- The Supreme Court on March 21 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.
- A Bench of Chief Justice of India D.Y. Chandrachud and Justice P.S. Narasimha even mooted the setting up of an expert committee to relook at India’s method of putting to death its criminals.
- The Chief Justice said such a committee would have experts from the national law universities, professors of law, doctors and scientific persons.
- The Court indicated to the Centre, represented by Attorney General R. Venkataramani, that it needed some underlying data based on which it could examine if there was a more “humane” method of execution which would render death by hanging unconstitutional.
Death penalty has been one of the most contentious issues of India’s constitutional debate. Every time a death penalty has to be executed, it leads to a fierce public debate.
Hence, we have to understand the following dimensions of this issue:
- What is Death Penalty?
- What is the method to be adopted while executing the death sentence in India?
- Issues involved in Death penalty.
- Important Supreme Court Judgments
- Death penalty methods and failure rates
- Alternatives to the death penalty
- Global Trends
What is Death Penalty?
- Capital Punishment, also known as the death penalty, is the act of the state executing an individual as punishment for a crime. It has been a part of India’s judicial system since the British era and is still a legally recognized form of punishment.
- While 109 countries have abolished the death penalty, 55 countries, including India, Pakistan, China, the USA, and Japan, continue to retain it for certain crimes.
- Some countries do not practice the death penalty but still have provisions for it in their legal systems.
- In India, under the Code of Criminal Procedure of 1898, the punishment for murder was the death penalty. Despite ongoing debates about its validity, the 35th Law Commission recommended in 1967 that the death penalty should be retained because it acts as a deterrent and creates fear among criminals.
- The Constitutional validity of Death Penalty has been challenged from time to time and after the re-enactment of the Code of Civil Procedure in 1973, there have been certain changes in the concept of Death Penalty.
- Under the 1973 Act, under section 354(3) special reasons have to be given for awarding the death penalty not life imprisonment.
What is the method to be adopted while executing the death sentence in India?
- Art. 21 of the Constitution, which guarantees to every citizen the fundamental right to life, also expressly states, “no person shall be deprived of his life or personal liberty except according to procedure established by law.” This means that under no circumstances your right to live will be taken away from you except by the due procedure established by law, that is the state can take away your life through the given process of law if it deems fit. Not all offences are punishable by death, in fact, most of the agencies do not elicit capital punishment; instead, it is only reserved for the most heinous of crimes.
- Section 354(5) of the CrPC specifies that hanging is the method of execution in the civilian court system and that it is the only method permitted in India for the execution of a civilian person.
- Another execution method used in India is shooting. A firing squad member may execute a convict who has been given the death penalty. The only organisations capable of executing the death penalty in this manner are the Army, Air Force, and Navy. According to the Army Act of 1950, the army court-martial system recognises both hanging and shooting as legitimate methods of execution.
But as all of us can understand that death penalty is a highly controversial and divisive topic. While some argue that it is a justifiable form of punishment for heinous crimes, others believe that it is ethically and morally wrong. Here are some of the main ethical issues associated with the death penalty:
- Human rights violations: Many argue that the death penalty violates the basic human right to life. The state taking a person’s life, even if they have committed a serious crime, is seen as a violation of their human dignity.
- Possibility of wrongful convictions: There have been numerous cases where innocent people have been sentenced to death. This raises serious concerns about the reliability of the justice system and the risk of executing an innocent person.
- Botched executions: ‘Botched executions’ are those that did not go as planned, resulting in unnecessary pain for the person charged with death penalty.
- Inequities in application: The application of the death penalty is not uniform and can be influenced by factors such as race, gender, and socioeconomic status. This raises concerns about the fairness and impartiality of the justice system.
- Retribution vs. rehabilitation: The death penalty is often seen as a form of retribution rather than rehabilitation. This raises ethical questions about whether the state should be seeking revenge or working towards the rehabilitation of offenders.
- Cost: The death penalty is often more expensive than life imprisonment. This raises ethical questions about the allocation of resources and whether society should be spending money on a form of punishment that is not proven to be more effective than alternatives.
Overall, the ethical issues associated with the death penalty are complex and multifaceted. While some argue that it is necessary for justice to be served, others believe that it is a violation of human rights and that alternative forms of punishment should be explored.
Important Supreme Court Judgments
- Bachan Singh v. State of Punjab, 1980: Consider aggravating and mitigating factors of crime and the accused. Use Death Penalty only in ‘rarest of rare cases’.
- Machhi Singh v. State of Punjab, 1983: Identify the way the crime was committed, motive, the anti-social nature of the crime, the magnitude of the crime, and the personality of the victim.
- Shatrughan Chauhan v. Union of India, 2014: Undue, inordinate and unreasonable delay in death penalty execution amounts to torture and a ground for commutation of sentence.
Death penalty methods and failure rates
- The table shows the proportion of botched executions for each method. Data includes only executions in the U.S. from 1890 to 2010.
There are several alternatives to the death penalty that are used by various countries and jurisdictions around the world.
Here are a few examples:
- Life imprisonment without the possibility of parole: This is a sentence in which the offender is kept in prison for the rest of their life, with no chance of release. This is a common alternative to the death penalty in many countries.
- Restorative justice: This is a process in which the offender is required to make amends for their crime, usually through community service or financial restitution to the victim. This approach focuses on repairing harm rather than punishment.
- Rehabilitation programs: This involves providing offenders with education, job training, counseling, and other services that can help them reintegrate into society and avoid future criminal behavior.
- Community service: This is a sentence in which the offender is required to perform a certain amount of community service as a form of punishment.
- Fines and other monetary penalties: This involve imposing a financial penalty on the offender, which can range from a small fine to a substantial sum of money.
- Suspended sentence: This is a sentence in which the offender is found guilty but not actually sent to prison. Instead, the sentence is “suspended,” which means that the offender is released but must adhere to certain conditions, such as regular check-ins with a probation officer or avoiding further criminal activity.
- Capital punishment moratorium: This is a temporary or indefinite suspension of the death penalty, which allows time for review and reform of the justice system.
Overall, there are many alternatives to the death penalty that can be effective in deterring crime, protecting society, and rehabilitating offenders.
The use of the death penalty varies greatly around the world. While some countries have abolished it entirely, others continue to use it as a form of punishment for certain crimes. Here are some global practices with regard to the death penalty:
- Abolitionist countries: As of 2021, 109 countries have completely abolished the death penalty. These countries include Canada, most of Europe, Australia, New Zealand, and many Latin American and African countries.
- There are still 55 countries that retain the death penalty in law and/or in practice, including the United States, China, Iran, Saudi Arabia, and Vietnam.
- Some countries that have not abolished the death penalty have imposed a moratorium on executions. This means that while the death penalty is still legal, no executions are being carried out. For example, India has not executed anyone since 2015.
- The methods used to carry out the death penalty also vary around the world. In some countries, such as the United States, lethal injection is the most common method, while in others, such as Saudi Arabia, beheading is used.
- The crimes that can result in the death penalty also vary by country. In some countries, such as Iran and Saudi Arabia, crimes such as drug trafficking and apostasy can result in the death penalty, while in others, such as the United States, only certain types of murder can result in the death penalty.
The ethical implementation of the death penalty requires adherence to certain principles, such as ensuring that the justice system is free of flaws and that laws are properly enforced. To avoid any failures or miscarriages of justice, the criminal justice system must be improved.
In addition, the judiciary must maintain a consistent approach that takes into account the restorative and rehabilitative aspects of justice in order to avoid any negative consequences that could arise from imposing the death penalty.
Furthermore, there must be compelling justifications for the imposition of the death penalty in order to avoid excessive punishment and maintain respect for the value of life.
Finally, the mercy petition must be treated as the final bulwark against any miscarriage of justice, with a time-bound disposal of such petitions to ensure that justice is served.