The Union government has informed the Supreme Court, led by a bench of Justice Vikram Nath and Justice Sandeep Mehta, that it is willing to consider a more humane way of carrying out capital punishment in India. The manner is not incidental but statutorily ordained under Section 354(5) of the Code of Criminal Procedure, now Section 395(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The provision dictates that when any person is sentenced to death, he/she shall be hanged by the neck till he/she is dead.
As the rope remains the procedural instrument in a republic, what is under constitutional scrutiny is whether the rope accords the principle of dignity ensured under Article 21 of the Constitution.
The search for a ‘humane’ method of execution is to concede that killing, even when lawful, is morally fraught. The law may refine the instrument, but it steers clear of addressing its impact on deterrence as decades of criminological research indicate otherwise.
Historically, in France, during the Reign of Terror, La Terreur, violence was elevated to State policy: Que la Terreur soit a L’order du jour (‘let terror be the order of the day’). Violence was no longer an aberration, and the guillotine was born after bureaucratic deliberation. Execution in France was stratified by rank, where the rope was for commoners and the sword for nobles. The guillotine was introduced as a reform, a levelling blade meant to deliver swift, humane, and equal justice. Joseph-Ignace Guillotin, who advocated decapitation, did not envision rivers of blood; he imagined efficiency and mercy. Before the National Council, he insisted, “My machine acts like lightning; the heads fly; the blood gushes out; the man is no longer there.” Though in seeking equality and humanity in death, the guillotine was mechanised.
It is against this brutal memory that the French-Algerian philosopher, Albert Camus, penned “Reflection on the Guillotine”, which countered the moral inversion of the State’s claim to righteousness when condemning a man to the gallows/ guillotine. He argued that premeditated crimes aggravate the guilt; yet,
the State exercises the same judgment as it condemns. The question in
the philosophical inquiry remains this: when premeditation deepens guilt in a citizen, can it, from the point of view of justice, absolve the State for the atrocious act of premeditated killing?
Giorgio Agamben’s conceptual framework of Homo sacer — sacred man, a man who can be killed but not sacrificed — sharpens the critique. Homo sacer describes a figure whom the law excludes and controls, a condemned inhabiting the juridical threshold. Accordingly, execution is no longer a punishment but a manifestation of the sovereign decision that a human life no longer merits preservation. The promulgation of the ‘rarest of rare’ doctrine in the Indian juridical landscape, far from dissolving the structure, formalises it. It backs premeditated killing where the sovereign finds one unfit for preservation as a constitutional exception to determine who may be lawfully killed.
The genealogy is unmistakably colonial. Alastair McClure, in his latest book, Trials of Sovereignty: Mercy, Violence, and Making of Criminal Law in British India, 1857-1922, argues that colonial capital punishment was never merely about punishment but power staged as benevolence. He argues that the Queen’s Proclamation after 1857 did not humanise imperial rule by accident; it was deliberate.
In the colonial theatre of terror, pardon had the ability to command allegiance. The colonial State did not seek simply to execute, but it sought to multiply the moments in which the subjects stood trembling before judges and juries, only to be theatrically rescued through imperial mercy. Clemency thus reinforced allegiance, not justice, where ‘discretion’ remained an important feature borrowed from the English criminal justice system. Mercy was thus constructed as a political instrument and bound the subjects to the sovereign through a vertical chain of dependence. In modern India, capital punishment is used as a panacea against social backlash.
The rope is not just cruel; it is the rope of the colonial hangman, now wielded by a postcolonial State that has inherited the architecture of domination without dismantling it. This continuity emerged before the apex court in Suo Motu Writ Petition (Crl) No. 1 of 2022, wherein public prosecutors in Madhya Pradesh were institutionally incentivised through a points system that assigned 1000 points for securing capital punishment or life imprisonment with professional recognition as ‘Star Performer’ or ‘Pride of Prosecution’.
The problem with the death penalty is with irreversibility. A criminal justice system may correct itself; death does not. Death Penalty in India Annual Statistics Report, 2025, published by Square Circle Clinic (2026), reveals that between 2016 and 2025, sessions courts had imposed 1,310 death sentences in 822 cases. But of the 842 death sentences examined by high courts in confirmation proceedings, only 70 — 8.31% — were upheld. More than 30% resulted in outright acquittals; the rest were commuted. Thirty-seven of those confirmed sentences reached the Supreme Court, but none was ultimately upheld.
Sovaran Singh Prajapati versus The State of Uttar Pradesh (2025) is a classic example of how these figures are not merely appellate adjustments; they are evidence of systemic fallibility wherein, despite allegations of the murder of the wife and a minor daughter, the court had set aside the conviction and the death sentence and remanded the case to the trial court for a fresh trial.
In a century billed as the golden age of democracy, the republican debate over ‘humane’ killing is akin to selecting the finest mahogany for a 21st century guillotine. Death is absolute and peremptory; it has no gentler version or softer side. Whether a person’s end is ordained by rope, the needle, or the firing squad, the brutality remains definite; the only variable is the comfort of the witnesses and need to soothe their own conscience.
Rishav Sharma is a legal practitioner and columnist
