RETHINKING CAPITAL PUNISHMENT IN INDIA: BALANCING JUSTICE, MORALITY, AND REFORM

ABSTRACT

This paper critically analyses the ongoing debate surrounding the death penalty in India through legal, moral, and reformative lenses. Although capital punishment remains part of India’s penal framework, its constitutional validity has been narrowly upheld under the “rarest of rare” doctrine, as articulated in Bachan Singh v. State of Punjab. This judicial principle restricts the imposition of the death sentence to exceptional circumstances. However, despite this doctrinal limitation, Indian courts continue to award a substantial number of death sentences each year, while actual executions remain infrequent. This disparity reveals deeper systemic concerns of inconsistency, delay, and arbitrariness in the administration of capital punishment.

 Notably, empirical studies indicate that individuals sentenced to death predominantly belong to socially and economically marginalized communities, underscoring the unequal access to justice and entrenched structural inequities within the criminal justice system.

From a moral standpoint, the debate epitomizes the tension between retributive justice and the sanctity of human life. Proponents of retention assert that the death penalty serves as a deterrent against heinous crimes, reinforces societal protection, and embodies retributive justice, particularly in terrorism-related offences. Conversely, abolitionists invoke India’s long-standing philosophical commitment to non-violence, the constitutional guarantee of human dignity, and evolving international human rights standards that increasingly reject the death penalty. The deterrent efficacy of capital punishment remains empirically unsubstantiated, while its psychological and emotional toll on convicts, victims’ families, and society further challenges its moral and jurisprudential legitimacy.

The Law Commission of India, in its 262nd Report, recommended the abolition of the death penalty for all offences except those involving terrorism, coupled with broader systemic reforms to ensure fairness and transparency in sentencing.

Within a global context progressively inclined toward abolition, India faces growing calls to reconsider its retentionist stance. Institutionalizing a moratorium on executions, strengthening judicial scrutiny in sentencing, and adopting reformative alternatives such as life imprisonment without parole could advance India toward a more humane, equitable, and constitutionally consistent justice system. Ultimately, this paper contends that India’s constitutional morality and philosophical ethos demand a gradual transition towards abolition—grounded in the principles of rehabilitation, restorative justice, and the inherent dignity of human life.

INTRODUCTION

The death penalty remains one of the most disputed issues in Indian criminal jurisprudence, balancing the state’s authority to punish with evolving notions of human dignity and justice. India retains capital punishment with judicial safeguards like the “rarest of rare” doctrine articulated in Bachan Singh v. State of Punjab, but faces criticism regarding its fairness, efficacy, and morality. This paper analyzes the legal framework, constitutional validity, moral philosophies, empirical realities, and reform initiatives surrounding the death penalty in India.

This research examines the multifaceted death penalty debate in India through three interconnected lenses: the legal framework and constitutional validity, the moral and philosophical arguments for abolition versus retention, and contemporary reform proposals. The analysis draws upon landmark judicial pronouncements, empirical studies on death penalty demographics, Law Commission recommendations, and comparative international perspectives to assess whether India should continue its retentionist stance or move toward abolition.

LEGAL FRAMEWORK AND CONSTITUTIONAL VALIDITY

Constitutional Provisions and Judicial Stance

Article 21 of the Constitution safeguards life and liberty but permits deprivation according to a procedure established by law. The Supreme Court’s early rulings, such as Jagmohan Singh v. State of U.P., upheld the constitutionality of capital punishment, emphasizing that the procedure satisfied Article 21 requirements.^[1] The death penalty was ruled a valid sanction for the “rarest of rare” crimes under Bachan Singh, which also imposed a crucial limit: capital punishment should only apply when alternative sentences such as life imprisonment are unquestionably precluded.^[2]

In Machhi Singh v. State of Punjab, the Court established criteria for imposing death sentences, balancing aggravating and mitigating circumstances with a focus on the nature of the crime and the offender’s personality.^[3] However, critics argue that it diluted Bachan Singh’s cautious approach by expanding death penalty applicability.^[4] Mandatory death sentences were struck down in Mithu v. State of Punjab for violating Articles 14 and 21, affirming judicial discretion’s vital role in capital sentencing.^[5]

The Rarest of Rare Doctrine

The landmark case of Bachan Singh v. State of Punjab (1980) fundamentally reshaped India’s death penalty jurisprudence by establishing the “rarest of rare” doctrine. By a 4:1 majority, the Supreme Court upheld the constitutional validity of capital punishment but mandated that it should only be imposed in the “rarest of rare cases” when the alternative of life imprisonment is “unquestionably foreclosed”. The judgment required courts to conduct a balancing exercise between aggravating and mitigating circumstances, considering both the crime and the criminal.​

Justice Bhagwati’s dissenting opinion in Bachan Singh argued that the death penalty was unconstitutional as it violated Articles 14 and 21, but this view did not prevail. The majority held that capital punishment serves legitimate penological objectives, including deterrence, retribution, and societal protection, while acknowledging the need for strict limitations on its application.

The Court’s recent jurisprudence has favoured reformative justice. In Shatrughan Chauhan v. Union of India, the Supreme Court ruled that undue delays in executions violate Article 21 and warrant commutation to life imprisonment.^[6] This case underscored the constitutional protection against cruel and degrading treatment and recognized rights to speedy mercy petition decisions.

Current Statutory Provisions

The Bharatiya Nyaya Sanhita (BNS), 2023, which replaces the Indian Penal Code (IPC), continues to prescribe the death penalty for several grave offences. These include murder (§103), gang rape of minors (§70), terrorism resulting in death (§113), and mob lynching leading to death (§103) ^[7]. In addition to the BNS, various special legislations—such as the Protection of Children from Sexual Offences (POCSO) Act^[8] and anti-terror laws—also retain provisions for capital punishment in specific contexts. Under Section 354(5) of the Code of Criminal Procedure (CrPC),^[9] execution in India continues to be carried out by hanging, maintaining the colonial-era mode of implementation.

Under Articles 72 and 161 of the Constitution,^[10] the President and the Governors are vested with the power to grant pardons, reprieves, and commutations, functioning as the final layer of protection in cases involving the death penalty. However, since this power is exercised on the advice of the central or state government, it has often been criticized for opacity and administrative delays. The Supreme Court has recognized the right to seek mercy as an essential constitutional safeguard, underscoring that it must be exercised promptly and transparently to preserve the principles of justice, fairness, and human dignity.

EMPIRICAL REALITIES AND SYSTEMIC CHALLENGES

Execution Trends and Death Row Population

In the past 25 years, India has executed only eight individuals, despite thousands of death sentences being issued by trial courts.^[11] The last execution, in March 2020, involved the four convicts in the Nirbhaya case.^[12] Although 139 death sentences were imposed in 2024, most were later overturned or commuted by appellate courts. As of 2024, 564 prisoners remain on death row, the highest in decades, with Uttar Pradesh and Gujarat accounting for a significant share.

Systemic Discrimination

Data highlights deep socioeconomic and caste-based disparities in India’s death penalty system. Most death row prisoners come from marginalized, poor, and less-educated backgrounds, often without access to adequate legal aid.^[13] A Project 39A study found that 45% of inmates belong to SC/ST or minority communities, reflecting the impact of systemic inequality. Even former President A.P.J. Abdul Kalam^[14] acknowledged this strong social and economic bias, which continues to challenge the fairness and equality of capital sentencing in India.

Wrongful Convictions

The irreversible nature of the death penalty heightens concerns about judicial errors. High-profile acquittals of men after years on death row due to fabricated evidence and investigative lapses spotlight grave miscarriages of justice.^[15] The Supreme Court has begun recognizing these errors and the constitutional right to compensation for wrongful death convictions. ^[16]  Repeated judicial errors, especially in terrorism cases, underline the risks inherent in capital punishment.^[17]

MORAL AND PHILOSOPHICAL ARGUMENTS

Retentionist Perspectives

Supporters of the death penalty invoke retributive justice, deterrence, incapacitation, and victim vindication as its core justifications. They contend that the gravest crimes warrant the severest punishment and that capital punishment serves as a deterrent to potential offenders.^[18] Terrorism-related offences are often cited to justify its necessity for public safety and societal condemnation, with public opinion largely favoring its retention in heinous crimes such as rape and terrorism.^[19]

Abolitionist Positions

Opponents emphasise the sanctity of life, the right to dignity, and the potential for error. Rooted in India’s religious traditions of non-violence and compassion, abolitionists reject state-sanctioned killing comprehensively.^[20] Mahatma Gandhi famously opposed the death penalty, advocating that only God may take life.^[21]

Empirical studies increasingly challenge the deterrence rationale, showing no evidence that the death penalty prevents crime more effectively than life imprisonment.^[22] Concerns over arbitrary sentencing, systemic bias, and the disproportionate impact on marginalized and poor communities further weaken the case for its retention. Moreover, the irreversible nature of execution and the psychological suffering it inflicts on both convicts and victims’ families add complex moral and human dimensions to the debate.^[23]

Retribution vs. Reform

The Indian judiciary has increasingly emphasized reformative justice as an integral complement to retribution, seeking a more balanced and humane approach in capital sentencing. In Shatrughan Chauhan v. Union of India (2014), the Supreme Court recognized mental health, delay, and reformation potential as crucial considerations before confirming a death sentence. Similarly, in Vikram Singh v. Union of India (2015), the Court reaffirmed that punishment must align with constitutional values and the possibility of rehabilitation.^[24] These decisions illustrate a gradual shift away from purely punitive philosophies, reflecting an evolving jurisprudence grounded in dignity, proportionality, and human rights norms.

Law Commission Recommendations and Reform Proposals

The Law Commission’s 262nd Report (2015) advocates abolition for all crimes except terrorism, citing lack of deterrent effect, systemic arbitrariness, and evolving constitutional morality.^[25] It calls for improved trial processes, victim compensation, and enhanced appellate scrutiny. However, this report remains unimplemented, and post-2023 legislation expanded death penalty offenses, signalling a policy divergence from abolitionist goals.^[26]

Global Context

As of 2024, India remains one of approximately 55 countries that continue to retain the death penalty, while over 110 nations have abolished it either in law or in practice.^[27] Globally, executions have become increasingly concentrated in a small number of states, and India has observed a de facto moratorium since its last execution in 2020. International human rights frameworks, including the ICCPR and successive UN General Assembly resolutions, ^[28]consistently advocate for the abolition of capital punishment. However, India’s continued retention and resistance to abolition treaties place it in divergence from the prevailing global human rights consensus.

Alternatives and Future Directions

Life imprisonment without parole has emerged as the most viable alternative to the death penalty, striking a balance between punishment, human dignity, and the possibility of reform. Recent judicial pronouncements have endorsed extended life terms with limited or no remission as practical substitutes that maintain proportionality while avoiding the finality of execution. Alongside this, structural reforms in policing, prosecution, and judicial administration are essential to ensure greater fairness, consistency, and accuracy in the adjudication of serious offences.^[29]

CONCLUSION

The death penalty debate reflects core tensions between justice, human rights, and moral philosophy in India. Despite limitations imposed by law and the judiciary, the system suffers from arbitrariness, bias, and unreliability that undermine legitimacy. India’s constitutional ethos, philosophical heritage, and global consensus urge the abolition and embrace of rehabilitative justice. Political will and legal reform are crucial to move beyond retentionist inertia toward a humane, just, and equitable criminal justice system.

BIBLIOGRAPHY

• Bachan Singh v. State of Punjab, (1980) 2 SCC 684 (India).
• Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947 (India).
• Machhi Singh v. State of Punjab, (1983) 3 SCC 470 (India).
• Mithu v. State of Punjab, AIR 1983 SC 473 (India).
• Shatrughan Chauhan v. Union of India, (2014) 7 SCC 798 (India).
• Law Commission of India, Report No. 262 (2015), Death Penalty.
• Law Commission of India, Report No. 35 (1967), Capital Punishment.
• Bharat Nyaya Sanhita Act, 2023.
• Protection of Children from Sexual Offences Act, 2012.
• Constitution of India, 1950.
• IndiaSpend, “564 People on Death Row in India,” Mar. 2025.
• BBC News, “Delhi Nirbhaya Rape Death Penalty,” Mar. 2020.
• Project 39A Report, National Law University Delhi (2025).
• Death Penalty Information Center, 2024 Annual Report.
• United Nations Human Rights Council Reports and Resolutions.
• Various Supreme Court Cases on Death Penalty jurisprudence (2015-2025).
• APJ Abdul Kalam, Public Speeches and Statements on Death Penalty.

^[1]Jagmohan Singh v. State of U.P., AIR 1973 SC 947.

^[2] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

^[3] Machhi Singh v. State of Punjab, (1983) 3 SCC 470.

^[4] See discussion in Law Commission of India, Report No. 262 (2015)

^[5] Mithu v. State of Punjab, AIR 1983 SC 473.

^[6] Shatrughan Chauhan v. Union of India, (2014) 7 SCC 798.

^[7] Bharatiya Nyaya Sanhita, 2023, §§ 70, 103, 113.

^[8] Protection of Children from Sexual Offences Act, 2012.

^[9] CrPC § 354(5).

^[10] Constitution of India, arts. 72, 161.

^[11] IndiaSpend, “564 People On Death Row In India,” Mar. 2025

^[12] BBC News, “Delhi Nirbhaya Rape Death Penalty,” Mar. 2020

^[13] Project 39A Report, NLU Delhi (2025).

^[14] APJ Abdul Kalam, Presidential Remarks on Death Penalty Bias, 2015.

^[15] Kattavellai acquittal, Supreme Court India (2025).

^[16] Ramkirat Munilal Goud acquittal, Supreme Court India (2025).

^[17] Law Commission Report No. 262, 2015.

^[18] Law Commission Report No. 35 (1967)

^[19] Surveys, e.g., Ipleaders Blog, 2022

^[20] UN Human Rights Council Resolutions (2024).

^[21] M.K. Gandhi, quoted in literature.

^[22] Law Commission No. 262 (2015).

^[23] UN Reports, Psychological Impact Studies (2022)

^[24] Supreme Court judgments, 2015–2025.

^[25] Law Commission of India, Report No. 262 (2015).

^[26] Bharatiya Nyaya Sanhita (2023).

^[27] Death Penalty Information Center, 2024.

^[28] ICCPR, art. 6; UNGA Resolutions.

^[29] Law Commission Report No. 262.