Mode of execution in death penalty cases

In Context

• Recent proceedings in the Supreme Court have put the spotlight on the mode of execution in death penalty cases. 

Death penalty 

• About:
  • It is the highest degree of punishment that can be awarded to an individual under specified penal law in force.
  • It is a legally backed instrument used by the state to take an individual’s life.
• Evolution in India:
  • During the British raj, there were countless instances of Indians being hanged after trial or even before it. 
  • Post Independence, India became a democratic state, and the system of awarding death penalties too changed drastically. 
• Constitutional Validity: 
  • IPC:
    • The Indian Penal Code in accordance with the provisions enshrined in the Constitution of India provided for awarding of capital punishment for certain specific offences.
  • CrPc:
    • According to Section 354(3) in the Code of Criminal Procedure, while imposing the capital punishment, the judge should specify “the special reasons” for doing so. 
  • Supreme Court’s verdict:
    • The constitutional validity of hanging was last considered and upheld by the Supreme Court in September 1983 (Deena v. Union of India). 
  • The Law Commission of India’s report:
    • The Law Commission of India in its 187th Report (2003) recognised the constitutional impermissibility of death by hanging and recommended that India consider using lethal injections instead.

The recent debate on mode of execution

• About:
  • Historically, societies using the death penalty have moved towards either carrying out executions in private away from the public gaze (like India does in its prisons with very few people witnessing the execution) or towards sanitising executions to make them look clean and without suffering (like the lethal injection executions in the US). 
• The petition:
  • The Supreme Court was recently called upon to reconsider its September 1983 decision on whether India could continue using hanging for executions. 
  • The petitioner’s claim was that we must move to lethal injection as a humane method of execution.
    • The petitioners in the current instance seem to have approached the court with the intention of wanting to reduce the pain of death row prisoners during executions.
  • The most immediate question is whether there exists any mode of execution that can meet constitutional requirements.
• Issues with “death by hanging”:

• There is now a strong body of evidence establishing that death by hanging is a cruel and barbaric form of execution that violates human dignity. 
• The immediate and the painless nature of death attributed to hanging is an exception rather than the rule. 
• Vrious courts including the Privy Council, Supreme Court of Uganda and the High Court of Tanzania have relied on the suffering caused by hangings to reject it as a humane method of execution.

• Executions using lethal injections:
  • How does it work?
    • Most states rely on a three-drug combination of sodium thiopental, pancuronium bromide and potassium chloride. 
      • While sodium thiopental puts the prisoner to sleep, pancuronium bromide renders the prisoner paralytic and unable to show any pain before potassium chloride causes cardiac arrest. 
      • Any suffering that the prisoner goes through as a result of the induced cardiac arrest is masked by the effect of pancuronium bromide.
  • Issues:
    • There is now incontrovertible evidence from the US that executions using lethal injections come with a real and substantial risk of being botched and leading to immense suffering. 
    • In fact, a study published by the British Journal of American Legal Studies (2012) found that executions using the lethal injection had a higher rate of being botched than any other method. 
    • While the US continues to use lethal injection as a mode of execution, the procedure has not been scientifically or medically studied on human beings. 

Arguments in favor of Death Penalty

• Favoured by various agencies:
  • In the 35th Report of Law Commission of India (1962), which was presented in 1967, the Law Commission favoured retaining the death penalty in the Indian Judicial System.
• Maintenance of law and order:
  • It said that maintenance of law and order, absence of any empirical research and other similar factors, “India cannot risk the experiment of abolition of capital punishment”.
• Acting as a deterrent:
  • Death punishment serves as a deterrent and a “response to the society’s call for appropriate punishment in appropriate cases”.

Arguments against Death Penalty

• Against the global trend:
  • According to the Amnesty Report, at the end of 2021 more than two thirds of the world’s countries had abolished the death penalty in law or practice.
• The poor are most affected: 
  • In India,the poors are most affected than the rich 
  • The numbers of the uneducated and the illiterate sentenced to death outweigh those who are educated and literate. 
  • The legal assistance received by the poor facing serious charges is far from satisfactory. 
• No reduction of pain:
  • Neither of these options (hanging or lethal injection) are really concerned with reducing pain for the prisoner and neither can they really achieve that reduction of pain.
  • Society, as a consumer and supporter of the death penalty, does not want to see the immense suffering that is inflicted in killing the death row prisoner.

Way ahead

• It would be better for us to acknowledge that issues surrounding the methods of execution present yet another constitutional crisis point in the administration of the death penalty. 
• The issues that need to be addressed are 
  • the arbitrariness in death penalty sentencing, 
  • the discriminatory and disparate impact of the death penalty on marginalised groups, 
  • the brutal realities of life on death row, and 
  • the mental health consequences of being on death row, etc. 
• The constitutional infirmities with the method of execution is yet another reason to revisit the very administration of the death penalty in India.