The Dichotomy of Capital Punishment in India & Indian Legal System

This Article on The Dichotomy of Capital Punishment in India & Indian Legal System: A Unique Deterrent or a Biased Solution? is written by Ishaan Saraswat, a student of Jindal Global Law School.

Capital punishment in India or the death penalty is a retributory form of punishment given to the convicted in cases of capital crimes. In India, capital crimes come under the domain of the doctrine of ‘rarest of the rare’ as held in Bachan Singh vs. State of Punjab [AIR 1980 SC 898], (hereinafter “Bachan Singh”). This doctrine is not present in the codified laws; it acts as common law. Moreover, ‘rarest of the rare’ means that the death sentence can only be given in cases where the accused commits crimes of heinous, atrocious, and brutal nature. Usually, these cases are reflected in the criminal sphere and not in civil actions. Nevertheless, the question that arises is that, is capital punishment an effective deterrent to capital crimes? Does it impose fear in the minds of the criminals from committing an act?

Deterrence, in this regard, is a universally applicable principle that does not alter itself according to the identity of a person. In India, people have formed subgroups in the past, which help to distinguish themselves in society from others. The Hindu caste system is an instance of such a dominant subgroup mechanism. The caste system acts as a basis of distinction, and in many cases, a basis of discrimination. A system, well over two thousand years old, is still present and influences us in various spheres of life. This does not exclude the Indian judicial system. Capital punishment is an effective deterrent to crime, yet the application of capital punishment in India has been heavily influenced by discrimination based on caste and socio-economic background.

As stated earlier, capital punishment is a form of punishment with a retributory nature. Other forms of sentences like rehabilitation are not retributory in nature and focus on the restoration of the wrongdoer in society. Retribution is a crucial objective of criminal law in India. Retribution essentially means vengeance. It implies giving punishment for a wrongdoing. One may argue that as capital punishment is retributory, it acts as a deterrent to crime. Even though retribution and deterrence go hand in hand, it is not necessary that if something is retributory, it will always be a deterrent. The effect of deterrence on an individual is subjective. For instance, when the teacher in the classroom punishes for talking in class (retribution), rarely do students think about the punishment and continue to talk (lack of deterrence). However, it is different in the case of capital punishment.

“Most people will not commit a crime if they know they may be executed as a result; this is an outgrowth of man’s instinct for self-preservation.” (Hochkammer 1969, 360). This instills fear in the mind of the criminal and coerces them to think about the consequence of committing a capital crime. Deterrence, in this regard, refers to a universal principle. It does not constrain itself to a particular set of people or a particular region. It cannot be bent according to a specific group of people, like Indian subgroups, i.e., the Hindu caste system, for instance. Moreover, deterrence is an objective of capital punishment. It is something that the punishment seeks to achieve. Just like deterrence, the Indian criminal justice system also seeks to be just and fair in sentencing criminals. However, is it fair? If it is biased, on what grounds is it biased?

This bias is based on the Hindu caste system, which defines the socio-economic status of the people. According to a recent report, 76.9 percent of the people on death row in India belong to marginalized communities like Scheduled castes, Scheduled tribes, and Other backward classes, while only 23.1 percent of the prisoners come under the general category. According to this study, of the Scheduled castes/tribes, 85.4 percent of them and 74.1 percent of all the prisoners were found to be economically vulnerable. According to the ‘Death Penalty India report‘ by National Law University, Delhi, out of the general category in death row, a majority (64.4 percent,)is, in fact, economically vulnerable. Section 302 of the Indian Penal code, which lists out the punishments for a simple murder, states that either the death penalty or life imprisonment may be given. 68.3 percent of the people from the marginalized communities got capital punishment for murder, whereas only 5.3 percent of the people from the general category have been punished for murder. (National Law University Delhi 2016, 81). In my opinion, a simple murder does not come under ‘rarest of the rare.’

This points towards one direction. There is a certain logic behind why economically vulnerable people land up in jail. It is because they are unable to afford legal proceedings, proper legal representation, etc. Death row prisoners from both marginalized and non-marginalized are majorly poverty-ridden and uneducated. When a person is economically vulnerable and uneducated, they may enter the life of crime to sustain themselves. However, the statistics show that the doctrine of “rarest of the rare” is not followed for the marginalized people as they are sentenced to death for simple murders, kidnapping, extortion, etc. Apart from economic vulnerability, age and education play a massive role in the sentencing of the death penalty.

Looking at the age factor, the court held in Bachan Singh that capital punishment must not be given to young people as it is believed that they have their entire lives ahead of them, and rehabilitating & restoring them in the society as ordinary citizens is better than actually achieving retribution by punishing them. In the report, 18 prisoners were found to be below 18 years of age (juvenile) at the time of the incident. In 12 such cases, their age was not mentioned in the trial. This was due to a lack of interaction with the lawyers. For the rest, where the age of the wrongdoer was mentioned, the courts dismissed the claim. This was done without ordering for further investigation. Most importantly, all 18 prisoners belonged to the marginalized communities and had barely completed their primary education (National Law University Delhi 2016, 114).

The analysis of the facts presented in ‘Death Penalty India Report’ by National Law University, Delhi, therefore, becomes important as it is the first published report in India surveying various demographics. The facts presented reflects how Scheduled castes & Scheduled tribes and Other backward classes are discriminated against in the Indian context. India is one of the 78 countries in the world which has Capital punishment as one of its verdicts. However, having a judicial system that discriminates against its citizens makes us question its credibility. The death penalty is decisively given when the nature of the crime shakes up the entire nation, irrespective of the wrongdoer’s social status. For example, when a wrongdoer rapes a teen. This is majorly due to public protests and political agendas.

However, discrimination does take place in the adjudication of capital crimes. These cases neither come in the limelight nor come under the doctrine of ‘rarest of the rare.’ Hence, the system is biased towards upper castes and is heavily influenced by the socio-economic statuses of people and ill-treats the marginalized ones. Consequently, the accused people from marginalized communities face such discrimination in the judicial sphere in India. In Bachan Singh, Justice Bhagwati held “Death sentence has a certain class complexion or class bias in as much as it is largely the poor and the down-trodden who are the victims of this extreme penalty.”


  1. William O. Hochkammer, The Capital Punishment Controversy. The Journal of Criminal Law, Criminology, and Police Science 60, No. 3: 360-68 (1969). OI:10.2307/1141991.
  2. National Law University Delhi, Death Penalty India Report (New Delhi: National Law University, Delhi press) (2016).