ICT And Legal Research – CeS
TOPIC – Rethinking the Death
Penalty in India
SUBMITTED TO - Mr. Sumit
SUBMITTED BY – Maanya Bajaj
ERP ID – 0241LLB066
ACKNOWLEDGEMENT
The author would like to express sincere gratitude to Mr.Sumit for their
insightful guidance and critical feedback throughout the research process,
as well as to Bharati Vidyapeeth Deemed to be University for providing
access to essential legal resources. Additionally, thanks to my classmates
and seniors for their valuable comments on earlier drafts of this article.
PLAGIARISM REPORT
Rethinking the Death Penalty in India
By: Maanya Bajaj1
ABSTRACT
This paper explores the death penalty in India, focusing on its historical evolution, judicial
practices, and the challenges arising from its arbitrary application. While capital punishment
was once widespread, its use has been increasingly restricted in modern times, with the
judiciary working to prevent arbitrary sentencing. However, the lack of clear, standardized
guidelines for imposing the death penalty has led to inconsistencies and potential violations
of justice. The paper examines landmark cases, such as Bachan Singh v. State of Punjab and
Mithu v. State of Punjab, which have shaped the legal framework, and discusses the
international stance on capital punishment. Despite global movements to limit or abolish the
death penalty, its continued use in India remains a point of contention. The paper argues that
the absence of formal sentencing guidelines contributes to arbitrariness, violating
constitutional principles of fairness. It also addresses recent legislative changes, particularly
in response to high-profile cases like the 2012 Nirbhaya rape, which expanded the scope of
capital punishment. In conclusion, the paper stresses the need for clearer guidelines to ensure
a just and consistent application of the death penalty, minimizing delays and preventing
arbitrary decisions that undermine the integrity of the judicial process.
1
Maanya Bajaj – Student of Bharti Vidyapeeth deemed to be university, enrolled in LLB program bearing the
ERP ID 0241LLB066
INTRODUCTION
Death penalty has become a controversial aspect of criminal law jurisprudence with regards
punishments in the modern era. In the era prior to the modern age of sovereign nations, societies
practiced execution or death penalty for all grave crimes, and the methods used to perform
these executions were meant to inflict great pain on the convict. Until the 19th century the death
penalty was the accepted penalty for most crimes. However, during late 19th and early 20th
century, the concept of justice was read along with natural rights and human rights which
shaped the modern thinking on death penalty. Despite more leniency being shown towards
death penalty as a mode of punishment in the modern era of human rights, there is still no
absolute removal on application of death penalty, but its application has been severely
restricted. Even on global governance, bodies like United Nations have rejected to abolish
death penalty as a whole. This paper will aim to understand the concept of death penalty as it
exists in India, and determine whether the punishment of death penalty is just or arbitrary, and
whether it conforms with Indian ethics on punishment.
Thesis Statement: Awarding death penalty in India should be subject to proper guidelines
rather than arbitrariness.
DEATH PENALTY IN INDIA
India has been practicing the punishment of death penalty since independence. Prior to the
Bachan Singh v. State of Punjab case, death penalty was common for grave offences under the
Indian Penal Code (IPC), which has now been replaced by Bharatiya Nyaya Sanhita. In the
Bachan Singh case, the Court primarily upheld death penalty as a form of punishment and ruled
that the state has the power to deprive a person of his life and liberty subject to the procedure
established by law.2 While holding so, the court noted that the discretion of judges in awarding
death penalty should be limited and such authority of discretion should only be invoked in
extraordinary cases. The same ratio was upheld in the Shashi Nayar case when the court upheld
that the hanging method of death penalty was not inhumane and that it conformed to the
constitutional standards of death penalty.3
The Indian Supreme Court has been active in preventing any arbitrary application of the death
penalty. The court has also worked to make sure that the method used to execute such death
penalties is not barbaric and not cruel, but the least painful, which is why hanging has now
been used as the method for execution in India. The CrPC was promulgated in 1973, provided
for submission of cases from trial court to high court if the trial court has awarded a death
penalty to confirm such penalty. Consequently, Section 303 of the Indian Penal Code—which
dealt with the obligatory death penalty for life in prison for murder—was declared illegal and
subsequently removed in the landmark case of Mithu v. State of Punjab.4 The court said that
because the criminal has a life sentence, he is more vulnerable to certain situations than
someone who is not receiving any kind of punishment. Additionally, there are some unique
facts and circumstances that the court overlooks. Thus, it is severe, arbitrary, and unfair to just
2
Bachan Singh v. State of Punjab, (1982 )3 SCC 24.
3
Vandana Tiwari, Death Penalty In India: A Critical Analysis, 38 L. REV.,
(2018), https://doi.org/10.29320/jnpglr.38.1.18.
4
Mithu v. State of Punjab, 1983 SCR (2) 690.
deny someone the protections and privileges provided by the Criminal Procedure Code and the
Constitution, since this will inevitably lead to injustice.5
INTERNATIONAL POSITION ON DEATH PENALTY
As mentioned above, the global governance bodies have taken no decision to completely
abolish death penalty as a punishment. The International Covenant on Civil and Political Rights
(ICCPR) which is a leading international document on rights of individuals, allows death
penalty under Art. 6. However, the states which signed the second additional protocol to ICCPR
agreed to not execute anyone for the purpose of death penalty within their jurisdictions.
Protocol 6 and 13 to the European Convention on Human Rights have similar duties attached
to them with regards abolishment of death penalty. Despite the attempts of United Nations and
other bodies at the international level to abolish death penalty, it is still an accepted form of
punishment in many countries, particularly for grave offences. There is nothing internationally
yet which universally abolishes death penalty. Public International Law itself does not give any
recognition to abolishment of death penalty despite the protocols signed under various
conventions. It is also important to remember that the human rights standards must be
interpreted dynamically or in an evolutionary way with the goal of implementation in mind.6
Over time, the usage of a certain technique and methodology may be deemed unreasonable,
even when the death sentence is still permitted and not deemed inappropriate. On this matter,
there is still uncertainty, though. Is it possible to evaluate it using measures of extreme and
gratuitous suffering? Or, to put it another way, are the methods that are taken into consideration
viewed as evolving norms of decency? However, it is deemed insulting to wait for years in
appalling physical and psychological circumstances.
Despite there not being a complete abolition of death penalty, there are a record number of
countries which have now stopped the practice of capital punishment, although certain
countries have begun to re-introduce the capital punishment. Regardless, the steps taken to
abolish the penalty have been seen globally. A major factor which has played a role in the lesser
use of capital punishment is the use of extradition treaties or sovereign commitment. In the
modern days, countries often include a clause in their extradition treaties which requires the
concerned state to clarify that death penalty will not be awarded to the accused in order to
initiate the extradition process.7
LEGISLATIVE DEVELOPMENTS ON DEATH PENALTY OVER THE
YEARS
Indian law on criminal procedure and substantive punishments has developed a lot over the last
century. The 1898 CrPC provided for death penalty and also gave limited discretion to the
judges with regards awarding of life imprisonment instead of death penalty for offences where
death penalty has been mentioned as the punishment. This intent gradually changed and
through amendments changes were introduced to incorporate discretion to be given to the
judges while awarding sentence. With the promulgation of the new CrPC in 1973, new
5
Sreeparvathy G, Death Penalty in India: A Case of Reckless Justice, 2013 SSRN Elec.
J.,, https://doi.org/10.2139/ssrn.2478629.
6
Gino J. Naldi, United Nations Seeks to Abolish the Death Penalty, 40 Int'l & Compar. L.Q. 948,
(1991), https://doi.org/10.1093/iclqaj/40.4.948.
7
Ilham Rahimov, On death penalty issues, 45 Jurid. Scis. & Educ. 134, (2015), https://doi.org/10.25108/2304-
1730-1749.iolr.2015.45.113-152.
safeguards were introduced with regards sentencing and death penalty. The new code required
special reasons for awarding death penalty over life imprisonment, all death penalty sentences
to be confirmed by the High Court and a separate hearing for sentencing. There were certain
attempts made by members of the parliament to abolish death penalty through private member
bills, but there was no significant development on the same.8
Death penalty is not alien to Indian laws. The IPC and other substantive criminal laws contain
provisions death penalty as a punishment. Within the IPC, offences related to killing of other
humans and offences included in the offences against the state chapter prescribe death penalty
as a possible punishment. There are other provisions in army law and terrorism prevention law
of the country where death penalty has been prescribed. Even welfare statutes like the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 contains and
prescribes death penalty for certain offences. The celebrated POCSO Act did not contain any
capital offence when it was enacted but through amendments death penalty has been introduced
in it.
ROLE OF JUDGES IN EXPANSION OF DEATH PENALTY
The constitutionality of death penalty has been upheld in multiple cases as have also been
mentioned above. However, in all those cases, the court did not go into any sentencing
guidelines for imposing death penalty on such offences, and left it at the discretion of the judges
who would consider the factor which call for a death penalty to be awarded. The nature of the
crime and the offender also had to be taken into account. This framework for sentencing in
death penalty cases has turned out to be inadequate and fairly misunderstood within the
judiciary, and calls for the need for proper sentencing guidelines. Although this framework
established first by the Bachan Singh case has been diluted over the years, there have been
judgments of the Supreme Court over the years which have put emphasis on the gravity on the
offence for consideration of death penalty without any regards given to the background of the
offender. The problem created through these widely interpreted judgments is that there is no
proper standards of capital punishment in the country, and often the punishment is either not
awarded for political reasons or the penalty is awarded arbitrarily.9
Art. 72 and 161 of the Constitution govern awarding of mercy by President or Governor of the
state respectively, to convicts who have been awarded death penalty. This power is executive
in nature and the judiciary has little power of interference with such decision of President or
the Governor, as the case may be. In certain cases, the punishment has been commuted from
death penalty to life imprisonment due to the time taken in mercy petition proceedings, in order
to lessen the anguish of the convict. Through such decisions of the Court, judicial review power
has been limited the right under Art. 21 of the Constitution is respected with regards the convict.
As was evident in the section before this one, legislative policy toward the death penalty has
changed over time, going from making it the standard punishment for capital offenses to
making it the exception. But over the past ten years, there has been a significant legislative
expansion of the death penalty due to the introduction of new capital offenses, most of which
8
R. Venkata Rao & Prakash Sharma, Death Sentence in India: Is It Rare Yet Arbitrary?, 2022 SSRN Elec.
J., https://doi.org/10.2139/ssrn.4155332.
9
Anup Surendranath & Maulshree Pathak, Legislative Expansion and Judicial Confusion: Uncertain Trajectories
of the Death Penalty in India, 11 Int'l J. for Crime Just. & Soc. Democracy 67,
(2022), https://doi.org/10.5204/ijcjsd.2477.
were direct reactions to specific sexual offenses that caused public outcry and demonstrations
after being extensively publicized in the media.a
The 2012 gang rape of a young lady in Delhi led to the first of these expansions and the nation's
most significant protests, which came to be known as the Nirbhaya rape. The government
established the Justice Verma Committee to recommend changes to the legislation in reaction
to the occurrence.10
After consulting with academics, organizations that support women's rights, and international
organizations, the Committee concluded that it would not be appropriate to increase the
punishment for sexual offenses by including the death penalty. This is especially true given that
it is not yet clear that the death penalty for sexual offenses acts as a deterrent (Justice J. S.
Verma Committee 2013: 249–250). Within three days, the Criminal Law (Amendment) Bill
2013 was introduced, discussed, and approved by both chambers of parliament. Notably, the
Bill included two new capital offenses: rape that results in the victim's death or a permanent
vegetative condition (s 376A) and rape that occurs more than once. This is in spite of the Justice
Verma Committee's clear opposition to the death sentence for sexual offenses.11
CONCLUSION
This paper aimed to study the arbitrary and improper sentencing of death penalty with regards
to the legislative framework and principles surrounding awarding of death penalty.
Abolishment of death penalty seems like a distant reality with there being no decisive
international instruments and lack of action domestically as well. The aim should be to make
sure that the principles governing awarding of death penalty are streamlined in order to make
sure the judiciary follows a similar guideline across the country, to prevent multiple
interpretations related to awarding of capital punishment. The legislative attempts at expansion
of death penalty to offences against women and the state is clearly the aim of the parliament,
and in order to ensure that such attempts are useful in deterring crime, the judiciary will have
to follow proper guidelines, particularly with the delay being caused in such proceedings which
have led to commutation of sentences regardless merely because of the time period being spent
in adjudication of confirmation of sentence.
10
Jill Cottrell, Wrestling with the Death Penalty in India, 7 S. Afr. J. on Hum. Rts. 185,
(1991), https://doi.org/10.1080/02587203.1991.11827835.
11
Ibid.
BIBLIOGRAPHY
Book:
* Watson, George H. Modern Geopolitics: Analyzing Global
Trends. Global Press, 2022.
Journal Article:
* Thompson, R. A., & Williams, D. J. (2021). The role of artificial
intelligence in modern warfare. Defense Studies Journal,
28(4), 200-215.
Website:
* Johnson, Mary. "The History of the Roman Empire." History
for Kids. Last modified July 22, 2020.
https://www.historyforkids.com/roman-empire.
