On the higher judiciary’s move on the death penalty

(MainsGS2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.)

Context:

• Recently, The Supreme Court on March 21 asked the Centre to provide data which may point to a more dignified, less painful and socially acceptable method of executing prisoners other than death by hanging.

Humane means of execution:

• 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.
• The court had earlier clarified that it was not questioning the constitutionality of the death penalty, which was well-settled in the Deena versus Union of India judgment and the Bachan Singh case reported in 1980.

Supreme court mandate:

• In Bachan Singh vs State of Punjab (1980), the court upheld the death penalty, but limited it to the ‘rarest of rare cases’.
•  Deena Dayal vs Union of India And Others (1983) court 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.

Method of execution:

• In 2018, the Centre filed an affidavit supporting death by hanging as it had not found the method of execution "barbaric, inhuman and cruel” compared to firing squads and lethal injections.
• The government had traced statistics of “botched-up” administration of lethal injections to condemned prisoners in the United States for 110 years to prove its point that this mode of State execution was only “designed to create an appearance of serenity and painless death”. 
• The government said the death penalty is awarded only in the rarest of rare cases as there have been only three executions between 2012 and 2015.

The ‘rarest of rare cases’, mandated :

• 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. 

Conclusion:

• Empirical evidence suggests that hanging need not result in an early or painful death, while there is a body of proof that shows electrocution and lethal injection have their own forms of cruelty. 
• The Union government contends that hanging should be retained, not only because it is not cruel or inhuman but also because it accounts for the least number of botched-up executions.