Capital punishment in India is the highest legal penalty for crimes under the country's main substantive penal legislation, the Bharatiya Nyaya Sanhita (formerly Indian Penal Code), as well as other laws. Executions are carried out by hanging as the primary method of execution. The method of execution per Section 393(5) of Bharatiya Nagarik Suraksha Sanhita, 2023 is "Hanging by the neck until dead", and the penalty is imposed only in the 'rarest of rare cases'.
Currently, there are around 564 prisoners on death row in India. The most recent executions in India took place on 20 March 2020, when four of the 2012 Delhi gang rape and murder case perpetrators were executed at the Tihar Jail in Delhi.
History In the Code of Criminal Procedure (CrPC), 1898 death was the default punishment for murder and required the concerned judges to give reasons in their judgment if they wanted to give life imprisonment instead. By an amendment to the CrPC in 1955, the requirement of written reasons for not imposing the death penalty was removed, reflecting no legislative preference between the two punishments. In 1973, when the CrPC was amended further, life imprisonment became the norm and the death penalty was to be imposed only in exceptional cases, particularly if a heinous crime committed deems the perpetrator too dangerous to even be 'considered' for paroled release into society after 20 years and required 'special reasons'. This significant change indicated a desire to limit the imposition of the death penalty in India.
Capital offences
Capital punishment in the Bharatiya Nyaya Sanhita Section under BNS or other law Nature of crime § 65(2) of BNS Rape of a child below 12 years of age § 66 of BNS Rape and injury which causes death or leaves a woman in a Persistent Vegetative State § 70(2) of BNS Gang rape of a child under 18 years of age § 71 of BNS Repeat offenses in the context of rape § 103(1) of BNS Murder § 103(2) of BNS Mob Lynching § 104 of BNS Murder by prisoner serving life sentence § 107 of BNS Abetment of suicide of child or person of unsound mind § 109(2) of BNS Attempted murder by prisoner serving life sentence § 111(2)(a) of BNS Organized crime offenses causing death § 113(2)(a) of BNS Terrorism resulting in the death of any person § 140(2) of BNS Kidnapping or abducting in order to murder or for ransom § 147 of BNS Treason against the Government of India § 160 of BNS Abetment of mutiny, if mutiny is actually committed in consequence § 230(2) of BNS Giving or fabricating false evidence with intent to procure conviction of capital offence resulting in death of innocent person § 232(2) of BNS Threatening any person to give false evidence resulting in death of innocent person § 310(3) of BNS Felony murder while committing dacoity or banditry
Capital punishment in non-BNS offences +Capital punishment in non BNS offence Act Section Offence descriptionThe Organized Crime Act, 2001 3 (1) Organized crime resulting in death of person Army Act, 1950 34 Offences in relation to enemy and punishable with death Army Act, 1950 37 Mutiny Army Act, 1950 38 (1) Desertion Assam Rifles Act, 2006 21 Offences in relation to enemy and punishable with death Assam Rifles Act, 2006 24 Mutiny Assam Rifles Act, 2006 25 (1) (a) Desertion Assam Rifles Act, 2006 55 Civil offences Bombay Prohibition (Gujarat Amendment) Act, 2009 65A (2) Death caused by the consumption of Laththa Border Security Force Act, 1968 14 Offences in relation to the enemy and punishable with death Border Security Force Act, 1968 17 Mutiny Border Security Force Act, 1968 18 (1) (a) Desertion Border Security Force Act, 1968 46 Civil offencesCoast Guard Act, 197817MutinyCoast Guard Act, 197849Civil offencesThe Commission of Sati (Prevention) Act, 198741 Abetment of sati The Defence of India, Act, 1971 5 Person contravening with intent to wage war or assist external aggression or any violation of provision made under S.3 The Geneva Convention Act 1960 3 Grave breaches of Geneva Conventions The Explosive Substances Act, 1908 3 (b) Punishment for special category of offences relating to explosive substances, likely to danger life or cause serious harm The Indo-Tibetan Border Police Force, Act 1992 16 Offences in relation to enemy spy or terroristThe Indo-Tibetan Border Police Force, Act 199219MutinyThe Indo-Tibetan Border Police Force, Act 199220 (1) (a)DesertionThe Indo-Tibetan Border Police Force, Act 199249Civil offencesThe Karnataka Control of Organised Crime Act, 20003 (1) (i)Organized crime resulting in death of personThe Maharashtra Control of Organised Crime Act, 19993 (1) (i)Organized crime resulting in death of personThe Narcotics Drugs and Psychotropic Substances Act, 198531A (1)Repeated commission of offences inolving commercial quantity of any narcotic drug or psychotropic substance
List of capital offences challenged in the court +ActSection and offence descriptionJudicial challengesIndian Penal Code302 - MurderBachan Singh v. State of Punjab (1980)Indian Penal Code364 - Kidnapping for ransomVikram Singh & Anr v. Union of India (2020)Indian Penal Code376 E - Certain repeat offences in the context of rapeVijay Jadhav v. State of Maharasthra (2019)The Narcotics Drugs and Psychotropic Substances Act, 198531A (1)Indian Harm Reduction v Union of India (2011)Arms Act, 195927 (3) (Repealed)State of Punjab v. Dalbir Singh (2012)
Categories of people exempted from capital punishment +CategoriesLaw or caseJuvenilesSection 21, Juvenile Justice Act (No minor in conflict with the law shall be sentenced to death) People with mental illness or insanity Shatrughan Chauhan v. Union of India (2014) (Para 79- 87)
Process Trial court
After the completion of proceedings as prescribed by the Code of Criminal Procedure (Bharatiya Nagarik Suraksha Sanitha), the judge pronounces the judgment in a case under Section 235. In case of conviction of the accused, there shall be a mandatory pre-sentencing hearing as according to Section 235(2), Code of Criminal Procedure. The Code of Criminal Procedure, 1973, also contains a provision regarding special reason for death sentence. Section 354(3) of the Code provides that the court must record "Special reasons" justifying the sentence and state as to why an alternative sentence would not meet the ends of justice in the case, according to the principle 'Life imprisonment is the rule and death sentence is the exception'.
Confirmation by High Court After the decision and sentencing by the Court of Sessions, a high court needs to confirm it for the death sentence to be valid. The high court may confirm the death sentence awarded by the Court of Sessions, pass any other sentence warranted by law, annul the conviction, convict the person of any offence for which the Court of Sessions might have convicted them, order a new trial on the same or amended charge or acquit the accused person under Section 368, Code of Criminal Procedure. The High Court may also enhance the sentence awarded by the Court of Session to death sentence according to Section 386 (c), CrPC. The High Court shall not enhance the sentence awarded to the accused without giving them a reasonable opportunity of showing cause against such enhancement and while showing such cause, the accused may even plead for acquittal or reduction of sentence awarded by the Court of Session. Additionally, the State Government or the Central Government under Section 377, CrPC may direct the public prosecutor to appeal to the High Court against the sentence granted by the Court of Session on grounds of inadequacy. Further, exercising of its suo-moto revisional powers under Section 397, CrPC read with Section 401, CrPC, the High Court may, even in the absence of an appeal enhance the sentence awarded by the Court of Session. The High Court may also in accordance with Section 367 of the Code conduct or direct further inquiry into or additional evidence to be taken on any point bearing upon the guilt or innocence of the convicted person. Unless directed by the High Court, the accused need not be present during this period of this inquiry or when additional evidence is taken. The High Court also has the power under Section 407 of the CrPC to withdraw a case pending before a subordinate court and conduct the trial, and may award the sentence of death.
Special leave petition After the death sentence is confirmed by the High Court, an appeal by Special Leave Petition (SLP) under Article 136 of the Constitution may be filed. The Supreme Court may in its discretion after considering the issues grant special leave to appeal under Article 136 of the Constitution. Exercising its power under Article 136, the Supreme Court decides whether the special leave petition deserve to be heard as appeals. Correcting an earlier trend of dismissal of SLPs involving the death sentence in limine (dismissal of Special Leave Petition at the threshold without giving any detailed reasons) it was held in two cases of Babasaheb Maruti Kamble v. State of Maharashtra, November 2018 and Jitendra @ Jeetu v. State Of Madhya Pradesh & Others, July 2020 that special leave petition filed in those cases where death sentence is awarded by the courts below, should not be dismissed without giving reasons, at least qua death sentence. It was opined that in such cases a deeper scrutiny coupled with reasons in support of death penalty should be given by the Court.
Review and reopening of a review A petition seeking review of a judgment or order passed by the Supreme Court may be filed under Article 137 of the Constitution before the Supreme Court within thirty days from the date of such judgment or order. As per the Supreme Court in Mohd Arif @ Ashfaq v. The Registrar, Supreme Court of India & Ors, September 2014, review petitions for death sentence cases should be heard in open court, but there would be a time limit of 30 minutes for oral hearing. Such a procedure would be just and fair. The cases would be heard by a bench of three judges, and the special procedure would apply to all cases of death sentence where the review had been dismissed but the sentence was yet to be executed, including cases brought under Terrorist and Disruptive Activities (Prevention) Act. Various cases such as M. A. Antony @ Antappan v. State of Kerala, April 2009, Md. Mannan @ Abdul Mannan v. State Of Bihar, April 2011, Ambadas Laxman Shinde And Ors V. The State Of Maharashtra, October 2018 were reopened after being dismissed earlier to be heard in the open court after the above judgement, which resulted in commutations and an acquittal.
Curative petition As per the Supreme Court judgment in Rupa Ashok Hurrah v. Ashok Hurrah & Ors, April 2002 after the dismissal of the review petition, the Supreme Court may allow a curative petition to reconsider its judgment or order if it is established that there was a violation of principles of natural justice or apprehension of bias on part of a judge. The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers. The curative petition would be circulated before the same bench which decided the review petition, if available, or the three senior-most judges of the Supreme Court. The curative petition would be disposed of without oral arguments, unless ordered otherwise by the Supreme Court.
Mercy Articles 72 of the Constitution gives power to the President of India to grant pardons and to suspend, remit or commute sentences in certain cases. The president may consider the case of the convict and may pardon the death sentence. The Governor cannot pardon a death sentence. The Governor can only suspend, remit, or commute a death sentence under article 161 of the Constitution of India.