2023 NOV 17

Mains   > Polity   >   Judiciary   >   Criminal justice system



GS-2: Polity: Criminal Justice System


Recently, the parliamentary committee that examined the Bharatiya Nyaya Sanhita (BNS), the proposed criminal statute likely to replace the IPC, has not made a recommendation to abolish the death penalty.


  • Capital Punishment is the most severe form of punishment. It is awarded for the most heinous, grievous and detestable crimes against humanity.
  • After independence, India retained several laws put in place by the British colonial government on capital punishment, which included the Code of Criminal Procedure, 1898 and the Indian Penal Code, 1860.
  • The death penalty has been recorded highest in 2022 in the last two decades.



  • Article 21 of the Constitution:
    • Article 21 ensures the Fundamental Right to life and liberty for all persons. It adds no person shall be deprived of his life or personal liberty except according to procedure established by law.
    • This means that if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.
  • Provisions in Indian Penal Code:

Sl No.

Section No.



Section 121

Treason, for waging war against the Government of India


Section 302



Section 364 A

Kidnapping for ransom


Section 376 A

Rape and injury which causes death or leaves the woman in a persistent vegetative state


Section 396

Dacoity with murder


  • Provisions in Code of Criminal Procedure, 1973:
    • The CrPC of 1973 introduced the possibility of a post-conviction hearing on sentence, including the death sentence. Also, judges need to provide special reasons for why they imposed the death sentence.
  • Other laws:
    • The Defence of India Act, 1971
    • The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989
    • The Unlawful Activities Prevention Act, 1967
    • The Army Act, 1950
    • The Narcotics Drugs and Psychotropic Substances Act, 1985


  • Deterrence: Proponents of capital punishment believe the death penalty's most significant benefit is deterring potential criminals from committing murder.
  • Proportional to the crime: Justice demands that courts should impose punishment befitting the crime. Hence, proponents argue that such harsh penalty is needed for criminals who have committed the worst crimes like terrorism and rapes.
  • Moral argument: Supporters of the death penalty believe that those who commit heinous crimes have forfeited the right to life. Furthermore, capital punishment is a just form of retribution, expressing and reinforcing the moral indignation of law-abiding citizens.
  • Brings closure: Death penalty can bring about closure and solace to victims’ families and help them to move on from the ordeal.
  • Aids investigation forces: Where the possible sentence is death, the prisoner has the strongest possible incentive to try to get their sentence reduced. Hence, they would be more willing to cooperate with the investigation.
  • Saves public money: Proponents argue that death penalty would save public money which would otherwise be spend on a convict’s healthcare, education and rehabilitation.


  • Moral issue: Every person has the right to live and death penalty violates this right.  
  • Questionable effectiveness: The main goal of death penalty is to act as a deterrence. However, there is no conclusive proof that death penalty acts as a better deterrence than the threat of imprisonment.
  • Global aversion: Countries are increasingly abolishing capital punishment. Also, several resolutions of the UN General Assembly have called for a moratorium on the use of the death penalty.
    • Ex: Over 140 countries have abolished the death penalty, Papua New Guinea being the latest.
  • Execution of the innocent: Execution is the ultimate, irrevocable punishment. As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.
  • Failure of the state: State is an institution created by man to protect life. By giving death penalty for crimes, the state finds an easy way to escape from its duties. Also, the authorities in some countries use the death penalty to punish political opponents.
  • Retributive vs Reformative justice: The laws and precedents believe in reforming the convicts and regulating them to release back into the society. However, death penalty is only a sanitized form of vengeance. The facet of reform and rehabilitation is nullified by the prospect of capital punishment.
  • Disparate impact on vulnerable groups: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds.
    • Ex: As per the Death Penalty India Report 2016, 75% of all the prisoners sentenced to death in India belong to socio-economically marginalized communities, including Dalits, OBCs and religious minorities. It also found that over 62 % of them had not completed secondary school, and around 23% had never been to school.
  • Inordinate delay: Due to administrative reasons, the execution of death penalty is inordinately delayed by years, often resulting in commutation of sentences. This creates mental agony for the convicts, victims, and their families besides undermining people’s faith in the judicial system.
  • ‘Rarest of rare’ principle: It is difficult to distinguish cases where the death penalty has been imposed from those where the alternative of life imprisonment has been applied. Also, death penalty is awarded in an increasing number of cases by lower courts.
  • Cost of death penalty: Many people believe that the death penalty is more cost-effective than imprisonment for life. In reality, studies have found that death penalty’s complexity, lengthy trials, and appeals make it much more expensive than imprisonment.


Bachan Singh v. State of Punjab, 1980:

  • The Supreme Court upheld the constitutional validity of the death penalty. It also held that the normal sentence for murder should be imprisonment for life, and that only in the ‘rarest of rare cases should the death penalty be imposed.

Jagdish vs State of Madhya Pradesh (2009):

  • Supreme Court ruled that the government’s failure to decide a mercy plea within a reasonable timeframe can be a ground for commuting the death penalty to life imprisonment.

Shatrughan Chauhan v. Union of India (2014)

  • No solitary confinement prior to rejection of mercy petition by the President
  • The prisoner is entitled to legal aid under Article 21 until his last breath and rejection or no rejection by the President of his plea does not take away that right.
  • An elaborate procedure in placing the mercy petition before the President and proper communication in case the petition is rejected.
  • Minimum 14 day notice for execution
  • Regular mental health evaluation of all death row convicts and appropriate medical care should be given to those in need. Prison authorities should facilitate and allow a final meeting between the prisoner and his family and friends prior to his execution.


Limited imposition of death penalty:

  • Judges should not be swayed in favour of death penalty merely because of the dreadful nature of the crime and its harmful impact on the society. They should equally consider the mitigating factors in favour of life imprisonment.

Create timelines:

  • There should be a time limit in deciding mercy petitions by the President/Governors and for filing curative petitions. Strict adherence to time limits would help in increasing the efficiency of judicial process, without compromising legal avenues available for the convicts.

Reform criminal justice system:

Rethink on capital punishment:

  • The Law Commission in its 262nd Report has called for the abolishment of the death penalty in all cases except for those relating to terror cases.

The debate around the death penalty in India is complex. It involves balancing the need for justice and deterrence with ethical considerations and the inherent value of human life. A multifaceted approach, encompassing legal reforms, societal change, and a deeper understanding of criminal behavior, seems imperative for a more humane and just system.