The Supreme Court has asked the Centre to provide data which may point to a more dignified, less painful and socially acceptable method of executing prisoners other than death by hanging.

Central idea

• The Supreme Court is hearing a petition challenging the constitutionality of death by hanging as a mode of execution.
• The petition argued that there is a need to evolve a “humane, quick and decent alternative” to hanging, which he termed as “cruel and barbarous” compared to lethal injection used in the United States.

Quest for painless execution

• Justice Narasimha noted that there was literature suggesting that “hanging is closest to painless”.
• In 2018, the Centre filed an affidavit supporting death by hanging and stated that it had found the method of firing squads and lethal injections as “barbaric, inhuman and cruel”.
• The government traced statistics of “botched-up” administration of lethal injections to condemned prisoners in the United States for 110 years to prove its point.

Status of death penalty in India

• 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.

Why in news now?

• The court clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in Deena versus Union of India 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:

• 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.
• 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.
• Highest form of Justice: For heinous crimes such as the Nirbhaya Gangrape Case, no other punishment could have deterred the will of the convicts.
• 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.
• Proportional punishment: The guilty people deserve to be punished in proportion to the severity of their crime.
• 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.
• Prevention of crime is non-existent: Despite of stringent regulations, it is certainly visible that some crimes can never be prevented in our society.

Arguments against:

• 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.
• 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.
• Political tool of suppression: The authorities in some countries, for example Iran and Sudan, use the death penalty to punish political opponents.
• 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.
• 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.
• 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.
• 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.
• Penalizing the innocents: The risk of executing the innocent precludes the use of the death penalty. Our colonial history has witnessed many such executions.

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 262^nd 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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