government: federal republic
state of civil and political rights: Free
constitution: 26 January 1950; amended many times
legal system: based on English common law; limited judicial review of legislative acts
legislative system: bicameral Parliament (Sansad) consists of the Council of States (Rajya Sabha) and the People's Assembly (Lok Sabha)
judicial system: Supreme Court, judges are appointed by the president and remain in office until they reach the age of 65
religion: 80% Hindu; 11% Muslim; 2% Christian; 2% Sikh; Buddhist and other minorities
death row: 325 (end 2016, according to Minister of Home Affairs April 11 2017)
year of last executions: 21-11-2012
death sentences: 26
international treaties on human rights and the death penalty:
International Covenant on Civil and Political Rights
Convention on the Rights of the Child
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed only)
The death penalty is provided for by the Penal Code and by Art. 21 of the Constitution
which states: "No person may be deprived of their life or personal freedom
except in cases established by law."
In India, death-penalty offences include conspiracy against the Government;
desertion or attempted desertion; terrorism; murder or attempted murder; inducement
to suicide of a minor or a mentally-retarded person.
Section 303 of the Indian Penal Code (IPC) prescribes the death penalty alone with no
alternative in cases where a convict serving a life sentence commits murder.
The court under this section cannot exercise its discretion and award a lesser
The death penalty is also applicable under the military statutes (Army Act,
1950, Air Force Act, 1950, Navy Act, 1956).
In 1987 India passed the Commission of Sati Prevention Act which prescribes the
death penalty for people found guilty of instigating sati, or sacrificial
suicide by the widow, in cases where the suicide is successful.
On April 5, 2013, Indian President Pranab Mukherjee gave his assent to the anti-rape bill
which details life prison terms and even death sentences for rape convicts, as
well as stringent punishments for such offenses as acid attacks, stalking and
voyeurism. Mukherjee accorded his assent to the Criminal Law (Amendment)
Bill-2013 on Tuesday (April 2), brought against the backdrop of the
country-wide outrage over the Delhi gang rape, when a 23-year-old woman was
savagely raped and attacked by six men in a bus on 16 December 2012 in Delhi
and died nearly two weeks later. The law, passed by the Lok Sabha (Lower House)
on March 19 and by the Rajya Sabha (Upper House) on March 21, has replaced an
ordinance promulgated on February 3. It amends various sections of the Indian
Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and the
Protection of Children from Sexual Offences Act. With an aim of providing a
strong deterrent against crimes such as rape, the new law states that an
offender can be sentenced to rigorous imprisonment for a term which cannot be
less than 20 years but which may extend to life, meaning imprisonment for the
remainder of the convict's life, and a fine. It has provisions for handing out
death sentence to offenders who may have been convicted previously for such
crimes. The law, for the first time, defines stalking and voyeurism as non-bailable
offences if repeated for a second time. Perpetrators of acid attacks will
attract a 10-year jail sentence.
It also defines acid attacks as a crime, and it grants a victim the right to
self-defense. It also has provisions for imposing a minimum 10-year jail term
for perpetrators of such acts. The law has fixed the age for consensual sex at
18 years. New sections to prevent stalking and voyeurism were introduced
following a strong demand from women's organizations.
According to statistics the death sentences are often overturned or commuted to life imprisonment by higher courts.
Also because death sentences must be confirmed by the Supreme Court, which ruled on 9 May 1980, in the landmark judgment “Bachan
Singh v State of Punjab” that the death sentence as a punishment should be
given only in the “rarest of rare” cases.
In the years following, the Supreme Court of India in its judgment has
continued to make its contribution to minimize the use of the death penalty: in
February 2010, the Court held that long incarceration and socio-economic
factors leading to crime are relevant and mitigating considerations for
commuting a death sentence to life imprisonment; in November 2013, the Court
ruled that courts should record “special reasons” while awarding death penalty
and “must” take into account the crime and the character of the criminal which
should reflect “extreme depravity” to deserve such a punishment; in January
2014, in a landmark and significant judgement, the Court commuted the death
penalty of 13 convicts to life on the ground of inordinate delay on part of
President to decide their mercy pleas, while two others were given life
sentence after they became mentally ill after several years on death row; in
February 2014, the Court commuted the death sentence of four persons to life
imprisonment on the ground of their young age and deprived socio-economic
background, as well as their behaviour in prison which was very good and they
were not beyond reformation; in July 2014, the Court commuted the death
sentence of a 26-year-old youth to life term saying that the convict is an
educated person so there are chances of his reform.
According the “Death Penalty India Report”, published in February 2016 by the National Law University, Delhi, during the period
2000-2015 (January), of the 1,486 death sentences imposed by the trial courts
for which the outcome across the appellate stages could be traced, only 4.9%
(73 prisoners) remained on death row after the appeal in the Supreme Court was
decided. Of the total death sentences, 65.3% (970 prisoners) were commuted (851
at the High Court and 114 at the Supreme Court, which enhanced to death penalty
5 High Court commutations), and another 29.8% (443 prisoners) of the prisoners
sentenced to death at the trial court stage were acquitted by the end of the
judicial ladder (428 by the High Court and 16 by the Supreme Court, which
enhanced to death penalty 1 High Court acquittal). “The extremely low number of
death sentences confirmed by the Supreme Court makes it imperative that the
death penalty problem in India must be framed in terms of the high number of
years that prisoners unjustifiably spend under the sentence of death along with
the trauma and suffering that accompanies it,” the Report says. “The sheer
number of months these prisoners spent on death row before being declared
innocent makes their tortured existence under the sentence of death
On 11 July 2015, cutting across the party lines, members of Parliament
and political leaders favoured the abolition of death penalty from the
country’s statute and sought the Law Commission of India, which works as an
advisory body to the Ministry of Law and Justice, to submit a report suggesting
for repeal of capital punishment. In his inaugural address to a day-long
consultation organised by the Law Commission on the issue, former West Bengal
Governor Gopal Krishna Gandhi, grandson of Mahatma Gandhi, voiced in support of
repeal and said, “death penalty is judicial murder and no responsible state
would adopt judicial murder in retaliation. The judicial architects must not
allow the political folly to disfigure its architectural landscape.” “Death
penalty should go. State is to protect the life of people, not to take it away
in retaliation,” he said terming the capital punishment as “most obnoxious
fruit.” Concurring with him, Varun Gandhi, General Secretary of the Bharatiya Janata Party (BJP), said the
deterrent punishment is counter-productive politically as well as socially as
the guilty becomes a martyr and gets sympathy from various quarters. “They were
portrayed as heroes or poster boys,” the BJP MP said and suggested life
imprisonment as an alternative measure. Addressing the question of punishment
and deterrence, Gandhi asked: “The question is whether somewhat quick, swift,
somewhat painless death is a greater punishment than a life time of
imprisonment without the possibility of parole or bail.” “To my mind, a life
time of incarceration without any hope of release is living death much more
severe than a 20-second release which actually morally frees an individual from
any burden they may carry,” he said. Congress MP Shashi Tharoor also supported
his view and opposed the capital punishment in the light of changing laws
across the globe, while former Union Minister Manish Tiwari opined that most of
the cases are socially and economically biased and the entire criminal justice
system needed to be reviewed. Noting that poor and downtrodden usually go to
the gallows, Chairman of the Law Commission of India Justice A P Shah said
there was a “serious” need to re-examine the death penalty in the country.
“Death penalty is the privilege of the poor,” he said. “There are
inconsistencies in the system and there is a need for an alternative model to
sentencing crimes and a serious need to re-examine the death penalty in India,”
Justice Shah, a former Delhi High Court Judge, added. Justice Shah was speaking
at a lecture on ‘Universal Abolition of Death Penalty: A Human Rights
Imperative’, by Professor Roger Hood of University of Oxford.
On 31 August 2015, in its 242-page report submitted to
the government and the Supreme Court, recommended abolition of death penalty
for all crimes other than terrorism-related offences and waging war against the
country. Chairman of the Law Commission Justice A P Shah said the commission
report is intended "to contribute to a more rational, principled and
informed debate on the abolition of the death penalty for all crimes."
"The capital punishment enterprise as it operates in India perpetrates
otherwise outlawed punitive practices that inflict pain, agony and torture
which is often far beyond the maximum suffering permitted by Article 21,"
the report said. The debilitating effects of this complex phenomenon imposed on
prisoners can only be called a living death, it added. "While the
illegalities pertaining to death row phenomenon in a particular case may be
addressed by the writ courts commuting the death sentence, the illegal
suffering which the convicts have been subjected to while existing on death row
casts a long shadow on the administration of penal justice in the
country," it said. “The Commission suggests that the death penalty be
immediately abolished for all crimes other than terror offences. At the same
time, for terror offences a moratorium as regards sentencing and execution be
immediately put in place. This moratorium can be reviewed after a reasonable
period,” the report says. The panel also hoped that the “movement towards
absolute abolition will be swift and irreversible”. The Law Commission had
recommended retention of death penalty in 1962.
Article 72 of the Constitution empowers the President
to pardon, grant reprieve or suspend, remit, commute sentence of a person
convicted for any offence. The President is guided and advised by the Home
Minister and the Council of Ministers in his decision.
As of 4 February 2016, 437 mercy petitions have been filed with successive Presidents of India since Independence in 1950. Of these
306 cases were commuted to life, according to Ministry of Home Affairs’ data.
President Pratibha Devisingh Patil, who ended his term
in June 2012, was the most merciful of all presidents during the last three
decades as she commuted death sentences of 34 petitioners to life imprisonment
during her tenure. During her tenure, Patil has rejected the petitions of only
In 2015, President Pranab Mukherjee rejected the mercy
petitions of three more convicts on death row: M.A. Anthony alias Antappan,
Shiwaji Shankar Alhat and Mohan Anna Chavan.
On 26 March 2015, President Mukherjee commuted the
death sentence of a convict to life imprisonment. Man Bahadur Deewan, alias
Tote Deewan, was convicted for killing his wife Gauri and two minor sons, Rajib
and Kajib, in September 2002 at a village in Dibrugarh district of Assam. He
later killed another inmate of the house and surrendered before the police.
Mukherjee is believed to have relied upon the opinion of Ministry of Home
Affairs (MHA) that had advised him to take a lenient view of the case,
considering that Deewan is from a poor background and murdered his wife, sons
and a neighbour due to abject poverty and unemployment.
As of 4 February 2016, only the petitions of Mofil
Khan and Mobarak Khan were still under examination, while the petition of
Jeetendra alias Jitu Nain Singh Gehlot was sent back to the Ministry of Home Affairs for further clarifications.
The war on drugs
The December 1988 Narcotic Drugs and Psychotropic Substances Amendment Act makes a second
conviction for drug-trafficking a capital offence. On 16 June 2011, the Bombay
High Court, one of the oldest and chartered High Courts in India, struck down
the mandatory death penalty for drug offences. division On 7 March 2014, India
replaced the mandatory death penalty in the Narcotic Drugs and Psychotropic
Substances Act with an optional death sentence, following the 2011 Maharashtra
High Court ruling in India Harm Reduction Network vs Union of India, in which
the mandatory death penalty for repeat offenders under section 31A of the
Narcotic Drugs and Psychotropic Substances Act, 1985, was declared
On 9 April 2016, for the first time a court in Bengal awarded death sentence under the Narcotic Drugs and Psychotropic Substances Act,
1985, commonly referred to as the NDPS Act.
Almost 14 years after he was arrested, a Barasat court
ordered Karaya resident Anwar Rehman - who was found guilty of supplying heroin
in Kolkata and was arrested with over 53.5 kg of it - to be hanged till death.
Rehman was arrested by the Narcotics Control Bureau
(NCB) of India. NCB officials explained that a death penalty is usually awarded
in rarest of circumstances - generally when the quantity recovered is huge and
the accused is a repeat offender.
The war on terror
Special courts applying the Terrorist Affected Areas Special Courts Act, 1984, and the
Prevention of Terrorism Act (POTA), 2002, were empowered to impose the death
sentence for terrorism. The latter law, which has broadened the scope of the
death penalty, when the Hindu nationalist BJP was in government and after an
attack on the Indian Parliament in December 2001, was considered as contrary to
human and political rights by the government, dominated by the Party of
Congress of Sonia Gandhi, after achieving victory in the elections of May 2004.
This law was repealed by the Parliament on December 9, 2004 by voice vote
amidst a walkout by the Bharatiya Janata Party (BJP), the main opposition
party. Under the same considerations of national security, the POTA was
replaced by the Unlawful Activities (Prevention) Bill, which amended the
Unlawful Activities (Prevention) Act, 1967 to cover terrorism. The Bill
provides that people convicted of terrorism will be punishable by the death
penalty or life imprisonment and a fine for any act which results in loss of
life. Under the Bill, anyone threatening unity, integrity, security or
sovereignty or striking terror in the people in India or in any foreign Country
by using bombs, dynamite or other explosive or inflammable substances or
firearms or other lethal weapons causing or likely to cause death is liable for
The fight against terrorism was behind a bilateral extradition treaty between
India and France signed in January 2003. The treaty involved Indian assurances
that criminals would not be given capital punishment upon extradition from
On 21 December 2011, in an effort to secure the strategically important oil
pipelines from acts of terrorism like sabotage, Parliament gave assent to death
penalty for such crimes by amending the Petroleum and Minerals Pipelines
(Acquisition of Right of User in Land) Amendment, Bill 2011. The punishment
“may extend to imprisonment for life or death” in case the act of sabotage is
dangerous and is likely to cause death of any other person, the amendment Bill
states. Prior to the amendment, the Act provided for a jail term of one to
three years’ for acts of sabotage and pilferage.
On 1 February 2012, the Supreme Court held that Section 27(3) of the Arms Act,
1959 that provides for “mandatory death penalty” in case of death being caused
by use of prohibited arms is ultra vires (beyond the powers) of the
constitution and declared it void. The provision of death sentence was inserted
in Section 27 of the Arms Act by amending it in 1988 in the wake of terrorist
and anti-national activities in Punjab. Prior to the amendment, the maximum sentence
under this section was seven years or fine or both.
On 30 July 2015, a little over 22 years after the
Mumbai bombings that killed 257 people in 1993, the lone convict on death row
in the case – Yakub Abdul Razak Memon – was hanged at the Central Prison in the
city of Nagpur. Yakub Memon was sent to the gallows – on his 54th birthday –
after several of his court appeals and clemency petitions were rejected by
various courts, including the Supreme Court that rejected his last-minute
petition seeking stay of execution. The bombings, a carefully coordinated series
of a dozen explosions across the city, stunned India because of their level of
sophistication and their unprecedented carnage. In addition to the dead, more
than 700 people were injured and several neighborhoods were left in smoking
ruins. According to prosecutors, Yakub Memon was the bomb plot’s indispensable
middleman, the one who arranged financing, made travel plans, stockpiled
weapons and bought vehicles for car bombs. Of all those who have been convicted
of crimes related to the bombings, including the men who planted the bombs,
Memon is the only defendant to be executed. Under prison procedures, the
condemned is typically offered a bath, a final meal, fresh clothes and a chance
to pray before going to the gallows. Yakub Memon was only the fifth person
executed in India since 1995. The last death row inmate to be executed in India
was Afzal Guru in 2013.
The Indian legislative system provides for different levels of appeal, and death sentences
are frequently commuted to life imprisonment upon appeal. India keeps no
official statistics on the number of death sentences and executions, nor on the
number of people on death row. The President has also the power to issue
pardons. Article 72 of the Constitution empowers the President to pardon, grant
reprieve or suspend, remit, commute sentence of a person convicted for any
offence. The President is guided in his decision and advised by the home
minister and the council of ministers. There is no timeframe in which the
President has to make the decision which is subject to judicial review after
the India’s Supreme Court decision of October 11, 2006 that clipped the
president’s power to pardon convicts on death row. Powers to grant pardon were
subject to judicial review if there was an “extraneous consideration in the
exercise of that power,” the court ruled.
President Pratibha Devisingh Patil, who ended his term in June 2012, was the most
“merciful” of all presidents during the last three decades as she commuted
death sentences of 38 petitioners to life imprisonment during her tenure.
During her mandate, she rejected 5 petitions. The move by Patil did not see any
protest from government quarters. The Indian media, however, has generally been
critical of her record on the issue, questioning why clemency was deemed
appropriate in some cases involving murder, rape and child abduction.
Mukherjee’s decisions on mercy pleas appeared in sharp contrast to those of his predecessor
Pratibha Patil. In his two-year tenure, as of 31 August 2014, President
Mukherjee has rejected 97% of the mercy petitions. Mukherjee considered 23
mercy pleas involving 31 death-row convicts out of which only one was granted
Top secret death
Statistics on executions in India since 1947 are not available. The Government of India treated information on death penalty as a
State secret. As per the 35th Report of the Law Commission of India
relating to “Capital Punishment”, a total of 1,410 death row convicts were
executed in various states during 1953-1963 alone. The 35th Report
of the Law Commission of India however did not cover States such as Assam,
Jammu and Kashmir, Rajasthan and Delhi and the figures are therefore not
accurate. There is also no information concerning executions from 1964 to 1994
in addition to those prior to 1953. The National Crime Records Bureau started
collecting information on death penalty only from 1995 and as per the NCRB, a
total of 21 condemned prisoners have been executed since 1995.
Secret executions of death row prisoners are increasingly becoming the order of the
day in India, after the executions of 2012 and 2013, which were shrouded in
secrecy and ended a de facto moratorium dating back to 2004.
The use of these covert tactics is intended to keep a lid, at least until the execution takes place, on expected repercussions and
protests, and – most significantly – foreclose the opportunity of moving a
court seeking a stay order for the execution.
In November 2012, Pakistan national Mohammad Ajmal Kasab was hanged in
secrecy at 7:30 a.m. at Yerwada Jail in Pune, just after Indian President
Pranab Mukherjee rejected his plea for mercy. In February 2013, Muhammad Afzal,
also known as Afzal Guru, a 43-year-old militant with the group Jaish-e-Muhammad,
was hanged in the Tihar Jail complex near New Delhi, a few days after President
Mukherjee had rejected a plea for mercy filed by Afzal’s wife.
Each of the two cases has been characterised by three
kinds of secrecy. First, where the prisoner sentenced to death was not informed
in advance about the circumstances surrounding his execution. Second, where the
prisoner’s family was not given prior notice of the execution. Third, where the
date of execution of a prisoner was kept away from the media and the public at
large until after the execution took place. The use of these covert tactics is
intended to keep a lid, at least until the execution takes place, on expected
repercussions and protests, and – most significantly – foreclose the
opportunity of moving a court seeking a stay order for the execution.
General guidelines by the Supreme Court on the treatment of persons on death row include: a notice of at least 14 days must be
given prior to execution; a final meeting between the prisoner and their family
and friends should be facilitated.
India has executed 5 people in the last 21 years: “Auto” Shankar in 1995, Dhananjoy
Chatterjee in 2004, Ajmal Kasab in 2012, Afzal Guru in 2013 and Yakub Memon
Abdul Razak in 2015.
The death penalty has failed to act as a deterrent in the country and the high number of
death sentences has not brought down crime rate, the Asian Centre for Human
Rights (ACHR) said in its report titled “India: Death penalty has no deterrence”
published on 1 September 2014. On the contrary, the report said, there was a
drastic fall in murder cases following a considerable reduction in executions
since 1982 when the Supreme Court propounded the "rarest of the rare
doctrine" for awarding the death penalty. "Death penalty can never be
a substitute to prevention, effective and prompt investigation and speedy
justice delivery system against crimes on which the government of India has
failed," said ACHR Director Suhas Chakma, who is also coordinator of the
national campaign for abolition of death penalty in India. Even inclusion of
death penalty for repeat offenders of rape has not reduced non-homicidal
offences such as rape, and the award of the death penalty in September 2013 to
four adult defendants found guilty of rape and murder in the December 2012
Delhi gang-rape failed to act as a deterrent, the ACHR report added. According
to Delhi police data, 616 rape cases were registered in Delhi from 1 January
2014 to 30 April 2014, an average of six cases per day.
The United Nations
On December 19, 2016, India voted against the Resolution on a Moratorium on the Use of the
Death Penalty at the UN General Assembly.