Published On: December 12th 2025
Authored By: Logavarshini S
Vellore Institute of Technology, Chennai
Introduction
The death penalty, or capital punishment, has always been one of the most contested aspects of criminal justice. It represents the State’s ultimate power, the authority to take away life in the name of justice. While some argue that the penalty serves as a deterrent and offers retribution for the most heinous crimes, others believe that it undermines human dignity and risks irreversible miscarriages of justice.
In India, the death penalty occupies a peculiar space. It remains legally valid and applicable to certain grave offences, but its actual enforcement is rare. The “rarest of rare” doctrine, evolved by the Supreme Court, has significantly limited its scope. Globally, however, the momentum is increasingly abolitionist, with more than two-thirds of nations having abolished capital punishment in law or practice. This article examines the constitutional basis of the death penalty in India, its judicial evolution, and the global trends that continue to shape the discourse.
Historical and Statutory Background
India inherited the framework of capital punishment from the colonial criminal code. The Indian Penal Code, 1860 prescribed death for offences such as murder, waging war against the State, and later for terrorism-related crimes. The Code of Criminal Procedure (CrPC), 1973 introduced a major reform in this regard: Section 354(3) required judges to record “special reasons” before awarding the death penalty, thereby treating it as an exception rather than the rule.[1]
Theories of punishment that influenced this framework included deterrence where harsh punishment discourages future crime and retribution where the wrongdoer must “pay” for the harm caused. Over time, however, Indian criminal jurisprudence began to incorporate reformative ideals, focusing on rehabilitation alongside punishment.[2] Legislative changes, including appeal and review processes, further strengthened safeguards around capital sentencing.
Constitutional Provisions and Early Debates
The constitutional debate around the death penalty revolves primarily around three fundamental rights:
- Article 21 – “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[3]
- Article 14 – Equality before law.
- Article 19 – Freedom of speech, expression, and movement, subject to reasonable restrictions.
Abolitionist arguments emphasise that capital punishment violates the spirit of Article 21, since life is protected as a fundamental right. The irreversibility of execution, coupled with the possibility of wrongful conviction, raises deep concerns. Proponents, however, argue that the penalty is constitutionally valid so long as it is backed by fair procedure and applied only in exceptional cases.
The Law Commission’s 35th Report (1967) recommended retaining the death penalty at that time, citing India’s diverse social conditions, varying levels of education, and the need to preserve public order.4 Although the Commission acknowledged international debates, it concluded that abolition might not be suitable for India’s realities in the 1960s.
Landmark Judicial Pronouncements
Jagmohan Singh v. State of Uttar Pradesh (1973)
The first constitutional challenge to the death penalty was raised here. Petitioners argued that the penalty violated Articles 14, 19, and 21. The Supreme Court upheld its validity, holding that judges followed established legal procedure and considered relevant circumstances before awarding death. The Court also clarified that the Indian Constitution does not contain a prohibition against “cruel and unusual punishment,” unlike the U.S. Constitution.[5]
Rajendra Prasad v. State of Uttar Pradesh (1979)
Justice Krishna Iyer adopted a restrictive approach, stating that the death penalty should be imposed only in exceptional circumstances where public order was at stake. He also stressed that “special reasons” must be clearly recorded.[6] This judgment began to lay the foundation for narrowing the scope of capital punishment.
Bachan Singh v. State of Punjab (1980)
This is the watershed case. By a 4:1 majority, the Supreme Court upheld the constitutional validity of the death penalty but introduced the “rarest of rare” doctrine. The Court directed that capital punishment must only be imposed where life imprisonment is wholly inadequate, and both the nature of the crime and the criminal’s circumstances must be weighed.[7]
Machhi Singh v. State of Punjab (1983)
Building upon Bachan Singh, the Court elaborated criteria for identifying “rarest of rare” cases such as the manner of commission, motive, magnitude, and victim’s status.[8] These categories gave the doctrine a more practical framework.
Later Developments and Recent Jurisprudence
Over time, the judiciary expanded safeguards around sentencing. In Santosh Bariyar v. State of Maharashtra (2009), the Court stressed the need for individualised sentencing and warned against mechanical application of the “rarest of rare” rule.[9]
In Manoj v. State of Madhya Pradesh (2023), the Court mandated psychiatric evaluation of convicts, assessment of post-conviction conduct, and detailed mitigation analysis before confirming a death sentence.[10]
More recently, in Vasanta Sampat Dupare v. Union of India (2025), the Supreme Court reaffirmed that even after confirmation, the sentencing process could be revisited under Article 32 to ensure complete compliance with procedural safeguards.11 This strengthened the link between the death penalty and constitutional protections under Articles 14 and 21.
Procedural Safeguards and Sentencing Practices
Current judicial practice requires courts to consider multiple factors: the convict’s mental health, background, prospects for reformation, and conduct in prison. Both prosecution and defence may submit extensive material at the sentencing stage. This ensures that the decision to impose the death penalty is not taken lightly.[12]
Yet criticism remains. Scholars argue that sentencing is still inconsistent across High Courts, with disparities often linked to the quality of legal representation. The Law Commission’s 262nd Report (2015) went so far as to recommend abolition of the death penalty for all crimes except terrorism, citing its arbitrary application and lack of deterrence.[13]
Statistical Overview: Death Sentences and Executions
India sentences dozens of people to death each year, but executions are extremely rare. Between 1995 and 2020, only a handful were executed including Dhananjoy Chatterjee (2004), Ajmal Kasab (2012), Afzal Guru (2013), and the four Nirbhaya convicts (2020).[14]
In 2024, several dozen individuals were sentenced to death, but most sentences were commuted to life imprisonment on appeal. This reflects judicial caution and the practical effect of the “rarest of rare” standard.[15]
Global Trends and International Perspectives
Globally, capital punishment is on the decline. More than 150 countries have abolished it in law or practice. Europe, Latin America, and much of Africa have moved firmly towards abolition. Only about 55 countries still retain the death penalty, and fewer conduct executions each year.[16]
The International Covenant on Civil and Political Rights (ICCPR) permits the death penalty but restricts it to the “most serious crimes.” The Second Optional Protocol to the ICCPR calls for total abolition. The United Nations regularly passes resolutions urging member states to abolish executions.[17]
Retentionist countries include China, Iran, Saudi Arabia, Iraq, the United States, and India. Among them, China and Iran carry out the highest number of executions annually. In contrast, India, while retaining the law, uses it sparingly compared to most.[18]
Ethical, Social, and Contemporary Challenges
Reformative Approach: Modern sentencing trends increasingly focus on rehabilitation. Courts are required to consider whether a convict can be reformed before resorting to capital punishment.
Possibility of Error: Wrongful convictions remain a major argument against the death penalty. The irreversibility of execution makes errors catastrophic. International studies highlight cases where death row inmates were later exonerated.[19]
Public Opinion: Support for the death penalty in India fluctuates. After heinous crimes, such as the Nirbhaya case, public demand for capital punishment surges, but long-term support tends to be inconsistent.[20]
International Pressure: UN bodies, NGOs, and human rights groups consistently push for India to abolish capital punishment. They argue that the “rarest of rare” doctrine proves that the penalty is unnecessary.[21]
Arbitrariness and Access to Justice: Disparities in representation, socio-economic background, and regional practices raise concerns about fairness.[22]
Conclusion
The constitutional validity of the death penalty in India rests on a delicate balance between judicial precedents, statutory safeguards, and evolving human rights principles. While the Supreme Court has upheld its validity, it has also ensured that executions are confined to the “rarest of rare” cases, backed by rigorous scrutiny and procedural safeguards.
Globally, the trajectory is clear, capital punishment is steadily declining. India, though not an active executioner, continues to occupy a middle ground: neither abolitionist nor among the highest users of the penalty.
The future of the death penalty in India will likely depend on judicial innovation, societal reform, and sustained engagement with international human rights standards. Whether India eventually abolishes it or continues its cautious retention, the debate over justice, dignity, and deterrence will remain at the heart of its criminal jurisprudence.
References
1 Code of Criminal Procedure, 1973, s. 354(3).
2 Law Commission of India, 35th Report (1967).
3 Constitution of India, Art. 21
4 Ibid., Art. 14 and Art. 19.
5 Jagmohan Singh v. State of U.P., (1973) 1 SCC 20.
6 Rajendra Prasad v. State of U.P., (1979) 3 SCC 646.
7 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
8 Machhi Singh v. State of Punjab, (1983) 3 SCC 470.
9 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
10 Manoj v. State of Madhya Pradesh, (2023) 2 SCC 353
11 Vasanta Sampat Dupare v. Union of India, (2025) SCC OnLine SC 112
12 Indian Penal Code, 1860; CrPC, 1973.
13 Law Commission of India, 262nd Report (2015).
14 Amnesty International, Death Penalty Report (2020).
15 National Crime Records Bureau (NCRB) Reports, 2024.
16 United Nations, “Status of the Death Penalty Worldwide,” UN Human Rights Office (2024). 17 ICCPR, 1966; Second Optional Protocol, 1989
18 Amnesty International, Global Report on Death Sentences and Executions (2025).
19 Innocence Project, Exonerations Report (2022).
20 Centre for the Study of Developing Societies (CSDS), Public Opinion Surveys on Death Penalty (2020).
21 UN General Assembly Resolutions on Moratorium on the Death Penalty (2022, 2024).
22 Project 39A, National Law University Delhi, Death Penalty India Report (2016).
