India does have the death penalty, but executions are extraordinarily rare. Capital punishment remains on the books for murder, terrorism, waging war against the state, certain sexual offenses against children, repeat drug trafficking, and a handful of military offenses, yet the last hangings took place on March 20, 2020, when four men convicted in the 2012 Delhi gang rape and murder were executed at Tihar Jail. Between a sentencing rule that treats death as a last resort and an appeals process that overturns most death sentences, the gap between what the law allows and what actually happens is enormous.
Crimes That Can Carry a Death Sentence
The Bharatiya Nyaya Sanhita (BNS), which replaced the Indian Penal Code in 2023, keeps capital punishment for murder under Section 103 and adds a new provision aimed at mob lynching. Killings by a group of five or more people acting together on the basis of caste, race, religion, sex, place of birth, language, or personal belief now carry death or life imprisonment for every member of the group.1Ministry of Home Affairs. Lok Sabha Unstarred Question No. 650
BNS Section 147 makes waging war against the Government of India, attempting to do so, or abetting such an act a capital offense.2Devgan.in. Bharatiya Nyaya Sanhita Section 147 – Waging, or Attempting to Wage War, or Abetting Waging of War, Against the Government of India The Unlawful Activities (Prevention) Act prescribes death when a terrorist act kills someone, and this is the primary statute used in national security cases.3Ministry of Home Affairs. Unlawful Activities (Prevention) Act, 1967
The 2018 amendments to the Protection of Children from Sexual Offences (POCSO) Act allow the death penalty for aggravated penetrative sexual assault on a child under 12. Section 31A of the Narcotic Drugs and Psychotropic Substances Act authorizes death for a person convicted a second time for trafficking in commercial quantities of specified drugs, though the Bombay High Court struck down its mandatory character, leaving judges with discretion.4India Code. Narcotic Drugs and Psychotropic Substances Act Section 31A5International Drug Policy Consortium. Indian Court Overturns Mandatory Death Penalty for Drug Offences
Military law adds a separate track. The Army Act makes mutiny and desertion during active service punishable by death through court-martial, and the Navy Act contains an equivalent provision for mutiny.6Ministry of Defence. The Army Act, 19507Ministry of Defence. The Navy Act, 1957 The Air Force Act follows the same pattern.
The Rarest of Rare Rule
Even where a crime is death-eligible, judges cannot impose the sentence freely. In Bachan Singh v. State of Punjab (1980), the Supreme Court upheld the death penalty against a challenge under Article 21 but set the framework that still governs every case: life imprisonment is the default, death is the exception, and capital punishment is reserved for cases where life imprisonment would be a wholly inadequate response.8Indian Kanoon. Bachan Singh vs State of Punjab
The sentencing judge prepares what the Court called a “balance sheet” of aggravating and mitigating factors. Aggravating factors include the brutality of the crime, the vulnerability of the victim, and the impact on society. Mitigating factors include the offender’s age, mental state, background, and potential for rehabilitation, with full weight given to anything that favors sparing life. If any reasonable mitigating factor exists, the balance tips toward life imprisonment. Courts phrase the threshold as cases where “the alternative option is unquestionably foreclosed.”
Who Cannot Be Sentenced to Death
Three categories of people are protected from capital punishment no matter what they are convicted of.
Section 21 of the Juvenile Justice (Care and Protection of Children) Act, 2015 prohibits sentencing anyone under 18 at the time of the offense to death or to life imprisonment without release. The cutoff is the offender’s age on the date of the crime, not when they were arrested or tried.9Ministry of Women and Child Development. The Juvenile Justice (Care and Protection of Children) Act, 2015
Pregnant women on death row must have their sentences commuted to life imprisonment by the High Court. The earlier Code of Criminal Procedure gave courts discretion; the replacement law, BNSS Section 456, made commutation mandatory, and the sentence is permanently converted rather than postponed until after delivery.10Devgan.in. Code of Criminal Procedure Section 416 – Postponement of Capital Sentence on Pregnant Woman
People with severe mental illness are also shielded. In Shatrughan Chauhan v. Union of India (2014), the Supreme Court held that executing such a person violates Article 21, treating mental illness as a “supervening circumstance” that requires commutation.11Indian Kanoon. Shatrughan Chauhan and Anr vs Union of India and Ors
Confirmation, Appeals, and Mercy
A trial court cannot sentence someone to death and have that sentence carried out. Under what was Section 366 of the Code of Criminal Procedure and is now Section 407 of the BNSS, every death sentence has to be submitted to the High Court, and it has no legal effect until the High Court confirms it.12Devgan.in. Code of Criminal Procedure – Submission of Death Sentences for Confirmation The High Court reviews the whole record afresh and can acquit, reduce the sentence to life imprisonment, or confirm the death penalty.
If the High Court confirms, the convict can appeal to the Supreme Court, then file a review petition, and finally a curative petition as the last judicial remedy. Curative petitions are entertained only in rare circumstances involving a violation of natural justice, judicial bias, or abuse of process.13Supreme Court Observer. Curative Petitions – Court in Review
Only after all of that is exhausted does the mercy petition stage begin. Article 72 of the Constitution gives the President the power to pardon, remit, or commute a death sentence, and Article 161 gives the Governor a parallel power for offenses under state law.14Constitution of India. Constitution of India Article 72 – Power of President to Grant Pardons, Etc., and to Suspend, Remit or Commute Sentences in Certain Cases15Constitution of India. Constitution of India Article 161 – Power of Governor to Grant Pardons, Etc., and to Suspend, Remit or Commute Sentences in Certain Cases In practice the President acts on the advice of the Council of Ministers through the Ministry of Home Affairs.
Delay itself can defeat an execution. The Supreme Court held in Shatrughan Chauhan that unreasonable delay in deciding a mercy petition amounts to psychological torture under Article 21 and is independent grounds for commuting the sentence, without the convict needing to prove specific harm from the delay.16Cornell Center on the Death Penalty Worldwide. India’s Supreme Court Draws Upon Human Rights Standards to Commute Death Sentences
How Often Executions Actually Happen
Very seldom. The four hangings at Tihar Jail on March 20, 2020 were the most recent. Before that, India went five years without an execution, and the previous one was the 2012 hanging of Ajmal Kasab for the 2008 Mumbai terror attacks.
The gap between sentences and executions is stark. Trial courts imposed roughly 120 new death sentences in 2023 alone, while the total number of executions carried out over the past two decades can be counted on one hand. Confirmation by the High Court, appeal to the Supreme Court, review, curative petition, mercy petition, and judicial sensitivity to delay together mean most death sentences are commuted to life imprisonment or overturned entirely long before an execution date is ever set.
Method of Execution
For civilians, the law specifies a single method: hanging by the neck until death. The sentencing judgment has to direct it, and prison manuals in each state set the protocols for drop distance and weight calculations. Military courts-martial have one additional option; under the Army Act, a court-martial can direct execution by hanging or by firing squad.17Lawgist. The Army Act 1950 – Form of Sentence of Death These are the only two legally recognized methods, and which one applies depends on whether the case was tried in a civilian court or a military tribunal.