impacted by a number of seminal cases, such as R v.  Ellis (1955), which concerned Ruth Ellis’ execution and caused a great deal of public debate  over the fairness of the death penalty. The case of Derek Bentley, who was posthumously  pardoned in 1998, brought attention to the dangers of putting people with intellectual  disabilities to death and fueled public opposition to the death penalty. 

United States 

The death penalty is still used in the US, although state-by-state variations exist in how it is  applied. Twenty-seven states still enforce the death penalty as of 2024, while twenty-three have abolished it. 

Key issues have been decided by the US Supreme Court regarding the death penalty: Furman v. Georgia[10], which held that arbitrary sentencing was unconstitutional under the  Eighth Amendment, temporarily stopped executions.  

The death sentence was reintroduced in Gregg v. Georgia[11], as long as the proper procedures  were followed.  

Additionally, the federal government uses the death penalty for certain offenses like  espionage and terrorism. 

Canada 

The death penalty was abolished entirely in Canada after being retained with certain  limitations. Murder, treason, and rape were all punishable by death under the 1892 Canadian  Criminal Code. As the Criminal Law evolved, the death penalty was subject to further  restrictions.  

The 1961 Amendment Act separated murder into two categories: capital and non-capital.  In Canada, the last executions occurred in 1962. Following a de facto moratorium, Parliament  decided in 1976 to replace the death penalty for common crimes with a mandatory life  sentence for murder. Technically, the death penalty for military crimes was still permitted  until 1998, when it was outlawed altogether. 

R v. Turpin (1989)[12], which addressed equal protection claims to differential treatment in  murder cases, is one of the important Canadian cases.  

The Supreme Court of Canada held in United States v. Burns (2001)[13] that guarantees that  the death sentence would not be applied was necessary for extradition to face the death  penalty. 

International Human Right Framework 

The Universal Declaration of Human Rights (UDHR)[14], adopted in 1948, establishes  fundamental human rights. Article 3 affirms the right to life, liberty, and security. While the  

UDHR doesn’t explicitly ban the death penalty, its emphasis on human dignity is widely  interpreted as opposing it. The UDHR has significantly influenced international treaties and  national laws, promoting abolitionist policies. Many countries cite Articles 3 and 5  (prohibiting cruel punishment) to challenge capital punishment’s legality. The UDHR paved  the way for agreements like the International Covenant on Civil and Political Rights  (ICCPR). 

Article 6 of the ICCPR protects the right to life and addresses capital punishment. It states  every person has the right to life, protected by law, and prohibits arbitrary deprivation of life.  In countries with the death penalty, it’s restricted to the “most serious crimes,” generally  intentional homicide, excluding offenses like drug trafficking. Article 6(4) grants those  sentenced to death the right to seek pardon and judicial review. Executions of minors and  pregnant women are strictly prohibited under Article 6(5).[15] 

The Second Optional Protocol to the ICCPR (1989) is the sole international treaty  demanding the abolition of the death penalty. Ratified by 92 countries as of 2024, it requires  signatories to permanently eliminate capital punishment. Regional treaties also support this  trend: European Convention on Human Rights (ECHR) (Protocols 6 & 13) prohibits  capital punishment, American Convention on Human Rights (ACHR) encourages  abolition in the Americas, and the African Commission has repeatedly called for a  moratorium on executions. 

Despite growing international pressure to abolish the death penalty, India’s position on the  matter is similar to that of a small number of nations that still practice it. The United Nations  and other human rights organizations have urged for the universal abolition of the death  sentence, citing concerns about its discriminatory application, irreversibility, and lack of  proven deterrence impact. 

Conclusion 

The death penalty has been a strict form of punishment since ancient times, used in India to  ensure that heinous offenders pay with their lives and to instill fear in criminals. However,  statistics indicate that it has failed to reduce such crimes. India recognizes human life as a  basic right under Article 21 of the Constitution. This paper examines the death penalty’s  meaning and context in India, weighing it against human rights. While capital punishment  may be warranted for severe crimes, it should be limited to the rarest cases where mercy is  not an option. In these instances, the death penalty aligns with human rights principles as  outlined by the ICCPR for non-abolishing countries, albeit with restrictions. The Supreme  Court has maintained that it is not unconstitutional, as the Constitution’s framers did not  intend its abolition.

References

1. Bachan Singh v. State of Punjab (1980) 2 SCC 684
2. Article 72 of Indian Constitution, 1950 
3. Article 161 of Indian Constitution, 1950 
4. Article 21 of Indian Constitution, 1950 
5. Bachan Singh v. State of Punjab (1980) 2 SCC 684
6. Machhi Singh v State of Punjab,1983 AIR 957: 1983 SCC (3) 470. 
7. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498. 
8. S3waas. Available at:  https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081670.pdf  (Accessed: 19 September 2025). 
9. S3waas. Available at:  https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022081670.pdf  (Accessed: 19 September 2025).
10. Furman v. Georgia, 408 U.S. 238 (1972) 
11. Gregg v. Georgia, 428 U.S. 153 (1976) 
12. R. v. Turpin, [1989] 1 S.C.R. 1296 
13. United States v. Burns, [2001] 1 S.C.R. 283 
14. Universal declaration of human rights (no date) United Nations. Available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights (Accessed: 20 September 2025). 

15. International Covenant on Civil and Political Rights | Ohchr. Available at:  https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and political-rights (Accessed: 20 September 2025).