India's Death Sentences: Judicial Discretion Under Scrutiny

Read The Diplomat, Know The Asia-Pacific Recently, a district judge awarded 23 death sentences in ten cases over a span of four months. Earlier this month, a judge in the northern Indian state of Uttar Pradesh hit the headlines for delivering 23 death sentences in just four months. Judge Ravi Kumar Diwakar’s 23rd death sentence involved a dowry death case where the man had burnt his wife over dowry demands. In his order, the judge made a grandiose claim that he would “prefer death than to be called a coward judge.” He alleged he was being targeted by “mafias, gangsters, criminals.” Incidentally, Uttar Pradesh stands first in the country with regard to the number of death sentences being handed out. Under Indian jurisprudence, only the “rarest of rare cases” justify the sentencing of a convict to death. However, Diwakar dispensed the death penalty rather freely, awarding 23 death sentences in just 10 cases. Alarmed by his propensity to award capital punishment, the more senior District Judge Virendra Kumar Singh transferred nearly 100 cases dealing with heinous crimes to his own court in August. Diwakar’s verdicts drew public attention to the larger issue of capital punishment in India. While permitted only in the “rarest of rare” instances, the death penalty, in practice, is being awarded on the discretionary views of the judge. Capital punishment is controversial and has triggered heated discussion in the past as well. While it is often welcomed by the public, especially in cases of brutal rape and murder, critics argue that the death penalty should not be allowed in a civilized society. Under Indian law, when the death penalty is handed out by a lower court, it needs to be ratified or adjudicated by the higher court, including the Supreme Court. If the courts uphold the death sentence, the president of India has the power to decide on a mercy petition or clemency plea of the convict. The president can commute the death sentence to rigorous imprisonment, grant remission, or even pardon the convict. Pranab Mukherjee, who was India’s president between 2012-2017, earned a reputation for being unsympathetic to mercy or clemency pleas. During his tenure, 34 mercy pleas came before him; he rejected 30 of them and commuted four to life imprisonment. Three executions were carried out while he was in office – that of 1993 Mumbai blast accused Yakub Memon, Parliament attack accused Afzal Guru and 26/11 Mumbai terrorist attack accused Ajmal Kasab. Mukherjee was unlike any of his predecessors. President Pratibha Patil was the most lenient; she commuted 34 death sentences and rejected five mercy petitions. While President K.R. Narayanan, an erudite man, did not decide on any mercy plea, President Abdul Kalam, a missile scientist, decided on only two, commuting the death sentence in one case and rejecting the other. They chose to leave to their successors the difficult decision of sending a man to the gallows. Statistics reveal a troubling reality. Indian trial courts have been meting out death sentences rather easily. In the majority of these cases, the punishment falls through when examined by higher courts. According to the legal news portal, Law Beat, “364 wrongful convictions have been recorded in capital cases over the past decade.” Since 2023, the Supreme Court has not confirmed any death sentence, citing procedural errors and wrongful convictions by lower courts. According to the Death Penalty in India Report 2000- 2015, of the 1,486 prisoners sentenced to death by trial courts, only 73 death sentences (5 percent) of the total were confirmed by higher courts. So, a whopping 95 percent of death sentences were thrown out by the higher courts. Particularly shocking is the fact that over a quarter of those sentenced to death were actually innocent. Of the 1,486 individuals sentenced to death, as many as 443, i.e., 29 percent, were found by higher courts to be “not just undeserving of the death sentence but actually to be innocent of the crime for which they were being sent to the gallows.” India’s criminal justice system is notorious for its slow delivery of justice. Those convicted spend years in jail, several on death row, before their appeals are finally decided, commuted, or acquitted. As of December 2025, approximately 574 individuals remained on death row, the highest figure this century. Proponents of the death penalty have often argued that it deters people from committing brutal crimes. However, global human rights watchdogs like Amnesty International have reiterated that there is no evidence that capital punishment deters crime, including crimes against women like sexual assault. Yet the clamor for the death penalty increases when heinous crimes, which evoke public outrage, occur. This was the case, for example, when “Nirbhaya,” a young woman, was brutally gang-raped in a moving bus in New Delhi in December 2012. She was thrown out on the streets with her entrails hanging out. When she subsequently died, the clamor for the accused to be hanged increased. When sexual violence laws were reformed in 2013, the death penalty was included among the penalties for sexual assault. In cases of rape leading to the victim’s death or resulting in her being left in a “persistent vegetative state,” and rape by repeat offenders, the maximum sentence could be death. The rape laws also expanded the definition of rape and criminalized acts including stalking, voyeurism, and acid attacks. These stringent punishments have not deterred rape. It is not the severity of punishment that deters crime but the certainty of conviction and punishment that could deter it. Rights activists have argued that rather than knee-jerk reactions like awarding the death penalty, what is required is systemic reform of the criminal justice system, police reforms, better investigations, and access to justice. An analysis of the profile of convicts reveals that capital punishment impacts the poor and marginalized members of society more severely due to a lack of proper legal representation. In 2019, Justice Kurian Joseph, while commuting a death sentence to life imprisonment, urged that the death penalty in India be reviewed. He noted that trial courts had been awarding it “arbitrarily and freakishly” under the influence of “emotionally charged public and media discourse.” Under the Bharatiya Nyay Sanhita (formerly the Indian Penal Code), awarding the death penalty is the absolute exception, in the “rarest of rare” cases. Before awarding it, the court needs to ascertain why the alternative option of life imprisonment cannot be handed out instead. Also, as per the law, the judge must actively consider mitigating circumstances (such as the criminal’s age, mental health, and potential for rehabilitation/ reform) along with the aggravating severity of the crime. Although there is no evidence that capital punishment deters crime, the Indian political class and society at large continue to demand