Death Penalty in India: Constitutional Validity and Global Trends

Introduction 

Capital punishment, often referred to as the death penalty, is one of the most  debated issues in modern criminal law. While India continues to retain it under  the Indian Penal Code (IPC), its use has become increasingly restricted and  controversial. The Supreme Court in Bachan Singh v. State of Punjab (1980)  upheld its constitutional validity but confined its application to the “rarest of  rare” cases. At the same time, the global landscape shows a remarkable shift  toward abolition, with most countries either abolishing or no longer practicing  capital punishment. 

This essay examines the constitutional position of the death penalty in India, the  evolution of judicial interpretation, its socio-economic and human rights  implications, and the global momentum toward abolition. It concludes that  despite its constitutional survival, the death penalty is increasingly incompatible  with India’s constitutional morality, human dignity, and international  obligations. 

Constitutional Framework and Judicial Evolution Article 21 and the Right to Life 

Article 21 of the Indian Constitution guarantees that no person shall be  deprived of life or liberty except according to procedure established by law.  Initially interpreted narrowly, the clause underwent transformation after  Maneka Gandhi v. Union of India (1978), which required that any procedure  must be just, fair, and reasonable. This heightened scrutiny inevitably drew  attention to the death penalty, the harshest form of state action against an  individual. 

Early Challenges: Jagmohan Singh v. State of U.P. (1973) 

The first constitutional challenge to capital punishment came in Jagmohan  Singh v. State of U.P.. The petitioner argued that the death penalty violated  Articles 14, 19, and 21 because it lacked clear sentencing guidelines and  allowed judicial arbitrariness. The Court rejected the claim, reasoning that  judicial discretion, guided by evidence and precedents, ensured fairness. It 

held that capital punishment was valid as long as judges weighed aggravating  and mitigating circumstances. 

The Rights-Oriented Shift: Rajendra Prasad v. State of U.P. (1979) 

In Rajendra Prasad, Justice Krishna Iyer adopted a more rights-centered  approach. He observed that the death penalty could only be justified if the  accused posed a continuing threat to society and that excessive reliance on  retribution was constitutionally unsound. Though not binding in the long run,  this case introduced a new discourse, linking capital punishment with  constitutional morality and human rights. 

Bachan Singh v. State of Punjab (1980): The Constitutional Compromise 

The landmark case came in Bachan Singh, where a five-judge bench upheld  Section 302 IPC and Section 354(3) CrPC but restricted capital punishment  to the “rarest of rare” cases. The majority held that: 

Life imprisonment is the rule, death the exception. 

Death may only be imposed when life imprisonment is unquestionably  inadequate. 

Sentencing must balance aggravating and mitigating factors. 

Justice P.N. Bhagwati’s dissent declared the death penalty unconstitutional  for violating Articles 14 and 21, citing arbitrariness and disproportionate  impact on the poor. His concerns resonate strongly in today’s debates on  socio-economic bias and discrimination. 

Machhi Singh v. State of Punjab (1983): Clarifying “Rarest of Rare” 

In Machhi Singh, the Court elaborated on Bachan Singh, laying down  categories where the death penalty could be applied, such as extreme  brutality, societal outrage, and multiple murders. However, this attempt at  clarity did not eliminate inconsistencies, as sentencing outcomes continued to  vary across cases and jurisdictions. 

Contemporary Developments

Later cases emphasized fairness and human dignity. In Shatrughan Chauhan  v. Union of India (2014), the Court commuted several death sentences due to  undue delay in deciding mercy petitions, recognizing delay as cruel and  degrading. Similarly, mental illness and psychological vulnerability have  increasingly been treated as mitigating factors. 

The judiciary has also recognized the centrality of human dignity under  Article 21. This evolving jurisprudence casts doubt on the compatibility of  capital punishment with constitutional values. 

Socio-Economic and Systemic Concerns 

Disproportionate Impact 

Empirical research, particularly the Death Penalty India Report (2016) by  Project 39A, shows that most death row prisoners come from economically  disadvantaged backgrounds. Around 74% belong to poor households, and  over 75% come from backward classes, Scheduled Castes, or religious  minorities. These figures reveal that capital punishment disproportionately  burdens the marginalized. 

Inadequate Legal Representation 

Many death row inmates lack access to quality legal representation. Legal aid  lawyers often lack expertise in capital cases, leading to inadequate defense at  trial and sentencing. This exacerbates the arbitrariness inherent in the system  and undermines the principle of equality before law under Article 14. 

Arbitrariness in Sentencing 

Despite the “rarest of rare” doctrine, outcomes remain inconsistent. Studies  show stark variations in sentencing practices across High Courts and even  within benches of the same court. The result is that who receives the death  penalty often depends less on the crime itself and more on the judge, region,  and quality of defense—a reality that undermines fairness and constitutional  guarantees. 

Deterrence: Myth or Reality? 

One of the strongest arguments advanced for the death penalty is deterrence.  However, empirical evidence consistently disproves this claim.

Law Commission of India (262nd Report, 2015): Found no conclusive  evidence that death penalty deters crime more effectively than life  imprisonment. 

International Studies: Countries that abolished the death penalty, such  as Canada and most of Europe, experienced stable or declining homicide  rates. 

Indian Experience: NCRB data shows no correlation between the  imposition of death sentences and reduction in serious crimes like murder  or rape. 

Deterrence is undermined by the rarity of executions and prolonged delays in  carrying them out. The logic of deterrence assumes swiftness and certainty, both  absent in India’s system. 

Global Trends Toward Abolition 

International Human Rights Instruments 

• ICCPR (Article 6): While permitting capital punishment for the “most  serious crimes,” it clearly envisions eventual abolition. 
• Second Optional Protocol to ICCPR (1989): Explicitly calls for  abolition; ratified by over 90 states. 
• Regional Conventions: Europe (Protocols 6 and 13 to the ECHR), the  American Convention on Human Rights, and evolving African human  rights jurisprudence all reflect a near-consensus against capital  punishment. 

United Nations 

Since 2007, the UN General Assembly has repeatedly passed resolutions  calling for a moratorium on executions, with growing support from member  states. 

Comparative Position 

Abolitionist States: 113 states have abolished the death penalty  completely. 

Retentionist with Moratoria: 32 states, including some in Africa and  Asia, retain it in law but not in practice.

Retentionist States: 55, including India, actively retain it, though  actual executions are rare. 

Most democracies, including in Europe and Latin America, have abolished  the death penalty. Its retention is increasingly associated with authoritarian  regimes and human rights violators. 

India, by executing sparingly but retaining the punishment, finds itself in a  shrinking minority of constitutional democracies that still cling to this  practice. 

Human Dignity and Constitutional Morality 

The concept of dignity has been recognized as intrinsic to Article 21. In cases  such as Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) and Common Cause v. Union of India (2018), the Court underscored  dignity as a cornerstone of constitutional morality. 

The death penalty, being irreversible and accompanied by prolonged death row  incarceration, violates dignity. The “death row phenomenon”—long years of  anxiety, isolation, and psychological trauma—has been recognized  internationally as cruel, inhuman, and degrading punishment. 

This evolving dignity-based jurisprudence makes capital punishment  increasingly incompatible with the constitutional ethos of India. 

Reform and Alternatives 

Law Commission Recommendations 

The 262nd Report of the Law Commission (2015) recommended abolition of the death  penalty for all crimes except terrorism-related offenses, citing arbitrariness, lack of  deterrence, and human rights concerns. However, critics argue that retaining it for terrorism  undermines the consistency of the abolitionist stance. 

Life Imprisonment Without Parole (LWOP) 

Courts in India have occasionally imposed sentences of life imprisonment without remission.  LWOP ensures incapacitation while avoiding the finality and arbitrariness of death. However,  concerns remain about whether such sentences respect rehabilitation principles. 

Restorative Justice Approaches

Some scholars advocate for restorative justice, focusing on reconciliation, victim  compensation, and rehabilitation of offenders. While challenging in heinous crimes,  restorative models can reduce the reliance on retributive justice. 

Conclusion: Toward Abolition 

The constitutional debate on the death penalty has evolved over five decades,  from Jagmohan Singh to Bachan Singh to recent dignity-based jurisprudence.  Although the Supreme Court upheld its constitutionality, the “rarest of rare”  doctrine has failed to eliminate arbitrariness and discrimination. 

Globally, abolition has become the norm, with retention increasingly associated  with authoritarian regimes. Empirical evidence shows no deterrent value, while  socio-economic bias and poor legal representation expose systemic injustice. 

From a constitutional perspective, the death penalty violates Articles 14 and 21  by being arbitrary, discriminatory, and incompatible with human dignity. From  a global perspective, it isolates India from the human rights consensus. 

Therefore, abolition is not just a policy choice but a constitutional imperative.  India should follow the path of most democracies by abolishing capital  punishment and replacing it with alternatives such as LWOP, victim  compensation, and restorative justice. 

The death penalty represents the antithesis of constitutional morality. A system  founded on justice, equality, and dignity cannot continue to sustain such an  irreversible and inhumane practice. Abolition is thus both inevitable and  necessary for India’s democratic and constitutional future. 

References: 

[1] Capital punishment in India  https://en.wikipedia.org/wiki/Capital_punishment_in_India 

[2] Capital Punishment And Article 21 (Right To Life)  https://www.ijllr.com/post/capital-punishment-and-article-21-right-to-life

[3] Article 21 of the Indian Constitution https://blog.ipleaders.in/article-21/

[4] CONSTITUTIONAL VALIDITY OF DEATH SENTENCE https://ijirl.com/wp content/uploads/2022/09/CONSTITUTIONAL-VALIDITY-OF-DEATH-SENTENCE.pdf

[5] Capital punishment in India https://blog.ipleaders.in/capital-punishment-in-india-2/ 

[6] Constitutional validity of Death Penalty or  Capital.. https://www.freelaw.in/legalarticles/Constitutional-validity-of-Death-Penalty or-Capital-punishment-in-India 

[7] Rarest of the Rare case: Bachan Singh vs State of Punjab …  https://www.alec.co.in/show-blog-page/rarest-of-the-rare-case-bachan-singh-vs-state of-punjab-1980-2-scc-684

[8] Bachan Singh vs State of Punjab (9th May 1980) https://testbook.com/landmark judgements/bachan-singh-vs-state-of-punjab 

[9] Bachan Singh v. State of Punjab (1980) : case analysis  https://blog.ipleaders.in/analysing-the-judgment-of-bachan-singh-v-state-of-punjab 1980/ 

[10] The Death Penalty  https://www.theadvocatesforhumanrights.org/Res/India%20CCPR%20DP%20FINAL.pdf 

[11] Constitutionality of Death Penalty  https://www.indianbarassociation.org/constitutionality-of-death-penalty/

[12] The bias of death penalty against the economically …  https://indianexpress.com/article/blogs/the-bias-of-the-death-penalty-against-the economically-vulnerable/ 

[13] CAPITAL PUNISHMENT AND HUMAN DIGNITY https://ijirl.com/wp content/uploads/2023/01/CAPITAL-PUNISHMENT-AND-HUMAN-DIGNITY.pdf [14] For second year, no death penalty passes SC test  https://indianexpress.com/article/india/for-second-year-no-death-penalty-passes-sc test-9828933/ 

[15] Commutation of Death Sentence: Balancing the Scales …  https://lawschoolpolicyreview.com/2022/08/22/commutation-of-death-sentence balancing-the-scales-of-retributive-and-restorative-justice/ 

[16] INTERNATIONAL STANDARDS ON THE DEATH PENALTY  https://www.amnesty.org/fr/wp-content/uploads/2021/06/act500061997en.pdf

[17] Death penalty https://whrpc.org/service/death-penalty/ 

[18] 564 People On Death Row In India, Highest Since The …  https://www.indiaspend.com/police-judicial-reforms/564-people-on-death-row-in india-highest-since-the-turn-of-the-century-947067 

[19] A decrease in the number of countries with the death …  https://worldcoalition.org/2024/06/20/a-decrease-in-the-number-of-countries-with the-death-penalty-worldwide-despite-an-increase-in-executions/

[20] Second Optional Protocol to the International Covenant on …  https://www.ohchr.org/en/instruments-mechanisms/instruments/second-optional protocol-international-covenant-civil-and