Death Penalty in India

Key Takeaways

• The death penalty is legal in India, but it is treated as an exceptional punishment. The Supreme Court has repeatedly held that life imprisonment is the normal punishment and the death sentence should be imposed only in the “rarest of rare” cases.
• The Bharatiya Nyaya Sanhita, 2023 (BNS) continues to prescribe death as one of the punishments for certain serious offences, including murder, specified aggravated sexual offences and waging war against the Government of India.
• In Bachan Singh v State of Punjab, the Supreme Court upheld the constitutional validity of the death penalty but restricted its use to the rarest of rare cases where the alternative of life imprisonment is inadequate.
• A court deciding whether to award death must consider not only the gravity of the crime but also mitigating circumstances relating to the offender, including age, background, possibility of reform and rehabilitation and other individual circumstances.
• A death sentence passed by a Sessions Court cannot be executed unless it is confirmed by the High Court under the Bharatiya Nagarik Suraksha Sanhita, 2023.
• Even after judicial remedies are exhausted, a death-row convict may seek constitutional clemency from the President under Article 72 or the Governor under Article 161. The BNSS also specifically regulates mercy petitions in death sentence cases.
• The debate over capital punishment remains unresolved. The Law Commission of India recommended in 2015 that the death penalty should be abolished for all offences except terrorism-related offences and waging war, but Parliament has continued to retain capital punishment for several offences.

What Is the Death Penalty?

The death penalty, also known as capital punishment, is a punishment under which a person convicted of an offence is sentenced to death by a competent court.

It represents the most severe punishment available under Indian criminal law because its execution permanently takes away the life of the convicted person. For this reason, Indian law places unusually strict substantive and procedural safeguards around the imposition and execution of a death sentence.

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The death penalty is not the ordinary punishment even for offences for which death is legally prescribed. In most such provisions, the law gives courts an alternative, usually imprisonment for life.

Therefore, the existence of a death penalty provision does not mean that every person convicted under that provision must be sentenced to death.

The court must separately determine whether the circumstances justify capital punishment.

Is the Death Penalty Legal in India?

Yes. The death penalty continues to be constitutionally valid and legally permissible in India.

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The constitutional validity of capital punishment was authoritatively considered by the Supreme Court in Bachan Singh v State of Punjab. A Constitution Bench upheld the validity of the death penalty for murder while placing significant restrictions on the circumstances in which it may be imposed.

The Court developed the principle that:

• life imprisonment is the rule;
• death penalty is the exception; and
• death should be imposed only in the rarest of rare cases where the alternative punishment is unquestionably inadequate.

Thus, Indian law follows neither complete abolition nor unrestricted retention of capital punishment. It follows a system of restricted retention, under which death remains available but is intended to be used exceptionally.

Constitutional Position of the Death Penalty in India

The most important constitutional provision in the debate surrounding capital punishment is Article 21 of the Constitution of India.

Article 21 protects life and personal liberty and provides that no person shall be deprived of life or personal liberty except according to procedure established by law.

Since execution necessarily involves deprivation of life by the State, the legal procedure leading to a death sentence must satisfy constitutional standards of fairness and legality.

The constitutional position developed by the Supreme Court therefore places great importance on:

• fair trial;
• fair sentencing procedure;
• individualised sentencing;
• consideration of mitigating circumstances;
• opportunities for appeal and review;
• High Court confirmation;
• constitutional clemency; and
• protection against arbitrary execution.

The death penalty therefore cannot be understood merely by examining the punishment provision. The entire procedural framework surrounding sentencing and execution is equally important.

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Which Offences Are Punishable With Death in India?

The Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code for offences governed by the new law from 1 July 2024, continues to prescribe death for several offences.

Some important examples are discussed below.

Murder

Under Section 103(1) of the BNS, a person who commits murder may be punished with:

• death; or
• imprisonment for life;

along with fine.

Death is therefore not mandatory for murder.

Section 103(2) also provides death or life imprisonment where five or more persons acting together commit murder on specified grounds such as race, caste, community, sex, place of birth, language, personal belief or similar grounds.

Murder by a Person Serving Life Imprisonment

Section 104 deals with murder committed by a person already undergoing a sentence of imprisonment for life.

The punishment may be death or imprisonment for life for the remainder of the person’s natural life.

Abetment of Suicide of Certain Persons

Section 107 of the BNS deals with abetment of suicide where the person who commits suicide is a child, a person of unsound mind, a delirious person or a person in a state of intoxication.

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The punishment may extend to death, imprisonment for life or imprisonment for the prescribed term, along with fine.

Certain Aggravated Sexual Offences

The BNS also retains capital punishment for specified aggravated sexual offences.

For instance, Section 65(2) allows the death penalty for rape of a woman below twelve years of age.

Section 66 provides for death as one of the punishments where rape results in the death of the woman or causes her to enter a persistent vegetative state.

Under Section 70(2), gang rape of a woman below eighteen years may be punished with imprisonment for life for the remainder of natural life or death, along with fine.

Section 71 also permits death for specified repeat offenders convicted again of certain sexual offences.

Waging War Against the Government of India

Under Section 147 of the BNS, a person who wages war, attempts to wage war or abets the waging of war against the Government of India may be punished with death or imprisonment for life and fine.

These examples are not meant to suggest that death automatically follows conviction. Wherever the law provides alternatives, sentencing remains subject to constitutional and judicial principles governing capital punishment.

What Is the Rarest of Rare Doctrine?

The rarest of rare doctrine is the central principle governing the death penalty in India.

It originated from Bachan Singh v State of Punjab, decided by a Constitution Bench of the Supreme Court in 1980.

The Court upheld capital punishment but emphasised that it must be imposed only in exceptionally grave cases. It held that a genuine concern for human dignity requires courts to resist taking life through the machinery of law except in the rarest of rare situations.

The doctrine therefore creates a presumption in favour of life imprisonment.

A court cannot move directly from the seriousness of an offence to the death penalty. It must ask whether the circumstances are so exceptional that life imprisonment is no longer an adequate punishment.

What Factors Are Considered Before Awarding the Death Penalty?

Capital sentencing requires an individualised examination of both the crime and the criminal.

Courts generally examine aggravating and mitigating circumstances before determining the appropriate sentence.

Aggravating Circumstances

Aggravating circumstances are factors which increase the seriousness of the offence.

Depending on the case, these may include matters such as:

• extreme brutality or manner of commission;
• multiple victims;
• vulnerability of the victim;
• motive and circumstances surrounding the offence;
• premeditation;
• conduct demonstrating exceptional depravity; and
• other circumstances showing an unusually grave offence.

However, brutality by itself does not automatically make every case a rarest of rare case.

Mitigating Circumstances

Mitigating circumstances relate to factors favouring a punishment less severe than death.

In Bachan Singh, the Supreme Court recognised factors such as age, mental or emotional disturbance and the possibility that the offender can be reformed and rehabilitated.

In Manoj v State of Madhya Pradesh, the Supreme Court further emphasised the importance of obtaining adequate information concerning the convict before deciding whether death is justified. Relevant information may include social background, psychological condition, prison conduct and material concerning the possibility of reform.

The sentencing court therefore cannot focus solely on how shocking the offence appears. The circumstances of the individual offender must also be meaningfully examined.

What Was Decided in Machhi Singh v State of Punjab?

Machhi Singh v State of Punjab is another significant decision in Indian death penalty jurisprudence.

It followed Bachan Singh and attempted to explain circumstances in which a murder could fall within the rarest of rare category.

The judgment discussed factors connected with:

• manner of commission of murder;
• motive;
• socially abhorrent nature of the crime;
• magnitude of the crime; and
• personality of the victim.

However, later death penalty jurisprudence has increasingly stressed that such categories cannot operate as a mechanical checklist. The fundamental requirement remains an individualised sentencing exercise consistent with Bachan Singh.

Why Is Mithu v State of Punjab Important?

Mithu v State of Punjab is important because it dealt with mandatory death punishment.

The case concerned Section 303 of the Indian Penal Code, which required a person already serving life imprisonment to be sentenced to death if convicted of murder.

The Supreme Court struck down the provision.

The constitutional difficulty was that a mandatory death sentence prevented the court from examining the circumstances of the crime and the offender before choosing the punishment. The decision reinforced the importance of judicial discretion and fair sentencing under Articles 14 and 21.

Thus, Indian constitutional law does not accept the idea that death can automatically follow conviction without an individual sentencing assessment.

How Is a Death Sentence Confirmed?

A Sessions Court death sentence does not become executable merely because the trial judge has imposed it.

Under Section 407 of the Bharatiya Nagarik Suraksha Sanhita, 2023, when a Sessions Court passes a death sentence, the proceedings must be submitted to the High Court.

The sentence cannot be executed unless it is confirmed by the High Court.

The High Court has substantial powers during confirmation proceedings.

Under Section 409, it may:

• confirm the death sentence;
• impose another lawful sentence;
• annul the conviction and convict the accused of another appropriate offence;
• order a new trial; or
• acquit the accused.

The confirmation requirement therefore acts as an important additional safeguard against erroneous or inappropriate capital sentencing.

What Remedies Are Available After a Death Sentence?

A death sentence passes through several possible stages of judicial and constitutional scrutiny.

Depending on the circumstances of the case, these may include:

1. High Court confirmation and appeal: A Sessions Court death sentence requires High Court confirmation.
2. Appeal before the Supreme Court: A person may approach the Supreme Court where the law permits an appeal or through special leave jurisdiction.
3. Review petition: A judgment of the Supreme Court may be subjected to review in accordance with constitutional and procedural law.
4. Curative petition: After dismissal of a review petition, curative jurisdiction may be invoked in exceptional circumstances under the principles developed by the Supreme Court.
5. Mercy petition: Constitutional clemency may be sought from the Governor and President in accordance with Articles 161 and 72.

Execution therefore generally follows only after the available legal and constitutional processes have been completed.

What Is a Mercy Petition in Death Penalty Cases?

A mercy petition is different from a judicial appeal.

It invokes the constitutional clemency powers of the executive.

President’s Power Under Article 72

Article 72 empowers the President of India to grant pardons, reprieves, respites or remissions, or to suspend, remit or commute sentences in specified cases.

Importantly, the pardoning power of the President under Article 72 expressly extends to all cases where the sentence is a sentence of death.

Governor’s Power Under Article 161

Article 161 gives similar pardoning powers to the Governor of a State in relation to offences against laws concerning matters within the executive power of the State.

These powers form part of the constitutional system rather than an ordinary appellate process.

What Does the BNSS Provide About Mercy Petitions?

The BNSS has introduced a specific statutory provision dealing with mercy petitions in death sentence cases.

Section 472 of the BNSS provides that a person sentenced to death, or certain relatives, may file a mercy petition after the relevant stage of judicial proceedings.

The provision lays down timelines, including a 30-day period in specified circumstances for filing the petition and a further period for approaching the President after disposal by the Governor. It also regulates communication and processing of the petition.

This represents a more express statutory framework for the mercy-petition process than existed under the earlier Code of Criminal Procedure.

Can Delay in a Mercy Petition Affect a Death Sentence?

Yes, in appropriate circumstances.

In Shatrughan Chauhan v Union of India, the Supreme Court considered the rights of prisoners whose mercy petitions had remained pending for prolonged periods.

The Court recognised that unreasonable and unexplained delay in deciding mercy petitions may amount to a supervening circumstance relevant to commutation of a death sentence.

The judgment also treated Article 21 protections as continuing even after a person has been finally sentenced to death.

Thus, constitutional protections do not completely disappear after conviction and sentencing.

What Happens if a Woman Sentenced to Death Is Pregnant?

The BNSS creates a specific safeguard.

Under Section 456 of the BNSS, if a woman sentenced to death is found to be pregnant, the High Court shall commute the death sentence to imprisonment for life.

The language makes commutation mandatory once the statutory condition is satisfied.

What Did the Law Commission Say About the Death Penalty?

The Law Commission of India examined capital punishment extensively in its 262nd Report on the Death Penalty in 2015.

After considering constitutional principles, penological arguments, international trends and concerns regarding arbitrariness, the Commission concluded that India should move towards abolition.

It recommended abolition of the death penalty for all offences except terrorism-related offences and waging war.

However, the recommendation did not itself change the law.

Parliament has continued to retain the death penalty, including in the Bharatiya Nyaya Sanhita, 2023.

Arguments in Favour of the Death Penalty

The debate concerning capital punishment involves strong arguments on both sides.

Supporters commonly argue that the death penalty:

• reflects the exceptional gravity of particularly serious crimes;
• may have a deterrent effect;
• permanently incapacitates offenders responsible for extreme crimes;
• serves retributive principles of punishment; and
• may be considered necessary for offences involving terrorism, national security or exceptionally brutal violence.

However, the deterrence argument remains contested, and the existence of capital punishment does not itself establish that it prevents crime more effectively than long-term imprisonment.

Arguments Against the Death Penalty

Opponents of capital punishment raise several concerns.

Irreversibility

An execution cannot be reversed if a conviction is subsequently shown to have been erroneous.

Possibility of Unequal Application

Questions have been raised about disparities caused by economic position, quality of legal representation, social disadvantage and inconsistencies in sentencing.

Difficulty in Applying the Rarest of Rare Test

Determining what qualifies as the rarest of rare necessarily involves judicial evaluation. Courts have therefore repeatedly attempted to develop clearer standards and stronger mitigation procedures.

Reform and Rehabilitation

Modern sentencing jurisprudence recognises reformation and rehabilitation as important considerations. If a convicted person has a genuine possibility of reform, capital punishment becomes more difficult to justify under the Bachan Singh framework.

Human Dignity

Abolitionist arguments also emphasise the dignity and right to life protected under Article 21.

These concerns formed an important part of the Law Commission’s discussion while recommending substantial abolition.

Present Position of the Death Penalty in India

India continues to retain the death penalty.

The current legal position can be summarised as follows:

• capital punishment is constitutionally valid;
• the BNS prescribes death for certain exceptionally serious offences;
• death is ordinarily an alternative rather than a mandatory punishment;
• Bachan Singh requires application of the rarest of rare doctrine;
• both aggravating and mitigating circumstances must be considered;
• the possibility of reform and rehabilitation is an important sentencing consideration;
• Sessions Court death sentences require High Court confirmation;
• appellate and review remedies remain available in accordance with law;
• constitutional mercy powers exist under Articles 72 and 161; and
• execution remains subject to constitutional and procedural safeguards.

Recent empirical research also shows that capital sentencing continues to occur in India. The Square Circle Clinic, formerly Project 39A at National Law University Delhi, reported in its ten-year statistical study that 1,279 individuals had been sentenced to death during the period covered from 2016 to 2025.

Such figures relate to death sentences imposed and subsequent case developments, and should not be confused with the number of executions actually carried out.

Conclusion

The death penalty in India occupies an exceptional position within criminal law. It remains legally available, but Supreme Court jurisprudence has placed strict limitations on its use.

The foundation of the present approach lies in Bachan Singh v State of Punjab, which established that life imprisonment must remain the normal punishment and death should be reserved for the rarest of rare cases. Later decisions have strengthened the requirement of individualised sentencing by insisting that courts examine the offender’s background, mitigating circumstances and possibility of reform rather than concentrating only on the brutality of the offence.

The Bharatiya Nyaya Sanhita, 2023 continues to retain capital punishment for offences such as murder, specified aggravated sexual offences and waging war against the Government of India. At the same time, the Bharatiya Nagarik Suraksha Sanhita, 2023 contains procedural safeguards relating to High Court confirmation, execution, pregnancy and mercy petitions.

Indian law therefore reflects a continuing tension between retention of capital punishment for exceptionally serious offences and constitutional principles relating to life, dignity, fairness and reform. Although the Law Commission has recommended significant abolition, the death penalty presently remains part of India’s criminal justice system, subject to the rarest of rare doctrine and extensive judicial and constitutional safeguards.

Note: This article was originally written by Niharika Gupta and Rajat Kumar (Bahra University) and published on 16 April 2020. It was subsequently updated by the LawBhoomi team on 16 September 2026.