Author: Kanak Vashisht, SGT University
Abstract
The death penalty, also called capital punishment, is one of the most contested punishments in the modern legal order. Advocates of its use argue that it prevents violent crimes such as murder, rape, and terrorism, while also giving a sense of justice and closure to the families of victims. On the other hand, critics argue that it undermines the sanctity of life, offends human dignity, and creates the permanent possibility of wrongful convictions that cannot be corrected once an execution is carried out. Globally, more than two-thirds of countries have abolished or suspended the practice, while retentionist nations justify its continuation in the name of deterrence, retribution, and public security. This article evaluates the debate by drawing upon case laws, constitutional doctrines, empirical studies, and comparative international practices to consider whether the death penalty can be justified in democratic societies committed to human rights.
To the Point
The death penalty is still enforced in countries such as India, the United States, and China, but has been increasingly criticized as a violation of the right to life and the protection against cruel and inhuman punishment.
Supporters argue that it serves a deterrent function, reflects retributive justice, and demonstrates the authority of the legal system.
Opponents emphasize its arbitrary and inconsistent application, the danger of judicial errors, the absence of strong evidence of deterrence, and its irreversible character.
Global legal and moral developments increasingly favor abolition, with Europe, Latin America, and large parts of Africa abolishing capital punishment either de jure or de facto.
Use of Legal Jargon
The legitimacy of capital punishment is bound to constitutional principles such as due process and proportionality of punishment. In India, Article 21 of the Constitution provides that no person shall be deprived of life or personal liberty except according to a procedure established by law.To reduce arbitrariness in sentencing, the Court formulated the “rarest of rare” doctrine in Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684, AIR 1980 SC 898, which continues to govern the imposition of the death penalty in India. Sentencing practices also invoke doctrines such as judicial discretion, proportionality, comparative constitutional interpretation, and non-arbitrariness.
Internationally, the International Covenant on Civil and Political Rights (ICCPR, 1966) recognizes that while the death penalty is not absolutely prohibited, it should be confined to the most serious crimes. The Second Optional Protocol to the ICCPR (1989) explicitly encourages abolition. Similarly, the European Convention on Human Rights (ECHR, 1950), through Protocols 6 and 13, completely abolishes executions.
The Proof
1. Deterrence Debate
Proponents of the death penalty argue that it discourages violent crimes, claiming that fear of execution deters individuals from committing capital offenses. However, the United Nations conducted studies in 1988, 2002, and 2015, all of which concluded that there is no empirical evidence proving that capital punishment is more effective than life imprisonment as a deterrent. For instance, the United States, where 27 states continue to enforce the death penalty, shows crime rates comparable to or even higher than abolitionist nations, raising questions about the validity of the deterrence argument.
2. Human Rights Concerns
Human rights advocates contend that the death penalty violates fundamental international standards. The Universal Declaration of Human Rights (1948) guarantees the right to life and dignity. The ICCPR (1966) permits the death penalty only in the most exceptional circumstances, while its Second Optional Protocol (1989) explicitly calls for complete abolition. In Europe, the European Convention on Human Rights (1950), read with Protocol No. 13, prohibits executions entirely. The American Convention on Human Rights (1969) similarly prevents the expansion of capital punishment and encourages states toward eventual abolition.
3. Wrongful Convictions
Once an execution has been carried out, the miscarriage of justice cannot be reversed.In India, the Law Commission of India, in its 262nd Report (2015), recommended abolition of the death penalty for all crimes except terrorism, citing inconsistent application and the risk of executing the innocent as compelling reasons.
Case Laws
Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684, AIR 1980 SC 898 (India) – Held the death penalty constitutional but limited its use to the “rarest of rare” category.
Machhi Singh v. State of Punjab, (1983) 3 S.C.C. 470 (India) – Clarified the practical application of the “rarest of rare” principle.
Furman v. Georgia, 408 U.S. 238 (1972) (U.S.) – Declared the arbitrary imposition of capital punishment unconstitutional.
Gregg v. Georgia, 428 U.S. 153 (1976) (U.S.) – Reinstated executions with detailed sentencing guidelines.
Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989) – Blocked extradition to the U.S., holding that the “death row phenomenon” constituted cruel and degrading treatment.
Conclusion
The death penalty continues to occupy a conflicted space between demands for retributive justice and the commitment to protect fundamental rights. Courts in India and the United States have attempted to narrow its application through doctrines like “rarest of rare” and structured sentencing guidelines. However, the empirical evidence undermines its deterrence claim, and the risk of wrongful executions makes it a practice fraught with moral, legal, and human rights concerns. With the global community steadily moving toward abolition, retentionist countries must question whether the practice is consistent with democratic governance and respect for human dignity.
FAQS
1. What is the death penalty?
The death penalty (capital punishment) is a legal punishment where a person convicted of certain crimes is executed by the state.
2. Is the death penalty legal in India?
Yes, the death penalty is legal in India, but it is awarded only in “rarest of rare” cases (as per the Supreme Court in Bachan Singh v. State of Punjab, 1980).
3. Which crimes can attract the death penalty in India?
Some examples include:
Murder (Sec. 302, IPC)
Waging war against the Government (Sec. 121, IPC)
Terrorism-related offences
Certain cases of rape (like gang rape of minors under POCSO Act, 2019 amendment)
4. What does “rarest of rare” mean?
It means the death penalty should only be given when:
The crime is extremely brutal or shocking to society.
Life imprisonment is not enough for justice.
(Bachan Singh v. State of Punjab, 1980)
5. How is the death penalty executed in India?
Hanging (most common method).
Shooting (allowed under military laws).
6. Can a death sentence be appealed?
Yes. The convict has the right to:
Appeal in High Court → Supreme Court.
File a Review Petition or Curative Petition.
Apply for Mercy Petition to the President or Governor (under Articles 72 & 161).
7. What is a Mercy Petition?
It is a request made by a death row convict to the President (Art. 72) or Governor (Art. 161) for pardon, commutation, or remission of punishment.
8. Is the death penalty against the Right to Life (Article 21)?
No. The Supreme Court has held that the death penalty is constitutional if given according to due process of law (Jagmohan Singh v. State of UP, 1973).
9. Which important case laws deal with the death penalty in India?
Jagmohan Singh v. State of UP (1973) – Death penalty constitutional.
Bachan Singh v. State of Punjab (1980) – Laid down “rarest of rare” doctrine.
Machhi Singh v. State of Punjab (1983) – Gave guidelines for “rarest of rare” cases.
10. Do all countries have the death penalty?
No. Some countries have abolished it (e.g., UK, France, Canada), while others like India, USA, China still use it in certain cases.
11. What are the main arguments in favour of the death penalty?
Acts as a deterrent to heinous crimes.
Provides justice to victims and their families.
Prevents criminals from repeating crimes.
12. What are the arguments against the death penalty?
May lead to wrongful conviction (irreversible).
Seen as inhuman and cruel.
Studies show it may not effectively deter crime.
Many nations see it as a violation of human rights.
13. What is the international view on the death penalty?
UN General Assembly has repeatedly called for a moratorium on executions.
International Covenant on Civil and Political Rights (ICCPR) encourages restriction of death penalty only for “most serious crimes.”
14. Has India signed any treaty against the death penalty?
India has signed the ICCPR but has not signed the Second Optional Protocol (which calls for abolition of the death penalty).
15. Current situation in India?
Death penalty is legal.
Very few executions (last major one: Yakub Memon in 2015, 1993 Mumbai blasts case; Nirbhaya case convicts in 2020).
Mostly awarded in terrorism and brutal rape/murder cases
