The debate over capital punishment has long been a contentious issue across the globe. While some view it as an indispensable deterrent against heinous crimes, others argue it is a violation of human rights. Jurisprudence on capital punishment varies significantly between countries, with India maintaining the death penalty for certain crimes, while other nations, such as those in the European Union, have entirely abolished it.

1. The Death Penalty in Indian Jurisprudence: A "Rarest of Rare" Doctrine

Indian jurisprudence has a long history of grappling with the question of capital punishment. However, the judiciary has imposed significant limitations on the imposition of this ultimate punishment through its interpretation of Article 21 of the Constitution, which guarantees the right to life and personal liberty.

The Supreme Court of India, in the landmark case Bachan Singh v. State of Punjab[1], laid down the "rarest of rare" doctrine, which continues to guide the application of the death penalty. The court held that capital punishment should only be awarded in cases where the crime is so heinous and gruesome that it shocks the collective conscience of society. This doctrine underscores the careful balancing act between the need for justice and the preservation of life. However, critics argue that the phrase "rarest of rare" is inherently subjective, leading to inconsistent application.

2. Judicial Evolution and Case Law: From Execution to Commutation

Despite the retention of the death penalty in India, judicial trends have shown increasing reluctance to carry out executions. In Machhi Singh v. State of Punjab, the Supreme Court expanded upon the "rarest of rare" doctrine, laying out specific guidelines for determining when the death penalty is appropriate. Factors such as the brutality of the crime, the victim's vulnerability, and the accused's lack of remorse have been considered in deciding whether to impose the death penalty.

However, in more recent years, the judiciary has demonstrated a preference for commutation over execution. In Shatrughan Chauhan v. Union of India[2], the Supreme Court commuted the death sentences of several convicts on the grounds of inordinate delay in carrying out their executions, which was held to be a violation of their constitutional right to life under Article 21. This case emphasized that delay in execution could amount to mental torture, further underlining the Indian judiciary's growing discomfort with the death penalty.

3. Foreign Jurisprudence: The Trend Towards Abolition

In contrast to India’s cautious retention of the death penalty, several foreign jurisdictions have moved towards abolition. The European Union (EU) remains at the forefront of the movement to abolish capital punishment. Article 2 of the EU Charter of Fundamental Rights explicitly prohibits the death penalty, reflecting the region's staunch opposition to capital punishment. The European Court of Human Rights has consistently ruled against the death penalty, finding it incompatible with the right to life and the prohibition of torture under the European Convention on Human Rights (ECHR).

A notable case in foreign jurisprudence is Soering v. United Kingdom[3], where the European Court of Human Rights ruled that extraditing a German national to the United States, where he faced the death penalty, would violate Article 3 of the ECHR due to the "death row phenomenon"—the prolonged period awaiting execution in prison. This decision has had a profound influence on the abolitionist movement in Europe, with many countries refusing to extradite individuals to jurisdictions where they face the death penalty.

4. United States: Death Penalty and Procedural Safeguards

The United States, unlike many Western democracies, continues to retain the death penalty, albeit with stringent procedural safeguards. Capital punishment in the U.S. is primarily governed by the Eighth Amendment to the Constitution, which prohibits "cruel and unusual punishments." The U.S. Supreme Court has, over the years, delivered several landmark judgments refining the application of the death penalty, emphasizing fairness and due process.

In Gregg v. Georgia[4], the Supreme Court upheld the constitutionality of the death penalty but introduced guidelines to minimize arbitrariness, requiring bifurcated trials where sentencing is decided separately from guilt. This case restored the death penalty after it had been briefly declared unconstitutional in Furman v. Georgia, where the court found that the arbitrary and discriminatory manner in which the death penalty was imposed violated the Eighth Amendment.

Moreover, in Atkins v. Virginia[5], the U.S. Supreme Court held that executing intellectually disabled individuals violated the Eighth Amendment, and in Roper v. Simmons[6], the court ruled that imposing the death penalty on juveniles was unconstitutional. These decisions reflect the evolving standards of decency in American society, signaling a shift towards greater restrictions on the use of capital punishment.

5. Human Rights Perspectives and Global Trends

Globally, there has been a significant shift towards the abolition of capital punishment. The United Nations has played an instrumental role in advocating for the abolition of the death penalty, viewing it as a violation of fundamental human rights. The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)[7], which aims to abolish the death penalty, has been adopted by numerous countries, though India and the United States are notable exceptions.

The death penalty has increasingly been framed as a human rights issue, with arguments focusing on its irreversible nature and the risk of wrongful convictions. The case of Sunny Ang v. Public Prosecutor[8] from Singapore highlights the danger of wrongful executions, as Ang was sentenced to death based on circumstantial evidence, raising concerns about the infallibility of the justice system.

6. Conclusion: A Diminishing Justification

The global trend toward abolition reflects the growing unease with the morality, fairness, and effectiveness of the death penalty. While India continues to retain capital punishment, the judiciary has shown increasing reluctance to impose it, often favoring commutation over execution. Foreign jurisdictions, particularly in Europe, have largely abolished the death penalty, viewing it as a violation of human rights.The risks of wrongful conviction, inconsistent application, and the prolonged mental agony of death row prisoners have all contributed to the diminishing justification for the death penalty. While some countries, like the United States, continue to uphold capital punishment with procedural safeguards, the global shift toward abolition suggests that the death penalty may one day become a relic of the past.