Abstract Capital punishment remains one of the most contested features of modern criminal justice systems. Positioned at the intersection of state authority and individual rights, it raises fundamental questions about justice, deterrence, proportionality, and the limits of state power. It also prompts continuing debate over whether the death penalty can ever be applied fairly in light of the possibility of irreversible error and the growing influence of human rights norms. This paper examines these concerns through a comparative analysis of three major jurisdictions—India, the United States, and China. While these reforms represent a substantial effort to modernise India’s criminal justice framework, their impact on the philosophical and judicial approach to capital punishment requires careful evaluation. The study argues that although India has revised its statutory structure, its underlying approach to the death penalty remains largely consistent with earlier jurisprudence. The new laws largely retain the substantive framework of capital punishment while introducing procedural and evidentiary reforms intended to strengthen due process. Indian courts continue to be guided by the “rarest of rare” doctrine, which reflects a cautious and restrictive approach to the imposition of the death sentence. A comparative perspective highlights significant contrasts. In the United States, capital punishment operates within a complex constitutional system characterized by federal diversity, extensive appellate review, and ongoing debates over fairness and proportionality. China, in contrast, retains a broader statutory scope for capital punishment and emphasises deterrence and social stability, though its practices remain subject to criticism for limited transparency.
Beyond formal legal structures, this study also considers persistent systemic concerns associated with capital punishment. These include the continuing risk of wrongful convictions, socio-economic disparities affecting access to legal representation, and the widening gap between retentionist jurisdictions and global abolitionist trends.
In conclusion, while India’s 2023 criminal law reforms enhance procedural safeguards, they do not resolve the deeper moral and legal challenges associated with capital punishment. As global legal discourse increasingly emphasises caution, transparency, and human rights, ongoing reassessment of the death penalty remains essential for the development of a more equitable criminal justice system.
Introduction
Throughout the world, there is a growing movement towards the abolition of the death penalty. This movement questions whether countries that still practice capital punishment, such as the USA, China, India, and Arab countries, view the death penalty as a violation of human rights or whether they prioritize the deterrent theory of punishment over the reformative theory. The purpose of punishment is closely tied to the concept of justice. If a punishment fails to achieve justice, it can be considered flawed. There are three main theories of punishment: deterrent, punitive, and reformative. As the world moves towards the abolition of the death penalty, it is evident that the focus has shifted away from the punitive approach and towards the reformative approach.
Among the countries that still carry out the death penalty, China stands out as having the highest number of executions, contributing to 60% to 80% of the total executions worldwide.
It is important to consider that the question of whether the death penalty is a human rights violation or the efficacy of different theories of punishment is a matter of debate and varies among different countries and legal systems. The trend towards abolition reflects a growing global consensus that capital punishment does not align with contemporary notions of justice and human rights.
The term “capital” in capital punishment finds its origin in the Latin word “capitalist,” which directly translates to “regarding the head” or “involving the head.” In ancient times, capital crimes were typically those serious offences that warranted the severing of the head from the body. This practice symbolised the ultimate form of punishment, signifying the severance of life itself.[1] Capital punishment, also known as the death penalty, represents the most severe form of punishment in any society or democracy, aimed at maintaining law and order. However, taking the life of an individual in the name of justice is morally equivalent to committing murder. Our focus should be on eradicating crime itself rather than solely punishing the offender. China stands out as the only country where the death penalty remains prevalent, resulting in over 1000 executions annually. On the other hand, India follows the “Rarest of the Rare” doctrine and frequently commutes death sentences to life imprisonment. Nevertheless, India has executed a total of four criminals between 2002 and 2015. These countries share certain similarities in the procedures and laws surrounding capital punishment, but in China, once the death penalty is imposed, it is irreversible. This is the basis for the United Nations’ opposition to the death penalty, with the belief that life is invaluable and death is irrevocable. The UN further asserts that when we kill another human being in the name of justice, we undermine our own humanity. It is not our role to determine who lives and who dies. Instead of resorting to hanging someone to death, we should embrace alternative approaches, such as a reformative approach, which allows individuals to improve themselves and lead peaceful lives.
Punishment can be understood as the use of lawful coercion by the State to ensure obedience to the law, making it an essential feature of modern civilised societies. It is primarily the responsibility of the State to punish offenders in order to preserve social order and stability. In earlier times, however, there were no clearly defined legal rules governing crimes, and punishments often depended on the personal discretion of the ruling monarch. With the evolution of legal systems, modern theories of punishment developed, and individuals gradually entrusted the State with the authority to exercise power on their behalf to maintain law and order. The abolition of the death penalty remains a highly debated issue within the United Nations (UN), largely because it is often viewed as a violation of human rights. In its approach to criminal justice, the UN places greater emphasis on the reformative theory of punishment rather than the deterrent theory, focusing more on rehabilitation than on harsh penalties. A crucial remark was made by “Justice V.R. Krishna Iyer” in the case of “Rajendra Prasad v. State of Uttar Pradesh”[2], who said that the “special reason” had to be related to the criminal rather than the crime. Despite how horrifying the murder was, the perpetrator might not have deserved to die they says that “The special reason must relate, not to the crime but to the criminal. The crime may be shocking and yet the criminal may not deserve the Death Penalty”[3]
When we examine the different theories of punishment, it becomes evident that the Reformative Theory holds certain advantages over the Deterrent Theory. In the Reformative Theory, there exists a possibility for improvement and rehabilitation, whereas this opportunity is completely absent in the Deterrent Theory. In India, prisoners in Tihar Jail, for instance, engage in activities such as making essence sticks and incense cones, which can contribute to their adjustment and integration into society. Conversely, the Deterrent Theory lacks a humane essence and fails to provide opportunities for personal growth and improvement.[4] Many societies throughout history have supported the use of the death sentence. An eye for an eye was the guiding principle of retributive justice in the ancient Roman and Jewish societies. The United States acquired its use of the death penalty from European settlers who arrived in the seventeenth century and held the opinion that grave crimes called for harsh punishment. But in the seventeenth century, intellectuals started to voice moral objections to the death penalty. Italian criminologist Cesare Beccaria opposed the death penalty as a deterrence to crime because it was both ineffectual and overly cruel. Immanuel Kant, a philosopher from Germany, on the other hand, thought that the death penalty was the most appropriate way to punish murderers because it would release them from their agony.[5]
[1] “Suriname and Haiti to lead abolitionist way in the Caribbean” World Coalition Annual General Meeting in San Juan, Puerto Rico published on June, 27, 2014 retrieved on march , 02, 2026 from http://www.worldcoalition.org
[2] AIR 1979 S.C. 916
[3] Rajendra Prasad vs State of UP, 1978 AIR 916
[4] https://journal.indianlegalsolution.com/2020/04/15/capital-punishment-in-india-a-critical-analysis-prateek-jain/
[5] Agrawal R.K. “Different Stages of Crime and mens rea,” Agrawal’s Thirty Questions on Indian Penal Code [with question index] (1998) P. No.11.