Article 72 of the Constitution of India grants the President powers to pardon, reprieve, respite, or remit punishment; these include those involving death sentences, military courts, and federal offenses. Similarly, Article 161 gives these powers to the governors of states with certain limitations and not without the state government’s approval.
The death penalty is not just a legal sentence—it is a moral, political, and emotional issue. In India, capital punishment has been retained in law but is constitutionally restricted to the “rarest of rare” cases. However, the increasing influence of public opinions via the press and media coverage raises important concerns about whether judicial discretion in awarding death sentences is being compromised. This intersection of judicial procedure and public sentiments is where the real politics of death sentencing begins.
The Legal Standard: Rarest of Rare Doctrine
In Bachan Singh v. State of Punjab (1980), the Supreme Court upheld the constitutional validity of the death penalty but limited it to the “rarest of rare” cases. This principle demands that death be awarded only when alternative punishment is unquestionably foreclosed and the crime shocks the collective conscience of society.
The doctrine, however, is subjective and grants significant discretion to judges. This discretion, while necessary, also makes judicial reasoning vulnerable to external influences, particularly public outrage and media narratives.
Role of Public Opinion: Justice or Pressure?
Public opinion, especially in cases involving sexual violence or terrorism, often demands the harshest penalty. After the 2012 Nirbhaya case, there was a surge of demand for death sentences, eventually resulting in legislative amendments (Criminal Law Amendment Act, 2013) and later, expanded death penalty provisions for child rape cases.
This reflects how public anger translates into legal reform and judicial decisions. Courts, as human institutions, are not entirely immune to the “collective conscience” argument. The term itself—used frequently in judgments—blurs the line between judicial reasoning and populist response.
But should the courts deliver judgments to satisfy public demand or strictly on the basis of law, precedent, and proportionality?
Judicial Resistance to Populism
Despite rising public pressure in sensational cases, the Indian judiciary has, on several occasions, pushed back:
- In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009), the Supreme Court noted the arbitrary and inconsistent imposition of the death penalty and urged courts not to be swayed by public sentiment.
- In Shatrughan Chauhan v. Union of India (2014), the Court held that even death row convicts have constitutional rights, and delay in mercy petitions could be grounds for commutation.
These decisions reaffirm that judicial reasoning must remain anchored in fairness, not fear of public backlash.
The Media and the Mob: Trial by Public Perception
Media sensationalism has emerged as a potent force in shaping public opinion, which in turn pressures institutions to act decisively—even hastily. The phenomenon of media trials, particularly in heinous crimes, often influences not just the public but also the prosecution, investigative agencies, and, indirectly, the judiciary.
The problem becomes acute in death penalty cases, where irreversible decisions are made in the heat of public emotion.
The Death Penalty as Political Performance
In a democracy, the death penalty sometimes becomes a political tool—a way for governments to project “tough on crime” stances. Political leaders often use high-profile executions to send symbolic messages to the public.
The 2015 execution of Yakub Memon and the 2020 hanging of the Nirbhaya convicts were not just legal events—they were political spectacles, covered round the clock and celebrated publicly, raising concerns about state-sanctioned retribution being equated with justice.
Law Commission Report
The Law Commission of India, in its 262nd report, recommended that the death penalty may be abolished for all crimes other than terrorism-related offenses and waging war. The Commission, headed by Justice A.P. Shah, said in its report, “Although there is no valid penological justification for treating terrorism differently from other crimes, concern is often raised that abolition of the death penalty for terrorism-related offenses and waging war will affect national security.” The commission also said that it does not see any reason to wait any longer to take the first step towards abolition of the death penalty for all offenses other than terrorism-related offenses.
Conclusion: The Challenge Ahead
The death penalty debate in India must be understood not just in legal but also in sociopolitical terms. While public opinion is important in a democracy, the judiciary’s primary obligation is to uphold constitutional morality, due process, and human dignity. Judges must resist becoming instruments of public vengeance.
In the politics of death sentencing, the ultimate test of justice is not how loudly it satisfies the crowd but how silently it protects the principles of fairness, equality, and restraint—even in the face of unspeakable crimes.
Contributed by: Aishwarya Sharma (Intern)