The death penalty in India remains a legal punishment for a narrow set of serious crimes, but courts may impose it only in what the Supreme Court calls the “rarest of rare” cases. As of late 2024, 564 people were on death row. The most recent executions took place in March 2020, when four men convicted in the 2012 Delhi gang-rape case were hanged.
Which Crimes Carry the Death Penalty
The Bharatiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code on July 1, 2024, is the primary criminal code listing capital offenses. Murder under BNS Section 103 carries either death or life imprisonment, and the sentence depends on the brutality of the act, the level of premeditation, and other circumstances the trial court weighs. A new subsection targets identity-based mob killings: when a group of five or more people commits murder based on caste, religion, language, or similar markers, every participant faces death or life imprisonment.1Devgan.in. Bharatiya Nyaya Sanhita 2023 – Section 103 Punishment for Murder
Waging war against the Government of India is capital under BNS Section 147, which also covers attempts and abetment.2Devgan.in. Bharatiya Nyaya Sanhita 2023 – Offences Against the State A terrorist act causing death carries death or life imprisonment without parole under Section 113.3Devgan.in. Bharatiya Nyaya Sanhita 2023 – Section 113 Terrorist Act Kidnapping for ransom in which the victim is threatened with death or killed is punishable by death under Section 140.4Devgan.in. Bharatiya Nyaya Sanhita 2023 – Section 140 Kidnapping or Abducting in Order to Subject Person to Grievous Hurt or Slavery Dacoity resulting in murder also remains a capital offense.
Several special statutes extend the punishment beyond the BNS. The Protection of Children from Sexual Offences (POCSO) Act makes aggravated penetrative sexual assault against a child punishable by death or life imprisonment for the remainder of the offender’s natural life.5India Code. Protection of Children from Sexual Offences Act 2012 – Section 6 Punishment for Aggravated Penetrative Sexual Assault The Narcotic Drugs and Psychotropic Substances (NDPS) Act allows a death sentence for repeat drug offenders whose second conviction involves commercial quantities above statutory thresholds, such as one kilogram of heroin, 500 grams of cocaine, or 10 kilograms of opium.6India Code. Narcotic Drugs and Psychotropic Substances Act 1985 – Section 31A Death Penalty for Certain Offences After Previous Conviction
The Rarest of Rare Standard
Qualifying for the death penalty is not the same as receiving it. In Bachan Singh v. State of Punjab (1980), the Supreme Court held that life imprisonment is the default punishment and death the exception, permissible only in the “rarest of rare” cases where life imprisonment would be wholly inadequate.7Indian Kanoon. Bachan Singh vs State of Punjab A trial judge must affirmatively explain why no lesser sentence would serve justice before signing a death warrant.
The balancing test runs in two directions. Aggravating factors include the cruelty of the act, premeditation, the vulnerability of the victim, and the broader impact on society. Mitigating circumstances focus on the offender: age, mental health, background, any realistic prospect of rehabilitation, and whether the person poses a continuing danger. A death sentence is appropriate only when the aggravating factors so overwhelm the mitigating ones that no alternative punishment makes sense.
Three years later, Machhi Singh v. State of Punjab added a further lens, asking whether the crime is so shocking that the “collective conscience” of the community would expect the judiciary to impose death. The Court laid out broad categories as guidance: extreme brutality, crimes targeting vulnerable populations, and crimes with an antisocial or abhorrent motive. In practice, the standard has produced inconsistent results, with similarly situated defendants sometimes receiving different sentences depending on the bench, a shortcoming the Supreme Court itself has acknowledged.
How a Death Sentence Becomes Final
Mandatory High Court Confirmation
No one can be executed in India on the strength of a trial court verdict alone. When a Sessions Court passes a death sentence, the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the Code of Criminal Procedure in 2024, requires the court to immediately submit the entire case record to the High Court.8Advocate Khoj. Bharatiya Nagarik Suraksha Sanhita 2023 – Section 407 Sentence of Death to Be Submitted by Court of Session for Confirmation The execution cannot proceed unless the High Court confirms it, and at least two High Court judges must sign off.
This is not a procedural check. The High Court independently reviews the evidence, the legal reasoning, and the sentencing decision. It can confirm the death sentence, reduce it to life imprisonment, acquit the defendant entirely, or order a retrial.
Appeals to the Supreme Court
After the High Court rules, the prisoner has further routes to the Supreme Court. Article 134 of the Constitution gives a direct right of appeal in specific situations: when the High Court reverses an acquittal and imposes a death sentence, or when it withdraws a case from a lower court and hands down the death penalty after its own trial.9Indian Kanoon. Constitution of India – Article 134 Appellate Jurisdiction of Supreme Court in Regard to Criminal Matters The High Court can also certify that a case is fit for Supreme Court review.
Where Article 134 does not directly apply, which covers most death sentences confirmed on the High Court’s mandatory review, the prisoner files a Special Leave Petition under Article 136. This is not a right of appeal but a request for permission to be heard. In capital cases, the Court almost always agrees. The prisoner must file within 60 days of the judgment. Once leave is granted, the petition converts into a full appeal, and the Supreme Court reexamines whether the “rarest of rare” standard was correctly applied. It can confirm the sentence, commute it, or acquit.
The Mercy Petition
When judicial options are exhausted, the final recourse is executive clemency. Article 72 of the Constitution gives the President of India the power to pardon, commute, or remit the sentence of any person sentenced to death.10Indian Kanoon. Constitution of India – Article 72 Power of President to Grant Pardons State Governors hold a parallel power under Article 161 for offenses under state law.11Indian Kanoon. Constitution of India – Article 161
A petition is typically prepared by the prisoner or their lawyer and routed through the state government to the Ministry of Home Affairs, which evaluates the case and forwards a recommendation to the President. The President acts on the advice of the Council of Ministers, not independently. There is no statutory deadline for a decision, and delays have historically stretched for years and sometimes over a decade. Free legal aid is available at every stage.
Those delays have themselves become grounds for relief. In Shatrughan Chauhan v. Union of India (2014), the Supreme Court held that unreasonable delay in processing a mercy petition amounts to psychological torture and can justify commuting the death sentence to life imprisonment.12Global Health Rights. Shatrughan Chauhan and Anr v Union of India – Supreme Court Judgment
Who Cannot Be Sentenced to Death
Two categories are categorically excluded. Under the Juvenile Justice Act, no one who was under 18 at the time of the offense can be sentenced to death. If a court discovers at any point, even after conviction, that the defendant was a juvenile when the crime was committed, the sentence has no legal effect and the case transfers to a Juvenile Justice Board.
BNSS Section 456 provides that if a woman sentenced to death is found to be pregnant, the High Court must commute her sentence to life imprisonment.13India Code. Bharatiya Nagarik Suraksha Sanhita 2023 – Section 456 Commutation of Sentence of Death on Pregnant Woman The commutation is mandatory.
Rights Before Execution
The Shatrughan Chauhan judgment established procedural safeguards that apply to every person awaiting execution. The Supreme Court framed these as constitutional requirements under Article 21, the right to life and personal liberty, not as discretionary guidelines.12Global Health Rights. Shatrughan Chauhan and Anr v Union of India – Supreme Court Judgment
- At least 14 days must pass between the prisoner receiving notice that the mercy petition has been rejected and the scheduled execution date.
- Prison authorities must inform the prisoner’s family of the mercy petition rejection and the execution date, with enough notice to travel to the prison.
- The prisoner has a right to a final meeting with family and close associates, which officials must actively facilitate.
- Isolating a death row prisoner in a solitary cell while the mercy petition is still pending is unconstitutional.
- All death row prisoners must receive ongoing mental health assessments. If a prisoner develops severe mental illness, the prison superintendent must halt the execution, arrange a comprehensive medical board evaluation, and forward the findings to the state government.
- After the mercy petition is rejected and a death warrant is issued, the prison superintendent must confirm through government doctors and psychiatrists that the prisoner is physically and mentally fit to be executed.
- A condemned prisoner is entitled to legal representation at state expense at every stage, including preparation of the mercy petition.
In Accused X v. State of Maharashtra (2019), the Court further specified that any assessment of a prisoner’s mental disability must be conducted by a multidisciplinary team of qualified professionals, not a single examiner.
How Executions Are Carried Out
The method of execution for civilian convictions is hanging. The BNSS directs that a person sentenced to death “be hanged by the neck till he is dead,” and the execution takes place inside prison premises. Protocols require authorities to weigh the prisoner, test the gallows mechanism, and have a medical officer present to certify death. Military personnel sentenced by court-martial can alternatively face a firing squad under the service acts, an option rarely used in practice.
Where the Debate Stands
India has not abolished the death penalty, but its own Law Commission has recommended doing so for most crimes. The 262nd Law Commission Report, published in 2015, concluded that capital punishment should be abolished for all offenses except terrorism, finding that the “rarest of rare” standard had been applied so inconsistently that it could not serve as a reliable safeguard against arbitrary sentencing.
The government has not acted on that recommendation. Legislative trends have moved the other way: the BNS introduced new capital offenses, including identity-based mob lynching, and expanded the definition of terrorist acts. Executions themselves remain exceptionally rare. India has carried out only a handful since 2000, and the gap between death sentences imposed by trial courts and executions actually performed continues to widen. Many sentences are commuted on appeal, and dozens of prisoners have spent over a decade on death row while their cases and mercy petitions move through the system.