DEATH PENALTY IN INDIA: CONSTITUTIONAL VALIDITY AND GLOBAL TRENDS

INTRODUCTION

The death penalty is one of the most debated issues at the intersection of law, ethics and society, engaging questions of justice, human rights, deterrence, and state power across the globe. Legally, the death penalty is viewed by some as a constitutionally sanctioned form of punishment for particular heinous crimes, grounded in the principles of deterrence and retribution.

From an ethical perspective, the death penalty poses more dilemmas: whether the state has the authority to take a human life, whether retributive justice can ever justify execution, and if capital punishment serves as a genuine deterrence or merely perpetuates cycles of violence.

As a social issue, the debate extends to public opinion, human rights activism, and the socio-economic biases evident in death penalty cases. Often, marginalized communities, minorities, and economically weaker sections are disproportionately represented among death row convicts,raising concerns of systemic inequality.

SIGNIFICANCE IN INDIAN AND GLOBAL CONTEXT

In India, the death penalty remains a sensitive and controversial issue, highlighting the struggle to balance effective crime control and ethical concerns with a constitutional democracy. The Supreme Court’s “rarest of rare” doctrine, ongoing public debate, and periodic Law Commission reviews underscore its contested legitimacy and the imperative of judicial prudence.

Globally, the trend is towards abolition. Over two-thirds of countries have abolished the death penalty in law or practice, with nations like the UK, Canada, and most of Europe leading the movement. On the other hand, countries such as the USA, China, Iran, and Saudi Arabia continue to enforce it actively. International Human Rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), encourage states to move towards abolition. This makes the death penalty an issue situated at the intersection of domestic legal systems and international human rights standards. 

OBJECTIVES AND METHODOLOGY OF THE ARTICLE

The primary objective is to critically examine the constitutional validity of the death penalty in India, analyze key judicial interpretations, and contextualize these within current global trends and debates. The article aims to synthesize perspectives from constitutional law, international human rights, empirical criminal justice data, and ethical relations.

The Methodology includes:

• Doctrinal review of statutes, judicial precedents, and Law Commission reports;
• Comparative analysis with global legal regimes on capital punishment;
• Review of recent empirical studies, reports from international bodies, and leading scholarship

This approach provides a nuanced, multidisciplinary understanding of the death penalty as a critical legal and ethical issue of our time.

HISTORY OF CAPITAL PUNISHMENT IN INDIA

The practice of capital punishments in India has deep historical roots. Ancient texts such as the Manusmriti and Arthashastra referred to severe punishments, including death, for crimes like treason, murder, and adultery. In medieval India, rulers of various dynasties prescribed execution for grave offenses, often carried out publicly to instill fear. Punishments were influenced by religion, caste hierarchies, and socio-political structures of the time.

During the Mughal period, capital punishment was frequently imposed particularly for political rebellion, apostasy, and homicide. Modes of execution often reflected the authority of the state and the gravity of the crime. Thus, before the advent of British rule, capital punishment was entrenched both as retribution and deterrence.

COLONIAL LEGACY AND POST- INDEPENDENCE LEGAL DEVELOPMENTS

Under British colonial rule, the death penalty was formally codified through the Indian Penal Code, 1860 (IPC), drafted under Lord Macaulay. The IPC prescribed death as one of the punishments for serious crimes like murder, waging war against the government, and dacoity with murder. The Code of Criminal Procedure (CrPC) provided procedural safeguards, including confirmation of death sentences by High Courts.

Post-independence, the framers of the Indian Constitution (1950) retained the death penalty but subjected it to constitutional scrutiny. The right to life under Article 21 became a foundation for judicial examination of its validity. Early legal challenges, such as Jagmohan Singh v. State of Uttar Pradesh (1973), upheld the constitutional validity of the death penalty, provided due process was followed. Further developments include the CrPC Amendment of 1973, which made life imprisonment the rule and the death penalty the exception. The Supreme Court has, over the years, issued detailed guidelines to curb arbitrariness, such as considering mitigating factors (age, socio-economic conditions, possibility of reform).

LEGAL FRAMEWORK FOR DEATH PENALTY IN INDIA

The Indian legal system provides the substantive and procedural basis for the imposition of capital punishment.

• INDIAN PENAL CODE, 1860 (IPC)

The IPC prescribes the death penalty as a punishment for specific offences considered to be of the gravest nature. While it originally contained numerous provisions prescribing capital punishment, over time, the scope has been narrowed through judicial interpretation and legislative reforms. Some major IPC provisions prescribing the death penalty include:

1. Section 120B- Criminal conspiracy to commit an offence punishable with death.
2. Section 121- Waging, or attempting to wage war against the Government of India.
3. Section 132- Abetment of mutiny actually committed.
4. Section 194- Giving or fabricating false evidence with intent to procure conviction of an innocent person for a capital offence.
5. Section 302 – Murder.
6. Section 305 – Abetment of suicide of a minor or an insane person.
7. Section 364A – Kidnapping for ransom, etc.
8. Section 376A – Rape resulting in death or vegetative state of the victim.
9. Section 376E – Repeat offenders in rape cases.
10. Section 396 – Dacoity with murder.

Additionally, special legislations like the Narcotic Drugs and Psychotropic Substances Act, 1985 and Unlawful Activities (Prevention) Act, 1967 (UAPA) also prescribe death penalty for certain offences. 

• CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)

The CrPC governs the procedure for awarding and executing the death penalty.

• Section 354(3): This section mandates that the court must record “special reasons” for awarding the death sentence. Life imprisonment is the rule, and death is the exception.
• Section 366: Any death sentence passed by a Sessions Court must be confirmed by the High Court.
• Section 368: High Court’s power to confirm, commute or acquit.
• Section 413-415: Provide for execution of sentences, postponement in case of appeals, and related procedures.

SAFEGUARDS AND SPECIAL PROCEDURES

The Indian legal system incorporates various safeguards to prevent arbitrary imposition of the death penalty:

• JUDICIAL SAFEGUARDS

1. Doctrine of “rarest of rare” (established in Bachan Singh vs. State of Punjab, 1980).
2. Requirement of individualized sentencing, considering both aggravating and mitigating circumstances (Machhi Singh vs State of Punjab,1983).
3. Confirmation of sentence by the High Court (Section 366 CrPC).
4. Automatic right to appeal to the Supreme Court under Article 134 of the Constitution.

• CONSTITUTIONAL SAFEGUARDS

1. Article 21: Right to life and personal liberty, interpreted to include fair trial and procedural due process.
2. Articles 72 and 161: Power of President and Governor respectively to grant pardon, commutation, or remission. These mercy petitions act as a final safeguard against miscarriage of justice.

• PROCEDURAL SAFEGUARDS

1. No execution of a pregnant woman (Section 416 CrPC)
2. Postponement of execution if an appeal or mercy petition is pending.
3. Judicial review of mercy petition decisions (e.g., Shatrughan Chauhan vs Union of India, 2014)

CONSTITUTIONAL BASIS AND CHALLENGES

The constitutional framework governing the death penalty in India pivots on three core Fundamental Rights– Article 21 (Right to Life), Article 14(Right to Equality), and Article 19 (Protection of certain freedoms).– and has withstood repeated constitutional challenges via landmark Supreme Court judgements, which shape its scope and application.

ARTICLE 21 guarantees that no person shall be deprived of their life or personal liberty except according to procedure established by law. The Supreme Court has clarified in Maneka Gandhi vs. Union of India that this procedure must be “just, fair, and reasonable”- a standard applicable to death penalty cases.

ARTICLE 14 ensures all persons are treated equally before the law. Challenges to the death penalty often invoke the risk of arbitrary or discriminatory imposition, making judicial discretion and guidelines critically important.

ARTICLE 19 provides certain freedoms, which may be restricted by reasonable law. While mainly invoked in freedom of speech and association contexts, its relevance to capital punishment challenges lies in whether the denial of life or liberty for certain crimes can ever be reasonable.

MAJOR CONSTITUTIONAL CHALLENGES TO CAPITAL PUNISHMENT

Several constitutional challenges have questioned whether the death penalty violates Articles 14, 19 and 21. The arguments typically revolve around:

• Arbitrariness: Lack of consistent standards in awarding death sentences.
• Disproportionality: Whether capital punishment is excessive compared to the offence committed.
• Possibility of wrongful conviction: Irreversibility of execution in case of judicial error.
• Reformative theory of punishment: Whether the death penalty forecloses chances of reformation and rehabilitation.

Let us look at the landmark judgments of the Supreme Court that shaped capital punishment over the years.

• JAGMOHAN SINGH VS STATE OF UTTAR PRADESH (1973)[1]

The constitutionality of the death penalty was challenged first in this case. The Constitution bench while upholding the constitutionality examined whether total discretion can be conferred on the judges in awarding death sentence. The Supreme Court upheld the constitutionality, concluding that death sentences are imposed following procedure established by law, after consideration of aggravating and mitigating circumstances.

• RAJENDRA PRASAD VS STATE OF UTTAR PRADESH (1979)[2]

It was held that “special reasons” necessary for imposing a death penalty must relate not to the crime but to the criminal. It could be awarded only if the security of the state and society and public order in the interest of the general public compelled that course.

• BACHAN SINGH VS STATE OF PUNJAB (1980)[3]

Another Constitution Bench reconsidered the issue. The court upheld the constitutional validity of the death penalty but introduced the doctrine of the “rarest of rare cases” as a safeguard against arbitrary imposition. The bench while upholding the constitutional validity observed that, for persons convicted of murder, “Life imprisonment is a rule and death sentence an exception.” The Court delineated between “law and order” and “public order”, with death penalty only justified for the latter, and held that detailed sentencing hearings must weigh aggravating and mitigating factors before awarding capital punishment. Justice Bhagwati’s dissent found the death penalty both unconstitutional and undesirable.

• MACHHI SINGH VS STATE OF PUNAJB (1983)[4]

The Supreme Court not only expanded the guidelines laid down in Bachan Singh vs. State of Punjab but also specified the mitigating circumstances which could be considered by the Court while determining such cases. These circumstances are the nature of crime, manner of commission, motive, and the position of the victim, and particularly where a crime profoundly shocks the collective conscience of society. It clarified that aggravating and mitigating circumstances must be considered using a “balance sheet” approach, with death penalty imposed only when life imprisonment is clearly inadequate.

RECENT PRONOUNCEMENTS

The Supreme Court has recently revisited issues of arbitrariness and lack of consistency:

• Shatrughan Chauhan v. Union of India (2014): Recognized that undue delay in deciding mercy petitions is a ground to commute death sentences to life imprisonment.
• Yakub Memon case (2015): Reaffirmed limited judicial intervention at the final stage of execution but emphasized fairness in procedure.
• Chhannu Lal Verma v. State of Chhattisgarh (2018): Highlighted the uneven application of the death penalty and called for a reconsideration of capital sentencing.
• Manoj & Ors. v. State of Madhya Pradesh (2022): The Court flagged concerns about arbitrary sentencing and referred the issue of uniform sentencing framework to a larger bench, stressing the need for psychological assessments, socio-economic background analysis, and individualized sentencing reports before awarding the death penalty.
• Review Jurisprudence: In Mohd. Arif v. Supreme Court of India (2014), the Court held that death sentence review petitions must be heard in open court, strengthening procedural safeguards.

In essence, the Supreme Court has upheld the constitutionality of the death penalty but consistently narrowed its application, surrounding it with procedural and constitutional safeguards to prevent arbitrariness and to align with evolving human rights jurisprudence.

POLICY RECOMMENDATIONS AND POSSIBLE FUTURES

• Abolition: Moving toward complete abolition would align India with global human rights standards, prevent wrongful executions, and shift focus to criminal justice reforms, rehabilitation, and crime prevention.
• Reform: Short-term reforms should focus on codifying the “rarest of rare” doctrine, stricter standard for evidence and sentencing, systematic collection of mitigation data, judicial training, and robust post-conviction review.
• Continued Retention (with re-emphasized safeguards): If retention continues, trial courts must be rigorously monitored; appellate courts and executive authorities should maintain high standards for commutation and mercy consideration, and the law should develop strong, clear, and humanitarian sentencing standards.

India’s approach to the death penalty stands at a crossroads: the choice between retributive and restorative justice philosophies will shape not only the fate of condemned individuals but the overall character of the country’s; criminal justice and constitutional values for decades to come.

CONCLUSION

The debate on the death penalty in India brings together complex legal, constitutional, ethical, and policy considerations. Legally, the Indian Penal Code (now BNS) and the Code of Criminal Procedure (now BNSS) continue to prescribe capital punishment for select offences, but judicial interpretation– particularly through the Bachan Singh doctrine of “rarest of rare”- has narrowed its scope. Constitutionally, the right to life under Article 21, the equality principle under Article 14, and evolving jurisprudence on fair procedure have consistently tested the legitimacy of capital punishment, requiring that it be exercised only with the strictest safeguards.

From a policy perspective, the Law Commission of India (35th Report, 1967 and 262nd Report, 2015) has repeatedly reviewed the utility of capital punishment. While earlier reports justified its retention on grounds of deterrence, later assessments acknowledged arbitrariness, systematic bias, and the global trend towards abolition. The persistence of wrongful convictions, inconsistent sentencing practices, and delays in judicial and executive processes further complicate the justification for executions.

In contemporary Indian society, the death penalty continues to occupy a paradoxical position. Public outrage over heinous crimes– such as the Nirbhaya case– fuels demand for harsher punishments, including executions, as a symbolic gesture of justice. Yet, empirical studies show no conclusive evidence that capital punishment acts as a greater deterrent than life imprisonment. The social reality that the majority of death row inmates belong to marginalized and economically weaker sections underscores concerns of inequality and selective application. 

REFERENCES

[1] AIR 1973 SC 947.

[2] AIR 1979 SC 916.

[3] (1982) 3 SCC 24.

[4] AIR 1983 SC 957.