Capital punishment, or the death penalty, wherein the guilty person is hanged till death, is awarded as a punishment in various offences under the Bhartiya Nyaya Sanhita,2023[1].For example, waging or attempting or abetting to wage war[2], abetting or committing mutiny[3], committing perjury which leads to the person against whom the false evidence is given, being awarded the capital punishment[4], threatening a person to give false evidence when it leads to the innocent person being awarded death punishment due to the false evidence[5], murder[6], abetting a child, unsound person, delirious person, or an intoxicated person to commit suicide[7], a person serving life sentence when attempts to commit a murder and if hurt is caused in that attempt[8], kidnapping a person and threatening to cause death or hurtto compel the government or any other person to do or abstain from doing any act or to pay ransom[9], committing rape resulting into persistent vegetative state of the victim[10],gang rape of a woman under eighteen years of age[11], certain offenders who have earlier also been convicted of rape[12], dacoity with murder[13].
The inclusion of the punishment of death penalty has been debated oftentimes, as it has two facets. One being the fact that the victim and the family of the victim deserves to be awarded with justice wherein they have the assurance that the wrong doer has been subjected to a just punishment. And on the other hand, the critics of death penalty argue that we may consider life imprisonment without parole as an option instead of the capital punishment, because, to deprive a person of his right to life and to do an eye for an eye kind of a justice is not humanly acceptable.
If we try to understand the reasons why the death penalty has still been kept as a punishment in certain offences, we may find the reasons like the emotional and mental sufferings which the family of the victims in such offences face, which calls for a punishment which will be enough, sufficient and just, to provide those families with a sense of justice actually delivered and they can take a little bit of a sigh of relief out of the traumatic experience of watching their loved ones in that state. Such feelings are even more amplified in the cases involving extreme cruelty inflicted upon the victim and where the seriousness of the crime is such that it demands justice through punishment which is sufficient.[14]
On the other hand, many human rights activists, legal scholars, some people of the society are also not in agreement with the concept of capital punishment and they are of an opinion that the death penalty is against the values of human dignity and they further emphasise on the fact that even if we provide death penalty as a punishment for certain offences, we do not possess any strong proof regarding the fear in the minds of the criminals from committing these offences. The Justice Verma Committee, set up after the Nirbhaya gang rape case of Delhi[15] chose not to support death penalty to be included as a punishment of rape and suggested life imprisonment instead of a capital punishment.
India’s continued use of death penalty goes against the global trends which are moving towards abolishing death penalty, for example, countries like Austria, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Liechtenstein, Luxembourg, Netherlands, Norway, Portugal, Romania, San Marino, Slovakia, Slovenia, Sweden, Switzerland, United Kingdom. International human rights groups, such as the United Nations, have tried to abolish the death penalty, arguing that it violates the basic rights to life and dignity. These rights are protected against Article 6 of the International Covenant on Civil and Political Rights (ICCPR), which clearly states that everyone has the right to life and should not be unfairly deprived of it. Many people are of the opinion that the death penalty is cruel and is degrading to a person’s life, and believe it does not align with these standards ofhuman rights.[16]Further, at times, the due process of law and fairness gets compromised and the innocent person gets convicted. One such case is Devinder Pal Singh Bhullar[17], who was sentenced to death in 2001 after a confession was obtained under the now repealed Terrorist and Desruptive Activities (Prevention) Act (TADA). This case highlights the problems with relying on questionable evidence, which increases the risk of wrongful executions. These situations bring attention to the dangers of capital punishment, especially in legal systems where procedural protections might not be strong enough. Another major concern is that the justice system is the lack of quality legal representation, especially for those people who originate from economically or socially backward families. Many accused people cannot afford to get a good advocate, which leads to them not having access to weak defences and a higher chance of wrongful convictions. This highlights the deep inequalities which may exist in certain situations where the prosecution is having enough resources and knowledge to make a strong case and the accused is devoid of proper legal assistance. Furthermore, at times, we tend to see that coerced confessions are made by the accused under pressure. There have been many instances of law enforcement officers using force or threats to get confessions, under a pressure to solve high profile cases. Hence, they use methods like resorting to torture or intimidation, to extract confessions out of the accused. These practices are violative of human rights and these things also compromise the reliability of evidences which are there in the case, which at times are not even brought to the notice of the court so that the prosecution can benefit unfairly and it therefore leads to innocent people getting conviction.
Unreliable testimonies of eye-witnesses are another reason behind innocent people being wrongly convicted. Factors like biased identification methods, or personal prejudice, can also affect what a witness says in front of the court. Relying on such testimonies, especially without supporting evidence, can lead to serious mistakes, specifically in the cases involving death penalty as a punishment, as in these cases, a person’s life is involved.
The appellate system of India has highlighted these issues, especially from the years 2016 to 2022, where the High Courts and the Supreme Court have acquitted over two hundred individuals, which were sentenced to death. The reason behind acquittal in these appeals was the unavailability of enough strong evidences. These reversals of sentences show how flawed the trial process can be at times and how dangerous it is to have a punishment as harsh as the death penalty in the legal system because of such errors.[18]
Therefore, if we look at the pros and cons of having the capital punishment as a punishment for certain offences, the cons are overshadowing and surpassing the pros. Therefore, we may try to look at alternative punishments when it comes to the offences which have death penalty as a punishment. Alternative which seeks to be of much utility and effective a punishment for such grave offences is- life imprisonment without parole. However, if we look at the punishment of life imprisonment without parole, it can also raise significant legal and human right challenges. Like, if we keep a person in prison for life without any chance left with him to apply for a parole also can be a violation of their dignity as it can lead to them having poor living conditions or mental health issues. That is why we need to incorporate clear laws around the punishment of life imprisonment without parole, to make sure that it is used only for the most serious crimes and includes regular reviews by the courts.
In India, if we opt for using life imprisonment without parole instead of death penalty, it would need changes in laws and a re-assessment of current sentencing practices. Judges also need to consider whether this kind of punishment is in consonance with the policies of our constitution, especially the right to life and liberty under Article 21[19]. Even though life imprisonment without parole could work as an alternative to capital punishment, it must come with proper checks to avoid misuse and to keep the justice system fair and humane.
To conclude, if we analyse the various advantages and disadvantages of having death penalty as a punishment, we can agree to the fact that in the cases of certain grave offences, the victim and his family deserve to get the accused to get a befitting punishment not as a revenge but as a justified punishment for the person who did them so wrong because we never know the economic background of the victim as he may be the sole breadwinner of the family and his family might have to suffer a lotdue to the crime committed against him.
Conversely, we know that the accused is at times subjected to torture due to which he does false confession and they end up getting the death sentence. Also, at times the economic condition of the accused is such that he is not able to afford a good lawyer and will not be able to defend himself properly which may lead to an innocent person getting a conviction. Therefore, to explore alternative punishment instead of death penalty in cases which are not too grave can be a good option which also would be in consonance with a person’s human rights and also be a punishment which would be sufficient enough for the offence committed by the person.
[1] Bhartiya Nyaya Sanhita, Act No.45 of 2023
[2] Bhartiya Nyaya Sanhita,2023, Section 147
[3] Bhartiya Nyaya Sanhita,2023,Section 160
[4] Bhartiya Nyaya Sanhita,2023, Section 230
[5]Bhartiya Nyaya Sanhita,2023,Section 232
[6] Bhartiya Nyaya Sanhita,2023, Section 103
[7] Bhartiya Nyaya Sanhita,2023, Section 107
[8] Bhartiya Nyaya Sanhita,2023, Section 109
[9] Bhartiya Nyaya Sanhita,2023, Section 140(2)
[10] Bhartiya Nyaya Sanhita,2023, Section 66
[11] Bhartiya Nyaya Sanhita,2023, Section 70(2)
[12] Bhartiya Nyaya Sanhita,2023, Section 71
[13] Bhartiya Nyaya Sanhita,2023, Section 310
[14] 76% Indians Want Death Penalty For Rapists, Want States To Award Capital Punishment, Finds Poll, available at: https://www.indiatimes.com/news/india/76-indians-want-death-penalty-for-rapists-want-states-toaward-capital-punishment-finds-poll-344046.html (last visited May 13, 2025).
[15] Mukesh & Anr. v. State for NCT of Delhi & Ors., (2017) 6 SCC 1
[16] India: Death Penalty Never the Solution to Crime and Violence Against Women, available at: https://www.amnesty.org/en/latest/news/2024/09/india-death-penalty-never-the-solution-to-crime-and-violenceagainst-women/ (last visited May 10, 2025).
[17] Devinder Pal Singh Bhullar v. Union of India, (2014) 3 SCC 1
[18] Kent Roach, Wrongful Convictions, Wrongful Prosecutions and Wrongful Detention in India, available at: https://papers.ssrn.com/s013/papers.cfm?abstract_id=4729087 (last visited May 11, 2025)
[19] Art. 21, The Constitution of India, 1950