Abolition is the way – Supreme Court on finding out if there is a more dignified and less painful method to carry out death sentences | 23rd March 2023 | UPSC Daily Editorial Analysis

Context:

• Recently, a bench led by Chief Justice of India DY Chandrachud has reopened a decades-old debate over whether there can be a more humane and dignified way of executing the death penalty.
• In 2017 an advocate filed a public interest petition (PIL) seeking a more dignified way to execute the capital punishment.
• He argued that a convict whose life has to end because of the conviction and the sentence should not be compelled to suffer the pain of hanging.
• The plea in the PIL challenged the constitutional validity of Section 354(5) of the Code of Criminal Procedure (CrPC), 1973.
• In response to this plea, the Supreme Court on March 21 asked the Centre to defend the law that allows hanging by the neck as a mode of execution.

What is capital punishment?

• Capital punishment, also called death penalty, execution of an offender sentenced to death after conviction by a court of law of a criminal offence.
• Certain offences under Indian Penal Code, for which the offenders can be sentenced to punishment of death are:
  • Murder (Section 302)
  • Dacoity with murder (Section 396)
  • Criminal Conspiracy (Section 120B)
  • Waging war against the Government of India or attempting to do so (Section 121)
  • Abatement of mutiny (Section 132) and others.
• At the end of 2022, a total of 53 countries have retained capital punishment, including India, United States, South Africa, all countries in West Asia and some countries in South-East Asia as well as western Africa.

Arguments in favour of death penalty:

• Retribution: One of the key principles of retribution is that people should get what they deserve in proportion to the severity of their crime.
• Deterrence: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
• Closure: It is often argued that the death penalty provides closure for victims' families.

Arguments against of death penalty:

• Against the ‘Theory of Punishment’: Capital punishment, in its very essence, goes against the spirit of the ‘Theory of Punishment’, and by extension, natural justice.
• There are 3 major objectives of punishment i.e., retribution, reformation, and deterrence.
  • The theory of reformation is based on the obligation of society to reform a convicted person. But this objective will be entirely defeated in case of capital punishment since the offender does not continue to live.
• As the death sentence is irrevocable, an innocent person can also be wrongly executed.

Analysis:

• The idea of finding an alternative mode of execution, one considered less painful and involves little cruelty, has been part of the wider debate on whether the death penalty should be abolished.
• Judicial and administrative thinking have leaned towards backing both the idea of capital punishment and the practice of hanging.
• The Bench has sought fresh data to substantiate the argument that a more humane means of execution can be found.
• There are two leading judgments on the issue —
  • Bachan Singh vs State of Punjab (1980), which upheld the death penalty, but limited it to the ‘rarest of rare cases’,
  • Deena Dayal vs Union of India And Others (1983), which upheld the method by ruling that hanging is “as painless as possible” and “causes no greater pain than any other known method”.
• The 35th Report of the Law Commission (1967) had noted that while electrocution, use of a gas chamber and lethal injection were considered by some to be less painful, it was not in a position to come to a conclusion. It refrained from recommending any change.

Way Forward:

• Even though the Supreme Court has not favoured abolition, it has developed a robust and humane jurisprudence that has made it difficult for the executive to carry out death sentences.
• It has restricted its use to the ‘rarest of rare cases’, mandated a balancing of aggravating and mitigating circumstances before sending someone to the gallows, and allowed a post-appeal review hearing in open court.
• At the same time, it has evolved a clemency jurisprudence that makes decisions on mercy petitions justiciable and penalises undue delay in disposing of mercy pleas by commuting death sentences to life.
• The question now before the Court provides yet another opportunity to humanise its approach further.