Introduction

• The Bench of Chief Justice of India (CJI) D Y Chandrachud and Justice J.B. Pardiwala in the mater of Rishi Malhotra v. Union of India (2017) considered the question to review the execution of the death penalty in India as the mode of execution under Section 354(5) of Criminal Procedure Code, 1973(CrPC) is not only barbaric but inhuman and cruel.

Background

• The Court was hearing a petition filed by advocate Rishi Malhotra challenging the constitutionality of death by hanging as a mode of execution.
• The petitioner contented that death by hanging involves prolonged pain and suffering and requested to replace it with intravenous lethal injection, shooting, electrocution or gas chamber in which a convict could die in just a matter of minutes.

Court’s Observation

• CJI observed that we need better data to relook in the matter of death by hanging, impact of the sentence of death by hanging, the pain caused, the period of actual death and the availability of resources for hanging a person.

Death Penalty in India

• Death penalty also referred as Capital Punishment is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence.
• It is the highest penalty awardable to an accused.
• Hanging by rope is the prevalent method of execution in India.
• Indian laws also allow a death-row convict to be shot dead by a firing squad. However, this is allowed in limited circumstances and can be carried out only by the Army, the Navy and the Air Force.
• It can be awarded in certain offences of Indian Penal Code, 1860 (IPC) such as murder (Section 302), Criminal Conspiracy (Section 120B), dacoity with murder (Section 396), waging war against the Government of India or attempting to do so (Section 121), Abetting the suicide of a minor (Section 305) and others.
• Death Penalty can be commuted into life imprisonment or pardoned by the President under Article 72 of the Constitution of India, 1950.
• The SC aligned the following principles while considering death penalty in the matter of Ramnaresh and Ors., v. State of Chhattisgarh (2012):
  • The Court has to apply the test to determine, if it was the rarest of rare case for imposition of a death sentence.
  • In the opinion of the Court, imposition of any other punishment, i.e., life imprisonment would be completely inadequate and would not meet the ends of justice.
  • Life imprisonment is the rule and death sentence are an exception.
  • The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations.
  • The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.

Rarest of Rare Doctrine

• Rarest of Rare doctrine is used by the judiciary as a measuring tool for awarding death penalty to the accused criminals.
• Judiciary coined the concept of rarest of rare case doctrine in the case of Bacchan Singh v. State of Punjab (1980).
• The doctrine was further applied and discussed in the case of Macchi Singh v. State of Punjab (1983).

Legal Provisions

• Section 354(3) of the Code of Criminal Procedure, 1973:
  • This states that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.
• Section 354 (5) of the Code of Criminal Procedure, 1973:
  • It states, when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.

Stance of Human Rights

• Article 6 of the International Covenant on Civil and Political Rights permits the punishment of death penalty.
• However, United Nations General Assembly (UNGA) urged the member states in a series of resolutions adopted in 2007, 2008, 2010, 2012, 2014, 2016 and 2018, to respect international standards that protect the rights of those facing the death penalty, to progressively restrict its use and reduce the number of offences which are punishable by death.

Other Modes of Execution in the World

• Lethal Injection: Used in China, Vietnam, USA
• Electrocution: Used in USA
• Hanging: Used in Afghanistan, Bangladesh, Botswana, India, Iran, Iraq, Japan, Kuwait, Malaysia, Nigeria, Palestinian Authority (Hamas authorities, Gaza), South Sudan, Sudan
• Shooting: Used in China, Indonesia, North Korea, Saudi Arabia, Somalia, Taiwan, Yemen
• Beheading: Used in Saudi Arabia

Conclusion

Execution of the death penalty through any mode other than death by hanging will reduce the prolonged pain. The review of the matter by formulation of the panel will involve the standpoint of human rights including prisoners' rights available in India.