Death Penalty in India: Debates and Judicial Trends

Abstract

Globally controversial, the death sentence is still a difficult and divisive topic in India. Proponents contend it guarantees justice, discourages horrible acts, and gives victims’ families closure; critics draw attention to its ethical shortcomings, possibility for erroneous executions, and disproportionate effect on underprivileged areas. The legal framework controlling the death sentence in India, its historical development, court patterns, and modern discussions are investigated in this paper. To show its use and social influence, it looks at important case studies such the Nirbhaya and Shabnam ones. India follows the “rarest of rare” philosophy and procedural protections, although questions of justice and human rights remain unresolved. The article emphasises the need of a review of India’s posture, balancing justice with reformative strategies and following world trends towards abolition. By means of a detailed investigation, it offers understanding of the moral, legal, and social aspects of the death sentence in contemporary India.

Introduction

Globally, legal, moral, and society discussions on the death sentence—also known as capital punishment—have never stopped. Retention of the death sentence in India still generates divided attitudes. Although some contend it is a required instrument for retribution and deterrent, others draw attention to its ethical and legal complexity. This paper investigates historical roots, method, constitutionality, and modern trends in addition to critically analysing the justification for the death sentence in India by means of pertinent case studies, so strengthening its legal framework. [1]

Proponents of the death penalty argue that it serves as a means of retribution, a principle rooted in the idea of justice being proportional to the severity of the crime.[2] Heinous crimes like murder, they contend, warrant the ultimate punishment—death—to balance the scales of justice. This belief finds resonance in societal and religious values that emphasize the need for just punishment.[3]

Deterrence is another commonly cited justification. Advocates believe that the threat of capital punishment discourages potential offenders from committing heinous crimes. By showcasing the ultimate consequence, the death penalty aims to instill fear and protect society from individuals likely to engage in grave offenses. For the families of victims, particularly in cases involving brutal crimes, the finality of the death penalty can offer a sense of closure and justice, helping them move forward from the trauma.[4]

However, these justifications are not without significant counterarguments. The possibility of irreversible errors in judicial decisions raises profound ethical concerns. Despite rigorous safeguards, wrongful convictions cannot be entirely ruled out, and the execution of an innocent person represents an irreversible tragedy. The effectiveness of the death penalty as a deterrent is also widely debated, with studies offering inconclusive evidence. Many argue that crime rates are influenced by factors other than the existence of capital punishment. Furthermore, critics suggest that the notion of closure through execution may blur the line between justice and revenge, advocating instead for life imprisonment as a more humane and reformative alternative.

As India continues to grapple with the complexities of the death penalty, it faces the challenge of balancing justice with evolving ethical and human rights considerations. The global trend towards abolishing capital punishment adds to the imperative for India to revisit its justifications and explore alternatives that align with contemporary principles of justice and humanity. With 561 inmates on death row by year end, an increase from 541 in 2022, Project 39A Annual Report 2023 offers a thorough summary of the death sentence scene in India. Reflecting a minor decline in annual increases, 120 fresh death sentences were imposed in 2023 instead of 167 in 2022. High Courts confirmed only one death sentence; reduced 36 (26); cleared 36 individuals (26); remitted 5 cases (3). The Supreme Court remitted two cases (both collective decisions), confirmed no death sentences, and commuted 3 individuals (5). Emphasizing procedural examination and re-evaluation of lower court rulings, these figures show a cautious stance by the higher court towards the application of the death sentence in India.[5]

Legal Framework Governing the Death Penalty in India

Aiming to confront the worst of offences with a corresponding response, the Indian Penal Code (IPC) lays forth certain clauses for capital punishment. Under Section 302, murder carried with intent or knowledge resulting in the loss of life carries death as punishment. Section 305 addresses abetment of suicide by vulnerable people like juveniles, demented people, or those intoxicated. Under Sections 195A and 199A false evidence or perjury resulting in the conviction and execution of an innocent person is penalised. Section 121 covers treason and fighting war against the government; Section 132 punishes abetment of mutiny. Section 307(2) covers attempted murder by a life convict; additionally punished by death are terrible crimes such kidnapping for ransom ( Section 364A), dacoity with murder ( Section 396), and criminal conspiracy ( Section 120B). Following the “raest of rare” theory, these clauses are meant to preserve justice and society order.[6]

Local and special laws expand the death sentence’s relevance to certain situations and offences, therefore addressing particular crimes. These contain:

1. Act on Unlawful Activities Prevention 1967
2. Commission of Sati (Prevention) Act 1987
3. Narcotic Drugs and Psychotropic Substances Act 1985
4. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
5. Arms Act of 1959 (Amended 1988)
6. explosive substances Act 1908 (Amended in 2001)
7. Air Force Act, 1950; Navy Act, 1950
8. Organised Crime Control Acts particular to states (such as those for Maharashtra and Karnataka).

Expanding the spectrum of offences punished by death, the new Bharatiya Nyaya Sanhita (BNS) Act, 2023, fundamentally changes India’s criminal justice system. A legislative panel study claims that there are now 11 to 15 more such offences compared earlier. For four fresh types of offenses—organized crime, terrorism, mob lynching, and the rape of a minor—capital punishment is now applied. One major modification is the inclusion of the death sentence clause covering gang rape. Although the Indian Penal Code (IPC) now states capital punishment for gang rape of women under the age of twelve, the BNS Bill expands this clause to cover victims under eighteen. These amendments aim to reinforce deterrent and improve justice for victims by reflecting legislative purpose to address horrible crimes more tightly. The fresh developments also revive the more general discussion on the moral consequences and effectiveness of the death sentence in contemporary judicial systems.[7]

These unique laws show India’s will to address exceptional crimes with strict policies, therefore ensuring that capital punishment stays a last resort instrument inside a strong legal system. 

Process and Timeline of a Death Sentence in India

India’s death sentence is administered via a multi-layered, orderly legal system meant to provide strict court review and chances for pardon. Reflecting the legal system’s dedication to preventing mistakes in capital punishment, the process consists in trials, mandated reviews, appeals, and executive judgements. There are three different phases:

1. Trial in the Court of Session:

Death sentence trials start at the Court of Session, when evidence is looked at and the trial ends with either conviction or acquittal. Should the death sentence be applied, execution cannot be carried out without more investigation.

2. Confirmation by the High Court:

Section 366(1) of the Code of Criminal Procedure (Crpc) requires that every death sentence rendered by a trial court be forwarded to the corresponding High Court for confirmation. Examining the facts, trial records, and legal doctrines a bench of at least two judges checks to confirm, change, or nullify the sentence.

3. Appeal to the Supreme Court:

Right to appeal to the Supreme Court of India, the condemned person challenges the ruling of the High Court. Ensuring complete judicial review at the highest level, the top court assesses the matter on points of law, evidence, and procedural accuracy.

4. Review and Curative Petitions: 

The convict can submit a review petition for reevaluation of the Supreme Court’s ruling after it decides. Should a curative petition be denied, it can be filed under unusual circumstances provided notable procedural or legal mistakes are brought attention.

5. Clemency Petitions:

After running through all legal proceedings, the criminal can ask for pardon from the President of India or the Governor of the state by citing Articles 161 and 72 of the Constitution. Before approving or rejecting mercy petitions, the executive authorities take into account elements including the socio-economic background, mental health, and age of the criminal, together with other humanitarian considerations.

6. Execution of the Sentence:

The death sentence is executed should clemency be denied and all legal remedies be run out. Strict procedural rules underlie the execution procedure to guarantee respect of human dignity and legal conformity.

India’s multi-tiered death sentence application process illustrates the cautious legal attitude of the country. It aims to reduce mistakes and uphold justice by including several levels of judicial review and mercy, therefore rekindling discussions on its ethical and pragmatic consequences.[8] 

Constitutionality of the Death Penalty

Emphasizing its usage in the “rarest of rare cases” and with respect to the method set by law, the court has regularly maintained the constitutional legality of the death sentence in India. The Supreme Court decided in case of Jagmohan Singh[9] that capital sentence does not violate Articles 14, 19, or 21. The Bachan Singh v. State of Punjab[10] improved this idea by upholding the death sentence as an alternative punishment for murder but limiting its applicability to exceptional circumstances, therefore negating Rajendra Prasad v. State of Uttar Pradesh[11]. Justice Bhagwati objected, thinking it unconstitutional and unwelcome. With regard to its application, Machhi Singh v. State of Punjab[12] offered thorough criteria including the savagery of the crime, wicked motive, and social abhorrence. Deena v. Union of India[13] decided the form of execution suggested under Section 354(5) of the CrPC to be legitimate. But in Mithu v. State of Punjab[14], mandated death sentences—as in Section 303 IPC—were overturned for violating Articles 14 and 21. In instances like case of Sher Singh[15] and the case of Triveniben[16], the Supreme Court has confirmed the validity of the death sentence, which is still in use despite criticism and efforts at abolition. Ajmal Kasab’s 2012 execution marks this outcome.

The death sentence’s continuous retention illustrates the harmony Indian law strives to preserve between reformation in criminal justice and deterrent. Although it is seen as a required response for serious offences, its limited applicability guarantees that it is not applied arbitrarily, therefore underlining the meticulous attitude of the court in protecting constitutional rights. The argument over its moral and constitutional ramifications highlights how dynamically justice and human rights are developing in India.[17]

Recent Death Sentences

One of the most heinous crimes in India’s history is the Nirbhaya case, which originated from the barbaric gang rape and killing of a 23-year-old paramedical student in Delhi in December 2012. The young woman was assaulted by six assailants, one of whom was a juvenile, while on a moving bus. She was subsequently subjected to inhumane torment and subsequently passed away as a result of her injuries. The incident shook the nation’s conscience, resulting in widespread condemnation and enormous protests on both a domestic and international scale. It prompted substantial legal reforms, such as the implementation of more stringent anti-rape laws under the Criminal Law (Amendment) Act, 2013. This act expanded the definition of sexual offences and permitted the death penalty in cases of rape that result in the victim’s death or leave her in a persistent vegetative state. One of the six accused passed away while in custody, the juvenile was sentenced to three years in a reform home, and the remaining four were convicted and sentenced to death. The four convicts were executed by hanging on March 20, 2020, signifying the conclusion of a case that fundamentally altered India’s approach to crimes against women, following years of legal proceedings and rejected appeals.

Following years of court cases and denied appeals, the four inmates were hanged on March 20, 2020. This was the end of a case that changed how India handles crimes against women.[18]

Similarly, among the most graphic crimes in Indian legal history is the Shabnam-Saleem case[19]. Shabnam, together with her boyfriend Saleem, killed seven members of her family—including a 10-month-old infant—by poisoning them and then attacked them with an axe in Amroha, Uttar Pradesh, because of family hostility to their relationship in 2008. The Allahabad High Court maintained the Session Court of Amroha’s 2010 ruling of both death sentences; subsequently, the Supreme Court confirmed this in 2015. Both were denied at all levels, including by the President of India, notwithstanding filing review petitions under Article 137 of the Indian Constitution and seeking compassion prayers under Article 72. Shabnam petitioned for clemency on grounds of her child needing her care, but the court and executive insisted that the seriousness of the crime made little room for leniency. The case also underlined procedural protections, such the need of a three-judge bench to evaluate requests for death sentences under Supreme Court Rules, 2013, therefore guaranteeing compliance with the fundamental right to life under Article 21. As per the most recent developments, Shabnam’s execution—which would make her the first woman in independent India to confront the death sentence—is still seeking procedural finality.[20]

Should India retain or abolish Death Penalty?

Proponents of the death sentence contend that, reflecting society’s thirst for justice and revenge, it is a fair and appropriate reaction to the most horrible acts. They argue that by breaching the basic rights of their victims, people who engage in crimes including murder, rape, or terrorism lose their own right to life. This forfeiture principle emphasises the moral and legal basis for the death sentence as a commensurate reaction to the seriousness of such offences. It provides a sense of justice and closure for the victim’s family and the larger society, therefore expressing and supporting society’s shared moral indignation. Proponents of the Nirbhaya gangrape, where the violence stunned the country, contend that no other sentence could have sufficiently addressed the degree of the crime or served as a deterrence.

Furthermore justified as a deterrent against crime is the death sentence since it is thought that the threat of the ultimate penalty will dissuade possible offenders from committing similar offences. Proponents underline that the death sentence acts as a message to others considering violent or inhumane actions and helps to uphold society values. Furthermore, they contend that punishment has to be commensurate with the degree of the crime to maintain justice, especially in cases involving mass murder, serial offences, or crimes aimed at weaker populations like women and children.

Stronger punitive policies are also supported by supporters citing the growing cases of lawlessness and horrifying attacks in society, including crimes against women, children, Dalits, and minority groups. They contend that more harsh penalties like the death sentence are required to handle such egregious transgressions as current legal clauses sometimes fail to stop such crimes. Although no system is perfect, supporters of the death sentence claim that it is the ultimate form of justice for the most serious offences, therefore reflecting society’s will to defend its people and maintain the rule of law.[21]

Critics of the death sentence contend that it unfairly affects underprivileged people, breaches human rights, and has little deterrence impact. With the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to life under Article 6 and requires protections for nations keeping the death sentence, the movement for abolition gathered steam worldwide. Though an ICCPR signatory, India has not approved its Second Optional Protocol meant to eliminate the death sentence. Though only eight executions have happened since 2000, India vetoed the resolution and remains among the nations keeping the death sentence in spite of international pressure including a 2022 UN General Assembly resolution calling for a ban on executions.

A major justification against the death sentence is its irreversibility, especially in circumstances of false convictions. Citing insufficient evidence and the idea that guilt must be proved beyond a reasonable doubt, the Supreme Court cleared eight people sentenced to death between December 2021 and November 2022. Historical cases such as Ravji Rao and Surja Ram expose serious court mistakes; Ravji Rao was hanged in 1996 based on faulty logic subsequently admitted by the Supreme Court. Studies also expose systematic prejudices: the Supreme Court itself notes that the startling 25% error rate in death sentences between 1996 and 2009 highlights the dangers involved in the capital sentence.

Demographic and socioeconomic profiles highlight even more the flaws in the death sentence. According to a National Law University, Delhi, study, 79.8% of death row prisoners belonged to underprivileged groups like Scheduled Castes, Scheduled Tribes, and religious minorities; 74.1% were economically poor. Restricted access to adequate legal advice increases their vulnerability and reflects systematic inequalities. Executed despite major flaws in the investigative process, the sad story of Dhananjoy Chatterjee shows how defective practices could result in permanent injustice. Later questioned by experts, Chatterjee’s execution underlines the inherent risks of the death sentence in a court system prone to mistake. These issues create a significant basis for efforts to eliminate the death sentence globally since they together with its inability to be a sufficient deterrence cause problems.[22]

Conclusion

The argument over the death sentence in India highlights the conflict between the growing standards of human rights and justice and the aspirations for justice and vengeance. Proponents of the death sentence contend that it provides proportional justice, acts as a deterrent, and efficiently addresses horrible crimes; critics draw attention to its ethical and systematic defects, including the possibility of erroneous executions, socioeconomic inequalities, and scant evidence of deterrent influence. Rooted in the “raest of rare” philosophy, India’s court system emphasises a careful and procedural attitude to the death sentence, hence stressing protections against arbitrariness. But global abolitionist tendencies as well as India’s own historical and modern difficulties with fair application need a review of her posture. India has to carefully weigh justice, human rights, and social fairness as it develops, maybe looking at more compassionate and reformative substitutes for the death sentence in line with world norms and the ideas of a fair justice system.

 

References

[1] Eyyani, D.S. (2024). THE DEATH PENALTY IN INDIA: A CRITICAL ANALYSIS – THE LAWWAY WITH LAWYERS JOURNAL. [online] THE LAWWAY WITH LAWYERS JOURNAL -. Available at:  https://www.thelawwaywithlawyers.com/the-death-penalty-in-india-a-critical-analysis/.

[2] D.S. Eyyani, supra note 1 https://www.thelawwaywithlawyers.com/the-death-penalty-in-india-a-critical-analysis/.

[3] Meyer, J.F. (2014). Retributive Justice. In: Encyclopædia Britannica. [online] Available at: <https://www.britannica.com/topic/retributive-justice. >

[4] Death Penalty Information Center (2024). Deterrence. [online] Death Penalty Information Center. Available at: https://deathpenaltyinfo.org/policy-issues/deterrence.

[5] Project 39A — Annual Statistics 2023 (2023). Project 39A Death Penalty. [online] Project 39A. Available at: https://www.project39a.com/annual-statistics-report-2023.

[6] Bagri, S.R. and Sarath (2016). Debate on Death Penalty. [online] Ipleaders. Available at: https://blog.ipleaders.in/debate-death-penalty/.

[7] NextIAS (2023). Criminal Law Bill & Death Penalty – Current Affairs. [online] Current Affairs – NEXT IAS. Available at:  https://www.nextias.com/ca/editorial-analysis/15-11-2023/criminal-law-bill-death-penalty.

[8] Project 39A — Annual Statistics 2023, supra note 2

[9] “Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947.”

[10]  “Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C 898”

[11] “Rajendra Prasad vs. State of Punjab, A.I.R. 1979, S.C.p.916”

[12] “Machhi Singh vs. State of Punjab, A.I.R. 1983, S.C 957.”

[13] “Deena vs. Union of India, (1983)4 SSC 645.”

[14] “Mithu vs. State of Punjab, (1983)2 SSC 277.”

[15] “Sher Singh vs. State of Punjab, A.I.R. 1983 S.C 365.”

[16] “Triveniben vs. State of Gujarat, A.I.R. 1989 S.C 142.”

[17] Fatima, T. (n.d.). Constitutionality of Death Penalty. [online] Indian National Bar Association. Available at: https://www.indianbarassociation.org/constitutionality-of-death-penalty/.

[18] Pandey, G. (2020). What do Delhi rape hangings mean for women? BBC News. [online] 20 Mar. Available at: <https://www.bbc.com/news/world-asia-india-50812776.

[19] Shabnam v. State of Uttar Pradesh, Criminal Appeals No. 802-803 (2015)

[20] Singh, P. (n.d.). THE CASE OF SHABNAM ALI V. THE STATE OF UTTAR PRADESH. ISSUE 3 Journal of Legal Research and Juridical Sciences, 2(2583-0066).

[21] CIVILSDAILY (2022). [Burning Issue] Debate over Capital Punishment – Civilsdaily. [online] Civilsdaily. Available at:  https://www.civilsdaily.com/burning-issue-debate-over-capital-punishment/.

[22] Arif, A. (2024). Contours of Justice: Human Rights and Constitutionality of Capital Punishment in India. [online] SPRF. Available at:  https://sprf.in/constitutionality-of-capital-punishment-in-india/.