ABSTRACT
This research paper examines the complicated and divisive topic of the death penalty within the Indian legal system, with a primary focus on the Bhartiya Nyaya Sanhita, 2023. The study looks at the death penalty’s constitutionality, its historical development, and the moral, legal, and ethical issues that surround its application. It emphasises that although the death penalty is legal in India, it is only applied in the “rarest of rare” circumstances—a rule established by the Supreme Court to avoid capricious and disproportionate punishment. The study assesses how Indian courts treat capital cases by weighing aggravating and mitigating conditions. It also discusses moral dilemmas such erroneous convictions, arbitrary decisions, and the infringement of the right to life guaranteed by Article 21 of the Constitution. The study ends by raising doubts about the death penalty’s continued applicability in a contemporary rights-based democracy and urging a re-evaluation of its place in India’s criminal justice system, despite supporters’ claims that it guarantees justice in cases of egregious crimes and acts as a deterrent.
Keywords: Death penalty, Rarest or rare, disproportionate punishment, Article 21, Criminal Justice System, Deterrent
INTRODUCTION
A renowned quote by Mahatma Gandhi states “An eye for an eye will make the whole world blind”. This emphasizes that responding to cruelty with cruelty ultimately makes us no better than the offender himself, which comes to suggests that violence can never be eliminated by using more violence, it requires certain non-violent solutions. However, in today’s world, this theory is not usually followed, as crimes tend to be more severe and brutal. Capital punishment is the most extreme form of penalty imposed on individuals who are convicted of the most heinous and violent crimes. This system of punishment is practiced not only in our own country but across the globe. The concept of death penalty can be viewed from two contrasting perspectives. On one hand, it serves as retribution for the offender and a deterrent to others in the society. While on the other hand, there remains a risk that an innocent person may be wrongly convicted and subjected to such an irreversible penalty, which raises serious concerns about facets like fairness and morality.
In the field of law, justice remains a deeply subjective and a controversial concept. Among the most debated issues within this domain is the death penalty and it represents one of the harshest punishment a criminal can receive. Criminals convicted of heinous crimes are subject to the death penalty. India adheres to the legal principle of ‘innocent until proven guilty’[1]. India’s main criminal law, the Bhartiya Nyaya Sanhita, 2023 (BNS) reserves capital punishment for the “rarest of rare crimes” with hanging being the sole method of execution under practice. Despite its legal standing, this practice is widely debated among the public and is highly subjective. The issue of capital punishment involves various ethical, humane, moral, and legal aspects and perspectives.
Questions of morality and practicality arise when considering the use of the death penalty as a deterrent due to concerns about the execution of innocent individuals and wrongful convictions. There is disagreement over the effectiveness of the death penalty in deterring serious crimes, like murder. It is difficult to establish firm judgments on the death penalty’s deterrent effect due to factors like the particular setting, regional variances, and the complexity of criminal behaviour. When there is proof of arbitrariness and inequities in the implementation of the death penalty, particularly along racial, social, or geographic lines, ethical questions are raised. The impartiality and equal protection of the law may be questioned in light of such discrepancies. A complicated moral landscape is produced by the conflict between popular support for the death penalty and changing ethical standards.
The concept attempts to find a balance between the requirement for sentencing consistency and the understanding that each case is different. It aims to make sure that the death penalty is only used when it is actually extraordinary and required. In Bachan Singh v. State of Punjab (1980),[2] the “rarest of rare cases” doctrine was first developed. The Court ruled that the capital punishment should only adhere in the “rarest of rare cases” in when the alternative of life in prison would be “unquestionably foreclosed.” In summary, this doctrine is an attempt by the Indian Supreme Court to strike a balance between the necessity for a death sentence framework and the understanding that the death penalty should only be used in the most extreme and egregious situations.
ANALYSIS
Historical evolution of the death penalty
The issue of the death penalty was first raised in the Legislative Assembly of British India in 1931, when Shri Gaya Prasad Singh, a Member of Parliament from Bihar, proposed a resolution to abolish capital punishment under the Indian Penal Code. However, the proposal was rejected after the Home Minister responded. During earlier debates in the Assembly, the then Home Minister, Sir John Thorne, had twice expressed the British government’s stance, stating, “The Government does not believe that it is wise to abolish the death penalty for a crime for which it is at present authorized.” After gaining independence, India retained several colonial-era laws, including the Indian Penal Code of 1860 and the Code of Criminal Procedure of 1898. The IPC prescribed six forms of punishment, one of which was the death penalty.
The case of Vinay Sharma v. Union of India[3] involves the 2012 rape and murder of a woman in New Delhi, India. Vinay Sharma was one of the suspects in the case and was later sentenced to death for his role in the crime. Sharma’s family appealed to the Supreme Court of India, arguing that his trial was unfair, that he did not have competent counsel before the court, and that his sentence to death should be replaced with the penalty of life in prison. Ultimately, the Supreme Court rejected Sharma’s appeal and upheld his sentence. After evaluating the aggravating and mitigating factors, this conclusion was made. If there were any mitigating circumstances, they were overpowered by the aggravating elements. Because life imprisonment was judged insufficient in view of the pertinent circumstances of the act and the barbarous torture perpetrated on the victim, which culminated in her death, the death sentence was imposed.
The case of Ediga Anamma vs. State of Andhra Pradesh (1995)[4] is a petition brought before the Supreme Court of India challenging Ediga Anamma’s death sentence for the murder of three children. Anamma was convicted of the crime and sentenced to death, but she appealed the verdict to the Andhra Pradesh High Court, claiming that the trial court had violated due process and that the evidence against her was insufficient. However, the High Court denied her plea and maintained the sentence. She subsequently petitioned the Supreme Court, which ordered a new trial after concluding that the trial court had not followed correct legal procedure.
Following its review, the Supreme Court determined that the High Court had followed correct legal procedure in reaching its conclusion and had made no legal mistakes or lapses. The Court further determined that the High Court appropriately assessed the legality of the mitigating considerations as well as the weight to be attributed to them. The Court also determined that the seriousness of the conduct and the circumstances surrounding it justified the imposition of harsh punishment, even if mitigating elements were present.
Overall, the Ediga Anamma case exemplifies the persistent tensions and legal complications surrounding the death penalty in India. It is obvious that major problems exist in ensuring that trials are handled in accordance with due process of law and that mitigating factors are implemented.
According to Hindu law
Death sentences already existed in Hindu society. Capital punishment is mentioned in the Bible and other works of literature. Although, it was not seen as severe in the Hindu legal system but it was claimed to have had a devastating impact on our society torturing as many people as possible. Mythological and historical scriptures such as the Ramayana and the Mahabharata have also advocated capital punishment. They state that the supreme duty of the king is to protect society from all forms of threats, which can be done by executing the criminal. Moreover, both Brahaspat and Katyayana advocated capital punishment.
The basic ideas behind Dand Niti in India were considered to be in deterrence and mental health. Manu Smriti, an acclaimed work, illustrates the crime with the weakness of the offender. In his writings, Kautilya also addressed the death penalty, which he viewed as a vital procedure for ensuring public safety.
According to Muslim Law
Sharia law, which governs the practice of Islam, is based on several sources: the Qur’an, the Sunnah (Hadith), Ijma’ (consensus), ‘Urf or customary practices, Masalih al-Mursala (public interest), and Qiyas (analogical reasoning). The Qur’an explicitly prohibits the unlawful taking of human life. In Islamic philosophy, the act of giving life (Ijad) and the act of taking it away (I’dam) are considered exclusive divine prerogatives, beyond the authority of any human being to exercise or interfere with.
The Qur’an permits the taking of life by a power other than Allah through the appropriate legal and judicial procedures, as outlined by Sharia Law, in order to stop more heinous crimes from occurring in society. There are three types of crimes which are differentiated on the basis of the degree of the crimes committed by an offender. It decides the intervention of the Sharia in consistency with the offence committed respectively. The three types of offences are Had Crimes, Tazir Crimes and Qisas Crimes. In Had Crime, the offender will be harshly persecuted as per the crime committed. These crimes may scale up to the murder, theft, bloodshed, rebellion, apostasy etc. Here the Judge would have no say in the mobilisation of the sentence or the punishment.
Doctrine of the Rarest of Rare Cases
The doctrine of the “rarest of the rare cases” implies that the death sentence should only be applied in the most extreme instances, where the crime was especially horrible and the circumstances surrounding it were such that the death penalty was the only fitting punishment. The Supreme Court originally introduced the concept of “rarest of the rare cases” in the historic Bachan Singh case[5] in 1980 which ruled that only in cases when the aggravating factors often outweigh the mitigating ones, should the death penalty be applied. The prosecution must prove that the case is among the “rarest”, according to the Court’s additional ruling.[6] The court established a set of standards to decide whether a case qualifies as one of the rarest of rare. These principles cover the specifics of the crime, the circumstances surrounding it, the motivation behind it, the character of the defendant, and the prospect of reform or rehabilitation.
Although it has been used in consideration of the severity of the offense the offender has committed, this idea is not well defined. Different perspectives on the death sentence exist in India, and by focusing only on the most extreme cases, they do not endorse or completely avoid the topic. However, as crime rose and heinous crimes became more frequent, things grew more difficult.[7]
The concept is criticized for being excessively subjective and ambiguous, as well as for giving judges too much latitude. Some believe that the death sentence should be completely abolished, because it is intrinsically harsh and inhumane. Advocates of the doctrine maintain that it is essential to ensure that the worst offenders are held accountable for their crimes and that it acts as a deterrence to those who may be tempted to commit the same crimes.
The doctrine has been the focus of intense discussion, with some contending that the death sentence is never justified wshile others hold that it is required in specific situations. Nevertheless, the rarest of rare doctrine is still a crucial rule in Indian law and is used when the prosecution requests the death penalty.
Constitutional framework and right to life
India, along with 78 other countries, continues to practice the death sentence, but only for “special reasons.” But neither the legislature nor the Supreme Court has offered a precise description of what these instances or justifications are. The Indian Constitution guarantees everyone the fundamental right to life, subject to the loss of that right through legal means, according to abolitionists. They contend that the death sentence as it currently stands breaches that right. Retaining the death sentence in India’s criminal statutes, according to eminent attorneys, violates the right to life. It’s crucial to remember that even the right to life has limits.
By guaranteeing “equality before the law and equal protection of the laws,” Article 14 of the Constitution forbids discrimination unless it is required to achieve equality. Even though it appears that the death sentence goes against equality and the right to life, our Constitution does not expressly forbid it.[8]
The constitutionality of the death penalty in India has been called into question by numerous legal challenges. A unanimous Supreme Court panel maintained the validity of the capital punishment in Jagmohan Singh v. State of Uttar Pradesh,[9] claiming that it did not contravene Articles 14, 19, or 21. It was argued that Articles 19 and 21 were violated by not having a process in place to impose the death penalty. However, the Supreme Court determined that the death penalty sentencing procedure is legitimate and follows established guidelines. While in the case of Rajendra Prasad v. State of UP,[10] Justice Iyer vehemently argued that the death penalty violated Articles 14, 19, and 21. He highlighted that there are two prerequisites for using the death penalty: special justifications must be documented, and it should only be used in extreme situations.
Additionally, the Supreme Court established general criteria for the implementation of the death penalty in Machhi Singh v. State of Punjab,[11] specifying five categories of the most unusual circumstances requiring the toughest punishment.
In conclusion, the death penalty is still legal in India despite multiple efforts to abolish it. The Supreme Court has defined the requirements for its use, in particular the “rarest of rare cases” criterion. The execution of Ajmal Amir Kasab in 2012 serves as an example of how the death penalty is still used in India despite ongoing ethical and legal discussions around it.
Ethical and moral considerations
Capital punishment, sometimes known as the death penalty, has been used throughout history as a form of retributive justice or the imposition of punishment in response to a serious crime. There are several philosophical justifications for capital punishment, including:
- Retribution: the concept that a criminal should be punished for his misdeeds by being subjected to similar pain and suffering.
- Deterrence: the belief that the possibility of death by hanging will scare people from committing significant crimes.
- Social protection: the idea that removing criminals from society would protect the general population from future harm.
- Public Justice: The belief that criminals must be punished so that the public has confidence in the justice system.
However, there are some arguments against the death penalty, such as:
- Fundamentally unjust: some say that the death penalty is fundamentally unjust because it views criminals as less than human beings and denies them the chance to rehabilitate themselves.
- Irreversible: the death penalty is a final and irreversible punishment, meaning there is no opportunity to appeal or correct a mistake.
- Hypocritical: Only some crimes are punishable by death, and the decision to impose this penalty is subjective and prone to bias.
CONCLUSION
Capital punishment is a contentious and complicated topic depending on one’s viewpoint and values, one may come to a different judgment about the death penalty in society. It is significant to remember that the use of death penalty is very debatable, and there is an international discussion over its moral, legal, and practical implications. While the death penalty is still used in some nations for certain crimes, it has been completely abolished in others. The arguments for and against the death penalty frequently center on questions like the potential for executing innocent people, the propriety of taking human life as a form of punishment, and doubts about how fairly and equally it is applied in the criminal justice system.
For especially severe crimes like murder and acts of terrorism, some feel that the death penalty is an appropriate and necessary punishment. People who support it think that it acts as a powerful deterrent, preventing potential criminals from committing significant offenses. They contend that the execution of criminals gives the families of the victims a feeling of justice and closure. Some advocates see it as a method to exclude dangerous people from society permanently.
The death sentence is criticized as having intrinsic flaws that can result in irreparable injustices and the execution of innocent persons. Many people think it’s an infringement on the right to life and a type of unusually harsh punishment, which is against international human rights norms. Racial and socioeconomic inequities, as well as concerns about the disproportionate use of the death penalty, create issues of fairness and equity. Some contend that substitute punishments, such as life in jail without the possibility of release, can accomplish the same ends without running the risk of putting someone’s life in danger.
The excessive use of the death penalty is another major problem in the society. Minorities of all races and ethnicities, as well as members of underserved groups, have been proven to be disproportionately affected. In determining who receives the death penalty, socioeconomic circumstances can be very important in this. Some contend that there are other sanctions, such as life in prison without the chance of parole, that can accomplish the same objectives as the death sentence, such as safeguarding society from dangerous offenders. Due to protracted legal proceedings, appeals, and the requirement for specialized facilities, the death penalty can be expensive to implement. The criminal justice system could use these resources, according to detractors, in other places. The global trend of the death penalty has been abolished, and its use has been suspended in several nations around the world. As public attitudes change, there is an increasing global push towards abolition.
[1] Presumption of Innocence, LII / Legal Information Institute, https://www.law.cornell.edu/wex/presumption_of_innocence (last visited May 20, 2025).
[2] Rarest of the Rare Case: Bachan Singh vs State of Punjab, (1980) 2 SCC 684, Aashayein Judiciary, https://www.alec.co.in/show-blog-page/rarest-of-the-rare-case-bachan-singh-vs-state-of-punjab-1980-2-scc-684 (last visited May 20, 2025).
[3] Vinay Sharma vs Union Of India on 14 February, 2020, https://indiankanoon.org/doc/118510739/ (last visited Jul. 10, 2025).
[4] Ediga Anamma vs State Of Andhra Pradesh on 11 February, 1974, https://indiankanoon.org/doc/1496005/ (last visited Jul. 10, 2025).
[5] Rarest of the Rare case, supra note 2.
[6] Id.
[7] Contours of Justice: Human Rights and Constitutionality of Capital Punishment in India – SPRF, https://sprf.in/constitutionality-of-capital-punishment-in-india/ (last visited Jul. 10, 2025).
[8] Ranjana Tiwari, Judicial Validity Of Capital Punishment, University (2022), https://shodhganga.inflibnet.ac.in/handle/10603/465978.
[9] Jagmohan Singh vs The State Of U. P on 3 October, 1972, https://indiankanoon.org/doc/1837051/ (last visited Jul. 10, 2025).
[10] Rajendra Prasad Etc. Etc vs State Of Uttar Pradesh on 9 February, 1979, https://indiankanoon.org/doc/1309719/ (last visited Jul. 10, 2025).
[11] Machhi Singh And Others vs State Of Punjab on 20 July, 1983, https://indiankanoon.org/doc/545301/ (last visited Jul. 10, 2025).
