Revisiting the death penalty debate in India: law, morality, and reform

Abstract

 The death penalty continues to shape some of the most painful conversations around justice in India. Behind every capital case lies a human story- of victims, seeking closure, family struggling with grief, and accused persons whose lives depend on the fairness of the systems. Although Indian laws allows capital punishment only for heinous crimes, the supreme court urges the extreme caution through the ‘rarest of the rare’ principle. This article revisits the debate by looking not only at the legal framework but also at the deeper moral question it raises about the dignity and possible reforms. It also reflects on the challenges within our justice system- unequal access to legal aid, risk of wrongful conviction.

Introduction  

India’s legal system still retains death penalty for heinous crime like murder, terrorism, treason, the CrPC, IPC still serves as the pillar for death penalty. The topic of capital punishment is controversial because it creates a gap between moral and legal values. Some people supports the capital system to show the outrage of the society and some argues that it does not align with human rights, Though supreme court use ‘rarest of the rare’ doctrine to issue death penalty but some countries are moving towards the abolition of death penalty, conventions like The Universal Declaration of Human rights (UDHR) and international covenant on civil and political rights (ICCPR) are advocating for its abolition while India has not signed the second protocol to ICCPR, it faces pressure for the abolishment of the provision of death penalty.[1]  This paper aims to analyse the death penalty through legal background and moral perspective, and will discuss about the possible reforms.

Legal background

The constitution of India does not have a specific provision containing death penalty but, does not ban the capital punishment too, for sentencing death punishment the fairness and due process is required. Article 21’ guarantee’s the right to life and liberty, stating that “no person shall be deprived of his/her life or personal liberty, except according the procedure established by law.”[2] The death penalty is prevalent from the ancient time, several legislative acts from the colonial or modern time included the capital punishment. Indian penal code includes death penalty under section 121 any person connected with waging war against India will be sentenced to death, Under section 132 any person guilty of abatement of mutiny could be sentenced to death, Under section 302 death penalty sentence could be issued to a person who would commit murder, under section 305 a person instigating a minor and a person of unsound mind in committing suicide could be sentenced to death under section 364A kidnapping for ransom, section 396 ‘Dacoity with murder’ may face death penalty.[3]

BNS replacing the IPC still mandates death penalty for crime like rape resulting in death (section 66), gang rape of a child below 18 (section 65(2), section 103(1) murder, section 140(2) kidnapping for ransom, section 147 treason.[4]

Though law permits capital punishment it has some restriction too, according to Bachan Singh v/s State of Punjab 1980 case, supreme court propounded the doctrine of ‘rarest of the rare’, and supreme court also sated that death penalty could not be awarded to a minor or pregnant women and intellectual disabled person.

Judicial doctrine and important case laws

In Jagmohan Singh v/s State of Uttar Pradesh, supreme court held that, capital punishment is not a violation of Article 14, 19, and 21, the nature of the crime committed and facts would be examined by the judge before giving death penalty[5]

In Rajendra Prasad V. State of U.P., Krishna Iyer opined that death penalty should be awarded in extreme cases.[6]

In Bachan Singh V. State of Punjab, the supreme court held that death penalty is not unconstitutional, but established the doctrine of ‘rarest of the rare’ the court said that death penalty does not violate the Article 14, 19 and 21, but to award the death penalty the court must provide special reasons for granting capital punishment. It is one of the most popular case in the light of the death penalty.[7]

In Deena Dayal V. Union of India, the supreme court supported the constitutional validity of capital punishment but not for juveniles.[8]

In Macchi Singh V. State of Punjab, the supreme court upheld the ruling of Bachan Singh, but underlined the few circumstances such as-

• Brutal murder
• Bride burning or dowry death
• Outrage in society by the death of SC, ST or Minority
• Murder of child, disabled person and vulnerable women.[9]

There were case laws which maintained the validity of the capital punishment, while borderlining it with doctrine of ‘rarest of rare’, and defended it with statement that the courts must examine accused’s background, mental health and circumstances of the case before awarding the capital punishment .

Moral/ethical Debate   

Capital punishment is the highest punishment awarded to an accused, it is irreversible, that’s why many people are against the execution of death penalty, while on the other hand many are in favour of it. After the Independence in India there were 720 executions according to the official sites, but in majority of the cases death penalty was converted into the life imprisonment and some of them were acquitted,[10] people believe that it is necessary to maintain deterrence in society and while some criminologists and scholars believe that capital punishment is infringement of fundamental rights and in favour of abolishment of death penalty.

Argument in Favour   

The argument in favour of death penalty is mostly to give justice to the family of the victims, that heinous crime suffered by the victim, their family demands justice by giving death penalty to the criminal.

The main objective of the death penalty is deterrence, to stop would-be criminal committing crime, by setting an example that criminals would suffer for their wrongdoings.

Thomas Acquinas noted that by the death penalty, criminal would be compensating their evil deeds, and could get rehabilitation.[11]

Retribution is basic argument behind the death penalty, that every criminal deserves punishment, it is often supported with the principal “An Eye for An Eye”. [12]

Japan uses death penalty, executing approx. 3 prisoners per year. They believe that by doing so it encourages the belief in the heart of the people that bad things happen to bad people, approx. 81% of the population of Japan is in favour of capital punishment.[13]

Arguments against the Capital punishment

Critics argue that death penalty is the violation of human rights following the principal of deontological ethics, which means that depriving someone of their life is morally wrong.[14]

The judicial system is not perfect, understatement data shows that wrong convictions could happen, and because of the irreversible nature of capital punishment, it is opined that death penalty should be abolished.

There is lack of evidence proving that capital punishment is effective in deterring crime. The most of the accused being awarded by the death penalty are from SC, ST, or Minority, critics argue that the nature of the capital punishment is discriminatory, poor people are more likely to get executed because they can’t hire an effective lawyer for themselves.[15]

Data & trends

In the end of 2024, 546 people were sentenced to death, this is the highest number of people being awarded death penalty. It was also noted that at least 86% of accused were sentenced with lack of information about the prisoners.[16] death penalty given in the sexual offences have also comprised, last time the death penalty was given in the rape case was Nirbhaya case in 2020, in India mostly cases of capital punishment turns into life imprisonment. BNS replacing IPC has also added the 4 new sections for capital punishment expanding the scope of death penalty.

International and comparative perspective

Many countries have abolished the capital punishment including ‘International Covenant on Civil and Political Rights’ (ICCPR), ‘European Convention on Human Rights’, and ‘The American Convention on Human Rights’, prohibits death penalty. [17] In the second protocol of international convent on civil and political right there are 92 states that are parties to the protocol, and 40 are signatories.[18] But India has not signed to this protocol and getting pressure to abolish the capital punishment, India defends its position by arguing that it needs the capital punishment in case of heinous crimes and to maintain deterrence, approximately 150 countries have either abolished or imposed strict conditions in the executions of capital punishment.

Legal Reform suggestions     

The 262^nd report of the law commission on death penalty recommended to abolish the death penalty except those related to terrorism.[19]

In the case of Bachan Singh v/s state of Punjab supreme court proposed the doctrine of ‘rarest of rare case’ that capital punishment should be given in the rare case after considering all the circumstances of the case, and India should also improve and help the poor for legal representation in the court.

Conclusion

The death penalty debate in India is ultimately about balancing justice with humanity. While the law allows capital punishment for the most serious crimes, concerns about fairness, wrongful convictions, and unequal access to justice cannot be ignored. As the world moves toward limiting or abolishing it, India must carefully reflect on how to protect society while still upholding dignity and fairness. The conversation isn’t just about punishment—it’s about building a justice system people can trust.

References

1. Revisiting The Death Penalty Debate In India: Law, Morality & Reform, Lawful Legal ( July 17, 2025), Revisiting The Death Penalty Debate In India: Law, Morality & Reform » Lawful Legal
2. The Constitution of India, 1949, article 21
3. Indian Penal code, NO. 45 of 1860.
4. Bharatiya Nyaya Sanhita, 2023.
5. Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 SCC 20 (India).
6. Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646 (India).
7. Bachan Singh v. State of Punjab, (1980) 2 SCC 684 (India).
8. Deena Dayal v. Union of India, (1983) 4 SCC 645 (India).
9. Macchi Singh v. State of Punjab, (1983) 3 SCC 470 (India).
10. Vageshwari Deswal, Does Death Penalty Deter Crime?, Times of India Voices(February 11, 2020), Does death penalty deter crime?
11. Death Penalty, Drishti IAS, Death Penalty
12. BBC – Ethics – Capital Punishment: Arguments in Favour of Capital Punishment, BBC, BBC – Ethics – Capital punishment: Arguments in favour of capital punishment
13. Ethics of Capital Punishment, Current Affairs, Vision IAS (May 22, 2025), Ethics Of Capital Punishment | Current Affairs | Vision IAS
14. Death Penalty India Report, Project 39A, Project 39A — Death Penalty India Report [1] INTERNATIONAL LAW AND ABOLITION OF THE DEATH PENALTY, The Death Penalty Project, The-Death-Penalty-Project_Policy-International-Law.pdf
15. Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, chapter IV Human Rights, UNTC, 15 December 1989, UNTC
16. Rajgopal Saikumar, NEGOTIATING CONSTITUTIONALISM AND DEMOCRACY: THE 262ND REPORT OF THE LAW COMMISSION OF INDIA ON DEATH PENALTY, (2016) Vol. 12(1) Socio-Legal Review 81, NEGOTIATING CONSTITUTIONALISM AND DEMOCRACY: THE 262ND REPORT OF THE LAW COMMISSION OF INDIA ON DEATH PENALTY

[1] Revisiting The Death Penalty Debate In India: Law, Morality & Reform, Lawful Legal ( July 17, 2025), Revisiting The Death Penalty Debate In India: Law, Morality & Reform » Lawful Legal

[2] The Constitution of India, 1949, article 21.

[3] Indian Penal code, NO. 45 of 1860.

[4] Bharatiya Nyaya Sanhita, 2023.

[5] Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 SCC 20 (India).

[6] Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646 (India).

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

[8] Deena Dayal v. Union of India, (1983) 4 SCC 645 (India).

[9] Macchi Singh v. State of Punjab, (1983) 3 SCC 470 (India).

[10] Vageshwari Deswal, Does Death Penalty Deter Crime?, Times of India Voices (February 11, 2020), Does death penalty deter crime?

[11] Death Penalty, Drishti IAS, Death Penalty

[12] BBC – Ethics – Capital Punishment: Arguments in Favour of Capital Punishment, BBC, BBC – Ethics – Capital punishment: Arguments in favour of capital punishment

[13] Ibid.

[14] Ethics of Capital Punishment, Current Affairs, Vision IAS (May 22, 2025), Ethics Of Capital Punishment | Current Affairs | Vision IAS

[15] Death Penalty India Report, Project 39A, Project 39A — Death Penalty India Report

[16] Ibid.

[17] INTERNATIONAL LAW AND ABOLITION OF THE DEATH PENALTY, The Death Penalty Project, The-Death-Penalty-Project_Policy-International-Law.pdf

[18] Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, chapter IV Human Rights, UNTC, 15 December 1989, UNTC

[19] Rajgopal Saikumar, NEGOTIATING CONSTITUTIONALISM AND DEMOCRACY: THE 262ND REPORT OF THE LAW COMMISSION OF INDIA ON DEATH PENALTY, (2016) Vol. 12(1) Socio-Legal Review 81, NEGOTIATING CONSTITUTIONALISM AND DEMOCRACY: THE 262ND REPORT OF THE LAW COMMISSION OF INDIA ON DEATH PENALTY