The role of international organizations in advocating for the abolition of the death penalty,

shaping global norms, and influencing countries like India.

"Death Penalty - Jurisprudence and Practice in India" - compare how abolitionist vs.
retentionist philosophers have theorized the moral implications of death penalty, at different
periods of history and under different political contexts. Then relate this global picture to the
Indian scenario, looking at how India has limited (Courts have) the application of DP to a
limited number of cases. Contrast this with the legislature has broadened the ambit of DP by
including more offences that carry DP (such as POCSO or crl law amendment 2018 - rape).
Look at what this tells us about where India stands in terms of abolitionist vs. retentionist
positions - in theory and in practice. Read Butler on "Cruelty", and Lok Sabha Secretariat's
Report on DP.

"Death Penalty - Jurisprudence and Practice in India" - compare how abolitionist vs.
retentionist philosophers have theorized death penalty. Then relate this global picture to the
Indian scenario, looking at how India has limited (Courts have) the application of DP to a
limited number of cases. Contrast this with the legislature has broadened the ambit of DP by
including more offences that carry DP (such as POCSO or crl law amendment 2018 - rape).
Look at what this tells us about where India stands in terms of abolitionist vs. retentionist
positions - in theory and in practice. Read Butler on "Cruelty", and Lok Sabha Secretariat's
Report on DP.

 Compare how abolitionist vs. retentionist philosophers have theorized the moral
implications of death penalty, at different periods of history and under different
political contexts.
Abolitionists also claim that capital punishment violates the condemned person’s right to
life and is fundamentally inhuman and degrading.

 Relate this global picture to the Indian scenario, looking at how India has limited (Courts
have) the application of DP to a limited number of cases.

 Contrast this with the legislature has broadened the ambit of DP by including more
offences that carry DP (such as POCSO or crl law amendment 2018 - rape).

 Look at what this tells us about where India stands in terms of abolitionist vs. retentionist
positions - in theory and in practice

Structure
- Introduction
- Current statistics of Death Penalty in the world
- Argument for Death Penalty
- Argument against Death Penalty
- Current position in India
- Conclusion
Some of the key arguments advanced by abolitionist philosophers include:

1. The irreversibility of capital punishment: The death penalty is an

irreversible punishment, and there is no way to undo a wrongful
execution. This fact alone should be enough to make us question
the morality of the death penalty.
2. The risk of executing innocent people: The criminal justice system is
not infallible, and there have been many cases of innocent people
being wrongly convicted and executed. This risk is unacceptable,
and it is one that we cannot afford to take.
3. The disproportionate impact of the death penalty: The death penalty
is applied disproportionately to minorities and the poor. This is a
clear injustice, and it undermines the legitimacy of the criminal
justice system.
4. The lack of evidence that the death penalty deters crime: There is
no clear evidence that the death penalty deters crime. In fact, some
studies have shown that the death penalty may actually increase
crime.
5. The availability of alternatives to the death penalty: There are a
number of alternatives to the death penalty, such as life in prison
without the possibility of parole. These alternatives can provide just
punishment for criminals without the risk of executing innocent
people.

Additional information on retentionist views

Some of the key arguments advanced by retentionist philosophers

include:

1. The justness of the death penalty for certain crimes: Retentionists

believe that the death penalty is a just punishment for certain
crimes, such as murder. They argue that it is proportionate to the
crime and that it provides justice for the victims and their families.
2. The deterrent effect of the death penalty: Retentionists believe that
the death penalty deters crime. They argue that the threat of
execution makes potential criminals think twice before committing
serious crimes.
3. The protection of society: Retentionists believe that the death
penalty is necessary to protect society from dangerous criminals.
They argue that life in prison without the possibility of parole is not
an adequate punishment for these criminals.
4. The lack of alternatives to the death penalty: Retentionists argue
that there is no alternative to the death penalty that can provide the
same level of justice for victims and protection for society.
Abolitionist philosophers argue that the death penalty is morally wrong
because it violates the fundamental right to life of every human being.
They believe that no one has the authority to take away another person’s
life, regardless of the crime they committed or the circumstances they
faced. They also contend that the death penalty is ineffective, unjust, and
cruel. Some of the arguments they use are:

 The death penalty does not deter crime, but rather increases
violence and brutality in society. This is known as the “brutalization
effect”, which suggests that the state’s use of violence legitimizes
and encourages more violence among the public. Abolitionists cite
empirical studies that show no correlation between the death
penalty and crime rates, and sometimes even a negative
correlation. For example, a study by the Death Penalty Information
Center found that states without the death penalty have lower
murder rates than states with the death penalty1.
 The death penalty is arbitrary and discriminatory, as it is applied
disproportionately to the poor, the marginalized, and the minorities.
Abolitionists point out the flaws and biases in the criminal justice
system, such as inadequate legal representation, racial
discrimination, false confessions, wrongful convictions, and political
interference. They argue that the death penalty is not a fair and
impartial punishment, but a tool of oppression and injustice. For
instance, a report by Amnesty International revealed that people of
color are more likely to be sentenced to death than white people for
the same crimes2.
 The death penalty is inhumane and degrading, as it inflicts
unnecessary pain and suffering on the condemned and their
families. Abolitionists denounce the methods of execution, such as
hanging, electrocution, lethal injection, and firing squad, as barbaric
and cruel. They also criticize the conditions of death row, such as
solitary confinement, long delays, and lack of mental health care, as
torturous and inhuman. They argue that the death penalty violates
the dignity and worth of every human being, and goes against the
principles of human rights and compassion. For example, the
Universal Declaration of Human Rights states that "no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment"3.

Retentionist philosophers argue that the death penalty is morally justified

because it serves the purposes of retribution, deterrence, and justice.
They believe that some crimes are so heinous and atrocious that they
deserve the ultimate punishment of death. They also contend that the
death penalty is effective, fair, and humane. Some of the arguments they
use are:
  The death penalty is a deterrent to crime, as it instills fear and
prevents potential offenders from committing serious crimes.
Retentionists cite rational choice theory, which assumes that people
weigh the costs and benefits of their actions, and avoid those that
have severe consequences. They also cite anecdotal evidence, such
as cases where criminals have confessed or surrendered because of
the threat of the death penalty. For example, a study by the
National Bureau of Economic Research found that each execution
prevents about five murders1.
 The death penalty is a retribution for crime, as it expresses the
moral outrage and condemnation of society. Retentionists appeal to
the notion of lex talionis, or the law of retaliation, which states that
the punishment should fit the crime, and that the offender should
suffer the same harm that they inflicted on the victim. They also
appeal to the concept of desert, or the idea that people deserve
what they get, and that the offender should pay for their actions. For
example, the philosopher Immanuel Kant argued that “whoever has
committed murder, must die” as a matter of justice and duty 4.
 The death penalty is a justice for the victims, as it acknowledges
their suffering and restores the balance of rights and duties.
Retentionists emphasize the rights and interests of the victims and
their families, such as the right to reparation, the right to closure,
and the right to participation. They argue that the death penalty is a
way of honoring and vindicating the victims, and giving them a
voice and a say in the outcome of the case. For example, the
philosopher Ernest van den Haag claimed that “the satisfaction of
the survivors and of society, which is an expression of social
solidarity, is a relevant and important consideration” in favor of the
death penalty4.

As you can see, abolitionist and retentionist philosophers have different

views on the moral implication of the death penalty, and they use
different arguments to support their positions. These arguments have
evolved over time and across different contexts, depending on the
historical, political, and cultural factors that influence the debate. For
example, the abolitionist movement gained momentum in the 18th and
19th centuries, especially in Europe and America, as a result of the
Enlightenment, the humanitarianism, and the liberalism that challenged
the traditional authority and violence of the state. On the other hand, the
retentionist movement regained strength in the 20th and 21st centuries,
especially in Asia and Africa, as a response to the rise of terrorism,
nationalism, and authoritarianism that threatened the security and
stability of the society. Therefore, the debate on the death penalty is not
only a philosophical one, but also a historical and political one, that
reflects the values and beliefs of different people and cultures.

Intro
The death penalty, a subject at the nexus of morality, law, and societal values, has perennially
stirred profound debates across the globe. Rooted in historical philosophies that oscillate
between abolitionist and retentionist perspectives, the moral implications of capital
punishment have evolved through different epochs and political climates. This article aims to
compare how these two philosophical approaches have evolved over time and how they
manifest in India's legal system. Specifically, we will analyse how India's courts have limited
the use of the death penalty and contrast this with the legislative trend towards the expansion
of its application. Through this analysis, we will gain insights into India's position on the
global debate between abolitionist and retentionist views and how this debate is reflected in
the country's legal system.
The jurisprudence and practice of death penalty in India reflect a complex
and contradictory position on the issue. On the one hand, India has not
ratified the Second Optional Protocol to the ICCPR, and has consistently
voted against the UN General Assembly resolutions calling for a
moratorium on the use of death penalty. On the other hand, India has
witnessed a gradual decline in the number of death sentences imposed
and executed over the years, and has also shown a willingness to engage
with the international human rights standards and norms on the
issue. The public opinion and political discourse on death penalty in India
are also divided and polarized, with some sections of the society and the
media demanding harsher and swifter punishments for heinous crimes,
especially those involving sexual violence and terrorism, while others
advocating for the abolition or reform of death penalty, citing the
concerns of miscarriage of justice, arbitrariness, discrimination, and
cruelty23

One of the prominent abolitionist thinkers, Judith Butler, has argued that
death penalty is a form of cruelty that denies the humanity and dignity of
the person, and that it is based on a false and violent notion of justice that
seeks to erase the suffering and responsibility of the perpetrator, rather
than to acknowledge and address the causes and consequences of the
crime. Butler suggests that a more humane and ethical approach to
justice would be to recognize the vulnerability and interdependence of all
human lives, and to seek for ways of transforming the conditions and
relations that produce violence and injustice 4

In the modern and contemporary times, death penalty has been

increasingly questioned and criticized by the enlightenment thinkers,
human rights activists, and democratic movements, based on the
principles of human dignity, equality, and liberty. For example, Cesare
Beccaria, one of the founders of the classical school of criminology,
argued that death penalty was irrational, unjust, and ineffective, and that
it violated the social contract and the natural rights of the individuals.
Jeremy Bentham, one of the proponents of the utilitarian philosophy, also
challenged death penalty on the grounds that it did not produce any
greater good or happiness for the society, and that it was more costly and
harmful than other forms of punishment. Immanuel Kant, one of the
advocates of the deontological ethics, defended death penalty as a
categorical imperative and a rational duty, but also imposed strict
conditions and limitations on its application, such as the requirement of a
fair trial, the prohibition of torture, and the respect for the dignity of the
condemned.

 Enlightenment period (17th-18th centuries): This period saw

the emergence of the first systematic critiques of the death penalty,
based on the principles of human dignity, rationality, and natural
rights. Some of the most influential abolitionist thinkers
were Cesare Beccaria, an Italian jurist who wrote On Crimes and
Punishments in 1764, arguing that the death penalty was cruel,
ineffective, and arbitrary1; Montesquieu, a French philosopher who
advocated for the moderation and proportionality of punishments
in The Spirit of the Laws in 17482; and Voltaire, a French writer who
denounced the barbarity and injustice of the death penalty in
his Treatise on Tolerance in 17632. On the other hand, some
retentionist philosophers defended the death penalty as a necessary
and legitimate means of social control and deterrence, such
as Thomas Hobbes, an English philosopher who argued that the
sovereign had the absolute power to punish offenders
in Leviathan in 16512; and Samuel von Pufendorf, a German jurist
who justified the death penalty as a natural consequence of the
violation of the social contract in On the Duty of Man and Citizen in
16732.
 Modern period (19th-20th centuries): This period witnessed the
rise of various social movements and ideologies that challenged the
legitimacy and morality of the death penalty, such as abolitionism,
feminism, pacifism, socialism, and humanism. Some of the
prominent abolitionist philosophers were John Stuart Mill, an
English utilitarian who argued that the death penalty was
incompatible with the principle of the greatest happiness for the
greatest number in his speech On Capital Punishment in
18682; Albert Camus, a French existentialist who denounced the
absurdity and irrationality of the death penalty in his
essay Reflections on the Guillotine in 19572; and Hugo Adam
Bedau, an American philosopher who criticized the arbitrariness,
discrimination, and error of the death penalty in his book The Death
Penalty in America in 19642. Some of the notable retentionist
philosophers were Immanuel Kant, a German rationalist who
argued that the death penalty was the only adequate punishment
for murder in his book The Metaphysics of Morals in 17972; Georg
Wilhelm Friedrich Hegel, a German idealist who justified the
death penalty as a manifestation of the rational will of the state in
his book The Philosophy of Right in 18212; and Ernest van den
Haag, a Dutch-American philosopher who defended the death
 penalty as a matter of justice and retribution in his book The
Ultimate Punishment in 19862.
 Contemporary period (21st century): This period is marked by
the increasing global trend towards the abolition of the death
penalty, as well as the emergence of new arguments and
perspectives on the issue, such as human rights, democracy,
religion, and neuroscience. Some of the current abolitionist
philosophers are Roger Hood, a British criminologist who has
conducted extensive research on the worldwide use and abolition of
the death penalty, and co-authored The Death Penalty: A Worldwide
Perspective in 20152; Carol Steiker and Jordan Steiker, American
legal scholars who have analyzed the history and future of the death
penalty in the United States, and co-authored Courting Death: The
Supreme Court and Capital Punishment in 20162; and Michael
Sandel, an American political philosopher who has questioned the
moral legitimacy of the death penalty in his online course Justice:
What’s the Right Thing to Do? in 20092. Some of the contemporary
retentionist philosophers are Robert Blecker, an American law
professor who has advocated for the death penalty as a form of
retributive justice, and authored The Death of Punishment:
Searching for Justice among the Worst of the Worst in 20132; Jeffrey
Reiman, an American philosopher who has argued that the death
penalty is morally permissible but practically undesirable, and
authored The Death Penalty: For and Against in 19982; and Louis
Pojman, an American philosopher who has defended the death
penalty as a deterrent and a proportional punishment, and
authored A Defense of the Death Penalty in 20042.

India’s law

The current scenario of Indian law with death penalty is complex and
evolving. The death penalty is a legal punishment for certain offences,
such as murder, rape, terrorism, etc., but it is imposed only in the rarest
of rare cases, after considering the aggravating and mitigating
circumstances of the crime and the criminal. The death penalty is carried
out by hanging by the neck, as per Section 354 (5) of the Criminal
Procedure Code, 19731. However, this mode of execution has been
challenged in the Supreme Court, which has asked the Central
government to defend its constitutionality and humaneness 2.
The death penalty in India has been a subject of intense debate and
scrutiny, both nationally and internationally. India is one of the few
countries that still retain the death penalty, despite the global trend
towards abolition. India has voted against the UN General Assembly
resolution calling for a moratorium on the death penalty in 2022 3. India
has also faced criticism from human rights groups and activists for the
lack of transparency, consistency, and fairness in the death penalty
process, as well as the possibility of wrongful convictions, delays, and
discrimination. Some of the issues and challenges related to the death
penalty in India are:

 The definition and application of the rarest of rare doctrine, which

was laid down by the Supreme Court in Bachan Singh v. State of
Punjab in 19804, has been inconsistent and subjective, leading to
arbitrariness and uncertainty in the award of the death penalty.
 The quality and availability of legal aid and representation for the
death row prisoners is inadequate and unequal, affecting their right
to a fair trial and appeal.
 The mercy petition process, which is the last resort for the death
row prisoners, is marred by delays, opacity, and political
interference, violating their right to dignity and due process.
 The mental and physical health of the death row prisoners is
severely affected by the prolonged and harsh conditions of solitary
confinement, the uncertainty and anxiety of the death warrant, and
the lack of medical and psychological care.
 The execution of the death penalty by hanging is cruel, inhuman,
and degrading, causing immense pain and suffering to the
condemned prisoner, as well as the executioner and the witnesses.

India’s position on the death penalty is also influenced by its social,

cultural, and political context, which includes factors such as public
opinion, media coverage, political pressure, and security concerns

India has faced criticism from human rights groups and international
bodies for its use of the death penalty. In December 2022, at the UN
General Assembly, 125 countries voted in favor of a moratorium on the
death penalty, but India voted against it 3 Amnesty International has called
the death penalty in India a ‘lethal lottery’, as it is applied arbitrarily and
inconsistently, and often violates fair trial standards 4
Some of the arguments in favor of the death penalty in India are that it
serves as a deterrent for serious crimes, that it reflects the public opinion
and sentiment, and that it is necessary for justice and retribution. Some of
the arguments against the death penalty in India are that it violates the
right to life, that it is cruel and inhuman, that it does not reduce crime
rates, and that it is prone to error and abuse 5

The Indian law stands somewhere between the abolitionist and

retentionist philosophies of death penalty, as it has not completely
abolished nor frequently applied the death penalty. India has retained the
death penalty on the ground that it will be awarded only in the ‘rarest of
rare cases’ and ‘for special reasons’1 This means that the death penalty is
not a mandatory or a default punishment for any crime, but rather a
discretionary one that depends on the circumstances of each case. The
Supreme Court of India has laid down certain guidelines and principles to
determine when the death penalty can be imposed, such as the nature
and gravity of the offense, the motive and manner of the offender, the
impact on the society, the possibility of reform, and the alternative
options available1
However, the application of the death penalty in India has been criticized
for being arbitrary, inconsistent, and discriminatory. There have been
cases where the death penalty has been imposed for similar crimes, while
in other cases it has been commuted to life imprisonment. There have
also been allegations of bias and prejudice based on the caste, religion,
gender, or economic status of the accused or the victim. Moreover, there
have been instances of wrongful convictions, procedural lapses, and
delays in the trial and appeal process, which raise serious questions about
the fairness and reliability of the death penalty system 2
Therefore, the Indian law does not fully align with either the abolitionist or
the retentionist philosophies of death penalty, but rather tries to balance
the competing interests of justice, deterrence, retribution, and human
rights. However, this balance is often challenged and debated by various
stakeholders, such as the judiciary, the legislature, the executive, the civil
society, and the international community2

In summary, while India has, through judicial decisions, restricted the

application of the death penalty to a limited number of cases and
demonstrated a cautious approach, the legislative landscape has, on
occasion, moved in the opposite direction by widening the ambit of
offenses punishable by death. The interplay between the judiciary and
legislative branches reflects the ongoing tension between abolitionist and
retentionist perspectives in the Indian context. Please note that
developments in law and policy may have occurred since my last update
in January 2022.

India's position on the death penalty is complex and nuanced, reflecting

both abolitionist and retentionist perspectives. While the courts have
taken steps to restrict the application of capital punishment, the
legislature has expanded the scope of offenses punishable by death. This
apparent contradiction highlights India's struggle to reconcile the moral
implications of the death penalty with the practical challenges of crime
and public safety.

Courts' Approach: Limiting the Application of Death Penalty

The Indian Supreme Court has played a significant role in limiting the
application of the death penalty. In a landmark 1983 judgment, the Court
laid down the "rarest of the rare" doctrine, specifying that the death
penalty should be reserved for only the most exceptional cases. The Court
has further clarified this doctrine in subsequent judgments, emphasizing
the need for extreme caution and a thorough evaluation of mitigating
factors before imposing capital punishment.
This approach reflects the Court's recognition of the irreversibility of the
death penalty and the potential for miscarriage of justice. It also
demonstrates a growing sensitivity towards human rights and the
principles of proportionality in punishment.

Legislature's Approach: Expanding the Scope of Death Penalty

Despite the courts' efforts to restrict the application of the death penalty,
the Indian legislature has expanded the scope of offenses punishable by
death. In recent years, the legislature has amended the Indian Penal Code
and other laws to include more offenses that carry the death penalty, such
as certain provisions under the POCSO Act and the Criminal Law
Amendment Act of 2018.

This expansion reflects the legislature's concern about the prevalence of

heinous crimes, particularly those involving violence against children and
women. The legislature believes that capital punishment is a necessary
deterrent to such crimes and a means of providing justice to victims and
their families.

India's Position: A Balancing Act

India's approach to the death penalty reflects a balancing act between the
moral imperatives of abolitionism and the practical considerations of
retentionism. The courts' restrictive approach aligns with the principles of
abolitionism, emphasizing the sanctity of human life and the potential for
error in the justice system. The legislature's expansionary approach,
however, reflects retentionist sentiments, seeking to address the
challenges of crime and public safety through the threat of capital
punishment.

This juxtaposition of approaches suggests that India's position on the

death penalty is in flux. While the courts have moved towards a more
restrictive interpretation of the law, the legislature's actions indicate a
lingering belief in the necessity of capital punishment in certain
circumstances. India's future stance on the death penalty will likely
depend on the continued dialogue between these opposing perspectives
and the evolving social and political landscape of the country.

India has some legal and judicial safeguards to ensure that the death penalty is not applied
arbitrarily or discriminatorily, but they are not always effective or sufficient. Some of these
safeguards are:
  The death penalty is reserved for the ‘rarest of rare’ cases and requires ‘special
reasons’ for its imposition. The Supreme Court has laid down certain guidelines and
principles to determine when the death penalty can be imposed, such as the nature and
gravity of the offense, the motive and manner of the offender, the impact on the
society, the possibility of reform, and the alternative options available12
 The death penalty is not mandatory for any crime, but rather a discretionary one that
depends on the circumstances of each case. The judges have to consider both the
aggravating and mitigating factors of the case and give a reasoned judgment for their
decision12
 The death penalty is subject to a bifurcated trial, where the conviction and sentencing
phases are separate and distinct. The accused has the right to present evidence and
arguments in both phases, and the prosecution has to prove the case beyond
reasonable doubt1
 The death penalty is subject to multiple levels of review and appeal, including the
High Court, the Supreme Court, and the President or the Governor. The accused has
the right to adequate legal representation and a fair trial at every stage. The Supreme
Court can also review its own judgments in exceptional cases12
 The death penalty is subject to certain constitutional and human rights protections,
such as the right to life, the right against torture and solitary confinement, and the
right to equality and non-discrimination. The Supreme Court has also recognized the
right to a dignified and humane execution, and has banned certain methods of
execution, such as hanging by the neck12

However, these safeguards are not always followed or respected in practice, and there are
many cases of arbitrariness, inconsistency, and discrimination in the application of the death
penalty in India. Some of the challenges and flaws in the death penalty system are:

 The definition and interpretation of the ‘rarest of rare’ doctrine is vague and
subjective, and leads to different outcomes for similar cases. There is no clear or
uniform criteria for determining the ‘special reasons’ for imposing the death penalty,
and the judges often rely on their personal opinions or emotions23
 The quality and availability of legal representation and fair trial is poor and unequal,
especially for the poor, the marginalized, and the vulnerable groups. There are cases
of inadequate or incompetent lawyers, lack of legal aid, denial of access to evidence
or witnesses, coerced confessions, fabricated charges, and biased or corrupt judges234
 The review and appeal process is lengthy and complex, and often results in delays and
uncertainty for the prisoners on death row. There are cases of procedural lapses,
judicial errors, and executive interference in the clemency petitions. The prisoners on
death row also face harsh and inhuman conditions, such as isolation, torture, and
mental trauma234
 The constitutional and human rights protections are not adequately enforced or
respected, and there are cases of violation of the right to life, the right against torture
and solitary confinement, and the right to equality and non-discrimination. There are
also cases of wrongful convictions, miscarriage of justice, and abuse of power in the
death penalty system234

Therefore, India does not ensure that the death penalty is not applied arbitrarily or
discriminatorily, and needs to reform or abolish the death penalty to comply with its
international obligations and uphold its human rights commitments234
Learn more:
1. ohchr.org2. bing.com3. link.springer.com4. amnesty.org5.
economictimes.indiatimes.com6. amnesty.org7. amnesty.org+3 more
4of4

 The death penalty is a legal penalty for some crimes under the
Indian Penal Code, 1860, and other laws. However, the Supreme
Court of India has held that the death penalty should be imposed
only in the ‘rarest of rare’ cases, where the alternative option of life
imprisonment is unquestionably foreclosed1
 The Criminal Law (Amendment) Act, 2018, was enacted in response
to the public outrage over the Kathua and Unnao rape cases. The
Act amended the IPC, the Code of Criminal Procedure, 1973, the
Indian Evidence Act, 1872, and the Protection of Children from
Sexual Offences Act, 2012, to provide for stricter punishments for
rape and child sexual abuse23
 The Act introduced the death penalty as a possible punishment for
rape of a girl below 12 years of age, and for gang rape of a girl
below 16 years of age. The Act also increased the minimum
sentences for other categories of rape and sexual assault, and made
certain procedural changes to ensure speedy trial and victim
protection45
 The Act has been criticized by some human rights activists and legal
experts, who argue that the death penalty is not an effective
deterrent for rape, and that it may have adverse consequences for
the victims and the criminal justice system. They contend that the
death penalty may increase the risk of the victim being killed by the
perpetrator, discourage the reporting of rape by the victims or their
families, and undermine the due process and fair trial rights of the
accused67
 The Act has also been challenged in the Supreme Court of India, on
the grounds that it violates the constitutional principles of equality,
proportionality, and dignity. The petitioners claim that the Act
discriminates between male and female victims of sexual abuse,
and between different age groups of female victims. They also
contend that the Act imposes an arbitrary and excessive
punishment for rape, without considering the mitigating
circumstances and the individual circumstances of each case 89

 The Supreme Court of India has laid down the principle that the
death penalty should be imposed only in the “rarest of the rare”
cases, where the crime is so heinous and the offender is so
depraved that no alternative punishment is adequate 123.
 However, there is no clear definition of what constitutes the “rarest
of the rare” cases, and the sentencing process is often arbitrary and
inconsistent, depending on the judge’s discretion, the quality of
 legal representation, and the socio-economic background of the
offender123.
 The Supreme Court has also recognised that the circumstances of
the offender, such as their age, family background, mental health,
possibility of reform, etc., should be considered as mitigating factors
before imposing the death penalty12. But these factors are often
ignored or inadequately addressed by the lower courts, and there is
no uniform framework or guidance on how to collect and weigh such
evidence12.
 The Supreme Court has recently decided to refer the issue of death
penalty sentencing to a Constitution Bench, which will examine the
gaps and challenges in the existing framework and suggest
reforms12. This is the first time since 1980 that such a referral has
been made, and it reflects the growing concern and discomfort of
the apex court with the procedural unfairness and inconsistency in
death penalty cases12.
 The death penalty is also opposed on moral, ethical, and human
rights grounds, as it is seen as a violation of the right to life and
dignity, and a cruel, inhuman, and degrading punishment. Many
studies have also shown that the death penalty does not have any
deterrent effect on crime, and that it is prone to errors and
miscarriages of justice34.
 The Law Commission of India, in its 262nd report in 2015,
recommended the abolition of the death penalty for all offences
except terrorism-related offences and waging war against the
state4. It also suggested a moratorium on executions until the issue
is debated and decided by the Parliament4. However, the
government has not taken any steps to implement these
recommendations, and has maintained its support for the death
penalty as a necessary measure for the protection of society 53.
 India is among the few countries in the world that still retain the
death penalty, and it is increasingly isolated in the international
community on this issue. As of 2020, 142 countries have abolished
the death penalty in law or in practice, while only 18 countries
carried out executions5. India has also faced criticism from various
human rights bodies and experts for its use of the death penalty,
especially in cases involving minorities, dalits, and poor people 53.

The Indian public opinion on the death penalty is divided and influenced
by various factors, such as the nature and gravity of the crime, the media
coverage, the political and social context, and the personal and emotional
attachment. Some of the recent cases that have sparked public debate
and outcry on the death penalty include the 2012 Delhi gang rape and
murder case, the 2013 Mumbai gang rape case, the 2014 Nirbhaya case,
and the 2019 Hyderabad rape and murder case
The Indian law on death penalty is therefore trying to achieve a
compromise between the competing objectives of different stakeholders,
such as the judiciary, the legislature, the executive, the civil society, and
the public. The law is also trying to align itself with the global trend
towards the abolition or restriction of the death penalty, while maintaining
its sovereignty and independence on the issue. The law is also trying to
address the gaps and challenges in the existing framework and suggest
reforms, such as the definition of the rarest of rare cases, the uniformity
and consistency of the sentencing process, the consideration of the
mitigating and aggravating factors, and the possibility of reform and
rehabilitation of the offenders. The law is also trying to ensure that the
due process of law is followed at every stage of the trial and appeal, and
that the death penalty is imposed only in the most exceptional and rarest
of rare cases.

Where does India stand ?

Analyzing India's approach to the death penalty through the lens of

abolitionist and retentionist perspectives, Butler's work on cruelty, and the
Lok Sabha Secretariat's Report reveals a complex and multifaceted
picture. India's legal framework reflects the ongoing debate between the
moral imperatives of abolitionism and the practical considerations of
retentionism. While the courts have moved towards a more restrictive
application of capital punishment, the legislature's expansion of the scope
of offenses punishable by death suggests a lingering belief in the
necessity of this extreme form of punishment. This juxtaposition of
approaches raises questions about India's position on the spectrum of
abolitionism and retentionism, both in theory and in practice.

In theory, India's stance on the death penalty is closer to abolitionism. The

courts' restrictive approach, guided by the "rarest of the rare" doctrine,
aligns with the abolitionist principle of limiting capital punishment to
exceptional cases. Additionally, India's ratification of various international
human rights treaties, including the International Covenant on Civil and
Political Rights, further reinforces its theoretical commitment to human
rights and the protection of the right to life.

However, in practice, India's position on the death penalty is more

nuanced. The legislature's willingness to expand the scope of offenses
punishable by death suggests a retentionist tendency, influenced by
concerns about crime, public safety, and the need for deterrence. This
expansionary approach contradicts the abolitionist ideal of gradually
phasing out capital punishment.

This inconsistency between theory and practice highlights India's struggle

to reconcile the moral implications of the death penalty with the practical
challenges of crime and public safety. India's position on the spectrum of
abolitionism and retentionism is likely to remain fluid, influenced by
ongoing debates, societal shifts, and the evolving political landscape.

The future of the death penalty in India will depend on the continued
dialogue between abolitionist and retentionist perspectives, the courts'
interpretation of the law, and the legislature's response to public opinion
and crime trends. India's path towards a more consistent and humane
approach to capital punishment will require a careful balancing of moral
principles, practical considerations, and the evolving social and political
context.

India occupies a unique position in the global discourse on the death

penalty, showcasing elements of both abolitionist and retentionist
perspectives, both in theory and practice.

Abolitionist Elements:
1. Judicial Caution:
 The Indian judiciary has, through various landmark decisions,
imposed stringent criteria for the imposition of the death
penalty. The "rarest of rare" doctrine, established in the
Bachan Singh case (1980), reflects a cautious and selective
approach to capital punishment.
2. Individualized Sentencing:
 Courts in India consider individualized sentencing, taking into
account factors such as the nature of the crime and the
characteristics of the offender. Mitigating factors, including
age and mental health, are considered in determining whether
a case qualifies as "rarest of rare."
3. International Human Rights Trends:
 There is a growing sensitivity to international human rights
standards, and concerns about the arbitrary application of the
death penalty have influenced the Indian judicial perspective.

Retentionist Elements:
1. Legislative Expansions:
 Legislative actions, such as amendments to criminal laws,
have at times expanded the scope of capital punishment. For
instance, the inclusion of certain offenses under the Protection
of Children from Sexual Offences (POCSO) Act and the
Criminal Law Amendment Act of 2018 broadened the range of
crimes punishable by death.
2. Public Opinion:
 Public opinion in India has historically been mixed on the
death penalty. While there is support for the punishment in
 cases of heinous crimes, there are also voices calling for its
abolition.
3. Continued Application:
 Despite the judicial caution, the death penalty continues to be
applied in certain cases, and concerns about the consistency
of its application persist. Critics argue that even with the
"rarest of rare" doctrine, there is still potential for arbitrary
decision-making.

In Practice:
1. Limited Executions:
 While death sentences are handed down, actual executions in
India have been infrequent. There is often a significant gap
between the imposition of the death penalty and its execution,
with factors such as lengthy legal processes and clemency
petitions contributing to delays.
2. Ongoing Debates:
 The country continues to engage in public and legal debates
about the efficacy, fairness, and morality of the death penalty.
These discussions reflect the ongoing tension between those
advocating for the abolition of capital punishment and those
arguing for its retention in certain cases.

In conclusion, India's stance on the death penalty reflects a complex

interplay between abolitionist and retentionist elements. The judiciary's
cautious approach, international influences, legislative expansions, and
public opinion contribute to a nuanced and evolving position on capital
punishment. The ongoing debates and occasional legislative changes
suggest that India is actively grappling with the ethical, legal, and social
implications of the death penalty.

Political context and death penalty

The political context can affect the debate on the death penalty in various
ways, depending on the historical, cultural, and ideological factors that
shape the views and values of different groups and individuals. Some of
the possible effects are:

 The political context can influence the public opinion on the death
penalty, as well as the media coverage and the political discourse
on the issue. For example, the Pew Resource Center reported that
the support for the death penalty in the United States has declined
across all political affiliations since 1995, but the drop was
especially pronounced among Democrats1. The poll also found that
the views on the death penalty were related to the views on other
political and social issues, such as human rights, criminal justice,
race, and morality1.
  The political context can affect the legal framework and the judicial
process of the death penalty, as well as the frequency and the
methods of its application. For example, the Office of Justice
Programs found that the political culture of the states, defined as “a
shared set of ideas about the role of government and about whom
should influence public policy”, had a significant influence on the
median execution rates of states between 1990 and 1995 2. The
study also found that the political culture was related to the legal
factors, such as the availability and the scope of the death penalty,
the jury selection and the sentencing procedures, and the appeals
and the clemency options2.
 The political context can also be used as a tool or a weapon by the
proponents or the opponents of the death penalty, to advance their
agendas or to challenge their adversaries. For example, the World
Coalition Against the Death Penalty reported that the death penalty
was often politicized and instrumentalized for political purposes,
such as suppressing dissent, intimidating opponents, mobilizing
supporters, or gaining popularity3. The report also highlighted the
cases of Iran, China, Egypt, and the United States, where the death
penalty was used as a means of political repression, control, or
manipulation3.

The media plays a significant role in shaping public opinion on the death
penalty. According to a study by Lipschultz and Hilt, media coverage of
capital punishment can influence public opinion by evaluating the fairness
of the death penalty1. The media can also exaggerate and highlight
problems in the application of the death penalty, which can further shape
public opinion2.
Television, in particular, has become a principal storyteller, educator, and
shaper of the popular imagination. It not only transmits legal norms but
also has a role in creating them3. In addition, research indicates that
judges are susceptible to media coverage when making their rulings 4.
In conclusion, the media has a significant impact on public opinion on the
death penalty. It can influence people’s minds by reporting the content of
the death penalty, highlighting problems in its application, and shaping
legal norms.

The media plays a significant role in shaping public opinion on the death
penalty. According to a study by Lipschultz and Hilt, media coverage of
capital punishment can influence public opinion by evaluating the fairness
of the death penalty1. The media can also exaggerate and highlight
problems in the application of the death penalty, which can further shape
public opinion2.
Television, in particular, has become a principal storyteller, educator, and
shaper of the popular imagination. It not only transmits legal norms but
also has a role in creating them3. In addition, research indicates that
judges are susceptible to media coverage when making their rulings 4.
In conclusion, the media has a significant impact on public opinion on the
death penalty. It can influence people’s minds by reporting the content of
the death penalty, highlighting problems in its application, and shaping
legal norms.

Death Penalty - Jurisprudence and Practice in India

The death penalty, or capital punishment, is the legal sanction of killing a
person by the state for a crime. It is one of the most controversial and
debated issues in the fields of law, ethics, politics, and human rights. The
arguments for and against the death penalty are often based on different
philosophical perspectives, such as utilitarianism, retributivism,
deterrence, human dignity, and justice. In this article, we will compare
how abolitionist and retentionist philosophers have theorized the moral
implications of the death penalty, at different periods of history and under
different political contexts. Then we will relate this global picture to the
Indian scenario, looking at how India has limited the application of the
death penalty to a limited number of cases through judicial decisions,
while the legislature has broadened the ambit of the death penalty by
including more offences that carry the death penalty, such as rape and
child sexual abuse. We will also examine what this tells us about where
India stands in terms of abolitionist and retentionist positions, in theory
and in practice. Finally, we will draw on the insights of Judith Butler, a
contemporary philosopher who has critically engaged with the concept of
cruelty, to reflect on the ethical and political implications of the death
penalty in India.
Abolitionist vs. Retentionist Philosophies
The abolitionist philosophy is the view that the death penalty is morally
wrong and should be abolished. The retentionist philosophy is the view
that the death penalty is morally justified and should be retained. These
two philosophies have different historical and political origins, and have
evolved over time in response to changing social and legal contexts.
The abolitionist philosophy can be traced back to the Enlightenment era,
when thinkers such as Cesare Beccaria, Jeremy Bentham, and Voltaire
challenged the traditional justifications of the death penalty, such as
divine law, natural law, and social contract. They argued that the death
penalty was irrational, ineffective, cruel, and arbitrary, and that it violated
the principles of human rights, dignity, and equality. They proposed
alternative forms of punishment, such as imprisonment, rehabilitation,
and restitution, that would respect the humanity of the offenders and the
victims, and serve the interests of society. They also advocated for legal
reforms, such as due process, presumption of innocence, proportionality,
and clemency, that would limit the abuse of power and the possibility of
error in the administration of justice.
The retentionist philosophy, on the other hand, can be associated with the
classical and neo-classical schools of criminology, which emphasized the
notions of free will, rational choice, and deterrence. They argued that the
death penalty was a necessary and effective means of preventing and
punishing crime, by imposing the most severe sanction on the most
heinous offenders, and by creating a strong disincentive for potential
offenders. They also appealed to the concepts of retribution, justice, and
desert, which suggested that the death penalty was a morally appropriate
and proportional response to the gravity and culpability of the crime, and
that it satisfied the demands of the victims, the society, and the state for
reparation and vindication.
The abolitionist and retentionist philosophies have influenced the legal
and political developments of the death penalty in different countries and
regions, depending on their historical, cultural, and social contexts. For
example, the abolitionist philosophy has been more prevalent in Europe,
where the death penalty has been abolished in most countries, either by
law or by practice, and where the European Convention on Human Rights
and the European Union have played a significant role in promoting and
protecting human rights standards. The retentionist philosophy has been
more dominant in the United States, where the death penalty is still
practiced in 28 states and at the federal level, and where the Supreme
Court has upheld the constitutionality of the death penalty, subject to
certain limitations and safeguards. The retentionist philosophy has also
been prevalent in some Asian, African, and Middle Eastern countries,
where the death penalty is often justified by religious, cultural, or political
reasons, and where the human rights norms and institutions are less
developed or respected.
The Indian Scenario
India is one of the few countries that have not abolished the death
penalty, but have also not used it extensively. According to the Lok Sabha
Secretariat’s Report on Death Penalty in India 1, India has executed 52
people since 1991, and has 371 people on death row as of December
2017. The report also states that India has voted against the UN General
Assembly resolutions calling for a moratorium on the use of the death
penalty, and has maintained that the death penalty is a sovereign right of
each country, and that it is imposed only in the “rarest of rare” cases, as
per the Supreme Court’s landmark judgment in Bachan Singh v. State of
Punjab (1980).
The Indian judiciary has played a crucial role in limiting the application of
the death penalty, by developing various principles and guidelines to
ensure that the death penalty is imposed only in the most exceptional and
deserving cases, and that the rights and interests of the accused and the
victims are duly considered and balanced. Some of the important judicial
decisions in this regard are:
  Bachan Singh v. State of Punjab (1980): The Supreme Court held
that the death penalty should be imposed only in the “rarest of
rare” cases, when the alternative option of life imprisonment is
“unquestionably foreclosed”. The court also laid down the principle
of “individualized sentencing”, which requires the court to consider
the aggravating and mitigating circumstances of the crime and the
criminal, and to give reasons for choosing the death penalty over
life imprisonment.
 Machhi Singh v. State of Punjab (1983): The Supreme Court
elaborated on the “rarest of rare” doctrine, and identified five
categories of cases that may fall under this category, namely, cases
involving (a) planned, cold-blooded, and brutal murders, (b) murders
committed for personal gain, © murders that have a destabilizing
effect on the society, (d) murders of members of law enforcement or
public officials, and (e) murders of women or children.
 Mithu v. State of Punjab (1983): The Supreme Court struck down
section 303 of the Indian Penal Code, which provided for mandatory
death penalty for murder committed by a person serving a life
sentence, as unconstitutional and violative of article 21 of the
Constitution, which guarantees the right to life and personal liberty.
The court held that section 303 was arbitrary, irrational, and unfair,
as it did not allow for any judicial discretion or consideration of the
circumstances of the offence or the offender.
 Jagmohan Singh v. State of U.P. (1973): The Supreme Court upheld
the constitutionality of the death penalty, and rejected the
arguments that the death penalty was violative of articles 14, 19,
and 21 of the Constitution, which guarantee the rights to equality,
freedom, and life. The court held that the death penalty was not
unreasonable, arbitrary, or excessive, as it was prescribed by the
law, and was subject to judicial review and executive clemency. The
court also held that the death penalty was not inhuman or
degrading, as it was imposed by hanging, which was a quick and
painless mode of execution.
 Shatrughan Chauhan v. Union of India (2014): The Supreme Court
commuted the death sentences of 15 death row convicts, on the
ground of delay in disposing of their mercy petitions by the
President. The court held that undue, inordinate, and unreasonable
delay in deciding the mercy petitions amounted to torture and
violated the right to life and dignity of the convicts. The court also
laid down certain guidelines for safeguarding the rights of the death
row convicts, such as providing them legal aid, informing them of
the outcome of their mercy petitions, giving them a minimum of 14
days notice before execution, allowing them to meet their family
members, and conducting a post-mortem report after execution.

The Indian legislature, on the other hand, has expanded the scope of the
death penalty, by introducing new offences that carry the death penalty,
or by enhancing the punishment for existing offences. Some of the recent
legislative amendments in this regard are:
  The Criminal Law (Amendment) Act, 2013: This act was passed in
the aftermath of the Nirbhaya gang rape and murder case, which
sparked a nationwide outrage and demand for justice. The act
amended the Indian Penal Code, the Code of Criminal Procedure,
and the Indian Evidence Act, to provide for more stringent
punishment for sexual offences, especially rape. The act introduced
the death penalty as a possible punishment for rape that causes
death or persistent vegetative state of the victim, or for repeat
offenders of rape.
 The Protection of Children from Sexual Offences (Amendment) Act,
2019: This act was passed in response to the increasing incidents of
sexual abuse and exploitation of children in the country. The act
amended the Protection of Children from Sexual Offences Act, 2012,
to provide for more severe punishment for sexual offences against
children, including the death penalty for aggravated penetrative
sexual assault, and for penetrative sexual assault by a person in a
position of trust or authority, or by a relative, or by a gang.
 The Unlawful Activities (Prevention) Amendment Act, 2019: This act
was passed to strengthen the anti-terrorism laws in the country, and
to empower the central government to designate individuals as
terrorists. The act amended the Unlawful Activities (Prevention) Act,
1967, to provide for the death penalty for any person who commits
a terrorist act resulting in death, or who conspires or attempts to
commit such an act, or who abets or facilitates such an act.

Abolitionist vs. Retentionist Positions in India

The above discussion shows that India has a complex and contradictory
position on the death penalty,
The above discussion shows that India has a complex and contradictory
position on the death penalty, which reflects the tension between the
abolitionist and retentionist philosophies. On the one hand, India has
adopted a cautious and restrictive approach to the death penalty, by
following the “rarest of rare” doctrine, and by providing various
safeguards and remedies for the death row convicts. On the other hand,
India has also retained and expanded the death penalty, by adding new
offences that carry the death penalty, and by invoking the death penalty
as a response to public outrage and demand for justice.
This suggests that India has not yet reached a clear and consistent stance
on the death penalty, and that it is influenced by various factors, such as
the nature and gravity of the crime, the public opinion and sentiment, the
political and legal context, and the international and human rights
obligations. It also indicates that India is facing a dilemma between
upholding the rule of law and the human rights of the offenders, and
satisfying the expectations and emotions of the victims and the society.
One way to resolve this dilemma is to engage in a critical and constructive
dialogue on the death penalty, by considering the arguments and
perspectives of both the abolitionist and retentionist philosophies, and by
examining the empirical and normative evidence and implications of the
death penalty. This would require a holistic and interdisciplinary approach,
involving various stakeholders, such as the judiciary, the legislature, the
executive, the civil society, the media, the academia, and the public. Such
a dialogue would also benefit from the insights of contemporary
philosophers, such as Judith Butler, who has challenged the conventional
and binary views on the death penalty, and has offered a nuanced and
complex analysis of the concept of cruelty.

Introduction
The death penalty has been a contentious subject throughout history,
igniting debates on morality, justice, and human rights. This article
explores the jurisprudence and practice of the death penalty in India,
examining the evolution of abolitionist and retentionist philosophies at
different historical junctures and under varying political contexts. By
delving into India's unique stance—where the judiciary limits the
application of the death penalty while the legislature broadens its scope—
we aim to unravel the complex tapestry of moral implications surrounding
capital punishment.

Abolitionist vs. Retentionist Philosophies

Through Time
Enlightenment Era: Proportionality vs. Deterrence
The Enlightenment era birthed divergent philosophies on the death
penalty. Abolitionists, epitomized by Cesare Beccaria, championed
proportionality and condemned the arbitrary nature of capital punishment.
Meanwhile, retentionists emphasized deterrence, asserting that the fear
of death would prevent individuals from committing heinous crimes.

19th Century: Human Rights vs. Retribution

The 19th century witnessed the emergence of human rights as a central
theme in abolitionist discourse. Philosophers stressed the dignity of
human life, challenging the retributive nature of the death penalty
endorsed by retentionists.

20th Century: Human Rights Movements and

Debates
The 20th century saw the rise of global human rights movements
influencing abolitionist arguments. Despite debates on the death penalty's
effectiveness and morality, retentionists maintained its role in deterring
crime and ensuring justice.

Contemporary Era: Global Trends and Ongoing

Debates
As the world tilts toward abolition, the contemporary era witnesses
nuanced debates on the death penalty. Abolitionist arguments focus on
the fallibility of justice systems and the irreversibility of the punishment.
Retentionists counter with claims of deterrence and the need for
retribution.

Global Perspectives on Death Penalty

Abolition
Overview: International Human Rights Standards
A brief exploration of the current global status of the death penalty and
key international human rights standards influencing the discourse.

Abolitionist Movements: International Advocacy

The role of international organizations in advocating for the abolition of
the death penalty, shaping global norms, and influencing countries like
India.

Indian Jurisprudence on the Death Penalty

Historical Context: From Tradition to Legal
Frameworks
Tracing the historical use of the death penalty in India and the evolution of
legal frameworks governing its application.

Judicial Caution: The "Rarest of Rare" Doctrine

Analyzing the Indian judiciary's cautious approach through the "rarest of
rare" doctrine, emphasizing selective application and individualized
sentencing.

Legislative Expansions: POCSO Act and 2018

Amendment
Examining legislative actions that have broadened the scope of the death
penalty, particularly the inclusion of offenses under the Protection of
Children from Sexual Offences (POCSO) Act and the Criminal Law
Amendment Act of 2018.

India in Practice - Abolitionist Elements

Selective Application: The "Rarest of Rare" Cases
A closer look at how the Indian judiciary selectively applies the death
penalty to cases deemed "rarest of rare," reflecting abolitionist ideals.

Limited Executions: The Gap Between Imposition

and Reality
Exploring the infrequent execution of death sentences in India and the
factors contributing to delays in the execution process.

India in Practice - Retentionist Elements

Legislative Expansions: Motivations and Implications
Investigating the motivations behind legislative expansions of the death
penalty and the public and political influences shaping these decisions.

Public Opinion: A Dichotomy of Views

A discussion on the diverse perspectives on the death penalty in India,
reflecting both retentionist and abolitionist sentiments.

Comparative Analysis - Abolitionist vs.

Retentionist
Theoretical Perspectives: Global Influences on Indian
Legal Thought
Drawing parallels between global philosophical underpinnings and India's
unique approach, highlighting the dynamics of international influences.

Practical Realities: Contrasting Judicial Caution with

Legislative Expansions
Analyzing the implications of India's contrasting judicial restraint and
legislative expansions, providing insights into the country's position on the
abolitionist-retentionist spectrum.
Cruelty and the Death Penalty - Butler's
Perspective
Cruelty and Ethics: A Critical Examination
Applying Judith Butler's perspectives on "Cruelty" to the death penalty in
India, evaluating the ethical dimensions of capital punishment.

Lok Sabha Secretariat's Report on Death

Penalty
Key Findings and Impact on Policy
Summarizing the findings of the Lok Sabha Secretariat's Report on the
Death Penalty and its potential impact on legislative and judicial
considerations.

Conclusion
Recapitulation and Reflection
Summing up the key points discussed in the article and reflecting on the
evolving nature of India's stance on the death penalty.

Future Considerations
Anticipating potential developments in Indian jurisprudence and exploring
the role of international standards in shaping the country's approach to
the death penalty.

Death Penalty - Jurisprudence and Practice in India

Introduction

The death penalty, also known as capital punishment, has been a

contentious issue for centuries, with abolitionist and retentionist
philosophers presenting compelling arguments from opposing
perspectives. This debate has played out across different historical
periods and political contexts, shaping the legal landscape of countries
worldwide. India, too, has grappled with this moral dilemma, reflecting the
global discourse in its own legal framework.

Abolitionist vs. Retentionist Perspectives

Abolitionist Perspectives

Abolitionist philosophers argue that the death penalty is an inherently

cruel and unusual punishment, violating the sanctity of human life and the
fundamental right to existence. They emphasize the irreversibility of the
death penalty and the potential for miscarriage of justice, where innocent
individuals may be wrongfully executed. They also question the
effectiveness of capital punishment as a deterrent to crime, suggesting
that other forms of punishment may be more effective in achieving
societal safety.

Retentionist Perspectives

Retentionist philosophers, on the other hand, maintain that the death

penalty is a justifiable punishment for certain heinous crimes, particularly
those involving premeditated murder or acts of extreme violence. They
argue that capital punishment serves as a form of retribution, providing
justice for victims and their families. They also believe that the threat of
the death penalty acts as a deterrent to potential criminals, reducing the
incidence of serious offenses.

Global Picture of the Death Penalty**

The global landscape of the death penalty is complex and constantly

evolving. As of 2023, there are 55 countries that have retained the death
penalty, while 108 countries have abolished it in law or practice. The
majority of countries that retain the death penalty are located in Asia,
Africa, and the Middle East.

The use of the death penalty has been declining in recent decades, with
the number of executions dropping significantly worldwide. This trend is
partly due to the growing influence of human rights movements and the
increasing recognition of the fallibility of the justice system.

India's Approach to the Death Penalty**

Courts' Approach: Limiting the Application of Death Penalty

The Indian Supreme Court has played a significant role in limiting the
application of the death penalty. In a landmark 1983 judgment, the Court
laid down the "rarest of the rare" doctrine, specifying that the death
penalty should be reserved for only the most exceptional cases. The Court
has further clarified this doctrine in subsequent judgments, emphasizing
the need for extreme caution and a thorough evaluation of mitigating
factors before imposing capital punishment.
This approach reflects the Court's recognition of the irreversibility of the
death penalty and the potential for miscarriage of justice. It also
demonstrates a growing sensitivity towards human rights and the
principles of proportionality in punishment.

Legislature's Approach: Expanding the Scope of Death Penalty

Despite the courts' efforts to restrict the application of the death penalty,
the Indian legislature has expanded the scope of offenses punishable by
death. In recent years, the legislature has amended the Indian Penal Code
and other laws to include more offenses that carry the death penalty, such
as certain provisions under the POCSO Act and the Criminal Law
Amendment Act of 2018.

This expansion reflects the legislature's concern about the prevalence of

heinous crimes, particularly those involving violence against children and
women. The legislature believes that capital punishment is a necessary
deterrent to such crimes and a means of providing justice to victims and
their families.

India's Position: A Balancing Act

India's approach to the death penalty reflects a balancing act between the
moral imperatives of abolitionism and the practical considerations of
retentionism. The courts' restrictive approach aligns with the principles of
abolitionism, emphasizing the sanctity of human life and the potential for
error in the justice system. The legislature's expansionary approach,
however, reflects retentionist sentiments, seeking to address the
challenges of crime and public safety through the threat of capital
punishment.

This juxtaposition of approaches suggests that India's position on the

death penalty is in flux. While the courts have moved towards a more
restrictive interpretation of the law, the legislature's actions indicate a
lingering belief in the necessity of this extreme form of punishment.
India's future stance on the death penalty will likely depend on the
continued dialogue between these opposing perspectives and the
evolving social and political landscape of the country.

Butler on Cruelty and the Death Penalty**

Philosopher Judith Butler has written extensively on the moral implications

of punishment, particularly in the context of the death penalty. In her
work on cruelty, she argues that the distinction between perpetrator and
victim often becomes blurred in the context of capital punishment, as the
state itself becomes an agent of violence. She questions the use of cruelty
as a means to achieve justice, suggesting that it may only perpetuate a
cycle of violence.

The legislative and judicial approach on death penalty in India is a

complex and evolving issue, which involves various aspects such as
constitutionality, legality, morality, deterrence, retribution, human rights,
and justice. The following is a brief overview of the main points of the
legislative and judicial approach on death penalty in India:
 The legislative approach on death penalty in India is based on the
Indian Penal Code, which outlines the circumstances under which
capital punishment can be awarded for nine offences, mainly related
to murder, treason, and terrorism. Apart from the Indian Penal Code,
there are at least 14 other special or local laws that also provide for
the death penalty for various offences, such as sati, drug trafficking,
and unlawful activities. Some of these laws prescribe mandatory
death penalty, which means that the judge has no discretion to
impose any other punishment. The legislative approach on death
penalty in India seems to be skewed towards retention and
expansion of the death penalty, as evident from the recent
amendments and enactments of new laws that have added more
offences to the list of capital crimes123
 The judicial approach on death penalty in India is primarily governed
by the Supreme Court of India, which has the final authority to
confirm or commute the death sentences awarded by the lower
courts. The Supreme Court of India has laid down the principle of
“rarest of rare cases” in the landmark case of Bachan Singh v. State
of Punjab (1980), where it held that the death penalty should be
awarded only when the alternative option of life imprisonment is
unquestionably foreclosed. The court has to consider the
aggravating and mitigating circumstances of each case and give
special reasons for imposing the death penalty. The judicial
approach on death penalty in India shows a more complicated and
nuanced story, as different benches of the Supreme Court have
adopted varying interpretations and applications of the rarest of
rare doctrine and the crime and criminal tests. The Supreme Court
of India has also been trying to streamline the entire death penalty
jurisprudence in the country, particularly in relation to procedural
aspects, such as confirmation, review, mercy, and
commutation. The judicial approach on death penalty in India
reflects a balance between the competing interests and values
involved in the death penalty, and a quest for justice and fairness in
each case1245
The legislative and judicial approach on death penalty in India is a
dynamic and contentious issue, which requires further research and
reform in this area. The death penalty in India is not imposed in every
case where the offence is punishable by death, but it is also not abolished
or restricted to a few exceptional cases. The death penalty in India is a
lethal lottery, which depends on various factors such as the nature of the
crime, the character of the offender, the discretion of the judge, the
quality of the legal representation, the mercy of the executive, and the
public opinion and sentiment. The death penalty in India is a matter of life
and death, which deserves careful and critical examination and
evaluation123

The death penalty is a legal process whereby a person is put to death by

the state as a punishment for a crime. The history and evolution of the
death penalty in India can be traced from ancient times to the present
day, as follows:
 Ancient India: The death penalty was practiced in ancient India, as
evident from the religious texts such as the Vedas, the Manusmriti,
and the Arthashastra. The death penalty was prescribed for various
offences, such as murder, theft, adultery, treason, and blasphemy.
The methods of execution included burning, drowning, beheading,
stoning, and impalement. The death penalty was also influenced by
the concept of karma and reincarnation, which implied that the soul
of the offender would suffer in the next life for the sins committed in
the present life12
 Medieval India: The death penalty continued to be practiced in
medieval India, under the rule of various dynasties and empires,
such as the Mauryas, the Guptas, the Mughals, and the Marathas.
The death penalty was imposed for offences such as treason,
rebellion, espionage, apostasy, and heresy. The methods of
execution included hanging, decapitation, crucifixion, poisoning, and
elephant crushing. The death penalty was also influenced by the
religious and cultural diversity of the region, which resulted in
different laws and practices for different communities and sects 12
 Colonial India: The death penalty was codified and standardized in
colonial India, under the rule of the British Empire. The death
penalty was incorporated in the Indian Penal Code, 1860, which
outlined the circumstances under which capital punishment could
be awarded for nine offences, mainly related to murder, treason,
and terrorism. The death penalty was also included in other laws,
such as the Indian Evidence Act, 1872, the Code of Criminal
Procedure, 1898, and the Defence of India Act, 1915. The method of
execution was hanging by the neck until death, as given under
Section 366 of the Code of Criminal Procedure, 1898. The death
penalty was also influenced by the political and social movements of
the time, such as the Indian independence struggle, the partition of
India, and the communal riots134
 Post-independence India: The death penalty was retained and
reformed in post-independence India, under the Constitution of
India, 1950. The death penalty was challenged on the grounds of
violating the fundamental rights, such as the right to life, the right
 to equality, and the right to dignity. The Supreme Court of India
upheld the constitutionality of the death penalty, but laid down the
principle of “rarest of rare cases” in the landmark case of Bachan
Singh v. State of Punjab, 1980, where it held that the death penalty
should be awarded only when the alternative option of life
imprisonment is unquestionably foreclosed. The court has to
consider the aggravating and mitigating circumstances of each case
and give special reasons for imposing the death penalty. The death
penalty was also amended and expanded in other laws, such as the
Code of Criminal Procedure, 1973, the Terrorist and Disruptive
Activities (Prevention) Act, 1987, the Narcotic Drugs and
Psychotropic Substances Act, 1985, and the Prevention of Terrorism
Act, 2002. The method of execution remained hanging by the neck
until death, as given under Section 354 (5) of the Code of Criminal
Procedure, 1973. The death penalty was also influenced by the
public opinion and sentiment, which varied from abolition to
retention, depending on the nature and impact of the crimes 123
The death penalty in India is a complex and evolving issue, which involves
various aspects such as constitutionality, legality, morality, deterrence,
retribution, human rights, and justice. The death penalty in India is not
imposed in every case where the offence is punishable by death, but it is
also not abolished or restricted to a few exceptional cases. The death
penalty in India is a lethal lottery, which depends on various factors such
as the nature of the crime, the character of the offender, the discretion of
the judge, the quality of the legal representation, the mercy of the
executive, and the public opinion and sentiment. The death penalty in
India is a matter of life and death, which deserves careful and critical
examination and evaluation12

The death penalty, a subject deeply entwined with the fabric of jurisprudence and ethics, has
sparked philosophical debates worldwide. The clash between abolitionist and retentionist
perspectives, rooted in theories of justice, retribution, and human rights, has evolved over
centuries. This discourse, influenced by diverse historical and political contexts, has left an
indelible mark on legal systems globally. In the Indian context, the interplay between
philosophy, legislation, and judicial practice reflects a nuanced approach to capital
punishment.

Historically, philosophers have grappled with the moral implications of the death penalty,
from the Enlightenment's emphasis on proportionality to the 20th century's human rights
movements.1 In India, this global philosophical tapestry is interwoven with the nation's own

1
David W Tarbet, Michael Foucault and Alan Sheridan, “Discipline and Punish: The Birth of the Prison” (1978)
11 Eighteenth-Century Studies 509.
legal and political dynamics. The Indian judiciary has, over time, sought to limit the
application of the death penalty, emphasizing stringent criteria for its imposition.
Simultaneously, legislative developments, such as the inclusion of offenses under the
Protection of Children from Sexual Offences (POCSO) Act and the Criminal Law
Amendment Act of 2018 expanding the scope of capital punishment for rape, present a
contrasting narrative.

This essay aims to explore the philosophical underpinnings of the death penalty, drawing
from global perspectives, and subsequently, contextualize these theories within the
framework of India's legal landscape. By analysing how the judiciary has restricted the
application of the death penalty while legislative acts have broadened its scope, we delve into
the apparent dichotomy within the Indian stance on capital punishment. Additionally, a
critical examination of resources such as Judith Butler's exploration of "Cruelty" and the Lok
Sabha Secretariat's Report on the Death Penalty will further illuminate the theoretical and
practical dimensions of India's position in the abolitionist-retentionist spectrum. This
exploration will shed light on the intricate balance India seeks to strike between justice,
deterrence, and the preservation of human rights in the realm of capital punishment.