THE DEATH PENALTY IN INDIA: ARGUMENTS FOR AND AGAINST A PEER-REVIEW READY RESEARCH PAPER IN CRIMINAL AND CONSTITUTIONAL LAW

India's capital punishment regime is constitutionally anchored in the 'rarest of rare' doctrine enunciated by the Supreme Court in Bachan Singh v. State of Punjab (1980). This paper advances a central thesis absent from the existing literature: the rarest of rare standard is not merely inconsistently applied, but is structurally incapable of principled application, because it delegates an inherently legislative determination — which categories of crime merit death — to individual judicial discretion without adequate normative guidance. This structural deficiency produces three compounding failures: arbitrary sentencing outcomes that violate Articles 14 and 21 of the Constitution; a systematic disadvantaging of marginalised defendants who lack the resources to present mitigating evidence; and the progressive erosion of the doctrine's own legitimating premise of exceptionalism, as case law has expanded rather than constrained its application. Drawing on empirical data from Project 39A's Death Penalty India Report (2016) and Deathworthy (2021), comparative jurisprudence from South Africa and international human rights law, and a critical reading of post-Bachan Singh precedent, this paper argues that the appropriate response is not judicial recalibration — which prior scholarship has repeatedly called for without effect — but legislative codification of death-eligible offences coupled with a mandatory sentencing commission. The paper thus contributes a structurally grounded diagnosis and a concrete institutional remedy to a debate that has remained, in the existing literature, largely descriptive and prescriptively vague.