Death Penalty in India: Constitutional Validity and Global Trends

Abstract

The death penalty in India remains one of the most debated aspects of the criminal justice system.It’s a legal process where the state executes a person as punishment for a crime. India is one of the few countries that still has the death penalty, raising questions of law, morality, and human rights. While the Constitution does not expressly address capital punishment, the Supreme Court has upheld its validity through landmark rulings such as Jagmohan Singh v. State of Uttar Pradesh (1973), Bachan Singh v. State of Punjab (1980), and Machhi Singh v. State of Punjab (1983), which collectively evolved the “rarest of the rare” doctrine. This doctrine restricts the death penalty to exceptional cases, ensuring life imprisonment remains the norm. Globally, however, the trend is shifting towards abolition, with most countries banning or limiting the practice, leaving India among the few democracies that retain it. Supporters of the death penalty in India argue it serves as deterrence, retribution, and a safeguard against future crimes, while critics highlight the risks of wrongful convictions, human rights violations, lack of deterrence evidence, discriminatory application, and denial of reformation. The debate reflects a clash between demands for strict justice and the principles of a reformative justice system. Although its constitutionality is settled, India’s stance contrasts with global human rights trends, and its future depends on judicial and legislative choices. This article explores the constitutional validity of the death penalty in India. It also looks at how India’s stance compares to global trends.

Constitutional Validity of the Death Penalty in India

The Indian Constitution doesn’t explicitly state whether the death penalty is legal. However, several Supreme Court rulings have clarified its position. These judgments have shaped the “rarest of the rare” doctrine, which now governs how capital punishment is applied.

The Rarest of the Rare Doctrine 

The constitutionality of the death penalty has been challenged multiple times in Indian courts. The main arguments against it are that it violates the fundamental rights to equality (Article 14), freedom of speech (Article 19), and, most importantly, the right to life and personal liberty (Article 21).

A key case that addressed this was Jagmohan Singh v. State of Uttar Pradesh (1973). The Supreme Court upheld the death penalty’s constitutionality. It ruled that capital punishment was not a violation of Articles 14, 19, and 21. The Court said that a judge’s decision to impose the death penalty is based on the facts and circumstances of each case, and this procedure is “established by law” as required by Article 21.

This position was further cemented in Bachan Singh v. State of Punjab (1980). This landmark case introduced the rarest of the rare doctrine. The Court ruled that the death penalty should only be given in exceptional cases where the crime is so heinous that life imprisonment is simply not an option. The court stated that judges must provide special reasons for imposing a death sentence. This doctrine was meant to limit the use of capital punishment and ensure it is not used arbitrarily.

The Supreme Court later explained the “rarest of the rare” concept more in the Machhi Singh v. State of Punjab (1983) case. It laid down a list of aggravating and mitigating factors for courts to consider. This was to help judges decide if a case falls into the “rarest of the rare” category. Factors to consider include the way the crime was committed, the motive, the anti-social nature of the crime, and the victim.

The court’s position has been clear: The death penalty is an exception, not the rule. Life imprisonment is the default punishment. The courts must consider the circumstances of both the crime and the offender before imposing the death sentence. This has created a legal framework that, while allowing capital punishment, tries to make it as fair and limited as possible.

Global Trends in Capital Punishment 

The global trend is moving towards abolishing the death penalty. Most countries have either banned it or stopped using it in practice. This reflects a growing international consensus that capital punishment is a violation of human rights.

Amnesty International’s reports are a good source for understanding these trends. They categorize countries into three groups:

Abolitionist for all crimes: Countries that have completely banned the death penalty.

Abolitionist for ordinary crimes only: Countries that have abolished the death penalty for regular crimes but retain it for exceptional ones, such as wartime crimes.

Retentionist: Countries that still use the death penalty.

As of recent years, over two-thirds of the world’s countries have abolished the death penalty in law or practice. This includes most of Europe, as well as many countries in Africa and the Americas.

However, the death penalty is still very much in use in some parts of the world. A small number of countries account for the majority of global executions. These countries are often those with large populations or authoritarian regimes. China, Iran, Saudi Arabia, and Iraq consistently top the list of countries with the highest number of executions. The United States is also a retentionist country, though its use of capital punishment varies by state.

The reasons for this global shift away from the death penalty are many:

Human Rights: The belief that the right to life is absolute and that the state should not have the power to take it away.

Irreversibility: The risk of executing an innocent person is a major concern. Once an execution is carried out, it cannot be undone.

Lack of Deterrence: Many studies have failed to provide solid evidence that the death penalty actually deters crime more effectively than a life sentence.

Cruel, Inhuman, and Degrading: There’s a strong argument that the death penalty is a form of torture and is against fundamental human dignity.

These international trends put India in a difficult position. While the Supreme Court has restricted its use, India is still one of the few major democracies that retains it. This puts it at odds with global efforts to abolish capital punishment.

Arguments for and Against the Death Penalty in India

The debate over the death penalty in India is ongoing. Supporters and opponents have strong, well-reasoned arguments.

Arguments for Retention

• Deterrence: Proponents argue that the death penalty acts as a powerful deterrent. They believe it scares potential criminals away from committing the most heinous crimes. The logic is that the fear of death is the strongest fear a person has.
• Retribution: This argument says that the death penalty is a form of just punishment. It provides “an eye for an eye.” For the most brutal crimes, like rape and murder, supporters feel that the death penalty is the only punishment that truly fits the crime. It ensures justice for the victims and their families.
• Public Opinion: In many high-profile cases, there is strong public demand for the death penalty. Supporters argue that the law must reflect the public’s desire for justice, especially in cases that shock the nation’s conscience.
• Preventing Future Crimes: The death penalty ensures that a convicted criminal cannot commit another crime. This is a form of permanent incapacitation. It prevents the possibility of them escaping prison or committing crimes while in jail.

Arguments Against Abolition

• Risk of Error: This is a key argument against the death penalty. The justice system is not perfect. There have been cases of people being wrongly convicted and later found innocent. An execution is irreversible, meaning a grave error cannot be corrected.
• Violation of Human Rights: Opponents argue that the death penalty violates a person’s right to life, which is a fundamental human right. They believe it is cruel, inhumane, and degrading. The state, by executing a person, commits the very act it seeks to punish.
• No Evidence of Deterrence: Many studies, both in India and abroad, have found no conclusive evidence that the death penalty deters crime more than life imprisonment. In fact, some studies show that states that have abolished the death penalty have not seen an increase in crime rates.
• Discriminatory Application: Critics point out that the death penalty is often applied unfairly. It is more likely to be given to the poor, those from marginalized communities, and those who lack access to good legal representation. The argument is that it punishes the vulnerable and not just the guilty.
• Reformation is Impossible: The death penalty takes away any chance of a person reforming or being rehabilitated. The modern justice system is moving towards reform and rehabilitation, not just punishment.

Conclusion

The legal status of the death penalty in India is settled, at least for now. The Supreme Court has repeatedly upheld its constitutionality. The “rarest of the rare” doctrine is the guiding principle, ensuring that capital punishment is used only in the most extreme cases. This has created a system that is a balance between public demand for justice and the legal principles of due process and fairness.

However, a strong international trend is moving against capital punishment. This puts India in a minority of nations that still practice it. The global community is leaning towards the view that the death penalty is an outdated form of punishment that violates basic human rights.

The debate in India is unlikely to end soon. It’s a clash between a desire for strict justice and the principles of human rights and a modern, reformative criminal justice system. The future of capital punishment in India will depend on whether the courts or the legislature choose to align with global human rights trends or continue to uphold the current legal framework.

References

1. Constitution of India, arts 14, 19, 21.
2. Jagmohan Singh v State of Uttar Pradesh (1973) 1 SCC 20.
3. Bachan Singh v State of Punjab (1980) 2 SCC 684.
4. Machhi Singh v State of Punjab (1983) 3 SCC 470.
5. Amnesty International, Death Sentences and Executions 2023 (Amnesty International, 2024) (https://www.amnesty.org/en/documents/act50/7840/2024/en/) (accessed 20 September 2025).
6. Law Commission of India, Report No 262: The Death Penalty (2015) (https://lawcommissionofindia.nic.in/reports/report262.pdf) (accessed 20 September 2025).
7. B Sinha, ‘Capital Punishment in India: A Constitutional Appraisal’ (1983) 25(1) Journal of the Indian Law Institute 68.
8. Death Penalty India Project, Death Penalty India Report (National Law University Delhi 2016).