What are the Human Rights of Capital Punishment in India? Complete Guide

5 min readFeb 29, 2024

Capital punishment is a legal penalty in India for some crimes under the country’s main substantive penal legislation, the Indian Penal Code, as well as other laws. The Indian Criminal justice system is one of the important parts of capital punishment. Capital Punishment is also known as a death penalty, execution of an offender sentenced to death after conviction of a criminal offence by a court of law. Indian Criminal justice system is one of the important parts of capital punishment.

Evolution of Capital Punishment in India

India retained the 1861 Penal Code at independence in 1947, which provided for the death penalty for murder. The idea of abolishing the death penalty expressed by several members of the Constituent Assembly during the drafting of the Indian Constitution between 1947 and 1949, but no such provision was incorporated in the Constitution.

In the next two decades, to abolish the death penalty, private members bills were introduced in both Lok Sabha and Rajya Sabha, but none of them were adopted. It was estimated that between 1950 and 1980, there were 3000 to 4000 executions. It is more difficult to measure the number of people sentenced to death and executed between 1980 and the mid-1990s. It is estimated that two or three people were hanged annually. In the 1980 Bachan Singh judgment, the Supreme Court ruled that the death penalty should only be used in the “rarest of rare” cases, but it is not clear what defines the rarest of the rare.

→ Fundamental Duties of Indian Citizens

Position in India

India opposed a UN resolution calling for a moratorium on the death penalty because it goes against the Indian statutory legislation as well as against each country’s sovereign right to establish its own legal system. In India, it is awarded for the most serious of crimes. It is awarded for heinousness and grievous crimes. Article 21 says that no person shall be deprived of ‘right to life’ which is promised to every citizen in India.

In India, various offences such as criminal conspiracy, murder, war against the government, abetment of mutiny, dacoity with murder, and anti-terrorism are punishable with death sentences under Indian Penal Code (IPC). The president has the power to grant mercy in a case of death penalty. Bachan Singh vs State of Punjab, the Court held that capital punishment will only be given in rarest of rare cases.

Only the president has the power to confer mercy in cases related to death sentences. Once a convict has been sentenced to death in a case by the Sessions Court, it must be confirmed by the High Court. If the appeal to the Supreme Court made by the convict fails then he may submit a ‘mercy petition’ to the President of India. Detailed instructions on the procedure are to be followed by States to deal with petitions for mercy from or on behalf of death-sentenced convicts. Appeals to the Supreme Court and requests for special leave to appeal to that court by such convicts shall be set out by the Ministry of Home Affairs.

Under Article 72 of the Constitution of India, the President has the power to grant pardon, reprieves, respites or remissions of punishment or to suspend, remit or reduce the sentence of any person who has been convicted of an offence.

→ Hanging

All the death penalties in India are carried out by hanging. After independence, Godse was the first person to be executed in India by the death penalty in the case of Mahatma Gandhi. India’s Supreme Court suggested the death penalty should only be imposed on the rarest of rare cases in India. Attempts to kill those sentenced to life imprisonment are punishable by death if the victim is harmed by the attempt. 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.

→ 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.

Constitutional Law

Article 21 of the Constitution guarantees the right to life and personal freedom to all, including the right to live with human dignity. The state may take away or abridge even the right to live in the name of law and public order. But this procedure must be “due process” as held in India’s ‘Maneka Gandhi v. Union’. The procedure that takes away a human being’s sacrosanct life must be just, fair and reasonable. Our constitutional principle can be stated as follows only in rarest of rare cases, the death penalty should be used. On special grounds, the death penalty can be sentenced and should be treated as exceptional punishment.

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The accused shall have the right to hear. In the light of individual circumstances, the sentence should be individualized. The death penalty shall be confirmed by the High Court. Under Article 136 of the Constitution and under Section 379 of the Cr.P.C., there is a right to appeal to the Supreme Court. The accused may pray for forgiveness, commutation, etc. of sentence under Sections 433 and 434 of the Cr.P.C. and to the President or the Governors under Articles 72 and 161. Articles 72 and 161 contain, apart from the judicial power, discretionary power for the President and governor to interfere with the merits of the matter; however, there is a limited authority for judicial authorities to review it and it must ensure that the President or the governor has all relevant documents and material before them.

However, the essence of the governor’s power should not rest on race, religion, caste or political affiliations, but on a rule of law and rational issues. In accordance with Articles 21 and 22 of the Constitution, the accused has the right to a prompt and fair trial.

Ms. Ruchi Kaushik
Assistant Professor
School of Law
Lingaya’s Vidyapeeth
Private College in Delhi

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