360° UPSC Mains Analysis

Criminal Law and Criminal Procedure fall under Entry 1 and Entry 2 respectively of the Concurrent List (List III) of the Seventh Schedule. This allows both the Parliament and State Legislatures to legislate on these matters, though central statutes like the BNSS, 2023 ensure a uniform execution procedure across the country.

The prescription of execution by hanging in India has deep colonial roots, first codified under the British Raj in the Code of Criminal Procedure of 1882 and 1898. During the drafting of the Indian Constitution between 1947 and 1949, the Constituent Assembly intensely debated the abolition of capital punishment. Members like Z.H. Lari proposed amendments to abolish the death penalty, citing the fallibility of human judgment and the sanctity of life. However, these proposals were ultimately negatived, and the framers chose to retain the death penalty, leaving its regulation to the legislature.

Post-independence, India retained the colonial-era penal framework, carrying over hanging as the primary mode of execution into the Code of Criminal Procedure, 1973 under Section 354(5). The Law Commission of India has periodically reviewed this policy, with its 35th Report (1967) suggesting that any change in the mode of execution should await scientific advancements, while its 187th Report (2003) advocated for introducing lethal injection as an alternative. Most recently, the Parliament reaffirmed the state's policy by retaining hanging under Section 393(5) of the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023.

The debate over the humanity of execution methods parallels the 19th-century transition in the United Kingdom and the United States from public gibbeting and standard hanging to the 'long-drop' method, which was scientifically designed to minimize suffering. Similarly, the global shift in the late 20th century from electrocution and gas chambers to lethal injection reflects a continuous historical effort by states to find a 'humane' method of execution, though often met with subsequent scientific and legal challenges regarding botched procedures.

During the freedom struggle, the execution of prominent revolutionaries like Bhagat Singh, Shivaram Rajguru, and Sukhdev Thapar by hanging in 1931 sparked widespread national outrage and catalyzed intense debates within the Indian National Congress regarding the ethics of capital punishment.

The continuation of hanging as the sole method of execution directly impacts the psychological well-being of death row convicts, subjecting them to prolonged mental agony and fear of physical mutilation. It also places a heavy psychological burden on prison staff and executioners who must carry out the act, highlighting the tension between state-enforced retribution and the preservation of human dignity.

The issue directly intersects with Article 21 of the Constitution of India, which guarantees the right to life and personal liberty, interpreted in Gian Kaur v. State of Punjab (1996) to include the right to live and die with human dignity. It also engages Article 14 (Right to Equality) regarding the arbitrary or discriminatory application of the death penalty, and aligns with international human rights standards like the Universal Declaration of Human Rights (UDHR) Article 5, which prohibits cruel, inhuman, or degrading treatment.

As a District Magistrate overseeing an execution, the primary ethical conflict is between professional duty (upholding the rule of law and executing a judicial mandate) and personal morality (the sanctity of human life and the aversion to state-sanctioned killing). Additionally, there is a conflict between retributive justice (satisfying societal demands for punishment) and restorative justice (the belief in the inherent dignity and reformative potential of every individual).

The execution of capital punishment disproportionately impacts marginalized socio-economic groups, including the economically weaker sections (EWS) and Scheduled Castes/Scheduled Tribes (SC/ST), who often lack the resources for high-quality legal representation. Furthermore, the families of death row convicts, particularly women and children, suffer severe psychological trauma, social ostracization, and economic destitution following the execution of the sole breadwinner.