The Supreme Court on Tuesday dismissed a petition seeking the abolition of death by hanging as a method to execute the death penalty.
On the alternative of lethal injection, the Court noted that the petitioner had argued that it was a more scientific, humane and painless method.
The Court held that there was no concrete scientific material establishing that lethal injection was demonstrably superior or more humane than hanging.
The Court therefore held that the material did not establish any added advantage of lethal injection over hanging.
In 2023, the Supreme Court had asked the Union Government to explore whether more humane and less painful alternatives to hanging could be considered.
The Supreme Court on Tuesday dismissed a petition seeking the abolition of death by hanging as a method to execute the death penalty.
At the same time, the Court clarified that the dismissal of the writ petition will not preclude future constitutional scrutiny if compelling medical or scientific evidence emerges demonstrating a need to revisit the issue. The Court clarified that the judgment will also not preclude the Union Government from undertaking a comprehensive review of the method of execution through an expert body to examine if an alternative method will better serve the Constitutional objective of minimising pain and suffering while ensuring dignity.
A bench of Justice Vikram Nath and Justice Sandeep Mehta pronounced the verdict in the petition which sought to declare unconstitutional Section 354(5) of the Code of Criminal Procedure, as per which the death sentence is to direct that the prisoner "be hanged by the neck till he is dead."
The PIL, filed by Senior Advocate Rishi Malhotra, sought to abolish the present practice of executing a death row convict by hanging which involves “prolonged pain and suffering”. It prayed that the mode of execution be replaced with intravenous lethal injection, shooting, electrocution or gas chamber in which a convict could die in just a matter of minutes.
The constitutional validity of hanging had earlier been upheld by a three-Judge Bench in Deena v. Union of India (1983). That judgment was also approved by a Constitution Bench in Shashi Nayar v. Union of India (1992). The Court dismissed the present petition, holding that there was no sufficient basis to refer Deena to a larger Bench for reconsideration.
The Court held that the petitioner had failed to produce material showing that the factual and scientific basis of the three-Judge Bench judgment in Deena v. Union of India had been displaced by subsequent constitutional, scientific or empirical developments.
"Unless it is demonstrated that the view so taken in the earlier decision has been rendered unconstitutional owing to some significant constitutional development, legislative amendment or cogent scientific and empirical evidence, there would hardly be any justification for a Bench of two-Judges to take a different view," the Court said.
The Court also noted that the method of execution had remained substantially unchanged for more than a century and a half. It further noted that the judgment in Deena had examined electrocution, lethal gas, shooting and lethal injection and found that none had any “distinct or demonstrable advantage” over hanging.
On the alternative of lethal injection, the Court noted that the petitioner had argued that it was a more scientific, humane and painless method. Project 39A, however, had placed material highlighting the uncertainty and practical difficulties associated with lethal injection. The Court held that there was no concrete scientific material establishing that lethal injection was demonstrably superior or more humane than hanging.
The Court also accepted the Attorney General's submission that the petitioner had failed to establish even a single instance of a botched execution in India under the existing statutory framework. It noted that the material placed by Project 39A showed numerous botched executions in the United States, where lethal injection is used in several states.
The Court therefore held that the material did not establish any added advantage of lethal injection over hanging. "The available material, therefore, does not establish that lethal injection has any added advantage over hanging as a mode of execution of a death sentence...Hence, the argument advanced by the petitioner that lethal injection is a better and more humane mode of execution of the death sentence is totally unconvincing," the Court said.
The Court rejected the argument based on military laws allowing shooting. The petitioner argued that the Army Act, Air Force Act and Navy Act permit death sentences to be carried out either by hanging or shooting, while civilians have only hanging.
The Court called this argument “irrelevant and unconvincing”, holding that the military statutes operate in a distinct field and apply to a separate class of persons governed by military law. Therefore, the availability of shooting under those statutes cannot be used to test the constitutional validity of the method prescribed for civilians, the Court said.
However, the Court clarified that future constitutional scrutiny would remain possible if compelling scientific, medical or empirical evidence emerges showing that the factual and scientific basis of Deena has been materially displaced. It also said that the Union Government may undertake a comprehensive review of the existing method through an expert body comprising specialists in law, forensic medicine, neuroscience, penology and allied disciplines.
In 2023, the Supreme Court had asked the Union Government to explore whether more humane and less painful alternatives to hanging could be considered. The Attorney General subsequently informed the Court that the Government was considering the constitution of an expert committee. The Court noted that no further update was provided regarding constitution of such a committee.
Background
