In a response to a Public Interest Litigation (PIL) seeking abolition of executing death row convict by hanging the Supreme Court recently held that it was the prerogative of the Government to decide on modes of execution of convicts. Execution of convicts is provided under section 354(5) of Cr.P.C. 1973 which says, ‘When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.’ The Court had asked the Centre to respond to a notice issued by the Court however, it had also said that the legislature could think of changing the law so that a convict facing death penalty dies in peace and not in pain.
The Government has claimed that hanging is the most workable mode and lethal injection method is found to have failed on many occasions in different parts of the world, hence it is not as workable as hanging.
Despite campaigns calling for an end to capital punishment, executions are still carried out around the world. In the United States, lethal injection is considered the most humane form of execution, although recent debate over the secrecy surrounding the drugs used has questioned that assertion. Other countries continue to employ execution methods now considered outdated in the U.S., but the end result is the same. Execution by hanging is the most common method of capital punishment. Iran leads the world in hangings. Other countries that carry out hangings include Afghanistan, Bangladesh, Botswana, India, Iraq, Japan, Kuwait, Malaysia, Nigeria, the Palestinian Authority in Gaza, South Sudan and Sudan. On the other hand, firing squad is the preferred method of execution in Indonesia. Twelve armed executioners shoot the prisoner in the chest. If the prisoner is still not dead, the commander then issues a final bullet to the head. Other countries that carry out executions by firing squad include China, North Korea, Saudi Arabia, Somalia, Taiwan and Yemen. It is also a preferred method by the United Arab Emirates. However, Saudi Arabia is the only country in the world where beheadings are used as a method of capital punishment. The beheadings are performed publicly with a sword. Though the end result of death is the same in all methods of executions, lethal injection is often viewed as the least cruel. Injecting a fatal dose of drugs into a death row inmate has become the primary method of execution in the United States. However, as a result of controversy associated with supplying states with the lethal drugs, pharmaceutical companies have banned the sale of their drugs for lethal use. To fill the void, states have relied on compounding pharmacies to provide cocktail drugs, but this has proven to be unreliable in recent deaths. Electrocution has also been used on occasions in the United States. However, the Court declared execution by electrocution illegal for being "cruel and unusual punishment."
So far as India is concerned it uses both hanging and shooting as the modes of execution. While hanging is used in the civilian court system, under the Army Act, 1950 hanging as well as shooting are both listed as official methods of execution in the military court-martial system.
Apart from the recent PIL, the Law Commission in its 187th Report in 2003 recommended that section 354(5) of the Cr.P.C., 1973 should be amended by providing an alternative mode of execution of death sentence by lethal injection until the accused is dead. It will be at the discretion of the Judge to pass an appropriate order regarding the mode of execution of death sentence.
Moreover, the issue of death penalty itself has been under debate since long. In August 2015, the Law Commission of India submitted a report to the government which recommended the abolition of capital punishment for all crimes in India, excepting the crime of waging war against the nation or for terrorism-related offences. The report cited several factors to justify abolishing the death penalty, including its abolition by 140 other nations, its arbitrary and flawed application and its lack of any proven deterring effect on criminals.
The Supreme Court in Mithu vs. State of Punjab AIR 1983 SC 473 struck down Section 303 of IPC, which provided for a mandatory death sentence for offenders serving a life sentence. Further, the Court in Bachan Singh vs. State of Punjab (1980) 2 SCC 684 observed that physical pain and suffering which the execution of the sentence of death entails is also no less cruel and inhuman and made it very clear that capital punishment in India can be given only in rarest of rare cases. This judgement was in line with the previous verdicts in Jagmohan Singh vs. State of Uttar Pradesh AIR 1973 SC 947, and then in Rajendra Prasad vs. State of Uttar Pradesh AIR 1979 SC 916. However, the Court ruled that honour killings fall within the "rarest of the rare" category, hence death penalty should be extended to those found of committing "honour killings". Similarly, the Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings. Justifying the provision of death penalty India, in December 2007 voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty. In November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to end the institution of capital punishment globally.
Once it is established that death penalty is continued in India, definitely in the rarest of the rare category, the issue of mode of execution assumes significance. Organisation like Amnesty International opposes the death penalty at all times regardless of who is accused, the crime, guilt or innocence or method of execution and says that it is cruel, inhuman and degrading.
It is also generally said that the death penalty breaches two essential human rights, the right to life and the right to live free from torture. Both rights are protected under the Universal Declaration of Human Rights, adopted by the UN in 1948. The following international laws explicitly ban use of the death penalty, except during times of war:
- The Second Optional Protocol to the International Covenant on Civil and Political Rights (Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49)
- Protocol No. 6 to the European Convention on Human Rights, 1983. The European Convention on Human Rights (Protocol No. 13) bans use of the death penalty at all times, even during war.
- The Protocol to the American Convention on Human Rights to Abolish the Death Penalty, 1990
In this backdrop, the Law Commission undertook a study to provide a humane mode of execution of death sentence. The Commission recommended amendment in section 354(5) of the Cr.P.C., 1973.The Commission says that the convict shall be heard on the question of mode of execution of death sentence before such discretion is exercised. Further, at present, there is no statutory right of appeal to the Supreme Court in cases where High Court confirms the death sentence passed by a Session Judge or where the High Court enhances the sentence passed by the Session Judge and awards sentence of death. Hence a statutory right of appeal against the judgment of the High Court confirming or awarding the death sentence should also be provided. In lieu of this fact, the Commission has recommended that the Supreme Court (Enlargement of Criminal Jurisdiction) Act, 1970 be suitably
amended for providing right to appeal to the Supreme Court. Yet another aspect is important vis-à-vis the armed forces. As of now, there is no provision of right of appeal against the sentence of death passed by Court Martial under the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950. Therefore, there should be an appeal to the Supreme Court against the order of death sentence passed by Court Martial.
The recent PIL also referred Article 21 of the Constitution saying that the Right to Life or Personal Liberty also included in its ambit the right of a condemned prisoner to have a dignified mode of execution so that death becomes less painful.
The Supreme Court while stating that it would be the prerogative of the Government has certainly followed the concept that the procedure explicitly mentioned in a law shall be followed. Moreover, changes in law shall be approved by the Legislature only and not by the courts. Whatever could be the final outcome one thing is for sure that the right to a dignified life up to the point of death including a dignified procedure of death needs to be given the topmost priority. Therefore, the right of a dying man to die with dignity and in peace, not in pain needs to be considered by the Government.
(CBP Srivastava is an expert on the Constitution of India. He is President of the Centre for Applied Research in Governance, New Delhi.)
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)