Note4Students
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Death Penalty Debate
Central Idea: The government informed the Supreme Court that it is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.
Background Information
- Death by hanging is a mode of execution in India.
- In March, the Supreme Court had asked the government to provide data on a more acceptable method of executing prisoners other than death by hanging.
- A petition was filed challenging the constitutionality of death by hanging as a mode of execution.
Death Sentences imposed so far
- 539 prisoners were on death row in India at the end of 2021, the highest since at least 2016.
- In 2022, trial courts imposed 165 death sentences, the highest in over two decades.
- Gujarat courts imposed 51 death sentences in 2022, the highest among all the States.
- Uttar Pradesh and Jharkhand also recorded significant increases in death sentences imposed by trial courts in 2022.
- From the 67 decided cases by the High Court’s involving 101 prisoners in 2022, three prisoners had their death sentences confirmed, 48 prisoners saw their death sentences commuted to life imprisonment, 43 were acquitted of all charges and six had their cases remitted to the trial court.
- In the 11 cases decided by the Supreme Court involving 15 prisoners in 2022, 5 prisoners were acquitted of all charges; the death sentences for eight were commuted to life imprisonment; and the death penalty was confirmed for two.
Death Penalty by Hanging: Present Status
- Section 354 (5) of the Code of Criminal Procedure mandates that a person sentenced to death shall “be hanged by the neck till he is dead”.
- In India, the Air Force Act, 1950, the Army Act 1950, and the Navy Act 1957 say that execution has to be carried out either by hanging by the neck until death or by being shot to death.
- In 2018, the Centre had filed an affidavit supporting death by hanging as a mode of execution.
- The Centre had not found the method of execution “barbaric, inhuman and cruel” compared to firing squads and lethal injections.
Various initiatives to alter death by hanging
- Ensuring dignified death: The government is considering the formation of a committee to examine the need for a painless and more dignified alternative to death by hanging.
- Panel formation: The Chief Justice of India had suggested the formation of a committee with experts from national law universities, professors of law, doctors, and scientific persons.
- Humane and painless method: The court indicated that it may even direct an alternative method of executing capital punishments if it was proved that there was a more “humane” method of execution.
- Voices for psychological tests: The SC has asked for psychological evaluation of condemned prisoners by expert doctors, and access for them by mitigating investigators.
Concerns raised by Judiciary
- The Chief Justice had observed that better data was needed to relook at death by hanging.
- The court wanted to know the-
- Impact of the sentence of death by hanging
- Pain caused
- Period of actual death, and
- Availability of resources for hanging a person
Judiciary at loggerheads
- The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India Case judgment and the Bachan Singh case reported in 1980.
- The government argued that the mode of execution is a “matter of legislative policy” and the death penalty is awarded only in the rarest of rare cases, with only three executions between 2012 and 2015.
Debate over Death Penalty
| Arguments in favor of death penalty | Arguments against death penalty |
| – Forfeiture of life: Supporters of the death penalty believe that those who commit murder, because they have taken the life of another, have forfeited their own right to life. | – Eye for an eye: Reformative justice is more productive, that innocent people are often killed in the search for retribution, and that “an eye for an eye makes the whole world blind. |
| – Moral indignation of the victim: It is a just form of retribution, expressing and reinforcing the moral indignation not only of the victim’s relatives but of law-abiding citizens in general. | – Deterrence is a myth: Death penalty is not a deterrent to capital crimes state that there is no evidence to support the claim that the penalty is a deterrent. |
| – Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts. | – Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents. |
| – Deterrent against crime: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people. | – Reverence for life’ principle: Death penalty is an immoral punishment since humans should not kill other humans, no matter the reasons, because killing is killing. |
| – Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime. | – Stigma against killing: With the introduction of lethal injection as execution method, medical professionals participate in executions. Many professionals have now refused to administer such deaths. |
| – Prevailing lawlessness: The crimes we are now witnessing cannot be addressed by simple punishments. We are seeing horrific attacks on women, young girls, minority communities and Dalits etc. | – Skewed justice systems: In many cases recorded by Amnesty International, people were executed after being convicted in grossly unfair trials, on the basis of torture-tainted evidence and with inadequate legal representation. |
| – Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society. | – Discriminatory nature: The weight of the death penalty is disproportionally carried by those with less advantaged socio-economic backgrounds or belonging to a racial, ethnic or religious minority. |
Other issues with such executions
(a) Socio-Economic Factors
- The recent statistics shows that the death row prisoners in India are more from the backward classes of the society.
- The death row prisoners belong to backward classes and religious minorities and the majority of convicts’ families are living in adjunct poverty.
- These people who are backward both in economic and social respects, are not in a position to here expensive lawyers and get proper representation in the Court.
(b) Delayed Execution
- The law provides for a long process before the execution of the convicts actually takes place.
- The unexplained delay in execution can be a ground for commutation of death penalty, and an inmate, his or her kin, or even a public-spirited citizen could file a writ petition seeking such commutation.
- Their trials are often cruelly forced to endure long periods of uncertainty about their fate.
Way forward: Law Commission recommendations on death penalty
The Law Commission of India in its 262nd Report (August 2015) recommended that:
- Death penalty be abolished for all crimes other than terrorism-related offences and waging war.
- Measures such as police reforms, witness protection scheme and victim compensation scheme should be taken up expeditiously by the government.
- It felt that time has come for India to move towards abolition of the death penalty. However the concern is often raised that abolition of death penalty for terrorism-related offences and waging war, will affect national security.
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