Execution of death penalty in India – Explained pointwise  

Introduction  

The constitutionality of death by hanging as a mode of execution has been challenged in India’s Supreme Court. The petitioner has claimed that hanging is “cruel and barbarous” and there is a need for a more “humane, quick, and decent alternative.” The court has asked the government to provide data on less painful and socially acceptable methods of execution of death penalty. 

What is the present mode of execution of death penalty in India?

The present mode of execution of death penalty in India is hanging by the neck until the person is dead. This is carried out in jail by an executioner appointed by the government. The method used is the same as it was during British colonial rule, and there have been no changes to the mode of execution since then.  

Indian courts in 2022 awarded a record 165 death sentences, the highest in over two decades, according to the Annual Death Penalty Report published by Project 39A, an advocacy group with the National Law University, New Delhi. 

Note: The Supreme Court last addressed and upheld the constitutionality of hanging in September 1983, over four decades ago (Deena v. Union of India). The Law Commission of India recognised the constitutional impossibility of hanging death in its 2003 report (the 187th Report) and urged that India should consider utilising lethal injections instead.  

What are the challenges in changing the mode of execution in death penalty cases?  

What are observations made by the Supreme Court of India on the execution of death penalty?  

Death sentence should be awarded only in the rarest of rare cases where the crime is brutal, heinous, and barbaric: For example, in the case of Nirbhaya gangrape and murder, the Supreme Court upheld the death penalty for the four convicts, stating that it was a “rarest of rare” case.  

The right to life is a fundamental right, and the courts should interpret the law in a manner that protects this right: In the case of Mohd. Arif Ashfaq v. The Registrar, Supreme Court of India, the Supreme Court commuted the death sentence of a man convicted of involvement in the 2000 Red Fort attack, stating that there was no direct evidence linking him to the crime and that his right to a fair trial had been violated.  

The courts should take into account mitigating factors such as age, mental illness, and socioeconomic background while deciding whether to award the death penalty: In the case of Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, the Supreme Court commuted the death sentence of a man convicted of murdering six members of a family, citing his young age and lack of criminal history.  

The execution of death sentences should be carried out in a humane manner, in accordance with established protocols and guidelines: In the case of Shatrughan Chauhan v. Union of India, the Supreme Court laid down guidelines for carrying out executions, including the requirement for a “dignified” and “professional” approach, and the provision of adequate medical facilities to the condemned prisoner.  

Importance of fair trial: In the case of M.A. Antony vs. State of Kerala (2001), the Court noted that a death sentence cannot be awarded on the basis of vague or general allegations and that the prosecution must prove the case beyond reasonable doubt.  

Need for judicial review: In the case of Bachan Singh vs. State of Punjab (1980), the Court held that the imposition of the death penalty must be subject to a rigorous process of judicial review, and that the courts must consider both the aggravating and mitigating circumstances of the case.  

What are the arguments in favour of execution of Death Penalty?  

Deterrent effect: The death penalty acts as a strong deterrent to would-be offenders by instilling fear of capital punishment in their minds.  

Retribution: Death penalty provides a sense of closure and retribution for the victim’s family and friends.  

Cost-effective: Death penalty is more cost-effective than life imprisonment because it eliminates the need for long-term incarceration.  

Justice: The death penalty is seen as a just punishment for heinous crimes such as murder, terrorism, and treason.  

Prevention of Recidivism: Executing convicted criminals ensures that they will never have the opportunity to commit more crimes in the future.  

Public Safety: Death penalty helps to maintain public safety by removing dangerous criminals from society.  

Respect for Law: The death penalty reinforces respect for the rule of law by demonstrating that serious crimes will not go unpunished.  

What are the arguments against the execution of Death Penalty?  

The risk of executing innocent people: There is always a risk of executing an innocent person, and this is an irreversible mistake. With the flaws in the justice system, wrongful convictions can happen, and innocent people can be sentenced to death.  

Does not deter crime: There is no conclusive evidence that the death penalty deters crime more effectively than long prison sentences. In fact, some studies have suggested that the death penalty may actually increase crime rates by brutalizing society.  

Discriminatory applications: The death penalty is applied disproportionately to people who are poor, mentally ill, or members of racial and ethnic minorities. This raises serious concerns about fairness and equal treatment under the law.  

Studies have shown that the death penalty is more likely to be awarded to those from lower socio-economic backgrounds and marginalized communities.

Arbitrary application: There is a lack of consistency in the application of the death penalty, with some convicts being sentenced to death for similar crimes while others receive lesser punishments.  

Expensive in India: The cost of a death penalty trial and subsequent appeals is much higher than the cost of keeping someone in prison for life. This is because of the complex legal procedures and the need for specialized lawyers and experts.  

Violates human rights: The death penalty is a violation of the right to life, as recognized by many international human rights treaties. It is also considered to be a cruel, inhuman, and degrading punishment.  

The possibility of rehabilitation: Some offenders, especially those who commit crimes when they are young, may be able to reform and lead productive lives. The death penalty denies these individuals the opportunity for rehabilitation and a second chance.  

The death penalty does not promote healing or closure: Some argue that the death penalty provides closure and healing for victims’ families, but studies have shown that it often does not. Instead, it can prolong the grieving process by keeping the case in the public eye for years, if not decades.  

The death penalty undermines the moral authority of the state: By taking a life, the state is sending a message that killing is an acceptable way to solve problems. This undermines the state’s moral authority and can contribute to a culture of violence.  

Effective alternatives exist: There are several alternatives to the death penalty, including life imprisonment without the possibility of parole, which are seen as more humane, cost-effective, and less prone to error.  

Overall, the arguments against the death penalty suggest that it is a flawed and ineffective system that should be abolished in favor of alternative forms of punishment that are more humane, equitable, and effective in reducing crime.  

What should be done? 

Review the death penalty laws: India should consider reviewing its death penalty laws to ensure that they are in line with international human rights standards. For example, the law should provide for fair trial rights, prohibit the use of the death penalty against juvenile offenders and people with mental disabilities.  

Improve legal aid services: Legal aid services should be improved to ensure that people facing the death penalty have access to competent and effective legal representation. For example, legal aid lawyers should receive proper training and resources to represent their clients effectively.  

Address issues with the criminal justice system: India should take steps to address the systemic issues with its criminal justice system that contribute to wrongful convictions and unfair trials. For example, the police should be held accountable for fabricating evidence, and judges should be trained to identify and reject coerced confessions.  

Increase transparency: The government should increase transparency around the use of the death penalty. For example, the government should publish statistics on the use of the death penalty, including the number of people on death row and the number of executions carried out.  

Conduct a public debate: The Indian government should conduct a public debate on the use of the death penalty in the country. This would allow for a constructive dialogue on the issue, and could lead to the development of more effective and humane policies.

Sources: Indian Express, Times of India, and Death penalty India report

Syllabus: GS 2: Social Justice – mechanisms, laws, institutions and Bodies constituted for the protection and betterment of vulnerable sections.