Published on: 11th December 2025
Authored by: Wendy Maru Sehlaga
University of Johannesburg
Abstract
In most parts of the world, death penalty has sparked deep controversy. People have different various perspectives and opinions about death penalty. Death penalty is also known as capital punishment or a judicial homicide, the sanctioned killing of a person as a legal punishment. The Death Penalty has been a mode of punishment since time immemorial.[1]The death penalty has its deep-rooted presence in the Indian legal system. The intense debate about death penalty in India has been ongoing for a prolonged period. The thought provoking question is whether the state has legal authority to take away a life as a punishment for a crime they have committed. Does that not constitute to the violation of fundamental human rights which are inalienable? This legal article aims to revisit the death penalty debate in India by examining the existing law, morality and reform. Thereby, highlighting the legal foundation of the Indian current legal system, morality justification and the pressing need for the judicial reform. This legal article seeks to offer understanding of the historical and legal foundation of the capital punishment in India. This paper is evaluates the comparative case analysis, death sentences and executions, moral and ethical perspectives, challenges and issues along with recommendations.
Introduction: Understanding Death Penalty in India
The concept of death penalty refers to an execution or a legal measure taken by the judiciary to take one’s life by killing them as a legal punishment for a crime they committed usually after court conviction. The use of the death penalty as a form of punishment can be traced back to the earliest human civilizations.[2] The first established death penalty laws date as far back as the Eighteenth Century BCE in the Code of King Hammaurabi of Babylon, which codified the death penaly for 25 different crimes.[3] Examples for death penalty include hanging, gas chamber, electrocution, firing squad, lethal injection, stoning and crucifixion. The death penalty as a punishment has existed on the statute books since 1860 when the IPC was enacted while India was still a British colony post- independence, it was adopted by the Parliament of India.[4] In the present day, in the Indian legal system the death penalty is legally sanctioned for the “rarest of rare” crimes. While the application of death penalty in India remains a legal punishment for the ‘rarest of rare’ cases of crime. Its effect raises concerns to the public about fundamental human rights, systemic errors and judicial discretion. It has continuously raised deep heated discussions.
Comparative Case Analysis
In South Africa, the last execution took place on 14 November 1989 of Solomon Ngobeni who was hanged. Shortly afterwards, there as a moratorium which meant that there was an official suspension or pause of death penalty until a solution has been found. Thereby, resulting to the abolishment of death penalty in the land marking case of S v Makwanyane and Another.[5] The first case in South Africa to challenge the constitutionality of death penalty. In this case the Constitutional Court held that the death penalty was inconsistent with the Constitution of the Republic of South Africa therefore declared to be unconstitutional. The Court struck down Section 277 (1) (a) of the Criminal Procedure Act.[6] The Act had then granted the superior courts the authority to pass a death sentence upon a person who has been convicted for murder. The sections that promoted death penalty were declared invalid. After the final judgement of S v Makwanyane and Another, all the death row sentences at the time were changed to sentences of imprisonment instead of death penalty. Death penalty was no longer enforced till present day in South Africa. The court upheld Section 9 (right to life), 10 and Section 11 (2) of the Interim Constitution.[7] These sections provide the right to life, the right to dignity and the right not to be subjected to the inhumane, cruel or even degrading punishment. The final court’s judgement affirmed the obligation of the state to ensure protection of fundamental human rights even though it meant overturning the previous legal precedents or laws. In the land marking Indian case of Bachan Singh v State of Punjab,[8] which challenged the constitutionality of death penalty in India. The Supreme Court of Appeal reaffirmed the constitutionality of the death penalty. The Court upheld the capital punishment in accordance with Section 302 of the Indian Penal Code (IPC).[9] The Court’s ruling in Bachan Singh v State of Punjab upheld the constitutionality of death penalty but placed exceptions upon its use. The Court established a legal principle of “rarest of rare” doctrine. The Doctrine dictates on what grounds the death penalty be applied. It can only be used in the most extraordinary cases such as extremely brutal or heinous crimes where no other punishment would sufficient. The Court’s approach emphasized the careful interpretation and application of capital punishment, aiming to create a stable balance of justice with humanity and fairness.
Death sentences statistics and executions
According to the Amnesty International recent 2024 report, in 46 countries at least 2, 087 death sentences were recorded and at least 1,518 executions in 15 countries. From 2023, a 32% increase. China, Iran, Saudi Arabia, Egypt, and the U.S. are among the countries with the highest execution numbers, though actual figures for China are secret. Globally, more than 70% of countries have abolished the death penalty in law or practice, with Kazakhstan and Papua New Guinea being recent examples. [10] About112 countries in the world abolished death penalty for all crime. Additionally, 9 countries abolished death penalty for ordinary crimes only, with exceptions placed on crimes committed in times of war. On the other hand, 23 countries which can be considered abolitionist in practice as they have not held any execution for the last 10 years and they are believed to have a policy or an established practice of not carrying out executions. Therefore, in total 144 countries in the world had abolished the death penalty in law while at least 55 countries still continue to uphold it till present day. The number of death sentences and executions keep on rising even though many countries abolished it.[11] The key recent developments of 2025 data includes the abolishing of death penalty in Zimbabwe. Over 60 people will have their death sentences commuted, according to New Zimbabwe, which also that military death sentences will be changed to life with possibility of parole after 20 years in a civilian prison.[12] In 2024 Saudi Arabia carried out a record 345 executions. So far this year between January and June 2025, Saudi Arabia executed a total of 180 people.[13] Since the beginning of 2025, Saudi Arabia has reportedly executed 141 individuals, approximately 68 of whom were foreign nationals. The vast majority were reportedly executed for non-lethal drug offences, in clear violation of international law.[14] The death sentences and statistics reflect not only on how countries conduct capital punishments but also what it values, whether it leans towards fair justice and human dignity or even one that is shaped by inequality, control or fear.
Moral and Ethical Perspectives
Globally, the capital punishment debate remains as one of the prolonged public heated discussions, contradicting issues morally and ethically. The different perspectives range across the religious beliefs, cultural values and legal systems. Morally, most of the people perceive death penalty as a way of retributive justice for most of the evil and heinous crimes. This implies that it is seen to be good for the heinous crimes committed. The argument is that the executions deeply show value and respect for the life of the victim along with serving the murderer with what they deserve as a way of holding them liable for their actions. Supporters argues that it is also strong deterrent, meaning that it can be able to stop or prevent people from committing murder. Morally, it is also believed that capital punishment promotes the consistency of violence and undermines the value of rehabilitation. The moral defense of the death penalty is the principle of justice. While some perceive it as inconsistent with the constitutional values and principles some believe that it upholds the principles of justice and it is constitutional. From a realistic perspective, some argue that capital punishment can prevent serious crimes and the negative side effects it causes may outweigh any benefits. Ethically, many people argue that death penalty violates the fundamental right to dignity and right to life. The retributive justice supports the capital punishment as much as others view it as inhumane. Retributive justice suggests that those who commit extreme and severe offenses deserve the capital punishment. Some argue that capital punishment may result in poses the biased judicial system, the risk of irreversible errors and flawed legal system. The religious perspectives are many, some support the death penalty for justice, to emphasize mercy or forgiveness. Overall, the main aim is that capital punishment challenges us to make a choice between the retribution and a more just, humane and fair society.
Challenges and Issues
The death penalty brings forth the different challenges and issues for countries. One of the biggest challenge is the high risk of error. The judicial systems may make mistakes of executing a person who is innocent or has been framed. This irreversible action cannot be fixed in any way. This high risk challenge is often regarded as a valid reason for abolishing death penalty as a legal punishment. Another disadvantage is socio-economic bias. It leads to unfair application of death penalty to individuals who cannot be able to afford good legal representatives which leads to inadequate defense. This increases the likelihood of innocent people suffering for crimes they did not commit by being executed. Additionally, it makes the process turn into a legal punishment grounded on income instead of the severity of the crime. The danger that danger innocent people will be executed because of errors in the criminal justice system is getting worse.[15] Since 1973, 185 wrongful death penalty convictions have been recorded in the US, with one for every 8.3 executions.[16] There has not been any strong evidence that proves that death penalty prevents crime. Overall, the challenges within the legal systems regarding death penalties call into question the continued use of capital punishment in the modern justice systems.
Recommendations
Reforming the capital punishment within the legal system can be possible with thorough changes and reviewing of the systemic errors. Reform can be done through strict implementation of the law. For instance, permanently abolishing the death penalty and enforcing a life sentence without parole. Indian legal system can also consider complying with the Second Optional Protocol to the International Covenant on Civil Rights and Political Rights which aims to abolish the death penalty The Indian legal system can consider the moratorium which means that they can impose a temporary suspension of executions while they amend the current existing legislations or find a permanent solution. The judiciary of the country can strict standards of evidence, they can require DNA evidence or conclusive forensic. The Indian judiciary could ensure that before they do execution, the death sentence is reviewed cautiously by the multi-level judicial review. This will assist to prevent any wrongful convictions and uphold the fundamental human rights. India can ensure consistent investment of restorative justice. To prevent any further crime or the root causes of death penalty, the Indian judiciary can start initiatives to raise awareness, educate the public and crime prevention along with rehabilitation programs. The main aim for India’s legal system should not be to legally punish only. However, to ensure justice while upholding the constitutional values and fundamental human rights. [17] Another recommendation is that there should be improved legal representation for defendants in order to ensure fair trial proceedings and prevent unfair adjudication. India can learn from the abolitionist countries such as South Africa and Canada. In order to reform the justice system, India can work with non-profit organizations such as Amnesty International global movement.
Conclusion
Conclusively, the ongoing debate about death penalty in India brings a lot of important questions about law, morality and reform. As much as the law aims to ensure the protection of the society, morality asks us to consider the value of everyone’s life and the need for reform. The need for legal reform is important to ensure fair justice. In the legal system as much as justice is important, a balanced and humane approach is also important. The fundamental rights of people should be upheld in law. The death penalty is beyond punishment. It shows how India is committed to justice and human rights. As India progresses, the debate about death penalty will not only test the existing laws, however the justice system that is being built. Perhaps the real strength of justice lies not in the harsh punishment but in how deeply we believe in the power of making change impartially and maintaining the constitutional values within the societies.
[1] Bahati A, ‘The Death Penalty’ (Tanzania Law Reform Commission presented at the ALRAESA conference, Entebbe, 4-8 September 2005)
[2] Llewelyn G Curlewis; Katelyn-Mae Carter, ‘Can The Death Penalty Still Be Considered A ‘Cruel, Inhumane and Degrading Punishment in The Face Of South African Prison Conditions?’ (1 June 2024) page 482 < https://journals.co.za/doi/10.10520/ejc-obiter_v45_n2_a15 >accessed on 18 October 2025
[3] Death Penalty Information Center, ‘History of the Death Penalty’(High School Resources) < https://deathpenaltyinfo.org/resources/high-school/about-the-death-penalty/history-of-the-death-penalty >accessed on 18 October 2025
[4] Anup Surendranath and Maulshree Pathak ‘Legislative Expansion and Judicial Confusion: Uncertain Trajectories of the Death Penalty in India’ (2022) 11 Int J Crime Justice Soc Dem (3) <https://doi.org/10.52004/ijcjsd.2477 >accessed on 19 October 2025
[5] S v Makwanyane and Another (CCT3/94) [1995] ZACC 3
[6] Criminal Procedure Act 51 of 1977
[7] The Interim Constitution of The Republic of South Africa Act 200 of 1993
[8] AIR 1980 SC 898.
[9] Indian Penal Code 1860
[10] Amnesty International. Death Penalty <https://www.amnesty.org/en/what-we-do/death-penalty>accessed on 20 October 2025
[11] World Coalition Against the Death Penalty, <https://worldcoalition.org > accessed on 20 October 2025
[12] Barrison H, ‘Zimbabwe Abolishes the Death Penalty’ Equal Justice Initiative < https://eji.org/news/zimbabwe-abolishes-the-death-penalty/ > accessed on 20 October 2025
[13]Amnesty International, ‘Saudi Arabia: Escalation of executions for drug-related offences’ <https://www.amnesty.org/en/latest/news/2025/07/saudi-arabia-escalation-executions-foreign-nationals-drug-related-offences/ >accessed 20 October 2025
[14] United Nation Human Rights Press Releases, ‘UN experts urges Saudi Arabia to halt imminent execution of 26 Egyptian nationals for drug–related offences’ <https://www.ohchr.org/en/press-releases/2025/06/un-expert-urges-saudi-arabia-halt-imminent-execution-26-egyptian-nationals >accessed on 20 October 2025
[15] R C Dieter. ‘Innocence and the Death Penalty: The increasing Danger of Executing the Innocent’ < https://deathpenaltyinfo.org/research/analysis/reports/in-depth/innocence-and-the-death-penalty-the-increasing-danger-of-executing-the-innocent > accessed on 21 October 2025
[16] The Death Penalty Project, ‘Wrongful Convictions And The Death Penalty’ <https://deathpenaltyproject.org/wp-content/uploads/2022/11/The-Death-Penalty-Project_Policy-Wrongful-convictions >accessed on 21 October 2025
[17] Maneka Gandhi v Union of India, AIR 1978 SC 597; Constitution of India, Arts. 14 and 21
