Capital Punishment in India, Background, Legal Provisions

Capital Punishment in India refers to the death penalty awarded by courts for the most serious crimes. India has not abolished the death penalty, but its use is extremely limited. The Supreme Court has clearly stated that it should be given only in the “rarest of rare” cases. This article explains the concept, covering its history, legal provisions, doctrine, procedure, and arguments for and against it.

What is Capital Punishment?

Capital Punishment means giving the death sentence to a person convicted of a very serious crime such as murder, terrorism, or certain cases of rape.

In India, the method of execution is hanging by the neck till death, as provided under criminal procedure law. It is considered the highest form of punishment in the Indian legal system.

Capital Punishment in India Historical Background

Capital Punishment in India has evolved from ancient times to the modern constitutional framework.

• Ancient India – Early legal texts and kingdoms permitted death penalty for serious offences like treason and murder to maintain social order and royal authority.
• Medieval Period – During Sultanate and Mughal rule, capital punishment was commonly imposed for grave crimes, often based on religious and customary laws.
• British Colonial Period – The death penalty was formally codified under the Indian Penal Code, drafted under the leadership of Thomas Babington Macaulay, making it a structured legal punishment.
• Post-Independence Retention (1950 onwards) – After the adoption of the Constitution of India, capital punishment was retained but made subject to constitutional safeguards under Article 21 (Right to Life).
• Judicial Transformation (1980 Landmark) – In Bachan Singh v. State of Punjab, the Supreme Court upheld the validity of the death penalty but limited it to the “rarest of rare” cases.
• Modern Era Approach – Courts now emphasize reformative justice, consider mitigating factors, and use the death penalty sparingly, reflecting a more cautious and rights-based approach.

‹ ›

Legal Provisions Related to Death Penalty in India

With the replacement of the IPC by the Bharatiya Nyaya Sanhita (BNS), the legal framework for capital punishment has been retained and reorganized.

• Waging War Against the Government of India: Attempting or waging war against the Government of India can attract the death penalty or life imprisonment.
• Murder: Murder remains one of the primary offences punishable with death or life imprisonment, depending on the gravity of the case.
• Terrorism-Related Acts: Certain acts of terrorism resulting in death or serious threat to national security may attract capital punishment.
• Rape Resulting in Death or Vegetative State: In extremely brutal cases where rape leads to the victim’s death or permanent vegetative condition, courts may award the death penalty.
• Gang Rape of Minor: Aggravated sexual assault involving minors, especially where the offence is particularly heinous, may invite capital punishment.
• Kidnapping for Ransom Resulting in Death: In cases where kidnapping for ransom leads to the victim’s death, the death penalty may be imposed.
• Repeat Offenders in Certain Heinous Crimes: In specific circumstances involving repeat convictions for serious offences, courts may consider awarding capital punishment.

Exemptions: Juveniles, pregnant women, and mentally ill persons cannot be executed. 

Rarest of Rare Case Doctrine

The Rarest of Rare Case Doctrine means that the death penalty should be given only in the most exceptional and extremely serious cases. The Supreme Court introduced this principle in Bachan Singh v. State of Punjab to prevent misuse of capital punishment. According to this rule, life imprisonment is the normal punishment, and death penalty is an exception. Courts must carefully consider both aggravating and mitigating factors before awarding a death sentence.

Procedure for Awarding Death Sentence in India

The procedure for awarding a death sentence in India is strict and involves multiple layers of judicial review to ensure fairness and prevent miscarriage of justice.

• Trial Court Judgment – The Sessions Court may award the death penalty after conviction in a heinous case.
• High Court Confirmation – The death sentence must be confirmed by the High Court; without confirmation, it cannot be executed.
• Appeal to Supreme Court – The convict has the right to appeal before the Supreme Court.
• Review Petition – The convict can file a review petition against the Supreme Court judgment.
• Curative Petition – A final judicial remedy can be sought in rare circumstances.
• Mercy Petition – The convict may file a mercy petition before the President of India under Article 72 or the Governor under Article 161 of the Constitution.

Arguments in Favour of Capital Punishment

Supporters of capital punishment believe that it is necessary for dealing with the most heinous and shocking crimes.

• Deterrence Against Heinous Crimes – The fear of death penalty may discourage people from committing serious offences like murder, terrorism, and brutal rape.
• Justice for Victims – It provides a sense of justice and closure to the victims’ families, especially in extremely cruel and inhuman crimes.
• Protection of Society – Executing dangerous criminals ensures they cannot harm society again.
• National Security – In cases involving terrorism or waging war against the country, capital punishment is seen as necessary to protect the nation.
• Maintaining Public Confidence – Awarding the highest punishment in rare and brutal cases strengthens people’s faith in the justice system.
• Retributive Justice – Some believe that punishment should be proportionate to the crime, and the most serious crimes deserve the most severe penalty.

Arguments Against Capital Punishment

Opponents of capital punishment argue that the death penalty is harsh, irreversible, and inconsistent with modern human rights principles.

• Risk of Wrongful Conviction – Judicial errors are possible, and once a person is executed, the mistake cannot be corrected.
• Violation of Human Rights – Many organizations, including Amnesty International, consider the death penalty inhuman and degrading.
• No Clear Deterrent Effect – Research has not conclusively proven that the death penalty reduces crime more effectively than life imprisonment.
• Possibility of Reform – Criminals may change over time, and the reformative theory of punishment supports rehabilitation instead of execution.
• Arbitrary Application – Critics argue that socio-economic background, quality of legal representation, and judicial discretion may affect who receives the death penalty.
• Global Trend Towards Abolition – Many countries have abolished capital punishment, viewing it as outdated in a modern democratic society.