Know The Law

Capital Punishment In India

The issue of capital punishment is hotly contested. India votes for it occasionally, although it is lawful. Because life in prison is a possibility, the imposition of the penalty is not always followed by it. Although many nations have laws that allow the death penalty, there is still no worldwide agreement on whether it is legal. The legal system in India has also debated whether the death sentence is legitimate and under what circumstances it may be imposed.

What is Capital Punishment?

The death penalty, often known as capital punishment, is the execution of a person who has been found guilty and condemned to death by a court of law. One of the crucial components of the death penalty in India is the criminal justice system.

Evolution of Capital Punishment in India

India kept the 1861 Penal Code, which imposed the death sentence for murder until it attained independence in 1947. Several members of the Constituent Assembly advocated for the abolition of the death sentence while the Indian Constitution was written between 1947 and 1949, but no such provision was included. Over the following two decades, private member's bills to abolish the death sentence were introduced in both chambers of parliament, but none of them was passed. Between 1950 and 1980, there were 3000 to 4000 executions, according to estimates. It is more difficult to quantify the number of people who were given death sentences and put to death between 1980 and the middle of the 1990s.

According to estimates, two or three people are hanged per year. In the Bachan Singh case of 1980, the Supreme Court decided that the death sentence should only be applied in the "rarest of rare" circumstances. However, it is unclear what constitutes the "rarest of the rare."

The “Rarest of the Rare” Doctrine

The legislative requirement has shifted from the death penalty being the norm to being the exception and needing to be supported by reasons between 1973 and 1980. The case of Bachan Singh v. the State of Punjab was a turning point in the heated discussion around whether the death penalty is consistent with Article 21 of the Constitution. While upholding the legality of the death sentence, the Supreme Court stated the view that opposition to taking a life through the use of the legal system presupposes genuine and lasting respect for the dignity of human life. Only in the rarest of situations, when the choice is categorically foreclosed, should that be done.

The Court did not specify any aggravating or mitigating circumstances since doing so would restrict the judge's ability to use discretion, but it did rule that murder that was "diabolically planned and ruthlessly carried out" could result in severe punishment. The court concluded that it is impossible to support several irrational situations in an unjust and erratic society. But the conundrum is, what are those rarest of rare occasions? One judge's perception of brutality and gore may not be shared by another.

For instance, in one case, the murder of the wife and two children to live with the paramour was unable to persuade Krishna Iyer, J. to impose the death penalty, and Sen, J. questioned whether there was any other case that might be more appropriate for the death penalty than the one at hand.

Significance and Extent

The Gandhian tenet "hate the crime, not the criminal" is the foundation of the idea of "rarest of the rare cases." We can therefore deduce the relevance and scope of the death penalty from this quotation. And if we examine it, we discover that the court wants to argue that the death sentence should only be applied sparingly and in particularly heinous, cruel, and instances that impact humanity.

Because the death penalty is only applied in a very small number of murder cases and most murders result in the alternative punishment of life in prison, the issue of the death penalty as it relates to death sentences handed down by criminal courts in cases of regular course of nature is not particularly acute. 

Studying the cases that have been determined also reveals another aspect of the death sentence, which is that it has a certain class complexion or prejudice because it is typically the impoverished and downtrodden who are subjected to this severe punishment. We seldom ever see wealthy people executed because they can afford to hire exceptional expertise, giving them a decent chance of escaping even if they have committed a murder. Only those who are destitute, lacking in resources, and supported by no one are typically hanged. The application of the death penalty is declarative.

Capital offence As warden Duffly noted, the death penalty is a privilege reserved for the underprivileged. The Supreme Court established the "rarest of rare" doctrine while keeping the aforementioned points in mind.

Position in India

India objected to a UN resolution that called for a moratorium on the death sentence because it violates both Indian law and the sovereign right of every nation to develop its legal system.

It is given for the most severe offences in India. No person shall be denied the "right to life" that is guaranteed to every citizen of India, according to Article 21. The Indian Penal Code imposes death penalties for several offences, including criminal conspiracy, murder, a war against the government, aiding a mutiny, dacoity with murder, and anti-terrorism (IPC). When the death penalty is involved, the president has the authority to show mercy.

What are the execution methods followed in India?

In India, there are two ways of execution


In India, hanging is used to carry out all death sentences. In the Mahatma Gandhi case, Godse was the first person to get the death penalty in India after the country gained its freedom. The Supreme Court of India proposed that the death sentence be used in India only in the rarest of situations.


Both hanging and gunshot are recognised as acceptable methods of death in the military court-martial system under the terms of the 1950 Army Act.

What are the Death Penalty Crimes?

Crimes and Offences punishable by a death sentence are the following:

Serious murder

According to Section 302 of the Indian Penal Code, 1860, it is a capital offence. The Court of India ruled in Bachan Singh v. the State of Punjab that the death sentence is only constitutionally permissible when meted out as an unusual punishment in "the rarest of the rare" circumstances.

Other crimes that result in death

A person who murders someone while engaging in an armed robbery is subject to the death penalty under the Indian Penal Code. If the victim is killed during the kidnapping, the perpetrator will face the death penalty. Participation in organised crime is punished by death if it results in death. The death penalty is also applied when someone commits Sati to another person or assists in doing so.


Anyone who engages in or attempts to engage in hostilities with the government or aids officers, soldiers, or members of the Navy, Army, or Air Force is subject to the death penalty.

Offences related that do not result in death

Crimes and Offences are not punishable by a death sentence are the following:


On February 9th, 2013, Muhammad Afzal was executed by hanging. He was hanged for the December 2001 attack on the Indian parliament, which saw five armed attackers kill nine people. The solitary survivor of the 2008 shooting, Mohammad Ajmal Amir Qasab, was executed on November 21, 2012, for a variety of offences, including waging war on India, murder, and terrorist acts.

Any particular category of explosive that is used to set off an explosion that poses a risk to life or significantly damages property is punishable by death.


According to the Criminal Law Act of 2013, anyone who causes harm in a sexual assault that leads to death or leaves the victim in a "persistent vegetative state" may be executed.

The death penalty is applied to gang rapes. These modifications were made in response to the 2012 gang rape and killing in New Delhi of medical student Jyoti Singh Pandey.

A person who is found guilty of raping a girl who is younger than 12 years old may receive a death sentence or a 20-year prison term combined with a fine, according to the 2018 Criminal Law Ordinance. The 2018 amendment additionally includes the death penalty or life in prison for an under-12-year-old girl who is raped in a group. Asifa Bano, an eight-year-old girl who was raped and killed, caused a great deal of political turmoil in Jammu and Kashmir State and across the nation, prompting these revisions to the penal legislation.


Kidnapping that does not end in death is an offence that is punishable by death under Section 364A of the Indian Penal Code, 1860. Any person who detains someone and makes death or physical harm threats against him, and the victim dies as a result of the kidnapper's actions, will be held accountable under this provision.

Drug trafficking

A person who is found guilty of committing, attempting to perpetrate, aiding, or conspiring in any of several drug trafficking offences, or funding specific types and quantities of narcotic and psychoactive substances, may receive a death sentence.

Military crimes

If committed by a member of the Army, Navy, or Air Force, assault, mutiny, or an attempt to entice an airman, soldier, or sailor away from their job are all punished by death.

Other Offences not resulting in death

  • A person who participates in a criminal conspiracy to commit a capital offence faces the death penalty.
  • Attempts to murder persons who have been given a life sentence are punishable by death if the victim is harmed.
  • False testimony can result in the conviction and execution of an innocent person, thus anyone who gives testimony knowing that it could convict someone from a scheduled caste or tribe for committing a capital offence based on that testimony will face the death sentence.

Category of Offenders excluded from Capital Punishment


A minor who commits a crime while under the age of 18 is not put to death in India, according to the law.

Pregnant Woman

According to a 2009 amendment, clemency must be offered to a pregnant woman who has been given a death sentence.

Mentally Challenged

According to the Indian Penal Code, a person who committed a crime while mentally ill, unable of understanding the nature of the act, or incapable of understanding that the act was wrong, can be held legally responsible and subject to the death penalty.

Constitutional Law

Everyone has the right to life, personal freedom, and the ability to live with dignity under Article 21 of the Constitution. In the interest of law and public order, the state has the authority to revoke or restrict even the right to exist. But this process must follow "due process," as determined in the Maneka Gandhi v. Union case in India. [3] A human being's sacred life must be taken away in a just, fair, and reasonable manner. We can sum up our founding principle as follows:

  • The death sentence should only be applied in extremely exceptional circumstances.
  • The death penalty should be used as an extraordinary punishment and can only be imposed under rare circumstances.
  • The accused must have the right to be heard.
  • The sentence should be tailored to each person's unique situation.
  • The High Court must approve the death punishment. There is a right to appeal to the Supreme Court under Article 136 of the Constitution and Section 379 of the Criminal Procedure Code.
  • Per Sections 433 and 434 of the Criminal Procedure Code and Articles 72 and 161, the accused may plead to the President or the Governors for pardon, commutation of sentence, etc. Apart from the judicial power, Articles 72 and 161 give the President and governor the discretion to intervene on the case's merits. The judicial authorities have a limited scope of review, and they must make sure that the President or governor has all pertinent documents and materials.
  • However, the core of the governor's authority should not depend on a person's race, religion, caste, or political ties, but rather on the application of the law and sensible matters.
  • The accused is entitled to a speedy and fair trial under Articles 21 and 22 of the Constitution.
  • According to Articles 21 and 22, the accused is not entitled to be tortured.
  • The accused is entitled to freedom of speech and expression while in custody under Articles 21 and 19 of the Constitution.
  • The accused has a right to legal representation from officially appointed and qualified counsel.


It is a hotly debated subject that has to do with social and moral issues. The Supreme Court upheld Bachan Singh's conviction after the Court broadened the list of "alternative possibilities" that had to be considered before the death penalty was decided upon. By keeping the death penalty in place, we run the risk of putting to death an innocent person.