Death Penalty In India: Constitutional Validity, The Rarest Of Rare Doctrines, And The Case For Reform
Jatin Malhotra, B.B.A LL.B., Bharati Vidyapeeth University
ABSTRACT
The death penalty occupies a contested and constitutionally fraught position in Indian law. As one of the few remaining democracies that continues to retain capital punishment, India has developed a sophisticated yet inconsistently applied judicial framework for its administration, centred on the landmark doctrine of the ‘rarest of rare cases’ formulated by the Supreme Court in Bachan Singh v. State of Punjab in 1980. This paper examines the death penalty in India across four principal dimensions. First, it traces the historical and legislative evolution of capital punishment in India, from the colonial-era Indian Penal Code through to the Bharatiya Nyaya Sanhita of 2023, which preserves the death penalty for a range of offences. Second, it analyses the constitutional framework governing the imposition and review of death sentences, including the foundational validity inquiry conducted in Jagmohan Singh and Bachan Singh, the procedural requirements flowing from Article 21, and the clemency jurisdiction of the President and Governors under Articles 72 and 161. Third, it critically examines the application of the rarest of rare doctrine in practice, focusing on the acknowledged problem of inconsistency in sentencing, the emergence of the Macchi Singh categories, and subsequent corrective decisions including Bariyar, Swamy Shraddananda, Wasnik, and Shatrughan Chauhan. Fourth, the paper considers the normative arguments for and against retention of the death penalty, drawing on the Law Commission’s 262nd Report of 2015, international human rights law including Article 6 of the International Covenant on Civil and Political Rights, empirical findings on the socio- economic profile of death row prisoners from Project 39A, and comparative experience from the United States and abolitionist jurisdictions. The paper concludes that while the death penalty is currently constitutional as a matter of positive law, the cumulative evidence of arbitrary application, irreversibility, and the absence of a demonstrated deterrent effect provides a compelling normative case for restricting capital punishment to the narrowest category of offences, consistent with the direction recommended by the Law Commission of India.
Keywords: Death Penalty; Capital Punishment; Rarest of Rare; Bachan Singh; Constitutional Validity; Sentencing Reform
