Acting on a plea filed by a lawyer, the Supreme Court today observed that the legislature can consider amending the CrPC to change the mode of execution of a death row convict from the present painful hanging to some other less painful method.
"Prima-facie with the invention of various modes, the legislature can think of some other mode by which a convict who in law has to face death sentence shall die in peace and not in pain" , a bench headed by Chief Justice Dipak Misra said.
"Since centuries it has been said that nothing can be equal to painless death", the bench added.
Holding that “dying with dignity is part of right of life”, a PIL has been filed in Supreme Court for abolishing the present practice of executing a death row convict by hanging which involves “prolonged pain and suffering” and to replace it with intravenous lethal injection, shooting, electrocution or gas chamber in which death is just a matter of minutes.
During the hearing Justice D Y Chandrachud who is part of the bench said "shooting was associated with authoritarian regimes while intravenous lethal injection mode was severely criticised in the United States.
"What would be the mode has to be decided by the legislature" said CJI Misra.
The bench kept in mind that such a change will entail amendment of the Criminal procedure code by the parliament.
Supreme Court lawyer Rishi Malhotra has in his petition relied on Gian Kaur Vs State of Punjab (1996),Deena V s Union of India (1983) and two reports of the Law Commission in his support.
The petition said “In Gian Kaur Vs State of Punjab (1996), the Supreme Court had held that the right to life including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out.”
Drawing a comparison, the petition said that while in hanging the entire execution process takes more than 40 minutes to declare prisoner to be dead, the shooting process involves not more than few minutes. In case of intravenous lethal injection, it’s all over in 5 minutes.
Citing SC judgment in Deena V s Union of India (1983) , Malhotra said in that case it was observed that the act of execution should be as quick and as simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner’s apprehension.
“The act of the execution should produce immediate unconsciousness passing quickly into the death, should be decent and should not involve mutilation”, SC had said.
Malhotra said the Law Commission’s view was that developed as well as developing countries have replaced the execution by hanging by the intravenous lethal injection or by shooting “which is most acceptable and humane method of executing death sentence involving less pain and suffering to a condemned prisoner”.
Malhotra argued that the law panel in 1967 in its 35th Report had also noted the fact that most of the countries has either adopted electrocution, firing squad or gas chamber as a substitute for hanging.
He wants the SC to declare section 354(5) of Criminal Procedure which says that “when any person is sentence to death, the sentence shall direct that he be hanged by the neck till he is dead” declared violative of the right to life guaranteed by the constitution.
He also wants that right to die by a dignified procedure of death should be declared a fundamental right.
"Shooting and injecting with lethal poison necessarily involves lesser agony compared to hanging, which involves a torturous procedure of weighing the convict, measuring the height, etc. in order to determine the length of the drop," the petition said.
Malhotra argues that the execution as contemplated under Section 354(5) of CrPC (hung by the neck till the person is dead) is not only barbaric, inhuman and cruel, but also against resolutions adopted by the United Nations Economic and Social Council (ECOSOC) that had categorically resolved that "where Capital punishment occurs, it shall be carried out so as to inflict minimum possible suffering".