This order by the apex court has brought the spotlight on the jurisprudential principles that have guided the constitutional courts in awarding the capital punishment and the mode of executing it.

Over the years, there has been a constant evolution of jurisprudence on varying aspects of the validity of the capital punishment and the procedure surrounding it, but it is the only second time in the last four decades when the apex court has agreed to examine if the mode of executing death sentence meets the requirements of the constitutional right to die with dignity and the test of proportionality.

As the highest court of the land sets about to weigh alternative methods of execution that, it said, may be “more consistent with human dignity” and significantly reduced a substantial risk of severe pain, a bouquet of intricate questions on the infliction of capital punishment and the procedural necessities come to fore.

The law on death penalty

The term “death penalty” stands for the most severe form of punishment, which to is to be awarded by the state for the most heinous, grievous and detestable crimes against society and humanity. Under a raft of penal statutes, serious offences such as murder, rape with injuries that may result in the death of a victim and a repeat offender, waging war against the state and terrorism-related offences are some of the major crimes punishable with death under the Indian Penal Code (IPC).

Similarly, there are provisions under the Prevention of Children from Sexual Offences Act, Arms Act, Narcotic Drugs and Psychotropic Substances Act, Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, Commission of Sati (Prevention) Act, Air Force Act, Army Act and Navy Act prescribing death penalty as one of the punishments for most heinous offences. Now-repealed Prevention of Terrorism Act and Unlawful (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA) also contained provisions for death sentence.

Article 21 of the India Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. This has been construed in law to mean that if there is a procedure, which is fair and valid, then the state by framing a law can deprive a person of his life.

Section 354(3) of the Code of Criminal Procedure says that when an offence is punishable with death or imprisonment for life, the judgment shall state the reasons for the sentence awarded, and if the sentence is death, “special reasons” for the sentence.

The validity of the death penalty as a form of punishment has been repeatedly challenged before the Supreme Court but without any success. Through a series of judgments between 1970s and 1980s, the top court has upheld the validity of the capital punishment in exceptional cases.

In Jagmohan Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar Pradesh (1979) and finally, in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of death penalty. It said that if capital punishment is provided in the law and the procedure is a fair, just and reasonable one, death sentence can be awarded to a convict. This will however only be in the “rarest of rare” cases and the courts should render “special reasons” while sending a person to gallows, the top court added.

Subsequent judgments of the Supreme Court followed the constitution bench rulings in the Jagmohan Singh and the Bachan Singh cases, affirming the constitutional legitimacy of the sentence of capital punishment even as new judicial norms were consistently being evolved over the last four decades to ensure complete fairness in the procedure before the punishment is executed.

Through a raft of judgments, the Supreme Court laid down various grounds that would entitle a death row convict for the commutation of his sentence to life term. In Shatrughan Chauhan and Anr vs Union of India (2014), the court ruled that inordinate delay in executing a death penalty is a ground for commutation in view of the immense physical and psychological trauma that a death row convict is made to undergo. The delay caused due to a decision on the mercy plea by a convict or owing to any other reason not attributable to the convict will account for legal rationale to seek commutation, it held.

The Supreme Court in 2014 spared 1993 Delhi bomb blast convict Devinder Pal Singh Bhullar from execution, citing his mental illness and lengthy delays in deciding on his plea for mercy. In Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021), the court held that socio-economic backwardness, mental health, heredity, parenting, socialisation and lack of education can also be the reasons to avert the death penalty.

Last year, the Supreme Court set about to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts. It issued a slew of directives making psychological evaluation of the condemned prisoner mandatory, along with seeking a report on the inmate’s conduct at the time of examining whether the gallows remained the only fitting punishment.

The execution

Under the Indian laws, a capital punishment can be executed either by hanging by the neck till death or being shot by firing squad.

The Code of Criminal Procedure (1898) called for the method of execution to be hanging, and the same mode was adopted in the Code of Criminal Procedure in 1973. Section 354(5) of the CrPC reads: “When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead.”

The Army Act and the Air Force Act also provide for the execution of the death sentence. Section 34 of the Air Force Act, 1950 empowers the court martial to impose the death sentence for an array of offences relating to the enemy.

Section 163 of the Air Force Act stated: “In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death.” Section 166 of the Army Act uses the same language to provide for the manner of execution of a death sentence.

Till date, Deena @ Deena Dayal Etc Vs Union of India (1983) has been the only judgment of the Supreme Court that has directly dealt with the method prescribed under Section 354(5) of CrPC for executing the death sentence and upheld the provision.

Even as the court acknowledged that a condemned prisoner cannot be subjected to barbarity, humiliation, torture or degradation before the execution of that sentence, it noted that the process of hanging does not involve any of these directly, indirectly or incidentally.

“The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation or brutality of any kind. At the moment of final impact when life becomes extinct, some physical pain would be implicit in the very process of the ebbing out of life. But, the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously,” said the judgment.

Clarifying that it is not for the courts to substitute any other method of execution for the method prescribed by law, the three-judge bench relied on a bundle of reports to state that neither electrocution, nor lethal gas, nor shooting, nor even the lethal injection has any distinct or demonstrable advantage over the system of hanging.

“The conclusion that the system of hanging is as painless as is possible in the circumstances, that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity, torture or degradation is based on reason, supported by expert evidence and the findings of modern medicine,” declared the court in 1983.

While there are nine common methods of execution: Hanging, firing squad, shooting, beheading, lethal injection, stoning, lethal gas, electrocution, and a particularly ghastly one that involves throwing people from a height, the most common method of execution is hanging, with at least 50 countries authorising this practice. Apart from India, countries such as Japan, Bangladesh, Pakistan, Singapore, Malaysia and Nigeria also have hanging as the method of executing death sentences.

The rekindled debate

Almost four decades later, another three-judge bench led by Chief Justice of India Dhananjaya Y Chandrachud, has expressed its willingness to review the correctness of the 1983 verdict, and decide if a larger bench should commence this exercise. Incidentally, the 1983 judgment was delivered by a bench, led by former CJI YV Chandrachud, the current CJI’s father.

Advocate Rishin Malhotra, in a petition filed in 2017, challenged the constitutional validity of Section 354(5) of the CrPC, contending that execution of a death sentence by hanging is an inhuman and cruel act that violates the fundamental right of a convict.

Malhotra relied on Article 21 (right to life) and some previous Supreme Court judgments to argue that a condemned prisoner has the right to have a dignified mode of execution so that death becomes less painful. He also referred to the 187th report of the Law Commission, which advocated the removal of the present mode of execution from the statute.

In 2003, the law commission, under the chairmanship of former Supreme Cout judge M Jagannadha Rao, submitted its 187th Report on ‘Mode of Execution of Death and Incidental Matters’, focussed on the method of execution, process of eliminating differences in opinions among Supreme Court judges on passing a death sentence, and need to provide a right of appeal on death sentences. In this report, the Commission recognised the “constitutional impossibility” of hanging death and recommended that India should consider utilising lethal injections instead.

Malhotra also cited the minority view of justice PN Bhagwati in the Bachan Singh Case when the judge not only did not agree with the majority view on affirming the constitutional validity of the death penalty, but also held that the mode of hanging prescribed by law for executing the death sentences was itself cruel and barbarous.

Responding to Malhotra’s petition in 2018, the Union government said that hanging remains the safest and quickest method of execution and that it eliminates the possibility of a “lingering death”. It rejected the suggestion of using lethal injections as an alternative, pointing out that not only were trained medical professionals unlikely to participate in executions, but that the possibility of failure of the chemical used in lethal injections also loomed large. It added that the use of lethal injections has “gained the dubious distinction of having the highest rate of botched executions within the United States between 1900 and 2010.”

Granting an effective hearing to Malhotra’s petition after almost three years, the CJI-led bench last month agreed with the 1983 ruling that the court is not going to tell the legislature which method of execution should be in the statute, but added that it could still ascertain the validity of the existing mode of execution (hanging) on the anvil of the constitutional right to dignity in death — both in the process of execution and the manner of it.

According to the bench headed by the present CJI, it would be worthwhile to examine if the 1983 judgment applied the test of proportionality, as most explicitly laid down in the right to privacy case (KS Puttaswamy (2017) and later followed in the in CPIO Vs Subhash Chandra Aggarwal (2019) Case. These judgments stressed that proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law. Further, it is crucial for the standard of proportionality to be applied to ensure that neither right is restricted to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest in question, added the judgments.

During the hearing on March 21, the Supreme Court called it a “matter of reflection” in the wake of rapid strides in science and technology since the top court in 1983 ruling upholding the validity of hanging as the method of execution, and added: “Availability of a better science is a concrete ground for a relook.” It directed the Centre to come back with relevant statistics and information on the execution carried out since 1980s, adding if the Centre has not conducted any study in the last few decades, the court can form a committee of experts.

The decision by justice Chandrachud to revisit the validity of the method of execution marks a crucial legal moment that will seek to explore the most humane way of the rule of punishment in death sentence cases, on the touchstones of human rights jurisprudence, constitutional protections and societal sensibility.