Death Penalty in India

Did you know? India’s first female execution after independence in 1955 was of Rattan Bhai Jain—for poisoning three girls and killing them. As of today, more than 500+ prisoners in India are on death row, and the primary method of execution? Still hanging by the neck until death. But here’s the twist—Despite hundreds on death row, India has carried out only 8 executions since 2000—making it a rare punishment in practice as well.

Not every heinous crime leads to a death sentence. In fact, Indian courts use the death penalty only in the “rarest of rare” cases. So what makes a case “rarest of rare”? How does the court decide? What rights does the convict have?

If you’ve ever been curious (or confused) about Death Penalty (Capital Punishment) in India, this blog will clear it all up—Let’s begin.

What is Death Penalty?

Death Penalty (also called capital punishment) is when the courts give a legal punishment of death to a person for committing a very serious crime.

It simply means—if someone is found guilty of a very dangerous or brutal crime, like murder or terrorism, the court can decide that this person should be executed (killed by law).

Why its called "Capital" Punishment?

The word “capital” comes from the Latin word “caput” which means "head"—because in ancient times, people were literally beheaded as punishment.

Real-life example: The Nirbhaya rape case—four men involved were given the death penalty and were executed in March 2020 by the court because of how brutal and shocking the crime was.

So in short, the death penalty is a legal punishment where a person is sentenced to die by the state, usually for crimes considered the most serious or dangerous.

History of Death Penalty in India

Ancient Indian Texts: Manusmriti & Arthashastra

Even in ancient India, punishment was considered necessary to keep society in order.

• Manusmriti (a Hindu legal text) believed that strong punishments—even death—were okay for crimes that harmed the peace of society. It focused on the idea that fear of punishment keeps people disciplined.

• Arthashastra, written by Chanakya (Kautilya), also supported the death penalty in some cases. It was more practical—it said rulers should use punishment to protect the kingdom and keep law and order.

So yes, death penalty existed in ancient India, but it was supposed to be rare and for serious threats.

British Colonial Influence

When the British ruled India, they introduced the Indian Penal Code (IPC) in 1860 (now, Bharatiya Nayaya Sanhita (BNS), 2023). This law made the death penalty a punishment for many crimes, such as:

- Murder (Sec 302 IPC, now Sec. 101 BNS)
- Waging war against the government (Sec 121 IPC, now 147 BNS)
- Dacoity with murder (Sec 396 IPC, now 310 BNS)

In 1931, Shri Gaya Prasad Singh tried to pass a Bill to abolish the death penalty for crimes. However, the Bill was rejected. The British used the death penalty quite freely—even for political reasons. Freedom fighters like Bhagat Singh, Rajguru, and Sukhdev were hanged under these laws.

So, during British rule, the death penalty became a formal part of Indian criminal law and continued even after Independence.

Post-Independence

Did India ever think of abolishing it?—Yes, after India became independent in 1947, some leaders and legal experts did question whether we should keep the death penalty.

But here’s the thing: The Indian Constitution gave a lot of importance to “Right to Life” (Article 21, Constitution of India)—so some people thought the death penalty was against that right.

At the same time, others believed that India wasn’t ready to completely remove it because of the serious crimes happening in society.

So, the death penalty was retained, but courts were told to use it very carefully and only in rare cases.

2019: The Abolition Debate in Parliament

This is important!

In 2019, The Death Penalty (Abolition) Bill, was introduced in Lok Sabha. The bill proposed the abolition of the Death Penalty completely and its replacement with Life Imprisonment.

But guess what? The bill was rejected. Most MPs felt that India still needed the death penalty to deal with crimes like terrorism, brutal murders, and crimes against women or children.

This showed that even though the debate had started, the government and society were not ready to end it.

Constitutional Validity

From Jagmohan to Bachan Singh…

First, what’s the doubt here? Some people say: “India’s Constitution guarantees Right to Life under Article 21. So how can the government take someone’s life through the death penalty?”

In India, the death penalty has been challenged in courts many times. The first major case was Jagmohan Singh v. State of U.P. (1973).

In this case, the petitioners said that the death sentence was unfair and went against Article 14 (Right to Equality) and Article 21 (Right to Life). However, the Supreme Court ruled that the death penalty was allowed under the Constitution. The Court said that judges must be given the freedom to choose between life imprisonment and the death penalty based on the facts of each case.

Over the years, the Court also started focusing on the background of the person who committed the crime.

In Ediga Anamma v. State of Andhra Pradesh (1974) and Rajendra Prasad v. State of U.P. (1979)—the Court said that Death Penalty should be given only when absolutely necessary, and the criminal shows no chance of being reformed. Things like the person’s age, past behaviour, and life circumstances must be considered before giving the death sentence.

Later, in Bachan Singh v. State of Punjab (1980), the Supreme Court gave a very important judgment and settled the debate!

The court said: Death penalty is constitutional, but it should be used only in the 'Rarest of Rare' cases, and that the purpose of punishment should not only be to punish the criminal but also to reform them.

Judges must look at:

- The severity of the crime
- The possibility of reform
- The circumstances of the criminal

How Courts Balance Both:

The judge looks at both the crime and the criminal. If the crime is horrifying and the criminal shows no hope of change, then → Death penalty. Otherwise → Life imprisonment.

Some real examples:

✅ Death Penalty Given:

• Dhananjoy Chatterjee Case (2004): Rape and murder of a young girl by a security guard. Seen as a betrayal of trust + brutality.
• Ajmal Kasab Case (2012): 26/11 Mumbai terror attack. National security + mass murder.
• Nirbhaya Case (2012): Brutal gangrape and torture. Shocked the nation.

❌ Death Penalty Avoided:

• In some honour killing cases, courts gave life sentence because the accused were misled by social pressure.
• In cases where the accused showed signs of mental illness or the possibility of reform, the courts avoided capital punishment.

So, to sum up, Death penalty is NOT against Article 21, as long as:

- There is a valid law,
- There is a fair trial,
- And the court carefully considers if it’s really necessary.

Another major case was Mithu v. State of Punjab (1983), where the Court struck down a law that made the death sentence mandatory for some crimes. The Court said that judges must be allowed to look at each case separately and decide the punishment based on its unique facts. Making death penalty automatic was seen as unfair and against the principles of justice.

Also read: How Indian courts approach Capital Punishment for deeper legal insights and landmark cases.

Method of Execution

The law in India clearly mentions how a death sentence should be carried out.

Under Section 393(5), Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (earlier 354(5) Criminal Procedure Code, 1973) it is written:

"When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead."

So, hanging is the legally prescribed method of execution for civilians in India.

This was also confirmed by the Supreme Court in Shashi Nayar v. Union of India (1992). The Court rejected the argument that hanging was cruel or inhuman, and said that it was not against the Constitution.

ℹ️ On the interesting note: In the past, there were discussions about using lethal injection (like in the USA), but that idea was not accepted because of ethical, legal, and technical problems.

Offences Punishable by Death in India

*Note: The above list is not exhaustive.

Just so you know… not all crimes are treated the same—see how they’re categorised.

Who is Exempted from the Death Penalty in India?

1. Minors (Children below 18 years of age)

- Law: Juvenile Justice (Care and Protection of Children) Act, 2015
- Rule: If the offender was below 18 years on the date of the offence, they cannot be given a death sentence.
- Even for heinous crimes, juveniles are sent for reform, not execution.

Example: In the Nirbhaya case, one of the accused was a juvenile. He got 3 years in a correction home, not the death penalty.

2. Mentally Ill or Insane Persons

- Law: Bharatiya Nyaya Sanhita, 2023 (Section 22) (earlier, IPC (Section 84)), and Supreme Court rulings.
- Rule: If the person was of unsound mind at the time of the crime, they are not criminally liable. Even if found guilty, if the person develops mental illness later, they cannot be executed.
- Courts have ruled that executing a mentally ill person is inhumane.

📌 Case: Shatrughan Chauhan v. Union of India (2014)—Supreme Court commuted death sentences due to mental illness and delay in mercy petitions.

Being on death row for years can lead to intense mental trauma—what the courts now recognize as ‘death row syndrome’.

3. Pregnant Women

- Law: Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (Section 456) (earlier, CrPC (Section 416)).
- Rule: If a woman is pregnant at the time of sentencing, death penalty cannot be carried out.
- The court may suspend or commute it to life imprisonment.

Why? Because the unborn child has a right to life, and it’s considered inhuman to punish a child for the crime of the mother.

Execution Process of Death Penalty

As shown in the image above, broadly there are 7 Steps of Execution:

1. Trial Court Conviction

- A Sessions Court convicts the accused for a crime punishable by death (ex. murder, rape).
- If the judge thinks the case qualifies under the “rarest of rare” doctrine, they may sentence the person to death.

2. Automatic Appeal to the High Court

- As per Section 407, BNSS (Sec. 366 CrPC), every death sentence must be confirmed by the High Court.
- Even if the convict doesn’t appeal, the sentence won’t be final until the High Court agrees.

3. Appeal to the Supreme Court

- If the High Court confirms the death sentence, the convict can file a special leave petition (SLP) under Article 136 of the Constitution.
- Supreme Court can:

• Uphold the death penalty
• Reduce it to life imprisonment
• Acquit the person

4. Review and Curative Petitions

After the SC confirms the sentence, the convict can still:

a. File a Review Petition: Heard by the same judges who passed the verdict (in open court, if it's a death penalty case – Mohd. Arif v. SC of India).

b. File a Curative Petition

- This is the last legal remedy before mercy petitions.
- Reviewed by the senior-most judges of the Supreme Court.

5. Mercy Petition to the President/Governor

Under Article 72 (President) or Article 161 (Governor):

- The convict can request mercy, asking for commutation (death → life imprisonment).
- These petitions are sent via the Ministry of Home Affairs.

6. Execution Warrant

If all petitions are rejected:

- The trial court issues a “black warrant” (formal order to hang the convict).
- The jail is notified, and a date/time for execution is set.

7. Final Execution

- As per Section 393, BNSS (Sec. 354(5) CrPC), the execution is by hanging.
- Time: Usually early morning (around 5–6 AM).
- Conducted inside a central jail in the presence of the jailor, magistrate, and doctor.

What Rights Does a Death Row Convict Have in India?

Even after being sentenced to death, the convict isn't without rights. Some key ones include:

• Right to appeal: The convict can challenge the decision in higher courts (High Court, then Supreme Court).

• Right to mercy petition: A final plea can be made to the President or Governor under Articles 72 and 161 of the Constitution.

• Right to legal aid: If they can’t afford a lawyer, one must be provided.

• Right to dignity and humane treatment: Even in custody, basic human rights must be upheld.

Conclusion

So, the death penalty is not just about “guilty = hang him.” It’s way more complex. Indian courts follow a careful process, ask tough questions, and only use capital punishment when there's no other option left—the so-called “rarest of rare” cases.

While some people believe it’s necessary for justice and safety, others feel it’s inhuman and outdated. But for now, India still keeps the death penalty—used rarely, debated constantly, and applied cautiously.