Custodial Death in India: Legal Framework, Accountability, and Reforms

This Blog is Written by Mansi Pal, 4th Year, B.A. LLB, JIMS EMTEC, GGSIPU.

Blog 03 | Edition VIII

The death penalty has long remained one of the most contested and emotionally charged issues within India’s criminal justice system. Although the Constitution, under Article 21, guarantees the right to life, the State continues to retain the power to impose capital punishment in exceptional circumstances. Despite the Supreme Court’s adoption of the “rarest of the rare” doctrine, concerns such as arbitrary sentencing, judicial errors, and prolonged delays in mercy petitions continue to raise serious questions about the fairness of the system. This research article aims to revisit the death penalty debate in India through three key lenses—legal, moral, and reform-oriented. Legally, it examines how Indian courts and criminal statutes interpret and apply capital punishment. Morally, it explores deterrence, retribution, and human rights–based critiques. The study further evaluates whether the death penalty genuinely reduces crime or merely provides a sense of symbolic justice. Drawing from the Law Commission’s recommendations and comparative international practices, this paper argues that India urgently needs a more transparent, consistent, and humane sentencing framework.

Introduction

The death penalty holds a complicated and often uneasy place in India’s constitutional and criminal justice system. Although Article 21 protects the right to life and personal liberty, the Constitution also allows the State to impose capital punishment through a fair legal procedure. This tension has created a framework where the death penalty is legally permissible but continues to face strong moral and judicial scrutiny. The Supreme Court’s adoption of the “rarest of the rare” doctrine in Bachan Singh v State of Punjab (1980) 2 SCC 684 was intended to limit its use, yet later case law and empirical studies show persistent inconsistencies in sentencing and systemic gaps that question the doctrine’s effectiveness in practice. Today, the debate around capital punishment goes far beyond legal tests. It touches deeper ethical concerns about human dignity, fairness, and the kind of society India aspires to be. Supporters argue that the death penalty is essential for deterrence and retribution in especially brutal cases. Opponents contend that it is irreversible, vulnerable to judicial error, disproportionately affects marginalized groups, and is increasingly out of step with global human rights trends. These realities have led the Law Commission of India, along with several scholars and rights organisations, to call for significant reforms—or even full abolition. Re-examining the death penalty is therefore not just a legal necessity but a moral and social one. This article explores the issue through three key dimensions: legal principles, ethical debates, and the urgent need for reform. By analysing judicial patterns, philosophical arguments, and comparative international models, the paper asks whether capital punishment still serves a meaningful purpose in India or whether the nation should move towards more humane and rights-based forms of justice.

1. The Right to Life under Article 21

Article 21 protects every person’s right to life, allowing the State to take life only through a fair and reasonable legal process. But the ethical dilemma runs deeper: if the State’s primary duty is to safeguard life and dignity, can it morally justify ending a life as punishment—especially when the justice system itself is prone to error? This tension lies at the heart of the death penalty debate.

2. Retribution vs. Reformative Justice

Two philosophies shape this issue.

• Retribution demands punishment proportionate to the crime, reflecting society’s outrage and the need for accountability.
• Reformative justice argues that individuals, even those who commit grave offences, have the capacity to change. Modern criminal law increasingly embraces this approach, raising the question: should society respond to violence with irreversible punishment, or with a system that allows for rehabilitation?

3. The Human Dignity Argument

Human dignity is the cornerstone of fundamental rights. Opponents argue that the death penalty strips a person of dignity by defining them only by their worst action. Execution methods, no matter how regulated, inevitably involve suffering—physical or psychological—which clashes with the constitutional promise of dignity under Article 21.

4. Ethical Dilemma: Should the State Take a Life?

The most difficult question is whether a State dedicated to protecting life should ever take it away. The irreversible nature of execution makes the risk of wrongful conviction morally unacceptable. A single mistaken execution undermines the moral legitimacy of the entire system. In a justice system affected by bias, uneven investigations, and socio-economic disparities, this risk cannot be ignored.

5. Global Shift Towards Abolition

Across the world, nations are moving away from the death penalty. Over 140 countries have abolished it, concluding that it fails to deter crime and often violates human dignity. Democracies like the UK, South Africa, and Canada now rely on life imprisonment and structured sentencing instead of execution. This global trend reflects an evolving belief that justice can be firm without taking a life.

Literature Review

1. Judicial Foundations and Doctrinal Literature

The academic debate on India’s death penalty largely begins with Supreme Court jurisprudence. The landmark case Bachan Singh v State of Punjab (1980) introduced the “rarest of the rare” standard, making capital punishment a strictly exceptional response. Later, Machhi Singh v State of Punjab (1983) 3 SCC 470  clarified how courts should weigh aggravating and mitigating factors before imposing the death penalty. Scholars frequently cite these cases to demonstrate that, although the doctrine establishes a narrow legal framework, its application has often been inconsistent across courts.

2. Procedural Fairness, Delay, and Communication

A significant body of literature highlights procedural shortcomings—especially delays in mercy petitions and prolonged time on death row. In Shatrughan Chauhan v Union of India (2014) 3 SCC 1, the Supreme Court held that excessive delay itself could justify commuting a death sentence. Scholars view this decision as a reminder that procedural lapses can convert a lawful punishment into something excessively harsh and potentially unconstitutional.

3. Law Commission and Policy Reports

Policy-oriented scholarship draws heavily on the Law Commission’s 262nd Report (2015), which recommended abolishing the death penalty for all offences except terrorism. The report argues that capital punishment is irreversible and inherently risky in a fallible justice system. Amnesty International, Human Rights Watch, and other organisations also critique India’s system for arbitrariness and its disproportionate impact on the poor, pointing to the dangers of wrongful convictions.

4. Empirical Debates on Deterrence and Retribution

Empirical studies—both global and Indian—largely fail to establish that the death penalty reduces crime. Criminologists argue that its deterrent value is uncertain at best and often symbolic rather than effective. This raises doubts about whether capital punishment truly serves its intended purpose in the Indian context.

5. Socio-Economic Bias and Risk of Wrongful Restrictions

Scholars consistently note that individuals on India’s death row often come from economically and socially marginalised backgrounds. Many lack access to quality legal representation, increasing the risk of wrongful conviction. This structural inequality strengthens calls for abolition or, at a minimum, far stronger procedural safeguards.

6. Comparative and International Perspectives

Comparative literature places India against a global backdrop in which many democracies have restricted or abolished capital punishment. International bodies and UN resolutions promote higher standards of human rights, and scholars point to reforms in countries like the UK, South Africa, and several EU nations—such as guidelines-based sentencing and restorative justice models—as potential pathways for India.

7. Identified Gaps in Existing Research

Despite extensive debate, scholars highlight key gaps: limited India-specific empirical data on deterrence, insufficient study of sentencing disparities, inadequate research on mercy procedures, and little evaluation of proposed reforms like mental-health assessments or uniform sentencing guidelines. This underscores the need for deeper interdisciplinary research.

Arbitrariness in Sentencing

A major concern in India’s death penalty regime is the inconsistent way courts impose capital punishment. Even though the Supreme Court introduced the “rarest of the rare” doctrine in Bachan Singh v. State of Punjab (1980), studies especially show that judges interpret this standard very differently. As a result, similar cases often receive different punishments, raising questions about fairness, equality before the law, and the reliability of the sentencing process.

1. Wrongful Convictions

India’s criminal justice system, like any system run by humans, is not error-free. When the stakes involve life and death, even a small mistake becomes catastrophic. Research shows a significant number of death-row prisoners are later acquitted or given reduced sentences by higher courts.

Common reasons include:

• Faulty investigations or coerced confessions
• Poor legal representation for economically weak defendants
• Weak forensic practices
• Bias against marginalized communities

Because the death penalty is irreversible, the possibility of wrongful conviction makes its use highly risky and ethically troubling.

2. Delay in Mercy Petitions

Even after courts finish hearing a case, prisoners can wait years or even decades for decisions on mercy petitions under Articles 72 and 161. These delays often stem from:

• Bureaucratic inefficiency
• Political hesitation
• Poor State–Centre coordination
• No fixed timelines

The Supreme Court in Shatrughan Chauhan v. Union of India (2014) held that such prolonged uncertainty amounts to cruel and inhuman treatment, causing severe psychological trauma—often described as the death row phenomenon.

3. Lack of Uniform Guidelines

Despite decades of debate, India still lacks a clear and consistent method for deciding when the death penalty should be imposed. Key problems include:

• No statutory guidelines for balancing aggravating and mitigating factors
• Different High Courts follow different practices
• Inconsistent consideration of mental health, age, background, or socio-economic status
• Limited use of pre-sentencing reports or psychological assessments

The Supreme Court itself acknowledged these issues in Manoj v State of Madhya Pradesh (2022) 6 SCC 1 and called for a more scientific, evidence-based approach to sentencing.

Need for Reform

1. Law Commission Recommendations

The Law Commission of India’s 262nd Report (2015) marks one of the strongest institutional calls for change. After reviewing data, case law, and systemic failures, the Commission recommended abolishing the death penalty for all offences except terrorism-related crimes. It emphasised that in a justice system vulnerable to error, an irreversible punishment carries unacceptable risks and requires urgent re-evaluation.

2. Comparative Models: UK, EU, South Africa

Around the world, democracies have moved toward restricting or eliminating capital punishment. The United Kingdom abolished it in a phased manner, replacing executions with structured life-sentence regimes. The European Union has created a near-abolitionist zone grounded in human dignity and rights-based principles. South Africa’s Constitutional Court, in S v Makwanyane [1995] ZACC 3, 1995 (3) SA 391 (CC), struck down the death penalty entirely on constitutional grounds, highlighting dignity and the danger of wrongful convictions. These models show that constitutional protections and effective sentencing systems can coexist without capital punishment.

3. Policy Changes Required

Reform in India must be practical, rights-oriented, and evidence-based. Key steps include:

• Clear statutory sentencing guidelines to minimise arbitrariness and ensure consistent balancing of aggravating and mitigating factors.
• Time-bound mercy procedures so that decisions under Articles 72 and 161 do not stretch for years, preventing the psychological trauma of prolonged death-row uncertainty.
• Stronger legal aid and investigative standards, especially for poor and marginalised defendants who often suffer due to inadequate defence or flawed investigations.
• Mandatory pre-sentencing and mental-health assessments to ensure the court considers socio-economic background, psychological state, and other relevant factors.
• Independent review or oversight mechanisms for death sentences to add a protective institutional layer before any execution.
• A narrower or abolitionist approach, either restricting the death penalty strictly to terrorism-related offences or adopting a gradual roadmap toward complete abolition with robust alternatives like life imprisonment.

Conclusion

The debate on the death penalty in India is not just a legal question—it is a moral and constitutional one. The “rarest of the rare” rule was meant to limit the use of executions, yet years of case law show that its application is far from consistent. Courts struggle with arbitrariness, uneven safeguards, and the undeniable possibility of human error. In a system that is not flawless, taking a life through an irreversible punishment raises difficult and uncomfortable questions: Can we correct a mistake after an execution? At the same time, India cannot ignore the anger that follows brutal crimes or the genuine need of victims and their families to feel that justice has been served. The challenge, therefore, is to find a balance—one that respects both public concerns and constitutional principles like fairness, dignity, and due process. Looking at global examples, many democracies have moved away from the death penalty without any negative impact on public safety, choosing instead stronger sentencing systems, longer terms of imprisonment, and focused rehabilitation. Going forward, India needs to act with both caution and conviction. This means building clearer sentencing guidelines, improving legal aid, requiring psychological and socio-economic assessments, and ensuring that mercy petitions are decided without years of delay. In the bigger picture, India must also reflect on whether the death penalty truly deters crime or whether it mostly serves a symbolic purpose. A gradual, well-planned shift—either sharply narrowing the scope of capital punishment or eventually phasing it out—would align India with constitutional morality and evolving global human-rights standards. In the end, the aim is not harsher punishment, but a justice system that is fair, humane, and worthy of a modern democracy.

(Write to the author at pal88170@gmail.com.)