Legal and Moral Scope of Death Penalty in India: An Appraisal

Author: Neha More, DES Shri Navalmal Firodia Law College, Pune 

In India, capital punishment is still an emotionally charged issue, with death penalty laws  having their own set of issues. This article focuses on the law surrounding the death penalty  in India, its history, and the ethics involved. It reviews significant judicial opinions and  theorizes how these legal opinions have declined the practice of capital punishment in India.  By focusing on the case law, on statutory provisions, and on the other jurisdictions of laws,  the paper persuades for the re-examination of capital punishment based on the compliance to  the human rights regime and the emerging evidence that it is an ineffective approach. The  research takes a qualitative approach, looking at existing legal frameworks and human rights  reports to interpret the situation in the context of recent developments.  

Death Penalty, India, Constitution, Human Rights, Deterrent, Moral Questions 

Death penalty has a tradition in Indian law as it inherited from British colonialism and has  existed after independence. While the Indian constitution entails a protection of one's life as  per the Article 21, it allows for a condition's capital punishment. This line of legal  developments was changed by Bachan Singh v. State of Punjab which brought the ‘rarest of  the rare’ doctrine as per which the death penalty would be awarded only for the ‘rarest of the  rare’ kind of crime committed. But as mentioned earlier there are legalities expanding the use  of the death penalty in several states, and moral and ethical issues regarding the fairness and  effectiveness of the death penalty as punishment still prevail. This paper aims at striving to  discuss and analyse the legal aspect of death penalty and its role in the Indian society and  most generally, its impacts on the scope of human rights. However, despite the overall  situation of the country, there is a trend in the past few years and interest in the institution of  capital punishment. For instance, Bhat (2002) and Verma (2008) have given their emphasis  towards the inability of the law in handling the death penalties case in an effective manner  and toward ineffective in addressing the concern relating to the weaker sections of society.  From the words of Justice S. A. A. M. Gaud about Singh’s case, there appears the  counterview. He said that capital punishment was only carried out for ‘the rarest of the rare’  cases. That provision has been the object of considerable critique: some of the scholars  including George (2015) have described it as whimsical and substantively relativistic.  HUMAN RIGHTS ORGANIZATIONS JUSTIFICATION Most human rights organizations  like Amnesty International have been against the death penalty on the grounds that it is  anthropologically degrading and that use of the death penalty may lead to wrongful  convictions.  

Such developments, over the recent past, have the appearance of indicating that India’s  application of the death sentence is trending in the same direction as other countries. Whether  this is going to take some form of abolition of killing in Indian society – the barbaric cruelty  or is about a lesser number of legal killings – are the various potential scenarios for the not-too distant future. The Supreme Court has demonstrated the willingness to consider extenuating  circumstances when searching for defendant mens rea in Khandwa’s case though as will be 

seen. Also striving to change the direction of the capital punishment discussion in India, is  the international anti-death sentence campaign led by competition by Amnesty International.  

The research used qualitative research methodology which focused on key cases, enabling  statutes and secondary sources from the opinions of legal as well as human rights scholars  together with government documents. Some of the main data sources are the judicial  precedents comprising decisions of the Indian Supreme Court in Bachan Singh v. State of  Punjab (1980) and Machhi Singh v. It may be seen from the State of Punjab (1983) and  several reports by Project 39A among others. The analysis of the data is done interpretively  with consideration of the issue of fairness and deterrence as well as human rights.  

Legal framework as well as procedural issues.  

The Indian law concerning capital punishment is specified in the IPC; refined by the Supreme  Court of India and is the current governing legal regime. The most important of these is  Bachan Singh v. Cite as State of Punjab (1980) where the Constitution of the United States of  America was held not violated on review jurisdiction and laws for enforcement of the death  penalty were made. It was to delimit the death penalty that by the provision of the rule of “the  rarest of the rare” The explanation of the rule of “the rarest of the rare” was made known to  restrict the death penalty to the exception. But as noted by Project 39A (2020), which is an  independent, nationwide data review of death penalty cases, the position is rather worrisome  in terms of disparity, where people of the underprivileged background are awarded death  penalties. However, it does put the procedural requirements of the capital punishment  process as another significant issue because they do cause hours and days of sitting on  desolated rows, weeks and sometimes years of waiting.  

The recent judgments delivered by the honorable Supreme Court of India establish that  the tendency to apply the death penalty is now met. For example, in the case of Service of Shankar Kisanrao Khandwa v. State of Maharashtra (2018) the Supreme Court of India  reviewed the death penalty and reduced it saying it could not justify the killing of the  defendant due to lack of clarity if the defendant intended to kill someone. In the case of  Manoj & Ors. v State of Madhya Pradesh (2023), the Supreme Court of India affirmed that  all the sentences must be sufficiently individualized and it must be seen how death came to  the defendant, his background and other less serious factors.  

Morality and Ethics The key moral concerns that come with a death penalty stay highly  charged and most often come with several dilemmas. The primary arguments used in this  ethical case in support of the campaigns for the death penalty repeal principally rely on the  irrevocable nature of the penalty and the possibility of occasional mistakes Being made in the administration of Justice. That is why in countries where there is this type of possibility to  make mistakes, like in the case of the Rajiv Gandhi Assassination Case, accused respondent,  is an alibi for the death penalty’s morals. The result shows that those countries who have  removed the above law have not experienced any rise in crime because of their action since  the death law was the law that did not help in the prevention of crime, instead it was  encouraging crime. Judicial Trends The other movements in the case of Indian Society seem to  be Judicial Reluctance and Sentencing Discretion. Based on trends that have been witnessed  in the recent past the Indian courts seem to have developed a more conservative approach in  the delivering of the death penalty. The concern of the Indian supreme court in recent years  has hence been on imposition of sentencing and the purpose of the sentencing; for instance:  etiology of the accused, and how the community in which the accused is from has helped or  not to change him/her. The Court did reject the death penalty but rejected the pre-t Fetish of  the defendant for murder, Khandwa v. Shankar Kisanrao State of Maharashtra (2018). The  stress on the individualization of the punishment also seems to presage a stronger willingness  to adopt a new, more liberal and compassionate approach to the carrying out of the death  penalty.  

Main issues: the diminished respect for the death penalty especially in the United States of  America and the United Kingdom has negative effects on the evolution of the international  human rights legal system. The following areas are being witnessed having warranted an  even greater focus within the Indian polity concerning the questions of human dignity and the  constitutional licensing of taking a life in correlation with the broader dictation of liberty owed  to a person. Also, it should be mentioned that though the Indian courts are also looking at the  trends towards abolition that are increasing at the present world level, the increasing focus on  the rights of a person mitigates the Court to a certain extent from the vindictive view when  considering capital punishment. In Manoj & Ors. v. State of Madhya Pradesh (2023) this  reliance from the court on this key factor would result in an expanded doctrine of  constitutionalism that would recognize and uphold human rights norms.  

India continues with the tradition as one of the few Asian countries to administer the death  penalty. However, the emerging new social movement agenda for the total elimination of  capital punishment does appear to have impacted the domestic debates on the death penalty.  The trend is being increasingly promoted also by intergovernmental organizations,  especially the UN, with the latter has called for the complete eradication of the death penalty in  every country across the world. So, it does not come as a shock to observe that there is a  change in the trend of eradicating such an intense form of punishment entirely or allowing  using it just under certain limitations which have well played out in India.  

However, one can outline that there are clear signs of the fact that the death penalty de facto  is legal within the framework of India’s legislation; however, numerous inconsistencies and  prejudices distinguishing its usage and application are observed. To limit the application and  

use of this defense, it was referred to as the ‘rarest of the rare Kind’, Despite this, the  guideline has not been followed to the letter. The last few years have seen a curious  development where judges have become more compassionate and considerate towards  defendants, many are now aligned to the thought that a big factor could be defendant’s 

upbringing or emotional past. This retribution directs the moral aspect of capital punishment,  wondering how good or bad some individuals are and where their character goes. Even more  concerning, there is no evidence that could suggest that capital punishment has a higher  likelihood of preventing crime than life imprisonment.  

The work mainly relies on literature, case reports, and articles. This research also does not  spend a lot of effort addressing social and political implications of the death penalty, it could  encompass use and in fact approval within the society. Furthermore, this study provides no  direct fingerprint regarding the effect of the death penalty as a deterrent that might be useful  in extending the conversation.  

So, this work contributes to the understanding of capital punishment in India, which should  upgrade its legislation related to the provision of justice and fair trial. It stresses on the  necessity to have in mind direction in which the development of jurisprudence as well as the  idea of human rights is evolving. The results would be useful to lawyers, policymakers and  human-rights advocates interested in the reform of the death penalty in India.  

Stepping down from a prehistoric legal source, the death penalty in India is entangling itself  in a/layer of legal and ethical issues alongside some trends that shows its application has been  used less frequently than before. In this way, evident concern was made with the reliability of  the availability of evidence for one day innocent lives can be eliminated. Thus, by placing so  many of the variables in context, the paper proposes that Capital punishment in India  requires conceptual and analytical attention more than ever before due to the ongoing  changes in the Legal and Human rights frontiers of the world.  

1.  K. G. Badal Singh v. The State of Punjab, 898 (1980) 2 SCC 483 at 506 A.I.R. 1980 SC  898.  

2. Alok, S., V. S. B., S. D, J., Bhatia, Kumar, N. & Tessaro, F (2020). Death Penalty India  Report. Delhi: Project 39A NLU Delhi.  

3.  Kumar, A., Dutta, S. & Kumari, S. (2020). Death Sentences and Executions 2020. Getting  the Attention Back on Amnesty International. 

4. Amit, K. & Singh, R. R. (2018). Death Penalty in India: A critical examination, 64(1), 145- 156. THE CAUSES OF THE USE OF THE DEATH PENALTY IN DEATH PENALTY.