• March 28, 2023

Execution method used in death penalty cases

GS 2 Government Policies & Interventions Important Aspects of Governance

In Context

• Recent Supreme Court proceedings have highlighted the mode of execution in death penalty cases.

Death penalty 

About:

• It is the harshest punishment that can be imposed on a criminal under the applicable penal code.
• It is a legally sanctioned instrument used by the government to end a person’s life.

Evolution in India:

• During the British Raj, there were numerous instances of Indians being hanged after or even before trial. • Following independence, India became a democratic state, and the system for imposing the death penalty also changed significantly.

Constitutional Validity: 

IPC:

• The Indian Penal Code, in accordance with the provisions of the Indian Constitution, provided for the imposition of the death penalty for specific crimes.

CrPc:

• According to Section 354(3) of the Code of Criminal Procedure, the judge must specify “the special reasons” for imposing the death penalty.

Supreme Court’s verdict:

• The Supreme Court last considered and upheld the constitutionality of hanging in September 1983. (Deena v. Union of India).

The Law Commission of India’s report:

• In its 187th Report (2003), the Law Commission of India acknowledged the constitutional impermissibility of the death penalty by hanging and recommended that India instead consider the use of lethal injections.

The recent debate on mode of execution

About:

• Historically, societies employing the death penalty have moved towards either carrying out executions in private away from public view (as India does in its prisons, where very few people witness the execution) or towards sanitising executions to make them appear clean and painless (like the lethal injection executions in the US).

The petition:

• The Supreme Court was recently asked to reconsider its decision from September 1983 regarding India’s continued use of hanging for executions.
• The petitioner argued that lethal injection is a more humane method of execution.
• The petitioners in the present case appear to have approached the court in an effort to reduce the pain of death row prisoners during executions.
• The most pressing question is whether any method of execution can satisfy constitutional requirements.

Issues with “death by hanging”:

• A substantial body of evidence now demonstrates that the death by hanging is a cruel and barbaric method of execution that violates human dignity.
• The instantaneous and painless nature of death attributed to hanging is more of an exception than a rule.
• Numerous courts, including the Privy Council, the Supreme Court of Uganda, and the High Court of Tanzania, have rejected hanging as a humane method of execution due to the pain it causes.

Executions using lethal injections:

How does it work?

Most states use 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 paralysed and unable to show any pain before potassium chloride causes cardiac arrest.
• Any suffering the prisoner experiences as a result of the induced cardiac arrest is masked by pancuronium bromide.

Issues:

• There is now irrefutable evidence from the United States that executions utilising lethal injections carry a real and substantial risk of being botched and resulting in extreme suffering.
• In fact, according to a study published by the British Journal of American Legal Studies in 2012, lethal injection executions had the highest rate of being botched.
• While the United States continues to use lethal injection as a method of execution, no scientific or medical research has been conducted on humans.

Arguments in favor of Death Penalty

Favoured by various agencies:

• The 35th Report of the Law Commission of India (1962), presented in 1967, advocated for the retention of the death penalty in the Indian Judicial System.

Maintenance of law and order:

• It was stated that due to the maintenance of law and order, the lack of empirical research, and other similar factors, “India cannot experiment with abolishing the death penalty.”

Acting as a deterrent:

• The death penalty serves as a deterrent and “answer to society’s demand for appropriate punishment in appropriate cases.”

Arguments against Death Penalty

Against the global trend:

• According to the Amnesty Report, more than two-thirds of the world’s nations will have abolished the death penalty in law or practise by the end of 2021.

The poor are most affected: 

• In India, the poor are affected more than the wealthy.
• The number of uneducated and illiterate individuals sentenced to death exceeds the number of educated and literate individuals.

The legal aid received by the poor who are facing serious charges is insufficient.

No reduction of pain:

• Neither of these options (hanging or lethal injection) are particularly concerned with reducing the prisoner’s pain, nor are they capable of doing so.
• As a consumer and supporter of the death penalty, society does not want to witness the immense suffering caused by the execution of a death row inmate.

Way ahead

• It would be preferable if we acknowledged that questions regarding execution methods represent yet another constitutional crisis point in the administration of the death penalty.
• The issues that must be addressed include:
• the arbitrariness of death penalty sentencing,
• the disparate and discriminatory impact of the death penalty on marginalised groups,
• the brutal realities of life on death row,
• the mental health consequences of being on death row, etc.
• The constitutional flaws with the execution method are yet another reason to reconsider the administration of the death penalty in India.