In India, the death penalty is to be imposed in “rarest of the rare” cases, where the crime is exceptionally heinous and brutal, and where the convict's guilt is beyond any doubt. Once all legal remedies have been exhausted by the convict, the execution is carried out.
As per Section 354 of the Code of Criminal Procedure (CrPC), when any person is sentenced to death, they shall be hanged by the neck till dead.
On March 21, the Supreme Court of India decided to examine whether death by hanging is the most suitable and painless method. During the hearing, it asked the government for data on the various aspects of hanging, including the element of pain.
The direction was passed in a public interest litigation (PIL) filed by Advocate Rishi Malhotra, who argued that there were less painful and more scientific ways of execution that could be adopted in the future.
In this interview with Bar & Bench's Aamir Khan, Malhotra discusses the aim of his plea, his views on the death penalty and how adopting alternative methods of execution aids prisoners' rights.
Edited excerpts follow.
Aamir Khan: What is the scope of your petition?
Rishi Malhotra: To begin with, there was no question of me challenging the imposition of death penalty. So people should not get confused that I have challenged the death sentence, because that's already already been settled way back in the Bachan Singh case. My petition is on the mode of execution.
It is based on various Law Commission reports and observations of the Supreme Court in Deena’s judgment, and also the very important judgment of five judges that is Gian Singh’s judgment. In these two judgments, the Supreme Court has itself found that the hanging was indeed very inhuman, torturous, barbaric and painful.
These were the were the words which were used in even a judgment which was against me. That is Deena.
Incidentally, the judgment was written by then Chief Justice of India YV Chandrachud. So at that moment in time, 40 years earlier, they had upheld that since they was no other scientific material on record, hanging is the most effective way of execution despite these observations that it was painful.
Subsequently, the Law Commission filed its report where they studied data of other countries, predominantly western countries, and especially the USA. The 187th Law Commission Report came to be published in 2003, where they discovered that of the 50-odd states in the US, 36 at that moment in time had given up hanging and they have adopted the lethal injection method as the quickest and least painful way of execution.
The same Law Commission report has adverted to various procedures, which are adopted in various modes of execution. And apropos what CJI asked me — if any scientific data was there or not — I pointed out a procedure, which is prescribed under the heading of lethal injection.
There are some chemicals injected. The person becomes unconscious and then in span of five minutes, the last injection is given. Therefore, it's obviously the least painful death, because the person becomes unconscious.
I have also said that no mode is a hundred per cent fool-proof. We have to see that which is less painful.
And of course hanging is obviously painful as seen right from the beginning when the prisoner is handcuffed; legs are tied; taken to a scaffold; face covered; hands tied; legs untied, and then on a signal of the jail superintendent, the prisoner is executed.
And the worst part is after that, the prisoner remains hanging for more than 30-odd minutes just to ensure that the prisoner is dead.
In fact in Deena’s judgment also, the Supreme Court discovered that it all depends on the length of the rope, which is further dependent upon the weight of the prisoner as well as the height.
So if the length is too short, then there would be a fracture of the neck. So you can imagine the pain. And if the length is a bit long then the head can sever from the body.
Therefore, I did point out that there is no going away from the fact that hanging is the most cruel way of execution.
AK: What prompted you to file this petition?
RM: I've been practicing in the Supreme Court for the last 25 years. It was always in my mind that hanging was a very obsolete way of execution. We are still following the British method, whereas the western countries have changed the entire concept.
I was thinking aloud and I researched and found the Law Commission reports and Supreme Court judgments saying hanging was bad.
We say that hanging is constitutionally valid, but then when Justice Dipak Misra issued notice in my matter, he said that due to the passage of time and development of scientific needs and technology, these things definitely needed change.
Malhotra: It should have happened many years ago, I think decades ago.
But since Deena’s judgment in 1983, nothing has changed actually. Despite the Supreme Court at that moment in time specifying that this is not a rigid judgment, it can always evolve because of the passage of time, the government did not take any action.
Since nobody took any action, nobody even thought of filing petitions before the Supreme Court.
Of course, the death penalty should be there because in some grave cases, it has to be awarded. There is no dispute on that, but then the mode of execution needs to be changed. That mindset of the colonial system has to change.
Did you ever think of challenging the death penalty?
Malhotra: No. That’s a settled law. But I must add here that in another writ petition, I have challenged one of the sections of the SC/ST Act which says the minimum sentence is death penalty.
Under Section 302 (punishment for murder) of the Indian Penal Code (IPC), it is life (imprisonment) and in the extreme, it is death. But in the SC/ST Act, the minimum sentence is the death sentence.
So I have challenged that imposition of the minimum sentence because that should be in the rarest of rare cases and can't be a mandatory thing.
How does your plea aid prisoners’ rights?
Malhotra: I did mention before the Court while arguing that the most unpleasant thing is to kill someone. It is actually the power of God to kill somebody, but you don't have a power. But anyway, that's the judicial pronouncement that has to be executed or not.
But obviously, there is a judgment of the Supreme Court in place saying that though death sentences may have been upheld or ordered, if despite long passage of time, nothing has been done, the prisoner gets commutation from death to life imprisonment or maybe 30 years or 45 years or 50 years or till life.
That's the Supreme Court judgment in Shatrughan Chauhan.
Now if a person has to die, there is no leeway or escape route. Then at least, as I mentioned earlier, the Constitutional right to die with dignity assumes great importance. And if you recall, there were cases for passive euthanasia.
There is no point in a person living in a vegetative state and then one fine day, everyone decides to plug out the ventilator. Dying with dignity has immense significance that may apply across the world, regarding each and every death.
Dying with dignity will, therefore, always mean it should be less painful and quicker and speedier.
Just imagine when a condemned prisoner is hanged, they are at the mercy of a layperson called the hangman. He's not a scientific expert or a technical expert.
Now, if you compare this with a scientific expert who has to give a lethal injection, they are doctors, certified doctors who have to give it along with a whole body of experts. So obviously the lethal injection is a far better and more scientific way for execution.
A hangman does not know the intricacies.
What is your view on the recent trend of death penalties being commuted to life imprisonment by the Supreme Court?
Malhotra: You see in our country, the death sentence is obviously an exception. And I would say it is rarest of rare exception unlike some other countries, where it is often given and executed in time. In our country, we have the medieval setup that it should be avoided and given as the last recourse.
But then the courts have modulated that. Suppose a man has killed six or eight persons of a family brutally, courts have observed that perhaps this may not be a case of death sentence. But then they say that giving 14 years or 16 years (imprisonment) is too less.
So they came out saying we will award 25 years or 30 years without remission. Two months ago before the Supreme Court, in one of the cases I argued, the High Court, instead of giving the death sentence, commuted it natural life.
Now, I am filing a petition in that regard also, because according to me, giving sentence of natural life is also unknown to law. Because 302 IPC also uses only two options — life sentence or death sentence. So you cannot say that life would always mean natural life. Otherwise, it is worse than giving death sentence.