Death Penalty: Supreme Court rejects plea to replace hanging with alternative painless method

The Supreme Court on Tuesday dismissed a petition to outlaw hanging and replace it with a more painless mode to execute the death sentence [Rishi Malhotra v. Union of India].

A Bench of Justices Vikram Nath and Sandeep Mehta passed the ruling.

"We are not persuaded that a case has been made out for referring the decision of the three-judge bench in Dina to a larger bench for reconsideration of the constitutional validity of Sections 354 of the CrPC/ 393(5) of the BNSS (provisions dealing with death penalty by hanging)," the Court said.

The Court added that its judgment today is not the final word on the subject, and that the issue may be examined again in future if compelling scientific evidence is produced regarding alternative ways to carry out the death sentence.

"Before parting, we clarify that the dismissal of the present writ petition must not be understood as foreclosing future constitutional scrutiny should compelling scientific, medical, or empirical evidence emerge demonstrating that the factual and scientific basis on which the decision in Dina proceeded has been materially displaced by subsequent developments," it said.

The Court underscored that the interpretation of the Constitution of India is organic and must remain responsive both to the evolution of constitutional doctrine and to the advances in scientific knowledge.

It added that the Central government is also free to examine the issue further in a scientific manner.

"We also observe that nothing contained in this judgment shall preclude the Union government should it consider it appropriate from undertaking a comprehensive review of the existing method of execution through an expert body comprising specialists in law, forensic medicine, neuroscience, criminology, and allied disciplines with a view to examine whether any alternative method of execution better serves the constitutional objective of minimizing unnecessary pain while preserving the dignity of the condemned prisoners. The writ petition is dismissed with above observation," the Court said.

The plea was filed by Senior Advocate Rishi Malhotra in 2017, challenging the constitutionality of Section 354(5) of the Code of Criminal Procedure (CrPC, now replaced by the BNSS), which provides for hanging till death.

As per the petition, hanging should no longer be used as a mode of execution and alternatives such as lethal injection should be considered, Many countries across the world have already moved away from hanging, it was pointed out.

During the course of hearings, Malhotra had submitted that hanging is cruel and barbaric, and that the right to life also includes the right to die with dignity.

The Central government, represented by Attorney General R Venkataramani had told the Court earlier this year that the government has been examining the issue at the highest level.

The Court also heard submissions by Project 39A, a criminal justice programme that provides legal aid and representation to death row prisoners.

Representing the project, Senior Advocate Meenakshi Arora submitted that lethal injection has not been found to be very successful. She too agreed that a committee should be formed, in any case, to properly examine the issue.

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