Editorial: In search of ‘humane’ death — the debate over India’s capital punishment

Before debating whether hanging or lethal injection is cruel, India must ask the bigger question: Does death penalty actually deter heinous crimes?

The Supreme Court of India recently heard arguments on a Public Interest Litigation (PIL) seeking the replacement of death by hanging with a so-called “more humane” alternative, such as lethal injection. The petitioner urged the court to allow prisoners on death row the choice between hanging and lethal injection. Arguments before the apex court highlighted death by hanging, as prescribed in Section 393 (5) of the BNSS, 2023, describing it as “cruel, barbaric and lingering,” with the prisoner’s body left on the rope for nearly 40 minutes. In contrast, a lethal injection was claimed to be “quicker, more humane, and decent.” The Centre’s argument was that hanging was “quick, simple, and certain,” and doubts were raised whether death by lethal injection was truly “less painful.” As the matter has been posted for further hearing next month, it is pertinent to recall that the Law Commission of India had previously recommended removing hanging as the mandatory method of execution, suggesting broader reforms. The PIL has prompted many questions deserving serious debate. The foremost being whether India should retain capital punishment at all. If India persists with the death penalty, is it lagging behind global standards in adopting humane protocols? Before considering whether hanging constitutes a cruel punishment under modern human rights standards, the central question should be whether capital punishment actually deters heinous crimes and if its continuation is justified.

Dispassionately examining the issue, several studies in India point out that capital punishment has not had the intended deterrent effect. Crime rates, particularly for murders and heinous sexual offences, have not shown a significant decline despite the existence of the death penalty. Notably, the Justice Verma Committee (2012) recommended abolishing the death penalty in cases of violence against women. Furthermore, an unintended outcome of the death penalty in such cases is that perpetrators of crimes punishable by death, such as rape or kidnapping, may be more likely to kill their victims. This is driven by the belief that it is better to eliminate witnesses who could identify the perpetrator. An unintended consequence of the death penalty is that the perpetrators of crimes that attract the death penalty are incentivised to permanently silence their victims. Another disturbing aspect is the disproportionate impact of capital punishment on the poor and the marginalised, who lack access to competent legal representation. Research has shown that a majority of convicts awarded the death sentence hail from marginalised sections of society. India must also seriously consider the emerging national and global consensus that the death penalty does not deter crime more effectively than life imprisonment. In fact, several countries have abolished it, citing moral and practical concerns. The logical conclusion, therefore, is that India should abolish capital punishment, not only because it has the potential to escalate harm to victims but also because it fails as an effective deterrent to serious crime.

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