Introduction
In India, the Death penalty is a mode of punishment. Under the Indian Penal Code, 1860, eleven offences are punishable with death. For example-Murder, Abetment of suicide by a minor or insane person, dacoity with murder, etc.
Capital punishment/death penalty is a govt. sanctioned practice, where the state shall put to death as a punishment for a crime to a person. The first hanging in India was Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15th November 1949.
It has been carried out in nine instances since 1995, a total of thirty executions have been taken place in India since 1991, the most recent of which was carried out in 2020 for Delhi gang rape and murder case.
The Indian Penal Code,1860 prescribes a series of provisions for the death penalty. The constitutional clemency powers of the President and Governors originate from the Government of India Act, 1935, but the Governor-General of India, the President, and Governors in India do not have any prerogative clemency powers. 
Constitutional Power
No person can be deprived of his life except according to the procedure established by law, under Article 21 of the Constitution of India.
Article 72(1) of the Constitution of India states:
President shall have the power to grant pardons, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence-
- where the sentence is by a Court Martial;
- where the sentence is for an offence against any law, relating to a matter to which the executive power of the Union extends;
- where the sentence is a sentence of death.
The death sentence method was adopted in the Code of Criminal Procedure (1973). Section 354(5) of the above procedure reads as when any person has punished with death, then sentence shall be direct that the person be hanged by the neck till the person is dead.
Death sentence in the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1956
A death sentence may also be imposed, for the offences committed by the members of the armed forces. The Army Act, The Air Force Act, and The Navy Act also provide for the execution of the death sentence as punishment. The Air Force Act, 1950 empowers the court-martial to impose the death sentence for those offences which are mentioned in Section 34(a) to (o). Section 163 of the Act provides that the form of the sentence of death as-
- a court-martial shall,
- direct that the offender shall suffer death, hanged by the neck until he is dead,
- or shall suffer death by being shot to death.
This Act provides for the discretion of the Court Martial or provides for the execution of the death sentence by hanging or shot to death. The Army Act, 1950, and The Navy Act, 1957 both acts are also providing similar provisions as mentioned in The Air Force Act, 1950 for a death sentence.
Procedure When Death Sentence is Imposed
Death Sentence can be granted only in rarest of rare cases. According to Section 28 of CrPC, 1973, a session judge or additional session judge may pass any sentence authorised by law, but if any sentence of death passed by any judge, shall be confirmed by the High Court.
Under Section 366 of Criminal Procedure Code, 1973 ‘When the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court’.
-Niyti Jangra
Associate at Law Offices of Kr. Vivek Tanwar, Advocate & Associates