The Death Penalty Dilemma - Justice Or Judicial Injustice

Author: LawSphereX

Category: General Law

Published: 2026-08-23T21:16:45.626756+00:00

Updated: 2026-08-26T17:05:54.395+00:00

THE DEATH PENALTY DILEMMA: JUSTICE OR JUDICIAL

INJUSTICE?

Layba Rana, Jamia Millia Islamia University, New Delhi Amaan Ahmed, Jamia Millia Islamia University, New Delhi I.

INTRODUCTION:

Imagine a courtroom where a single judgment decides whether a person lives or dies. The gavel strikes, and a life is condemned irrevocably. But what if the verdict was flawed? What if justice was not merely undermined, but compromised by procedural lapses or inadequate defence? The death penalty remains one of the most controversial punishments between the ideal of justice, and the real possibility of an incorrect execution being served. There are people who have argued it is required for the heinous crimes, but others have problems with fairness, finality, and their system's fallibility. The recent Supreme Court decision in Sovaran Singh Prajapati v. State of U. P. 1 brought up this debate again, as the court set aside a death sentence for an unfair trial. It has very important questions: Is there a way a bad system can justify an irreversible punishment?

Is capital punishment really a deterrent, or is it just a way for the state to get its revenge? The debate concerning the death penalty does not seem to cool down and it is crucial to analyse the legal framework and the judicial evolution of the death penalty in the United States, as well as trends in international practice while considering the pressing issues and possible reforms that could be made in order to render justice more fair and equitable. II.

CURRENT LEGAL FRAMEWORK OF CAPITAL PUNISHMENT IN INDIA

During the early years of independence, there were no rigid rules to decide when the death penalty should be applied. Judges enjoyed a great deal of discretion, and sentencing was unpredictable. The discretion for the first time faced challenge in Jagmohan Singh v. State of 1 Sovaran Singh Prajapati v. State of U.P., available at https://indiankanoon.org/doc/41463034/ (last visited Apr. 12, 2025).

Uttar Pradesh (1973),2 wherein the Supreme Court of India decided that capital punishment formed a part of the constitutional requirement and retained the right to life under Article 21 to not be absolute but rather subject to restraint through the due process of law. However, concerns regarding arbitrary sentencing remained unresolved. A landmark moment in the history of capital punishment was the case of Bachan Singh v. State

of Punjab (1980),3 where the Supreme Court formulated the 'rarest of rare' doctrine. This judgment was centred on the principle that the death penalty should be awarded only in exceptional cases where life imprisonment would not suffice. The Court reiterated that the crime itself as well as the criminal's background should be considered, thereby introducing a more structured approach to sentencing. In Machhi Singh v. State of Punjab (1983),4 the Supreme Court set further Bachan Singh's criteria and enumerated five classes of aggravating circumstances under which the death sentence could be given:

1) Manner of Commission – Excessive brutality, for instance, dismembering a victim or

burning the victim alive.

2) Motive – Sinister purpose, for instance, terrorism or honour killings.

3) Anti-Social Temperament – Crimes that shock social conscience, for example, the

Nirbhaya case.

4) Scope of Crime – Several murders, for instance, serial killings or mass murders.

5) Character of the Victim – Victimizing the vulnerable, for example, children or pregnant

women. With time, the courts have introduced more checks to make death penalty cases fair. In Mithu 2 Jagmohan Singh v. State of Uttar Pradesh, AIR 1973 SC 947, available at https://lawbhoomi.com/jagmohansingh-v-state-of-uttar-pradesh/ (last visited Apr. 12, 2025). 3 Bachan Singh v. State of Punjab, AIR 1980 SC 898, available at https://lawbhoomi.com/bachan-singh-v-stateof-punjab/ (last visited Apr. 12, 2025).

4 Machhi Singh v. State of Punjab, [1983] 3 S.C.R. 413, available at

https://digiscr.sci.gov.in/view_judgment?id=MTA4NTQ%3D (last visited Apr. 12, 2025).

v. State of Punjab (1983),5 the Supreme Court invalidated Section 303 of the IPC, which required a death sentence for life-term prisoners who committed murder and called it unconstitutional. The judiciary also refined its approach in Santosh Bariyar v. State of Maharashtra (2009)6, where it placed more emphasis on the fact that courts must show beyond doubt the inability to reform a convict before issuing the death penalty. The principle of procedural fairness was reasserted in Shatrughan Chauhan v. Union of India (2014), where the Court held that inordinate delay in mercy petitions amounts to breach of Article 21, and introduced commutation of death to life imprisonment. Recently in Mukesh & Ors. v.

State for NCT of Delhi (2017)7 (Nirbhaya Case) the Supreme Court upheld the death penalty in heinous cases of brutality that, according to the Court, offend the collective conscience of society. These decisions reflect a clear direction of a more gradual and thoughtful approach in capital punishment cases to ensure that the sentencing is proportional to the concepts of justice and constitutional protection. III.

THE GLOBAL SHIFT AWAY FROM THE DEATH PENALTY: LESSONS FOR

INDIA

At the global level, application of the death penalty has decreased by significantly large measures, with over 70% of nations abolish it either in practice or through law. 8 Capital punishment is entirely banned in the United Kingdom, Canada, Germany, and Zimbabwe is the recent example, while in others such as Russia and Sri Lanka there has been placed a moratorium on the use of the death penalty. China, Iran, Saudi Arabia, and the United States, however, still use it in the interest of deterrence and justice. Inter-state legal frameworks, including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), aim at the right to life and place limitation on using capital punishment.

The United Nations General Assembly has adopted a series of resolutions calling for all states to establish a moratorium on executions, reflecting a growing global 5 Mithu v. State of Punjab, AIR 1983 SC 473, available at https://indiankanoon. org/doc/590378/ (last visited Apr. 12, 2025).

6 Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498, available at

https://indiankanoon.org/doc/85295493/ (last visited Apr. 12, 2025).

7 Mukesh & Anr v. State for NCT of Delhi & Ors, AIR 2017 SC 2161, available at

https://indiankanoon.org/doc/68696327/ (last visited Apr. 12, 2025).

8 Countries with Death Penalty 2025, World Population Review, available at

https://worldpopulationreview.com/country-rankings/countries-with-death-penalty (last visited Apr. 12, 2025).

consensus against the practice. 9 The strongest argument against the death penalty is the potential for executing an innocent person. In the United States alone, more than 200 men and women have been exonerated from death row since 1973 because of judicial mistakes, demonstrating the fallibility of even the finest legal systems. 10The European Court of Human Rights (ECHR) has similarly found the death penalty to be inconsistent with human dignity and has contributed towards eliminating it in all EU member states. Meanwhile, China is still the world's largest executioner, although statistics are not disclosed. The United States has also declined in the rate of executions, with certain states banning or placing moratoriums against the death penalty on the grounds of racial discrimination, wrongful convictions, and as an inefficient deterrent.

India, being a retentionist country, still practices the death penalty under the "rarest of rare" principle. Yet, the Sovaran Singh Prajapati judgment and previous judgments indicate inconsistencies in punishment, procedural lapses, and socio-economic prejudices. The increasing international trend towards abolition poses a relevant question to India—should India re-examine capital punishment in the light of international human rights norms and changing legal minds? Whereas other countries are gravitating towards more humane alternatives such as life imprisonment, India has to balance the irreversibility of judicial mistakes and the moral implications of retaining the death penalty. IV.

ISSUES AND CHALLENGES IN GRANTING DEATH PENALTY

In Munna Pandey v. State of Bihar (2023)11, The Hon’ble SC ruled that A fair trial is one in which the rules of evidence are honoured, the accused has competent counsel, and the judge enforces the proper court room procedures - a trial in which every assumption can be challenged. A fair trial is a sine qua nine to Article 21 of the constitution of India. Holding the right to fair trial as a part of Fundamental right, referring to the International Laws, particularly Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political 9 UN Adopts Moratorium on Death Penalty, DPIC, https://deathpenaltyinfo. org/united-nations-overwhelminglyadopts-resolution-calling-for-global-moratorium-on-the-death-penalty. 10 U. S. Reaches 200th Exoneration from Death Row, FD. org, available at https://www. fd. org/news/us-reaches- 200th-exoneration-death-row (last visited Apr.

12, 2025).

11 Munna Pandey v. State of Bihar, [2023] 11 S.C.R. 1005, available at

https://digiscr.sci.gov.in/view_judgment?id=MzQ5MDY%3D (last visited Apr. 12, 2025).

Rights (ICCPR) and Rome statute which ensure that there should be fair trial and representation to the accused irrespective of the fact that the accused has committed gravest and most heinous crimes, The SC in Sovaran Singh Prajapati v. State of U. P. ruled that even if the most gravest and the most heinous crimes has been committed against the humanity as a whole, in the instant case murder, an accused is entitled to basic protection of law. Moreover, the court emphasized that in cases of capital punishment highest standards of procedural fairness must be met. In current Scenario Indian judicial system is adopting a justice centred approach to bring reforms in the behaviour of the accused instead of retributive theory application that seeks “eye for an eye” or “tooth for a tooth”.

But the main problems comes when society and the family of victim does not get ready to accept the reformative approach in the accused behaviour instead they want accused to be met with the capital punishment. This is one of the challenges that judicial system faces while implementing new penal laws that seeks the reform in the accused. Don’t you think that taking some one’s life in one stroke is the most gravel act of humanity? Is this possible that giving an accused the capital punishment would make him or her feel guilty of his or her act? Does the capital punishment really serve the purpose of deterrence in the society? Is this the only way to demand justice from the judiciary? What if the accused has not gone under the fair trial and because of that he or she would be deprived of his life that if once taken, cannot be compensated again?

To ensure the fairness and justice, there are various sections in BNSS that deals with capital punishment. Sections 393(3) of BNSS states that to pass the order for death sentence, a judgement must prove special reasons for granting death sentence. 12 The provision ensures that capital punishment should not deprive a person of right to life guaranteed under article 21 unreasonably. However despite having too much of codes, statutes, treaties, conventions and laws, the crime rate vis-a-vis death punishment are increasing. Main problems before the system are lack of fair trial of the accused, pending the suits before the courts for long years, pending the mercy petitions, etc. Because of all these issues, Indian Criminal Justice System has not been successful to deter the most offenders for the commission of most heinous and brutal crimes in the society.

As per the report of Project 39A 76% of prisoners sentenced to death in India belong to backward classes and religious minorities. Even 23% prisoners who are awarded death sentence has never attended the school. 13 Also, the highest 12 Section 393 in Bharatiya Nagarik Suraksha Sanhita, 2023, available at https://indiankanoon. org/doc/9652317/ (last visited Apr. 12, 2025). 13 Three in Four Death Row Convicts from Vulnerable Sections: Report, The Economic Times, available at https://economictimes. indiatimes. com/news/politics-and-nation/three-in-four-death-row-convicts-fromvulnerable-sections-report/articleshow/52159611. cms (last visited Apr. 12, 2025).

number of death sentence are awarded in trial courts which are reduced by the High Courts and Supreme Court. In Bachhan Singh case the “rarest of rare doctrine” has been propounded which states that only in cases of most heinous and grievous criminal act, considering the mitigating and aggravating factors and analysing that death sentence is the only sufficient punishment and no other form of punishment would suffice, then death sentence should be awarded. Life imprisonment is the highest form of punishment as death sentence can only be imposed where special circumstances exist. As per the report of Project 39A of National Law University Delhi, the trials courts of Maharashtra, Madhya Pradesh and Delhi have barely considered the option of life imprisonment and went on to impose capital punishment.

14 In cases where life imprisonment was seen as an alternative, were later on dismissed on the grounds of brutality of crime. There always have been issues and challenges while awarding death sentence to the accused, Indian criminal justice system is now focusing on granting justice to the parties rather than penalising the party. V.

REFORMS IN THE CRIMINAL JUSTICE SYSTEM: ALTERNATIVE TO

CAPITAL PUNISHMENT

Is the death penalty a means of justice or just a way to satisfy revenge? This question is giving rise to demands for reforms in the criminal justice system worldwide. Some believe that the death penalty is an effective way of deterring crime, but statistics and judicial rulings contradict this. According to statistics from the Death Penalty Information Center (DPIC), states in the U. S. without the death penalty have consistently lower rates of murder compared to states with capital punishment. Over the past 20 years, the murder rate in states that apply the death penalty has been 48% to 101% higher, indicating that this harsh punishment is not effective in deterring crime. 15 Many flaws have been observed in the implementation of the death penalty—wrong decisions, economic and social discrimination, and lack of fair trials.

In such a scenario, there is a need for a more humane and effective justice system. Many countries, including India, should now reconsider their policies and adopt alternatives based on reform, crime prevention, and fairness of justice, rather than irreversible punishment. 14 Death Penalty Sentencing in Trial Courts: Delhi, Madhya Pradesh and Maharashtra (2000–2015), Project 39A, available at https://www. project39a. com/dpsitc (last visited Apr. 12, 2025). 15 Gap Between the Murder Rate of Death Penalty States and Non-Death Penalty States Remains Large, Death Penalty Information Center, available at https://deathpenaltyinfo. org/gap-between-the-murder-rate-of-deathpenalty-states-and-non-death-penalty-states-remains-large (last visited Apr. 12, 2025).

A preferable option to the death penalty would be life imprisonment without parole (LWOP).

It can keep violent offenders behind bars and avoid the risk of mistakenly executing the innocent. Death Penalty Information Center (DPIC) research in America indicates that the states that abolished the death penalty did not witness increasing crime rates. Likewise, most European nations made the death penalty illegal and replaced it with imprisonment for life but regulated the crimes as well as the protection of human rights. The Indian Supreme Court held in the case of Santosh Kumar Bariyar vs. State of Maharashtra (2009) that the death penalty award shall be unjustified except where an offender is proved to be an unreformable criminal. This conforms to the global trend in favour of the reforms and rehabilitations. Additionally, restorative justice can also be a principal choice, which is more rehabilitative in character rather than punishing the crime.

Such measures involve the likes of victim-offender communication, community work, and counselling rehabilitation schemes. For instance, Norway's penal system is devoted to rehabilitating criminals, with their recidivism rate remaining at 20%, whereas for India, the recidivism rate is up to 50%. 16 In the case of Soveran Singh Prajapati vs. State of Uttar Pradesh (2025), India has taken steps towards adopting a justice-centered approach, but further reforms are needed to prevent wrongful decisions and uphold the values of the constitution. Through reforms such as resolving pending cases, clarity in judicial discretion for sentencing, and equitable access to efficient legal assistance, India can also move towards an advanced and just criminal justice system on a global level, which is not merely punitive but transformative. VI.

CONCLUSION

The debate over death penalty always remains a most contentious and complex issue, which according to few, deter the criminals from committing further crimes, however there is no evidence of it, but according to some countries and Amnesty International death penalty is the ultimate cruel, inhumane and degrading punishment and therefore opposed in all cases without any exception. Amnesty international holds that capital punishment breaches the International laws on Human Rights, right to life and right to live free from torture and cruel treatment. Despite long efforts by the international organisations to abolish the death penalty, it has been abolished in some countries and at the same time, is not only prevalent, but count highest in 16 Norway, World Prison Brief, available at https://www.prisonstudies.org/country/norway (last visited Apr. 12, 2025).

numbers in countries like China, Iran, Saudi Arabia, Somalia and USA. Although international law says that death penalty should be restricted to some most heinous crimes like intentional killing but Amnesty International reject this too. The courts in India hve agreed with the former international law and restrict the death penalty to the cases which fall under “the rarest of rare doctrine” (Bachchan Singh case). In recent ruling of Swaran Singh Prajapati v State of U.P. the Hon’ble Supreme Court held that every person accused of heinous crimes entitled to basic protection of Law. Therefore, while applying the rarest of rare, fair trial should be done.