Supreme Court Reserves Judgment On Plea Seeking Alternatives To Hanging For Death Penalty Execution

The Supreme Court today reserved orders in a public interest litigation seeking abolishment of death-by-hanging.

A bench of Justices Vikram Nath and Sandeep Mehta reserved the order after hearing Attorney General R Venkataramani, Senior Advocate Meenakshi Arora (for Project 39A) and Advocate Rishi Malhotra (petitioner-in-person).

During the hearing, Malhotra relied on a Law Commission of India report to support the prayers, which provides a comparative chart on what can be a better mode of execution. The Court asked him to place on record a brief note on the Report and relevant case laws.

Arora informed the Court that Project 39A has given detailed submissions on the alternative of lethal injection, particularly, as to what has been the experience in other jurisdictions like the United States (where it has been used the most). "It has been found that it's not really successful", she said.

"What is your suggestion then?" asked Justice Nath.

Arora responded that it can be left to an Expert Committee to explore alternatives and gather more evidence. At the same time, she acknowledged that there is a certain degree of pain and suffering associated with hanging, as the condemned prisoner does not immediately pass away.

Adding to it, Justice Mehta pointed to the psychological impact of hanging on the hangmen themselves. "Persons who are witnessing...quite a serious thing", the judge remarked. Arora agreed and highlighted that in the case of lethal injections, there is a variable in the injection composition. "It has been experimented in the US with different components, but there have been many botched up executions", she said.

AG Venkataramani told the Court that the matter is being examined by the Union at the highest level and some Committees have been constituted. Ultimately, the orders were reserved, asking the parties to submit their brief notes/submissions in 3 weeks. On the AG's request, it was also clarified that if a need is felt to come back to the Court, the Union can do so.

To recap, the PIL sought to abolish the present practice of executing a death row convict by hanging which involves “prolonged pain and suffering”. It prayed that the mode of execution be replaced with intravenous lethal injection, shooting, electrocution or gas chamber in which a convict could die in just a matter of minutes.

In March 2023, the Court had pondered forming an expert committee and asked AG R Venkataramani to find out data on the impact of death by hanging, pain caused, the period taken for such death to take place, and availability of resources to effectuate such hanging by death.

In May, 2023, the AG informed the Court that he had recommended the formation of an expert committee to decide upon whether there existed better alternatives to execute the death penalty. He added that the government had been mulling over the members for the said expert committee.

Last year, the petitioner advocated for the adoption of use of lethal injection in place of hanging, by informing that 49 out of 50 states in USA have adopted the same. "Atleast give an option to the condemned prisoner whether he wants hanging or lethal injection...lethal injection is quick, humane and decent, as opposed to hanging, which is cruel, barbaric and lingering...for 40 minutes, the body lingers on the rope", he submitted. It was highlighted that in the armed forces, an option is given.

The Court on its part lamented the Union's opposition to a suggestion that death row convicts be given an option to choose lethal injection as mode of execution. When it was pointed out from the Union's counter affidavit that giving an option to a convict may not be "feasible", Justice Mehta remarked, "Problem is, the government is not ready to evolve...it's a very old procedure, things have changed over a period of time."

Background

The petition was filed seeking the following reliefs:

1. Declare provisions contained under Section 354(5) CrPC as ultra vires of the Constitution for being discriminatory and violative of Article 21 of the Constitution and also in contravention of the Constitution Bench judgment in Gian Kaur's case;

2. Declare right to die by a dignified procedure of death as a fundamental right (defined under Article 21 of the Constitution of India).

The petition states 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.

The petitioner argues that execution as contemplated under Section 354(5) 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".

Case Title: Rishi Malhotra v. Union of India, W.P.(Crl.) No. 145/2017