Residual doubt theory for capital punishment in India

This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article goes into detail about capital punishment in India, including its meaning, history, and constitutional validity, as well as cases of past executions and recent ones.

This article has been published by Sneha Mahawar.

Table of Contents


The crime rates in the world we live in today are constantly increasing. The number of murders, abductions, rapes, terrorist attacks, and child abuse cases has increased. According to the World Population Review of 2022, the overall crime rate in India is 44.43. In such a situation, the legislation and penalties to deter and prevent crime must be put into effect immediately. Punishment, which is one of the main pillars of contemporary civilisation, is the use of coercion to uphold the law of the land. The state must punish offenders in order to maintain law and order in society. There was no specific law or order that governed these crimes in the past, and the severity of the punishment was entirely up to the king of the state. Over time, modern theories of punishment emerged, and the state was given voluntary control over our rights and the power to maintain law and order. The punishments range from fines and imprisonment to death and life imprisonment. ‘Capital punishment’, also known as the ‘death penalty’, is the harshest or most severe punishment of the present time.

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The purpose of the death penalty is to deter people from doing something by instilling fear in them about the consequences. This punishment applies to heinous and traumatising offences to society as a whole, such as murder, rape, rape with murder, etc. The death penalty is used when a crime is so serious that it has the potential to terrorise society as a whole, but not all of the crimes mentioned above necessarily warrant the death penalty. The death penalty is only applied to crimes that fall under the ‘rarest of rare doctrine.’

What is capital punishment

The term ‘capital’ is derived from the Latin word ‘capitalis’, which means concerning the head. Thus, to be subjected to capital punishment means to lose one’s head.

Capital punishment, also known as the death penalty, is the execution of a criminal who has been sentenced to death by a court of law for a serious felony. It is known as the most severe form of punishment. It serves as punishment for the most heinous, grievous, and abhorrent crimes against humanity. Even though the definition and scope of such crimes vary by nation, state, and age, the death penalty has always been the result of such crimes.

According to Encyclopedia Britannica, the death penalty is the execution of a person who has been given a death sentence after being found guilty of a crime by a court.

History of the death penalty in India

To be more structured, the history of the death penalty in India is divided into the following four headings:

Death penalty under the Hindu law

Since the dawn of humanity, punishment has been an integral part of society. The death penalty was present, along with exile, as two straightforward methods of eradicating society’s antisocial elements, which were society’s best examples of punishment and dissuasion. Death penalty cases are as old as the Hindu community. The death penalty is mentioned in the old scriptures and books. The death penalty was not viewed as barbaric in the Hindu legal system, and it was replaced with as much torture as possible to have a draconian impact on society. There have been discoveries of fragments of the death penalty dating back to the fourth century.

The necessity of the death penalty has been beautifully demonstrated by Kalidas. Historical and mythological epics like the Ramayana and Mahabharata have also asserted the need for the death penalty by stating that the king’s highest priority is to keep society safe from threats of all kinds, which can be done by putting the wrongdoer to death. In addition, both Katyayana and Brahaspati supported the death penalty.

Even during the time of the Buddha, when Ahimsa was the code of conduct, Ashoka did not think that the death penalty was unjust. The fundamental tenets of the Dand Niti in India were deterrence and mental health. The notions of social security and non-correctional philosophy are undeniably prevalent in the Hindu criminal justice system. Manu has made excellent notes of both the objective and subjective conditions. Manu Smriti, a famous work of Manu, portrays the crime and the perpetrator’s weakness. Kautilya also discussed the death penalty in his writings because, in his view, it is an essential tool for ensuring public safety.

Death penalty under Muslim law

Islam is governed by Sharia law, which was developed from the Qur’an, the Sunnah (Hadith), the Ijma’, ‘Urf, the Masalih al-Mursala, and the Qiyas. In verse 2:30 of the Qur’an, it is stated, “Your Lord said to the angels, I am appointing a vicegerent on earth.” The text also said, “Your Lord said to the angels, I am about to create a human being out of clay; when I have fashioned him and breathed of My spirit into him, kneel before him in prostration“. Thus, the Qur’an denies the authority to take human life. According to Islamic philosophies, Ijad, the act of giving life, and I’dam, the act of taking it away, are entirely divine entitlements.

In order to stop further heinous crimes from occurring in society, as required by Sharia Law, the Qur’an permits the taking of life by authorities other than Allah through the due process of law and justice.

Below are the crimes mentioned according to Sharia law.

  1. Had crimes: The crimes that affected the community were referred to as ‘Had’ or ‘Huhud’, which refers to the punishment set forth by Allah himself. This group of crimes includes murder, theft, consumption of alcohol, bloodshed, apostasy, and rebellion. These crimes will be harshly persecuted, and neither the judge nor the victim has the power to commute the sentence or enforce the punishment.
  2. Tazir crimes: The second category of such offences are those for which a tazeer or a criminal offence has been committed. In contrast to the first group of offences, the courts have the authority to decide whether to file charges against these categories of offences. This group of crimes includes attempted adultery, false testimony and obscenity.
  3. Qisas crimes: The third type of social crime is Qisas (retaliatory) and Diyut (blood money). The crimes protected by Qisas included intentional or felonious murder, attempted intentional murder or accidental murder, and intentional or unintentional injury. This crime is punishable by Qisas or Diyut, and in such cases, the victim or his legal guardian or heir may forgive or reduce the penalty amount.

Each of these three categories of crime has a clearly defined punishment that differs in the gravity of the offence and the punishment.

Death penalty under the Mughal empire

India’s mediaeval history was dominated by the mighty Mughal Empire. The Quranic laws were primarily followed in their administration. There was no constant application of the law in different parts of the world, and when disputes arose, the judges primarily considered Quranic principles while also having the authority to impose arbitrary punishments.

Akbar had very lenient views; he believed that the death penalty should only be imposed after thorough consideration and should only be applied to serious sedition offences. He also believed that no death should be followed by cruel treatment, such as mutilation or other cruelties. The laws of Jahangir and Aurangzeb were similar.

The execution of the death penalty involved brutal and agonising techniques, such as tossing the prisoner in the hot sun while they were covered in freshly butchered, fluffed thin to shrink rawhide and eventually collapse in misery and pain, or nailing the prisoners in the walls alongside other bodies. The mandatory execution of criminals has surpassed these strategies under the modern British criminal justice and administration scheme.

Death penalty in pre and post-independence era 

The issue of the death penalty was not discussed in the legislative assembly of British India until 1931, when Shri Gaya Prasad Singh, a member from Bihar, attempted to introduce a bill to abolish the death penalty for crimes under the Indian Penal Code. However, the motion was defeated after the then-Home Minister responded to it. Before independence, then-Home Minister Sir John Thorne made clear the government’s position on the death penalty in British India twice during Legislative Assembly debates. “The Government does not believe that it is prudent to repeal the death penalty for any crime for which it is currently authorised.”

Following its independence, the Republic of India adopted various colonial-era laws, including the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1898. The IPC imposed six punishments, including the death penalty.

Crimes punishable by the death penalty

The foundation of Indian criminal law is a combination of reformist and dissuasive theories of punishment. Penalties must be applied to deter offenders, but the offender must also be given the opportunity to reform. When the death penalty is imposed, the courts must provide detailed justification for their decision. Several legislative acts include the death penalty as a punishment, which include:

The Indian Penal Code, 1860

The Indian Penal Code contains several crimes that include the death penalty. They are discussed as follows:

  1. One of the crimes that have been connected to the death penalty is waging war against India or attempting to do so. Waging war against a country is a crime that is specifically defined in Section 121 of the IPC. Anyone who attempts to wage war against India or is successful in waging war may be sentenced to death.
  2. The death penalty has also been associated with the abatement of mutiny. Abatement of armed rebellion by an officer or member of the army, navy, or air force is specified in Section 132 of the I.P.C and accordingly, anyone who abets in the commission of a mutiny by an officer, soldier, sailor, or pilot in the army, navy, or air force of the Government of India, so that mutiny will be committed as a result of that complicity, can be punished by death.
  3. Section 194 of the IPC has been added to the list of crimes punishable by death.  According to Section 194, fabricating evidence is punishable by the death penalty if it is done to obtain a capital conviction for a crime. A person who commits such a crime can face the death penalty.
  4. Section 302 of the IPC imposes the death penalty for a person who commits murder.
  5. Assisting or supporting a minor’s suicide has been associated with the death penalty. Section 305 of the IPC deals with punishment for assisting or supporting a person under the age of 18 or an intellectually disabled person in committing suicide. As a result, anyone who commits this crime can face the death penalty.
  6. Kidnapping for ransom or other purposes is a serious offence punishable by death. Kidnapping a person with the intent to cause them harm or death is specified under Section 364A of IPC. Any person who commits this crime can face the death penalty.
  7. The following offences were added to the IPC by the Criminal Law (Amendment) Act of 2013 for which a court may impose the death penalty: 
  • Section 376A specifies the death penalty for rape that results in death or a permanent vegetative state of the victim. 
  • Under Section 376E, repeat rape offenders may face the death penalty.
  1. Section 396 also provides for the death penalty in cases of dacoity with murder.

The Commission of Sati (Prevention) Act, 1987 

Any person involved in the commission of Sati directly or indirectly is subject to the death penalty under  The Commission of Sati (Prevention) Act, 1987.

Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 

Based on previous convictions, Section 31A of the NDPS Act has introduced the death penalty for providing financial support or taking part in the production or sale of narcotics or psychoactive substances in a predetermined amount (e.g., opium 10 kg, cocaine 500 grammes).

The Scheduled Castes And Scheduled Tribes (Prevention of Atrocities) Act, 1989

Forging evidence that leads to the conviction and execution of an innocent member of a scheduled caste or tribe is punishable by death under the Act.

Army Act, 1950; Air Force Act, 1950 and Navy Act, 1957

Various offences committed by members of the military forces under military laws like the Army Act, 1950; Air Force Act, 1950, and Navy Act, 1957,  may also be punishable by death.

Category of offenders exempted from capital punishment


According to Indian laws, a person who committed a crime while still a minor, that is, before the age of 18, cannot be executed. The lawmakers decided to include minors in the group of offenders exempted from the death penalty because they thought that anyone who hasn’t reached adulthood has room for improvement and might be able to learn from his mistakes by being given the right environment and education. In addition, our laws provide a separate law known as the Juvenile Justice Act (2015), that is only implemented in situations involving minors. This is beneficial because it gives criminals a chance to improve.

Pregnant woman

Pregnant women were added to the list of criminals who are excluded from the death penalty. According to Section 416 of the CrPC, if the high court finds that a woman who has been awarded the death sentence is pregnant then such sentence can be postponed or commuted to life imprisonment. The reasoning behind this is that hanging a pregnant woman kills both the pregnant woman and the child in her womb. The unborn child in the woman’s womb has not committed any wrongdoing and does not deserve to die for what the woman did. Pregnant women may thus fall under the category of criminals who are excluded from the death penalty.

Intellectually disabled 

According to the law, anyone who is intellectually disabled or challenged may fall under the category of offenders who are exempted from the death penalty. If a person committing a serious crime is unable to comprehend the nature and consequences of their actions, this is sometimes referred to as having an intellectual disability. Because of their intellectual disability, someone with a criminal record might not be aware of the specifics of their crime. Consequently, the intellectually disabled were added to the list of criminals who were exempted from the death penalty by lawmakers.

Procedure after the imposition of the death penalty

Confirmation by the high court

The session’s court shall present the case proceeds to the high court of the relevant state for confirmation of the sentence after the sentence is imposed, in accordance with Section 366 of the CrPC. The sentence-passing court is required to transfer the convicted person to jail custody with a warrant until the High Court confirms the sentence.

Enquiry and additional evidence 

According to Section 367 of the CrPC, the high court may order a further investigation of the incident or the collection of additional evidence at any point relevant to the convicted person’s guilt or innocence.

High court’s power to approve sentences or annul convictions 

According to Section 368 of CrPC, the high court has the power to affirm a conviction, impose any other sentence the court deems appropriate, or amend the charges and order a new trial. The court cannot confirm the sentence until the time allotted for filing an appeal has expired.

Confirmation of the new sentence

According to Section 369 of the CrPC, any order or sentence that is submitted to the High Court for confirmation, whether it is a new sentence or one that has already been passed by the High Court, must be approved and signed by at least two judges.

Delivery of a copy of the order to the court of session

According to Section 371 of the CrPC, the confirmation of the sentence by the court or any other order passed by the Honourable High Court must be sent to the Court of Session without delay, with the High Court’s seal and attested with the official signature of the High Court Official.

Clemency powers

For the death sentence imposed by the session court to become final, the sentence must be confirmed by the high court. If the conviction is upheld, the condemned person may file an appeal with the Supreme Court. If the appeal petition is denied by the top court, the condemned person may then submit a mercy petition to the President of India and the Governor of the state.

The President and Governors have the authority, under Articles 72 and 161 of the Constitution, “to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or commute the sentence of any person convicted of any offence.” These are not personal powers of the holders of the office, rather, they are to be exercised in accordance with Articles 74 and 163, respectively, with the assistance and advice of the Council of Ministers.

Despite the fact that clemency powers may be utilised for a variety of causes and in a variety of contexts, they also act as the last line of defence against the possibility of judicial error or a miscarriage of justice. This puts a heavy burden on those who exercise this power and necessitates careful consideration, close examination of court documents, and thorough investigations when deciding whether to grant clemency, particularly when the petition comes from a prisoner who is about to be put to death and has a confirmed death sentence from the court.

The “Procedure Regarding Petitions for Mercy in Death Sentence Cases” has been developed by the Ministry of Home Affairs, Government of India, to provide guidance to State Governments and prison authorities regarding the petitions for mercy from prisoners on death row. The Supreme Court summarised these rules in Shatrughan Chauhan v. Union of India (2014), recording that the Home Ministry considers the following factors while deciding mercy petitions:

  1. Age, gender, mental incapacity of the accused, or the circumstances of the case, such as provocation or a similar defence.
  2. Cases where the appellate court reached a conviction decision despite expressing doubt about the genuineness of the evidence; 
  3. Circumstances where allegedly new evidence is available, primarily to decide whether a new investigation is necessary; 
  4. The high court enhanced the sentence or reversed the verdict on appeal;
  5. If there are any differences of opinion among the high court judges that would require a referral to a larger bench; 
  6. Examining the evidence to determine guilt in a gang murder case;
  7. Delays in investigation and trial, etc.

Execution procedure in India


Section 354(5) of the CrPC specifies that hanging is the method of execution in the civilian court system and that it is the only method permitted in India for the execution of a civilian person.


Another execution method used in India is shooting. A firing squad member may execute a convict who has been given the death penalty. The only organisations capable of executing the death penalty in this manner are the Army, Air Force, and Navy. According to the Army Act of 1950, the army court-martial system recognises both hanging and shooting as legitimate methods of execution.

Constitutional validity of capital punishment 

Article 21 of the Constitution, as we all know, guarantees the fundamental right to life and personal liberty. While this article guarantees the right to life and personal liberty to every person, is it absolute? The answer is no because, despite the fact that everyone has the right to live with dignity, the state has the authority to take away or limit even this right for maintaining law and order.

But as determined in the case Maneka Gandhi v. Union of India (1978), the procedure must be a due procedure as it takes away a person’s sacred life and must be fair, reasonable, and devoid of any bias. It implies that the state may restrict or revoke a person’s right to life by enacting laws, provided that there is a fair and valid procedure. However, the death penalty is not a punishment for all crimes; rather, it is only applied to the most heinous offences.

The issue of capital punishment has long been debated and discussed by our legislators. Nonetheless, despite years of debate and disagreement, Indian legislators have yet to reach a firm decision on whether the death penalty should be retained or abolished. The majority of nations have different perspectives on crime and different methods for punishing offenders. However, India, like many other nations, takes a reformative approach to punishment, meaning they think that changing the criminal’s behaviour and attitude toward society is a better way to deal with crime. India is one of the 78 nations that have retained the death penalty. Moreover, ‘rarest of the rare’ and ‘special reasons’ are two grounds for imposing the death penalty in India.

The constitutionality of the death penalty has occasionally been challenged. In the case of Jagmohan Singh v. State of Uttar Pradesh (1973), the death penalty was first challenged on the grounds that it violated a person’s right to life under Article 21 of the Indian Constitution, an important fundamental freedom. The five-judge bench of the Apex Court issued its ruling, stating that the death penalty is constitutionally valid and does not violate any of the Articles of the Constitution. It also found that the choice between the death penalty and life imprisonment was made after taking into account all the pertinent facts and the nature of the crime as they were presented during the trial.

In Rajendra Prasad v. State of Uttar Pradesh (1979), Justice Krishna Iyer asserted that the death penalty was a clear violation of Articles 14, 19 and 21 provided by our Constitution. Two requirements for imposing the death penalty on any offender were highlighted in this case. First, the specific reason or circumstance for which the offender was given this punishment must be recorded. Second, it can only be applied in extraordinary circumstances.

The “rarest of rare doctrine” was established by the landmark Bacchan Singh v. State of Punjab (1980),  decision, which also mandated the death penalty in certain circumstances. By a majority of 4:1, the Supreme Court upheld the constitutionality of the death penalty in this particular case, but it also established a rule requiring that it only be applied in the most extreme instances. Even though it was determined that the death penalty is an exception and life imprisonment is the rule, the Supreme Court’s decision did not define or restrict the use of the phrase ‘rarest of rare.’

The constitutionality of the death penalty was once again challenged in Deena Dayal v. Union of India (1983),  on the grounds that hanging by a rope violates Article 21 because it is barbaric, inhumane, and cruel. The Supreme Court determined that hanging is an appropriate and fair method of execution within the constraints of Article 21 and is therefore constitutional.

In the case of Mithu v. State of Punjab (1983),  it was determined that the death penalty under Section 303 IPC is unconstitutional because it infringes on the safeguards enumerated in Articles 14 and 21 of the Constitution. As a result, it was omitted from the Indian Penal Code. In the later decisions of T. V. Vatheeswaran v. Tamil Nadu (1983), the Supreme Court was faced with a conundrum regarding the execution of the death sentence and whether a significant delay was a justifiable reason to commute the death sentence to life imprisonment.

Further, the three-Judge Bench in the case of Macchi Singh & Others v. State of Punjab (1983), upheld Bachan Singh’s ruling and stated that the death penalty can only be awarded in the rarest of rare cases when the community’s collective conscience is such that it will expect those who hold the judicial authority to impose it. Under these circumstances, the following prerequisites must be satisfied:

  1. When the murder is committed in a manner that is particularly gruesome, revolting, or morally dubious in order to elicit a strong and extreme sense of outrage from the community.
  2. In the incident of bride burning or dowry death. 
  3. When the crime is massively proportionate.
  4. When a Scheduled Caste member is murdered, which sparks outrage in society.
  5. When the murder victim is an innocent child, a vulnerable woman, or a person rendered helpless due to advanced age or illness.

The Supreme Court further stated that the rarest of rare cases only serve as guidelines imposing the provisions mentioned in Section 354(3) of the CrPC and entrench the policy that life imprisonment is the rule and death punishment is an exception in the case of Santosh Kumar Satishbhushan v. State of Maharashtra (2009).

In the well-known case of Ajmal Kasab, who was held guilty of 80 offences, including murder, possessing explosives, and waging war on India.  The Bombay High Court pronounced a death sentence against him, asserting that it was the only appropriate punishment for the 166 deaths caused by the Bombay attacks on  November 26, 2011. The death penalty was also upheld by the Supreme Court.

In the case of Mukesh and Anr. v. State (NCT of Delhi) (2017), the Supreme Court upheld the death penalty for four prisoners, describing it as “the rarest of rares” and stating that the crime committed was horrifying to humanity. Later, the inmates’  requests for reviews were denied by the Supreme Court.

Law Commission reports on the death penalty

35th Report

In India, there has been much discussion regarding whether to retain the death penalty or abolish it for a long time. For the first time in India, the Law Commission looked into the death penalty and presented its 35th Report, which concluded that “As an experiment, the death penalty may be abolished once so that it can be re-introduced again after completion of the experiment, but that, after looking to certain possibilities on the issue, it is suggested that capital punishment must be retained as it is in the country.” However, the Commission declared in 2015 that they feel that the time has come for India to move towards the abolition of the death penalty, which is discussed further in this section.

187th Report 

The Law Commission of India again presented its 187th Report on the subject of the death penalty in 2003. This Report covered incidental matters and the method of execution of death sentences, but it did not address the crucial issue of the constitutionality of the death penalty.

In its consultation paper on “Mode of Execution of Death Sentence and Incidental Matters,” the Law Commission of India compared and distinguished hanging, intravenous lethal injection, and shooting as methods of carrying out death sentences. The Committee acknowledged that asphyxia or strangulation, which results in a slow and agonising death for the condemned person, is the primary cause of death from hanging in the majority of cases. In the Report, it was recommended that lethal injections be added to the currently used method of hanging and that these methods be reviewed regularly. The Report weighed the execution of death sentences by hanging by rope against objective factors such as international standards, norms, or the climate of international opinion, modern criminological theories, and developing standards of human decency.

The Law Commission’s position that the method of execution should be certain, humane, quick, and decent and that it must accord the prisoner dignity has been echoed by the Supreme Court. It should be noted that this method of execution was challenged in court once again in 2020 and is pending before the Supreme Court. In order to make sure that these rules are followed, prison manuals outline a specific process for executing death row inmates. 

262nd Report

In August 2015, the Law Commission of India, headed by Justice A.P. Shah, released its 262nd Report on the issue of the death penalty in India. It was suggested that the death penalty be abolished for all crimes other than those connected to terrorism and acts of waging war. The Report includes the following recommendations:

  1. The Commission recommended that the government implement measures such as police reforms, witness protection schemes, and victim compensation schemes as soon as possible.
  2. The march of our own jurisprudence, which removed the requirement that the death penalty is strictly limited to rare cases by either the Supreme Court to specific reasons for imposing a life sentence, to providing additional reasons again for the death penalty, shows the direction we must go. The Commission also thought that given the broadened and improved horizons of the right to life, now is the appropriate time for India to take steps toward emancipation. It reaffirmed the requirements for fruitful interactions between the State and the individual.
  3. There has frequently been concern that abolishing the death penalty for crimes and acts of war would jeopardise national security, even though there is no compelling legal basis for prosecuting terrorism in relation to other offences. Despite the legislators’ concerns, the commission decided there was no need to delay the first step in the abolition of the death penalty for all crimes other than terrorism.
  4. The Commission consequently recommended the abolition of the death penalty for all crimes other than those related to terrorism and war crimes. The Commission also sincerely hopes that progress towards complete abolition will be quick and irreversible.

Instances of  past executions in India 

The death penalty is executed at a very low rate in India. Mukesh Singh, Vinay Sharma, Pawan Gupta, and Akshay Thakur were the four convicts who were hanged together on 20 March 2020 in the Nirbhaya gang rape and murder case. However, including them, there have only been 08 executions since 2000. There are many capital punishment verdicts issued, but they are executed in very few cases. Between 2004 and 2015, approximately 1500 capital punishment verdicts were issued, but only four convicts were hanged and are as follows.

Dhananjoy Chatterjee v. State of West Bengal (2004)

In this case, Dhananjoy Chatterjee, who was found guilty of both rape and murder, killed Hetal Parekh, an 18-year-old student. He worked as a security guard for an apartment building. The victim resided in the same apartment where Dhananjoy was employed as a security guard. The victim was found dead in her home by her mother on the afternoon of March 5, 1990. Dhananjoy was charged with raping and killing the girl in her apartment as he was not seen in the area after the murder was discovered. On May 12, 1990, he was arrested by Kolkata police on charges of rape, murder, and theft of a wristwatch.

Dhananjoy was found guilty of all charges and given a death sentence by the Alipore Sessions Court in 1991. Both the Calcutta High Court and the Supreme Court upheld this judgement. He submitted mercy petitions to both President A.P.J. Abdul Kalam and the Governor of West Bengal, but both were denied. On his 39th birthday, August 14, 2004, Dhananjoy was executed at 4:30 am in Kolkata’s Alipore Central Jail.

Mohammed Ajmal Amir Kasab v. State of Maharashtra (2012)

In the infamous 26/11 Mumbai attack, Kasab and nine other terrorists carried out a number of well-planned bombing and shooting attacks throughout the city. The terrorist attack at CST station, which was carried out by Ajmal Kasab and Ismail Khan, targeted major landmarks and left up to 58 people dead and over 100 injured. At the time, Kasab, who was 21 years old, was the only survivor of the group that carried out widespread devastation throughout Mumbai, killing 166 people. He was taken into custody following a shootout with the police, interrogated, and charged with 86 offences, including murder and waging war on India.

Although the prosecution claimed Kasab had confessed, Kasab’s attorneys argued that the claim was false. In March 2009, a trial for him began. In May 2010, Kasab received the death sentence from a special court. On May 7, trial judge ML Tahaliyani said, “He should be hanged by the neck until he is dead,” adding that he had lost his right to “humanitarian treatment,” despite Kasab’s attorney pleading for mercy and claiming that his client had been brainwashed by a terrorist group (Lashkar-e-Taiba) and could be rehabilitated. Kasab appealed the decision, but in February 2011, the Mumbai High Court rejected it. In July 2011, Kasab appealed the death sentence to the Supreme Court.

Kasab claimed in the statement he gave to the Court that the prosecution had failed to establish the charges against him beyond a reasonable doubt. He said, “He may be guilty of killing people and committing a terrorist act, but I am not guilty of waging war against the state“. The Supreme Court rejected his appeal and upheld the Trial Court’s decision to execute him on August 29, 2012. The mercy petition he had submitted was denied by President Pranab Mukherjee as well. Ajmal Kasab was put to death by hanging on November 21, 2012, in Pune’s Yerwada Jail.

State v. Mohd. Afzal & Ors. (Afzal Guru’s case, 2013)

In this case, the facts started on December 13, 2001, when five armed individuals opened fire on Parliament, killing many of the security guards who were on duty. The gun battle resulted in the deaths of the five terrorists who attempted to enter Parliament while it was in session. The terrorists killed nine people, including eight security guards and one gardener. There were 16 injured people, including 13 security personnel. On December 15, 2001, the special unit of the Delhi Police arrested Afzal Guru from Srinagar, his cousin Shaukat Husain Guru, Shaukat’s wife Afsan Guru, and S.A.R. Gilani, an Arabic lecturer at Delhi University, using information from car and cellphone records.

The police filed an FIR on December 13 and all of the accused were tried on charges of waging war, conspiring to commit murder, attempting to commit murder, and other related offences. In addition to the initial charges, provisions of the Prevention of Terrorism Act (POTA) 2002 were later added.

The special court executed Guru, Shaukat, and Gilani on December 18, 2002. Shaukat’s wife Afsan received 5-year imprisonment after being found guilty of concealing the plot. Following an appeal, the Delhi High Court upheld Guru and Shaukat’s convictions in 2003. On October 29, 2003, the High Court found SAR Geelani and Afsan Guru, Shaukat Husain’s husband, not accountable for the allegations made against them. On August 24, 2005, the Supreme Court upheld Afzal Guru’s death sentence while commuting his cousin Shaukat’s to ten years in prison. Although Guru filed a review petition with the Supreme Court, the Court ultimately decided to reject it in September 2005.

In October 2006, Guru’s wife submitted an appeal for mercy to the then-President of India, A.P.J. Abdul Kalam. On February 3, 2013, the President rejected Afzal Guru’s plea for mercy. Afzal Guru was hanged in Delhi’s Tihar Jail on February 9, 2013.

Yakub Memon v. State of Maharashtra (2013)

In this case, Yakub Memon, the brother of Tiger Memon, was a prime suspect in the bombings. Yakub Memon, a chartered accountant by profession, was charged with taking part in the Bombay blast case, which was organised by Dawood Ibrahim and Tiger Memon. The explosions caused 257 casualties. Yakub Memon was arrested on August 5, 1994, at the New Delhi Railway Station.

He was found guilty of murder, assisting terrorist activity, and criminal conspiracy to commit terrorist acts. Additionally, he was charged with illegally transporting and possessing firearms and ammunition, and the Trial Court sentenced him to death under the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987.

The death sentence for Memon was upheld by the Supreme Court despite Memon’s request for a revision. The Maharashtra government executed Yakub Memon on July 30, 2015, the day of his death sentence. On May 22, 2015, Memon submitted a curative petition to the Supreme Court. The same was rejected on July 21, 2015. Additionally, he requested a stay of execution through a mercy petition, which the Governor of Maharashtra rejected. On July 30, 2015, Yakub Memon was executed at Nagpur Central Jail.


Inconsistent and subjective sentencing policy

The courts have repeatedly discussed the subjectivity and inconsistency that permeate the sentencing policy. The Supreme Court expressed its concern regarding the inconsistent and flawed use of discretion, the subjectivity involved in the sentencing policy, and the inappropriate application of the rarest of rare doctrines in the case of Sangeet and Anr. v. State of Haryana (2012)

The Court once again noted the difficulty in applying the doctrine and emphasised its cause as the lack of data available to the court, which was required for the actual application of the doctrine, in Shanker Kishanrao Khade v. State of Maharashtra (2012).  In this case, three tests, the crime test, the criminal test, and the rarest of the rare tests were laid out (with a society-centric and not judge-centric approach).

The mental condition of the defendant has been taken into account by the courts while determining whether to impose the death penalty and even to the point of being one of the factors that are highlighted when the death sentence is commuted. In one of the most well-known cases, Navneet Kaur v. NCT of Delhi (2014), the court commuted the convict’s death sentence due to the inordinate delay in carrying out the execution and the mental anguish he had to endure.

In the case of Rishi Malhotra v. Union of India (2017), the legitimacy of hanging as a method of execution was once more up for discussion, and it was deemed barbaric due to the degrading nature of human life and the mental anguish it would cause. It was during this case that the idea of switching to more advanced execution modes was discussed.

In Channulal Verma v. State of Chhattisgarh (2018), the Court expressed the opinion that the constitutionality of the death penalty and its potential for reformation should be examined. 

The Supreme Court specifically acknowledged and asserted post-conviction mental illness as one of the mitigating factors in Accused X v. State of Maharashtra (2019) while considering the commutation of the sentence.

Considering the past and current trends, it is clear that the sentencing guidelines have been plagued by individualistic subjectivity, a lack of requisite materials, improper consideration of elements and scaling of mitigating factors against other circumstances, as well as challenges to the constitutionality and propriety of the death sentence as a punishment option.

Recent cases

Manoj v. State of Madhya Pradesh (2022)

The ruling and the parameters laid in Bachan Singh’s case were re-asserted by the Supreme Court in the recent leading case Manoj v. State of Madya Pradesh (2022). The Court ruled that the death penalty only applies when the alternative opinion is unquestionably forfeited and that the Bachan Singh principles must be applied to each specific case in light of its circumstances. The Court in this case listed various guidelines for a better assessment of the parameters and scope of rehabilitation.

  1. Mitigating factors in the case must be considered at the trial stage.
  2. The trial court must obtain information for it from the accused as well as the state. 
  3. Additional data, such as age, family background, past and present circumstances, education, criminal histories, income, type of employment, etc., should be gathered by the state within a specific time frame.
  4. Other pertinent factors, such as illnesses or unstable behaviour, should be taken into account according to the circumstances of each case. This information must be provided to the court at the time of sentencing, and the accused should have the opportunity to present a defence and any mitigating circumstances.
  5. The behaviour inside the jail, the work that is done there, the involvement and other pertinent reports from the authorities and required experts.

Following the decision laid, courts must specifically take into account the circumstances of offenders and see if there is something actually unusual and uncommon about the crime in question which would render even life imprisonment inadequate as a punishment. Even after giving the maximum weight to the available mitigating factors in the accused’s favour, the courts must consider the overall facts and their cumulative impact on the application and determine that there is no other option but to impose a death sentence. Even though it would be one of the rarest of rare cases to support the death penalty, courts should screen these cases to determine if any aggravating factors are present to their fullest extent and no mitigating factors at all.

Manoj Pratap Singh v. State of Rajasthan (2022)

In this case, the death penalty imposed on a 37-year-old man for the rape and killing of an autistic girl aged seven and a half was upheld by the Supreme Court. The crime was committed in Rajasthan in 2013 when Manoj Pratap Singh, the accused, was about 28 years old. A three-judge bench stated that the crime had been committed with extreme depravity, especially in light of the victim’s vulnerability and the manner in which it was committed.

The convict kidnapped the victim on a stolen motorcycle, taking advantage of the trust gained through the offer of confectionary items. She was then sexually assaulted and had her head smashed, suffering multiple injuries, including a fracture of the frontal bone. The victim also had severe injuries on the private parts.

The accused argued that the crime was committed when he was only 28 years old. He also has a family, including a wife, a young daughter, and an elderly father. The Supreme Court opined that there appears to be no chance of his reformation and rehabilitation because these mitigating factors are weighed against a number of other factors pertaining to his antecedents.

The Court noted that the accused had a criminal history and had been involved in at least 4 cases involving theft, the destruction of public property, and attempted murder. Further, a stolen motorcycle was used in the commission of the current crime. The Court also noted that the convict had already been found guilty of murdering another inmate and had received a seven-day sentence for fighting with another prisoner.

The Court even went so far as to say that the convict was a “danger to the maintenance of order in the society” after taking all of these factors into account. According to the Court, the alternative of giving the convict a life sentence for the rest of their natural life without commutation was also impractical in light of the incorrigible conduct of the accused. The Bench stated that because it was inevitable in this particular case, it had “no choice but to confirm the death sentence awarded to the appellant.”

Mohd. Arif @ Ashfaq v. State (NCT Of Delhi) (2022)

In this case, the facts started when on December 22, 2000, some intruders opened fire indiscriminately, killing three people, including two army Jawans from the 7th Rajputana Rifles. In this case, Mohd. Arif, who is undoubtedly a citizen of Pakistan, was taken into custody on December 25, 2000. He was found guilty by a Trial Court on October 24, 2005, and on October 31, 2005, the Court sentenced him to death. His death sentence was upheld by the Delhi High Court in an Order dated September 13, 2007.

The Supreme Court rejected his appeal challenging the conviction on August 10, 2011, and on August 28, 2011, the Court also rejected his petition for a review. But in 2016, the Supreme Court decided to hear his review petition again in light of the ruling dictating that review petitions filed in death penalty cases had to be heard in public, and the Supreme Court issued a stay of execution for Arif. The Center argued that the imposition of the death penalty is the only appropriate remedy for situations involving terrorist acts that jeopardise the unity, integrity, and sovereignty of India.

In November 2022, the Supreme Court upheld the execution of Lashkar-e-Taiba militant Mohammed Arif for the 2000 Red Fort Attack case, which resulted in the deaths of three people, including two army officers. The Court denied his review petition, which questioned his conviction and sentence. The Bench noted that terrorist acts are regarded as the most aggravating situations when they pose a threat to the unity, integrity, and sovereignty of India. The Court further stated that this factor completely outweighs all other factors that could possibly be taken into account as mitigating circumstances based on the evidence.

Why the death penalty still prevails in India

In order to improve the environment for the general public, it is necessary to instil the fear of death in the minds of criminals given that it is obvious that the reformative theory of punishment has failed miserably in India and that the rate of wrongdoing has increased. The United General Assembly’s resolution to abolish or outlaw the death penalty was also opposed by India because it went against the country’s legal framework. Even though it is considered a legal punishment in India, the death penalty is only ever applied in cases of terrorism, intentional suicide of a child, murder, etc.

Abolishing the death penalty would not make sense in the current context, where India has seen an increase in rape and murder cases, where strict measures should be taken against the accused.  People would be less likely to commit crimes if the death penalty were applied more frequently when the accused is fully found guilty because it is seen as a more terrifying punishment than life imprisonment.


The death penalty, also known as capital punishment, has been used in India since time immemorial. Since the days of the monarchy, the death penalty has been the most common punishment in India for crimes and offences that essentially violate the law. There was no concept of grievous or serious crimes that would warrant the death penalty. It is in the present era that, the concepts like ‘rarest of rare cases,’ ‘special reasons,’ ‘grievous crimes,’ ‘serious offences,’ etc. are taken into consideration before imposing the death penalty.

The death penalty is a contentious issue; the global opposition to it has grown significantly, and many nations have abolished it as a means of punishment. Article 6 of the International Covenant on Civil and Political Rights lays out crucial protections that signatories who still practise the death penalty must uphold; but nowhere does it abolish its use. Despite the uproar surrounding Nirbhaya’s case, the International Commission of Jurists and Amnesty International India both condemned the executions. Apart from India, both Australian and American law imposes the death penalty for crimes involving murder and rape. 

The Law Commission also recommended the abolition of the death penalty in its 262nd Report, with the exception of acts of terrorism. Thereby, not putting a blanket ban on it. At this point, it is crucial to remember the instances in India where the accused received the death penalty and were executed. Studies of cases from the past 20 years reveal a total of 5 executions, of which 3 involved terrorist acts and the remaining involved rape cases. All five of these cases fit the description of the rarest of rare cases, and they shook both the public and judicial consciences. Although terrorist attacks and rape cases are fundamentally distinct from one another, these five cases have a common thread running between brutality, gruesomeness, and inhuman act against the victim(s) that a person in the normal course of things could not even possibly imagine.

The use of capital punishment is recognised as an effective deterrent in society as well as a form of retributive and preventive punishment. Many contend that it violates fundamental rights and is no longer an effective deterrent. It can be argued in favour of the death penalty in the Indian context that some crimes are so monstrous and horrifying in nature that the societal conscience is so deeply wounded that no punishment less than the death penalty can be considered fair or justice. As Justice ML Tahaliyani observed in the case of Ajmal Kasab, “he lost his right to humanitarian treatment,” similarly, such offenders lose their right to humanitarian treatment for the commission of barbarous offences. In India, death warrants are only ever issued in the rarest of rare cases and are always the exception. Therefore, abolishing the death penalty entirely would put the nation at greater risk because the State would be unable to take the necessary action when the rarest of rare cases arise.


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