SC asks Centre to examine less painful method of execution in death penalty

The Supreme Court on Tuesday asked the Centre to start a discussion and collect necessary information to examine if there can be a less painful method than hanging by neck for execution in death penalty cases in the country.

The court also said that it is open to set up a panel of experts, including from National Law Universities and AIIMS to give their views on the subject as one aspect could be to look at the matter from the point of view of science and technology.

A bench of Chief Justice D Y Chandrachud and Justice P S Narasimha allowed Attorney General R Venkataramani time till May to ascertain if any study has been conducted to find more humane method of execution and impact of death penalty by hanging.

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"We can look at the matter from the point of view of technology and science if today's stage of knowledge says hanging is the best way," the bench said.

"Do we have any data either in India or overseas regarding alternate methods. Or do we form a committee? We're just doing loud thinking. We can have National Law Universities on the committee. The National Law University, Delhi has some eminent people," the bench added.

The court orally said there are two perspectives to look at, one, is there any alternate method, which is more consistent with human dignity so as to render this method of execution as unconstitutional.

Two, even if there is no alternate method, does this method satisfy the test for proportionality so as to be upheld, the bench said.

The bench further said that change in technology or availability of better science is a ground for relooking it. In order to relook at hanging, the court must have some underlying data, the court added.

Advocate Rishi Malhotra filed a writ petition seeking a direction for quashing of the provision contained under Section 354(5) of the Criminal Procedure Code as ultra vires the Constitution and especially Article 21 for being discriminatory and also in contravention of the Constitution Bench Judgment in Gian Kaur's case (1962).

The judgement had then said, "the Right to Life including the Right to Live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto 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."

The petitioner also cited discrimination vis-à-vis a condemned prisoner tried under the Code of Criminal Procedure, 1973 and the one under the provision of the Air Force Act, 1950, the Army Act, 1950 and the Navy Act, 1957.

"Under Section 354(5) CrPC, the only mode prescribed for execution of the death sentence is hanging by neck till death whereas under the acts, the execution has to be carried out either by hanging by neck till death or by being shot to death," his plea stated.

On October 6, 2017, the top court had issued notice to the Centre in the matter, noting the contention of the petitioner that the convict whose life has to end because of the conviction and the sentence should not be compelled to suffer the pain of hanging.

The petitioner has also referred to the 187th report of the Law Commission.

"Prima facie, legislature can think of some other mode by which a convict who, in law, has to face the death sentence should die without pain. It has been said for centuries that nothing can be equated with painless death. And that is, possibly, the dignity in death," the court had said, while seeking a reply from the Union government in the matter.