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Report No. 187

Mode of Execution of Death Sentence and Incidental Matters

Chapter I


"State should not punish with vengeance". Emperor Ashoka

Death penalty has been a mode of punishment since time immemorial. The arguments for and against have not changed much over the years. Crime as well as the mode of punishment correlate to the culture and form of civilization from which they emerge. With the march of civilization, the modes of death punishment have witnessed significant humanized changes. However, in India not much has been debated on the issue of mode of execution of death sentence.

The Law Commission of India has taken up the subject suo moto due to the technological advances in the field of science, technology, medicine, anaesthetics and since more than three decades have passed by after the 35th Report of the Law Commission on Capital Punishment, 1967 with reference to the mode of executing death penalty. The various modes of execution of death sentence as prevalent at that time in 1967 were studied by the Law Commission. The Commission in Topic 58(c) paragraph 1149, concluded ;

"We find that there is a considerable body of opinion which would like hanging to be replaced by something more humane and more painless."

However, the Commission was not able to arrive at any firm conclusion on this point as explained in Paras 1150 and 1151.

"1150. The matter is, to a certain extent, one of medical opinion. That a method which is certain, humane, quick and decent should be adopted, is the general view, with which few can quarrel. It is true that the really agonizing part is the anticipation of impending death. But society owes to itself that the agony at the exact point of execution be kept to the minimum. It is, however, difficult to express an opinion positively as to which of the three methods satisfied these tests most, particularly when the two other methods are still untried.

We are not, at present, in a position to come to a firm conclusion on this point. Progress in the science of anaesthetics and further study of the various methods, as well as the experience gathered in other countries and development and refinement of the existing methods, would perhaps, in future, furnish a firm basis for conclusion on this controversial subject.

1151. We do not, therefore, recommend a change in the law on this point. We should, however, state here that we do not subscribe to the view that the substitution of any other method will reduce the deterrent effect of the penalty of death."

Also the Royal Commission in its Report on Capital Punishment 1949-1953 dealt with prevalent modes of execution of death punishment and stated that three conditions should be fulfilled in executing the death sentence (a) it should be as less painful as possible; (b) it should be as quick as possible; and (c) there should be least mutilitation of the body. It observed at pages 256-61 as follows:

"in carrying out this task the Commission did not confine itself to the four main methods of execution, (lethal gas, shooting, electrocution, guillotine). It persuaded enquiry whether there was any method still untried that would inflict death as painless and certain as hanging but "with greater decency and without the degrading and barbarous association with which hanging is tainted.

The Commission decided for various reasons that if lethal injection were to be constituted as method of judicial execution in the same case. The question should be periodically examined especially in light of progress made in the science of anesthetics" (p.261)

It is now accepted that death punishment is qualitatively different from any other punishment in as much as it is irreversible and if an error is committed, there is no way to rectify the error. However, in Bachan Singh's case (AIR 1982 SC 1325), the constitutional validity of death sentence was upheld by the Constitutional Bench of the Supreme Court of India by majority of 4:1 with Hon'ble Justice P.N. Bhagwati, dissenting.

Nevertheless, the Indian society, being one of the oldest civilizations in the world owes to itself that the agony at the exact point of execution should be kept to the minimum. This is more so when execution is the result of a judicial verdict. The execution of death sentence in India is discussed in Chapter 4 of this Report.

The Law Commission, in pursuance of the observations made in the 35th Report, decided to conduct study of various modes of execution of death sentence and to suggest any reforms if needed in the present system of execution of death sentence in India. The Law Commission prepared a Consultation Paper alongwith a questionnaire, the purpose of which was NOT whether the death punishment should be abolished or be retained but this is strictly confined to three issues, namely,:

(a) the method of execution of death sentence,

(b) the process of elimination of difference in judicial opinions among Judges of the apex Court in passing sentence of death penalty, and

(c) the need to provide a right of appeal to the accused to the Supreme Court in death sentence matters.

In this paper, the Commission had referred to the cases decided by the Hon'ble Supreme Court of India, various enactments, the reports of various 7Commissions, history of various modes of execution, various books, articles, newspaper reports, contemporary developments and concerned web sites on these aspects.

The Consultation Paper was also made available on the Law Commission's website lawcommissionof" and it was requested that responses should be sent by email or by post to the Member-Secretary, Law Commission of India, New Delhi.

The Law Commission also made a summary of the Consultation Paper along with the Questionnaire for the press and this was also made available on the website

The Law Commission received many responses to the Questionnaire. On the basis of this, the Law Commission prepared statistics which are referred to in the latter part of this Report. On August 9, 2003 the Law Commission also held a seminar at Indian Institute of Public Administration, New Delhi, which was inaugurated by Shri Arun Jaitley, Hon'ble Minister for Law & Justice and Commerce and Industry.

The Law Commission is encouraged to note that there was wide public interest on this issue. Not only the press gave wide publicity but some newspapers and magazines also wrote editorials and articles (for example, see India Today, April 28, 2003, and The Times of India, July 25, 2003).

The people, including women, who responded to the questionnaire came from various walks of life such as Judges, Advocates, Medical Practitioners, Armed Forces, Central Police Organizations. The responses by email were from India as well as 8abroad. This report is based on the Consultation Paper and public responses to the Questionnaire and the discussions at the Seminar.

At the Seminar the Law Commission also gave a power point presentation. The recommendations of the Law Commission are given at the end. The Summary of the Consultation Paper on the Execution of Death Punishment along with the questionnaire is annexed as Annexur.- I to this Report.

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