Published on: 18th January 2026
Authored By: Laxita Raju Hawelikar
ILS Law College, Pune
INTRODUCTION
The death penalty remains one of the most polarising issues in India’s criminal justice discourse, occupying a complex intersection of constitutional law, penology, morality, and human rights jurisprudence. Whilst India retains capital punishment for the ‘rarest of rare’ cases, the debate surrounding its legitimacy, application, and reform has intensified considerably in recent decades. This discourse raises fundamental questions about the State’s power to take life, the efficacy of capital punishment as a deterrent, and the procedural safeguards necessary to prevent irreversible miscarriages of justice.
India’s retention of the death penalty places it amongst a shrinking minority of nations that continue this practice. As of 2024, over two-thirds of countries have abolished capital punishment in law or practice. Despite international pressure and domestic criticism, India maintains that capital punishment serves a legitimate penological purpose within its constitutional framework. However, mounting empirical evidence regarding wrongful convictions, systemic biases, and the lack of demonstrable deterrent effect has reignited calls for comprehensive reform, if not complete abolition.
This article examines the constitutional validity of capital punishment in India, analyses the ‘rarest of rare’ doctrine and its application, explores the moral and penological justifications for and against the death penalty, and proposes reforms to address existing inadequacies within the current framework.
CONSTITUTIONAL FRAMEWORK AND JUDICIAL EVOLUTION A. Constitutional Validity of Capital Punishment
The constitutional validity of the death penalty in India has been examined and upheld by the Supreme Court on multiple occasions. In Jagmohan Singh v State of Uttar Pradesh (1973), the Supreme Court first addressed the constitutionality of capital punishment under Article 21 of the Constitution. The Court held that the death penalty did not violate the right to life guaranteed under Article 21, reasoning that the phrase ‘except according to procedure established by law’ contemplated deprivation of life through lawful procedure.
Subsequently, in Rajendra Prasad v State of Uttar Pradesh (1979), the Court reaffirmed this position whilst acknowledging the need for procedural safeguards. However, the watershed moment arrived with Bachan Singh v State of Punjab (1980), where a Constitutional Bench comprehensively examined the death penalty’s constitutional validity. By a 4:1 majority, the Court upheld capital punishment but introduced the ‘rarest of rare’ doctrine, mandating that death should be imposed only in exceptional circumstances when the alternative option of life imprisonment is ‘unquestionably foreclosed’.
The dissenting opinion of Justice Bhagwati in Bachan Singh merits attention, as it articulated a powerful abolitionist position grounded in constitutional morality. Justice Bhagwati argued that the death penalty violated the right to life under Article 21 and the dignity of the individual under Article 21 read with the Directive Principles. He contended that capital punishment was arbitrary, capricious, and constituted cruel and unusual punishment, thereby transgressing constitutional boundaries.
The ‘Rarest of Rare’ Doctrine: Evolution and Application
The ‘rarest of rare’ doctrine articulated in Bachan Singh serves as the cornerstone of India’s death penalty jurisprudence. The judgment established a bifurcated sentencing hearing process wherein courts must first consider aggravating circumstances (such as brutality, premeditation, and threat to society) and mitigating circumstances (including age, mental state, probability of reformation, and socio-economic background) before determining the appropriate sentence.
In Machhi Singh v State of Punjab (1983), the Supreme Court further elucidated five categories of cases that could qualify as ‘rarest of rare’: (i) manner of commission of murder (extreme brutality); (ii) motive for commission (anti-social or socially abhorrent); (iii) anti social or socially abhorrent nature of the crime; (iv) magnitude of the crime; and (v) personality of the victim.
Despite these guidelines, the application of the ‘rarest of rare’ doctrine has been criticised for inconsistency and subjectivity. The Law Commission of India, in its 262nd Report (2015), observed significant arbitrariness in death penalty imposition, noting that similarly situated defendants received disparate sentences based on the presiding judge’s subjective assessment rather than objective criteria. This inconsistency raises serious questions about the doctrine’s efficacy in ensuring equal protection under Article 14 of the Constitution.
Recent Judicial Developments
Recent Supreme Court decisions reflect evolving judicial consciousness regarding capital punishment. In Shatrughan Chauhan v Union of India (2014), the Court recognised mental illness and prolonged incarceration on death row as grounds for commutation, acknowledging the dehumanising effect of extended death row detention. Similarly, in Sangeet v State of Haryana (2013), the Court emphasised that reform and rehabilitation potential constitute crucial mitigating factors.
The landmark judgment in Mohd Arif v Registrar, Supreme Court of India (2014) introduced a categorical prohibition against executing individuals who committed crimes as juveniles, aligning Indian jurisprudence with international human rights standards. Furthermore, in Mukesh v State (NCT of Delhi) (2017) (the Nirbhaya case), whilst upholding death sentences, the Court reiterated that each case requires individualised sentencing consideration, and death should not be imposed based solely on public sentiment or the heinousness of the offence.
MORAL AND PENOLOGICAL JUSTIFICATIONS
- Retributive Justice and Societal Revenge
Proponents of capital punishment often invoke retributive justice as a primary justification, arguing that certain crimes are so heinous that death constitutes the only proportionate punishment. This ‘eye for an eye’ philosophy posits that the death penalty vindicates societal moral order and provides closure to victims’ families. The Indian judiciary has occasionally endorsed this rationale, particularly in cases involving brutal sexual violence or terrorism.
However, critics contend that retribution should not be conflated with revenge, and that a civilised society must transcend primitive notions of vengeance. The retributive argument presupposes moral certainty regarding guilt and proportionality, yet the criminal justice system operates through fallible human institutions. Moreover, empirical studies demonstrate that victims’ families experience diverse responses to capital punishment, with many finding greater solace in alternative forms of justice rather than execution.
- Deterrence: Examining the Empirical Evidence
The deterrence rationale posits that capital punishment dissuades potential offenders from committing serious crimes through fear of execution. This argument underpins much legislative and judicial support for the death penalty in India. However, extensive empirical research challenges this assumption. Multiple studies, including those conducted by the National Crime Records Bureau, reveal no statistically significant correlation between death penalty imposition and reduction in murder rates or other capital offences.
Comparative analysis of Indian states with varying rates of death penalty imposition shows no discernible deterrent effect. Furthermore, research on criminal behaviour suggests that most serious crimes are committed in circumstances where deterrence theory has minimal applicability—during emotional states, under substance influence, or with the belief that detection is improbable. The Law Commission’s 262nd Report acknowledged the absence of conclusive evidence supporting deterrence, recommending abolition except for terrorism related offences.
- Irreversibility and Risk of Wrongful Execution
Perhaps the most compelling abolitionist argument concerns the irreversible nature of capital punishment and the documented risk of executing innocent individuals. Project 39A at the National Law University, Delhi, has identified numerous cases involving serious procedural irregularities, inadequate legal representation, and questionable evidence in death penalty cases. The exoneration of individuals from death row following post-conviction investigations underscores systemic fallibility.
In Koli v State of Uttar Pradesh (2011), the Supreme Court acknowledged that ‘the criminal justice system in India is such that error of conviction is highly probable’. Given this acknowledged fallibility, critics argue that the State cannot morally justify imposing an irreversible sanction. Once executed, no remedy exists for wrongful conviction—a reality that fundamentally challenges the death penalty’s legitimacy in any system that acknowledges human error.
SYSTEMIC ISSUES AND REFORM IMPERATIVES
- Arbitrariness and Class Bias in Application
Empirical research reveals disturbing patterns of arbitrariness and socio-economic bias in death penalty imposition. Studies demonstrate that defendants from marginalised communities, lower socio-economic backgrounds, and religious minorities are disproportionately represented on death row. This disparity raises serious equal protection concerns under Article 14 of the Constitution.
The quality of legal representation significantly impacts sentencing outcomes. Most death row convicts lacked adequate legal counsel during trial and sentencing hearings. Inadequate investigation of mitigating circumstances, particularly regarding mental health, childhood trauma, and socio-economic deprivation, results in incomplete sentencing information reaching courts. This systemic inadequacy undermines the individualised sentencing mandate established in Bachan Singh.
- Mental Health Considerations
The intersection of mental illness and capital punishment remains inadequately addressed in Indian jurisprudence. Whilst Shatrughan Chauhan recognised mental illness as a ground for commutation, comprehensive psychiatric evaluation is rarely conducted during trial or sentencing. International human rights law prohibits executing individuals with severe mental disabilities, yet Indian courts lack standardised protocols for assessing mental capacity in capital cases.
Research indicates a significant prevalence of mental health issues, including psychosis, severe depression, and intellectual disabilities, amongst death row prisoners. The failure to adequately assess and consider these factors during sentencing constitutes a serious procedural deficiency that may result in executing individuals who lack full moral culpability for their actions.
- Death Row Phenomenon and Prolonged Incarceration
The phenomenon of prolonged death row incarceration creates additional constitutional concerns. Prisoners in India spend an average of five to seven years on death row, with some remaining for over two decades. This extended period of uncertainty constitutes psychological torture and has been recognised internationally as cruel, inhuman, and degrading treatment.
In Triveniben v State of Gujarat (1989), the Supreme Court acknowledged that inordinate delay in execution could render the death penalty arbitrary. However, subsequent jurisprudence has applied this principle inconsistently. The Court must develop clearer guidelines regarding permissible delay and establish a rebuttable presumption that delays exceeding a specified period warrant commutation.
INTERNATIONAL PERSPECTIVES AND COMPARATIVE ANALYSIS
India’s retention of capital punishment increasingly places it at odds with international human rights norms. The International Covenant on Civil and Political Rights, to which India is a
party, contemplates progressive abolition of the death penalty. The United Nations General Assembly has repeatedly called for a global moratorium on executions, with successive resolutions garnering increasing support.
Comparative analysis reveals that countries similar to India in terms of democracy, legal tradition, and development trajectory have abolished capital punishment without experiencing adverse consequences. Nations such as South Africa, Canada, and numerous European democracies eliminated the death penalty whilst maintaining public safety and respect for victims’ rights through alternative sentencing regimes.
The European Union’s categorical prohibition on capital punishment as a condition of membership reflects a growing international consensus that the death penalty is incompatible with human dignity and modern penological principles. India’s continued retention risks international isolation and contradicts its aspirations toward global human rights leadership.
PROPOSED REFORMS AND THE PATH FORWARD
- Institutional Reforms for Enhanced Procedural Safeguards
If India retains capital punishment, comprehensive institutional reforms are imperative. First, mandatory appointment of competent legal counsel with specific training in capital defence should be ensured from investigation through post-conviction proceedings. Second, standardised protocols for mental health assessment must be developed and applied in all capital cases. Third, independent sentence review mechanisms should be established to ensure consistency and identify arbitrariness.
The establishment of specialised death penalty courts with judges trained in capital sentencing could enhance consistency and reduce arbitrariness. These courts should be required to provide detailed, reasoned judgments explaining why specific aggravating factors outweigh mitigating circumstances and why alternatives to death are foreclosed.
- Restricting Death Penalty Scope
An intermediate reform approach involves restricting capital punishment to the narrowest possible category of offences. The Law Commission’s recommendation to abolish capital punishment except for terrorism-related offences merits serious consideration. However, even this limited retention requires justification beyond retributive sentiment.
Alternative sentencing options, including life imprisonment without parole for specified terms, can satisfy legitimate public safety concerns whilst avoiding irreversibility. Such sentences provide incapacitation without the moral and practical difficulties inherent in capital punishment.
- Towards Abolition: A Principled Approach
The ultimate reform goal should be complete abolition of the death penalty in India. This transition can be accomplished through a phased approach: first, declaring an official moratorium on executions; second, commuting all existing death sentences to life imprisonment; and third, legislative repeal of capital punishment provisions.
Abolition aligns with constitutional values of dignity, equality, and progressivism articulated in the Preamble and Fundamental Rights. It acknowledges the criminal justice system’s fallibility whilst maintaining the State’s capacity to protect society through alternative sanctions. Furthermore, abolition positions India alongside the global majority that has recognised capital punishment as incompatible with human rights and human dignity.
CONCLUSION
The death penalty debate in India encompasses fundamental questions about the nature of justice, the limits of State power, and society’s evolving moral consciousness. Whilst constitutional courts have upheld capital punishment’s validity, mounting empirical evidence regarding its arbitrary application, lack of deterrent effect, and risk of irreversible error demands reconsideration.
The ‘rarest of rare’ doctrine, despite its noble intentions, has failed to provide sufficient safeguards against arbitrariness. Systemic inadequacies in legal representation, mental health assessment, and socio-economic bias undermine the fairness of capital sentencing. Moreover, the absence of credible evidence supporting deterrence, combined with the irreversible nature of execution, raises profound moral questions about the State’s authority to take life.
Reform imperatives range from enhanced procedural safeguards to complete abolition. At minimum, India must address documented arbitrariness through institutional reforms, mandatory competent counsel, and standardised mental health protocols. However, the principled path forward lies in recognising that capital punishment is incompatible with constitutional values of dignity and equality, and with international human rights norms to which India aspires.
As India matures as a constitutional democracy committed to human rights, the question is no longer whether the death penalty can be constitutionally justified, but whether it should be morally and practically retained. The weight of evidence and evolving constitutional morality suggests that the answer is no. The time has arrived for India to join the global majority in abolishing this ultimate sanction and embracing a criminal justice system that protects society whilst honouring human dignity.
BIBLIOGRAPHY
Cases
Bachan Singh v State of Punjab (1980) 2 SCC 684
Jagmohan Singh v State of Uttar Pradesh (1973) 1 SCC 20
Koli v State of Uttar Pradesh (2011) 4 SCC 152
Machhi Singh v State of Punjab (1983) 3 SCC 470
Mohd Arif v Registrar, Supreme Court of India (2014) 9 SCC 737
Mukesh v State (NCT of Delhi) (2017) 6 SCC 1
Rajendra Prasad v State of Uttar Pradesh (1979) 3 SCC 646
Sangeet v State of Haryana (2013) 2 SCC 452
Shatrughan Chauhan v Union of India (2014) 3 SCC 1
Triveniben v State of Gujarat (1989) 1 SCC 678
Legislation
Constitution of India 1950
Indian Penal Code 1860
Code of Criminal Procedure 1973
Secondary Sources
Law Commission of India, ‘Report No 262: The Death Penalty’ (August 2015)
Project 39A, National Law University Delhi, ‘Death Penalty in India: Annual Statistics Report’ (2023)
United Nations General Assembly Resolution 73/175, ‘Moratorium on the Use of the Death Penalty’ (17 December 2018)
