Facts:
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98 countries have abolished death penalty.
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According to a report by Project 39A at the National Law University, Delhi, a total of 488 prisoners in India (as of 2021) were on death row. This shows an increase of 21% in the number of individuals on death row.
Death Penalty in India:
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In India, the death penalty is imposed in case of murder, rape with injuries that may result in the death of a victim, gang robbery coupled with murder, abetting the suicide of an insane person, a minor, abetting mutiny by a member of the armed forces and waging war against the government and involvement in terror activities.
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In Bachan Singh vs State of Punjab, the Supreme Court, in its landmark judgement ruled that the death sentence shall be applied only to the ‘Rarest of the Rare’ cases.
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In Machhi Singh vs the State of Punjab, the supreme court propounded two tests to be performed to identify the ‘Rarest of the Rare’ cases.
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It was ruled that capital punishment should be given only when the option of awarding the sentence of life imprisonment is “unquestionably foreclosed”.
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Test 1: The uncommon feature of the crime to which, if life imprisonment is sentenced, it will be a travesty of justice.
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Test 2: The circumstances in the crime that considers life imprisonment to be inadequate even after the maximum weightage is given to the mitigating circumstances that speak in favour of the accused.
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The supreme court ruled that there shall be a balance between aggravating circumstances and mitigating circumstances.
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Law Commission on Death Penalty:
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In 2013, the Supreme Court had asked Law Commission to examine whether death penalty is deterrent punishment or is retributive justice.
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In its report in 2015, Law Commission headed by Justice A P Shah, had proposed abolition of capital punishment for non-terrorism cases (i.e. it should be abolished for all crimes other than terrorism related offences and waging war).
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According to Law Commission’s Report, India is among handful of countries such as China, Saudi Arabia, Iran and Iraq that still carry out executions.
Constitutionality of death penalty:
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Court does not question the constitutionality of death penalty.
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It has been well-settled by the apex court, including in Deena versus Union of India and earlier in the Bachan Singh case reported in 1980.
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Section 354 (5), which mandates death by hanging, of the Code of Criminal Procedure, has already been upheld.
Views of States:
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The 12 out of 14 states/UTs have replied to Home Ministry that capital punishment or death penalty should stay, as it serves to act as deterrent in cases of heinous crimes such as murder and rape.
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The Home Ministry had forwarded proposal to abolish death penalty to states/UTs based on recommendation of Law Commission of India (LCI).
Views against Death Penalty:
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The concept of ‘Rarest of the Rare’ cases is ill-defined and opens the door of discretion to the courts to award the death sentence resulting in their cursory decisions.
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It violates the Right to Life and Personal Liberty of the individuals guaranteed by Article 21 of the Constitution.
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The death sentences raise a major question pertaining to their efficacy in serving any penological purposes.
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Observation by Justice P.N. Bhagwati:
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In Bachan Singh vs State of Punjab, Justice P. N. Bhagwati in a dissenting opinion observed that Section 302 of the IPC that provides for the imposition of the death penalty as an alternative to life sentence is beyond the purview of the legal authority.
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Therefore, it is unconstitutional and void as it infringes the rule of law enshrined in Article 14 of the Constitution along with the violation of Article 21.
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Supreme Court seeks less painful means of execution
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The Centre told the Supreme Court that there is no viable method at present other than hanging to execute condemned prisoners.
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Lethal injections are unworkable and often fail.
Death by lethal injections:
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Death by lethal injection is practiced in the U.S., China, Thailand, Vietnam and a few other countries
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The Law Commission of India had recommended lethal injection for death penalty.
