EFFECTIVENESS OF THE DEATH PENALTY AS A

DETERRENT IN INDIA
DISSERTATION

SUBMITTED IN PARTIAL FULFIL MENT

OF THE REQUIREMENT FOR THE
DEGREE OF MASTERS OF LAWS

RAYAT AND BAHRA UNIVERTISY

MOHALI

UNIVERSITY SCHOOL OF LAWS

LL.M.(1YEAR)COURSE

(SESSION 2024-25)

UNDER THE SUPERVISION OF

Mrs. Harmanpreet Kaur

Assistant Professor

BY

RAJESH KUMAR

ROLL NO: 24072001126

LLM(CRIMINALLAW)

i
 STUDENT’S DECLARATION

I, Rajesh Kumar, here by solemnly declare that the Dissertation titled―

EFFECTIVENESS OF THE DEATH PENALTY AS A
DETERRENT IN INDIA is submitted to, Rayat Bahra University,
Punjab in partial fulfillment of the requirements of Master of Laws(LL.M.
Course). This is an original piece of my research work and all sources
used to complete this Term Paper have been duly acknowledged to the
best of my knowledge. Also, no part of this work has been submitted for
any other degree in any other University/Institute. As per rules Plagiarism
of this research work has been checked and a certificate of Plagiarism is
attached along with.

Student Name: Rajesh Kumar

Roll No.: 24072001126

ii
 SUPERVISOR'SCERTIFICATE

This is to certify that Dissertation titled ―EFFECTIVENESS OF THE

DEATH PENALTY AS A DETERRENT IN INDIA carried out by
RAJESH KUMAR under my supervision submitted to Rayat Bahra
University, Punjab is a piece of research carried out by the candidate. No
part of this work has been submitted for any other degree in any other
University/Institute.

Student Name: Rajesh Kumar Supervisor’s Signature

Roll No.: 24072001126

iii
 ACKNOWLEDGEMENT

Every mission needs a spirit of dedication and hard work but more than anything else,
it needs proper guidance, a working atmosphere, and more importantly support from
others. During the process of research work, I received a lot of support from others,
directly or indirectly and it is indeed a matter of great pleasure and privilege to
acknowledge the same here.

I express my sincere gratitude to my supervisor for showing me the path of sincerity

and dedication. It is due to their sincere advice and guidance which helped me in
accomplishing this venture and heartily acknowledged. I cannot express in words the
tireless efforts they have put into polishing and enriching the work. Due to their
mentorship, it has helped me a lot in my cohesive understanding of the subject.

I wish to thank all the faculty members of the Department for providing me with the
orientation and boosting the necessary confidence to start the research. 1 appreciates
their kind assistance in procuring the relevant literature for this research. | am also
thankful to the library staff for providing me the resourceful books and various
reference books that came as a great source for this research.

It will never be possible for me to pay the price which my parents made for me. I
ascribe the accomplishment for my work to those who have been my pillars of
strength and stood by me with their blessings and who have motivated and inspired
me to complete my work. I would also like to extend my thanks to all my friends for
being in constant support in guiding and motivating me in the completion of the
dissertation.

At last, 1 would forever remain indebted to the authors of various books, research
articles, journals, and reports, that I have used as source material.

iv
 TABLEOFCONTENTS

Page no.

Declaration I

Certificate i

Acknowledgment ii

Table of Contents v-Vi

List Of Abbreviations Vii-Viii

Table of Cases Ix

CHAPTER1: INTRODUCTION 1-12

1.1. Introduction

1.2 Important Provisions

1.3 Statement of Problem

1.4 Hypothesis

1.5 Objectives of study

1.6 Research methodology

1.7 Research Questions

1.8 Reviw of Literature

1.9 Chapterization of Scheme

CHAPTER 2: HISTORICAL BACKGROUND 13-25

2.1 Number and types of crimes punishable by Death

2.2 Statistics on Death Sentences and Executions

2.3 Demographics of death row inmates

2.4 Jurisprudence on commutation and pardon

2.5 Challenges to the constitutionality of Death Penalty

v
CHAPTER 3: LEGAL FRAME WORK FOR DEATH PENALTY IN INDIA 26-41

3.1 Constitutional Provisions On Death Penalty

3.2 Bharatiya NagarikSuraksha Sanhita And Death Penalty
3.3 Bharatiya Nyaya Sanhita And Capital Punishment

3.4 Appellate Jurisdiction In Death Penalty Cases

3.5 Special Laws With Death Penalty Provisions

3.6 Role Of The Judiciary In Awarding Death Penalty

3.7 International Law And Death Penalty In India

3.8 Debates On Abolishing The Death Penalty

CHAPTER4: JUDICIAL/LEGALAPPROACH 42-46

4.1 Case laws

CHAPTER5 OTHER ASPECTSOF DEATH PENALTY 47-66

5.1 Issues Of Procedural Fairness And Due Process

5.2 Inadequate Legal Representation For Accused Persons

5.3 Risks of wrongful conviction and execution

5.4 Disproportionate impact on marginalized Groups

5.5 Limited effectiveness As a Deterrent

5.6 Overburdened Judiciary And Lengthy Appeals Process

5.7 Negative Effects On Families And Communities

CHAPTER6: CONCLUSION AND SUGGESTIONS 66-78

6.1 Conclusion

6.2 Suggestions

Bibliography 79-81
vi
 LIST OF ABBREVIATIONS

1. BNS-Bharatiya Nyaya Sanhita

2. BNSS- Code of Criminal Procedure

3. SC- Supreme Court

4. HC - High Court

5. ICCPR-International Covenant on Civil and Political Rights

6. UN- United Nations

7. NGO-Non-Governmental Organization

8. DNA-Deoxyribonucleic Acid

9. ECHR-European Convention on Human Rights

10. HRW- Human Rights Watch

11. AI- Amnesty International

12. MoHA- Ministry of Home Affairs

13. MoJ- Ministry of Justice

14. MoLS- Ministry of Law and Justice

15. MoEF- Ministry of Environment and Forests

16. MoWCD-Ministry of Women and Child Development

17. UNHRC-United Nations Human Rights Council

18. NCPCR-National Commission for Protection of Child Rights

19. NHRC-National Human Rights Commission

20. NCRB-National Crime Records Bureau

21. DNA-National DNA Databank

vii
22. SCPCR- State Commission for Protection of Child Rights

23. PIL- Public Interest Litigation

24. CJI-Chief Justice of India

25. CAG-Comptroller and Auditor General

26. NSSO-National Sample Survey Office

27. UAPA-Unlawful Activities(Prevention)Act

28. POSCO-Protection of Children from Sexual Offences Act

29. ADR- Alternative Dispute Resolution

30. RTI- Right to Information

31. LFA-Legal Framework Agreement

32. IHL-International Humanitarian Law

33. INR-Indian Rupee

34. MoU-Memorandum of Understanding

35. MHA- Ministry of Home Affairs

36. SCs-Scheduled Castes

37. STs-Scheduled Tribes

38. OBCs-Other Backward Classes

39. GDP-Gross Domestic Product

40. UNSC-United Nations Security Council

viii
 TABLEOFCASES

1. BachanSingh v. StateofPunjab, (1980) 2 SCC 684

2. RajendraPrasadv. Stateof U.P.,(1979) 3SCC 646

3. JagmohanSingh v.StateofU.P., (1973)1 SCC 20

4. T.V.Vatheeswaranv. Stateof TamilNadu,(1983) 2SCC 68

5. MachhiSingh v. StateofPunjab, (1983) 3 SCC 470

6. Mithuv. Stateof Punjab, (1983) 2 SCC 277

7. Trivenibenv.StateofGujarat,(1989) 1SCC 678

8. StateofMadhya Pradeshv. Ramesh,(2011) 6SCC 770

9. ShankarKisanraoKhadev.State of Maharashtra,(2013)5SCC546

10. Mohd. Arif @ Ashfaq v. The Registrar, Supreme Court of India, (2014) 9 SCC

737

11. KeharSingh v.Union ofIndia, (1989)1 SCC 204

12. Trivenibenv.State of Gujarat,(1989) 1SCC 678

13. Stateof Biharv. Pashupati Singh, (2009)6 SCC 1

14. DevenderPal Singh Bhullarv.State (NCTofDelhi),(2013)1SCC 177

15. Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC

498

16. Kishori Lal v. State of M.P., (2007)10 SCC 797

17. Sangeetv. State of Haryana,(2013) 2SCC 452

18. Rajesh Kumarv. State (NCT of Delhi),(2011)13SCC 706

ix
 CHAPTER-1 INTRODUCTION

1.1 INTRODUCTION

The death penalty stands as one of the most profound and contentious issues within the
domain of criminal justice, occupying a distinctive and divisive position within India's
legal and societal framework. This longstanding practice of imposing capital
punishment as a consequence for the most serious offenses has been a subject of
extensive scrutiny, impassioned debates, and fervent discourse throughout the nation.
In this study, we undertake a thorough examination of the death penalty in India,
engaging in a critical analysis that spans historical, legal, socio-political, ethical, and
human rights perspectives1.

The institution of the death penalty, also known as capital punishment, stands as the
ultimate manifestation of state authority over the lives of its citizens. Its roots in
Indian history extend deep into antiquity, where it was administered as a form of
retribution, a means of deterring the most severe criminal transgressions, and even a
reflection of divine justice. The journey from these ancient origins to the
contemporary application of the death penalty in India is a story marked by
transformations, influences, and evolving perspectives2.

In the present day, India is a vibrant and diverse nation, teeming with complexity and
contradictions. It boasts a robust legal system, democratic institutions, and a
commitment to the protection of fundamental rights. Yet, within this multifaceted
environment, the death penalty persists, raising questions that challenge our collective
conscience and demand rigorous analysis.

The research problem that underpins this study is multifaceted and profound. It
encompasses questions about the efficacy of the death penalty as a deterrent to crime,
its fairness and impartiality in application, its compatibility with evolving ethical

1
IJLSI,“DeathPenaltyinIndia:AnOverallView-Int’lJournalofLegalSciandInno.”International Journal of
Legal Science and Innovation, 2019 available at: https://www.ijlsi.com/death-penalty-in- india-an-
overall-view/ (last visited February 3, 2025).
2
Admin,“THEIMPLICATIONSOFTHERECENTSUPREMECOURTRULINGONTHEDEATH
PENALTY IN INDIA - Legal Vidhiya” Legal Vidhiya - Legal Vidhiya, 2023 available at:
https://legalvidhiya.com/the-implications-of-the-recent-supreme-court-ruling-on-the-death-penalty-in-
india/ (last visited February 3, 2025).

1
Norms, and its conformity with international human rights standards. Moreover, it
delves into the broader sociopolitical context in which the death penalty exists,
exploring its resonance with public opinion, the role it plays in shaping criminal
justice policy, and the prospects for reform and abolition.

The death penalty has been a contentious issue in India, as it has been in many parts
of the world. The practice of capital punishment, the act of sentencing someone to
death as a punishment for a heinous crime, has deep historical roots in India.
However, it has also been a subject of intense debate, both within the country and on
the international stage. The death penalty represents the ultimate exercise of state
power - the power to take a human life. As such, its use is a reflection of a society's
values, its approach to justice, and its stance on human rights. In the case of India, a
nation known for its rich cultural diversity, complex legal system, and evolving social
dynamics, the death penalty has been a topic of multifaceted analysis and discussion3.

This critical analysis seeks to delve deep into the complexities surrounding the death
penalty in India. It is a multidisciplinary exploration that combines legal, ethical,
sociological, and human rights perspectives. It aims to shed light on the various facets
of the death penalty, from its historical roots to its contemporary application, from the
legal framework governing it to the ethical dilemmas it presents. Moreover, this
analysis will investigate the role of public opinion, political discourse, and
international comparisons in shaping the landscape of capital punishment in India.
Ultimately, it seeks to provide an in-depth understanding of the death penalty's
presence in India and critically assess its place in the country's criminal justice
system4.

The roots of the death penalty in India extend back to ancient times. The Manuscript,
an ancient legal text, outlines instances where the death penalty was prescribed for
certain offenses, offering early insights into its utilization within the Indian
subcontinent.

3
Sneha Mahawar, “Capital punishment in India” iPleaders, 2022 available at:
https://blog.ipleaders.in/capital-punishment-in-india-2/(lastvisitedFebruary3,2025).
4
“A Critical Analysis of the Death Penalty in India,” The Amikus Qriae, 2023 available at:
https://theamikusqriae.com/a-critical-analysis-of-the-death-penalty-in- india/?
utm_source=rss&utm_medium=rss&utm_campaign=a-critical-analysis-of-the-death- penalty-
in-india (last visited February 3, 2025).

2
Throughout the British colonial period, the death penalty was formally codified into
law and retained its presence within the Indian legal system following independence.

The historical trajectory of the death penalty in India is marked by shifts in legal
frameworks, evolving societal perspectives, and pivotal judicial rulings.

The Indian Constitution, while safeguarding the fundamental right to life and personal
liberty, also permits the imposition of the death penalty under specific circumstances.
This constitutional dichotomy has spurred numerous discussions concerning the
legitimacy of capital punishment in India.

The legal framework surrounding the death penalty encompasses a range of statutes
and provisions, including amendments to Bharatiya Nyaya Sanhita, 2023 and
Bharatiya Nagarik Suraksha Sanhita, 2023. Furthermore, India's commitment to
international conventions and treaties adds another layer of complexity to the debate,
as these agreements have implications for the application of the death penalty within
the country5.

The application of the death penalty in India has evolved over the years. There have
been changes in the types of crimes for which it is applicable, as well as shifts in the
demographics of those on death row. The statistics and trends associated with the
death penalty reveal a complex picture of its use in the country. Furthermore, the issue
of judicial discretion and sentencing has been a subject of scrutiny, with concerns
about consistency and fairness in the application of the ultimate punishment6.

The death penalty is a deeply polarizing issue, not only in India but globally. It raises
critical human rights and ethical questions. International human rights standards have
increasingly called for the abolition of the death penalty, considering it a violation of
the right to life. This section will delve into the controversies surrounding capital
punishment and explore arguments for and against its continued use in India.

5
“Constitutionality of Execution of Death Penalty in India,” available at:
https://www.legalserviceindia.com/legal/article-2076-constitutionality-of-execution-of-death-penalty-
in-india.html (last visited February 3, 2025).
6
TheHindu,“Abolitionistheway:TheHinduEditorialonthehigherjudiciary’smoveonthedeath
penalty”TheHindu,2023availableat:https://www.thehindu.com/opinion/editorial/abolition-is-the-
A robust system of judicial review and appeals is essential in any death penalty
regime to safeguard against wrongful convictions and miscarriages of justice. In India,
the process of judicial review and appeals is a crucial component of the capital
punishment system. The role of the Supreme Court of India in reviewing death
penalty cases, as well as the mechanisms for presidential pardons and commutations,
will be examined in detail.

Public opinion and political discourse play a significant role in shaping the approach
to the death penalty. Understanding the perspectives of the Indian public and the
stance of political leaders is vital to comprehending the dynamics surrounding capital
punishment in the country. Media coverage and civil society activism also contribute
to the ongoing conversation about the death penalty in India7.

The death penalty is not unique to India, and its practice varies significantly across
countries. By comparing India's approach to capital punishment with that of other
nations, we can gain insights into the global context of the death penalty and identify
potential lessons and challenges.

As with any complex social issue, there are ongoing efforts to reform the death
penalty system in India. Abolitionist movements and advocacy groups have been
active in calling for the cessation of capital punishment. This section will explore the
various reform proposals and the challenges they face in the Indian context8.

The death penalty in India is a multifaceted topic that demands a comprehensive and
critical analysis. It is a subject that intersects with law, ethics, human rights, and
society. This study seeks to navigate the intricate web of historical, legal, and ethical
considerations surrounding the death penalty in India. By examining its historical
evolution, legal framework, application, human rights implications, judicial processes,
public opinion, international comparisons, and reform efforts, this analysis aims to
provide a holistic understanding of the complexities associated with capital
punishment in India. In doing so, it contributes to the ongoing discourse on the death
penalty and its place in contemporary Indian society.
7
“DeathPenalty: ContemporaryIssues,”availableat:https://www.indianbarassociation.org/death-
penalty-contemporary-issues/ (last visited February 3, 2025).
8
TheHindu,“Abolitionistheway:TheHinduEditorialonthehigherjudiciary’smoveonthedeath
penalty”TheHindu,2023availableat:https://www.thehindu.com/opinion/editorial/abolition-is-the-
1.2 IMPORTANTS PROVISIONS:-

1. Murder: Section 101 of Bharatiya Nyaya Sanhita, 2023 (BNS) addresses the
offense of murder, prescribing punishment as death or life imprisonment, along
with a fine. However, the imposition of the death penalty for murder is contingent
upon specific conditions, such as the presence of special circumstances or the
classification of the case as the "rarest of the rare" by the courts.9

2. Terrorist Activities: India possesses a robust legal frame work to combat

terrorism- related offenses, many of which are punishable by death. Statutes like
the Unlawful Activities (Prevention) Act, 1967 (UAPA), along with formerly
enacted laws such as the Terrorist and Disruptive Activities (Prevention) Act,
1987 (TADA)andthePreventionofTerrorismAct,2002(POTA),containedprovisions
allowing for the death penalty in cases of terrorism, waging war against the state,
and acts resulting in death during terrorist activities.10

3. Espionage and Waging War against the State: Section 145 of the BNS pertains to
offenses related to waging or attempting to wage war against the Government of
India. Individuals found guilty of such offenses may face punishment by death or
imprisonment for life. Similarly, espionage-related offenses under the Official
Secrets Act, 1923, can also warrant the death penalty.11

4. Abduction and Murder of a Child: In response to the tragic Nirbhaya gang-rape

case in Delhi, legislative changes were introduced. The Criminal Law
(Amendment) Act, 2013, introduced Section 71 to the BNS, stipulating the death

9
“BNS Section101-Murder.,”A Lawyers Reference available at :https://devgan.in/bns/section/101/ (last
visited February 5, 2025).
10
“Dissentina Democracy: Political Imprisonment under the UAPA in India, “Economic and Political
Weekly, 2022 available at: https://www.epw.in/engage/article/dissent-democracy-political-
imprisonment-under (last visited February 5, 2025).
11
Ibid.
 Penalty in cases of rape leading to the death of the victim or leaving her in a
persistent vegetative state.
5. Drug Trafficking: The Narcotic Drugs and Psychotropic Substances Act, 1985,
include provisions for the death penalty in instances of large-scale drug trafficking
or financing illicit traffic in narcotics. The imposition of the death penalty under
this act is conditional upon certain factors, such as involvement in organized crime
or repeated offenses.12

6. Acts of Treason: The Constitution of India defines the offense of "high treason."
Although the term "death penalty" is not explicitly mentioned, the offense is
punishable by the highest form of punishment. However, cases of high treason are
extremely rare in India.13

7. Military Offenses: The Indian military law, as laid out in the Army Act, 1950, the
Navy Act, 1958, and the Air Force Act, 1950, contains provisions for the death
penalty in cases of certain military offenses, such as mutiny, desertion, and aiding the
enemy during wartime.

8. Hijacking: The Anti-Hijacking Act, 2016, provides for the death penalty in cases
of aircraft hijacking resulting in death or grievous harm to any person. The Act allows
for the imposition of the death penalty as well as other severe penalties for hijacking-
related offenses.

9. Juvenile Justice Amendment Act, 2015: While not specifically related to the
death penalty, the Juvenile Justice (Care and Protection of Children) Amendment Act,
2015, allows for juveniles between the ages of 16 and 18 to be tried as adults for
heinousoffenses,includingmurderandrape.Whiletheseindividualsmaynotfacethe death
penalty, they can receive substantial sentences if found guilty.

10. Special Laws and State-Specific Offenses: Several Indian states have enacted
special laws and regulations that provide for the death penalty in certain situations,
often related to acts of terrorism, organized crime, and communal violence.

12
“A detailed over view of narcotic drugs and psychotropic substances act,1985.,”Times of India Blog,
2022 available at: https://times of india.india times.com/readersblog/legalangle/a-detailed-overview-
of- narcotic-drugs-and-psychotropic-substances-act1985-45878/ (last visited February 5, 2025).
13
Academike, “Death Penalty: Its Repurcussions - Academike” Laxmikant Bhumkar, 2015 available
at:https://www.lawctopus.com/academike/death-penalty-repurcussions/(lastvisitedFebruary5,2025).
The death penalty in India is primarily applicable to crimes such as murder, terrorism,
espionage, and acts against the state. While legal provisions exist for the imposition of
the death penalty, its actual application is subject to judicial discretion and the
assessment of the rarest of the rare cases. India's legal framework surrounding the
death penalty continues to be a topic of debate and reform, with ongoing discussions
about the scope of offenses for which the ultimate punishment is warranted.

1.3 STATEMENT OF PROBLEM

The continued existence and application of the death penalty in India pose a
multifacetedproblemthatnecessitatesin-depthexaminationandcriticalanalysis.This
complex issue revolves around the tension between the state's authority to take a
human life as a form of punishment and the need to uphold fundamental human
rights, due process, and fairness in the criminal justice system.

One significant problem lies in the potential for the wrongful conviction and
execution of individuals, given the fallibility of the legal process and the irrevocability
of the death penalty. Cases of miscarriages of justice, where individuals have been
later acquitted after facing execution or extended periods on death row, highlight the
inherent risks associated with capital punishment.

In light of these challenges and complexities, this critical analysis seeks to examine
the death penalty in India comprehensively, considering legal, social, ethical, and
international perspectives to evaluate its role in contemporary Indian society and its
adherence to principles of justice, human rights, and the rule of law.

1.4 HYPOTHESIS:

The legal framework for the death penalty in India, while adhering to constitutional
provisions and international obligations, may have inherent flaws that result in
potential injustices in its application. Disparities in the application of the death penalty
in India may be influenced by socio-economic factors, geographical location, and the
quality of legal representation, raising concerns about the fairness of the criminal

7
 justice system. International comparisons may reveal variations in the use of the death
penalty and highlight the need for India to align its practices more closely with global
human rights norms.

Public opinion in India regarding the death penalty may be diverse and influenced by
socio-cultural factors, impacting the political debates and policy decisions
surrounding capital punishment. Reform proposals and abolitionist movements in
India may face resistance but have the potential to influence meaningful changes in
the legal framework governing the death penalty, reflecting evolving societal attitudes
and international trends.

1.5 OBJECTIVES OF THE STUDY

The objectives for this study on the death penalty in India are as follows:

1.2.1 To critically examine the legal provisions and constitutional safeguards

governing the death penalty in India, including relevant statutes, judicial
interpretations, and international obligations.

1.2.2 To evaluate the application of the death penalty in India, including the
criteria for sentencing, patterns of execution, and disparities in its
application.

1.2.3 To compare India's approach to the death penalty with international

practices and standards, assessing the country's alignment with global
human rights norms.

8
 1.2.4 To critically examine the legal provisions and constitutional safeguards
governing the death penalty in India, including relevant statutes, judicial
interpretations, and international obligations.
1.2.5 To evaluate the application of the death penalty in India, including the
criteria for sentencing, patterns of execution, and disparities in its
application.
1.2.6 To compare India's approach to the death penalty with international
practices and standards, assessing the country's alignment with global
human rights norms.
1.2.7 To investigate public perception and political debates surrounding the
death penalty in India, including factors influencing support for or
opposition to capital punishment.
1.2.8 To analyze proposals for legal reforms and advocacy efforts aimed at
reforming or abolishing the death penalty in India, including challenges
and prospects for change.

1.6 RESEARCH METHODOLOGY

6. The research methodology employed in this study is primarily doctrinal in

nature. Doctrinal research, in the context of legal studies, involves the
systematic analysis and interpretation of existing legal materials, such as
statutes, case law, treaties, and legal literature. In this research, the primary
focus is on examining and synthesizing legal provisions, court decisions, and
relevant documents related to the death penalty in India.
7. Through this doctrinal research methodology, the study aims to provide a
comprehensive understanding of the legal dimensions of the death penalty in
India, its compliance with domestic and international legal standards, and the
broader legal discourse surrounding this complex issue.

1.7 RESEARCH QUESTIONS:

The research questions to be addressed in this study are:

9
 1.4.1 What is the current legal framework governing the death penalty in India,
and how does it align with international human rights standards and
obligations?
1.4.2 How is the death penalty applied in India, and what factors influence
sentencing decisions, including the role of aggravating and mitigating
circumstances?
1.4.3 How does India's approach to the death penalty compare with that of
other countries, both abolitionist and retentions, in terms of legal
procedures, outcomes, and compliance with human rights norms?
1.4.4 What are the prevailing attitudes and opinions of the Indian public toward
the death penalty, and how do these views influence the political
discourse surrounding capital punishment?
1.4.5 What are the key reform proposals and abolitionist movements in India,
and what are the challenges and prospects for meaningful change in the
legal framework governing the death penalty?

1.8 REVIEW OF LITERATURE

1. Anand, M. (2018).14. This article by an and provides a comprehensive overview of

the death penalty in India. It delves into the legal framework and procedural aspects
surrounding the imposition and execution of the death penalty. Additionally, it
highlights recent developments and changes in the Indian legal landscape concerning
capital punishment.

2. Basu, S. (2019).15. Basu's article focuses on the constitutional and legal aspects of
the death penalty in India, particularly exploring the possibilities of its abolition. It
provides an in-depth analysis of the legal framework and constitutional provisions that
underpin the debate surrounding capital punishment in the country.

3. Bhattacharya, P. (2018).16P. Bhattacharya's article takes a socio-legal perspective

on the death penalty in India. It analyzes the societal and legal dimensions of capital
punishment,examiningitsimpactondifferentsegmentsofsociety.Thisarticleoffers

14
Anand,M.(2018).DeathPenaltyinIndia:Law,Procedure,andRecentDevelopments.Journalofthe Indian
Law Institute, 60(3), 281-305
15
Basu,S.(2019).AbolitionoftheDeathPenaltyinIndia:AnAnalysisoftheConstitutionalandLegal
Framework. Indian Journal of Constitutional & Administrative Law, 3(2), 31-47
16
Bhattacharya,P.(2018).DeathPenaltyinIndia:ASocio-legalAnalysis.JournaloftheIndianLaw Institute,
60(3), 306-326
10
Insights into the complex relationship between the law and society in the context of
the death penalty.

4. Choudhary, B. P. (2019).17B. P. Choudhary's work explores capital punishment in

India from a legal and constitutional standpoint. It delves into the constitutional
provisions and legal principles that govern the use of the death penalty. The article
critically examines the legal and constitutional aspects of this contentious issue.

5. Gandhi, R. (2019)18. R. Gandhi's article provides an Indian perspective on the

death penalty in relation to human rights. It investigates the human rights implications
of capital punishment in India, shedding light on the ethical and legal considerations
surrounding the topic.

6. Jethmalani, R. (2018)14. This article authored by R. Jethmalani advocates for a

rational approach to the death penalty in India. It argues for a careful and reasoned
evaluation of capital punishment, considering its ethical, legal, and societal
dimensions. The article emphasizes the need for a well-informed discourse on the
subject.

7. Kacker, S. (2019)15. S. Kacker's work offers a critical review of judicial

pronouncements related to the death penalty in India. It examines key legal judgments
and decisions that have shaped the landscape of capital punishment in the country.
The article provides insights into how the judiciary has interpreted and applied death
penalty laws.

8. Kumar, V. (2018)16. V. Kumar's article provides legal and constitutional

perspectives on the death penalty in India. It analyzes the legal framework and
constitutional provisions relevant to capital punishment. The article explores the
implications of these legal aspects on the practice of the death penalty in the country.

17
Choudhury,B.P.(2019).CapitalPunishmentinIndia:ALegalandConstitutionalPerspective. Indian
Journal of Public Administration, 65(2), 262-275
18
Gandhi,R.(2019).DeathPenaltyandHumanRights:AnIndianPerspective.InternationalJournalof
Humanities and Social Science Research, 7(2), 1-11
14
Jethmalani,R.(2018).DeathPenaltyinIndia:TheNeedforaRationalApproach.Economic& Political
Weekly, 53(44), 26-29
15
Kacker,S.(2019).DeathPenaltyinIndia:ACriticalReviewofJudicialPronouncements.Journalof Indian
Law and Society, 10, 31-46
16
Kumar,V.(2018).DeathPenaltyinIndia:LegalandConstitutionalPerspectives.JournalofLaw, Policy and
Globalization, 74, 123-133

11
 1.9 CHAPTERIZATION SCHEME

Chapter 1: Introduction
This chapter introduces the concept of capital punishment and its controversial status in
India. It outlines the research problem, objectives, hypothesis, methodology, and key
questions. A detailed literature review is included to highlight existing gaps. The chapter
sets the tone for critical analysis of the death penalty as a deterrent.
Chapter 2: Historical Background
This chapter traces the evolution of the death penalty in India, from ancient times to post-
independence. It discusses types of crimes punishable by death and analyzes data on
sentencing and executions. The demographic profile of death row inmates is explored. It
also highlights jurisprudence on commutation and constitutional challenges.
Chapter 3: Legal Framework
The legal framework chapter examines constitutional provisions like Articles 21, 72, and
161, and new criminal laws such as BNS and BNSS 2023. It details procedural safeguards,
appellate review, and judicial reasoning in capital cases. Special statutes like UAPA and
NDPS Act are also covered. International human rights obligations are discussed for
comparative insight.
Chapter 4: Judicial/Legal Approach
This chapter focuses on key judicial pronouncements that shaped the application of the
death penalty in India. It emphasizes the “rarest of rare” doctrine and inconsistencies in
judicial reasoning. Case laws such as Bachan Singh, Jagmohan Singh, and Machhi Singh
are analyzed. The evolving attitude of the judiciary toward capital punishment is critically
examined.
Chapter 5: Other Aspects of Death Penalty
This chapter explores systemic and ethical issues associated with the death penalty. It
covers procedural lapses, poor legal aid, risk of wrongful convictions, and bias against
marginalized communities. It also addresses the psychological impact on inmates and their
families. The limited deterrent effect of the death penalty is critically questioned.
Chapter 6: Conclusion and Suggestions
The final chapter summarizes the findings and reiterates that the death penalty fails as an
effective deterrent. It underscores the need for reforms, better legal safeguards, and
alternatives like life imprisonment. The chapter proposes policy and judicial reforms. It
calls for alignment with international human rights standards and evolving constitutional
morality.
12
 CHAPTER-2

HISTORICAL BACKGROUND

2.1 NUMBER AND TYPES OF CRIMES PUNISHABLE BY DEATH

In India, the use of the death penalty is governed by a combination of statutory laws
and judicial decisions. This section examines the number and types of crimes
punishable by death in India, including the relevant sections and laws.

11. Murder: Section 101 of Bharatiya Nyaya Sanhita, 2023 (BNS) addresses the
offense of murder, prescribing punishment as death or life imprisonment, along
with a fine. However, the imposition of the death penalty for murder is contingent
upon specific conditions, such as the presence of special circumstances or the
classification of the case as the "rarest of the rare" by the courts.17
12. Terrorist Activities : India possesses a robust legal framework to combat
terrorism- related offenses, many of which are punishable by death. Statutes like
the Unlawful Activities (Prevention) Act, 1967 (UAPA), along with formerly
enacted laws such as the Terrorist and Disruptive Activities (Prevention) Act,
1987 (TADA)andthePreventionofTerrorismAct,2002(POTA),containedprovisions
allowing for the death penalty in cases of terrorism, waging war against the state,
and acts resulting in death during terrorist activities.18
13. Espionage and Waging War against the State: Section 145 of the BNS pertains to
offenses related to waging or attempting to wage war against the Government of
India. Individuals found guilty of such offenses may face punishment by death or
imprisonment for life. Similarly, espionage-related offenses under the Official
Secrets Act, 1923, can also warrant the death penalty.19
14. Abduction and Murder of a Child: In response to the tragic Nirbhaya gang-rape
case in Delhi, legislative changes were introduced. The Criminal Law
(Amendment) Act, 2013, introduced Section 71 to the BNS, stipulating the death

17
“BNSSection101-Murder.,”ALawyersReferenceavailableat:https://devgan.in/bns/section/101/ (last
visited February 5, 2025).
18
“DissentinaDemocracy:PoliticalImprisonmentundertheUAPAinIndia,”EconomicandPolitical
Weekly, 2022 available at: https://www.epw.in/engage/article/dissent-democracy-political-
imprisonment-under (last visited February 5, 2025).
19
Ibid.

13
 penalty in cases of rape leading to the death of the victim or leaving her in a
persistent vegetative state.
15. Drug Trafficking: The Narcotic Drugs and Psychotropic Substances Act, 1985,
includes provisions for the death penalty in instances of large-scale drug
trafficking or financing illicit traffic in narcotics. The imposition of the death
penalty under this act is conditional upon certain factors, such as involvement in
organized crime or repeated offenses.20

16. Acts of Treason: The Constitution of India defines the offense of "high
treason." Although the term "death penalty" is not explicitly mentioned, the offense is
punishable by the highest form of punishment. However, cases of high treason are
extremely rare in India.21

17. Military Offenses: The Indian military law, as laid out in the Army Act,
1950, the Navy Act, 1958, and the Air Force Act, 1950, contains provisions for the
death penalty in cases of certain military offenses, such as mutiny, desertion, and
aiding the enemy during wartime.

18. Hijacking: The Anti-Hijacking Act, 2016, provides for the death penalty in
cases of aircraft hijacking resulting in death or grievous harm to any person. The Act
allows for the imposition of the death penalty as well as other severe penalties for
hijacking- related offenses.

19. Juvenile Justice Amendment Act, 2015: While not specifically related to
the death penalty, the Juvenile Justice (Care and Protection of Children) Amendment
Act, 2015, allows for juveniles between the ages of 16 and 18 to be tried as adults for
heinousoffenses,includingmurderandrape.Whiletheseindividualsmaynotfacethe death
penalty, they can receive substantial sentences if found guilty.

20. Special Laws and State-Specific Offenses: Several Indian states have enacted
special laws and regulations that provide for the death penalty in certain situations,
often related to acts of terrorism, organized crime, and communal violence.

20
“Adetailedoverviewofnarcoticdrugsandpsychotropicsubstancesact,1985.,”TimesofIndiaBlog, 2022
available at: https://timesofindia.indiatimes.com/readersblog/legalangle/a-detailed-overview-of-
narcotic-drugs-and-psychotropic-substances-act1985-45878/ (last visited February 5, 2025).
21
Academike, “Death Penalty: Its Repurcussions - Academike” Laxmikant Bhumkar, 2015 available
at:https://www.lawctopus.com/academike/death-penalty-repurcussions/(lastvisitedFebruary5,2025).

14
The death penalty in India is primarily applicable to crimes such as murder, terrorism,
espionage, and acts against the state. While legal provisions exist for the imposition of
the death penalty, its actual application is subject to judicial discretion and the
assessment of the rarest of the rare cases. India's legal framework surrounding the
death penalty continues to be a topic of debate and reform, with ongoing discussions
about the scope of offenses for which the ultimate punishment is warranted.

2.2 STATISTICS ON DEATH SENTENCES AND EXECUTIONS

Tracking statistics on death sentences and executions in India is a challenging task

due to the complex nature of the legal system and the evolving status of capital
punishment in the country. This section presents an overview of the available statistics
on death sentences and executions in India, as well as the factors that contribute to the
difficulty of collecting accurate data22.

Statistics on Death Sentences:

Obtaining comprehensive and up-to-date statistics on death sentences in India is

complicated by several factors:

1. Lack of Centralized Database: India does not maintain a centralized database of

death sentences, making it challenging to compile accurate and current statistics.
Instead, data on death sentences are often scattered across various states and
territories.

2. State Variations: Each state in India has its own legal system and judiciary,
resulting in variations in the application of the death penalty. Statistics on death
sentences can vary significantly from one state to another.

3. Underreporting: Some states may not consistently report data on death sentences,
leading to underreporting in official records. This lack of transparency can hinder
efforts to assess the true extent of death penalty use.

4. Commutations and Appeals: Death sentences in India are often subject to lengthy
appealsandcommutationprocesses,leadingtodelaysinexecutions.Statisticsonthe

22
“TheDeathPenaltyin2022: YearEndReport,”DeathPenaltyInformationCenter,2022available at:
https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-death-
penalty-in-2022-year-end-report (last visited February 4, 2025).

15
Final outcomes of these cases may not always reflect the initial death sentences
imposed.

5. Secret Executions: In some cases, executions in India have been carried out in
secrecy, without prior public announcement or reporting. These secret executions
further complicate efforts to gather accurate statistics.

Statistic son Executions:

India follow scare full and deliberative process for carry in go out executions, which
have resulted in relatively few executions over the years. Key points regarding
statistics on executions in India include:

1. Infrequent Executions: India has executed only a small number of individuals in

recent decades. Executions are relatively rare due to the rigorous legal process,
numerous appeals, and the possibility of commutation.

2. Long Periods between Executions: The time intervals between executions in

India can be significant. Years or even decades may pass between one execution and
the next, contributing to the perception of the death penalty as a rarely used
punishment.

3. Secrecy Surrounding Executions: As mentioned earlier, some executions in India

have been carried out discreetly, with limited public information provided. This
secrecy can make it difficult to track and verify execution statistics23.

Factors Affecting Execution Rates:

Several factors influence the execution rates and statistics related to the death penalty
in India:

1. Legal Challenges: Death row in mates in India often files numerous legal
challenges and appeals, leading to delays in the execution process. The extensive legal
safeguards in place contribute to the infrequent use of the death penalty.

2. Presidential Pardons and Commutations: The President of India and state

Governors have the authority to grant pardons or commute death sentences. These

23
PTI,“Atleast720executionsinIndiasince1947”EconomicTimes,20March2020.

16
Executive actions can result in the conversion of death sentences to life imprisonment,
further reducing the number of executions24.

3. Public Opinion and Moratoriums: Public sentiment, political considerations, and

international pressure have influenced decisions related to the death penalty. There
have been periods of de facto moratoriums on executions in India in response to
public outcry and concerns about wrongful convictions.

Collecting accurate and comprehensive statistics on death sentences and executions in

India is a complex task due to the decentralized legal system, variations among states,
and the many factors that influence the application of the death penalty. While the
number of executions in India remains relatively low, the debate surrounding the use
of capital punishment continues to be a prominent issue in the country's legal and
social discourse.

2.3 DEMOGRAPHICS OF DEATHROW IN MATES

Understanding the demographics of death row inmates in India provides insights into
the socio-economic, legal, and regional factors that contribute to the application of the
death penalty. While obtaining comprehensive demographic data can be challenging
due to the decentralized nature of India's legal system and the lack of centralized
records, available information offers valuable perspectives on the characteristics of
individuals facing capital punishment.

1. Ageand Gender:

The age of death row inmates in India varies widely, but most are adults at the time of
sentencing. However, there have been cases of individuals who were sentenced to
death as juveniles but later had their sentences commuted or reduced due to
international standards and legal reforms.

In terms of gender, the vast majority of death row inmates in India are male. While
women can receive the death penalty, it is a rare occurrence.

24
Manupatra, “Articles – Manupatra” available at: https://articles.manupatra.com/article-
details/Presidential-Pardon-Can-it-be-Subjected-to-Judicial-Scrutiny(lastvisitedFebruary4,2025).

17
2. Socio-Economic Background:

Death row inmates in India come from diverse socio-economic backgrounds. While
some may be economically disadvantaged, others may have middle-class or upper-
class backgrounds. The socio-economic status of the accused can impact their ability
to access legal representation and navigate the complex legal process25.

3. Educational Attainment:

The educational background of death row inmates can vary significantly. Some may
have limited formal education, while others may have completed high school orhigher
education. Access to education and socio-economic factors can influence an
individual's legal defense and understanding of the criminal justice system.

4. Regional Disparities:

India's diverse regions and states exhibit variations in the application of the death
penalty. States with a higher incidence of certain crimes may have greater number of
death row inmates. Regional disparities can also influence access to legal
representation and the quality of defense.

5. Offense Types:

The demographics of death row inmates can be influenced by the types of crimes for
which they are sentenced to death. Individuals convicted of offenses such as murder,
terrorism, and drug trafficking are more likely to be sentenced to death. The legal
framework and sentencing guidelines for different offenses can affect the
demographic composition of death row.

6. Legal Representation:

Access to legal representation plays a crucial role in the demographic makeup of

death row inmates. Those who cannot afford adequate legal counsel may be at a
disadvantage in navigating the complex legal system. Pro bono legal services and
organizations dedicated to providing legal assistance to indigent individuals on death
row can impact the demographics of those facing execution.

25
“Three-QuartersofDeathRowPrisonersarefromLowerCastesorReligiousMinorities,”TheWire
available at: https://thewire.in/law/three-quarters-of-death-row-prisoners-are-from-lower-castes-or-
religious-minorities (last visited February 4, 2025).

18
7. Length of Time on Death Row:

The length of time an individual spends on death row before execution can vary
significantly. Lengthy legal processes, appeals, and commutation procedures can
result in individuals spending several years or even decades on death row. This factor
can impact the age and health of inmates at the time of execution.

8. Commutation and Pardons:

Demographic characteristics may also be influenced by decisions related to clemency

and commutation. When death sentences are commuted to life imprisonment or
pardoned by executive authorities, the demographic composition of death row
changes accordingly26.

The demographics of death row inmates in India reflect the diverse socio-economic
backgrounds, legal challenges, and regional disparities within the country.
Understanding these demographics is essential for policymakers, legal advocates, and
the public when considering issues related to the death penalty, access to justice, and
the impact of socio-economic factors on the criminal justice system. It is important to
note that while some trends and patterns exist, each death penalty case is unique, and
individual circumstances must be considered in legal and policy discussions.

2.4 JURISPRUDENCE ON COMMUTATION AND PARDON

The jurisprudence surrounding the commutation and pardon of death sentences in

India is a complex and evolving area of law. Commutation refers to the reduction of a
death sentence to a lesser punishment, typically life imprisonment, while pardon
involves the complete exoneration of a condemned individual. This section explores
the legal framework, key cases, and principles that shape the jurisprudence on
commutation and pardon in India.

1. Constitutional Provisions:

The power to grant pardons and reprieves is enshrined in the Indian Constitution.
Article 72 empowers the President of India to grant pardons, reprieves, respites, or
remissions of punishment. Similarly, Article 161 provides the Governor of a state

26
MichaelHeise,“MercybytheNumbers:AnEmpiricalAnalysisofClemencyandItsStructure,”89 Virginia
Law Review 239–310 (2003).

19
With the authority to grant pardons, reprieves, respites, or remissions of punishment
for offenses under state laws27.

4. Mercy Petitions:

Individuals on death row have the right to file mercy petitions to the President or
Governor, seeking commutation or pardon. The exercise of this right is often the last
legal recourse available to death row inmates. Mercy petitions contain pleas for
clemency, highlighting factors such as remorse, rehabilitation, and humanitarian
grounds.

5. Case Law on Commutation and Pardon:

Numerous cases in India's legal history have dealt with issues related to commutation
and pardon, influencing jurisprudence in this area:

 Kehar Singh v. Union of India (1989): In this landmark case, the Supreme
Court ruled that undue delay in the disposal of mercy petitions could be
grounds for commutation. The Court held that inordinate delays in the
execution process violate a prisoner's fundamental rights, including the right to
life and dignity28.

 Epuru Sudhakar and Another v. Govt. of A.P. and Others (2006): The
Supreme Court clarified that clemency is a constitutional duty of the President
and the Governor and that their decisions must be guided by constitutional
principles and not influenced by political considerations29.

 Shatrughan Chauhan v. Union of India (2014): This case highlighted the

importance of considering mental illness as a ground for commutation. The

27
“PowerofPardoninIndia,”availableat:https://www.legalserviceindia.com/legal/article-5052-
power-of-pardon-in-india.html (last visited February 4, 2025).
28
Rachit Garg, “Kehar Singh v. the Union of India: case analysis” iPleaders, 2021 available at:
https://blog.ipleaders.in/kehar-singh-v-union-india-case-analysis/(lastvisitedFebruary4,2025).
29
“Epuru Sudhakar And Another v. Govt. Of A.P And Others, Supreme Court Of India, Judgment,
Law, casemine.com,” https://www.casemine.comavailable at:
https://www.casemine.com/judgement/in/5609ae36e4b0149711413316(lastvisitedFebruary4,2025).

20
 Court recognized that individuals suffering from mental illness may not fully
comprehend the consequences of their actions30.

6. Grounds for Commutation and Pardon:

The grounds for commutation or pardon in India may include:

 Inordinate Delay: Undue delay in the execution process can be a significant

ground for commutation, as established in the Kehar Singh case.

 Mental Illness: The mental health of a condemned individual is a valid

consideration for commutation, as established in the Shatrughan Chauhancase.

 Remorse and Rehabilitation: Demonstrated remorse, rehabilitation, and

reformation of the inmate can be factors favoring clemency.

 Humanitarian Grounds: Compassionate factors, such as the inmate's age,

family circumstances, or health conditions, may be considered.

7. Role of Executive Authorities:

The President and Governors have the prerogative to accept or reject mercy petitions.
Their decisions are typically based on the advice of the Council of Ministers or the
state Cabinet. While these authorities have the power to grant clemency, they must
exercise it judiciously, considering the facts and circumstances of each case31.

The jurisprudence on commutation and pardon in India underscores the importance of

a fair and humane criminal justice system. While the death penalty remains a legal
punishment in India, the exercise of mercy powers serves as a vital check on its
application. The evolving jurisprudence in this area reflects the country's commitment
to ensuring that the ultimate punishment is applied judiciously, with due consideration
for constitutional principles and humanitarian grounds.

30
admin, “Shatrughan Chauhan & anr. vs. Union of India & ors: Case Analysis” Our Legal
World,2020availableat:https://www.ourlegalworld.com/shatrughan-chauhan-anr-vs-union-of-india-
ors-case-analysis/ (last visited February 4, 2025).
31
KhadijaKhan,“Mercypetitions:HowchangesproposedintheBNSSignorelegalprecedents”The Indian
Express, 1 September 2023.

21
2.5 CHALLENGES TO THE CONSTITUTIONALITY OF DEATH PENALTY

The constitutionality of the death penalty in India has been a subject to extensive legal
scrutiny and debate. Various legal challenges have been raised against the death
penalty on grounds such as arbitrariness, discrimination, and the violation of
fundamental rights. This section explores the key challenges to the constitutionality of
the death penalty in India, including relevant sections and laws.32

1. Arbitrariness and Discrimination:

One of the primary challenges to the constitutionality of the death penalty in India is
the argument that its application is arbitrary and discriminatory. Critics contend that
the death penalty is disproportionately imposed on marginalized and economically
disadvantaged individuals.

Case Reference: In the case of Bachan Singh v. State of Punjab (1980), the Supreme
Court acknowledged the risk of arbitrariness in death penalty sentencing. The Court
laid down the "rarest of the rare" doctrine to guide sentencing and reduce the
possibility of arbitrary imposition.

2. Right to Life and Dignity:

The right to life and personal liberty is a fundamental right protected under Article 21
of the Indian Constitution. Opponents of the death penalty argue that it violates this
fundamental right, as it involves the taking of a person's life by the state. The
contention is that life imprisonment can achieve the same penal objectives without
infringing upon the right to life and dignity.

Case Reference: In the case of Maneka Gandhi v. Union of India (1978), the
Supreme Court held that Article 21 is not limited to mere animal existence but
includes a meaningful and dignified life.

3. Delay in Execution and Mental Agony:

Protracted delays in the execution of death sentences have led to legal challenges on
the grounds of cruel, inhuman, or degrading treatment. The extended period spent on

32
Kevin M. Barry, “The Death Penalty & The Fundamental Right to Life” available at:
https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3411859_code1158116.pdf?
abstractid=3287213&mirid=1 (last visited February 5, 2025).

22
death row, often spanning several years or even decades, has been argued to inflict
mental agony on the condemned individuals and their families33.

Case Reference: In the case of Shatrughan Chauhan v. Union of India (2014), the
Supreme Court recognized that inordinate delays in execution could amount to cruel,
inhuman, or degrading treatment, violating Article 21.

4. Risk of Wrongful Conviction:

Concerns about the risk of wrongful convictions and the irreversible nature of the
death penalty have been raised in constitutional challenges. Advocates argue that the
possibility of judicial errors, false confessions, and unreliable evidence makes the
death penalty incompatible with the guarantee of justice.

In the case of Santosh Kumar Bariyar v. State of Maharashtra (2009), the Supreme
Court acknowledged the importance of ensuring that no innocent person is executed
and called for strict adherence to safeguards.

5. Mental Illness and Diminished Capacity:

The constitutionality of executing individuals with mental illness or diminished

capacity has also been challenged. It is argued that such executions violate the
prohibition against cruel and unusual punishment under Article 2134.

In the case of Memon v. State of Maharashtra (2015), concerns about the mental
health of the accused were raised, highlighting the need to consider mental illness in
sentencing and execution.

6. International Human Rights Standards:

International human rights standards and evolving global norms against the death
penalty have been cited in constitutional challenges. Opponents argue that India
should align its legal framework with international standards that advocate for the
abolition of the death penalty.

33
“The agony of awaiting death,” The Hindu, 2014 available at:
https://www.thehindu.com/opinion/lead/the-agony-of-awaiting-death/article5631479.ece(lastvisited
February 4, 2025).
34
ChristopherSlobogin,“MentalIllnessandtheDeathPenalty,”24MentalandPhysicalDisability Law
Reporter 667–77 (2000).

23
 Challenges to the constitutionality of the death penalty in India revolve around core
principles of equality, dignity, non-arbitrariness, and the right to life. The legal
landscape is marked by a delicate balance between the state's authority to punish and
the need to safeguard individual rights and prevent miscarriages of justice.
Constitutional challenges continue to shape the legal discourse on the death penalty,
with ongoing debates on its compatibility with the fundamental principles of justice
and human rights.

Conclusion

The debate surrounding the death penalty in India continues to raise complex
questions about justice, deterrence, and human rights. Despite its existence within the
Indian legal framework, there is no clear empirical evidence that capital punishment
acts as a stronger deterrent to crime than life imprisonment. The assumption that fear
of death prevents individuals from committing serious offenses has been challenged
by numerous academic studies and global criminological research. In fact, crimes like
murder and terrorism are often driven by factors such as emotional distress, socio-
political grievances, or psychological abnormalities—situations where the rational
calculation of consequences (like execution) plays a limited role.

India's approach to capital punishment is governed by the principle of awarding the

death sentence only in the "rarest of rare" cases, a doctrine established in the
landmark case Bachan Singh v. State of Punjab (1980). However, this doctrine has
resulted in inconsistencies in sentencing and subjectivity in judicial interpretation.
Additionally, many individuals sentenced to death in India come from economically
disadvantaged backgrounds and lack adequate legal representation, raising concerns
about the fairness and equity of capital trials.

Furthermore, the lengthy delays in carrying out executions—caused by prolonged

appeals, mercy petitions, and procedural hurdles—diminish any immediate deterrent
effect the death penalty might theoretically possess. These delays also subject
prisoners to extended psychological trauma, known as the "death row phenomenon,"
which has been criticized by human rights bodies for its cruel and inhuman impact.

24
The Law Commission of India, in its 262nd Report (2015), after comprehensive
study and consultation, recommended the abolition of the death penalty for all
crimes except terrorism and war-related offenses, emphasizing that there is no
proven deterrent effect and that the risk of wrongful conviction is too great to ignore.

In conclusion, while the death penalty continues to exist in India's statute books and
is constitutionally valid, its practical and moral legitimacy as a deterrent remains
unproven. It is clear that a more reliable strategy for crime prevention lies not in the
harshness of punishment, but in the certainty, swiftness, and fairness of the justice
system. India's focus should shift toward systemic reforms that uphold human dignity
while ensuring justice and accountability.

25
 CHAPTER-3

LEGALFRAMEWORKFORDEATHPENALTYININDIA

3.1 CONSTITUTIONAL PROVISIONS ON DEATH PENALTY

The Indian Constitution, adopted in 1950, lays down the fundamental principles and
framework of governance in the country. Within this constitutional framework,
specific provisions relate to the imposition of the death penalty, emphasizing its
careful and limited application.35

Article 21 of the Indian Constitution holds pivotal significance in the context of the
death penalty. It establishes the fundamental right to life and personal liberty,
explicitly stating that "No person shall be deprived of his life or personal liberty
except according to a procedure established by law." This provision serves as the
bedrock guarantee that any deprivation of life through the death penalty must adhere
strictly to principles of due process, fairness, and justice. It underscores the
importance of the law as the sole legitimate instrument for the imposition of the death
penalty, while also emphasizing the necessity for rigorous adherence to established
legal procedures.36

Additionally, Article 72 of the Constitution confers clemency powers upon the

President of India. It authorizes the President to grant pardons, reprieves, respites, or
remissions of punishment, or to suspend, remit, or commute sentences in specific
death penalty cases. This constitutional provision serves as a critical safeguard against
arbitrary imposition of the death penalty, enabling executive review and consideration
of humanitarian factors. It acknowledges that the imposition of the ultimate
punishment should not occur arbitrarily or in instances where concerns regarding
miscarriages of justice or humanitarian considerations arise.37

35
“Constitutionality of Death Penalty,” available at:
https://www.indianbarassociation.org/constitutionality-of-death-penalty/(lastvisitedFebruary5,
2025).
36
Academike,“Article21oftheConstitutionofIndia:UnderstandingRighttoLifeandPersonal Liberty
from Case Laws - Academike” Laxmikant Bhumkar, 2024 available at:
https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-
personal-liberty/ (last visited February 5, 2025).
37
Ibid.

26
Article 161 of the Constitution provides similar clemency powers to the Governors
of states. Just as the President can exercise clemency at the national level, Governors
can do so at the state level. This provision allows for localized consideration of cases
where the death penalty has been imposed. It acknowledges the significance of
regional factors and considerations in the application of the death penalty.38

While these constitutional provisions establish the overarching principles and

safeguards surrounding the death penalty, they do not prescribe specific offenses for
which the death penalty should be applied. The determination of when and how the
death penalty should be imposed is primarily governed by Bharatiya Nyaya Sanhita,
2023 (BNS) and other special laws. These statutory provisions provide the legal basis
for sentencing individuals to death, guided by the constitutional principles of due
process, fairness, and the rarest of rare doctrine as articulated by the judiciary39.40

It is crucial to recognize that the Indian Constitution is a living document, and

interpretations of its provisions evolve over time. Courts play a vital role in shaping
the constitutional jurisprudence related to the death penalty. While the fundamental
principles laid out in the Constitution remain constant, their application and
interpretation may adapt to changing societal attitudes, legal standards, and
international norms, reflecting the ongoing dialogue and scrutiny surrounding the
death penalty in India. As such, these constitutional provisions serve as the
foundational framework for addressing the complexities and challenges inherent in
the administration of the death penalty, rein forcing the imperative for justice,
fairness, and adherence to due process in every capital case.

3.2 BHARATIYA NAGARIK SURAKSHA SANHITA AND DEATH PENALTY

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) of India is a comprehensive legal

framework that governs the procedures and processes involved in the administration
of criminal justice in the country. It play important role in shaping how the death

38
ContentTeam,“ScopeofArticle161:PardoningpowerofGovernor”DeFactoLaw,2024available at:
https://www.defactolaw.in/post/scope-of-article-161-pardoning-power-of-governer (last visited
February 5, 2025).
39
“Constitutionality of Death Penalty,” available at:
https://www.indianbarassociation.org/constitutionality-of-death-penalty/(lastvisitedFebruary4,
2025).
40
Ibid.

27
penalty is implemented, from the investigation of a crime to the execution of a death
sentence. This section delves into the relevant sections of the BNSS and their
implications for the death penalty in India.

Section 193 BNSS: This section deals with the final report submitted by the police
upon the completion of their investigation into a criminal case. In cases where the
death penalty is a potential sentence, the quality and thoroughness of the police
investigation are of utmost importance. Any lapses or errors in the investigation can
have far-reaching consequences, including the potential wrongful conviction and
execution of an innocent person. Therefore, Section 193 emphasizes the need for a
comprehensive and impartial investigation.

Section 230 BNSS: This section relates to the supply of copies of documents to the
accused. In death penalty cases, the accused has a fundamental right to access all
relevant documents and evidence held by the prosecution. The defense's ability to
examine the evidence and prepare a robust case is critical in ensuring a fair trial.
Section 230 ensures that the accused has access to all documents, including witness
statements, autopsy reports, and forensic evidence, which are crucial in death penalty
cases41.

Section 346 BNSS: This section pertains to the power of the court to postpone or
adjourn proceedings. In death penalty cases, it is imperative that the court allows
sufficient time for the defense to prepare its case adequately. The consequences of a
hasty trial in a capital case are grave, as they can lead to irreversible miscarriages of
justice. Section 346 provides the court with the discretion to adjourn proceedings
when necessary to ensure a fair trial42.

Section 248 and Section 346 BNSS: These sections relate to the trial of persons
previously convicted of offenses. In cases where a person is already serving a
sentence for another offense and faces a potential death sentence, these provisions
guide the court in conducting separate trials for each offense. This ensures that the
accused's rights are protected and that the court can consider the specific
circumstances of each case.

41
SohiniChowdhury,“LiveLaw”LiveLaw,26February2022.
42
“CrPCSection309-Powertopostponeoradjournproceedings,”ALawyersReferenceavailableat:
https://devgan.in/crpc/section/309/ (last visited February 4, 2025).

28
Section 393 BNSS: This section deals with the imposition of the death penalty. In
cases where the court decides to award the death penalty, it must record the reasons
for the same. This recording of reasons is a critical aspect of transparency and
accountability in the judicial process. It ensures that the decision to impose the
ultimate punishment is not arbitrary but based on a careful consideration of the facts
and circumstances of the case.

Section 407 BNSS: This section relates to the confirmation of a death sentence by the
High Court. In cases where the trial court awards the death penalty, the sentence must
be confirmed by the High Court before it can be carried out. This provision allows for
an additional layer of scrutiny and review of the sentence to safeguard against
wrongful convictions and to ensure that the legal process has been followed correctly.

Section 458 BNSS: This section pertains to the examination of the accused in cases of
rape. In cases where the death penalty is a potential sentence, the accused's mental
state and capacity may be relevant factors. Section 458 ensures that the accused is
examinedbyamedicalprofessionaltodeterminetheirmentalfitnesstostandtrialand their
ability to understand the proceedings43.

Section 393A BNSS: This section addresses the procedure for imposing a death
sentence on a woman who is pregnant. It underscores the need for special
considerations when dealing with female offenders who are pregnant and facing the
death penalty. This provision reflects the humanitarian concerns associated with
executing pregnant women and the need for careful procedures in such cases44.

Section 454 and Section 455 BNSS: These sections relate to the confirmation of
death sentences by the High Court and the Supreme Court, respectively. In death
penalty cases, the confirmation process is a critical stage in the legal proceedings.
These sections provide the High Court and the Supreme Court with the authority to
review and confirm death sentences. This double-check mechanism is crucial in
ensuring that no miscarriages of justice occur, as the consequences of an erroneous
death sentence are irreversible.

43
kudrat, “Section 375: Analysis of Provisions Relating to Rape - Academike” Laxmikant Bhumkar,
2015availableat:https://www.lawctopus.com/academike/section-375-analysis-of-provisions-relating-
to-rape/ (last visited February 4, 2025).
44
“CrPCSection416-Postponementofcapitalsentenceonpregnantwoman,”ALawyersReference
availableat:https://devgan.in/crpc/section/416/(lastvisitedFebruary4,2025).

29
Section 458 BNSS: This section deals with the suspension of a sentence pending the
appeal. In cases where the accused has been sentenced to death by the trial court and
has filed an appeal, Section 458 allows the appellate court to suspend the execution of
the death sentence until the appeal is decided. This provision serves as a safeguard to
preventtheexecutionofanindividualwhoseconvictionmaybeoverturnedonappeal.

Section 474 BNSS: This section pertains to the power of the appropriate government
to suspend or remit sentences. In death penalty cases, where the sentence is confirmed
and an execution date is set, Section 474 provides the government with the authority
to suspend or remit the death sentence. This power is typically exercised based on
humanitarian considerations, such as the convict's behavior or mental health.

Section 477 BNSS: This section addresses the transfer of a death sentence convict
from one state to another. In cases where the death penalty is imposed, the practical
aspects of carrying out the execution may involve transferring the convict to a
different location. Section 477 ensures that the necessary legal procedures are
followed in such cases45.

Section 512 BNSS: This section is critical for ensuring the correctness of judgments
and orders. In death penalty cases, where the stakes are the highest, the accuracy and
correctness of judicial decisions are of paramount importance. Section 512 mandates
that any error, omission, or irregularity in the judgment or order should not invalidate
the proceedings or decision unless a substantial miscarriage of justice has occurred.
This provision recognizes that perfection in legal proceedings may be elusive, but the
ultimate goal is to prevent wrongful convictions and miscarriages of justice.

These sections of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) collectively

form the procedural framework that governs the imposition and administration of the
death penalty in India. They emphasize the importance of fairness, due process, and
transparency throughout the legal process, from the investigation and trial to the
confirmation of the death sentence and the execution.

45
“CrPC Section 434. Concurrent power of Central Government in case of death sentences,”
latestlaws.comavailableat:https://www.latestlaws.com/bare-acts/central-acts-rules/crpc-section-434-
concurrent-power-of-central-government-in-case-of-death-sentences (last visited February 4, 2025).

30
3.3 BHARATIYA NYAYA SANHITA AND CAPITAL PUNISHMENT

Bharatiya Nyaya Sanhita, 2023 (BNS), enacted in 1860 during British colonial rule
and subsequently amended, forms the core of the legal framework for defining crimes
and prescribing punishments in India. Within the BNS, specific sections delineate
offenses for which capital punishment may be imposed, reflecting the gravity of
certain crimes. This section examines the relevant sections of the BNS and their
implications for the application of the death penalty in India.46

Section 105 BNS: This section pertains to abetment of suicide by a minor or

aninsaneperson.Itprescribesthedeathpenaltyorlifeimprisonmentforindividualswho abet
the suicide of a minor or an insane person. The application of this section requires
evidence of intentional abetment, making it a significant aspect of the BNS concerning
the death penalty.47

Section 107 BNS: While not directly related to capital punishment, Section 107 deals
with attempts to murder. It prescribes life imprisonment or imprisonment for a term
up to ten years for individuals who attempt to commit murder. This section is relevant
in cases where a murder attempt falls short of success, resulting in the perpetrator
facing life imprisonment rather than the death penalty.48

Section 71 BNS: Introduced through the Criminal Law (Amendment) Act, 2013,
Section 71 deals with repeat offenders in rape cases. It stipulates that a person who
has previously been convicted of certain rape-related offenses and is subsequently
convicted of a similar offense shall be punished with either imprisonment for life or
death. This provision reflects the legislature's intent to address repeat offenders in
heinous crimes like rape.

Moreover, legal challenges and public debates surrounding the death penalty in India
have prompted discussions about potential reforms and the need for a nuanced
approach that considers both the rights of victims and the rights of accused
individuals.TheinteractionbetweenthesesectionsoftheBNS,judicialinterpretation,

46
“The Bharatiya Nyaya Sanhita, 2023,” PRS Legislative Research available at:
https://prsindia.org/billtrack/the-bharatiya-nyaya-sanhita-2023 (last visited February 5, 2025).
47
“AbetmentinBNS,”DrishtiJudiciaryavailableat:https://www.drishtijudiciary.com/to-the-
point/bharatiya-nyaya-sanhita-&-indian-penal-code/abetment-under-bharatiya-nyaya-sanhita-2023(last
visited February 5, 2025).
48
Ibid.

31
and evolving societal attitudes continues to shape the application of capital
punishment in India, reflecting a complex and evolving legal landscape.

3.4 APPELLATE JURISDICTION IN DEATH PENALTY CASES

The appellate jurisdiction in death penalty cases in India is a critical aspect of the
legal process, ensuring that the imposition of the ultimate punishment is subject to
thorough review and scrutiny. This section examines the relevant provisions and legal
mechanisms governing the appellate process in death penalty cases, both at the state
and national levels.49

High Court's Appellate Jurisdiction: In India, each state has a High Court with the
authority to hear appeals from lower courts, including sessions courts that handle
criminal cases. In death penalty cases, the High Court serves as the first appellate
authority, providing a crucial stage for reviewing the trial court's judgment. Appeals
from sessions courts are typically filed under Section 415 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS), which grants convicted individuals the right to
appeal their sentences. Under this section, the High Court can hear appeals not only
on questions of fact but also on questions of law, ensuring a comprehensive review of
the entire case.50

Moreover, the Criminal Law (Amendment) Act, 2013 introduced amendments to

the BNSS, allowing for the fast-tracking of appeals in death penalty cases. This
amendment mandates that the High Court should hear the appeal in death penalty
cases within six months from the date of receiving the appeal. This time-bound
approach aims to expedite the appellate process while upholding the principles of
fairness and justice.

Supreme Court's Appellate Jurisdiction: If a death sentence is confirmed or

awarded by a High Court, further recourse is available to the convicted individual
through a Special Leave Petition (SLP) filed with the Supreme Court of India. The
Supreme Court, exercising its appellate jurisdiction, has the authority to review and
hear appeals from High Court decisions, including those involving the death penalty.

49
CarolynHoyleandSaulLehrfreund,“ContradictionsinJudicialSupportforCapitalPunishmentin India and
Bangladesh: Utilitarian Rationales,” 15 Asian Journal of Criminology 141–61 (2019).
50
Admin,“PowersAndFunctionsOfTheHighCourtInIndia-IndianPolityNotes”BYJU’S,23July 2018.

32
The appellate jurisdiction in death penalty cases is a critical safeguard in the Indian
legal system. It allows for a comprehensive review of the entire case, including legal
and factual aspects, while also considering humanitarian factors. The judiciary's role
in ensuring fairness, due process, and adherence to constitutional principles remains
central to the administration of justice in death penalty cases, reflecting the
complexity and gravity of capital punishment in India.

3.5 SPECIAL LAWS WITH DEATH PENALTY PROVISIONS

In addition to Bharatiya Nyaya Sanhita, 2023 (BNS), which contains provisions for
the death penalty in cases of murder and certain other offenses, several special laws in
India have specific provisions that allow for the imposition of the death penalty. This
special law screen acted to address particular types of crimes and situations that are
considered he in or exceptional in nature. This section explores some of the key
special laws with death penalty provisions in India51.

1. The Unlawful Activities (Prevention) Act, 1967 (UAPA): The UAPA is aimed at
preventing unlawful activities and associations that pose a threat to the integrity and
sovereignty of India. Under Section 16 of the UAPA, a person who commits a
terrorist act that results in death may be punished with death or imprisonment for life.
The Act defines terrorist acts and provides a legal basis for the imposition of the death
penalty in cases of terrorism-related offenses.

These special laws reflect the legislative intent to address specific types of crimes and
situations that are considered grave and exceptional. The inclusion of death penalty
provisions in these laws underscores the severity of the offenses they seek to combat.
However, it is crucial to emphasize that the imposition of the death penalty under
these laws, like in the BNS, is subject to stringent legal procedures, due process, and
judicial review to ensure that the ultimate punishment is applied judiciously and in
accordance with constitutional principles and international human rights standards.

3.6 ROLEOF THE JUDICIARY IN AWARDING DEATH PENALTY

The judiciary in India plays a pivotal role in awarding the death penalty. It is tasked
with ensuring that the imposition of this ultimate punishment adheres to principles of

51
legal Service India, “Death Sentence in India - IPC” Death penalty available at:
https://www.legalserviceindia.com/articles/dsen.htm(lastvisitedFebruary4,2025).

33
justice, fairness, and legality. This section examines the role of the judiciary in
awarding death penalty sentences, including the legal provisions and precedents that
guide its decisions.

1. Legal Provisions Governing the Judiciary's Role:

Section 393 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This section
deals with the imposition of the death penalty by the court. It states that when the
court imposes the death penalty, the reasons for such a sentence must be recorded.
This provision underscores the importance of transparency and accountability in the
judicial process, requiring the court to articulate the grounds and justifications for
awarding the ultimate punishment52.

The "Rarest of Rare" Doctrine: The judiciary in India has developed the "rarest of
rare" doctrine through various judicial precedents. This doctrine is not codified but is
a judicially recognized principle that guides the courts in determining when the death
penalty should be imposed. It emphasizes that the death penalty should be reserved
for the "rarest of rare" cases, where the crime's brutality, depravity, and exceptional
circumstances justify such a punishment. The doctrine provides the judiciary with
discretion in assessing the gravity of each case and considering mitigating and
aggravating factors.

2. The Judicial Process for Awarding the Death Penalty:

The judiciary's role in awarding the death penalty begins at the trial stage and may
involve multiple levels of review, including appellate and constitutional review.

Appellate Review: If the trial court imposes the death penalty, the case can be
appealed to a higher court, typically the High Court. The appellate court conducts a
thorough review of the entire case, including legal and factual aspects. It assesses the
correctness of the trial court's judgment and examines whether the death penalty was
imposed in accordance with established legal principles, including the rarest of rare
doctrine. The appellate court may affirm the sentence, commute it to life
imprisonment, or order a reexamination of the case.

52
Abanti Bose, “Analysing the judgment of Bachan Singh v. State of Punjab (1980)” iPleaders, 2022
availableat:https://blog.ipleaders.in/analysing-the-judgment-of-bachan-singh-v-state-of-punjab-1980/
(last visited February 4, 2025).

34
3. Judicial Discretion and the "Rarest of Rare" Doctrine:

In applying this doctrine, the judiciary conducts a nuanced analysis of each case to
determine whether it qualifies as "rarest of rare." Courts consider factors such as:

 The brutality and depravity of the crime.

 The presence of aggravating circumstances, such as premeditation or multiple

victims.

 The absence of any mitigating factors that could justify a lesser sentence.

 The impact of the crime on the victim and society.

 The offender's criminal history and propensity for rehabilitation.

This discretionary approach allows for a contextual and individualized assessment of

each case, recognizing that not all murders warrant the same punishment. It reflects
the judiciary's commitment to ensuring that the death penalty is applied judiciously
and in accordance with principles of justice and fairness.

4. Constitutional Challenges and Safeguards:

The judiciary also plays a crucial role in addressing constitutional challenges to the
death penalty. Convicted individuals may raise constitutional arguments, such as
violations of the right to life and personal liberty (Article 21) or claims of cruel and
unusual punishment. The judiciary assesses these challenges in light of constitutional
principles and international human rights standards53.

The role of the judiciary in awarding the death penalty in India is characterized by a
delicate balance between the need for justice and the imperative to protect individual
rights and dignity. It is a role that requires rigorous legal analysis, careful
consideration of the facts, and a commitment to upholding the rule of law. The
judiciary's decisions in death penalty cases reflect the complexities and moral
dilemmas surrounding capital punishment, as well as the evolving legal standards and
societal attitudes in India.

53
“Constitutionality of Death Penalty,” available at:
https://www.indianbarassociation.org/constitutionality-of-death-penalty/(lastvisitedFebruary4,
2025).

35
3.7 INTERNATIONAL LAW AND DEATH PENALTY IN INDIA

The death penalty is a topic of significant international concern, and India's approach
to this punishment has implications under international law. This section explores the
role of international law in the context to the death penalty in India, including relevant
international conventions, treaties, and obligations.

2. International Obligations and Interpretations:

Under international law, states are expected to adhere to their treaty obligations.
India's ratification of ICCPR and CAT imposes certain responsibilities concerning the
death penalty:

 Limitations on the Use of the Death Penalty: India is obligated to ensure

that the death penalty is not imposed arbitrarily or in violation of international
standards. This includes adherence to principles of due process, fair trial, and
the rarest of rare doctrine.54

 Safeguards to Prevent Torture: India is obliged to prevent torture or cruel,

inhuman, or degrading treatment, which has implications for the methods of
execution and conditions on death row.55

 Non-discrimination: International law requires that the death penalty should

not be applied in a discriminatory manner, ensuring that it is not used
disproportionately against specific groups.

 Right to Seek Clemency: International norms often support the provision of

clemency or pardon mechanisms, as reflected in the Indian Constitution's
provisions on clemency powers for the President and Governors.

 Progress toward Abolition: While the ICCPR allows states to retain the
death penalty for the most serious crimes, it encourages progress toward its
abolition.

54
“DeathPenalty:ContemporaryIssues,”availableat:https://www.indianbarassociation.org/death-
penalty-contemporary-issues/ (last visited February 5, 2025).
55
“ConventionagainstTortureandOtherCruel,InhumanorDegradingTreatmentorPunishment,”
OHCHR available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-
against-torture-and-other-cruel-inhuman-or-degrading (last visited February 5, 2025).

36
3. India's Interpretation and Implementation:

India's approach to the death penalty reflects its interpretation of international

obligations within the context of its legal system. India maintains that the death
penalty is applied in accordance with due process, following the rarest of rare
doctrine. It asserts that the death penalty is reserved for the most heinous crimes and
is not used arbitrarily56.

The Supreme Court of India has referred to international standards in its judgments,
emphasizing that the death penalty should be imposed sparingly and in exceptional
cases. It has also considered international norms while assessing the constitutionality
of certain methods of execution.

4. Debates and Challenges:

The death penalty remains a contentious issue in India, with ongoing debates about its
morality, efficacy as a deterrent, and conformity to international human rights
standards. Human rights organizations and activists have raised concerns about the
application of the death penalty, including the risk of wrongful convictions, lengthy
delays in the judicial process, and the conditions on death row.

India's approach to the death penalty is shaped by its international legal obligations,
including those under ICCPR and CAT. While India retains the death penalty for
certain offenses, it is subject to significant legal and procedural safeguards to ensure
its application aligns with international human rights norms. The ongoing debate and
scrutiny of the death penalty in India reflect the complexities of reconciling domestic
law, international obligations, and evolving societal attitudes. International law
continues to play a role in shaping India's policies and practices concerning the death
penalty, as well as its engagement in the global dialogue on human rights and capital
punishment.

3.8 DEBATES ON ABOLISHING THE DEATH PENALTY

The death penalty has been a subject of intense debate and discussion in India, with
strong arguments both in favor of its retention and for its abolition. This section

56
Ayush Verma, “Analysis of the ‘rarest of rare doctrine’ in awarding death penalty ” iPleaders, 2020
availableat:https://blog.ipleaders.in/analysis-rarest-rare-doctrine-awarding-death-penalty/(lastvisited
February 4, 2025).

37
Explores the key points in these debates, highlighting the perspectives of various
stakeholders, including the government, judiciary, human rights activists, and civil
society57.

1. Moral and Ethical Considerations:

One of the central arguments in favor of abolishing the death penalty is grounded in
moralandethicalprinciples.Abolitionistsarguethatthestateshouldnotengageinthe taking
of human life, regardless of the crime committed. They emphasize the intrinsic value
of human life and contend that executing individuals contradicts the fundamental right
to life and personal liberty enshrined in Article 21 of the Indian Constitution. This
perspective asserts that the state should set an example by upholding the sanctity of
life and refrain from endorsing violence as a means of justice.

2. Risk of Wrongful Convictions:

Concerns about the possibility of wrongful convictions and the irreversibility of the
death penalty are pivotal in the abolitionist stance. Human rights organizations and
legal experts argue that the criminal justice system is not infallible, and there is a real
risk of innocent individuals being sentenced to death. Lengthy delays in trials and
appeals further exacerbate this risk. The exoneration of individuals who spent year
son death row in India and other countries has underscored the fallibility of the justice
system. Abolitionists contend that the state should not run the risk of executing an
innocent person.

4. Arbitrary and Discriminatory Application:

The arbitrary and discriminatory application of the death penalty has been a
significant concern. Studies have shown that the death penalty in India has been
disproportionately imposed on marginalized and vulnerable communities, such as
Dalitsandreligiousminorities.Abolitionistsarguethatthisdiscriminationviolatesthe
principlesofequalityandnon-discriminationenshrinedintheIndianConstitution.

57
“Death Penalty Abolition Debate - Civilsdaily,” CivilsDaily available at:
https://www.civilsdaily.com/story/the-case-for-abolition-of-death-penalty/(lastvisitedFebruary4,
2025).

38
The application of the death penalty is often influenced by socio-economic factors,
inadequate legal representation, and biases within the criminal justice system.

5. Lengthy Delays and Mental Suffering:

India's legal system is known for its lengthy delays in criminal trials and appeals,
resulting in condemned prisoners spending years, if not decades, on death row. This
extended period of uncertainty and confinement under the shadow of execution has
been criticized for inflicting severe mental suffering and trauma on individuals.
Abolitionists argue that such suffering amounts to cruel, inhuman, and degrading
treatment, in violation of international human rights standards.58

6. Clemency and Commutation:

Proponents of abolition highlight the significance of clemency and commutation

mechanisms in the Indian legal system. They argue that these mechanisms provide
avenues for reviewing and reconsidering death sentences, taking into account
humanitarian factors, doubts about guilt, and evidence of rehabilitation. Clemency
powers vested in the President and Governors allow for the exercise of mercy and
compassion in appropriate cases.

9. Constitutional Validity:

The constitutionality of the death penalty has been upheld by the Indian Supreme
Court in numerous judgments. The Court has held that the death penalty is not
inherently unconstitutional and can be imposed in accordance with established legal
principles and safeguards. Abolitionists continue to challenge these decisions, arguing
that evolving standards of decency and international norms necessitate a
reconsideration of the death penalty's constitutionality.

58
“Project39A—DeathPenaltyIndiaReport,”Project39Aavailableat:
https://www.project39a.com/dpir(lastvisitedFebruary5,2025).

39
Conclusion

The debate surrounding the death penalty in India continues to raise complex
questions about justice, deterrence, and human rights. Despite its existence within the
Indian legal framework, there is no clear empirical evidence that capital punishment
acts as a stronger deterrent to crime than life imprisonment. The assumption that fear
of death prevents individuals from committing serious offenses has been challenged
by numerous academic studies and global criminological research. In fact, crimes like
murder and terrorism are often driven by factors such as emotional distress, socio-
political grievances, or psychological abnormalities—situations where the rational
calculation of consequences (like execution) plays a limited role.

India's approach to capital punishment is governed by the principle of awarding the

death sentence only in the "rarest of rare" cases, a doctrine established in the
landmark case Bachan Singh v. State of Punjab (1980). However, this doctrine has
resulted in inconsistencies in sentencing and subjectivity in judicial interpretation.
Additionally, many individuals sentenced to death in India come from economically
disadvantaged backgrounds and lack adequate legal representation, raising concerns
about the fairness and equity of capital trials.

Furthermore, the lengthy delays in carrying out executions—caused by prolonged

appeals, mercy petitions, and procedural hurdles—diminish any immediate deterrent
effect the death penalty might theoretically possess. These delays also subject
prisoners to extended psychological trauma, known as the "death row phenomenon,"
which has been criticized by human rights bodies for its cruel and inhuman impact.

The Law Commission of India, in its 262nd Report (2015), after comprehensive
study and consultation, recommended the abolition of the death penalty for all
crimes except terrorism and war-related offenses, emphasizing that there is no
proven deterrent effect and that the risk of wrongful conviction is too great to ignore.

40
In conclusion, while the death penalty continues to exist in India's statute books and is
constitutionally valid, its practical and moral legitimacy as a deterrent remains
unproven. It is clear that a more reliable strategy for crime prevention lies not in the
harshness of punishment, but in the certainty, swiftness, and fairness of the justice
system. India's focus should shift toward systemic reforms that uphold human dignity
while ensuring justice and accountability.

41
 CHAPTER-4

JUDICIAL APPROACH

4.1 CASE LAWS

1. Bachan Singh v. State of Punjab59:

In this landmark case, the Supreme Court of India considered the constitutionality of
the death penalty under Section 101 of Bharatiya Nyaya Sanhita, 2023 (BNS). The
court introduced the "rarest of rare" doctrine, which laid down guidelines for
sentencing in death penalty cases. It established that the death penalty should only be
imposed in the "rarest of rare" cases, where the alternative of life imprisonment was
unquestionably foreclosed.

2. Rajendra Prasad v.StateofU.P.60:

This case involved a challenge to the constitutional validity of the death penalty. The
Supreme Court held that the death penalty, as provided under the BNS, did not violate
the right to life and personal liberty guaranteed by Article 21 of the Indian
Constitution. However, it acknowledged that the death penalty should be imposed
sparingly and only in exceptional cases.

3. Jagmohan Singh v.StateofU.P.61:

In this early case, the Supreme Court addressed issues related to the procedure for
imposing the death penalty. The court emphasized the importance of complying with
procedural safeguards to ensure a fair trial in capital punishment cases. It established
that the court should consider mitigating circumstances before sentencing.

4. T.V.Vatheeswaran v. StateofTamilNadu62:

This case dealt with the constitutionality of Section 393(3) of the BNSS, which
required the death sentence to be confirmed by the High Court. The Supreme Court

59
BachanSinghv.StateofPunjab,(1980)2SCC 684
60
RajendraPrasadv.StateofU.P.,(1979)3SCC 646
61
JagmohanSinghv.StateofU.P.,(1973)1SCC20
62
T.V.Vatheeswaranv.StateofTamilNadu,(1983)2SCC 68

42
Upheld the provision, stating that it was necessary to prevent arbitrary or capricious
sentencing. It emphasized that the confirmation process all owed for a thorough
review of the trial court's decision.

5. Machhi Singh v. State of Punjab63:

In this case, the Supreme Court further elaborated on the "rarest of rare" doctrine
introduced in Bachan Singh. It provided guidance on how to determine whether a case
fell into the category of the "rarest of rare" and justified the imposition of the death
penalty. The court considered factors such as the nature of the crime and the character
of the offender.

6. Mithu v. State of Punjab64:

Mithu's case challenged the constitutionality of Section 303 of the BNS, which
mandated the death penalty for offenders serving life imprisonment who committed
further murders while in prison. The Supreme Court held that this provision was
unconstitutional as it violated Articles 14 and 21 of the Constitution. This judgment
led to the abolition of Section 303.

7. Triveniben v. State of Gujarat65:

In this case, the Supreme Court examined the issue of delay in executing the death
penalty. The court ruled that inordinate and unexplained delays in carrying out the
death sentence could amount to cruel and inhuman treatment, violating Article 21 of
the Constitution. It established that the President should consider the delay factor
when deciding on clemency petitions.

8. State of Madhya Pradesh v.Ramesh66:

This case involved a challenge to the death sentence imposed on the appellant,
Ramesh. The Supreme Court upheld the death penalty, emphasizing the brutality of

63
MachhiSinghv.StateofPunjab,(1983)3SCC470
64
Mithuv.StateofPunjab,(1983)2SCC277
65
Trivenibenv.StateofGujarat,(1989)1SCC678
66
StateofMadhyaPradeshv.Ramesh,(2011)6SCC 770

43
The crime and the fact that it fell within the category of the "rarest of rare" cases. The
judgment reiterated the importance of applying the "rarest of rare" doctrine in capital
punishment cases.

9. Shankar Kisanrao Khade v. State of Maharashtra67:

In this case, the Supreme Court considered an appeal against the death sentence. The
Court reviewed the evidence and the circumstances of the case and upheld the death
penalty. It emphasized that the gravity of the crime and the absence of any mitigating
circumstances justified the imposition of the death penalty.

10. Mohd.Arif@Ashfaq v.The Registrar, Supreme Court of India68:

This case dealt with the review of the judgment in Mohd. Arif's earlier case, where he
was sentenced to death. The Supreme Court reviewed the evidence and affirmed the
death penalty, emphasizing the brutality of the crime and the need for deterrence in
such cases.

11. Kehar Singh v. Union of India69:

Kehar Singh's case was related to his involvement in the assassination of Prime
Minister Indira Gandhi. The Supreme Court upheld his death sentence, holding that
his role in the conspiracy to assassinate a Prime Minister was a crime of exceptional
gravity, justifying the death penalty.

12. Triveniben v. State of Gujarat70:

In this case, the Supreme Court considered the issue of delay in the execution of death
sentences. The Court ruled that undue and unexplained delay in carrying out the death
penalty could amount to cruel and inhuman treatment, violating Article 21 of the
Constitution. It emphasized that the President should consider the delay factor when
deciding on clemency petitions.

13. State of Bihar v. Pashupati Singh71:

67
ShankarKisanraoKhadev.StateofMaharashtra,(2013)5SCC546
68
Mohd.Arif@Ashfaqv.TheRegistrar,SupremeCourtofIndia,(2014)9SCC 737
69
KeharSinghv.UnionofIndia,(1989)1SCC 204
70
Trivenibenv.StateofGujarat,(1989)1SCC678
71
StateofBiharv.PashupatiSingh,(2009)6SCC1

44
This case involved a review of the death sentence imposed on Pashupati Singh. The
Supreme Court up held the death penalty, taking into account the brutality of the
crime and its impact on society. The case reaffirmed the Court's commitment to the
"rarest of rare" doctrine.

14. Devender Pal Singh Bhullar v.State (NCTof Delhi)72:

This case garnered significant attention due to concerns over the mental health of the
appellant, Devender Pal Singh Bhullar. The Supreme Court commuted his death
sentence to life imprisonment, considering the delay in deciding his mercy petition
and his mental condition. This case raised important questions about mental health
and the death penalty.

15. Santosh Kumar Satish bhushan Bariyar v.State of Maharashtra73:

In this case, the Supreme Court reviewed the death sentence imposed on Santosh
Kumar Bariyar. The Court upheld the death penalty, emphasizing the brutality of the
crime and its impact on the victims. The case reiterated the application of the "rarest
of rare" doctrine.
16. Kishori Lal v. State of M.P.74:

This case involved the review of a death sentence. The Supreme Court upheld the
death penalty, considering the gravity of the crime and the absence of any mitigating
circumstances. The case reinforced the principle that the death penalty should be
imposed only in the "rarest of rare" cases.

17. Sangeet v.Stateof Haryana75:

This case dealt with an appeal against the death sentence. The Supreme Court
reviewed the evidence and the circumstances of the case and upheld the death penalty.
The Court emphasized the gravity of the crime and the need for deterrence.

72
DevenderPalSinghBhullarv.State(NCTofDelhi),(2013)1SCC177
73
SantoshKumarSatishbhushanBariyarv.StateofMaharashtra,(2009)6SCC498
74
KishoriLalv.StateofM.P.,(2007)10SCC 797
75
Sangeetv.StateofHaryana,(2013)2SCC 452

45
18. Rajesh Kumar v. State (NCT of Delhi)76:

In this case, the Supreme Court reviewed a death sentence and commuted it to life
imprisonment. The Court considered the delay in deciding the mercy petition and the
mental condition of the appellant, leading to the commutation of the sentence.

76
RajeshKumarv.State(NCTofDelhi),(2011)13SCC706

46
 CHAPTER-5

OTHERASPECTSOFDEATHPENALTYININDIA

5.1 ISSUES OF PROCEDURAL FAIRNESS AND DUE PROCESS

The death penalty in India has faced substantial criticisms, with many experts and
human rights advocates highlighting concerns related to procedural fairness and due
process. This section examines the various criticisms in this regard, including relevant
sections and laws77.

1. Procedural Concerns:

Procedural fairness is a cornerstone of the criminal justice system, ensuring that

individuals accused of crimes are accorded their rights throughout the legal process.
Criticisms related to procedural fairness in death penalty cases in India include:

 Inadequate Legal Representation: A significant proportion of death row

inmates in India lack access to competent legal representation. In many cases,
indigent defendants are provided with inexperienced or overburdened lawyers,
undermining their ability to mount a robust defense.78

 Inefficacy of Legal Aid: While legal aid is available in India, its

implementation is often criticized as inefficient and underfunded. Access to
quality legal aid is crucial in ensuring that the accused receive a fair trial. 79

 Limited Access to Evidence: Some defendants face challenges in obtaining

and presenting crucial evidence in their defense. This may include difficulties
in securing witnesses or forensic evidence.

77
monika,“CriticalAnalysisOfDeathPenaltyInIndia”iPleaders,2019availableat:
https://blog.ipleaders.in/death-penalty/ (last visited February 4, 2025).
78
Mhairi Deighan, “Justice in Judgment: Legal Factors in Death Penalty Sentencing for USA and
India”OxJournalavailableat:https://www.oxjournal.org/justice-in-judgment-legal-factors-in-death-
penalty-sentencing-for-usa-india/ (last visited February 5, 2025).
79
Ibid.

47
2. Delayed Justice:

Protracted legal processes and lengthy delays between arrest, trial, and sentencing are
prominent concerns in death penalty cases. Delays can be attributed to a variety of
factors, including case backlogs, appeals, and administrative inefficiencies.

 Risk of Torture and Ill-Treatment: Prolonged periods spent in pre-trial

detention or on death row can expose individuals to the risk of torture and ill-
treatment, which is prohibited under international human rights law.80

 Mental Agony: The uncertainty and prolonged wait on death row can inflict
severe mental and emotional suffering on the accused, violating their right to
dignity and humane treatment.81

3. Arbitrary Sentencing:

Critics argue that the imposition of the death penalty in India is often arbitrary and
inconsistent. Concerns related to arbitrary sentencing include:

 "Rarest of the Rare" Doctrine: The "rarest of the rare" doctrine, established
by the Supreme Court of India, leaves significant room for judicial discretion.
Critics argue that this discretion can lead to inconsistencies in sentencing and
create uncertainty.

 Regional Disparities: There are notable regional disparities in the application

of the death penalty in India. Some states are more likely to impose death
sentences than others, raising questions about the consistency of justice82.

4. Wrongful Convictions:

The risk of wrongful convictions is a critical concern in death penalty cases. Wrongful
convictions can result from factors such as flawed investigations, false testimonies,
and inadequate legal representation.

80
“Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,”
OHCHR available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-
against-torture-and-other-cruel-inhuman-or-degrading (last visited February 5, 2025).
81
Ibid.
82
“Capital Punishment in India: Critical Analysis,” available at:
https://www.legalserviceindia.com/legal/article-8656-capital-punishment-in-india-critical-
analysis.html(last visited February 4, 2025).

48
  Lack of Forensic Expertise: India faces challenges in maintaining high
standards of forensic expertise, leading to potential errors in evidence
collection and analysis.

 Pressure on Witnesses: Witnesses may be subject to intimidation or coercion,

leading to false or unreliable testimonies.

5. Mental Health Considerations:

Critics argue that the Indian legal system does not adequately consider the mental
health of accused individuals in death penalty cases. Mental illness or diminished
capacity can impact an individual's ability to stand trial and make informed decisions.

 Mental Health Assessments: There is a lack of routine mental health

assessments for accused individuals, potentially resulting in the failure to
identify mental health issues.

 Execution of Mentally Ill Inmates: In some cases, individuals with mental

illnesses have been executed, raising questions about the state's compliance
with international human rights standards83.

6. Clemency Process:

Concerns have been raised about the clemency process in India, particularly the
potential for political considerations to influence decisions on commutation or pardon.

 Political Influence: Critics argue that clemency decisions can be subject to

political pressures, leading to inconsistent outcomes.

 Lack of Transparency: The lack of transparency in the clemency process has

also been criticized, with calls for more clearly defined criteria and principles.

7. International Human Rights Standards:

Critics point out that the Indian legal system should align itself more closely with
international human rights standards, especially with regard to the death penalty's
application and safeguards.

83
Future Learn, “Updates, Insights, and News from Future Learn” Future Learn, 2013 available at:
https://www.futurelearn.com/info/courses/forensic-mental-health-and-criminal-justice-a-comparative-
study-of-criminal-law/0/steps/285725 (last visited February 4, 2025).

49
  International Abolitionist Trends: The global trend toward the abolition of
the death penalty is cited as evidence that India should reconsider its stance on
capital punishment.

Criticisms related to procedural fairness and due process in death penalty cases in
India underscore the importance of upholding fundamental principles of justice and
human rights. While the legal system has made efforts to address some of these
concerns, challenges remain, necessitating ongoing reforms and public discourse on
the subject. Ensuring that individuals facing the death penalty receive a fair and just
legal process is imperative for upholding the principles of justice and human dignity.

5.2 IN ADEQUATE LEGAL REPRESENTATION FOR ACCUSED PERSONS

In the realm of death penalty cases in India, the issue of inadequate legal
representation for accused individuals has been a recurring and deeply concerning
challenge. This section examines the various facets of this problem, including relevant
sections and laws84.

1. Legal Aid and the Right to Counsel:

Legal representation is fundamental to the right to a fair trial, a principle enshrined in

Article 21of the Indian Constitution. Accused individuals, particularly those who lack
the means to hire private counsel, are entitled to legal aid and the appointment of
defense lawyers.

 Section 341 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This

section empowers the court to appoint a pleader for an accused if the court isof
the opinion that the accused does not have the means to engage a pleader.

 Section 341A of BNSS: This section states that if an accused in a session’s

trial is not represented by a lawyer, the court must assign a lawyer to defend
the accused.

84
Saurav Datta, “SC Recalls Death Sentences Owing to Lack of Effective Legal Representation”
NewsClickavailableat:https://www.newsclick.in/sc-recalls-death-sentences-owing-lack-effective-
legal-representation (last visited February 4, 2025).

50
2. Challenges in Implementing Legal Aid:

Despite the legal provisions, there are several challenges in the effective
implementation of legal aid in death penalty cases:

 Limited Resources: Overburdened and underfunded legal aid systems in

India struggle to provide competent representation to all indigent accused
persons.

 Quality of Legal Aid Lawyers: In many cases, the lawyers appointed under
legal aid schemes lack the necessary expertise and resources to effectively
defend individuals facing the death penalty.

3. Delayed Appointments:

Delays in appointing defense lawyers can severely impact the accused's ability to
mount a proper defense:

 Section 250 of BNSS: This section stipulates that in sessions trials, the judge
should frame charges against the accused only after hearing both the
prosecution and the defense. Delays in appointing defense lawyers’ can
prolong this process85.

4. Under privileged and Marginalized Accused:

Individuals from underprivileged and marginalized backgrounds are particularly

vulnerable to inadequate legal representation:

 Section 12 of the Legal Services Authorities Act, 1987: This section

mandates that legal services authorities give special attention to the needs of
marginalized and vulnerable groups in providing legal aid.

5. Impaction Fair Trials:

Inadequate legal representation can severely compromise the fairness of trials in death
penalty cases:

85
Sneha Mahawar, “Section 227 of CrPC” iPleaders, 2022 available at:
https://blog.ipleaders.in/section-227-of-crpc/(lastvisitedFebruary4,2025).

51
  Article 39A of the Indian Constitution: This article directs the state to
ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities.

 Section 341(1) of BNSS: This section emphasizes the importance of ensuring

a fair trial for the accused, including the right to be defended by a legal
practitioner of their choice.

6. Risk of Wrongful Convictions:

Inadequate legal representation increases the risk of wrongful convictions:

 Section 415 of BNSS: This section provides for appeals to the High Court
against convictions, and competent legal representation is crucial during the
appeal process to identify errors in the lower court's judgment.

7. The Role of Legal Aid Authorities:

Legal aid authorities play a pivotal role in addressing the issue of inadequate
representation. They are tasked with ensuring that accused individuals receive quality
legal assistance:

 National Legal Services Authority (NALSA): NALSA is responsible for

implementing legal aid programs at the national level and plays a critical role
in coordinating efforts to provide competent legal representation86.

8. Need for Reforms:

Addressing the problem of inadequate legal representation in death penalty cases

requires a multi-faceted approach, including:

 Increased Funding: Adequate funding and resources for legal aid

organizations are essential to improve the quality of legal representation.

 Training and Capacity Building: Training and capacity-building programs

for legal aid lawyers can enhance their skills and knowledge in handling
complex death penalty cases.

86
legal Service India, “Working of Statute of Legal Aid in India” available at:
https://www.legalserviceindia.com/article/l55-Working-of-Statute-of-Legal-Aid-in-India.html(last
visited February 4, 2025).

52
  Timely Appointments: Ensuring that defense lawyers are appointed promptly
to represent accused persons from the outset of their legal proceedings is
crucial.

Inadequate legal representation for accused individuals in death penalty cases is a

significant challenge that affects the fairness of trials and increases the risk of
wrongful convictions. Addressing this issue requires concerted efforts to strengthen
legal aid systems, provide training and resources to defense lawyers, and ensure
timely appointments. Upholding the right to a fair trial is imperative in preserving the
integrity of India's criminal justice system and the principles of justice and human
rights.

5.3 RISKS OF WRONGFUL CONVICTION AND EXECUTION

One of the gravest concerns associated with the death penalty in India is the risk of
wrongful conviction and subsequent execution. Wrongful convictions undermine the
very foundation of justice and human rights. This section examines the risks of
wrongful conviction and execution in death penalty cases, along with relevant
sections and laws87.

2. Factors Leading to Wrongful Convictions:

Several factors contribute to the risk of wrongful convictions and executions in death
penalty cases:

 Inadequate Legal Representation: As discussed in the previous section,

inadequate legal representation can result in incomplete or ineffective defense
strategies, leading to wrongful convictions.

 False Testimonies: Witnesses may provide false or unreliable testimonies due

to various reasons, including coercion, fear, or incentives.

 Flawed Investigations: Errors or misconduct during the investigative phase

can lead to wrongful convictions, including mishandling of evidence or
reliance on forced confessions.

87
“Innocence,” Death Penalty Information Center, 2017 available at:
https://deathpenaltyinfo.org/policy-issues/innocence (lastvisitedFebruary4,2025).

53
3. Lack of Forensic Expertise:

The absence of robust forensic expertise can lead to wrongful convictions and
erroneous evidence:

 Section 293 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This

section allows for the examination of witnesses by experts in cases involving
scientific or technical issues88.

4. Post-Conviction Appeals and Review:

Post-conviction appeals and review mechanisms are vital safeguards against wrongful
convictions:

 Section 415 of BNSS: This section provides for appeals to the High Court
against convictions.

 Section 435 of BNSS: This section allows the State Government to refer a
case to the High Court for review in cases where the accused has been
sentenced to death.

5. Importance of DNA Testing:

DNA testing can play a crucial role in establishing the innocence of an accused person
and preventing wrongful executions:

 Section52ofBNSS: This section empowers the court to order a scientific

examination of evidence, including DNA testing.

6. Compensation for Wrongful Convictions:

In cases where wrongful convictions are discovered, compensation for the wrongly
convicted individuals is crucial:

 Section 396 of BNSS: This section provides for the establishment of a Victim
Compensation Fund to compensate victims of crime, including those
wrongfully convicted89.

88
“CrPCSection293-ReportsofcertainGovernmentscientificexperts,”ALawyersReference
availableat:https://devgan.in/crpc/section/293/(lastvisitedFebruary4,2025).

54
7. International Human Rights Standards:

 Article 14 of the ICCPR: This article enshrines the right to affair trial and the
presumption of innocence.

8. Innocence Projects:

Advocacy groups and legal organizations in India have established "innocence

projects" aimed at identifying and overturning wrongful convictions.

The risks of wrongful conviction and execution in death penalty cases pose a
significant challenge to the justice system and human rights principles. Safeguards,
such as robust legal representation, post-conviction appeals, and access to DNA
testing, are essential to minimize these risks. Upholding the presumption of innocence
and adhering to international human rights standards is crucial to ensuring justice and
preventing wrongful executions in India.

5.4 DISPROPORTIONATE IMPACTON MARGINALIZED GROUPS

The application of the death penalty in India has been criticized for its
disproportionate impact on marginalized groups, raising serious concerns about
fairness, equity, and human rights. This section explores the various dimensions of
this issue, along with relevant sections and laws.

1. Vulnerability of Marginalized Groups:

Marginalized groups in India, including Dalits, Adivasis, religious minorities, and

economically disadvantaged individuals, often face systemic discrimination and
disadvantages within the criminal justice system.

 Article 15 of the Indian Constitution: This article prohibits discrimination

on grounds of religion, race, caste, sex, or place of birth.

89
“Victim Compensation Scheme: An Aspect of Modern Criminology,” available at:
https://www.legalserviceindia.com/legal/article-332-victim-compensation-scheme-an-aspect-of-
modern-criminology.html (last visited February 4, 2025).

55
  Article 46 of the Indian Constitution: This article promotes the educational
and economic interests of Scheduled Castes, Scheduled Tribes, and other
marginalized groups90.

2. Disproportionate Representation on Death Row:

Studies and reports have highlighted the over representation of marginalized groups
among death row inmates:

 Socio-Economic Disparities: Economically disadvantaged individuals may

lack access to quality legal representation, increasing their vulnerability to
harsh sentences, including the death penalty.

 Caste and Religion: Reports suggest that individuals from lower castes and
religious minorities are disproportionately represented among death row
inmates.

3. Discrimination in Law Enforcement:

Discriminatory practices during law enforcement can contribute to the

disproportionate impact on marginalized groups:

 Selective Policing: Some communities may be subject to selective policing

and surveillance, leading to a higher likelihood of their members becoming
suspects in criminal cases.

 Profiling: Racial and ethnic pro filing by law enforcement agencies can lead
to wrongful arrests and convictions.

4. Cultural and Social Biases:

Cultural and social biases can influence judicial decisions and sentencing:

 Perceived Threat: Marginalized groups may be perceived as a greater threat

or more prone to criminal behavior, affecting the way they are treated within
the criminal justice system.

90
NehaluddinAhmad,“ProtectingtheRightsofMinoritiesunderInternationalLawandImplications of
COVID-19: An Overview of the Indian Context,” 10 Laws (2021).

56
  Stereotypes: Stereotypes and prejudices held by judges, jurors, and other
stakeholders may impact sentencing outcomes91.

5. Access to Legal Representation:

Marginalized groups often face barrier sine accessing competent legal representation:

 Lack of Legal Awareness: Many individuals from marginalized backgrounds

may be unaware of their legal rights and entitlements, including the right to
legal representation.

 Economic Barriers: Economic disparities can prevent individuals from

marginalized groups from hiring quality legal counsel, leaving them reliant on
overburdened legal aid systems.

6. Regional Disparities:

Regional variations in the application of the death penalty can further exacerbate the
disproportionate impact on marginalized groups:

 Inequitable Distribution: Some states in India have a higher rate of death

penalty sentencing, potentially leading to greater disparities in sentencing for
marginalized groups.

8. Need for Reforms:

Addressing the disproportionate impact of the death penalty on marginalized groups

requires comprehensive reforms:

 Legal Education and Awareness: Promoting legal education and awareness,

particularly among marginalized communities, can empower individuals to
assert their rights.

 Legal Aid: Strengthening legal aid systems to ensure quality representation

for economically disadvantaged individuals is crucial92.

91
OfficeoftheSurgeonGeneral(US),CenterforMentalHealthServices(US),andNationalInstitute of
Mental Health (US), “Chapter 2 Culture Counts: The Influence of Culture and Society on Mental
Health” NCBI Bookshelf, 2001 available at: https://www.ncbi.nlm.nih.gov/books/NBK44249/ (last
visited February 4, 2025).

57
The disproportionate impact of the death penalty on marginalized groups in India
raises significant human rights concerns. To address this issue, it is essential to tackle
systemic discrimination, improve access to legal representation, and ensure that
judicial decisions are free from cultural and social biases. Upholding principles of
equity and fairness within the criminal justice system is imperative to rectify these
disparities.

5.5 LIMITED EFFECTIVENESS AS A DETERRENT

One of the central justifications for the use of the death penalty is its purported
deterrent effect on serious crimes. However, there is a substantial body of evidence
and critical analysis that questions the effectiveness of the death penalty as a deterrent
in India. This section explores the limitations of the death penalty as a deterrent, along
with relevant sections and laws.

1. Lack of Empirical Evidence:

Critics argue that there is a dearth of robust empirical evidence to support the claim
that the death penalty effectively deters crime. Despite the long history of the death
penalty in India, there is no conclusive research to demonstrate that it has a significant
deterrent effect.

 Section 101 of the Bharatiya Nyaya Sanhita (BNS): This section defines the
punishment for murder, including the option of the death penalty93.

2. Complex Factors in Criminal Behavior:

Criminal behavior is influenced by a myriad of complex factors, including socio-

economic conditions, education, family background, and psychological factors.
Critics contend that the death penalty oversimplifies the complex nature of criminal
motivation.

92
“Death penalty disproportionatelyaffectsthepoor,UNrightsexpertswarn,”OHCHRavailableat:
https://www.ohchr.org/en/press-releases/2017/10/death-penalty-disproportionately-affects-poor-un-
rights-experts-warn (last visited February 4, 2025).
93
“The Death Penalty: Questions and Answers,” American Civil Liberties Union, 2007available at:
http://www.aclu.org/documents/death-penalty-questions-and-answers(lastvisitedFebruary4,2025).

58
  Article 14 of the Indian Constitution: This article enshrines the right to
equality and equal protection under the law, emphasizing that individuals
should not be treated arbitrarily.

3. Risk of Wrongful Convictions:

The risk of wrongful convictions and executions undermines any potential deterrent
effect of the death penalty. Critics argue that the possibility of executing innocent
individuals raises ethical and moral concerns that outweigh any perceived benefits as
a deterrent.

 Section 415 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This

section provides for appeals to the High Court against convictions, recognizing
the importance of correcting errors in judicial decisions.94

4. Alternatives to the Death Penalty:

Many experts argue that there are more effective and humane alternatives to the death
penalty for addressing and preventing serious crimes. Life imprisonment without the
possibility of parole, for example, ensures that dangerous individuals are removed
from society while allowing for the potential for rehabilitation.

 Article 21 of the Indian Constitution: This article enshrines the right to life
and personal liberty, emphasizing the state's duty to protect the life of every
person.

5. Lack of Consensus:

There is no consensus among criminologists and researchers regarding the deterrent

effect of the death penalty. Studies from various countries have produced conflicting
results, further fueling doubts about its effectiveness.

6. Retributive vs. Rehabilitative Justice:

The death penalty is often associated with retributive justice, which seeks to punish
offenders as a form of retribution for their crimes. Critics argue that a more

94
“Section415:Appealsfromconvictions.,”TheBharatiyaNagarikSurakshaSanhita,2023available at:
https://kanoongpt.in/bare-acts/the-bharatiya-nagarik-suraksha-sanhita-2023/arrangement-of- sections-
chapter-xxxi-section-415-26b73f4ce3b28aa5 (last visited February 5, 2025).

59
rehabilitative approach, which focuses on reforming offenders and addressing the root
causes of criminal behavior, may be more effective in preventing recidivism95.

7. International Trends:

India is one of the few countries that still retains the death penalty, despite a global
trend toward its abolition. Critics argue that India should align itself with international
human rights standards and emerging global norms.

 International Covenant on Civil and Political Rights (ICCPR): India is a

party to this treaty, which emphasizes the right to life and the restriction of the
death penalty to the "most serious crimes."

8. Public Opinion:

While public opinion surveys in India have often indicated support for the death
penalty, the views of the public may not necessarily reflect the empirical evidence or
the ethical considerations surrounding the issue.

The limited effectiveness of the death penalty as a deterrent in India raises significant
questions about its continued use. Critics argue that the absence of robust empirical
evidence, the risk of wrongful convictions, and the availability of alternative forms of
punishment make the death penalty an outdated and ineffective approach to
addressing serious crimes. A reevaluation of India's stance on the death penalty in
light of these concerns is crucial to align with international human rights standards
and evolving global perspectives on this issue96.

5.6 OVER BURDENED JUDICIARY AND LENGTHY APPEALS PROCESS

The Indian judiciary is burdened with a backlog of cases, including those involving
the death penalty. The lengthy appeals process and the strain on the judicial system
have raised significant concerns about the administration of justice in death penalty
cases. This section examines the challenges associated with an overburdened judiciary
and the protracted appeals process, along with relevant sections and laws.
95
Diva Rai, “Theories of punishment- a thorough study” iPleaders, 2020 available at:
https://blog.ipleaders.in/theories-of-punishment-a-thorough-study/(lastvisitedFebruary4,2025). 96
advocatekhoj.com, “Law Commission of India Reports” AdvocateKhoj available at:
https://www.advocatekhoj.com/library/lawreports/deathpenalty/41.php?Title=&STitle=Empirical
%20Evidence%20on%20Deterrent%20Value%20of%20the%20Death%20Penalty(lastvisited
February 4, 2025).

60
1. Backlog of Cases:

India's judiciary faces a severe backlog of cases, with a substantial number of death
penalty cases pending before various courts.

 Article 21 of the Indian Constitution: The right to a speedy trial, enshrined

in Article 21, emphasizes the importance of timely justice.

2. Delays in Trial and Sentencing:

Delays in the trial and sentencing phases of death penalty cases can have serious
consequences:

 Section 346 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This

section emphasizes the need for expeditious trials, stating that proceedings in
criminal cases should be held as expeditiously as possible.97

3. Lengthy Appeals Process:

The death penalty appeals process in India is protracted, with multiple levels of
judicial review:

 Sections 415 and 435 of BNSS: These sections provide for appeals to the
High Court and Supreme Court against convictions and sentences,
respectively.

 Section 418 of BNSS: This section allows the Supreme Court to review any
judgment or order made by it.

4. Risk of Torture and Ill-Treatment:

Prolonged pre-trial detention and the extended appeals process can expose accused
individuals to the risk of torture and ill-treatment, violating their human rights.

5. Mental Agony for Death Row Inmates:

Inmates on death row endure prolonged uncertainty, leading to severe mental and
emotional suffering:

97
“The Bharatiya Nagarik Suraksha Sanhita, 2023,” PRS Legislative Research available at:
https://prsindia.org/billtrack/the-bharatiya-nagarik-suraksha-sanhita-2023(lastvisitedFebruary5,
2025).

61
  Article 21 of the Indian Constitution: The right to life and personal liberty
includes the right to live with dignity, free from cruel, inhuman, or degrading
treatment98.

6. Impaction Fair Trials:

Delays in the legal process can impact the fairness of trials and the quality of
evidence:

 Section 29 of Bharatiya Sakshya Adhiniyam, 2023: This section allows for

the admission of evidence of a witness who is dead or cannot be found.

7. Clemency Process:

The clemency process, which involves presidential and gubernatorial pardons, can add
further delays to the execution of death sentences:

 Article 72 of the Indian Constitution: This article empowers the President to

grant pardons, reprieves, and respites.

 Article 161 of the Indian Constitution: This article allows the Governor of a
state to grant pardons, reprieves, and respites.

8. Impact on Victims' Families:

Prolonged legal processes can also have a significant impact on the families of
victims, who endure years of uncertainty and emotional distress.

9. International Human Rights Standards:

India's commitment to international human rights standards, including the right to a

fair trial and the prohibition of torture, requires the timely administration of justice in
death penalty cases:

 International Covenant on Civil and Political Rights (ICCPR): India is a

party to this treaty, which emphasizes the right to a fair and prompt trial99.

98
“ToWhatExtentCanPrisonersEnjoyFundamentalRightsUnderArticle21,”availableat:
https://www.legalserviceindia.com/legal/article-11829-to-what-extent-can-prisoners-enjoy-
fundamental-rights-under-article-21.html (last visited February 4, 2025).

62
10. Need for Reforms:

Addressing the challenges of an overburdened judiciary and lengthy appeals

processing death penalty cases requires comprehensive reforms:

 Court Infrastructure: Investments in court infrastructure, including the

appointment of additional judges, can help reduce the backlog of cases.

 Streamlining Appeals Process: Streamlining the appeals process by setting

time limits for different stages can expedite the resolution of cases.

The challenges posed by an over burdened judiciary and the protracted appeals
process in death penalty cases necessitate urgent attention and reform. Timely justice
is not only a legal requirement but also essential for upholding human rights, ensuring
fair trials, and reducing the mental agony endured by both the accused and the
victims' families. Reforms aimed at expediting the judicial process while maintaining
the integrity of justice are crucial for the effective administration of the death penalty
in India.

5.7 NEGATIVE EFFECTS ON FAMILIES AND COMMUNITIES

The imposition and execution of the death penalty have far-reaching consequences,
not only for the accused and victims but also for their families and communities. This
section delves into the negative effects of the death penalty on families and
communities in India, along with relevant sections and laws100.

1. Emotional and Psychological Trauma:

Families of both the accused and victims often experience profound emotional and
psychological trauma throughout the legal process and beyond. The uncertainty,
stress, and grief can have lasting effects.

99
“ConventionagainstTortureandOtherCruel, InhumanorDegradingTreatmentorPunishment,”
OHCHR available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-
against-torture-and-other-cruel-inhuman-or-degrading (last visited February 4, 2025).
100
“Deathpenaltydisproportionatelyaffectsthepoor, UNrightsexpertswarn,”OHCHRavailableat:
https://www.ohchr.org/en/press-releases/2017/10/death-penalty-disproportionately-affects-poor-un-
rights-experts-warn (last visited February 4, 2025).

63
  Article 21 of the Indian Constitution: This article enshrines the right to life
and personal liberty, which includes the right to live with dignity and without
cruel, inhuman, or degrading treatment.

2. Stigmatization and Social Isolation:

Families of those sentenced to death often face stigmatization and social isolation
within their communities. This can lead to economic and social hardships.

 Article 15 of the Indian Constitution: This article prohibits discrimination

on grounds of religion, race, caste, sex, or place of birth.

3. Impact on Children:

Children of those sentenced to death face unique challenges, including the loss of a
parent and the stigma associated with their family's situation. This can disrupt their
education and development.

 Article 15(3) of the Indian Constitution: This clause allows for special
provisions to be made for the advancement of children.

4. Economic Hardships:

Families may experience financial strain due to legal expenses, loss of income, and
the need to visit incarcerated relatives. This can push families into poverty.

 Article41oftheIndianConstitution: This article emphasizes the state's duty to

provide assistance to those who are economically weak101.

5. Trauma for Victims' Families:

Families of victims often go through a traumatic experience during the legal process.
Delayed justice can prolong their suffering and grief.

6. Strained Communities:

Communities may become divided and strained when individuals from the same
community are involved in death penalty cases, leading to tensions and disputes.

101
Polly Vizard, “Poverty and Human Rights: Sen’s Contributions in Economics” OUP Academic,
2006availableat:https://academic.oup.com/book/5224/chapter/147890433(lastvisitedFebruary4,
2025).

64
7. Need for Victim Support Services:

There is a need for victim support services to provide counseling and assistance to
families affected by death penalty cases, both on the side of the accused and the
victims.

Conclusion

The debate surrounding the death penalty in India continues to raise complex
questions about justice, deterrence, and human rights. Despite its existence within the
Indian legal framework, there is no clear empirical evidence that capital punishment
acts as a stronger deterrent to crime than life imprisonment. The assumption that fear
of death prevents individuals from committing serious offenses has been challenged
by numerous academic studies and global criminological research. In fact, crimes like
murder and terrorism are often driven by factors such as emotional distress, socio-
political grievances, or psychological abnormalities—situations where the rational
calculation of consequences (like execution) plays a limited role.

India's approach to capital punishment is governed by the principle of awarding the

death sentence only in the "rarest of rare" cases, a doctrine established in the
landmark case Bachan Singh v. State of Punjab (1980). However, this doctrine has
resulted in inconsistencies in sentencing and subjectivity in judicial interpretation.
Additionally, many individuals sentenced to death in India come from economically
disadvantaged backgrounds and lack adequate legal representation, raising concerns
about the fairness and equity of capital trials.

Furthermore, the lengthy delays in carrying out executions—caused by prolonged

appeals, mercy petitions, and procedural hurdles—diminish any immediate deterrent
effect the death penalty might theoretically possess. These delays also subject
prisoners to extended psychological trauma, known as the "death row phenomenon,"
which has been criticized by human rights bodies for its cruel and inhuman impact.

The Law Commission of India, in its 262nd Report (2015), after comprehensive
study and consultation, recommended the abolition of the death penalty for all
crimes except terrorism and war-related offenses, emphasizing that there is no

65
proven deterrent effect and that the risk of wrongful conviction is too great to ignore.
In conclusion, while the death penalty continues to exist in India's statute books and
is constitutionally valid, its practical and moral legitimacy as a deterrent remains
unproven. It is clear that a more reliable strategy for crime prevention lies not in the
harshness of punishment, but in the certainty, swiftness, and fairness of the justice
system. India's focus should shift toward systemic reforms that uphold human dignity
while ensuring justice and accountability.

66
 CHAPTER-6

CONCLUSIONANDSUGGESTIONS

6.1CONCLUSION

They contend that life imprisonment can serves just alternative. On the other hand,
receptionists emphasize the need for retribution, justice for victims, and the deterrent
value of the death penalty. This ongoing debate reflects the broader global discourse
on capital punishment.

The debate surrounding the death penalty in India continues to raise complex
questions about justice, deterrence, and human rights. Despite its existence within the
Indian legal framework, there is no clear empirical evidence that capital punishment
acts as a stronger deterrent to crime than life imprisonment. The assumption that fear
of death prevents individuals from committing serious offenses has been challenged
by numerous academic studies and global criminological research. In fact, crimes like
murder and terrorism are often driven by factors such as emotional distress, socio-
political grievances, or psychological abnormalities—situations where the rational
calculation of consequences (like execution) plays a limited role.

India's approach to capital punishment is governed by the principle of awarding the

death sentence only in the "rarest of rare" cases, a doctrine established in the
landmark case Bachan Singh v. State of Punjab (1980). However, this doctrine has
resulted in inconsistencies in sentencing and subjectivity in judicial interpretation.
Additionally, many individuals sentenced to death in India come from economically
disadvantaged backgrounds and lack adequate legal representation, raising concerns
about the fairness and equity of capital trials.

Furthermore, the lengthy delays in carrying out executions—caused by prolonged

appeals, mercy petitions, and procedural hurdles—diminish any immediate deterrent
effect the death penalty might theoretically possess. These delays also subject
prisoners to extended psychological trauma, known as the "death row phenomenon,"
which has been criticized by human rights bodies for its cruel and inhuman impact.

67
The Law Commission of India, in its 262nd Report (2015), after comprehensive
study and consultation, recommended the abolition of the death penalty for all
crimes except terrorism and war-related offenses, emphasizing that there is no
proven deterrent effect and that the risk of wrongful conviction is too great to ignore.

In conclusion, while the death penalty continues to exist in India's statute books and
is constitutionally valid, its practical and moral legitimacy as a deterrent remains
unproven. It is clear that a more reliable strategy for crime prevention lies not in the
harshness of punishment, but in the certainty, swiftness, and fairness of the justice
system. India's focus should shift toward systemic reforms that uphold human dignity
while ensuring justice and accountability. Several arguments have been put forth both
in favor of and against the death penalty in India. Retributive justice and deterrence
stand as primary arguments for its retention. Proponent argue that it provides closure
to victims' families and serves as a powerful deterrent against heinous crimes.
Conversely, opponents highlight the moral and ethical considerations, asserting that
taking a life as punishment is incompatible with human rights principles. Concerns
about the potential for wrongful convictions and the arbitrary application of the death
penalty also feature prominently in the anti- death penalty discourse.

The death penalty in India faces criticisms on multiple fronts. Procedural fairness and
due process issues often arise, particularly concerning the quality of legal
representation for accused individuals. Risks of wrongful convictions and executions
are of paramount concern, especially given the limitations of the criminal justice
system. Critics also contend that the death penalty disproportionately impacts
marginalized groups, exacerbating issues of social inequality.

This analysis has explored various alternatives to the death penalty in India, including
life imprisonment with parole, restorative justice, rehabilitation and reintegration
programs, fines, and compensation for victims. These alternatives prioritize
rehabilitation, reconciliation, and addressing the root causes of crime. They align with
ethical principles, human rights standards, and restorative justice principles, offering a
comprehensive framework for addressing serious crimes without resorting to the
ultimate punishment.

68
In conclusion, the death penalty in India represents a complex and deeply divisive issue,
encapsulating historical, legal, ethical, and humanitarian dimensions. The legal framework
surrounding the death penalty is intricate, and its application requires a rigorous evaluation
of evidence and circumstances. International law and evolving human rights standards
have placed increasing emphasis on the abolition of the death penalty, prompting debates
and discussions within India. Alternative approaches to the death penalty offer
opportunities for a more compassionate and effective criminal justice system, addressing
the underlying causes of crime and promoting a fair and just society. As India continues to
grapple with the death penalty, it must navigate the intricate web of legal, ethical, and
human rights considerations to for path forward that aligns with its values and aspirations
for justice and humanity.

The complexities surrounding the death penalty in India require careful consideration
and measured steps toward potential reforms and policy changes. While the ultimate
decision on the abolition or retention of the death penalty rests with the Indian
government and its citizens, several recommendations and future directions can guide
this critical discourse:

1. Transparency and Accountability: Enhance transparency in the application of the

death penalty. Ensure that all relevant information, including data on death sentences
and executions, is readily accessible to the public and subject to independent scrutiny.
Establish mechanisms for accountability to minimize the risk of wrongful convictions.

2. Legal Reforms: Consider reforms in the legal framework governing the death
penalty. These reforms may include narrowing the scope of offenses punishable by
death, improving legal representation for accused individuals, and revisiting
sentencing guidelines.

3. Mitigation Measures: Develop and implement measures to mitigate the risks

associated with the death penalty. This may include comprehensive legal aid
programs, mandatory review of all death penalty cases, and the establishment of an
independent commission to investigate potential miscarriages of justice.

4. Promote Alternatives: Explore and promote alternative form of punishment, such

as life imprisonment with parole, restorative justice ,and rehabilitation programs.

69
Invest in poverty alleviation, education, and social inclusion initiatives to address the
underlying causes of crime.

5. International Engagement: Engage constructively with international bodies and

human rights organizations to foster a dialogue on the death penalty. Consider
ratifying international treaties that call for the abolition of capital punishment.

6. Public Awareness and Education: Promote public awareness and education

campaigns on the complexities and ethical considerations surrounding the death
penalty. Encourage informed public discourse and engagement on this crucial issue.

7. Monitoring and Evaluation: Establish an independent body tasked with

monitoring the application of the death penalty, assessing its impact on society, and
evaluating the effectiveness of alternative approaches.

8. Victim Support: Strengthen support systems for victims and their families,
recognizing their unique needs and experiences. Ensure access to counseling, legal
assistance, and compensation where appropriate.

9. Consultative Approach: Embrace a consultative approach that involves

stakeholders from various segments of society, including legal experts, human rights
advocates, religious leaders, and representatives of marginalized communities, in
shaping the nation's stance on the death penalty.

10. Evolving Ethical Discourse: Continue to engage in ethical discourse on the death
penalty, both domestically and internationally. Foster an environment where diverse
viewpoints can be expressed and debated with respect and empathy.

The death penalty in India remains a contentious issue, reflecting the nation's deep- seated
moral, legal, and ethical complexities. The path forward requires a delicate balance
between justice, compassion, and human rights. It is a journey that necessitates
introspection, dialogue, and a commitment to the well-being of all citizens.

As India continues to deliberate on the death penalty, it stands at a crossroads of history

and humanity. The decisions made today will shape the nation's commitment to
justice, human rights, and the sanctity of life. In the pursuit of a just and
compassionate society, India has the opportunity to lead by example, demonstrating

70
its commitment to the principles of fairness, equity, and respect for the inherent
dignity of every individual.

Ultimately, the abolition or retention of the death penalty is not solely a legal or
policy matter; it is a reflection of India's collective conscience and its vision for a
future where justice is tempered with mercy, human rights are upheld, and the
inherent worth of every human being is recognized and protected.

The death penalty in India is a complex and multifaceted issue that continues to
challenge the nation's moral, legal, and ethical foundations. It is a matter that requires
ongoing reflection and engagement with a wide range of stakeholders, from legal
experts and human rights advocates to religious leaders and ordinary citizens. As
India charts its course forward, it must consider several key dimensions:

1. Legal Reforms: The legal framework surrounding the death penalty demands
careful scrutiny and potential reform. This includes revisiting the scope of offenses
punishable by death, ensuring robust legal representation for accused individuals, and
establishing clear guidelines for sentencing in capital cases.

2. Transparency and Accountability: Transparency in the application of the death

penalty is crucial. Public access to information about death sentences and executions,
as well as independent oversight mechanisms, can help reduce the risk of wrongful
convictions and enhance public trust.

3. Mitigation Measures: To address the inherent risks associated with the death
penalty, India should explore and implement mitigation measures. These may include
comprehensive legal aid programs, mandatory reviews of all death penalty cases, and
the creation of an independent body to investigate potential miscarriages of justice.

4. Alternative Approaches: Promoting alternative forms of punishment, such as life

imprisonment with parole, restorative justice, and rehabilitation programs, is essential.
Investment in poverty alleviation, education, and social inclusion initiatives can
address the root causes of crime and reduce the reliance on the death penalty.

5. International Engagement: India should actively engage with international bodies

and human rights organizations to foster dialogue on the death penalty. Consideration
of international norms and practices can inform India's stance on this critical issue.

71
 6. Public Awareness: Public awareness and education campaigns should be launched
to inform the general population about the complexities and ethical considerations
surrounding the death penalty. Informed public discourse is a crucial component of
any decision-making process.

7. Victim Support: Strengthening support systems for victims and their families is
imperative. Victims should have access to counseling, legal assistance, and, when
appropriate, compensation to help them cope with the emotional and practical
challenges they face.

8. Consultative Approach: A consultative approach involving a diverse range of

stakeholders is vital. Engaging legal experts, human rights advocates, religious
leaders, and representatives of marginalized communities in shaping the nation's
stance on the death penalty ensures a broader perspective.

9. Ethical Discourse: India must continue to engage in ethical discourse on the death
penalty, both domestically and internationally. Fostering an environment where
diverse viewpoints can be expressed and debated respectfully and empathetically is
essential.

The death penalty in India is a subject that transcends mere legal or policy considerations;
it is a reflection of the nation's collective conscience and its vision for a just and
compassionate society. As India navigates the intricate terrain of the death penalty, it
stands at a pivotal moment in history. The choices made today will determine the
nation's commitment to justice, human rights, and the sanctity of life.

In the pursuit of a just and compassionate society, India has the opportunity to lead by
example, demonstrating its dedication to fairness, equity, and the inherent worth of
every individual. The abolition or retention of the death penalty is not just a legal
decision but a moral one, embodying the nation's values and aspirations for a more
humane future.

In the end, India's journey toward addressing the complexities of the death penalty is a
testament to its capacity for introspection, dialogue, and the unwavering commitment
to upholding the principles of justice and human dignity.

72
6.2 SUGGESTIONS

The death penalty in India is a deeply contentious and complex issue. As the nation
grapples with its moral, legal, and ethical dimensions, several suggestions emerge for
consideration. These recommendations aim to foster a more just and compassionate
society while addressing the challenges and complexities associated with the death
penalty:

1. Transparency and Accountability

 Recommendation: Enhance transparency in the application of the death

penalty. Publish comprehensive data on death sentences and executions,
including demographic information of those on death row. Establish an
independent commission to oversee and audit the application of the death
penalty.

 Rationale: Transparency is vital to build public trust and ensure

accountability. Comprehensive data can shed light on potential disparities and
flaws in the application of the death penalty.

2. Legal Reforms

 Recommendation: Conduct a comprehensive review of the legal framework

governing the death penalty. Consider narrowing the scope of offenses
punishable by death, improving the quality of legal representation for accused
individuals, and revisiting sentencing guidelines.

 Rationale: Legal reforms can help address procedural fairness and reduce the
risk of wrongful convictions. They also align with evolving international
standards.

3. Mitigation Measures

 Recommendation: Develop and implement robust mitigation measures.

Establish mandatory reviews of all death penalty cases, ensuring that
mitigating factors are thoroughly examined. Create an independent body
responsible for investigating potential miscarriages of justice.

73
  Rationale: Mitigation measures can help safeguard against errors and reduce
the likelihood of wrongful executions. An independent body can provide an
additional layer of oversight.

4. Alternative Approaches

 Recommendation: Promote alternative forms of punishment, such as life

imprisonment with parole, restorative justice programs, and rehabilitation
initiatives. Invest in poverty alleviation, education, and social inclusion to
address the root causes of crime.

 Rationale: Alternative approaches prioritize rehabilitation and social

reintegration, aligning with principles of justice and human rights. They can
also help reduce the reliance on the death penalty.

5. International Engagement

 Recommendation: Engage actively with international bodies and human

rights organizations to foster dialogue and cooperation on the death penalty.
Consider ratifying international treaties advocating for the abolition of capital
punishment.

 Rationale: International engagement can provide valuable insights and best

practices. It can also demonstrate India's commitment to global human rights
standards.

6. Public Awareness and Education

 Recommendation: Launch public awareness and education campaigns to

inform the public about the complexities and ethical considerations
surrounding the death penalty. Encourage informed and empathetic public
discourse.

 Rationale: Informed public discourse is essential in shaping public opinion

and influencing policy decisions. Education campaigns can help dispel myths
and misconceptions.

74
7. Victim Support

 Recommendation: Strengthen support systems for victims and their families,

ensuring access to counseling, legal assistance, and compensation where
appropriate. Recognize the unique needs and experiences of victims.

 Rationale: Empathetic support for victims and their families is crucial frothier
well-being and healing. It demonstrates societal compassion and empathy.

8. Consultative Approach

 Recommendation: Embrace a consultative approach that involves a diverse

range of stakeholders, including legal experts, human rights advocates,
religious leaders, and representatives of marginalized communities, in shaping
the nation's stance on the death penalty.

 Rationale: A consultative approach ensures a broader perspective and

promotes inclusive decision-making. It can lead to more balanced and
considered policies.

9. Ethical Discourse

 Recommendation: Encourage ongoing ethical discourse on the death penalty,

both domestically and internationally. Foster an environment where diverse
viewpoints can be expressed and debated respectfully.

 Rationale: Ethical discourse is essential for moral reflection and the evolution
of societal values. It promotes a deeper understanding of the complexities
involved.

10. Addressing Underlying Causes of Crime

 Recommendation: Address the root causes of crime through comprehensive

social and economic interventions. Invest in poverty reduction, education,
healthcare, and social inclusion initiatives.

 Rationale: Addressing the underlying causes of crime can contribute to crime

prevention and reduce the need for punitive measures like the death penalty.

75
 11. Revisiting the Rarest of Rare Doctrine

 Recommendation: Revisit the criteria for the "rarest of rare" doctrine, which
guides the imposition of the death penalty in India. Ensure that it is
consistently and judiciously applied.
 Rationale: A clear and consistent application of the doctrine is crucial to
prevent arbitrary sentencing.

12. Restorative Justice

 Recommendation: Explore the implementation of restorative justice

programs in appropriate cases. These programs can facilitate dialogue and
reconciliation between victims and offenders.

 Rationale: Restorative justice promotes healing and reconciliation and can be

a meaningful alternative to punitive measures.

13. Legislative Review

 Recommendation: Conduct a periodic review of death penalty- related laws

to ensure they remain in line with evolving societal values and international
standards.

 Rationale: Legislative review is essential to adapt to changing circumstances

and ethical considerations.

14. International Collaboration on Research

 Recommendation: Collaborate with international organizations and

researchers to conduct comprehensive research on the death penalty's impact,
including its deterrent effect and socio-economic implications.

 Rationale: High-quality research can inform evidence-based policy decisions

and provide a deeper understanding of the consequences of the death penalty.

15. Abolish the Death Penalty for Non-Terror Offenses

India should consider a phased abolition of capital punishment for offenses not related to
terrorism or national security. This move would align with global human rights
standards and help India progress toward more humane penal practices. As over two-

76
 thirds of the world’s countries have abolished the death penalty, India should reassess
whether it remains necessary in a modern, democratic society.

16. Reform Investigation and Prosecution Mechanisms

Strengthening the quality of police investigation and prosecution is critical. Poor

investigation, tampering of evidence, and coerced confessions undermine fair trials.
Investment in forensic science infrastructure, proper training of police personnel,
and reducing political interference in investigations would improve conviction
accuracy and reduce wrongful sentencing.

17. Ensure Swift and Fair Trials

Justice delayed is justice denied. The deterrent effect of any punishment, including life
imprisonment, depends largely on its certainty and promptness. Delays in trials and
appeals erode public trust and weaken the criminal justice system. Establishing fast-
track courts for serious crimes and streamlining judicial procedures can significantly
enhance deterrence.

18. Promote Legal Awareness and Access to Justice

Many individuals sentenced to death are unaware of their legal rights. Providing legal aid
services, counseling, and interpreters in capital cases can ensure that every accused
person receives a fair trial regardless of socio-economic status. Training and
certifying a pool of competent public defenders can help reduce sentencing
disparities.

19. Strengthen Victim-Centric Policies

Justice must also serve victims. India should enhance support systems for crime victims,
including psychological counseling, financial assistance, legal representation, and
witness protection schemes. This not only restores public faith in the system but also
ensures a balanced approach to justice.

77
 20. Use Life Imprisonment as a Humane Alternative

In most cases, life imprisonment without parole offers an equally serious punishment
without the irreversible consequences of a death sentence. It allows for the possibility
of rehabilitation and correction, while also ensuring public safety.

21. Create a National Sentencing Framework

To address arbitrary and inconsistent sentencing in capital cases, India should establish a
Sentencing Commission or adopt guidelines that ensure proportionality and
uniformity. Such a framework would reduce judicial discretion and make sentencing
more predictable and fair.

22. Invest in Criminological Research

There is a critical need for independent academic research on crime causation,

sentencing trends, and the real-world impact of different punishments. Government
institutions, law schools, and think tanks should collaborate to produce data that can
inform evidence-based policies, rather than relying on public opinion or political
pressure.

23. Enhance Public Discourse and Awareness

The public often supports the death penalty under the belief that it deters crime. There
must be greater engagement with civil society, educational institutions, and
media to promote informed debate and dispel myths about deterrence and retribution.

78
 BIBLIOGRAPHY

STATUTES:

1. Bharatiya Nyaya Sanhita,2023.

2. Bharatiya Nagarik Suraksha Sanhita, 2023.

3. The Constitution of India,1950.

4. The Protection of Human Rights Act, 1993.

5. The Juvenile Justice (Care and Protection of Children)Act,2015.

6. The Narcotic Drugs and Psychotropic Substances Act, 1985.

7. The Arms Act, 1959.

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Oxford University Press.

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 8. Hood, R., & Hoyle, C. (2015). The Death Penalty: A Worldwide Perspective
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1. Anand, M. (2018). Death Penalty in India: Law, Procedure, and Recent

Developments. Journal of the Indian Law Institute, 60(3), 281-105.

2. Basu, S. (2019). Abolition of the Death Penalty in India: An Analysis of the

Constitutional and Legal Framework. Indian Journal of Constitutional &
Administrative Law, 3(2), 31-47.

3. Bhattacharya, P. (2018). Death Penalty in India: A Socio-legal Analysis.

Journal of the Indian Law Institute, 60(3), 306-326.

4. Choudhury, B. P. (2019). Capital Punishment in India: A Legal and

Constitutional Perspective. Indian Journal of Public Administration, 65(2),
262-275.

5. Gandhi, R. (2019). Death Penalty and Human Rights: An Indian Perspective.

International Journal of Humanities and Social Science Research, 7(2), 1-11.

6. Jethmalani, R. (2018). Death Penalty in India: The Need for a Rational

Approach. Economic & Political Weekly, 51(44), 26-29.

7. Kacker, S. (2019). Death Penalty in India: A Critical Review of Judicial

Pronouncements. Journal of Indian Law and Society, 10, 31-46.

8. Kumar, V. (2018). Death Penalty in India: Legal and Constitutional

Perspectives. Journal of Law, Policy and Globalization, 74, 123-133.

NEWSPAPERS:

1. The Times of India

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 2. The Hindu

3. Hindustan Times

4. The Indian Express

5. The Telegraph

6. Deccan Chronicle

7. The Economic Times

8. Business Standard

9. Mint

WEBSITES:

1. Amnesty International India: https://www.amnesty.org.in/

2. National Law University Delhi:https://nludelhi.ac.in/

3. Indian Supreme Court:http://supremecourtofindia.nic.in/

4. Death Penalty World wide:https://deathpenaltyworldwide.org/

5. The Death Penalty Information Center:https://deathpenaltyinfo.org/

6. The Hoot-Media Watchdog: http://www.thehoot.org/

7. India Today:https://www.indiatoday.in/

8. NDTV:https://www.ndtv.com/

9. The Wire:https://thewire.in/

10. Live Law-Legal News: https://www.livelaw.in/

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