Capital Punishment in India
Adv. Himanshi Chanchal

Capital Punishment in India

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The death penalty, sometimes known as the "capital punishment," is the worst penalty allowed in any democracy or community in order to uphold law and order. However, taking a life for the sake of justice is no less cruel than taking a life for yourself. The goal should be to eradicate the crime, not the offender. China is the only nation in the world where the death penalty is still widely used, with over 1000 executions occurring annually, whereas India adheres to the "Rarest of the Rare" theory and frequently commutes death sentences to life in prison, depriving 2,45,244 "innocent" people of their freedom. In spite of this, India executed four offenders in total between 2002 and 2015.The processes and laws surrounding the death sentence are identical in both nations, however in China, once the death penalty is imposed, it cannot be removed. For this reason, the United Nations (UN) declared that "life is precious, and death is irrevocable" in opposition to the idea of the death sentence. The UN went on to say that murdering another person in the name of justice also eliminates our humanity. Nobody has the right to determine who lives and who dies. 

Therefore instead of hanging someone to death we should adapt a different approach i.e. thereformative approach so that one could improvehimself and can live peacefully thereafter.



The death penalty, sometimes referred to as the capital punishment, is the execution of a criminal who has been found guilty of a crime and given a death sentence. The criminal justice system in India is a crucial component of the death penalty.

After gaining independence in 1947, India kept the 1861 Penal Code, which allowed for the death sentence in cases of murder. Several members of the Constituent Assembly proposed the abolition of the death sentence between 1947 and 1949 when the Indian Constitution was being drafted, but no such clause was included. Private members bills to outlaw the death sentence were introduced in the Lok Sabha and Rajya Sabha throughout the course of the following 20 years, but none of them were passed. An estimated 3000–4000 people were executed between 1950 and 1980. Measuring the number of those killed and condemned to death between 1980 and the mid-1990s is more challenging. An estimated two or three persons were executed by hanging each year. The death sentence should only be applied in the "rarest of rare" circumstances, according to the Supreme Court's 1980 Bachan Singh ruling, however it is unclear exactly what constitutes the "rarest of rare" cases.

Position of India

India disagreed with a UN resolution that called for a moratorium on the death penalty because it violates both the country's sovereign right to create its own legal system and Indian statute law.

It is awarded those who commit the most heinous offences in India. It is given for horrible and serious offences. Article 21 guarantees every Indian citizen the "right to life," which cannot be taken away from them. The Indian Penal Code (IPC) imposes death penalties for a number of acts, including murder, criminal conspiracy, war against the government, aiding and abetting mutiny, dacoity with murder, and anti-terrorism. When the death sentence is applied, the president has the authority to show mercy. In Bachan Singh v. State of Punjab, the court decided that executions would only be carried out in extremely exceptional circumstances. In situations when death sentences are involved, only the president has the authority to grant compassion. The High Court must validate a convict's death sentence when the Sessions Court renders one. The offender may present a "mercy petition" to the Indian President in the event that his appeal to the Supreme Court is denied. States must abide by comprehensive guidelines on the process of handling appeals for clemency submitted by or on behalf of death-row inmates. The Ministry of Home Affairs should lay out appeals to the Supreme Court and petitions for special leave to appeal to that court by such prisoners. According to Article 72 of the Indian Constitution, the President may pardon, reprieve, respite, or remit punishment, as well as suspend, remit, or lessen the sentence of any individual found guilty of a crime.


Methods of Execution in India

1. Hanging

In India, hanging is the method used to carry out all death sentences. Godse was the first Indian to be killed by hanging in the wake of freedom, in Mahatma Gandhi's case. The Indian Supreme Court recommended that the death punishment be reserved for the rarest of the rarest of cases.

2. Shooting

Both hanging and shooting (gunshot) are recognised as methods of execution in the military court-martial system under the 1950 Army Act.

Death Penalty Crimes

The crimes and offences which are punishable by death are:

• Aggravated murder

It is punishable by death in accordance with Section 302 of the Indian Penal Code, 1860. In Bachan Singh v. State of Punjab,] the Court of India held that the death penalty is constitutional only when applied as an exceptional penalty in “the rarest of the rare” cases.

• Other offences resulting in death

In the Indian Penal Code, the death penalty is given to a person who commits murder during an armed robbery. The abduction of the victim for the money is punishable with the death penalty if the victim is killed. Organized crime involvement, if it leads to death, is punishable by death. Committing or helping to commit Sati to another person is also punishable by the death penalty under The Commission of Sati( Prevention) Act 1987.

• Terrorism-related offences not resulting in death

Muhammad Afzal was executed by hanging on 9th February 2013. He was executed of the December 2001 attack on India’s parliament in which nine people got killed by five gunmen armed with guns and explosives. Mohammad Ajmal Amir Qasab, the only surviving shooter in 2008, was hanged on 21 November 2012 for various crimes, including waging war on India, murder and terrorist acts.

The use of any special category of explosive to cause an explosion that could endanger life or cause serious damage to property is punishable by the death penalty.

• Rape not resulting in death

A person who inflicts injury in a sexual assault which results in death or is left in a “persistent vegetative state” may be punished with death under the Criminal Law Act, 2013. 

Gang rapes are punishable with death penalties. These changes were imposed after medical student Jyoti Singh Pandey’s 2012 gang rape and death in New Delhi. 

According to the 2018 Criminal Law Ordinance, a person who is liable for raping a girl who is below 12 years of age may be sentenced to death or sent to prison for 20 years along with fine. The 2018 amendment also specifies the death penalty or life imprisonment for a girl’s gang rape under the age of 12. These changes to criminal law followed an eight-year-old girl’s rape and murder, Asifa Bano, who triggered a lot of political unrest in Jammu and Kashmir State and across the country.

• Kidnapping not resulting in death

According to Section 364A of Indian Penal Code, 1860, kidnapping not resulting in death is an offence punishable by death. If any person detaining anybody and threatens to kill him or harm him during which the kidnapper’s act actually resulted in the death of the victim, will be liable under this section.

• Drug trafficking not resulting in death

If a person convicted of a commission or attempt to commit, abet, or criminal conspiracy to commit any of a range of drug trafficking offences, or financing of certain types and amounts of narcotic and psychotropic substances, he or she can be sentenced to death.

• Treason

The death penalty is given to any person who is waging or trying to wage war against the government and helping Navy, Army, or Air Force officers, soldiers, or members to commit a mutiny.

• Military offences not resulting in death

Abetment of assault, mutiny or attempting to seduce airman, soldier, the sailor from his duty and various other offences are punishable by death if committed by a member of the Army or Navy or Air Force.

• Other offences not resulting in death

1. If a person is a party to criminal conspiracy to commit a capital offence is punishable by death.

2. Attempts to kill those sentenced to life imprisonment are punishable by death if the victim is harmed by the attempt.

3. If a person provides false evidence with the knowledge that it can lead to the conviction of a person belonging to scheduled caste or tribe for committing a capital offence on the basis of such evidence, will be punished with the death penalty if it results in the conviction and execution of an innocent person.


Category of offenders are excluded from Capital Punishment

• Minor:  According to the law in India, a minor who is under the age of 18 at the time of committing a crime is not executed.

• Pregnant Women:  Clemency must be granted to a pregnant woman sentenced to death according to a 2009 amendment.

• Intellectually Disabled:  According to the Indian Penal Code, a person while committing a crime who was mentally ill or is not able to understand the nature of the act or the act is wrong, then that person can be held liable under the law and can be punished with the death penalty.


Constitutional Law

Everyone's right to life and personal freedom, including the right to live in human dignity, is guaranteed by Article 21 of the Constitution. To maintain law and order, the state has the authority to restrict or even take away someone's ability to life.  However, this process needs to follow "due process," as established in the Maneka Gandhi v. Union case in India.A human being's sacred life must be taken in a just, equitable, and reasonable manner. We can articulate our constitutional principle as follows:

  1. Execution ought to be reserved for the  rarest of rare cases.
  2. The death penalty should be considered an extraordinary punishment and should only be applied in certain situations.
  3. The right to a hear will belong to the accused. 
  4. The High Court will uphold the death punishment. There is an appeal right to the Supreme Court under both Section 379 of the Cr.P.C. and Article 136 of the Constitution.
  5. Under Sections 433 and 434 of the Cr.P.C., the accused may pray for pardon, commutation, etc., and may also pray to the President or the Governors under Articles 72 and 161. Apart from the judicial power, Articles 72 and 161 give the President and the governor the discretionary authority to intervene on the merits of the case; however, the judicial authorities' review authority is limited, and they must make sure that the President or the governor has all pertinent documents and material in front of them. However, the rule of law and logical concerns should be the foundation of the governor's authority rather than race, religion, caste, or political ties.
  6. The accused is not permitted to be tortured in violation of Articles 21 and 22 of the Constitution; instead, they are entitled to a fast and fair trial.
  7. The accused is entitled to be represented by suitably competent and appointed solicitors; • The accused has freedom of speech and expression while in detention under Articles 21 and 19 of the Constitution.


Facts of Rarest of Rare Case Doctrine

In Machi Singh Case, Court laid down certain requisites of this doctrine:

  1. Manner of murder ( extremely brutal, ridiculous, diabolical like buring alive, inhuman act, brutal mutilation)
  2. Motive of murder ( monetary gain, cold blooded, hired murderer)
  3. The crime is of a socially repugnant type when it involves the murder of a member of the lower classes. This also includes cases of bride burning, commonly referred to as dowry deaths.
  4. Magnitude of Crime
  5. Personality of Victim



It's a controversial subject with social and moral implications. The Supreme Court upheld Bachan Singh's conviction, and the Court broadened the range of "alternative options" that had to be considered before deciding on a death sentence. In India, the death sentence has been applied for a very long time. But as people become more conscious of their legal and basic rights, the death penalty's applicability is coming under scrutiny.

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