ABSTRACT
The supreme law of the land ‘THE INDIAN CONSTITUTION’ doesn’t recognize and give it’s citizens the “Right to die” or “To take one’s life but due to the rising of crimes against the humanity in the recent time due to modernization, globalization, liberalization, increase in socio- economic disparities, discrimination and these days greed has long been recognized as a potent motivator for heinous crimes and which lead to the commission of violent acts in pursuit of wealth and power. To control the commission of the heinous crime against the humanity, save the lives of human, maintain peace and law & order in the society; the presence of the death penalty as a ‘Deterrent Theory’ is necessary in the rarest of the rare cases established in the judicial pronouncement “BACHAN SINGH V. STATE OF PUNJAB (1980). Let’s take the recent example to understand it more unequivocally, in January 2025, the Sealdah Civil and Criminal Court sentenced a police volunteer to life imprisonment for the rape and murder of a junior doctor within a hospital premises but due to the uproar and widespread protest in the society which demanded that the accused should be convicted with the death penalty, as the societal mindset is set towards that if a person committed a heinous crime then death penalty need to be imposed due to this scenario, the West Bengal government was seeking death penalty considering the brutality and the breach of trust inherent in the crime led the court to classify it under the rarest of the rare category, warranting the maximum penalty. However, on February 7,2025, the High Court rejected the state’s appeal, upholding the original life imprisonment. So, with this case we reach to a conclusion that Indian judiciary exercises extreme caution in granting the death penalty, balancing societal demand for justice with human rights concerns and the doctrine.
KEYWORDS
Death sentence, Article 21, Henious Crime, Humanity, Legal system, Eye for an eye, deterrence, retribution, rarest of the rare.
INTRODUCTION
“Criminals do not die by the hands of the law. They die by the hands of other men”
- George Bernard Shaw
We can analyse that throughout history, many dynasties from the Mughal to the British Rule have emerged and declined, but common thread among them was their use of the death penalty as a means of enforcing justice. The Mughals system of punishment often echoed the EYE FOR AN EYE principle- meaning the punishment was meant to be proportionate to the offense. The Andaman and Nicobar Islands hold the historical significance in the context of death penalty, particularly due to the infamous CELLULAR JAIL in Port Blair, was used by British as a penal colony where political prisoners and convicts faced extreme hardships, known as KALA PANI, exile to these islands was seen as a punishment worse than the death penalty due to isolation, forced labour and inhumane conditions. While not a formal death sentence, it was often considered to a living death. The death penalty is not a recent concept it is evolved since the ancient time. In Dharamashastra and Arthashastra, the death penalty was the considered as the most severe punishment for serious crimes and was linked to moral and religious implications. At that time emphasis was laid on the retributive justice, wherein the severity of the punishment matched the gravity of the crime. The concept of death sentence remains a contentious issue in India due to the societal mindset and framing and execution of the criminal justice system. Some legal scholars are against while some are in favour to consider it as a essential tool for deterrence and retribution, that creates a fear in the mind of the people not to commit any crime against the humanity, to alleviate the crime ratio. In, the world death penalty was first coined by the King Hammurabi of Babylon. The UN in its Charter of Rights has declared death penalty or capital punishment as a crime against humanity and gave suggestions to its member countries to abolish the same. By the end of 2023, 561 prisoners in India are said said to be awaiting the death penalty and marking 45.71% increase since 2015 and the highest number in nearly two decades. Article 21 of the Constitution upholds the sanctity of life, it also allows exceptions where the state can take away the life through a fair, just and reasonable legal procedure which includes the death penalty in cases where courts deem it necessary under the law. There are various statutory provisions that deals with death penalty like BNS, The Commission of Sati (Prevention) Act,1987 and The Narcotics, Drugs and Psychotropic Substances (Amendment) Act, 1988.
RESEARCH METHODOLOGY
This study follows a doctrinal legal research approach, analysing judicial pronouncements, statutory provisions and scholarly literature on the death penalty in India. Primary source include landmark judgements (Bachan Singh v State of Punjab and RG Kar Case, etc.), statutory provisions (BNS, BNSS and Constitutional Articles). Secondary sources includes books, news reports, articles.
REVIEW OF LITERATURE
The death penalty in India has been extensively analyzed through various theoretical lenses, encompassing jurisprudential theories, criminological perspectives, and human rights considerations. This review integrates insights from seminal books and scholarly articles to provide a comprehensive understanding of capital punishment’s evolution and current stance in the Indian legal system.
1. Jurisprudential Theories and Capital Punishment
•Retributive Theory: This theory posits that punishment is justified as a necessary response to moral wrongdoing, serving as a form of societal retribution. Immanuel Kant, in his work “The Metaphysics of Morals”, argues that justice demands the death penalty for murderers, asserting that failing to administer such punishment undermines the moral order.
•Deterrence Theory: This perspective suggests that the threat of severe punishment, such as the death penalty, serves to deter individuals from committing heinous crimes. Jeremy Bentham, in “An Introduction to the Principles of Morals and Legislation”, discusses how the anticipation of punishment can prevent criminal behavior, emphasizing the utilitarian aspect of deterrence.
•Reformative Theory: Contrasting with retribution and deterrence, this theory advocates for the rehabilitation of offenders. Mahatma Gandhi’s philosophy, as reflected in his writings, emphasizes forgiveness and transformation over punitive measures, suggesting that even those who commit grave offenses have the potential for moral reform.
2. Criminological Perspectives
•Socio-Economic Factors: Scholars have examined how socio-economic disparities contribute to criminal behavior. In “Crime and Punishment in India: A Sociological Inquiry”, the author explores the correlation between poverty, lack of education, and the propensity to commit capital offenses, arguing that systemic inequalities often lead individuals toward crime.
•Psychological Factors: The book “Criminal Psychology: Nature, Nurture, Culture” delves into the psychological underpinnings of criminal actions, discussing how mental health issues, upbringing, and cultural influences can lead to behaviors warranting severe punishment, and questioning the efficacy of the death penalty in addressing these root causes.
3. Human Rights Considerations
•Abolitionist Arguments: In “The Death Penalty: A Worldwide Perspective”, Roger Hood and Carolyn Hoyle present a comprehensive analysis of global trends toward the abolition of capital punishment, highlighting the moral and ethical dilemmas associated with state-sanctioned death and its irreversible nature in the face of potential judicial errors.
•Judicial Interpretations: The Indian judiciary’s stance on the death penalty has evolved, with significant emphasis on human rights. The landmark judgment in Bachan Singh v. State of Punjab (1980) introduced the “rarest of the rare” doctrine, limiting the imposition of capital punishment. Subsequent cases, such as Machhi Singh v. State of Punjab (1983), further clarified this standard, underscoring the need for exceptional circumstances to justify the death penalty.
4. Legislative Developments
•Bharatiya Nyaya Sanhita (BNS), 2023: This recent legislative enactment, replacing the Indian Penal Code, retains provisions for the death penalty in cases involving terrorism and treason. The BNS reflects ongoing debates within the legislative framework about the necessity and scope of capital punishment in contemporary society.
RELEVANCE OF DEATH PENALTY IN INDIA AND AT INTERNATIONAL LEVEL
In India death penalty is bases on the theory of the rare cases and it is practiced since a long time. According to the Bharatiya Nyaya Sanhita (BNS), 2023, the death sentence is still an authorized punishment in India for crimes including terrorism, treason, and other serious crimes. The “rarest of the rare” theory, which was developed in Bachan Singh v. State of Punjab (1980), is used by the Indian judiciary to decide when the death penalty is appropriate. Recent judicial trends show a shift towards greater restraint, even though the death penalty is still legal. Courts are increasingly choosing life in prison, particularly in light of delays and the changing understanding of retributive versus rehabilitative justice, as demonstrated in cases such as Shatrughan Chauhan v. Union of India (2014). Additionally, public opinion is strong, especially in situations like the Nirbhaya event in 2012. More than 70% of nations have either outlawed the death penalty or stopped its actual application, indicating a clear trend toward its abolition or restriction on a global scale. The death penalty has continuously been attacked by groups like the United Nations and Amnesty International for its inherent contradiction with human dignity and tendency to lead to wrongful executions. Despite controversial discussions about racial bias and judicial blunders, some nations—most notably some U.S. states—retain and enforce the death sentence, while others, like the United Kingdom and the European Union, have entirely abolished it. Considering abolition to be an essential part of their human rights obligations. On the other hand, countries such as China and a number of Middle Eastern states continue to actively employ the death sentence, frequently defending its usage in situations involving serious narcotics offenses and state security. As a result, even if the death sentence is still upheld in India as a necessary deterrent in certain extraordinary circumstances, judges are becoming more cautious and sensitive to human rights issues. Globally, however, there is a strong push for abolition, which reflects a reassessment of the morality and practicality of the death penalty.
CONSTITUTIONAL DEVELOPMENT OF DEATH PENALTY IN INDIA
India’s death penalty’s constitutional evolution represents an ongoing attempt to strike a balance between the state’s power to punish, people’s fundamental rights, and changing court interpretations. The Supreme Court of India has been instrumental in establishing the legal foundation for the death penalty over the years, guaranteeing that its implementation is impartial, equitable, and not capricious.
- Early Position and Constitutional Provisions:
Although the death penalty is neither expressly prohibited nor supported by the Indian Constitution, it does offer a framework for laws that govern its use. The following are the main constitutional clauses pertaining to the death penalty: “No person shall be deprived of his life or personal liberty except according to the procedure established by law,” reads Article 21 (Right to Life and Personal Liberty). As long as it is carried out in a fair and just manner, this permits the death penalty.
• The President of India and the State Governors have the authority to pardon, reprieve, or remit punishment, including death sentences, under Articles 72 and 161. This provides a key precaution against unlawful executions.
• Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and the Criminal Procedure Code (CrPC): These statutes require the High Court’s confirmation before a death sentence may be executed. Furthermore, the idea of sentence hearings was established under Section 235(2) of the CrPC, which permits convicted individuals to provide mitigating circumstances prior to punishment. Judges had discretion over the death penalty in the early years following independence, which resulted in inconsistent sentencing. But as time has gone on, court rulings have improved its application, making it more organized and consistent with constitutional values.
2. The Development of the Death Penalty in the Courts:
(a) Early Judicial Approach: Validity of Death sentence
• Jagmohan Singh v. State of U.P. (1973): The Supreme Court held that, provided it is applied in accordance with the correct legal process, the death sentence does not contradict Article 21. According to the Court, the right to life is not unqualified and may be limited by a procedure that has been established by law. (a) Introduction of the “Rarest of the Rare” Doctrine
• Bachan Singh v. State of Punjab (1980): This landmark ruling upheld the constitutional validity of the death penalty but restricted its application to the “rarest of the rare” cases. The Court stressed that the death penalty should only be applied in cases where other forms of punishment, such as life in prison, are clearly insufficient.
• In the 1983 case of Machhi Singh v. State of Punjab, the Court clarified the rarest of the rare principle by listing specific situations in which the death penalty might be appropriate, including:
1. Motive: When a particularly horrible crime shocks society’s conscience.
2. Manner of Execution – When the crime involves great violence or remarkable depravity.
3. Magnitude of the Crime – When numerous persons are slain or innocent victims are targeted.
(c) Fortifying Measures to Prevent Arbitrariness
• In the 1983 case of Mithu v. State of Punjab, the Supreme Court overturned Section 303 of the IPC, which required that inmates already serving life sentences be executed.
(d) Human Rights Issues and Execution Delays: In the 2014 case of Shatrughan Chauhan v. Union of India, the court decided that an excessive delay in execution could be a reason to commute the death punishment to life in prison. It held that mental agony owing to extended detention on death row constituted a breach of Article 21.
• Navneet Kaur v. State of NCT Delhi (2014): The death sentence of Devinder Pal Singh Bhullar, a convicted terrorist, was commuted to life imprisonment due to his failing mental condition and protracted delay in execution.
- Current Legislative and Constitutional Developments
• The death sentence is still applicable for serious crimes like terrorism, treason, and egregious sexual offenses under the Bharatiya Nyaya Sanhita (BNS), 2023, which supersedes the IPC. The Supreme Court has stressed the significance of mitigating factors, mental health evaluations, and procedural fairness in death penalty cases, ensuring that executions are not arbitrary but rather based on clearly defined legal principles. This reflects the legislature’s position that the death penalty is required for extreme crimes and national security.
- The Viewpoint and Impact of the World on India:
More than 70% of nations have either abolished or suspended the death sentence, reflecting the general global trend toward its elimination. Amnesty International and the United Nations are two international human rights organizations that have asked India to change its position on the death penalty.
• The European Union (EU), Canada, Australia, and the United Kingdom are among the nations that have abolished the death penalty.
SHIFT FROM ARBITRARY SENTENCING TO STRUCTURAL GUIDELINES IN DEATH PENALTY CASES
A fair and logical approach to the death penalty is ensured by the notable transition from arbitrary sentencing to structured guidelines in India’s death penalty jurisprudence. Earlier, the implementation of the death penalty was primarily left to court discretion, leading to contradictions. However, over time, the Supreme Court has laid down defined sentencing frameworks, establishing protections to minimize arbitrariness and ensure reasoned decision-making.
- The Use of Early Arbitrary Sentencing:
At first, Indian courts had a lot of latitude in deciding whether to execute someone, which frequently resulted in disparate sentences for comparable offenses. Because there were no formal rules, judges’ opinions, rather than consistent legal requirements, greatly influenced the decision to execute someone. • The Supreme Court maintained the legitimacy of the death penalty in Jagmohan Singh v. State of U.P. (1973), but it did not provide any standards for judging when it ought to be applied.
• Because there were unclear sentencing guidelines, death sentences were given inconsistently, raising questions about the impartiality and bias of the legal system.
- The “Rarest of the Rare” Doctrine’s Introduction:
The Supreme Court’s introduction of the “rarest of the rare” doctrine in Bachan Singh v. State of Punjab (1980) marked a significant turning point. This judgment established that the death penalty should not be imposed as a routine punishment but only in cases where:
• The crime is exceptionally brutal, grotesque, or shocking to society’s conscience.
• Life imprisonment is inadequate, and the offender is beyond reform.
• The crime involves extreme depravity, multiple victims, or breach of public trust (e.g., custodial killings). This theory established a legal norm to stop the arbitrary application of the death penalty and served as the basis for structured sentencing.
- The Function of Individualized Consideration and Sentencing Hearings:
The judicial recognition of individualized sentencing hearings marked a dramatic change from arbitrary sentencing to structured guidelines. Earlier, courts often imposed the death penalty immediately after conviction, without a separate review of mitigating circumstances. However, post-Bachan Singh, courts have been compelled to conduct sentencing hearings before giving the death penalty.
• Before sentencing, the accused must appear at a separate hearing in order to offer mitigating circumstances, as required by Section 235(2) of the CrPC.
• Age, socioeconomic status, mental health, lack of a prior criminal record, likelihood of rehabilitation, and executive delay are all mitigating variables.
- Structured Frameworks Are Introduced:
In Manoj & Others v. State of Madhya Pradesh (2022), the Supreme Court ruled that punishment must be evidence-based rather than discretionary, marking a major turning point in the structural reform of sentencing. The ruling highlighted the following points:
• Thorough Psychological and Social Evaluations: Prior to imposing a sentence, courts must gather comprehensive data on the accused’s past, behavior, and mental health.
• Reform Test: Prior to applying the death penalty, the prospect of rehabilitation and reformation should be evaluated.
• Sentencing Standardization: In order to remove subjectivity and arbitrary decision-making when imposing the death penalty, the Court suggested explicit sentencing guidelines. This ruling strengthened a methodical and scientific approach to death sentence sentencing, marking a substantial shift from the previous ad hoc approach.
- Current Opinion: Juxtaposition with Human Rights:
The death penalty’s application has been gradually limited by the Indian judiciary, which makes sure that it is applied in accordance with objective legal standards rather than arbitrarily. Among the major trends are:
• Preference for Life Imprisonment: Courts increasingly favor life imprisonment over the death penalty unless the case falls within the rarest of the rare category.
• Review of Sentencing Decisions: In cases where the sentencing process was deemed insufficient or capricious, the Supreme Court has regularly commuted death sentences.
• Taking into Account Public and International Sentiments: Indian courts take into account human rights principles and the expanding global movement toward abolition, even if they are not constrained by global abolition trends.
IMPACT OF HUMAN RIGHT DISCOURSE AND GLOBAL ABOLITIONIST TRENDS
India’s stance on the death penalty has been greatly impacted by the global abolitionist movements and the human rights debate, which has resulted in more stringent sentencing criteria, closer examination of executions, and a preference for life in prison over the death penalty. Although the death penalty has not been abolished in India, court rulings are increasingly reflecting concerns about international human rights norms, reformation, and arbitrariness, which is in line with the global trend towards limiting or doing away with the death sentence.
PSYCHOLOGICAL IMPACT OF DEATH PENALTY ON CONVICT AND IT’S FAMILY
For both prisoners and their families, the death penalty has a profound psychological impact that results in emotional trauma, anxiety, and severe mental distress. Death row syndrome, which is marked by extended seclusion, despair, and psychological decline as a result of the uncertainty surrounding execution, frequently affects prisoners. Families face social humiliation, financial problems, and emotional agony, grappling with the pain of losing a loved one to state-sanctioned retribution. This mental pain raises ethical considerations concerning the humaneness of capital punishment.
CHALLENGES AND CONTEMPORARY DEBATES ON THE DEATH PENALTY
The death penalty remains a subject of intense legal, ethical, and political debate in India. While the judiciary has laid down structured sentencing guidelines, various challenges persist, raising questions about its effectiveness and fairness. Two key issues in this debate are delays in executions and procedural lapses and the impact of public opinion and political influences on capital sentencing.
1. Delay in Executions and Procedural Lapses:
One of the biggest criticisms of the death penalty in India is the inordinate delay in executions, often due to lengthy legal procedures, multiple review petitions, and mercy pleas. Convicts spend years—sometimes decades—on death row, leading to mental and emotional deterioration, commonly referred to as death row syndrome.
•The Supreme Court in Shatrughan Chauhan v. Union of India (2014) ruled that undue delay in execution is a violation of Article 21 (Right to Life) and can be a ground for commutation of the death sentence to life imprisonment.
•In several cases, such as Navneet Kaur v. State of NCT Delhi (2014), delays in deciding mercy petitions led to commutations, reinforcing concerns about procedural inefficiency.
•The complexity of multiple judicial reviews and the lack of clear timelines for mercy petitions further exacerbate delays, making the punishment uncertain and inconsistent.
These procedural lapses undermine the deterrent effect of the death penalty and raise questions about its fairness.
2. Public Opinion and Political Influences
The death penalty debate in India is often shaped by public sentiment and political pressures, especially in high-profile criminal cases involving heinous offenses like terrorism, rape, and brutal murders. Political leaders sometimes demand capital punishment to align with public outrage, influencing the judiciary’s approach to sentencing.
• In Dhananjoy Chatterjee v. State of West Bengal (1994), public anger played a role in upholding the death sentence, with the Court emphasizing the need for societal justice.
• In Nirbhaya Case (2012), the brutal gang rape and murder led to strong public and political pressure, which expedited the execution of the convicts in 2020.
• However, excessive reliance on public opinion risks eroding judicial independence, leading to sentences based on populism rather than legal principles.
While the death penalty remains legal in India, these challenges highlight the need for reform in its administration, ensuring that justice is neither delayed nor dictated by external influences.
SUGGESTIONS
The following changes are recommended in order to solve the difficulties and irregularities in the use of the death penalty:
1. Strict sentence Guidelines Implementation: Courts must constantly employ the rarest of the rare doctrine and guarantee thorough sentence hearings that evaluate the offender’s history, mental health, and potential for reformation.
2. Time-Restricted Mercy Petition Processing : A set timeframe should be set for processing review petitions, curative pleas, and mercy petitions in order to avoid delays and procedural errors and to spare prisoners from extended uncertainty. 3. Alternative Punishments for Heinous Crimes: In light of the worldwide trend toward abolition, India ought to investigate more severe life sentences (such as life without parole) as a powerful deterrent that can, in most circumstances, take the place of the death penalty.
3. Judicial Independence from Public and Political Pressure: In order to preserve justice and constitutional morality, the judiciary must make sure that capital punishment is still determined by the law rather than by political pressure or public outrage.
4. Comprehensive Psychological and Social Assessments : Courts should compel extensive psychiatric and social background assessments before sentencing, ensuring that mental illness, socio-economic issues, or reformation potential are appropriately evaluated. By enacting these reforms, India can ensure that justice is rendered equitably, human rights are maintained, and capital punishment.
CONCLUSION
The death penalty in India remains a contentious issue, balancing deterrence, retributive justice, and human rights concerns. While the judiciary has progressively introduced structural safeguards to prevent arbitrary sentencing, challenges such as delays in execution, procedural lapses, and political influences continue to undermine its fairness. The global trend towards abolition and increasing emphasis on human rights raise questions about the necessity and effectiveness of capital punishment. As India moves forward, it must reassess its approach, ensuring that justice is not only delivered but also aligns with evolving constitutional morality, international standards, and human dignity. Whether through stricter sentencing frameworks or a shift towards alternative punishments, the focus must remain on ensuring a fair, just, and humane legal system.
NAME: APURVA BOORA
UNIVERSITY: NATIONAL LAW UNIVERSITY, SONEPAT, HARYANA