The Supreme Court has reserved its verdict on pleas challenging hanging till death as a mode of execution, citing cruelty and pain. The decision may redefine India’s approach to death penalty execution methods under Article 21.
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NEW DELHI: The Supreme Court of India has reserved its decision on a batch of pleas seeking an alternative method for executing death row convicts, challenging the constitutionality of hanging till death as a mode of capital punishment.
A Bench comprising Justice Vikram Nath and Justice Sandeep Mehta heard the matter and directed the counsels representing the petitioners, as well as the Attorney General of India appearing for the Union Government, to file their written submissions within three weeks, if any.
During the hearing, Advocate Rishi Malhotra relied upon a Law Commission of India report, which contains a comparative analysis of different modes of execution, to argue that hanging causes prolonged pain and suffering. The Court directed him to place on record a brief note on the report along with relevant case laws.
Senior Advocate Meenakshi Arora submitted that Project 39A had made detailed submissions on lethal injection as an alternative mode of execution, drawing from experiences in other jurisdictions, particularly the United States, where lethal injection has been widely used.
However, Arora cautioned that lethal injection has not proven to be consistently humane, citing instances of botched executions due to variations in drug composition. She suggested that the issue be referred to an Expert Committee to study alternatives and collect empirical evidence. At the same time, she acknowledged that hanging does involve a degree of pain and suffering, as death is not instantaneous.
Justice Sandeep Mehta highlighted the psychological trauma experienced by hangmen and witnesses involved in executions. Calling it a “serious matter,” the judge noted the often-overlooked mental impact of the execution process. Justice Vikram Nath, meanwhile, questioned what viable alternative could be suggested if lethal injection itself presents complications.
Attorney General R. Venkataramani informed the Court that the issue is being examined by the Union Government at the highest level, and that committees have already been constituted to deliberate on the matter. On his request, the Court clarified that the Union may approach the Court again if necessary, even after orders are passed.
The Bench granted all parties three weeks to submit their written briefs and notes.
Background of the PIL
The PIL challenges Section 354(5) of the Code of Criminal Procedure, 1973, which mandates that a death sentence shall be executed by hanging till death. The petition seeks the following reliefs:
- A declaration that Section 354(5) CrPC is unconstitutional for being arbitrary, discriminatory, and violative of Article 21.
- Recognition of a fundamental right to die with dignity, including a dignified procedure of execution.
- Replacement of hanging with alternative methods such as lethal injection, shooting, electrocution, or the gas chamber, which allegedly cause quicker and less painful death.
The petitioner argued that while hanging may take over 40 minutes to confirm death, lethal injection results in death within five minutes, and shooting within a few minutes. It was also submitted that armed forces personnel are given an option regarding the mode of execution, and a similar choice should be extended to civilians.
The petition relies on United Nations ECOSOC resolutions, which mandate that where capital punishment exists, it must be carried out in a manner that inflicts the minimum possible suffering. According to the petitioner, hanging fails to meet this standard and is therefore inhumane and barbaric.
Earlier Developments
In March 2023, the Supreme Court had asked the Attorney General to gather data on:
- The pain caused by hanging
- Time taken for death
- Practical feasibility of execution methods
In May 2023, the AG informed the Court that he had recommended the formation of an Expert Committee to examine whether more humane alternatives to hanging exist.
Death Penalty
Capital punishment, commonly known as the death penalty, is the highest form of punishment awarded to an offender after conviction by a court of law. It is generally imposed for the most heinous offences such as murder, rape, treason, and terrorism-related crimes. While supporters view it as an effective deterrent against grave crimes, opponents consider it inhumane and violative of human dignity, making its morality highly debatable.
Death Penalty in the Indian Context
Before the Criminal Procedure (Amendment) Act, 1955, the death penalty was the rule and life imprisonment the exception for capital offences. Courts were also required to justify awarding a lesser sentence. Post-1955, courts were given discretion to choose between death and life imprisonment.
Under Section 354(3) of the CrPC, 1973, courts must record special reasons in writing for awarding the death penalty. Consequently, life imprisonment has become the norm, and the death penalty the exception. Despite the UN’s call for a global moratorium, India retains capital punishment, believing that leniency for brutal and deliberate crimes would undermine justice.
The Law Commission of India, in its 35th Report (1967), rejected the proposal to abolish the death penalty. Official data shows that since Independence, around 720 executions have taken place, with most death sentences either commuted to life imprisonment or overturned by higher courts.
Offences Punishable with Death in India
The Indian Penal Code prescribes the death penalty for offences such as:
- Waging war against the Government of India (Section 121)
- Abetting mutiny (Section 132)
- Fabricating false evidence leading to the execution of an innocent person (Section 194)
- Murder (Section 302)
Other statutes providing for the death penalty include:
- Commission of Sati (Prevention) Act, 1987
- SC/ST (Prevention of Atrocities) Act, 1989 (false evidence leading to execution)
- POCSO Act, 2012 (rape of a minor below 12 years)
- NDPS Act, 1985 (repeat offences involving certain drugs)
- UAPA, 1967, and Army, Navy and Air Force Acts
Supreme Court on the Death Penalty
- Jagmohan Singh v. State of UP (1973): The death penalty is constitutionally valid if imposed through a fair and lawful procedure under Article 21.
- Rajendra Prasad v. State of UP (1979): The death penalty may be justified where the crime seriously threatens social security.
- Bachan Singh v. State of Punjab (1980): Introduced the doctrine of “rarest of rare cases”, making the death penalty an exceptional punishment.
- Machhi Singh v. State of Punjab (1983): Laid down guidelines to determine what constitutes the rarest of rare cases.