DETAINED ABROAD

Which offences carry the death penalty in India?

India retains the death penalty and, contrary to the global trend toward abolition, has expanded the number of death-eligible offences in recent decades. The Bharatiya Nyaya Sanhita 2023 (BNS), which replaces the Indian Penal Code 1860 for offences committed after its commencement, increased the total number of capital offences from 12 to 18. Earlier cases continue to be governed by the IPC. Execution is carried out by hanging.

The current capital offences under central criminal law include:

• murder;
• waging war against the Government of India;
• kidnapping for ransom where the victim is killed or threatened with death;
• dacoity (gang robbery) with murder;
• terrorist acts causing death;
• gang rape of a woman under 12/18 years of age; and
• certain serious drug trafficking offences under the Narcotic Drugs and Psychotropic Substances Act 1985.

Additional capital offences exist under State-level and special legislation, including organised crime resulting in death under the Maharashtra Control of Organised Crime Act, and aggravated perjury causing the wrongful execution of an innocent person under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.^{[29]Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, s 3(2)(i); Maharashtra Control of Organised Crime Act 1999, s 3(1)(i).}

In practice, although death sentences continue to be imposed at trial, appellate courts commute or overturn the vast majority. Between 2016 and 2025, Sessions Courts imposed 1,310 death sentences, but of the 842 that reached High Courts, only around 8% were confirmed. Since 2021, the Supreme Court has confirmed only two death sentences, while over 400 were imposed by trial courts in the same period. Murder and murder involving sexual offences account for approximately 85% of all death sentences actually imposed.^{[30]The Advocates for Human Rights and the World Coalition Against the Death Penalty, India’s Compliance with the ICCPR: The Death Penalty, submission to the 141st Session of the Human Rights Committee (3 June 2024). https://www.theadvocatesforhumanrights.org/Res/India%20CCPR%20DP%20FINAL.pdf; The Square Circle Clinic (formerly Project 39A), Death Penalty in India: Annual Statistics Report 2016–2025 (4 February 2026). https://thesquarecircleclinic.org/2026/02/04/annual-statistics-report-2025/}

What additional protections apply to a foreign national facing a capital charge?

Foreign nationals facing the death penalty are entitled to the same procedural protections as Indian nationals, plus additional safeguards that apply specifically because of their status. The most critical of these is the right to consular access. Beyond this, the “rarest of rare” doctrine, established in Bachan Singh v State of Punjab, acts as a significant constraint on when death may be imposed at all. The Court held that life imprisonment is the rule and death the exception, available only where the option of a lesser sentence is “unquestionably foreclosed.”^{[31]Bachan Singh v State of Punjab (1980) 2 SCC 684 (SC).} Sentencing courts must carry out an individualised assessment, weighing the gravity of the crime against mitigating factors personal to the offender, including age, mental health, socio-economic background, and the possibility of reform. 

Additional protections include:

• Right to appeal — Every death sentence imposed by a Sessions Court is subject to mandatory confirmation by the High Court before it can be carried out. The accused may then appeal to the Supreme Court, and may subsequently file review and curative petitions.^{[32]Bharatiya Nagarik Suraksha Sanhita 2023 (Act 46 of 2023); Rupa Ashok Hurra v Ashok Hurra (2002) 4 SCC 388 (SC).}
• Prohibition on execution during appeal — No execution may lawfully be carried out while appeal proceedings, review petitions, or a mercy petition remain pending.
• Prohibition on sentencing juveniles to death — No person who was under 18 at the time of the offence may be sentenced to death. Such cases are dealt with under the Juvenile Justice (Care and Protection of Children) Act 2015, which prohibits both the death penalty and life imprisonment without the possibility of release for juvenile offenders.^{[33]Juvenile Justice (Care and Protection of Children) Act 2015.}
• Prohibition on sentencing persons with unsound mind to death — A person who, at the time of the act, was incapable of understanding its nature or that it was wrong due to mental illness cannot be convicted under the general exceptions to criminal liability.^{[34]Bharatiya Nyaya Sanhita 2023 (Act 45 of 2023), s 22.}
• Prohibition on executing persons with serious post-conviction mental illness — In Shatrughan Chauhan v Union of India and Accused X v State of Maharashtra, the Supreme Court held that serious mental illness developed after conviction is a mitigating factor that may ground a stay or commutation of execution. Death-row prisoners are entitled to regular mental health evaluations and appropriate medical care.^{[35]Shatrughan Chauhan v Union of India (2014) 3 SCC 1 (SC); Accused X v State of Maharashtra (2019) 7 SCC 1 (SC).}
• Prohibition on executing pregnant women — If a woman sentenced to death is found to be pregnant, the High Court must postpone the execution and may commute the sentence to life imprisonment. Note that pregnancy does not bar the death sentence itself, only its execution.^{[36]Bharatiya Nagarik Suraksha Sanhita 2023 (Act 46 of 2023).}
• Prohibition on executing where undue delay has occurred in mercy proceedings — Where there is inordinate and unexplained delay by the President or Governor in deciding a mercy petition, the Supreme Court may commute the sentence on the basis that such delay is itself a violation of constitutional rights.^{[37]Shatrughan Chauhan v Union of India (2014) 3 SCC 1 (SC).}
• Prohibition on solitary confinement before mercy petition is decided — Keeping a condemned prisoner in solitary confinement prior to the rejection of a mercy petition is unconstitutional and is itself a ground for commutation.^{[38]Shatrughan Chauhan v Union of India (2014) 3 SCC 1 (SC).}

Can evidence or documentation from a foreign national’s home country be submitted in proceedings?

Indian criminal procedure is governed by the Bharatiya Sakshya Adhiniyam 2023 (BSA). There is no specific prohibition on the admission of evidence originating from a foreign country; under the BSA, foreign public documents and judicial records are admissible provided they are properly authenticated. To be recognised by an Indian court, these documents must typically be Apostilled (if from a Hague Convention country) or undergo a chain of consular legalisation to verify their authenticity.

In practice, gathering foreign evidence presents significant logistical challenges, including obtaining certified translations, securing official records from government authorities in another jurisdiction, and meeting authentication requirements. Consular assistance can be critical in facilitating this process. Defence lawyers should consider engaging consular officers early to help obtain relevant documentation, such as records of mental health, age, or background that may be relevant to sentencing.

What pardon or clemency mechanisms are available?

After all judicial remedies have been exhausted, a condemned person may submit a mercy petition to:

• the President of India, under Article 72 of the Constitution; or
• the Governor of the relevant State, under Article 161.^{[39]Constitution of India 1950, arts 72, 161.}

Both have the power to grant a pardon, reprieve (postponement of execution), or commutation (reduction) of the sentence.

There is no time limit within which a decision must be made. However, the Supreme Court held in Shatrughan Chauhan v Union of India that excessive, unexplained delay in deciding a mercy petition can itself constitute grounds for commutation to life imprisonment.^{[40]Shatrughan Chauhan v Union of India (2014) 3 SCC 1 (SC).}