Abstract

This article examines the Indian Supreme Court’s shift from focusing on the crime in death penalty cases to focusing on the fairness of the sentencing process. It argues that recent cases have made procedural safeguards central to capital punishment, creating a de facto move toward abolition without formal repeal. Using cases such as Bachan Singh, Shatrughan Chauhan, Manoj, and Vasant Sampat Dupare, the article shows how the Court has increasingly emphasized mitigation, delay, mental health, and due process. It also situates India within the broader global debate on retentionist and abolitionist-in-practice states.

In India, the death penalty formally survives under the doctrine of the “rarest of rare” crimes anchored by the case of Bachan Singh,[i] a threshold meant to reserve capital punishment for only the most exceptional offences. As of December 2025, India has total of 574 persons on a death row.[ii] Seen in the report of the square circle clinic (previously, Project 39A) for the year 2025,[iii] for the last five years, the number of prisoners on death penalty have constantly increased but the last hangings took place back in the year 2020. In fact, India has not seen a lot executions but instead, very few executions since 2000, the number as of today stands at 8. The reason for the same can be attributed to India’s Supreme Court’s jurisprudence, it reveals a subtle but profound shift, which is, it is no longer the crime alone that determines whether the death sentence stands, but the fairness of the process by which it was imposed. It was most recently seen in the case of Vasant Sampat Dupare vs. Union of India.[iv]

This procedural approach specifically taken by the apex court over time leaves one wondering on how courts can simply erode the practice of death penalty without formally abolishing it, giving effect to several outcomes which the apex court wouldn’t want given the focus it has reflected upon the background and overall health of the convicts. This blog shed light on this very thought of the author.

From Crime to Process: The Jurisprudential Shift

When the Supreme Court in  Bachan Singh v. State of Punjab determined the constitutionality of the death penalty in 1980, it attached that punishment to the “rarest of rare” doctrine, which was further developed in  Machhi Singh vs State of Punjab[v], when it stated solely crimes so heinous and extraordinary as to shock the collective conscience would warrant the death penalty. The focus at that point was solely on the nature of the crime.

But over time, the Court’s approach changed. In Shatrughan Chauhan v. Union of India[vi], the Court commuted multiple death sentences not because the crimes failed “rarest of rare,” but rather that the process leading up to the executions including months of delay, mental health issues, and failed mercy pleas, did not comply with the Constitution. Later in Manoj v. State of Madhya Pradesh[vii], the Court stressed sentencing courts to conduct psychological evaluations and gather more comprehensive mitigation evidence regarding a defendant’s background, thus making process central to capital sentencing.

The Dupare ruling is the most recent impediment on the road to execution because at one hand where it solidifies the emphasis that needs to be given to mitigating factors and due process, it also opens up the sentencing stage again under Article 32 once all appeals and mercy petitions have been rejected. Any departure from the procedural safeguards in the existing model can bring down a death sentence at this point. The death penalty scandal is less about the heinousness of the offending conduct and more about the integrity and the process of the entire judicial system surrounding that conduct. In this way, the rarest of rare doctrine may be reimagined and repurposed from an offence test to a process test, capital punishment case is a process where very often the failings of the system outweigh an execution.

India as a Retentionist–Abolitionist State

India today inhabits a paradoxical position in global death penalty jurisprudence. On the one hand, it remains retentionist in law. Looking at last year’s data of the Square Circle Clinic, session courts across the country sentenced 128 persons to death[viii],  making India one of the jurisdictions where death sentences are still actively awarded at the first instance.

Yet, on the other hand, India seems to be moving towards the category of abolitionist in practice. Unlike the trial courts, the  Supreme Court has rarely allowed these sentences to culminate in execution, despite the high number of death sentences imposed by the subordinate courts. Instead, it has steadily erected layers of procedural safeguards that make the death penalty’s execution increasingly difficult with the passing years. For the third consecutive year (2023-25), the Supreme Court did not confirm any death sentences.(see here). The Court has shifted the death penalty’s centre of gravity from the nature of the crime to the robustness of the process. The net effect is that executions are exceedingly rare: only four convicts have been executed in the past decade, last execution seen in the year of 2020. Five years since then, no execution has taken place, and instead the process to execute has now been made even more difficult with the recent ruling of the apex court in the case of Dupare.(see here and here)

This paradox is not unique to India. Many jurisdictions occupy what scholars describe as a “middle category” between retention and abolition. According to the report of Death Penalty Information Centre, in the United States, two-thirds i.e. 33 out of 50 states have either abol­ished the death penal­ty or have not car­ried out an exe­cu­tion in at least 10 years. The category of “abolitionist in practice” must be applied with caution. Richard C. Dieter cautions that hiatuses may stem from temporary moratoria rather than principled opposition, for instance, Ohio saw no executions between 1963 and 1999 yet has conducted 53 since. (see here, pg. 8)

Sri Lanka is an another example, it has not carried out an execution since 1976 despite retaining capital punishment in statute, though they have more than 1,000 individuals on death row. Tanzania similarly, maintains the death penalty on its books but has refrained from executions for decades. India, too, now appears to be aligning with these jurisdictions, where the punishment survives in law, but the machinery of execution has become so constitutionally burdened that the death penalty is increasingly symbolic rather than real.

A System in Stalemate

Since 2000, only eight executions have taken place, none in the last five years. Clubbing this fact with Dupare’s decision, along with the earlier decisions discussed above, indicates that executions in India are not just rare, but constitutionally constrained. With the retrospective application of Dupare’s ruling, it has also changed the backdrop of capital punishment. The supreme court has not confirmed any death sentences for at least two years, and those limited confirmations from earlier years are now open to being heard anew with this judgement. And because there have been no executions in India for the last five years, this ruling very much entrenches the practice of not conducting executions.

This trend is representative of the situation in Sri Lanka. If India’s jurisprudence continues down its current path, which may impose increasingly strict procedural safeguards without formally abolishing the death penalty at the outset, India runs a similar risk of getting stuck in a situation of sort of limbo.

At the same time, these procedural safeguards risk entrenching the death penalty that they are meant to limit. By creating stricter and stricter standards for capital punishment without taking on the question of the morality of capital punishment, the Supreme Court may unknowingly effectively legitimise the continued use of capital punishment. These procedural safeguards maintain a veneer of propriety and constitutionalism, while the actual practice remains dehumanising and arbitrary. This struck me as paradoxical, the clawing for the process to legitimise a punishment that may be irredeemably wrong, and brings out the limits of the Indian approach to capital punishment.

Another observation is that our trial courts in India continue to impose death sentences at high rates, creating a pipeline of convicts sentenced to death. Square Circle Clinic’s data for 2025, recorded 128 fresh death sentences in a single year. While at the appellate stage, Supreme Court consistently interrupts this pipeline. This dissonance weakens both consistency and credibility. For trial courts, death sentences retain symbolic value as a marker of severity against heinous crimes, yet at the apex level, the same sentences are viewed through the prism of constitutional morality and due process, resulting in commutations or endless delays. The outcome is a judicial system caught between retention in theory and abolition in practice, with prisoners suspended in a state of uncertainty that neither delivers justice to victims nor closure to the accused.

Such a situation creates significant normative and humanitarian dilemmas as well. On the one hand, courts may be seen as upholding human rights and due process by revisiting what could be wrongful executions; on the other hand, retaining the death penalty as a potential punishment without enforcing it condemns prisoners to prolonged psychological suffering, sometimes for years or even decades, as they live under the constant threat of an execution that may never occur. This “death row limbo,” beyond its severe mental health consequences for prisoners, also risks overwhelming the judicial process with fresh challenges and repeated reviews. In this context, when the Apex Court appears deeply invested in ensuring that capital punishment is imposed only through a fair and rigorous evaluative framework, the reopening of decisions already finalized in previous years threatens not only to prolong the legal battle but also to intensify the psychological and mental strain endured by the accused.

[i] Bachan Singh vs State of Punjab, (1982) 3 SCC 24

[ii] Sqaure Circle Clinic, Death Penalty in India, Annual Statistics Report 2025 & 10 Years of Death Penalty Data (2016-2025), (NALSAR Hyderabad, 2025) 64.

[iii] Ibid 66.

[iv] Vasant Sampat Dupare vs Union of India, 2025 SCC Online SC 1823

[v] Machhi Singh and Ors. Vs State of Punjab, AIR 1983 SC 957

[vi] Shatrughan Chauhan and Anr. vs Union of India, (2014) 3 SCC 1

[vii] Manoj vs The State of Madhya Pradesh, (2023) 2 SCC 353

[viii] Sqaure Circle Clinic, Death Penalty in India, Annual Statistics Report 2025 & 10 Years of Death Penalty Data (2016-2025), (NALSAR Hyderabad, 2025) 8.