Last week, Supreme Court judge Justice Abhay S Oka made a significant observation, asking the legislature and judiciary to “seriously introspect” whether there should be capital punishment in India’s criminal justice system after 75 years of the Constitution and also questioned whether it proved a deterrent. His view comes against the backdrop of the recently released report of Project 39A, a criminal justice project at the National Law University (NLU), Delhi, which revealed that the apex court did not confirm a single death sentence in 2023 and 2024. In contrast, trial courts awarded 139 such sentences. The last time death sentences were awarded and executed was in 2020 when the four Nirbhaya rapists were hanged to death under what the Supreme Court calls “the rarest if rare cases.” That referred to the 2012 Delhi gang rape and murder case, which became known as the Nirbhaya case.
The NLU report also revealed that even as lower trial courts continued to impose death sentences, the Supreme Court was reluctant to confirm them. Is the Supreme Court’s approach signalling a shift in India’s use of capital punishment?
The Project 39A report comes weeks after a Supreme Court bench made similar observations while commuting the death sentence of a UP man convicted of brutally murdering his wife and four minor daughters. “This [Supreme] court has consistently recognised that the imposition of capital punishment is an exception and not the rule. Even where multiple murders have been committed, if there is evidence or at least a reasonable possibility of reform, a lesser sentence must be preferred,” noted the three-judge Supreme Court bench in January 2025.
This comes even as the number of death row prisoners has gone up significantly in India. In Kolkata, the public outcry and media trial of the accused in the RG Kar Hospital rape case led to strident demands for the death penalty, but the lower court dismissed the appeals.
In India, capital punishment, also known as the death penalty, is carried out by “hanging by the neck until death” under the Bharatiya Nagarik Suraksha Sanhita (BNSS) that replaced the Code of Criminal Procedure (CrPC). Unlike retributive justice that calls for punishments proportionate to crime, restorative justice seeks to repair the damage, restore well-being, achieve justice and reform the convict. In an unprecedented trend, the Supreme Court of India acquitted nearly 55 percent of the death row prisoners (six prisoners) in the cases it heard in 2023. This development needs to be seen along with the Court’s initiative in September 2022 to convene a Constitution bench to reform death penalty sentencing.
According to available data, the death penalty has been abolished in 112 countries, compared with 48 in 1991. More recently, Portugal, the Netherlands, France and Australia have moved towards abolishing executions. The US, Iran, China and India have retained a legal framework to enable the death penalty in one way or the other.
According to the latest figures from Amnesty International, 55 countries had death penalty, nine of these countries had death penalty only for the most serious crimes, such as multiple killing or war crimes. Twenty three had death penalty, but had not used it for 10 years. Six countries abolished death penalty either fully, or partially, in 2022. In April 2023, Malaysia’s parliament also voted to remove the mandatory death penalty for 11 serious crimes, including murder and terrorism. Thailand also allows death penalty for drug-related offences. Some 90 percent of the world’s known executions outside China were carried out in just three countries: Iran, Saudi Arabia and Egypt.
While international law does not prohibit death penalty, many countries consider it a violation of human rights. There are some cases where India’s Supreme Court has seen no evidence that reform is possible among those convicted and placed on death row. Those include Ajmal Kasab and Yakub Memon, who were hanged for waging war against the state, and Dhananjoy Chatterjee, who was executed for the rape and murder of a 14-year-old schoolgirl. Some death penalty cases in recent years have come under the judicial scanner, one being Afzal Guru whose death penalty and hanging for his alleged involvement in the parliament attack case by five terrorists became a political and contentious issue. The Supreme Court, in its verdict, stated: “Even the police charge sheet does not accuse him of that. As is the case with most conspiracies, there is and could be no direct evidence amounting to criminal conspiracy.” It then added: “The incident, which resulted in heavy casualties had shaken the entire nation, and the collective conscience of society will only be satisfied if capital punishment is awarded to the offender.”
The death sentence in India, since the days of the Constituent Assembly debates, has remained a complex issue. The Constitution does not prevent death sentences, but has mention of it in the Articles underlining the powers of the president. India continues to have provisions for death penalty for crimes, including murder, terrorism, organised crime, and rape under both the Bharatiya Nyaya Sanhita and special laws like the Army Act and Narcotics Drugs and Psychotropic Substances Act.
In 1980, a majority of four judges upheld the constitutionality of the death penalty in Bachan Singh vs State of Punjab. The sole dissenter was Justice PN Bhagwati, who wrote only two paragraphs in his opinion, noting that he would provide the reasons for his view after the summer break. It took its time coming, but the detailed dissent is a classic for the way it emphasised the inherent arbitrariness and inhumanity of the death penalty and called for its abolition. Justice Krishna Iyer also stressed that the death penalty was, in fact, violative of Articles 14, 19 and 21 and must only be imposed in extraordinary circumstances.
Many countries view capital punishment as inherently arbitrary and discriminatory. These factors, as well as the unique psychological and physical trauma associated with the time leading up to and actual infliction of this punishment, make the death penalty cruel, degrading, and inhumane, according to a majority of nations and human rights organisations. All criminals sentenced to life imprisonment in India are automatically eligible for parole after serving 20 years and require “special reasons”. This significant change indicated a desire to limit the imposition of the death penalty in India. The CrPC, 1973, also bifurcated a criminal trial into two stages with separate hearings, one for conviction and the other for sentencing.
The various modes of execution of death sentence were examined by the Law Commission in 1973 which concluded: “We find that there is a considerable body of opinion which would like hanging to be replaced by something more humane and more painless.” However, the Commission was not able to arrive at any firm conclusion on the issue.
While India is a signatory to the Universal Declaration of Human Rights and has ratified the ICCPR, it has not ratified the second optional protocol aiming to abolish death penalty. India also opposed a draft resolution at the UN General Assembly in 2022 that called for a moratorium on death penalty. That stand is largely due to terrorist activities from across the border, as was the Ajmal Kasab case or the parliament attack where anything less than the death sentence would have created a huge public and political backlash. India is, however, a party to the International Covenant on Civil and Political Rights, which guarantees the right to life and calls for the abolition of the death penalty.
In non-terrorist-related cases, the road to execution is long and complex. A death sentence by a trial court requires “confirmation” from the High Court that it qualifies as a “rarest of rare” case. The High Court can also acquit, remit or commute the sentence or allow appeal. A convict can then move the Supreme Court, triggering a chain of review and curative petitions. On the executive side, the president and the governor can remit, commute or suspend a death sentence. In 2012, 14 former judges of the Supreme Court and High Courts had written to then President Pranab Mukherjee asking him to commute the death sentences of nearly 13 convicts. Last year saw the lowest number of death sentence confirmations by the higher judiciary since 2000, The High Courts confirmed just one sentence and the Supreme Court confirmed none.
In a recent article in the Supreme Court Observer, a legal journalism platform that analyses judgments of the apex court, R Rai Spandana wrote: “In 1967, the Law Commission’s 35th Report strongly supported the death penalty. However, in 2003, the Commission’s 187th Report acknowledged the procedural flaws in sentencing though it did not advocate abolition. In its 262nd Report in 2015, the Commission finally called for doing away with the death penalty for all crimes except terrorism and related offences.”
There’s another socio-economic wrinkle in the cases that may warrant the death penalty, or Black Warrant, as it is officially known. The Death Penalty India Report shows that a vast majority (74.1 per cent) of the prisoners sentenced to death in India are economically vulnerable. Amongst the states with 10 or more prisoners sentenced to death, Kerala had the highest proportion of economically vulnerable prisoners sentenced to death with 14 out of 15 prisoners (93.3 percent) falling in this category. Other states which had 7 percent or more prisoners sentenced to death belonging to the “economically vulnerable” category were Bihar (75 per cent), Chhattisgarh (75 percent), Delhi (80 per cent), Gujarat (78.9 percent), Jharkhand (76.9 per cent), Karnataka (75 per cent) and Maharashtra (88.9 per cent). The social profile of prisoners on death row also revealed that nearly 34.6 percent belonged to backward classes, 24.5 percent came from Scheduled Castes and Scheduled Tribes, and 20.7 percent came from religious minorities. In total, 79.8 percent of the total number of death row prisoners came from socially vulnerable communities.
Regardless of background and economic vulnerability, the debate surrounding capital punishment remains complex and is generally based on individual cases and the nature of the crime. The National Law University’s Project, as quoted extensively by Justice Kamaljit Singh Garewal in this magazine sometime ago, was based on interviews with 60 former judges of the Supreme Court on death penalty. As he wrote: “The study contains excerpts from interviews with judges, who expressed their frank views regarding the criminal justice system and the death penalty. The study concluded with the following remarks: “Among the starkest outcomes of this study is the negligible impact of the scepticism concerning the criminal justice system on the support for the death penalty. While the arguments in support of the death penalty in abstraction may seem attractive, the normative coherence of the arguments in favour of the death penalty begins to thin when applied to the realities of the system. This near inexplicable “double speak”, on the one hand explicitly acknowledging the crisis within India’s criminal justice system, and on the other articulating such strong support for death penalty, creates a peculiar situation where the death penalty starts to appear as a perfect distraction from the criminal justice system’s chronic malaise…”
Be that as it may, if the last two years are any indication, the Supreme Court seems to have gone by Justice Oka’s view that there needs to be a fresh review of the death penalty and its continuance. The issue is literally hanging fire with the added realisation that because the Black Warrant has been issued so sparingly in recent years, India does not even have a qualified hangman!
—The writer is former Senior Managing Editor, India Legal magazine