Executing Death Penalty By Hanging Barbaric? Supreme Court To Examine Less Painful Alternatives

The Supreme Court on Tuesday expressed its inclination towards constituting an expert committee to determine if the execution of death penalty through hanging was proportionate. A bench comprising Chief Justice DY Chandrachud and Justice PS Narasimha was hearing a PIL seeking to abolish 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 a convict could die in just a matter of minutes.

Death by Hanging Cruel and Inhumane: Advocate Rishi Malhotra

The petitioner-in-person, Advocate Rishi Malhotra argued that when a man was hanged, his dignity stood lost and that dignity, even in death was necessary. He submitted that a convict whose life has to be ended, should not have to suffer the pain of hanging as "nothing can be equated with dignity in death". Malhotra established before the court that the course of events in other countries showed that hanging was slowly being abandoned as a method of executing the death penalty. He stated that 36 states in the USA had already abandoned the practice of hanging. To establish the cruel and barbaric nature of death by hanging, he provided examples of cases where death row convicts had to be left hanging for two days as they slowly strangulated. He said–

"Our own armed forces law provides for two choices- either by shooting or by hanging. These provisions are missing in our CrPC provisions...It (death by hanging) is neither quick, nor humane- 30 mins the body keeps hanging till the doctor checks if the person is dead or not."

To support his arguments, Malhotra cited the dissenting judgement of Justice PN Bhagwati in Bachan Singh v State Of Punjab and read–

"If the drop is too short, there will be a slow and agonising death by strangulation. On the other hand, if the drop is too long, the head will be torn off."

In his petition, Malhotra relied on Gian Kaur Vs State of Punjab (1996), Deena v. Union of India (1983) and two reports of the Law Commission in his support.

Supreme Court Mulls over Alternate Methods of Execution

Upon the submissions of Malhotra concerning the cruel and barbaric nature of executing death penalty by hanging a convict, the bench mulled over alternate methods for executing a convict. At the outset, Justice Narasimha said–

"The question of dignity is not under contest. Even the issue of minimum amount of pain is not in contest. The question which remains is what does science offer? Does it offer lethal injections? The judgement says no. Even in America it was found lethal injection was not right."

CJI DY Chandrachud joined the discussion and stated that various American magazines had written in detail upon anecdotal evidence for lethal injections. While stating that these results were "startling", he said that lethal injections may also cause painful deaths and may not be humane either. He further stated that shooting a person had been specifically rejected by the bench as it was barbaric. He added–

"We cannot tell the legislature that you adopt this method. But you can certainly argue that something may be more humane...In lethal injections too, the person really struggles. On what basis does the Law commission say that lethal injection is not a lingering death? There has been great divergences on what chemicals are to be used too. What research is there?"

The court then directed its attention to the existing studies on the matter and asked the Attorney General for India R Venkataramani– 

"When a death penalty is executed, it's executed in the presence of District Magistrate and Superintendent. Of course there may be some reports. What do these reports of these officers say? Do they indicate the extent of pain in prisoners?"

The AG answered by stating that he would come back with a better perspective on the matter.

Supreme Court may form an Expert Committee

While pondering upon better alternatives to determine if there were more humane ways to execute death penalty, CJI DYChandrachud said to the AG –

"Mr. AG, come back to us and we should have better data before us on the impact of death by hanging, pain caused, and the period taken for such death to take place, availability of resources to effectuate such hanging by death. And is today's science suggesting that this is best method today or is there another method which is more suitable to uphold human dignity."

Continuing his line of thinking, CJI enquired if there existed any data either in India or overseas regarding alternate methods or if it would be better for the bench to form a committee. Thinking out loud, he stated that the committee could have experts from National Law Universities, doctors from AIIMS, and scientists.

Parting with the petition, CJI DY Chandrachud remarked–

"We can have perspective on alternate method. Or we can see- does this method satisfy the test of proportionality for it to be upheld? We must have some underlying data before we relook at it. You can come back to us by next week and we can formulate a small order and constitute the committee. We can hear you on its remit..."

The bench then posted the matter to the end of May saying "it is a matter for reflection". 

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