Author: Utsab Sengupta, Siksha O Anusandhan National Institute of Law
Death penalty or Capital punishment is a form of brutal punishment awarded to the offender for committing heinous , cruel , inhuman , immoral crimes .Under Section 393(5) of Bharatiya Nagarik Suraksha Sanhita ,2023 Death penalty is ‘’ When any person is sentenced to death , the sentence shall direct that he be hanged by the neck till he is dead .’’
The death penalty poses a serious moral and legal conundrum in a democracy that respects the rule of law and places a high value on the defence of fundamental rights. By definition, the death penalty entails the state’s wilful and irrevocable taking of a person’s life. The right to life, which is fundamental to all human rights frameworks—constitutional and international—is seriously threatened by this act. In nations where human rights are both internationally recognised and guaranteed by the constitution, the contradiction is particularly pronounced. On the one hand, the state acts as a guardian, guaranteeing everyone’s equality, liberty, and dignity.
However, it still has the authority to put an end to life by means of a court order. An ethical conundrum results from this conflict between justice and retaliation: Can a society that prioritises reform and human dignity defend an absolute, final, and frequently discriminatory form of punishment? The case for the death penalty is further undermined by the possibility of a wrongful conviction, the disproportionate harm to underprivileged groups, and the absence of proof that the death penalty has a stronger deterrent effect than life in prison. Under such circumstances, the death penalty seems to be a holdover from a more brutal past—out of step with the changing norms of human rights and compassionate governance—rather than a tool of justice.
Therefore, in a nation dedicated to protecting human rights, the death penalty not only goes against its moral basis but also compels society to consider the troubling question: Are we upholding justice or infringing upon the very rights we purport to defend?
ABSTRACT
One of the most divisive topics in contemporary criminal justice systems is still the death penalty, particularly in democracies that claim to respect fundamental human rights. This article critically analyses the death penalty from the perspectives of international human rights obligations, constitutional protections, and legal philosophy.
Some nations continue to carry out executions, justifying them as an essential instrument for retributive justice and deterrence, while many have taken steps towards abolition, citing the sanctity of life and the possibility of erroneous convictions. The paradox of upholding the death penalty in states that simultaneously assert that they defend life and human dignity is examined in the article.
The study examines whether the continued application of the death penalty is a step towards legal reform or a return to punitive excess by examining jurisprudential developments, international trends, and India’s “rarest of rare” doctrine. The death penalty’s compatibility with changing justice standards within a rights-based legal system is ultimately called into question.
USE OF LEGAL JARGOON
The death penalty, also known as the capital punishment, is frequently analysed through the prism of theories like the “rarest of rare” principle, which was established in Bachan Singh v. State of Punjab (1980) and limits the application of the death penalty to the most serious crimes. In these situations, courts use their judicial discretion, carefully considering all relevant factors before rendering a judgement. The arbitrary application of this punishment, however, has drawn criticism, particularly in systems where caste, social, or economic inequalities may affect results. When it comes to capital punishment, two opposing theories—retributive justice and reformative justice—frequently clash. The latter highlights the potential for rehabilitation, whereas the former emphasises punishment as justifiable retaliation. The death penalty poses a constitutional conundrum in nations like India, where Article 21 of the Constitution guarantees the right to life. International agreements like the International Covenant on Civil and Political Rights (ICCPR) serve to further uphold this right. Furthermore, no one should be deprived of their life or freedom without first undergoing a fair and impartial trial, as required by the due process of law. If found guilty, a person facing the death penalty may petition for mercy under Article 72 or Article 161 or request that their sentence be commuted to life in prison.
A fundamental principle of criminal law, the presumption of innocence, heightens the severity of the death penalty, which is regarded as an irreversible punishment that does not allow for the correction of an incorrect conviction. Critics also point out that, according to international standards, execution may constitute cruel, inhuman, or degrading treatment. The finality of this punishment is made even more concerning by the potential for a miscarriage of justice, particularly in situations where there is insufficient evidence or representation. Although the death penalty is frequently justified on the grounds of deterrence, there is still conflicting empirical data regarding its efficacy. Another crucial element of sentencing is the proportionality of punishment principle, which states that the severity of the sentence must correspond to the seriousness of the offence.
The idea of constitutional morality, which demands adherence to constitutional values even when public opinion may be on the other side, lies at the heart of all these considerations. Last but not least, judicial precedent, or stare decisis, guarantees uniformity in the development of death penalty jurisprudence throughout cases.
PROOF
According to Amnesty International Report , around 11 countries globally execute people consistently every year which includes China, Egypt, Iran, Saudi Arabia, United States of America, Vietnam and Yemen. Although the rate of death penalty in USA is declining considerably over past decades. The punishment rate has gradually declined in past 30 years ,as per BBC news in 1991 only 48 countries abolished death penalty compared to now around 112 countries opted to abolish the same. Out of these six countries completely eradicated such brutal punishment and some countries such as Equatorial Guinea , Zambia , Malaysia and others have significantly reduced it’s application by narrowing it’s scope to only heinous offences only such as murder , terrorism , rape etc. Several statutory framework work towards protecting human rights hence reducing the scope of this punishment such as Council of Europe , UN general assembly resolution to abolish the same.
In a country like India the statutes such as Air Force Act, 1950 , Army act 1950 and Navy Act , 1957 provide protection against such punishment. As per Project 39 A’s recent Annual Statistics Report which stated Trial Court compiling with Supreme Court’s directions sentenced only 7 per cent of total death penalty cases.
The report states by the end of 2024, there were 564 people on India’s death row, the most since the beginning of the twenty-first century. With an average of 131 death sentences annually over the previous ten years, trial courts handed out 139 new death sentences in 2024. In 2024, the Supreme Court commuted five death sentences to life in prison and acquitted one, but it did not confirm any death sentences. Even though the Supreme Court has not confirmed it, these findings show a notable rise in the number of death row inmates. Additionally, the report states that trial courts failed to take into account mitigating factors like psychiatric evaluations or jail behavior in more than 90% of death penalty cases.
Under following crimes death penalty is punishable by death which are as follows
Sexual assault of a woman under the age of twelve [Section 65(2) of BNS]
Gang rape of women under the age of eighteen [Section 70(2) of BNS]
Rape that leaves the victim dead or in a persistent vegetative state ( Section 66 of BNS)
Repeat rape perpetrators Lynching and Murder (Section 71 of BNS)
Murder (Section 103 of BNS)
Murder by Life Convict
Helping a child or mentally ill person commit suicide (Section 107)
Attempting to kill someone who is serving a life sentence (Section 109 of BNS)
A person died as a result of organised crime [Section 111(2)(a) of BNS]
A terrorist act caused someone to die.
Kidnapping or kidnapping for ransom or to kill [Section 140(2) of BNS]
Initiating, attempting, or aiding a war against the Indian government (Section 147 of BNS)
Helping to carry out a mutiny ( Section 159 of BNS)
Presenting fabricated evidence that results in an innocent person being convicted or put to death.
Mob Lynching [Section 103(1)(2) of BNS]
CASE LAWS
Vinay Sharma v Union of India (2020)
The country was shocked and incensed by the Vinay Sharma v. Union of India case, also referred to as the Nirbhaya gang-rape case. Six men viciously attacked a young woman on a bus in the bitterly cold city of Delhi. She endured unspeakable physical and psychological suffering as a result of the horrifying violence inflicted upon her, which finally resulted in her death. In a particularly cruel act, she was stripped and left on the street after being struck with an iron rod. One of the accused committed suicide while in custody, adding to the tragedy that surrounded the case when it got to the courts. Another defendant could not be executed because he was a minor. Other four men, however, were found guilty of their horrible deeds and given death sentences; they were finally put to death in 2020. Following a careful analysis of the case’s aggravating and mitigating circumstances, the court made its ruling. Since life in prison was thought to be insufficient in light of the circumstances surrounding this heinous act, the death penalty was thought to be the only suitable punishment due to the seriousness of the crime and the extreme suffering inflicted on the victim.
Shabnam v Union of India (2015)
In the case of Shabnam v. the Union of India (2015), the court made a landmark ruling by sentencing a woman to death for the first time in India’s criminal justice history. This case originated from a tragic event in 2008, when Shabnam, in collaboration with her lover, murdered several members of her own family. The motive behind this horrific act was her family’s refusal to allow her to marry her partner.Shabnam’s crime was particularly heinous, as she did not spare her young nephew, who was only 10 months old, and allowed him to be caught up in the violence. After her conviction, she sought mercy from the President, but her plea was denied. Consequently, she faced the prospect of execution, which was expected to take place the following year. This case raised significant concerns about the extremes of familial conflict and the moral implications of such actions within society.
Bachan Singh v State of Punjab (1980)
In a majority ruling, the Supreme Court dismissed the appeal contesting the constitutionality of Section 354(3) of the 1973 Code of Criminal Procedure (CrPC) and Section 302 of the Indian Penal Code (IPC), which lists the death penalty as one of the possible punishments for murder. The Court explained that the death penalty cannot be considered irrational or against the public interest because it is only an alternative punishment for murder under Section 302 of the IPC. This is due to the fact that Parliament had already taken this matter into account when it revised the previous Code of 1898 and replaced it with the 1973 CrPC. The Court established the “rarest of the rare” doctrine rather than ruling that the death penalty was unconstitutional.
This implies that a death sentence can only be applied in extraordinary circumstances that fit into this category and only after the courts have given particular explanations for such a harsh penalty. The Court also described the aggravating and mitigating circumstances that judges must consider when determining whether to execute a convicted person, emphasizing the significance of properly balancing both factors. In the end, the Court declared that Section 302 of the IPC and Section 354(3) of the CrPC are constitutional and do not contravene Articles 14, 19, and 21 of the Indian Constitution.
CONCLUSION
The conception of Death penalty has long been a batted across the globe. Whether to award capital punishment or not fully depends upon the circumstances of the matter rather of being swayed by public opinion or social media, the decision to apply the death penalty should be grounded on the particular data and circumstances of each case. In order to ensure that every case is considered on its own graces, the legal system must continue to be unprejudiced and grounded on the law. Judges must avoid prejudices that might affect from social pressures and rather concentrate on the substantiation and the particular circumstances of the crime. Fairness and neutrality should be given top precedence in the pursuit of justice in order to cover the rights of both the indicted and the victim. In the end, the death penalty is a serious issue that needs to be precisely considered without outside hindrance. Some critics contend that the death penalty violates mortal rights, posing moral questions regarding the state’s right to take a person’s life. But in some horrible crimes, like terrorist attacks, violent killings, and periodical killings, life in captivity might not be a good enough discipline for the crime or a strong enough interference to unborn culprits. As Mario Puze famously quoted “ We don’t know if capital discipline is a interference, but we know that men we execute won’t murder again ‘’. The death penalty’s sympathizers argue that in these cases, it’s an essential step in icing justice for the victims and their families. Since it emphasizes how society condemns the most heinous acts, they contend that the soberness of similar crimes calls for the harshest discipline possible. also, proponents suppose that the death penalty can give victims’ families a sense of check and reaffirm that some behaviours are intolerable within civilised society In the end, the complexity of justice and the demand for suitable corrections for the most serious crimes must be taken into account while the discussion girding the death penalty is still going on.
FAQS
What is the article’s primary topic of discussion?
– The article questions whether India’s death penalty is consistent with a contemporary legal system based on human rights. It makes the case that, particularly in a democracy where the right to life is guaranteed, the death penalty presents moral, constitutional, and practical issues.
2. What are some of the main arguments made against the death penalty?
-The irreversible nature of execution, the possibility of erroneous convictions, and the discriminatory effect on marginalised groups are all highlighted in the article. It also casts doubt on its ability to deter crime, pointing out that life in prison might be just as successful.
How does Indian law implement the death penalty?
– The Bharatiya Nyaya Sanhita (BNS), 2023, allows the death penalty for serious crimes like child rape, terrorism, and some forms of murder. Bachan Singh v. State of Punjab (1980) established the “rarest of the rare” doctrine, which restricts its application to the most serious situations.
What is the latest information on India’s death penalty?
-According to Project 39A, as of 2024, 564 people are on death row—India’s highest this century. The Supreme Court did not uphold a single death sentence in 2024, indicating a change in judicial sentiment, and trial courts frequently overlook mitigating circumstances.
What is the article’s assessment of the death penalty?
-The article advocates for impartial, equitable justice that is based on constitutional principles rather than popular opinion. Instead of relying solely on the death penalty, it promotes a shift towards reformative justice and careful case-by-case analysis.
