Amidst the possibility of imminent executions of the four convicts in the Nirbhaya case, a writ petition has been filed in the Supreme Court by a 88-year old freedom fighter challenging the constitutional validity of delivering death penalty by hanging by death
The petition filed by S Paremeswaran Nampoothiri challenges Section 354(5) of the Code of Criminal Procedure, which states when any person is sentenced to death, the sentence shall direct the he be hanged by the neck till he is dead.
According to the Kerala-based octogenarian, the provision is in conflict with the basic structure and features of the Constitution of India.
The petitioner, who describes this punishment as a "colonial hangover", asks
"Whether compliance under Section 354(5) of The Code Of Criminal Procedure, 1973 is possible , when a convict has to undergo imprisonment for a particular period of time before conviction which is also a prescribed punishment, and assuming a convict is hanged by the neck "till" he is dead, even after that, his body is hanged resulting in disrespecting the body and a punishment beyond the ambit and scope of Section 354(5) in The Code Of Criminal Procedure, 1973."
The petitioner asks , without defining "death" in the constitution, more particularly when various forms of death exists, whether the sentence prescribed in Section 354(5) of The Code Of Criminal Procedure, 1973 can be executed.
He further asks :
"Whether the person hanging the convict is doing a government duty or killing a person ? . Whether the state can give authority to a person to administer death to another person in discharge of duty ? . Whether the state is having the power to give such an authority and if yes which is the particular provision that give authority to administer death to a person more particularly when "The right to life " is above the constitution and every "I" is a part of the "WE" ,and the state is prohibited in killing a person under what ever circumstances?"
The petition filed through Advocate Wills Mathew also contains arguments against death penalty. It is argued that death penalty lacks deterrent effect, and that the State has no ethical right to take away a human life, when it cannot give life.
"At a time when it is scientifically proved that the DNA profile of a person matters a lot to become a saint or a criminal, whether a person can be killed for reasons beyond his control", asks the petitioner.
The petitioner also argues that while death penalty is "30 seconds pain" for the convict, it inflicts life long suffering on his near and dear ones. According to the petitioner, it thus given "easy escape route" to for the convict to leave his body for the other world, where a compassionate and merciful God may even condone his cruelty. This, submits the petitioner, means that the death penalty is a lesser form of punishment.
The petition thus seeks to strike down Section 354(5) as ultra vires the Constitution.
The constitutional validity of the death penalty was upheld by the five-judge bench of the Supreme Court in Jagmohan Singh vs. State of Uttar Pradesh A.I.R. 1973, S.C 947.