1. Abstract
As per the Bhartiya Nyaya Sanhita, 2023, there are several criminal offences, performance of which gives effect to penalties of death. However, in all those offences, the relevant courts have been given the discretion to impose wither life imprisonment or death sentence with fine. The debate related to death penalty as a punishment for offences has always been under scrutiny of law students, advocates and jurists mainly because of the anomalies and confusion associated with it. This article aims to address these confusions by method of doctrinal research which compares parts of works and opinions of eminent jurists of the legal jurisprudence.
2. Introduction
Judicial discretion in death penalty adjudication is inextricably linked with constitutional mandates, moral challenges, and international human rights norms. Bachan Singh v. State of Punjab (1980), which articulated the "rarest of rare" doctrine as a bulwark against arbitrary capital punishment. While the said judgment sought to establish principled checks, subsequent judicial perceptions have revealed contradictions, demonstrating the continuity of tension between normative principles and real adjudication.
The question is not that whether death penalty has a deterrent effect on potential murderers or not, but whether it is more deterrent than other forms of criminal punishments. If it is, what is the evidence?
Is there no close substitute to death penalty which has the same or close effect that it poses on the society?
Death penalty is not a fair interpretation for ‘just punishment’ which the retributive theory describes. Retributive theory advocates ‘tooth for a tooth and eye for an eye’. It can be very well construed as, ‘giving a “just” punishment for a horrendous crime which has impacted the society’ and it does not merely imply ‘kill for a killing’.
Therefore, the question arises if the death penalty is a just punishment or not, for murder. For there can be other punishments like a life sentence or rigorous imprisonment for 14 to 20 years depending upon the type of crime and peculiar facts and circumstances of each case.
3. Law
The former penal law of India, Indian penal Code, 1860, contained death penalty for a number of offences, including, but not limited to, Section 307(2) covers attempted murder by a life convict; additionally punished by death are terrible crimes such kidnapping for ransom (Section 364A), dacoity with murder (Section 396), and criminal conspiracy (Section 120B). Following the “rarest of rare” theory, these clauses are meant to preserve justice and society order Local and special laws expand the death sentence’s relevance to certain situations and offences, therefore addressing particular crimes. These contain:
1. Commission of Sati (Prevention) Act 1987
2. Narcotic Drugs and Psychotropic Substances Act 1985
3. Arms Act of 1959 (Amended 1988)
4. Air Force Act, 1950; Navy Act, 1950
5. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.
6. Act on Unlawful Activities Prevention 1967
The Bhartiya Nyaya Sanhita, 2023 has included 4 new offences which penalize them with death such as mob lynching, gang rape of girl under 18 years, rape of minor, terrorism and organized crime. 11-15 more offences have been assigned with death penalty.
4. Morality
The death penalty is not the final penalty for murder, as horrendous as one may imagine. The society does not necessarily require, but demands death as the penalty for the criminal. It is believed widely that a horrible crime like murder deserves emphatic denunciation which can be brought by death penalty, which, in turn serves as deterrent for the possible future criminals. However, the question remains, “why should deterrence take form of death of the murderer?” Prof Hart, in his essay titled “Prolegomenon to the Principles of Punishment” in the book titled “Punishment and Responsibility: Essays in the Philosophy of Law" has pointed out the dangers of accepting death as punishment on moral, symbolic and merely ritualistic basis rather than on the ground of social justice.
Morality means what the society thinks is moral. It may mean different in different societies, which is more or less influenced by the kind of history, tradition and culture a particular society has. For example, it is morally invalid in Jain community to eat non veg whereas of is a common religious practice in Islam to butcher goats on important religious festivals. Similarly, contemporary Indian society is a result of multiple intercultural relationships and conflicts of the past, showcase shared cultural identity and diversity. However, the idea of morality pertaining to death sentence as seen in the history of judicial developments seems to be similar as per the majority opinion.
In a study conducted in 2021, when asked if the death penalty should be used for violent crimes against children, over 60% of the participants either agreed or strongly agreed to it. Similar favorability is also seen for punishment of murder crimes through capital punishment.
Arguments regarding death penalty from a point of view of morality:
A. Deterrence:
Sir James Fitz James Stephen, a great Victorian Judge and a vigorous exponent of the deterrent theory said in his Essay on Capital Punishment :
"No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity of producing some results.... No one goes to certain inevitable death except by compulsion. Put the matter the other way, was there ever yet a criminal who when sentenced to death and brought out to die would refuse the offer of a commutation of a sentence for a severest secondary punishment? Surely not. Why is this? It can only be because 'all that a man has will be given for his life'. In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly."
The death penalty is considered widely as an act which can deter other possible future criminals from committing something similar. It argues that men fear from the fact that a particular act can cause their instant death and hence due to that fear of death, they will not commit such an act. Death penalty is irrevocable form of punishment, which once given, leaves no room for reformation or pardons. It can never be reversed. Hence it is one such final form of penalty which definitely has the potential to end crime from its root.
However, there is no evidence as of now which can boldly declare that mandatory death penalty definitely reduces crime. But it can be said without hesitation that compulsory capital punishment causes obstruction in proper administration of criminal justice. In his argument, Stephen doesnot make a distinction between immediate death and possibility of death in the future. Capital punishment is just the latter, which is a major reason as to why death penalty has low deterrence effect.
B. Denunciation
The denunciatory theory of punishment is only a different shade of the retributive theory but from a sternly moral plane. Lord Denning advanced the view before the Royal Commission on Capital Punishment:
"The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. The ultimate justification of any punishment is not that it is a deterrent but that it is the emphatic denunciation by the community of a crime, and from this point of view there are some murders which in the present state of opinion demand the most emphatic denunciation of all, namely the death penalty.... The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not."
Whenever any case of murder grabs media attention, it mostly divides the internet (the public) into two halves: musts and must nots. More than half the people support capital punishment and the others support commutation of sentence pertaining to age, psyche, circumstances etc of the case. Obviously, it is for the court to decide, the punishment to be given. Law and society are interlinked and none can evolve without the intervention of the other. The theory of denunciation states that the criminal deserves to be dead. Whereas, it ignores the fact that public condemnation can also be done in other forms and death is not the only solution. As Prof. Hart points out that just as human sacrifice is to the idea of righteousness, death penalty is to the passion of the society to emphatically express their condemnation towards a horrendous crime.
C. Retribution
According to traditional retributivist, the theory essentially borrowed the biblical words ‘an eye for an eye and tooth for a tooth’ and interpreted it to mean ‘kill for a kill’. However, this is a narrow view. It may give closure to the family of the victim but it cannot provide complete justice.
According to a modern exponent of the retributive theory of justice:
"capital punishment ... is without foundation in a theory of just punishment. Indeed one could go further and assert that capital punishment is antithetical to the purposes and principles of punitive sanctions in the law. Requital, when properly understood in terms of a concept of just law, undoubtedly does have a legitimate role in punishment. However, neither requital nor punishment in general is a returning of evil for evil, and, therefore, I see no support for the demand that a murder (or an act of treason, or some other serious offence) be paid for with a life.
5. Reform
“Every saint has a past and every sinner a future, never write off the man wearing the criminal attire but remove the dangerous degeneracy in him, restore his retarded human potential by holistic healing of his fevered, fatigued or frustrated inside and by repairing the repressive, though hidden, injustice of the social order which is vicariously guilty of the criminal behaviour of many innocent convicts. Law must rise with life and jurisprudence responds to humanism.”
The above observation of Justice Krishna Iyer in Bariyar case seems to advocate for the reformist view of punishments. The reformists believe that there is good in every person and only the situations compel them to do certain acts. The have nots are the ones generally who are compelled by their condition and situations to take inhumane steps and resort to illegal ways of earning. So, the burden of capital punishment falls more frequently upon the impoverished and the underprivileged. In the words of Marshall, J.: "Their impotence leaves them victims of a sanction that the wealthier, better represented, just-as-guilty person can escape. So long as the capital sanction is used only against the forlorn, easily-forgotten members of society, legislators are content to maintain the status quo because change would draw attention to the problem and concern might develop. Ignorance is perpetuated which becomes the mate of apathy and we have the today’s condition.”
The greatest deterrent of crime is not the fear of punishment but of detection. Hence deterrence theory can be rule out like retributive theory. The criminal law all over the world is so peculiar that each case is unique in its circumstances and never once can the same laws be applied in similar sense, interpretation and fashion. Hence the elements of situations pertaining to death penalty imposition cannot be packed in watertight compartments. The Apex Court itself, voiced its concern regarding such unregulated vesting of discretion in the matter of Ediga Anamma v. State Andhra Pradesh. In the said matter, the Apex Court noted the following in paragraph 26 of the judgment:
“a legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out life.”
6. Conclusion
Death penalty instead of deterring the crime deters the administration of criminal justice.
A series of cases in India in 2025 such as Raja Raghuvanshi murder case, Meerut blue drum murder, RJ Kar hospital gang rape case, Lakhimpur kheri violence and murder case, Auraiya’s killer bride, Kanchan Kumari (Kamal Kaur Bhabhi’s) murder case (Punjab’s influencer’s murder and killer’s open claim to the crime, along with threats to other influencers as well, surprisingly gaining more support from the public than condemnation), Sidhu Moosewala’s murder, constant death threats to Salman Khan, murder of Baba Siddique and an ample number of murders which have occurred are a testimony to the fact that no matter how many offences now may have death penalty as a form of punishment under the BNS, 2023, it does not deter the criminals from carrying out horrendous crimes, simply for the reason that criminal justice system and its administration in India are in a dire need of reform, of summary proceedings and stringent punishments, which have a role in real life and not only in the bare acts.