Can a state take a life and still call itself fair? India has argued over this for decades. The answer it gave in 1980 is still the rule.
Imagine a judge who must choose between life in prison and the gallows. The law gives her both options. How should she choose? Three words from a 1980 judgment, rarest of rare, are her guide.
This lesson tells the story in order. It starts with the Constitution and the mercy power. Then come the big cases, the 2026 orders, the numbers and the Law Commission. At the end, it sets the case for abolition beside the case for keeping the penalty. Start with The President’s Power of Pardon: Article 72 Explained and Law Commission of India for background.
- Constitution: Article 21 allows death only by a fair, just and reasonable procedure.
- Rule: Bachan Singh (1980) said death only in the rarest of rare cases.
- Mercy: Articles 72 and 161, with BNSS Section 472 as the procedure.
- Numbers: 574 on death row on 31 December 2025.
- Last hanging: 20 March 2020.
- 2026: Aman Singh orders of 27 April and 7 October.
What Does the Constitution Say About Taking a Life?
What is the Article 21 test?
Article 21 says no person shall be deprived of life or personal liberty except according to procedure established by law. (Source: Shatrughan Chauhan judgment)
So the death penalty is lawful only through a fair, just and reasonable procedure. A harsh law passed in a hurry would not pass this test.
Think of a cricket match. The umpire may give a batter out, but only by the rules. Article 21 is the rulebook for the most serious decision a court can make. For another fundamental right, see Article 19 of the Constitution.
Check 1
Article 21 lets the State impose death by any procedure that Parliament makes into law.
Who Can Forgive a Death Sentence?
What do Articles 72 and 161 do?
Article 72 lets the President pardon or commute a death sentence. Article 161 gives Governors a similar power. (Source: Shatrughan Chauhan judgment) (Source: CourtBook, BNSS s.472)
To commute means to change a sentence to a lighter one. Death becomes life imprisonment. For the full story, read The President’s Power of Pardon: Article 72 Explained. For the state side, see The Governor: Office, Powers and Immunities.
What does BNSS Section 472 add?
BNSS Section 472 sets the mercy-petition procedure. The convict, a legal heir or a relative may petition. (Source: CourtBook, BNSS s.472) (Source: Vidhi Judicial)
The petition must be filed within 30 days of the jail superintendent informing the convict that appeals have ended. (Source: CourtBook, BNSS s.472)
Section 472(7) says no appeal lies in any court against the President’s or Governor’s order. Judicial review under Articles 32 and 226 still survives. (Source: Vidhi Judicial)
A common mistake is to think the order can never be questioned. Only an appeal is barred. A court can still review it.
Check 2
No appeal lies against a mercy order, yet judicial review under Articles 32 and 226 still survives.
How Did the Courts Shape the Rule?
What did Bachan Singh (1980) decide?
Bachan Singh v. State of Punjab (1980) upheld the death penalty. But it said death may be imposed only in the “rarest of rare” cases. (Source: SC order, 19 Sep 2022) (Source: Vikas Chaudhary, SC 2023)
Life imprisonment is the rule. Death is the exception. So a judge must explain why life in prison would not be enough.
How did Machhi Singh (1983) build on it?
Machhi Singh v. State of Punjab (1983) built on Bachan Singh. It asked courts to draw a “balance sheet” of aggravating and mitigating circumstances. (Source: Vikas Chaudhary, SC 2023)
Aggravating facts make a crime worse. Mitigating facts, such as age or background, argue for a lighter sentence. The judge weighs both columns.
Check 3
Bachan Singh (1980) made death the normal punishment for murder.
What did Shatrughan Chauhan (2014) add?
On 21 January 2014, Shatrughan Chauhan v. Union of India held that unexplained, inordinate delay in deciding mercy petitions is a ground to commute death to life. (Source: Shatrughan Chauhan judgment)
The Court commuted the sentences of 15 death-row convicts. (Source: The Wire)
The idea is simple. Waiting years for an answer is itself a cruel punishment.
What did Manoj (2022) require?
Manoj v. State of Madhya Pradesh was decided on 20 May 2022. It required the State to gather mitigation material before death is imposed. (Source: SCC Online)
This includes a psychological and psychiatric evaluation of the accused. The judge should know the person, not only the crime.
What did the September 2022 reference ask?
On 19 September 2022 a three-judge bench referred a question to a five-judge bench. The judges were CJI U.U. Lalit and Justices S. Ravindra Bhat and Sudhanshu Dhulia. (Source: SC Observer case page)
The question: must courts hold a separate sentencing hearing after conviction in capital cases? The case is In Re: Framing Guidelines Regarding Potential Mitigating Circumstances (Suo Motu W.P. (Crl.) 1 of 2022). (Source: SC order, 19 Sep 2022)
The reference was still pending in April 2026. No decision on it was found up to 1 November 2026. (Source: SC Observer, 14 Apr 2026)
Think it through: Why might a judge want a separate hearing on sentence, after the verdict of guilt? What could the court learn at that stage that it did not hear at trial?
What Changed in 2026?
What did the Court order on 27 April 2026?
In Aman Singh v. State of Bihar, the Supreme Court directed trial courts and High Courts to call for mitigation reports in every death-punishable case. (Source: SC judgment, 27 Apr 2026) (Source: Verdictum)
This turned the Manoj idea into a duty for every such case.
What happened on 7 October 2026?
On a NALSA application, the bench of Justices Vikram Nath, Sandeep Mehta and Aparesh Kumar Singh deleted Para 13(A). (Source: Order, 7 Oct 2026)
That para was the duty on trial courts. The Court called it unworkable because trial courts may lack resources. (Source: LawChakra)
The High Court duty remains. So the rule now sits at the appeal stage, not at the first trial. (Source: Order, 7 Oct 2026)
Check 4
On 7 October 2026 the Court deleted the trial-court duty to call for mitigation reports. The High Court duty remains.
Think it through: A trial court may lack psychologists and staff. Is that a good enough reason to drop a safeguard for a person facing death? What would you suggest instead?
Which Crimes Carry Death Under the BNS?
The Bharatiya Nyaya Sanhita (BNS) 2023 replaced the old Penal Code. Each section below allows death or life imprisonment, with fine. (Source: NCRB, BNS text) (Source: Taxmann)
| Offence | BNS section |
|---|---|
| Murder | §103(1) |
| Group of 5 or more committing murder on grounds of race, caste, community, sex, place of birth, language, belief and similar | §103(2) |
| Murder by a life convict | §104 |
| Gang rape of a woman under 18 | §70(2) |
| Organised crime resulting in death | §111(2)(a) |
| Terrorist act resulting in death | §113(2)(a) |
| Kidnapping for ransom or to compel the government | §140(2) |
| Waging war against the Government of India | §147 |
| Dacoity with murder | §310(3) |
Section 111(2)(a) also carries a minimum fine of ₹10 lakh. (Source: NCRB, BNS text) For the rape-law background, see The Justice Verma Committee and the 2013 Criminal Law Reforms.
What Do the Numbers Show?
How many are on death row?
On 31 December 2025, 574 people were on death row. This is the highest year-end figure since 2016. (Source: ThePrint, 21 Oct 2026) (Source: Bar & Bench)
Trial courts imposed 128 death sentences in 2025, across 94 cases. The data come from the Square Circle Clinic at NALSAR (formerly Project 39A), released 4 February 2026. (Source: ThePrint, Feb 2026) (Source: LiveLaw)
When was the last execution?
India’s last executions were on 20 March 2020. The four Nirbhaya convicts (2012 Delhi gang rape) were hanged. (Source: ThePrint, 21 Oct 2026)
No execution has followed as of October 2026. (Source: ThePrint, Feb 2026)
So the country has many death sentences but very few hangings. Most sentences end in commutation or acquittal on appeal.
Check 5
India has carried out executions every year since 2020.
What Did the Law Commission Say?
What is Report 262?
The Law Commission submitted Report No. 262, “The Death Penalty”, on 31 August 2015. Justice A.P. Shah chaired it. (Source: Law Commission Report 262)
It recommended abolition for all crimes other than terrorism-related offences and waging war (para 7.2.4). (Source: Bar & Bench)
To know the body itself, read Law Commission of India.
Check 6
Law Commission Report 262 kept death only for terrorism-related offences and waging war.
Should India Abolish or Retain the Death Penalty?
What is the case for abolition?
Deterrence. Report 262 found the death penalty deters no more than life imprisonment (para 7.1.1). (Source: Law Commission Report 262)
Arbitrariness. The report said no principled method removes arbitrariness from capital sentencing (para 7.1.5). (Source: Law Commission Report 262)
Irreversibility. It called death an “irrevocable punishment” (para 7.1.9). Appellate data support the worry: High Courts acquitted in over a quarter of the death cases they decided in 2025. (Source: LiveLaw)
What is the case for retention?
The Commission itself kept death for terrorism and waging war, citing national-security concerns. (Source: Law Commission Report 262) (Source: World Coalition)
Supporters of retention also say the gravest crimes deserve the gravest penalty. The two sides do not agree on this, so the debate goes on.
How does the world look?
Amnesty’s report (May 2026) recorded at least 2,707 executions in 2025 in 17 countries. This excludes China, which keeps its figures secret. It is the highest since 1981. (Source: Amnesty, May 2026) (Source: Rudaw)
Amnesty also recorded at least 2,334 new death sentences in 48 countries in 2025. (Source: Amnesty, May 2026) (Source: DPIC)
What is the Ethics (GS4) angle?
Ethics papers ask you to weigh values that pull apart. Here, justice for victims and the sanctity of life sit on opposite sides. A third value, fairness to the accused, asks for mitigation and review.
A good answer names the values, gives the strongest point of each side and reaches a reasoned view. It should also say what safeguards are needed whichever side you choose. For related contempt-and-courts debates, see Contempt of Court: Law and Debates.
Check 7
Report 262 found that the death penalty deters no more than life imprisonment.
Think it through: High Courts acquitted in over a quarter of the death cases they decided. What does that say about trial-stage risk? How should it shape your view on irreversibility?
Exam Traps
Bachan Singh (1980) upheld the penalty but made life the rule.
Machhi Singh (1983) gave the balance sheet of aggravating and mitigating facts.
Shatrughan Chauhan (2014) allows commutation for unexplained delay in mercy petitions.
Manoj was decided on 20 May 2022. The 19 September 2022 order is only the reference.
On 7 October 2026 the Court deleted the trial-court duty only. The High Court duty remains.
MCQ on Death Penalty in India
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