Context: The Union Government told the Supreme Court that it is considering appointing an expert committee to examine if there can be a method less painful than hanging by neck for execution in death penalty cases in the country. 

Background

• In 2017, a PIL was filed seeking to abolish the present practice of executing a death row convict by hanging and replace it with less painful methods such as "intravenous lethal injection, shooting, electrocution or gas chamber".

What is the death penalty in India?

• Hanging and shooting are the two methods of the death penalty in India.

• According to the Criminal Procedure Code, hanging is the method of execution in the civilian court system.

• The Army Act, of 1950, however, lists hanging and shooting as official methods of execution in the military court-martial system.

• Under the provisions of criminal procedure, the death penalty must be awarded as an alternative punishment to life imprisonment which the offenders may be sentenced to in 'rarest of rare cases'.

Rarest of rare cases ( Bachan Singh v. State of Punjab )

• The year 1980 marked a crucial point in the debate around the death penalty. That year, a trial court in the state of Punjab sentenced to death a man named Bachan Singh for the murder of three men. 

• Singh approached the Supreme Court of India, asking it to examine the constitutionality of capital punishment in a case that led to a landmark ruling.  

• The Bachan Singh case led to the establishment of the "rarest of rare" doctrine, meaning that courts should only impose the death penalty in exceptional cases.

• Rarest rare cases can be described as those when the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken the intense and extreme indignation in the community. When total depravity and cruelty are the motives behind a murder.

Gaps in the current sentencing framework

• Law Commission: In 2015, a Law Commission report called for its abolition, except for in terrorism-related cases.

• Supreme Court: In 2022, for the first time in 42 years, the Supreme Court acknowledged the gaps in the current sentencing frameworkand put together another constitutional bench to resolve them.

• But as the Supreme Court seeks ways to reform death penalty sentencing, trial courts across India continue to hand down capital punishment.

Note: Capital punishment, is a legal penalty ordered by the Court against the person who has committed a certain crime that is prohibited by the law. In India, it is only given in the rarest of the rare cases as per the Indian Penal Code and Code of Criminal Procedure.

• Capital punishment is the most controversial penal practise debated highly all over the world and the word ‘Abolition of Death Penalty’ is one of the most discussed topics in United Nation (UN) where Death Penalty is considered as a violation of Human Rights.

Increasing death penalty

• Released by: ‘Project 39A’, a criminal reforms advocacy group with the National Law University, Delhi.

Key highlights

• According to NCRB data, 165 death penaltieswere awarded by trial courts since 2000.

• The corresponding figure for the last five years was;

• 146 in 2021, 78 in 2020, 104 in 2019, 163 in 2018, and 110 in 2017.

• Sole decision taken by trial courts: The report notes that 3% of the death penalty cases were decided by trial courts “without any materials on mitigating circumstances of the accused and without any state-led evidence on the question of reform.”

Why capital punishment should be abolished?

• Violation of human rights: In 2015, a Law Commission report argued that the death penalty is unconstitutional and an infringement of Article 14 (right to equality before law) and Article 21 (right to life) of the Indian constitution.

• Endless suffering: The appeals procedure for death sentences is lengthy. Due to this, persons sentenced to death are sometimes brutally made to suffer extended periods of uncertainty about their fate.

• Economic burden: Abolishing the death penalty will ease, not enhance, the tax-payer’s burden. The annual cost of maintaining a prisoner is about ?30,000. 

Global Practice

• Since 1976, more than 90 nations have abolished the death penalty for all crimes.

• Apart from India, many countries including US, Japan, China, Iran, Saudi Arabia and Iraq continue to impose capital punishment. 

• Australia, Congo, France, Italy, Norway, Portugal, and U.K have completely abolished the Capital Punishment due to inconsistent with the human rights requirement. 

Conclusion

• The capital sentencing framework as it stands today raises concerns about our commitment to the rule of law and poses a serious threat to the right to fair trial of the accused. Any attempts to repair the broken nature of capital sentencing in India must necessarily involve addressing the glaring normative, substantive and procedural deficiencies.