Constitutional dimensions of the death penalty in India: Balancing rights and justice

By Sneha Kumari and Rajveer

The death penalty is as old as civilization itself and is still the subject of controversy and moral dilemmas. In India, which has a rich legal history, the law on the death penalty is an achievement that lies at the intersection of law, ethics and human rights. To understand the current debate about capital punishment in India, it is necessary to look at its history. Legal texts of ancient India are replete with abundant references to the death penalty, which embodies the punishment of revenge and protection. The colonial era initiated by the British marked a turning point in the codification of criminal law, culminating in the enactment of the Indian Penal Code in 1860.

Post-independence, a dialectic between retribution and reform ignited debates, engendering legal reforms and seminal judgments that continue to shape the death penalty regime today. The death penalty has a long and complex history, with its origins dating back to ancient civilizations. Throughout history, different societies and legal systems have employed capital punishment as a means of administering justice and deterring crime.

The methods used for execution have varied over time, ranging from crucifixion and beheading to hanging, firing squad, and lethal injection. In the United States, the death penalty was initially influenced by British common law and colonial practices. The first recorded execution in the American colonies took place in 1608 in Jamestown, Virginia. Over time, each state developed its laws and procedures for imposing the death penalty. The constitutional validity of the death penalty in the United States has been a subject of debate since the country’s founding.

The Eighth Amendment of the US Constitution prohibits cruel and unusual punishment, and opponents of the death penalty argue that it violates this constitutional provision. However, the Supreme Court has held that the death penalty itself is not inherently cruel and unusual, but rather its application must meet certain constitutional standards. In 1972, the Supreme Court ruled in Furman v. Georgia that the death penalty, as it was then applied, violated the Eighth Amendment due to its arbitrary and discriminatory nature. This decision led to a moratorium on executions across the country. However, in 1976, the Supreme Court upheld revised death penalty statutes in Gregg v. Georgia, establishing a new framework for capital punishment that aimed to address the concerns raised in Furman.

Since Gregg, the Supreme Court has continued to refine the constitutional standards for imposing the death penalty. It has ruled that certain categories of defendants, such as juveniles and individuals with intellectual disabilities, are exempt from capital punishment. The Court has also imposed limitations on the types of crimes that can be eligible for the death penalty, requiring a finding of “aggravating circumstances” that make the crime exceptionally heinous or deserving of such punishment. Despite these constitutional developments, the death penalty remains a highly controversial and divisive issue in the United States. Public opinion on capital punishment has shifted over time, with support for the death penalty reaching its peak in the 1990s and declining in recent years. Supporters believe the death penalty deters crime and provides comfort to victims’ families, while opponents argue it is ineffective, racist and dishonest.

The ‘rarest of the rare’ doctrine: Balancing justice and mercy

At the heart of the debate about death in India is the principle of “the rarest of the rare doctrine”. This doctrine is based on Bachan Singh v. State of Punjab (1980) and provides a good understanding of capital punishment. He made it clear that the death penalty should only be imposed in extreme cases where a life sentence is inadequate. This doctrine is similar to a moral philosophy that attempts to strike a balance between the seriousness of certain crimes and the sanctity of life. According to the principle of “rare”, the death penalty should be applied only in the most special and extreme cases affecting the unity of the people. The court said that the death penalty should be retained in cases where the alternative punishment, life imprisonment, is insufficient and there is no mitigating arrangement in favour of the defendant. The Supreme Court added that in determining whether a situation falls under the “rare” category, the court must take into account factors such as the nature of the crime, the act of the crime, passion and social impact. The court also emphasized that the death penalty should be imposed only if there is no other appropriate punishment. The “less rare” principle has been criticized by some for its content and possible inconsistencies in implementation. Critics say this leaves judges with too much discretion and a lack of clear guidelines for deciding when a case qualifies as the “least of the rare.” They also argued that the principle did not take into account the reasonableness of a person who was vulnerable or could violate the law. Despite these criticisms, the “fairly rare” rule is still used in India as the principle for deciding when to impose the death penalty. The Supreme Court supported this principle in later cases and reiterated that the death penalty should be imposed only in special cases affecting the unity of the people.

Article 21: A cornerstone of justice

At the centre of the debate on the death penalty in India is Article 21 of the Constitution, which guarantees the right to life and personal freedom. The interpretation of this important law has been debated in debates for and against the death penalty. Proponents of the death penalty believe that Article 21 does not expressly prohibit the death penalty and that the legality of this punishment is guaranteed by the “law under law” clause. They believe that the death penalty is legal as long as it is fair and just. Opponents merely cite the evolving nature of Indian law. They believe that the sanctity of life is paramount and that the state must ensure that any violation of life is reasonable and proportionate to the crime. They argue that life under the death penalty is inconsistent with evolving standards of justice and humanity.

Crimes warranting death penalty

The Indian legal framework delineates a specific spectrum of heinous crimes warranting the imposition of the death penalty. Enshrined in various statutes such as the Indian Penal Code and specialized legislations like the Narcotic Drugs and Psychotropic Substances Act, these offences encompass crimes such as murder, terrorism, and certain instances of rape culminating in the death of the victim.

Under the Indian Penal Code (IPC), the death penalty can be imposed for the following offences:

1. Section 121: Waging, or attempting to wage war, or abetting the waging of war, against the Government of India.
2. Section 132: Abetment of mutiny, if mutiny is committed in consequence thereof.
3. Section 194: Giving or fabricating false evidence with intent to procure conviction of a capital offence.
4. Section 302: Murder.
5. Section 305: Abetment of suicide of a child or insane person.
6. Section 307: Attempt to murder.
7. Section 364A: Kidnapping for ransom, etc., resulting in death.
8. Section 376A: Punishment for causing death or resulting in a persistent vegetative state of the victim in certain cases of rape.
9. Section 376AB: Punishment for rape on a woman under twelve years of age.
10. Section 376DA: Punishment for gang rape on a woman under sixteen years of age.
11. Section 376DB: Punishment for gang rape on a woman under twelve years of age.
12. Section 376E: Repeat offenders of rape.

It should also be noted that this list may not be complete and there may be other provisions in certain laws that provide for the death penalty for certain crimes. It is also worth noting that the application of the death penalty is based on the principle of “least rare” and it is up to the court to decide whether a particular case falls into category or not.

Rights of persons facing the death penalty

According to the fundamental principles of the Constitution of India, persons sentenced to death have fundamental rights. These include the right to a fair trial, the right to legal representation, and the right to seek a presidential pardon. Moreover, the Supreme Court of India has made it clear in its important statements that the death penalty process must be fair and impartial.

Right to A Fair Trial: The Constitution of India guarantees the right of every accused to a fair and just trial. This includes access to legal representation, the right to remain silent and the presumption of innocence.

Right to Legal Representation: Those sentenced to death have the right to legal representation. If the defendant cannot afford a lawyer, the state must provide one.

Right to Review and Objection: Prisoners have the right to appeal to a higher court. This process allows for re-examination of evidence, potential crimes, and new information that may affect the decision.

Prevention of torture and violence, cruelty or violence: The Constitution prohibits torture or the use of torture. Cruel, inhuman or degrading treatment. This rule is especially important when it comes to the death penalty.

Victims’ rights: an often overlooked dimension

Although the focus is always on the rights of the accused, the rights of victims and their relatives must be recognized and protected. These rights include the right to information, the right to be heard, and the right to participate in proceedings. In addition, mechanisms to promote compensation and support for victims constitute an important part of the justice system.

Right to Compensation: Victims or their families have the right to seek compensation from the state or the perpetrator for the damages they have suffered.

Right to Information: Victims have the right to be informed about the progress of the case and important developments.

Right to Participate in Action: Victims may have the opportunity to express their opinions and concerns at a decision or hearing

Exceptions to the death penalty: Navigating the ethical quandary

While the ‘rarest of the rare’ doctrine establishes a formidable threshold for the imposition of the death penalty, there exist exceptional circumstances where this ultimate punishment may be deemed imperative. These encompass cases of terrorism, multiple homicides, and situations where the crime evinces an exceptional degree of brutality or depravity.

There is another exception to the death penalty in cases where the offender is below the age of 18 at the time of the offence. The Juvenile Justice (Care and Protection of Children) Act, 2015 prohibits the imposition of the death penalty on individuals who commit offences while they are juveniles. Instead, they may be subject to rehabilitation and other forms of punishment as determined by the Juvenile Justice Board.

Case laws and precedents

A critical facet of comprehending the constitutionality of the death penalty in India lies in an analysis of pertinent case laws and landmark judgments.

1. Bachan Singh v. State of Punjab (1980): Bachan Singh v. State of Punjab is a landmark case in Indian constitutional law that dealt with the constitutionality of the death penalty in India. The case was heard by a five-judge bench of the Supreme Court of India in 1980. In this case, Bachan Singh, a convicted murderer, challenged the constitutional validity of the death penalty because it violated his fundamental rights under Articles 14, 19, and 21 of the Indian Constitution. He argued that the death penalty was arbitrary, discriminatory, and violated the right to life and personal liberty. The Supreme Court, in its judgment, upheld the constitutionality of the death penalty but laid down certain guidelines for its imposition. The court held that the death penalty should only be imposed in “the rarest of rare” cases where the alternative punishment is unquestionably foreclosed. It stated that the death penalty should be imposed only when there is no alternative punishment appropriate for the crime committed. The court also held that the sentencing process should take into consideration both the aggravating and mitigating circumstances of the crime and the criminal. It emphasized that the death penalty should be imposed only if the collective conscience of society is so shocked that it demands the imposition of such a penalty. This judgment laid down the framework for the application of the death penalty in India and introduced the concept of “rarest of rare” cases as a threshold for its imposition. It also recognised that the death penalty should be an exception rather than the rule and be awarded only in exceptional circumstances.
2. Machhi Singh v. State of Punjab (1983): The case of Machhi Singh v State of Punjab is a landmark judgment by the Supreme Court of India in 1983, which laid down guidelines for the imposition of the death penalty. In this case, the court held that the death penalty should only be imposed in the “rarest of rare” cases where the alternative punishment is unquestionably inadequate and the collective conscience of society is shocked. The court also held that the death penalty should not be imposed on individuals below the age of 18 at the time of the offence, as it would be a violation of their fundamental rights. This decision was later incorporated into the Juvenile Justice (Care and Protection of Children) Act, of 2015, which prohibits the death penalty for juveniles and provides for their rehabilitation and reintegration into society.
3. Shatrughan Chauhan v. Union of India (2014): The case of Shatrughan Chauhan v. Union of India is another landmark judgment by the Supreme Court of India in 2014, which dealt with the issue of the death penalty and the rights of death row convicts. In this case, the court held that the prolonged delay in the execution of the death penalty amounts to cruel, inhuman, and degrading treatment, violating the fundamental rights of the convicts. The court emphasized that the right to life under Article 21 of the Indian Constitution includes the right to a dignified life, and the delay in execution leads to immense mental agony for the convicts. The court also directed that a review petition should be decided within six months from the date of filing, and if a mercy petition is filed, it should be decided within four months. Additionally, the court ruled that solitary confinement of death row convicts is unconstitutional and violates their fundamental rights. This judgment brought attention to the issue of prolonged delays in the execution of the death penalty in India and highlighted the need for reforms in the criminal justice system to ensure a fair and timely process for death row convicts.
4. Nirbhaya case (Mukesh Singh v. State (NCT of Delhi)): The Nirbhaya case, also known as the Delhi gang rape and murder case, refers to the brutal gang rape and murder of a 23-year-old woman on December 16, 2012, in Delhi, India. The victim, later identified as Jyoti Singh Pandey (referred to as Nirbhaya, meaning “fearless” in Hindi by the media), was assaulted by six men on a private bus she boarded with a male friend. The incident sparked widespread outrage and protests across the country, demanding justice for the victim and stricter laws against sexual violence. The accused were arrested and charged with multiple offences, including rape, murder, and kidnapping. The case received extensive media coverage, and the trial proceedings were held in a fast-track court to ensure swift justice. Eventually, all six accused were convicted and sentenced to death by hanging. The trial court’s judgment was upheld by the Delhi High Court and later by the Supreme Court of India. The Nirbhaya case played a significant role in bringing attention to the issue of sexual violence against women in India and led to widespread discussions on women’s safety, legal reforms, and societal attitudes towards gender-based violence. It also contributed to the enactment of stricter laws against sexual offences, including the Criminal Law (Amendment) Act, of 2013.

These cases and landmark judgments have profoundly influenced the legal landscape surrounding the death penalty.

The constitutional structure of India as an independent country begins with the Constitution of India, which was approved on January 26, 1950. The Constitution embodies the goal of justice, freedom, equality and fraternity. However, it still recognizes the sovereignty of the Indian state to exercise punitive powers, including the power to impose the death penalty. The death penalty law in India is very controversial; It affects legal, moral and human rights. Much of the legal debate about the death penalty in India revolves around Article 21’s ban on “cruel and unusual punishment”. These laws have given rise to much debate about the appropriateness of the death penalty as a form of punishment. Supporters argue that the term “cruel and unusual” should be interpreted according to today’s cultural standards. They argued that if the law provided for the death penalty, it could not be considered unconstitutional because it was an approved form of punishment. Instead, critics say changing moral norms in Indian society requires a re-evaluation of the death penalty. They argued that long periods of detention, often lasting several years, led to ill-treatment. Additionally, the possibility of an unfair trial brings with it the potential for cruel and unusual punishment.

A unique feature of the Indian legal system is that Article 72 of the Constitution gives the President the power to pardon, commute, postpone or commute sentences. This law provides a safety valve against the potential for miscarriage of justice in cases involving the death penalty. Critics say this decision-making power can be inconsistent and ineffective. They argue that a more formal and transparent process is needed to ensure the president uses his powers effectively. The issue of legality of death penalty in India is a very complex one that requires a good understanding of law, law and culture. While the Indian Constitution forms the basis of this debate, its interpretation continues to change with changing cultural and international norms. In this context, Indian law needs to participate in the ongoing debate on the death penalty. Valuing the importance of justice, the sanctity of life and changing the standards of justice is a job that requires attention and care. Finally, the legalization of the death penalty in India remains an important issue, reflecting a broader struggle to meet the needs of justice as well as the sanctity of human life in a democracy.

As India moves forward, it must reassess and adjust its approach to capital punishment in line with the spirit of the constitution and international human rights principles. This article attempts to detail the message of this conflict through an assessment of its historical course, the principle of “relevance of the rare” and a comprehensive analysis of legal documents. In the realm of justice, where the balance between life and revenge is struck, the debate over the death penalty remains a powerful and ever-changing discourse.

—The writers are second-year students of the KIIT School of Law, Bhubaneswar