Author: Amisha Nair, Amity University, Noida
TO THE POINT
The death penalty in India is not a settled moral question but a continuing constitutional debate. At the heart of this tension lies the balance between the sanctity of human life guaranteed under Articles 14 and 21 of the Constitution and the State’s obligation to protect society from heinous crimes.
While many nations have moved towards complete abolition, India retains capital punishment, though its application has been strictly narrowed by judicial interpretation. Judicial pronouncements have clarified that the death penalty must remain an exception, imposed only in cases where life imprisonment is deemed wholly inadequate. The legislative shift from the Indian Penal Code, 1860 (IPC) to the Bharatiya Nyaya Sanhita, 2023 (BNS) continues this retention, signalling that India is not yet prepared to abolish the death penalty, despite strong global pressure.
ABSTRACT
This article examines the constitutional validity of capital punishment in India. It situates the debate within the context of Articles 14 and 21, analyzing how the Supreme Court has reconciled the existence of death penalty laws with fundamental rights. By tracing the transition from IPC to BNS, the article demonstrates continuity in legislative intent, but also highlights judicial safeguards that have progressively narrowed its use.
Comparative perspectives from the U.S., U.K., and South Africa show that while India retains capital punishment, its application is far more restricted than in many other retentionist states. Ultimately, the article argues that capital punishment in India survives constitutional scrutiny, but only under a heavily judicially regulated framework that prioritizes fairness, proportionality, and the dignity of the individual.
USE OF LEGAL JARGON
The debate on capital punishment invokes several constitutional and jurisprudential doctrines:
Procedure established by law – Article 21 allows deprivation of life but only through lawful and fair procedure.
Doctrine of proportionality – The punishment must correspond to the gravity of the crime.
Substantive due process – Even when procedure exists, it must be just, fair, and non-arbitrary.
Judicial review – Courts scrutinize whether death sentences are imposed with fairness.
Evolving standards of decency – Societal conscience determines the legitimacy of harsh punishments.
Executive clemency – Articles 72 and 161 empower the President and Governors to pardon or commute death sentences.
Arbitrariness doctrine – From Maneka Gandhi v. Union of India (1978), ensuring that no execution is arbitrary.
These doctrines ensure that although the death penalty exists in statutes, its constitutional application is severely restricted.
THE PROOF
The constitutional basis of capital punishment in India lies in Articles 14 and 21. While Article 21 guarantees the right to life, it also allows deprivation by a “procedure established by law,” provided such procedure is fair, just, and non-arbitrary. Legislatively, both the Indian Penal Code, 1860 (IPC) and the Bharatiya Nyaya Sanhita, 2023 (BNS) retain death penalty provisions. Under the BNS, capital punishment is prescribed for offences such as murder (Clause 101), aggravated rape leading to death or vegetative state (Clause 70), waging war against the Government (Clause 109), and terrorism-related killings (Clause 112). This continuity shows Parliament’s intent to reserve the harshest penalty for crimes that shock collective conscience.
Judicial interpretation has imposed crucial safeguards. In Jagmohan Singh v. State of U.P. (1973), the Supreme Court upheld its validity, while in Bachan Singh v. State of Punjab (1980) In this case it restricted the application of rarest of rare case. Later, in Mithu v. State of Punjab (1983), the Court struck down mandatory death sentences as unconstitutional. These rulings ensure that capital punishment is not arbitrarily applied but guided by fairness and proportionality.
Internationally, India is a party to the ICCPR, which permits but discourages death penalty, and has resisted calls to adopt the Second Optional Protocol seeking abolition. Thus, the validity of capital punishment in India endures, but only under strict judicial regulation, ensuring harmony between legislative intent and constitutional safeguards.
CASE LAWS
1. Jagmohan Singh v. State of U.P. (1973) – It upheld the constitutionality, stating judicial discretion ensures fairness.
2. Bachan Singh v. State of Punjab (1980) – This case introduced the “rarest of rare” doctrine.
3. Machhi Singh v. State of Punjab (1983) – It classified scenarios justifying death penalty.
4. Mithu v. State of Punjab (1983) – The court struck down mandatory death penalty under IPC Sec 303.
5. Dhananjoy Chatterjee v. State of W.B. (1994) – In this case, court upheld the death penalty for brutal rape and murder.
6. Shatrughan Chauhan v. Union of India (2014) – Expanded due process rights for death row convicts.
7. Mukesh v. State (2017, Nirbhaya case) – Upheld death penalty for aggravated sexual violence, now codified in BNS Clause 70(2).
CONCLUSION
Capital punishment remains constitutionally valid in India, but its use is shrinking due to judicial safeguards. The “rarest of rare” doctrine, proportionality, and due process ensure executions are rare.
The BNS, 2023, reaffirms retention for murder, terrorism, and aggravated sexual crimes, reflecting continuity with the IPC. Yet, India’s jurisprudence shows a gradual move towards restricting its use, aligning with global abolitionist trends.
The Law Commission’s 262nd Report (2015) recommending abolition for all crimes except terrorism highlights the shifting discourse. While legislative abolition may take time, constitutional interpretation has already placed capital punishment in a narrow and exceptional category.
FAQS
Q1. Is capital punishment valid under the BNS?
Yes, the BNS retains it for murder (Clause 101), aggravated rape (Clause 70), terrorism (Clause 112), and waging war (Clause 109).
Q2. What is the “rarest of rare” doctrine?
Laid down in Bachan Singh (1980), it restricts the death penalty to exceptional cases where life imprisonment is inadequate.
Q3. How do courts decide when the death penalty should be applied?
The Supreme Court, beginning with Bachan Singh v. State of Punjab (1980), held that execution should be awarded only in exceptionally grave circumstances where life imprisonment is insufficient. This principle is often referred to as the “rarest of rare” test.
Q4. Has the Supreme Court abolished the death penalty?
No. It upheld validity in Jagmohan Singh and Bachan Singh, but struck down mandatory death sentences in Mithu v. State of Punjab.
Q5. Has capital punishment ever been struck down entirely by Indian courts?
No. The Supreme Court has upheld its constitutionality in cases like Jagmohan Singh and Bachan Singh, though it has invalidated provisions that imposed the death penalty automatically, such as in Mithu v. State of Punjab (1983).
