Is hanging cruel and barbaric? The law, the methods, and the decades-long debate over executions in India

Legal challenges to death penalty in India and execution methods have run into an 1983 verdict, which has proven hard to dislodge.

The Supreme Court on Tuesday declined to issue any judicial mandate for replacing hanging with a “less painful or humane” method of execution, affirming its constitutional validity but leaving the door open for Centre to examine alternatives in the future.

Article 21 of the Constitution lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. (Featured image: HT/Made on Canva)

A bench of justices Vikram Nath and Sandeep Mehta held that no case had been made out for reconsidering the top court’s 1983 Constitution Bench judgment in Deena @ Deena Dayal Etc vs Union of India, which had upheld hanging as a constitutionally valid mode of executing a death sentence.

“The dismissal does not foreclose any future scrutiny based on scientific knowledge and subsequent developments,” the bench said.

The ruling came on a petition filed by senior advocate Rishi Malhotra, who had challenged the constitutionality of execution by hanging under Section 354(5) of the Code of Criminal Procedure — now reflected in Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Malhotra had argued that hanging was archaic and painful, and violated the right to life with dignity under Article 21, urging the court to strike down or read down the provision and replace hanging with a more humane alternative, including by allowing condemned prisoners a choice in the mode of execution.

The issue had been before the Supreme Court since 2017.

During the proceedings, the Union government had told the court that alternative methods were being examined at the highest level by a dedicated committee.

Tuesday’s order brought the spotlight back to the jurisprudential principles that have guided constitutional courts in awarding capital punishment and the mode of executing it.

The law on death penalty

The term 'death penalty' stands for the most severe form of punishment, to be awarded by the State for the most heinous, grievous and detestable crimes against society and humanity. Under a raft of penal statutes, serious offences such as murder, rape with injuries that may result in the death of a victim, repeat offences, waging war against the State and terrorism-related offences are among the major crimes punishable with death.

Similarly, there are provisions under the Prevention of Children from Sexual Offences Act, Arms Act, Narcotic Drugs and Psychotropic Substances Act, Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, Commission of Sati (Prevention) Act, Air Force Act, Army Act and Navy Act prescribing death penalty as one of the punishments for the most heinous offences.

Article 21 of the Constitution lays down that no person shall be deprived of life or personal liberty except according to procedure established by law. This has been construed to mean that if there is a procedure that is fair and valid, the State — by framing a law — can deprive a person of life.

Section 393(5) of BNSS says that when an offence is punishable with death or imprisonment for life, the judgment shall state the reasons for the sentence awarded, and if the sentence is death, “special reasons” for it.

The validity of the death penalty as a form of punishment has been repeatedly challenged before the Supreme Court, without success. Through a series of judgments between the 1970s and 1980s, the top court upheld the validity of capital punishment in exceptional cases.

In Jagmohan Singh vs State of Uttar Pradesh (1973), then in Rajendra Prasad vs State of Uttar Pradesh (1979) and finally in Bachan Singh vs State of Punjab (1980), the Supreme Court affirmed the constitutional validity of the death penalty. It held that if capital punishment is provided in law and the procedure is fair, just and reasonable, death sentence can be awarded to a convict — but only in the "rarest of rare" cases, with courts required to record "special reasons" for sending a person to the gallows.

Through a raft of subsequent judgments, the Supreme Court laid down various grounds that would entitle a death row convict to commutation of the sentence to a life term.

In Shatrughan Chauhan and Anr vs Union of India (2014), the court ruled that inordinate delay in executing a death penalty is a ground for commutation, given the immense physical and psychological trauma a death row convict undergoes. Delay caused by a pending mercy plea, or for reasons not attributable to the convict, would count too.

The same year, the Supreme Court spared 1993 Delhi bomb blast convict Devinder Pal Singh Bhullar from execution, citing his mental illness and lengthy delays in deciding his mercy plea.

In Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021), the court held that socio-economic backwardness, mental health, heredity, parenting, socialisation and lack of education can also be grounds to avert the death penalty.

Over the past few years, the Supreme Court set about critically examining the routine and abrupt way in which trial judges often impose the death penalty. It then issued directives making psychological evaluation of the condemned prisoner mandatory, along with a report on the inmate's conduct, before a court decides that the gallows remain the only fitting punishment.

The execution

Under Indian law, a capital sentence can be executed either by hanging by the neck till death or by a firing squad.

The Code of Criminal Procedure (1898) called for hanging as the method of execution, and the same mode was carried into the Code of Criminal Procedure of 1973. Section 354(5) of the CrPC — now Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023 — reads: "When any person is sentenced to death, the sentence shall direct that the person be hanged by the neck till the person is dead."

The Army Act and the Air Force Act also provide for the execution of the death sentence. Section 34 of the Air Force Act, 1950 empowers a court martial to impose the death sentence for an array of offences relating to the enemy. Section 163 of the Air Force Act states: "In awarding a sentence of death, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he be dead or shall suffer death by being shot to death." Section 166 of the Army Act uses the same language.

Till date, Deena @ Deena Dayal Etc vs Union of India (1983) has been the only Supreme Court judgment that has directly dealt with the method prescribed for executing the death sentence, and it upheld the provision.

Even as the court acknowledged that a condemned prisoner cannot be subjected to barbarity, humiliation, torture or degradation before execution, it found that the process of hanging does not involve any of these, directly, indirectly or incidentally.

“The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation or brutality of any kind. At the moment of final impact when life becomes extinct, some physical pain would be implicit in the very process of the ebbing out of life. But, the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously,” the judgment had said.

Clarifying that it is not for courts to substitute another method of execution for the one prescribed by law, the three-judge bench relied on a bundle of reports to state that neither electrocution, nor lethal gas, nor shooting, nor even lethal injection has any distinct or demonstrable advantage over hanging.

"The conclusion that the system of hanging is as painless as is possible in the circumstances, that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity, torture or degradation is based on reason, supported by expert evidence and the findings of modern medicine," the court had declared in 1983.

While there are nine common methods of execution — hanging, firing squad, shooting, beheading, lethal injection, stoning, lethal gas, electrocution, and a particularly ghastly one involving being thrown from a height — hanging remains the most common, with at least 50 countries authorising it.

Apart from India, countries such as Japan, Bangladesh, Pakistan, Singapore, Malaysia and Nigeria used hanging as the method of executing death sentences.

The petition

Malhotra's 2017 petition contended that execution by hanging was an inhuman and cruel act that violated a convict’s fundamental rights.

He relied on Article 21 and earlier Supreme Court judgments to argue that a condemned prisoner has the right to a dignified mode of execution, and cited the Law Commission's 187th Report, which had advocated removing hanging from the statute.

That report, submitted in 2003 under the chairmanship of former Supreme Court judge M Jagannadha Rao and titled 'Mode of Execution of Death and Incidental Matters', recognised what it called the "constitutional impossibility" of hanging and recommended that India consider lethal injection instead.

Malhotra also cited the dissenting view of justice PN Bhagwati in the Bachan Singh case, where the judge held that hanging was itself cruel and barbarous.

Responding to the petition in 2018, the Union government said hanging remained the safest and quickest method of execution and eliminated the possibility of a "lingering death". It rejected lethal injection as an alternative, pointing to the reluctance of trained medical professionals to participate in executions and to the risk of botched procedures — noting that lethal injection had "gained the dubious distinction of having the highest rate of botched executions within the United States between 1900 and 2010."

In earlier hearings, a bench led by then Chief Justice of India Dhananjaya Y Chandrachud had appeared open to revisiting the 1983 verdict, at one point directing the Union government to furnish statistics and information on executions carried out since the 1980s, and indicating it could form a committee of experts if no such study existed.

That bench had noted it would examine whether the 1983 judgment had applied the test of proportionality as laid down in the right to privacy case, KS Puttaswamy (2017), and later followed in CPIO vs Subhash Chandra Aggarwal (2019). Those judgments held that proportionality is essential to guarding against arbitrary State action, ensuring the nature and quality of any encroachment on a right is not disproportionate to the law's purpose.

That line of inquiry did not, in the event, lead to a reference to a larger bench or an expert panel. The matter was instead finally heard by a bench of justices Vikram Nath and Sandeep Mehta, which dismissed Malhotra's petition — while, as with the 1983 verdict itself, stopping short of closing the question permanently.

The court's position, in essence, mirrors the one it took in 1983: it is not for a constitutional court to prescribe an alternative method of execution, but the government remains free to do so if scientific advances make a stronger case for change.