Brooding Giant Stalks Humane Death Penalty Debate

French philosopher Albert Camus and Hungarian-British author Arthur Koestler argued in a 1957 essay that many laws consider a premeditated crime more serious than a crime of pure violence, but capital punishment is ‘premeditated murder to which no criminal’s deed can be compared’. It is a poignant reminder of the ethical and existential implications of state-sanctioned killing that goes far beyond simply pondering over a ‘humane method’ of executing.

The symbol of la Terreur (Reign of Terror), the guillotine, was preserved for centuries and outlawed only in the late 20th century, though France’s resolute stance against capital punishment is desirable and persuasive, with the abolitionist position embedded in its constitution: ‘No one shall be sentenced to death’.

Abolitionist and physician Joseph Ignace Guillotine proposed execution by decapitation in the National Assembly on 10 December 1789, wherein a ‘lightning machine’ was advised to be a humane and amiable method of execution. Recalling Guillotine’s words, “My machine acts like lightning; the heads fly; the blood gushes out; the man is no longer there.”

A writ petition has been filed in the Supreme Court of India challenging the validity of section 354(5) of the Criminal Procedure Code, which reads, “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.” The petition does not challenge capital punishment, which the apex court upheld in the Bachan Singh case. It only challenges execution relying on Justice Bhagwati’s dissent, contending that “a man must have dignity even in his death and when dignity at the time of death is lost, living the life with dignity is tainted.”

The petition is akin to the bargain Guillotine made while introducing his more humane “lightning machine”. As soon as the judge breaks his pen upon signing the death sentence, the constitutional promise of “life with dignity” is reneged. Convicts live in constant apprehension of death. The worst comes when one is stuck in the procedural labyrinth, i.e., the pendency of mercy petitions. The fact that the apex court is making an effort to find an alternative to human slaughter pushes the criminal justice system further back in time, preserving the relics of uncivilised attitudes to punishment.

On 2 May, the Attorney General of India apprised the apex court that the government is considering forming an expert committee to review the alternative. Scouring through the alternatives to inflict the minimum possible suffering at execution opens a barrage of ethical concerns. There is no humane manner of execution. The 187th Law Commission Report of India suggested replacing “hanging by the neck” with a lethal injection. Research published by the medical journal The Lancet suggests a lethal dose of the injection is not painless since it is laden with muscle paralytic, making the condemned unable to move even though one may be in excruciating pain. Moreover, a medical practitioner is bound to be involved in administering the lethal dose. It is a concern as the code of ethical conduct in India for a medical practitioner mentions that the “prime objective of the medical profession is to render service to humanity”.

The latest evaluation report by Amnesty International on capital punishment suggests that by 31 December 2021, 144 countries had abolished the death penalty, 108 of which have completely abolished capital punishment for all sorts of crimes. India, along with 55 other states, has retained the death penalty.

Even though India remains retentionist, the judiciary developed the “rarest of rare cases” doctrine. It evolved from alternative punishment “unquestionably foreclosed” to the death penalty to cases where one cannot be reformed or rehabilitated for heinous crimes. The court was reluctant to sentence an alternative punishment, stating that capital punishment has “passed the muster of judicial scrutiny” and avoiding capital punishment where it is warranted would be “unrealistic”, “unwarranted”, and shall not align with the principles of the rule of law.

Despite substantial development in the field, the apex court has taken up framing guidelines to consider while imposing a death sentence. The matter has been referred to a five-judge bench. Chief Justice of India DY Chandrachud elaborated on the doctrine. The State is duty-bound to produce to the court such facts to ascertain that a man is beyond rehabilitation and reform.

However, the fact remains that the means to measure whether one is beyond reform or rehabilitation is neither possible nor plausible. And by no means aid in advancement of the criminal justice system. The doctrine was and remains to be a vague criterion since its inception.

The 262nd Law Commission Report suggested abolishing capital punishment except in offences related to terrorism. But the report failed to deliver a working definition of terrorism. The word terrorism remains undefined and is loosely, often promiscuously, used to define a variety of violent acts.

In 2011, Anders Behring Breivik, a Norwegian neo-Nazi fanatic, went on a rampage killing 77 people, known to be the most gruesome after World War II. The Norwegian premier remained resolute in defending his country’s democratic values. The Norwegian criminal justice system’s core idea of rehabilitation and reform was put to the test as the accused demanded to either be executed or acquitted. He was sentenced to life imprisonment.

In a Special Leave Petition (SLP), Justice O Chinnappa Reddy’s analysis of the death sentence is critical. He writes, “A more grievous injury which the death penalty inflicts on the administration of criminal justice is that it rejects reformation and rehabilitation of offender as among the most important objectives of Criminal justice…. The death penalty is the brooding giant in the part of reform and treatment of crime and criminals, ‘inequitably sabotaging any social or institutional programme to reformation.” He added, “There cannot be a higher basic right than the right to life, and there cannot be anything more offensive to human dignity than a violation of that right by the infliction of the death penalty.”

One cannot ignore the correlation between capital punishment and social class, particularly when examining its use worldwide. India, in particular, presents a complex case where issues of caste and minority status further complicate the matter.

A first-of-its-kind report published in 2016 revealed the disproportionate effect of capital punishment based on socio-economic profile. The report says that 74.1% of those sentenced to death came from vulnerable economic backgrounds. Around 80% of those sentenced to death had not completed school education, and 87.3% of those on death row had no previous criminal record.

While the myth sustains that capital punishment deters violent, heinous, or drug-related crimes, no solid research has upheld these notions. On the contrary, capital punishment is widely discredited as a so-called deterrent. With the dawn of the third wave of autocracy and its undermining of democracy, the death penalty in the garb of punishment could morph into a political tool to silence dissent. In Iran, when Mahsa Amini was arrested for violating the dress code and killed in police custody, it sparked massive outrage. The Iranian government was ruthless in dealing with the protesters. Around 100 were either sentenced to death or put in a precarious position of being sentenced to death.

In India, the Annual Statistical Report for 2022 notes a steep rise in capital punishment in the last two decades. The report suggests that the trial courts have sentenced 98.3% to the death penalty “without having sufficient material on mitigating circumstances of the accused and without any state-led evidence on the question of reform,” contra the directions of the apex court in Manoj vs State of Madhya Pradesh.

Justice Krishna Iyer, an abolitionist and Marxist, while putting the primary obligation to amend section 302 (in the Rajendra Prasad case) on Parliament, said that if Parliament remains indolent, the judiciary cannot ‘fold up’ its professional hands. The abolition of capital punishment could emerge from the apex court, which must rise to the occasion.

The author is a lawyer practising in Delhi. The views are personal.