Introduction
Capital punishment, also known as the ‘death penalty or death sentence,’ is awarded for capital offences such as murder or multiple murders, rape, or any other offence where the death penalty is prescribed by law. The fundamental concept underlying the imposition of a death sentence is that those who commit such an offence are regarded as a threat to society. The death penalty is also used to serve as a deterrent in society. Although India adheres to the restorative justice theory, which states that after being punished for the offence and serving the sentence, the offender may redeem himself for the harm he caused to society and to make him/her understand that the offence committed by him/her caused harm, as well as to discourage them from causing further harm to society.
The theory of retributive justice is central to the case for the death penalty. This theory holds that the person who has committed such a heinous crime must also suffer the same fate. The death penalty is used to create a deterrent effect on society so that people do not commit crimes and be afraid of the consequences of the offence.
In India, the death penalty is based on the doctrine of the “rarest of rare cases,” which frequently results in the reduction of such sentences to life imprisonment through the exercise of clemency powers by the President or Governor. India is the world’s most populous country, with a population of 1.46 billion people of over 146 crores3, it is natural for the crime rate to be high and ever increasing. To reduce crime, harsh punishments such as the death penalty may be required. Even though human rights advocates have called the death penalty “immoral,” it remains an essential part of India’s criminal justice system.
Historical Background
1 Pre-Independence Context
The institution of capital punishment existed before British colonial India. It existed even in ancient Indian texts like Manusmriti, where death punishments were stipulated for serious crimes, yet it was incorporated by the British into their Indian Penal Code (IPC) of 1860. During their colonial administration, hanging was a frequent occurrence and frequently served as a political measure for crushing rebellion, even during India’s independence struggle.
2 Post-Independence Continuity
With independence, India inherited the body of law left by Britain. The Constituent Assembly debated about the moral consequences of capital punishment; however, it finally decided to continue the practice. Still, by its enactment of 1950, the Constitution of India embedded the .right to life and personal liberty in Article 21, by ensuring that no person shall be deprived of life or liberty except according to the “procedure established by law.” This specific clause became central to future debates about whether capital punishment is constitutional.
Meaning of Death Penalty
Death penalty has been a mode of punishment from time immemorial which is practiced for
the elimination of criminals and is used as the punishment for heinous crimes.
Human Right Perspective
It’s of grave moral and constitutional concern from a human-rights perspective, as it intersects directly with the right to life, by which all our other human rights derive and are both federally and internationally protected.
1. Right to Life and Dignity under Indian Constitution
Article 21 of the Indian Constitution assures that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Through the years, the Supreme Court itself has construed this right widely to encompass the view that what is involved is a process which should be “just, fair, and reasonable.” This direction, set in Maneka Gandhi v. Union of India (1978), injected a sturdy human-rights aspect into Article 21.
When the state takes away a person’s life through execution, it must ensure that every step of the process — from investigation to mercy petition — is fair and humane. However, in many cases, delays in trials, poor legal representation, and lengthy mercy petition processes have resulted in prolonged mental torture for prisoners. This violates not only the right to life but also the right to live with dignity, which is a part of Article 21.
The Supreme Court, in Shatrughan Chauhan v. Union of India (2014), recognized that and ruled that excessive delay in disposal of mercy petitions and solitary confinement of death prisoners also amounts to cruel, inhuman, and degrading treatment — incompatible with human rights standards.
2. Death Penalty and Universal Declaration of Human Rights
Around the globe, Universal Declaration of Human Rights (UDHR), 1948, mandates under its Article 3 that “Everyone has the right to life, liberty and security of person.” Even if its text does not absolutely prohibit it, its identity definitively holds life to be sacred and sacrosanct.
India is also a party to the International Covenant on Civil and Political Rights (ICCPR), which, under Article 6, recognizes a right to life and promotes a restriction of capital punishment to “most serious crimes” only. The United Nations Human Rights Committee, too, has continually urged all countries, including India, to trend towards abolition of the death penalty, based on its incompatibility with growing human-rights standards.
The majority of its countries have taken this moral step forward — over two-thirds of global countries have ruled out capital punishment altogether or, at the very least, stopped doing it. India’s tenacity thus places it on the other end of the growing global human-rights movement.
3. Equality and Non-Discrimination
Human rights are based on the principle of equality before law. Still, several studies, including Project 39A Death Penalty Report (NLU Delhi, 2023), conclude that for India, the death penalty is unequally proportioned, harming poor, illiterate, and marginalised sections of society. They are generally denied a reasonable chance for a fair trial, adequate defence, or even a qualified lawyer for defence.
This kind of discriminatory act is opposed to Article 14 of Indian Constitution, which also guarantees a promise of equality before law and equal protection of law. Punishing based on nothing other than social and/or economic status of the accused is unfair and random — both legally and ethically unacceptable.
4. Psychological and Inhuman Treatment
Long-term confinement on death row produces extreme psychological distress, also known as the “death row phenomenon.” The prisoners remain constantly fearful, insecure, and isolated for years, waiting for their killing. Many of them actually end up developing severe psychological disorders as a result.
The Supreme Court has acknowledged this suffering as a violation of human dignity. In Sunil Batra v. Delhi Administration (1978), it held that prisoners retain all fundamental rights except those taken away by law — and that cruel or degrading treatment is unconstitutional. The mental anguish of waiting for execution is itself an additional, unjust punishment.
5. International Pressure and India’s Image Worldwide
As a democracy aiming for global greatness, India’s persistence with the death penalty becomes problematic for its devotion to universal standards of human rights. The General Assembly of the United Nations has consistently urged a universal moratorium on executions. India has voted against supporting a moratorium, arguing each country should make its own determination based on its own juridical system.
But when world moral leadership is defined by human rights, one by one, successive executions mar India’s reputation as a progressive and humane democracy. A repeal of the death penalty would be a clear statement of commitment to compassion, to equality, to justice — pillars of Indian philosophy and of the Constitution.
6. Ethical and Philosophical Humanism
At its foundation, the case against the death penalty based on human rights is moral. It is grounded in a conviction that each human being, regardless of how culpable, also shares a native dignity and potential for rehabilitation. Taking a life closes off the potential for repentance, rehabilitation, and redemption. Justice should not resemblance a brutal crime but meet a higher moral threshold.
Judicial Interpretation: The ‘Rarest of Rare’ Doctrine
The Indian judiciary played a key role in restraining the use of the death penalty. The landmark judgment is the Bachan Singh v. State of Punjab (1980), in which the Supreme Court established that the death sentence could be given only in the “rarest of rare” cases. This means that the death sentence may only be given where life imprisonment was clearly insufficient.
It was in Machhi Singh v. State of Punjab (1983) that the Supreme Court explained what the phrase “rarest of rare” meant. It includes cases where the crime is exceptionally inhuman, cruel, or runs against the collective conscience of society — for example, genocide or terrorism.
Public Opinion
Public opinion is still divided in India. Citizens desire the death penalty for criminals of such heinous crimes like rape and terrorism because of anger and disgust at crime. Feelings, however, cannot dictate justice. The judicial system must be an equitable and balanced one that rules on the basis of evidence, ethics, and constitutional values — not revenge or public feeling.
Conclusion
India’s death penalty is a moral and human-rights issue. It fulfills society’s demand for justice in extreme cases on the one hand, but it contradicts the principles of equality, fairness, and dignity enshrined in the Constitution on the other hand. In practice, it hits the poor and vulnerable, while the powerful and affluent escape it.
A proven democracy should measure justice not by the severity of punishment, or by concern for punishment, but by commitment to fairness and compassion. Abolishing the death penalty would not weaken India’s justice system — it would strengthen its moral and constitutional base.
For, as well said by the Law Commission, “The death penalty does not serve the ends of justice; it only perpetuates a cycle of violence.” India must shift towards a more humane and corrective criminal justice system — a system where the value of life is paramount.
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