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Panel to review execution by hanging: Centre to Supreme Court
Centre is in the process of appointing a committee to examine alternative methods of executing capital punishment.
New Delhi The process has begun to ascertain if a less painful and more humane method than hanging by the neck can be considered for carrying out the death sentence in India, the Union government told the Supreme Court on Tuesday, adding that a committee will soon be set up to review the mode of execution under the country’s penal law.
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Appearing before a bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, attorney general (AG) R Venkataramani submitted that the government is in the process of appointing an expert committee to examine whether a less painful method of execution can be used under the law.
“I had suggested the appointment of a committee to examine the issue, and the government is considering it while pondering over which experts could be part of the proposed committee,” Venkataramani told the bench, which also included justice JB Pardiwala.
The bench recorded the AG’s submission that the Centre was in the process of appointing a committee to examine alternative methods of executing capital punishment.
The Centre’s response came following the top court’s observations on March 21 that 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”.
Asking the Union government to initiate a discussion on the subject and collect information on the executions carried out in the last four decades, the bench said that the time that the court was inclined to set up a panel of experts to go into the issue threadbare and examine if there was empirical evidence to suggest that hanging may not be the least painful and dignified mode of execution.
In the March 21 hearing, the apex court clarified that while the court will not tell the legislature which method of execution should be included in the statute, 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.
The bench also said that it would consider referring the matter to a Constitution bench so that the 1983 judgment in Deena @ Deena Dayal Etc Vs Union of India could be 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.
The AG, during the March hearing, submitted that the government was open to revisiting the issue, and sought some time to come back with suitable instructions.
The court was hearing a petition filed by advocate Rishi Malhotra in 2017, challenging 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 has contended that execution of a death sentence by hanging is an inhuman and cruel act that violates the fundamental right of a convict.
Malhotra, in his plea, 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 remained the safest and quickest method of execution, and that it eliminated 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, the possibility of failure of the chemical used in lethal injections also loomed large. The Centre 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.”
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Finally, the Centre’s affidavit emphasised that the 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.
