The death penalty remains one of the most debated issues in Indian criminal jurisprudence. While some argue that it acts as the ultimate deterrent against heinous crimes, others see it as a violation of the right to life and dignity. India continues to retain capital punishment, but its use has been increasingly restricted by judicial interpretation. This article explores the history, legal framework, key precedents, and the continuing debate over whether the death penalty should remain part of India’s criminal justice system.
Historical and Constitutional Background
Capital punishment has existed in India since ancient times, though its scope has narrowed considerably. After independence, the Indian Penal Code, 1860 (now Bharatiya Nyaya Sanhita, 2023), retained provisions prescribing the death penalty for murder, waging war against the State, terrorism, and certain aggravated crimes.
The constitutional validity of the death penalty was first challenged in Jagmohan Singh v. State of U.P. (1973). The Supreme Court upheld its validity, holding that the choice between death and life imprisonment under Section 302 IPC was not arbitrary, since sentencing followed a judicial process.
The issue was revisited in Rajendra Prasad v. State of U.P. (1979), where Justice Krishna Iyer emphasized that the death penalty should be imposed only in the rarest of rare cases when reform was impossible. However, clarity came in Bachan Singh v. State of Punjab (1980), where a Constitution Bench upheld the death penalty’s constitutionality but restricted its application. The Court formulated the famous “rarest of rare doctrine”, stating that death penalty should only be imposed when life imprisonment would be wholly inadequate given the crime’s gravity.
Legislative Framework
Under the Bharatiya Nyaya Sanhita, 2023 (BNS), the death penalty remains available for offences such as:
- Murder with aggravating circumstances (Sec. 103 BNS)
- Terrorism and waging war against the State
- Certain cases of rape and gang rape resulting in the victim’s death or persistent vegetative state
- Repeat offenders in specified heinous crimes
Procedural safeguards are provided under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), requiring confirmation by the High Court before execution. Additionally, convicts retain the right to appeal and seek mercy under Articles 72 and 161 of the Constitution, empowering the President and Governors to commute or pardon death sentences.
Arguments in Favor of the Death Penalty
Proponents argue that the death penalty acts as a deterrent against heinous crimes like terrorism, rape, and premeditated murder. The severity of the punishment, they say, sends a strong message that such crimes will not be tolerated.
Another argument is retributive justice. For victims’ families, capital punishment is seen as delivering closure and a sense of justice proportionate to the crime. For instance, in the Nirbhaya gang rape case (Mukesh v. State, 2020), the Supreme Court upheld the death penalty, observing that the brutality of the crime shocked the nation’s conscience and warranted the harshest punishment.
Arguments Against the Death Penalty
On the other side, critics highlight that the deterrent effect of capital punishment is unproven. Studies, including those cited by the Law Commission, have shown no conclusive evidence that death penalty reduces crime rates more effectively than life imprisonment.
Secondly, the death penalty is seen as irreversible and prone to error. Wrongful convictions, though rare, cannot be corrected once an execution is carried out. The Supreme Court itself admitted in Santosh Bariyar v. State of Maharashtra (2009) that in the past, inconsistent application of the rarest of rare doctrine had led to arbitrary death sentences.
Further, critics argue that capital punishment violates Article 21 of the Constitution, which guarantees the right to life and dignity. Internationally, India faces pressure to abolish it, as more than two-thirds of countries worldwide have either abolished the death penalty or do not carry out executions in practice.
Judicial Safeguards and the “Rarest of Rare” Doctrine
The Bachan Singh ruling remains the cornerstone of India’s approach to capital punishment. Courts must weigh both aggravating circumstances (e.g., brutality, premeditation, social impact) and mitigating factors (e.g., age, socio-economic background, possibility of reform) before awarding the death penalty.
In Machhi Singh v. State of Punjab (1983), the Supreme Court elaborated criteria for identifying “rarest of rare” cases, emphasizing community outrage, magnitude of the crime, and victim vulnerability. Yet, despite these safeguards, uneven application persists.
For example, the Supreme Court in Shatrughan Chauhan v. Union of India (2014) commuted several death sentences citing undue delay in mercy petitions, mental illness of convicts, and solitary confinement. This reflects judicial recognition of human rights concerns even in confirmed death cases.
Law Commission’s Stand
The Law Commission of India, in its 262nd Report (2015), recommended abolition of the death penalty for all crimes except terrorism-related offences and waging war against the nation. The Commission reasoned that while complete abolition may be premature given India’s security concerns, ordinary crimes should not invite capital punishment.
Global Perspective
Globally, there has been a steady movement toward abolition. Countries like the UK, France, South Africa, and most of Europe have eliminated the death penalty altogether. The United States retains it, but only in some states, with declining executions. India finds itself in the minority of democratic nations still carrying out executions, most recently in the Nirbhaya case (2020).
Conclusion
The death penalty in India remains at the intersection of law, morality, and public opinion. While it continues to exist in law, its actual imposition has become rare, reserved for the most heinous cases. The Supreme Court’s evolving jurisprudence reflects increasing caution, with life imprisonment emerging as the norm and death as the exception.