Death penalty to be unconstitutional? What Supreme Court said

Hanging by the neck to execute the death sentence can be declared unconstitutional if there is scientific material favouring a different method of execution as less painful and “more consistent with human dignity”, the Supreme Court said on Tuesday.

Hanging by the neck to execute the death sentence can be declared unconstitutional if there is scientific material favouring a different method of execution as less painful and “more consistent with human dignity”, the Supreme Court said on Tuesday, asking the Union government to initiate a discussion on the subject and collect information on the executions carried out in the last four decades.

Supreme Court (PTI)

A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, added that the court is inclined to set up a panel of experts to go into the issue threadbare and examine if there is empirical evidence to suggest hanging may not be the least painful and dignified mode of execution.

Clarifying that the court is not going to tell the legislature which method of execution should be in the statute, the bench underlined that it could still ascertain the validity of the existing mode of execution (hanging) on the anvil of the constitutional right to dignity in death — both in the process of execution and the manner of it.

“We will examine two things. If there is an alternative method which is far more consistent with human dignity... because that will render death by hanging unconstitutional. And second, we will see even otherwise, this method passes the test of proportionality in the procedure as well as the manner,” the bench, which also included justice PS Narasimha, told attorney general (AG) R Venkataramani.

It added: “We cannot tell the legislature you don’t choose method A but choose method B. But if there is scientific data to show that method B is less painful and is consistent with the constitutional right to dignity in death, we can certainly say method A is invalid. The burden is on the Union to constantly study and examine these issues. And if you haven’t done it then the court will have to go into it.”

Calling it a “matter of reflection” in the wake of rapid strides in science and technology since the top court in 1983 upheld the validity of hanging as the method prescribed under Section 354(5) of the Code of Criminal Procedure (CrPC) for executing the death sentence, the bench added: “Availability of a better science is a concrete ground for a relook.”

While the AG, on his part, submitted that the government is open to revisiting the issue, the court replied that it would want some relevant data around executions since 1980s to form a view on the pertinent facts before it analyses the legal aspects surrounding the challenge to the method of execution through a petition filed by advocate Rishi Malhotra.

“Mr AG, come back to us and we should have better data before us on the impact of death by hanging, pain caused and the period taken for such death to take place... availability of resources to effectuate such hanging by death. Then, give us data on science and technology. Does today’s science suggest that this is still the best method or is there another method which is more suitable to uphold human dignity... comparison with international methods of such practices,” said the bench, fixing the matter for May 2. It pointed out that since the executions are carried out in the presence of district magistrates, jail superintendents and doctors, there must be reports prepared regarding these episodes.

The bench added that if the Centre has not conducted any study in the last few decades, the court can form a committee which can have experts from national law universities, academicians, doctors, psychologists and scientific experts to undertake the exercise. “We may still come to the conclusion that death by hanging is the most appropriate method but we need to be aided by a study and some material,” it said.

At this point, Venkataramani said that he would wish to come back with more information on the issue even as he conceded that the government would have no objection if a committee is eventually formed.

Observing that it does not wish to precipitate the issue, the court gave the AG time to come back with data and relevant instructions in the matter, stating that it would want to be apprised of the latest scientific knowledge on the issue as well as the experiences gained in the last few decades regarding executions.

It also said that the court may even refer the matter to a constitution bench so that the 1983 judgment in Deena @ Deena Dayal Etc vs Union of India could get reviewed. According to the bench, the 1983 judgment, while affirming the validity of death by hanging did not consider the test of proportionality to examine if there was any less painful or intrusive method to carry out death sentences. The 1983 judgment was delivered by a three-judge bench, led by former CJI YV Chandrachud, the current CJI’s father.

During the proceedings, the bench rejected death by shooting as an alternative method while adding that use of lethal injections in other countries has also produced several divergent reports on its suitability as a better alternative.

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

Malhotra, in his petition filed in 2017, challenged the constitutional validity of Section 354(5) of the CrPC, which states that when a person is sentenced to death, he shall be hanged by the neck till he is dead. The lawyer contended that execution of a death sentence by hanging is an inhuman and cruel act that violates the fundamental right of a convict.

Malhotra relied on Article 21 (right to life) and some previous Supreme Court judgments to argue that a condemned prisoner has the right to have a dignified mode of execution so that death becomes less painful. He also referred to the 187th report of the Law Commission, which advocated the removal of the present mode of execution from the statute.

Responding to a notice by the top court in 2018, the Union government said that hanging remains the safest and quickest method of execution and that it eliminates the possibility of a “lingering death”. It rejected the suggestion of using lethal injections as an alternative, pointing out that not only were trained medical professionals unlikely to participate in executions, but that the possibility of failure of the chemical used in lethal injections also loomed large. It added that the use of lethal injections has “gained the dubious distinction of having the highest rate of botched executions within the United States between 1900 and 2010.”

Finally, the Centre’s affidavit emphasised that death penalty is given to only those convicts who have acted with extreme brutality, depravity or carried out premeditated or socially abhorrent acts. “Making the entire process of death penalty overtly comfortable, serene and painless may substantially reduce its effectiveness in acting as a deterrent against abhorrent criminal acts as was intended by the legislature and may not be able to serve its social purpose,” it argued while seeking the dismissal of Malhotra’s petition.