Published On: December 17th 2025
Authored By: Susmitha Chimmiry
KL College of Law
ABSTRACT
Capital punishment, commonly known as the death penalty, is legally permitted in India for the most serious crimes such as murder, rape, and other serious offences as defined by law. Its origins lie in the principle of retributive justice, aiming to proportionately punish offenders for the harm they’ve caused, deter future crimes, and offer a path toward healing for both victims and offenders While Indian law allows for the death penalty, it is restricted to the “rarest of rare” cases, a doctrine that underscores its exceptional application.. The Bharatiya Nyaya Sanhitha, 2023 outlines various forms of punishment, but the increasing crime rate led ongoing debates about their effectiveness. Death penalty, in particular remains a controversial issue in both within India and globally, the analysts questioning its deterrence value and its alignment with constitutional principles especially article 21, which guarantees right to life and personal liberty. This article aims to critically examine the constitutional validity of death penalty and its global view on death penalty.
Key words: heinous, offence, deterrence, retributive, death penalty.
INTRODUCTION
The death penalty, also known as capital punishment, represents the most extreme form of penal sanction that can be imposed on individuals convicted of the most serious crimes under criminal law. It entails the lawful taking of a convict’s life, executed in accordance with procedures laid out by statute. The term capital originates from the Latin word capitalis, meaning which means concerning the head therefore, capital punishment means to lose one’s head. It is the mode of execution of death penalty under BNSS[1]. While there is ongoing debate about its effectiveness, particularly regarding its deterrent value, the death penalty continues to play a significant role in upholding societal order. Though not universally effective in deterring crime, it does instill fear in some individuals, potentially discouraging them from engaging in grave criminal acts.
According to the Merriam-Webster Dictionary, the death penalty also known as capital punishment is defined as the imposition of death as a legal penalty for the most serious crimes. It is typically reserved for individuals convicted of the gravest offences under criminal law. On a global scale, around 142 countries have abolished capital punishment, reflecting a growing international shift toward more humane forms of justice. However, 56 nations continue to enforce it, with India among those that still uphold the death penalty as a legal sanction.[2]
The continued use of the death penalty is often justified on two primary grounds: first, as a deterrent to potential offenders by instilling fear of severe consequences; and second, as a means to uphold discipline, enforce the rule of law, and foster a society free from serious criminal behavior.
However, growing international developments have prompted a reevaluation of whether capital punishment constitutes cruel and inhuman treatment. Notably, in 1995, South Africa’s Constitutional Court ruled the death penalty unconstitutional, despite widespread public support. Additionally, the adoption of the Rome Statute by 120 countries to establish the International Criminal Court marked a significant shift deliberately excluding capital punishment even for the gravest crimes such as genocide, crimes against humanity, and war crimes.[3]
Numerous international bodies, including Amnesty International and Human Rights Watch, have consistently criticized capital punishment as a violation of fundamental human rights, arguing that such executions strip prisoners of their dignity and liberties. In recognition of this global concern, October 10th is observed annually as the World Day Against the Death Penalty.[4] Despite being a signatory to the International Covenant on Civil and Political Rights which advocates for a gradual move toward the abolition of the death penalty India’s stance appears to diverge from this global trend, maintaining its commitment to capital punishment in select circumstances.[5] This article aims to analyze the constitutional validity of death penalty and comparing with global trends.
HISTORICAL BACKGROUND OF DEATH PENALTY
Capital punishment in India has ancient origins, tracing back to the Vedic period, where it was regarded as a tool to safeguard society and preserve religious and moral order by removing wrongdoers. Foundational texts such as the Manusmriti and Arthashastra advocated the death penalty for grave offences including treason, murder, and theft. These scriptures emphasized the importance of strict punitive measures to uphold social stability and protect the interests of the state.[6]
Similarly, ancient texts such as the Bhagavad Gita and the Dharmashastra endorsed the act of killing under specific circumstances as a moral obligation, even when the offender was a person of status or respect. These scriptures emphasized duty and justice over personal ties, reinforcing the idea that moral responsibility sometimes necessitates harsh measures. As human societies transitioned from tribal communities to organized civilizations, the death penalty emerged as a standardized response to grave offences. Legal codes like the Code of Hammurabi institutionalized retributive justice, famously encapsulated in the principle of “an eye for an eye,” reflecting the belief that punishment should mirror the severity of the crime.”[7]
Religious texts such as the Bible have historically supported the death penalty, prescribing it for offences like murder, kidnapping, and witchcraft. Similar endorsements appear in the Jewish Torah, the Christian Old Testament, and ancient Greek legal traditions. In England, capital punishment was initially reserved for serious crimes like treason and arson during the 1500s. However, by the 1700s, the list of capital offences had expanded significantly, resulting in widespread application of the death sentence.
The ethical question of whether the state has the right to take a life as punishment raises profound concerns about human rights, morality, and the foundations of a just society. This debate invites a deeper examination of the constitutional legitimacy and judicial handling of capital punishment, especially in light of its historical development and the varied perspectives that influence its place in contemporary legal systems. Over time, methods of execution have evolved from gruesome public spectacles to more private and ostensibly humane procedures. Today, many nations have abolished the death penalty, deeming it incompatible with the principles of human dignity and fundamental rights.[8]
CONSTITUTIONAL VALIDITY OF DEATH PENALTY
In India, the death penalty is sanctioned for specific offences listed under the Bharatiya Nyaya Sanhitha (BNS), 2023, as well as under other applicable statutes. The prescribed method of execution is hanging, as outlined in Section 393(5) of the BNS, which mandates death by hanging until the individual is declared dead. Despite its legal validity, capital punishment is treated as an exceptional measure within the Indian judicial framework. Life imprisonment remains the default sentence for most serious crimes, with the death penalty reserved strictly for the most extraordinary circumstances those falling under the “rarest of the rare” doctrine established by the Supreme Court.
Under the Bharatiya Nyaya Sanhitha (BNS), the death penalty is prescribed for 13 specific offences, including criminal conspiracy (Section 61), murder (Section 101), waging war against the Government of India (Section 147), abetment of mutiny (Section 160), and dacoity accompanied by murder (Section 310). Legislative amendments in 2013 and 2018 further expanded the scope of capital punishment to include certain sexual offences, reflecting a shift toward stricter penalties for crimes of extreme brutality and also several other statutes also authorize the death penalty in specific contexts. These include the Narcotic Drugs and Psychotropic Substances (NDPS) Act, military and security laws, and anti-terrorism legislation each designed to address threats to national security and public safety with the severest legal consequences.
The constitutionality of capital punishment in India remains a subject of ongoing debate and judicial scrutiny. The Supreme Court has frequently examined its legal validity in light of Articles 14, 19, and 21 of the Indian Constitution, which guarantee the rights to equality, freedom, and life with personal liberty. These provisions raise important questions about whether the death penalty aligns with the core principles of justice, human dignity, and constitutional morality.[9]
JUDICIAL INTERPRETAION ON DEATH PENALTY
In India, the process for awarding, executing, and pardoning capital punishment is clearly outlined in the Constitution and the Bharatiya Nagarik Suraksha Sanhitha. A Sessions Court can impose the death penalty, but it must be confirmed by the respective High Court. If the High Court upholds the sentence, the convict may appeal to the Supreme Court, provided they obtain special leave to do so. If the appeal fails, the convict still has the option to file a mercy petition with the President of India, who holds the constitutional power to grant clemency. Similar powers are also vested in the Governor of the concerned state.
The constitutional validity of the death penalty in India was first challenged in the landmark case Jagmohan Singh v. State of U.P,[10] The petitioner argued that capital punishment violates fundamental rights under Article 19, that judicial discretion in awarding the death sentence lacks clear standards and thus breaches Article 14, and that there is no rational basis for distinguishing between cases warranting death and those deserving life imprisonment. After considering both sides, the constitutional bench upheld the legality of the death penalty, stating that Article 21 permits the deprivation of life, provided it follows due process of law.
The 1974 case Ediga Anamma v. State of Andhra Pradesh[11] is a significant ruling on capital punishment in India. Justice Krishna Iyer reduced the convict’s death sentence to life imprisonment, considering personal factors such as age, gender, and socio-economic status. He emphasized that courts should consider the offender’s background and the circumstances under which the crime was committed before deciding on the punishment.
The case of Bachan Singh v. State of Punjab,[12] is credited with establishing the “rarest of rare” doctrine in Indian criminal jurisprudence. Although the judgment did not fully define the doctrine, it underscored the importance of evaluating both aggravating and mitigating factors when determining whether the death penalty is appropriate. This marked a significant shift toward individualized sentencing, requiring courts to carefully assess the specific circumstances of each case before imposing capital punishment.
In the landmark case Macchi Singh v. State of Punjab,[13] the Supreme Court of India elaborated on the “rarest of rare” doctrine by establishing specific criteria to guide the awarding of the death penalty. The Court emphasized that judges must assess several key factors before imposing capital punishment: the manner in which the murder was committed, the motive behind the act, whether the crime was anti-social or socially repugnant, the overall gravity and scale of the offense, and the identity or vulnerability of the victim. These guidelines aimed to ensure that the death penalty is reserved only for the most heinous and exceptional cases.
In the 1989 case Allauddin v. State of Bihar,[14] Justice Ahmadi emphasized that the death penalty should not be imposed as a routine measure. He asserted that capital punishment must only be awarded when there are compelling reasons and exceptional circumstances that justify such a sentence.
Since gaining independence, India has carried out over 700 executions. Between 2000 and 2014, trial courts sentenced 1,810 individuals to death; however, more than half of these sentences were later commuted to life imprisonment, and 443 convicts were acquitted by higher courts. Notable executions up to 2015 include Dhananjoy Chatterjee (2004), Mohammad Ajmal Amir Kasab (2012), Afzal Guru (2013), and Yakub Memon (2015). The most recent execution occurred in 2020, involving the perpetrators of the Delhi gang rape case.
In Manoj v. State of Madhya Pradesh,[15] the Supreme Court emphasized that the principles laid down in Bachan Singh must be applied individually to each case, considering its unique circumstances. The Court also introduced detailed guidelines to help assess the potential for rehabilitation of the accused.
In the case of Mohd. Arif @ Ashfaq v. State (NCT of Delhi)[16], the Court upheld the death sentence of a Lashkar-e-Taiba militant involved in the 2000 Red Fort attack, which claimed three lives, including two army personnel. The review petition challenging his conviction and sentence was dismissed, with the Bench asserting that acts of terrorism threatening India’s unity and sovereignty represent the most severe aggravating circumstances, outweighing any mitigating factors presented.
GLOBAL TRENDS:
Across the globe, there is a growing shift toward either abolishing or significantly limiting the use of capital punishment. More than 140 nations have done away with the death penalty, either through legislation or in practice. Under international law specifically the International Covenant on Civil and Political Rights (ICCPR) the death penalty is permitted only for the gravest offenses and must be accompanied by strict procedural protections.[17]
Globally, the death penalty faces growing condemnation, with a majority of nations supporting a moratorium as a preliminary step toward full abolition. As of now, 144 countries have abolished capital punishment either in law or in practice, and in 2024, four additional nations advanced legal reforms aimed at ending its use. [18]
The United Nations General Assembly has consistently called on member states to adopt a moratorium on executions, most recently through a resolution passed in 2022. While these resolutions are not legally binding, they reflect an emerging international consensus against the death penalty. India, however, voted against the resolution, maintaining its stance on retaining capital punishment.[19]
The application of the death penalty varies significantly across regions. In Asia and the Middle East, it remains prevalent and is often imposed for a wide range of offences beyond murder. Conversely, many countries in Europe, Latin America, and Africa have moved toward complete abolition. These regional differences underscore the impact of cultural values, legal traditions, and historical experiences in shaping national approaches to capital punishment.[20]
CONCLUSION
In conclusion, while the global momentum leans toward abolishing the death penalty with over 140 countries having done so in law or practice India continues to uphold its constitutional validity. While Articles 21 and 19 of the Indian Constitution safeguard the right to life and personal liberty, the Supreme Court has maintained that capital punishment may be applied in the “rarest of the rare” cases, ensuring it is neither arbitrary nor excessive.
India’s approach reflects a careful balance between international human rights standards and domestic legal and societal needs. Though its deterrent effect may not be absolute, the death penalty still plays a limited yet significant role in preventing the most heinous crimes. Rather than pursuing complete abolition, its continued use should remain exceptionally governed by rigorous judicial oversight and a strong sense of moral responsibility.
REFERENCES
[1] Bharatiya Nagarik Suraksha Sanhitha, Section 393(5), When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.
[2] Mr. Radha Ranjan & Mr. Shivam Raj, constitutional validity and judicial interpretation of death penalty in India, INTRODUCTION, vol 5(1), JVPA,2788, 2789,2795 (2024).
[3] Dr. S. Muralidhar, Hang them now, hang them not: India’s travails with the death penalty, INTRODUCTION, vol 40, IELRC, 01,01,(1998).
[4] Supra note 2.
[5] Supra note 3.
[6] Shreyaa Patnaik, Capital Punishment In India And Constitutional Validity For Capital Punishment, ANCIENT AND COLONIAL ORIGINS, Vol 13, IJCRT,463,464, 466 (2025).
[7] Dr. Pooja Sood & Jyoti Mangal, Constitutional Validity of Death Penalty in India: A Legal Study, HISTORICAL BACKGROUND, Vol. 61, No. 2, Panjab Univ. L. Rev., 116,119 (2022).
[8] Supra note 2.
[9] Himani Kaushik, CONSTITUTIONAL VALIDITY OF DEATH SENTENCE, volume 2, IJIRL, 01,01(2022).
[10] Jagmohan Singh v. State of U.P 1973 AIR 947 (India).
[11] Ediga Anamma v. State of Andhra Pradesh 1974 AIR 799 (India).
[12] Bachan Singh v State of Punjab AIR 1980 SC 898 (India).
[13] Macchi Singh v. State of Punjab 1983 AIR 957 (India).
[14] Allauddin v. State of Bihar 1989 AIR 1456 (India).
[15] Manoj v. State of Madhya Pradesh (2022) CRIMINAL APPEAL NOS. 248-250 OF 2015 (India).
[16] Mohd. Arif @ Ashfaq v. State (NCT Of Delhi) (2022) CRIMINAL APPEAL NOS. 98-99 OF 2009 (India).
[17] Supra note 6.
[18] Death penalty information center, The death penalty in 2024, United States Fifth in Known Executions Worldwide, Behind Iran, Saudia Arabia, Iraq, and North Korea( last visited Sep. 19, 2025, 7:07 PM), https://deathpenaltyinfo.org/research/analysis/reports/year-end-reports/the-death-penalty-in-2024/international.
[19] Supra note 6.
[20] Supra note 2.
