ABSTRACT
The death penalty continues to be one of the most debated punishments in Indian criminal law. Although India has retained capital punishment, its use is strictly limited by constitutional principles, judicial decisions, and procedural safeguards. The Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code, continues to recognise death as a punishment for murder and a few other grave offences. This article examines whether the death penalty, as applied today, truly meets the constitutional standards of fairness, equality, dignity, and proportionality under Articles 14 and 21 of the Constitution.
The study explores the legal framework under the BNS and analyses the Supreme Court's development of the "rarest of rare" doctrine through landmark judgments such as Bachan Singh and Machhi Singh. It also discusses the growing importance of mitigation, rehabilitation, mercy petitions, and meaningful sentencing hearings in capital cases. A brief comparison with the United Kingdom highlights an alternative approach based on the abolition of capital punishment. The article concludes that India should further restrict the use of the death penalty by strengthening sentencing safeguards, improving legal aid, and ensuring that rehabilitation remains a key consideration in criminal justice.
1. INTRODUCTION
Background
Punishment is an important part of criminal law. It aims to hold offenders accountable, protect society, and discourage future crimes. The main purposes of punishment include retribution, deterrence, prevention, and reformation.[1] Among all punishments, the death penalty is the most severe because it permanently takes away a person's life and cannot be reversed.
India has retained the death penalty, but its use is limited to exceptional cases. The Supreme Court has developed strict principles to ensure that it is not imposed arbitrarily. Articles 14 and 21 of the Constitution are particularly important as they require equality, fairness, and a just procedure when deciding a person's life and liberty.[2]
The Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the Indian Penal Code and came into force on 1 July 2024. However, it has not abolished capital punishment. Section 4 recognises death as a form of punishment, while Section 103 provides death or life imprisonment for murder. Section 104 also provides death or life imprisonment in certain cases involving a person already serving a life sentence.[3]
Thus, although the BNS has changed India's criminal-law framework, the death penalty continues to remain a part of Indian law. Its use must, however, be guided by constitutional safeguards and judicial principles to ensure that it is imposed only in the most exceptional circumstances.
RESEARCH QUESTIONS
What is the present legal position of the death penalty under the Bharatiya Nyaya Sanhita, 2023?
How has the Supreme Court's "rarest of rare" doctrine restricted the imposition of capital punishment?
Are existing sentencing and procedural safeguards sufficient to prevent arbitrariness and protect the constitutional rights of death-row prisoners?
What reforms can make capital sentencing more consistent, fair, and constitutionally defensible?
What lessons can be drawn from the United Kingdom's abolitionist approach?
OBJECTIVES AND METHODOLOGY
The main objective of this research is to understand the death penalty from both a criminal-law and constitutional perspective. It focuses on how capital punishment is regulated in India and the safeguards that are available before imposing it.
The research follows a doctrinal method, based mainly on the study of legal provisions, constitutional principles, Supreme Court judgments, and important law-reform reports. It also refers to research by the Law Commission of India and Project 39A, National Law University Delhi. A brief comparative approach is used to understand how other countries deal with capital punishment.
The study takes a critical approach by considering the interests of victims, society, accused persons, and the State, while examining whether the present system provides sufficient fairness and protection against arbitrary use of the death penalty.
I. STATUTORY AND CONSTITUTIONAL FRAMEWORK
1. Death Penalty under the Bharatiya Nyaya Sanhita, 2023
Section 4 of the BNS lists the punishments to which offenders may be liable: death, imprisonment for life, rigorous or simple imprisonment, forfeiture of property, fine, and community service.[4] The inclusion of community service is an important development in the overall philosophy of sentencing, but the retention of death shows that the BNS continues the Indian policy of selective capital punishment.
For murder, Section 103(1) provides death or imprisonment for life, with liability to fine. Section 103(2) additionally provides death or life imprisonment for every member of a group of five or more persons acting in concert who commits murder on specified discriminatory grounds such as race, caste, community, sex, place of birth, language, or personal belief. Section 104 applies to murder committed by a person already serving a life sentence and again provides a choice between death and life imprisonment. Other BNS provisions also authorize death for specified aggravated offences. Consequently, capital punishment remains a significant part of the statutory criminal-law framework even after the replacement of the IPC.[5]
The important point is that the statutory words "death or imprisonment for life" do not give courts an unrestricted choice. The Supreme Court has consistently treated life imprisonment as the normal punishment and death as an exceptional punishment. The statutory discretion must therefore be exercised within constitutional limits.
2. Constitutional Protection: Articles 14 and 21
Article 14 requires equality before the law and equal protection of the laws. In the capital sentencing context, this principle is particularly important because similarly situated offenders should not receive radically different sentences merely because of inconsistent judicial approaches, inadequate mitigation evidence, or differences in legal representation. Article 21 provides that no person shall be deprived of life or personal liberty except according to procedure established by law.[6] Through constitutional interpretation, the Supreme Court has required such procedure to satisfy standards of fairness and reasonableness. Capital punishment therefore survives constitutional scrutiny only because it is surrounded by substantive and procedural restraints. In Mithu v State of Punjab,[7] the Constitution Bench invalidated Section 303 of the IPC, which had imposed a mandatory death sentence on a life convict who committed murder. The decision is important because it demonstrates that the Constitution does not permit an inflexible capital sentence that prevents the court from considering the individual circumstances of the offender. Individualised sentencing is therefore not a matter of judicial generosity; it is a constitutional requirement.
3. Clemency and Commutation
The constitutional framework also contains executive safeguards. Article 72 empowers the President to grant pardons, reprieves, respites, or remissions of punishment and to suspend, remit, or commute sentences in specified cases.[8] Article 161 confers a corresponding power on Governors in relation to matters within the State's executive power. The clemency jurisdiction does not erase the judicial sentence automatically. It functions as an additional constitutional safeguard against injustice and allows consideration of circumstances that may arise or become significant after conviction. In Shatrughan Chauhan v Union of India,[9] the Supreme Court held that unexplained and inordinate delay in mercy proceedings can become a ground for commutation.
II. JUDICIAL DEVELOPMENT OF THE RAREST OF RARE DOCTRINE
1. Bachan Singh v State of Punjab
The constitutional foundation of modern Indian death-penalty jurisprudence is Bachan Singh v State of Punjab.[10] A Constitution Bench upheld the constitutional validity of the death penalty but imposed a stringent limitation: it could be imposed only in the "rarest of rare" cases. The Court emphasised that life imprisonment is the rule and death is an exception.
The significance of Bachan Singh lies in its insistence on balancing aggravating and mitigating circumstances. The court must examine not only the nature and gravity of the crime but also the circumstances of the offender. The offender cannot be reduced to the offence committed. Age, background, mental and physical condition, possibility of reform, social circumstances, and other relevant mitigating factors must be considered. The principle is therefore not "the more shocking the crime, the more justified the death penalty." Rather, the question is whether, after giving full weight to mitigation, life imprisonment is unquestionably inadequate and whether there is no reasonable alternative to death. This high threshold is intended to minimize arbitrariness and preserve the constitutional value of human dignity.
2. Machhi Singh v State of Punjab
Machhi Singh v State of Punjab[11] attempted to give practical shape to the rarest-of-rare doctrine. The Court identified illustrative categories involving extreme brutality, depraved motives, socially shocking murders, multiple murders, and murders of particularly vulnerable victims. These categories are useful as indicators, but they should not be treated as a mechanical checklist.
The danger of relying too heavily on the "crime test" is that the court may focus on public outrage and brutality while neglecting the offender's individual circumstances. Later decisions have therefore emphasised the need to balance the "crime test" with the "criminal test."
3. Reform and Rehabilitation as a Constitutional Consideration
A major development in sentencing jurisprudence has been the recognition that the possibility of reform and rehabilitation is central to the death-penalty inquiry. In Santosh Kumar Bariyar v State of Maharashtra[12] and subsequent cases, the Supreme Court criticized mechanical approaches to capital sentencing and stressed the need to determine whether the offender can be reformed.
The principle became especially important in cases where the trial court imposed death without collecting adequate material about the accused's social history, psychological condition, prison conduct, family circumstances, or prospects of rehabilitation. The Supreme Court has increasingly required courts to obtain meaningful information before deciding whether a person falls within the rarest of rare category.
4. Manoj v State of Madhya Pradesh and the Mitigation Process
Manoj v State of Madhya Pradesh [13] represents an important procedural development. The Supreme Court emphasised the need for a meaningful sentencing process in capital cases and the collection of material relevant to mitigation. Such material may include information concerning the accused's childhood, family background, education, employment, mental health, social circumstances, and conduct in custody. This approach recognises that sentencing cannot be reduced to a short hearing immediately after conviction. A death sentence requires an informed decision about the individual before the court. Without adequate information, a judge may unknowingly treat social disadvantage, trauma, poverty, or mental-health conditions as irrelevant when they may directly affect culpability and prospects of reform.
The importance of the mitigation process has been reinforced in later Supreme Court proceedings. In 2025, the Court again stressed that the safeguards associated with the mitigation framework must be meaningfully applied and that capital sentencing demands the highest degree of procedural fairness. This indicates a continuing judicial movement from broad statements of principle towards a more evidence-based sentencing process.
5. Life Imprisonment as a Genuine Alternative
Indian courts have also developed sentencing options between ordinary life imprisonment and death. In Swamy Shraddananda (2) v State of Karnataka,<sup>14</sup> the Supreme Court recognised that in exceptional cases a court may impose imprisonment for the remainder of the convict's natural life, or a specified long period without ordinary remission, instead of death. This approach prevents the false choice between a sentence that may be perceived as too short and an irreversible execution.
The intermediate-sentence approach is important because proportionality requires a punishment that reflects both the seriousness of the offence and the possibility of avoiding unnecessary irreversible punishment. It can therefore function as a constitutional safety valve in cases that are exceptionally grave but do not satisfy the strictest threshold for death.
III. CRITICAL ANALYSIS: IS THE PRESENT FRAMEWORK SUFFICIENT?
1. The Problem of Sentencing Arbitrariness
The central weakness of the Indian death-penalty system is not the absence of constitutional principles; it is the difficulty of applying them consistently. "Rarest of rare" is deliberately flexible, but flexibility can become uncertainty when different benches attach different weight to brutality, motive, victim characteristics, prior conduct, and the possibility of reform.[15]
Capital punishment magnifies the consequences of inconsistency. A difference of judicial approach that might otherwise produce a few years' variation in imprisonment can, in a capital case, determine whether a person lives or dies. The Supreme Court has therefore repeatedly emphasised proportionality, consistency, and reasoned sentencing. A structured sentencing framework is necessary to reduce the possibility that subjective perceptions of crime seriousness or offender character will dominate the decision.
2. Quality of Legal Representation and Socio-Economic Inequality
The fairness of capital sentencing also depends on the quality of defence representation. A person sentenced to death often requires intensive investigation beyond the ordinary trial record. Counsel must investigate social history, psychological conditions, family circumstances, education, employment, prison conduct, and prospects of rehabilitation. If such material is not collected, the court may receive a distorted picture of the offender. Empirical research by Project 39A at National Law University Delhi has highlighted the socio-economic and procedural dimensions of India's death-row population.[16] work demonstrates why capital sentencing cannot be viewed solely as a doctrinal exercise. The quality of investigation, legal representation, and sentencing preparation can affect the final outcome. The constitutional principle of equality therefore requires the State to ensure not merely nominal legal aid but effective and specialised representation in capital cases.
3. Delay and the Death Row Experience
A death sentence may be imposed after trial and appellate proceedings, followed by review, curative, and mercy proceedings. These stages can take substantial time. The uncertainty associated with waiting for execution can have severe psychological consequences. Shatrughan Chauhan [17] established that inordinate and unexplained delay in mercy proceedings can become a ground for commutation.
Delay also raises a broader policy question. If the criminal justice system requires many years to reach finality, the State must balance the interests of victims and society with the constitutional rights of the condemned prisoner. Administrative accountability in processing mercy petitions is therefore an essential part of a rights-compliant capital punishment system.
4. The Risk of Irreversible Error
Every criminal justice system is capable of error because investigation, eyewitness testimony, forensic evidence, and legal representation are imperfect. Appeals and review reduce the risk but cannot eliminate it. In ordinary imprisonment cases, a wrongful conviction can theoretically be corrected through release and compensation or other remedies. Execution removes that possibility permanently.
For this reason, the standard of proof and appellate scrutiny must be exceptionally rigorous in capital cases. The Supreme Court has emphasised that the irreversible nature of the sentence requires the highest degree of caution. Where substantial doubt remains about guilt or where the sentencing process has been materially defective, the benefit must operate against execution.
IV. COMPARATIVE PERSPECTIVE: INDIA AND THE UNITED KINGDOM
The United Kingdom provides a useful contrast because it has abolished the death penalty for ordinary crimes. The British approach treats the protection of life as incompatible with judicial execution and relies on severe custodial sentences for the most serious offences. India, by contrast, retains capital punishment but confines it through the rarest-of-rare doctrine.[18]
The comparative lesson is not that one legal system can simply be copied into another. Constitutional history, public policy, and legislative choices differ. Nevertheless, the UK experience demonstrates that abolition does not mean abandoning serious punishment. A legal system can protect society through life imprisonment and other severe custodial measures while eliminating the possibility of irreversible judicial error. For India, the comparison strengthens the argument for examining whether the objectives attributed to the death penalty—retribution, deterrence, and incapacitation—can be achieved through non-lethal punishments. If life imprisonment for the remainder of natural life can adequately protect society in the most serious cases, the additional justification for execution becomes increasingly difficult to sustain from a rights-based perspective.
FINDINGS AND DISCUSSION
The research produces five principal findings. First, the BNS has retained capital punishment rather than introducing a fundamental change in India's policy. Second, constitutional law significantly restricts the statutory power to impose death: Articles 14 and 21 require non-arbitrariness, fairness, proportionality, and an individualised sentencing process. Third, the rarest-of-rare doctrine remains the controlling judicial standard, with life imprisonment treated as the rule and death as the exception. Fourth, recent jurisprudence has shifted attention towards mitigation evidence, reform, and rehabilitation and away from a purely crime-centred approach. Fifth, the practical legitimacy of capital punishment depends not only on legal doctrine but also on the quality of legal representation, the availability of mitigation evidence, and the efficiency of executive clemency proceedings.
The most important conceptual conclusion is that the death penalty should not be decided by the emotional intensity of the offence alone. A criminal court is required to determine punishment through law, evidence, and constitutional principle. Victim suffering and social harm are highly relevant, but they cannot replace the mandatory consideration of the offender's circumstances.
The BNS's introduction of community service elsewhere in the punishment structure also illustrates a broader movement towards diversified sentencing. While community service is obviously unsuitable for serious offences such as murder, its inclusion indicates that Indian penal policy is capable of recognising sanctions other than incarceration. This broader sentencing philosophy should encourage further discussion of long-term imprisonment, rehabilitation, and restorative measures in appropriate cases.
CONCLUSION
The death penalty under Indian criminal law represents a continuing tension between the State's interest in punishing exceptionally grave crimes and the constitutional commitment to human dignity, equality, and life. The Bharatiya Nyaya Sanhita, 2023 has retained the punishment and therefore has not resolved that tension legislatively. The responsibility for maintaining constitutional balance continues to rest heavily upon courts, executive authorities, and the institutions that provide legal representation. The Supreme Court's jurisprudence provides a demanding framework. Bachan Singh established the rarest-of-rare standard; Machhi Singh developed illustrative indicators; later cases reinforced proportionality, mitigation, and rehabilitation; Shatrughan Chauhan recognized the constitutional significance of delay; and Manoj strengthened the requirement of a meaningful sentencing process. Taken together, these decisions show that capital punishment is not an ordinary sentencing option.
The strongest reform is ultimately one that reduces the possibility of irreversible injustice. India can move in that direction even without immediate abolition by ensuring specialised defence, comprehensive mitigation investigation, consistent sentencing standards, transparent data, and strict time limits for executive decision-making. In the longer term, Parliament should reconsider whether the purposes of criminal punishment require the State to take life when secure and proportionate forms of imprisonment are available. A constitutional criminal justice system must protect society while also protecting the dignity of the person accused or convicted of a crime. The legitimacy of punishment depends not only on how severely the State responds to wrongdoing, but also on whether the process by which punishment is imposed remains fair, rational, and humane. The future of Indian capital punishment should therefore be guided by the principle that where an irreversible penalty is contemplated, every safeguard against arbitrariness must be treated as indispensable.
Reference
[1] Law Commission of India, The Death Penalty, Report No 262 (August 2015).
[2] Constitution of India, arts 14, 21.
[3] Bharatiya Nyaya Sanhita 2023, ss 4, 103, 104.
[4] Bharatiya Nyaya Sanhita 2023, s 4.
[5] Project 39A, Annotated Comparison: Bharatiya Nyaya Sanhita, 2023 and Indian Penal Code, 1860 (2024).
[6] Constitution of India, art 21.
[7] Mithu v State of Punjab (1983) 2 SCC 277.
[8] Constitution of India, arts 72, 161.
[9] Shatrughan Chauhan v Union of India (2014) 3 SCC 1.
[10] Bachan Singh v State of Punjab (1980) 2 SCC 684.
[11] Machhi Singh v State of Punjab (1983) 3 SCC 470.
[12] <sup>12</sup> Santosh Kumar Bariyar v State of Maharashtra (2009) 6 SCC 498.
[13] Manoj v State of Madhya Pradesh, 2022 SCC OnLine SC 677.
[14] Swamy Shraddananda (2) v State of Karnataka (2008) 13 SCC 767.
[15] Anup Surendranath and Maulshree Pathak, 'Legislative Expansion and Judicial Confusion: Uncertain Trajectories of the Death Penalty in India' (2022) 11(3) International Journal for Crime, Justice and Social Democracy 67.
[16] Project 39A, National Law University Delhi, Death Penalty India Report (2016).
[17] Shatrughan Chauhan v Union of India (2014) 3 SCC 1.
[18] Law Commission of India, The Death Penalty, Report No 262 (August 2015).