A Public Interest Litigation (PIL) filed in the Supreme Court challenges the execution of death sentence by hanging, which the petitioner describes as “barbaric, inhuman and cruel,” as well as violative of Article 21 of the Constitution.
The petitioner, advocate Rishi Malhotra, has challenged the validity of Section 354(5) of the Code of Criminal Procedure which says that "when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead".
The petition, a copy of which is with Live Law, quotes the 187th report of Law Commission from 2003 which categorically opines that ‘hanging’ causes intense physical pain and torture.
It refers to the elucidation by ‘Warden Duffy of San Quentin’, a higher security prison in the USA, to describe the process of hanging:
“The day before an execution prisoner goes through a harrowing experience of being weighed, measured for length of drop to assure breaking of the neck, the size of the neck, body measurements etc. When the trap springs he dangles at the end of rope. There are times when the neck has not been broken and the prisoner strangles to death.
His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken and the rope many times takes large portion of skins and flesh from the side of the face that the noose is on.
He urinates, he defecates and dropping fall to the floor while witnesses look on and at almost all executions one or more faint or have to be helped out of the witness room. The prisoner remains dangling from the end of the rope from 8 to 14 minutes before the Doctor, who has climbed up a small ladder and listen to his heartbeat with a stethoscope, pronounces him dead.
A prison guard stands at the feet of the hanged person and holds the body steady, because during the first few minutes there is usually considerable struggling in an effort to breath.”
If the drop is too short, the petition explains, the person will strangulate to death in a slow and agonising manner. If the drop is too long, the head would be torn off.
Malhotra argues that the Section 354(5) of the CrPC is violative of Article 21 of the Constitution that guarantees right to life with dignity till natural end of the life.
Saying that the execution of death sentence by hanging is discriminatory and violative of Article 21, the petitioner contends that the right to life with dignity also implied a dignified procedure for death.
The petition refers to the apex court’s judgement in Deena vs Union of India, which says:
"The act of the execution should be as quick and as simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner's apprehension, should produce immediate unconsciousness passing quickly into the death, should be decent and not involve any mutilation."
Referring to the procedure as laid down in the Punjab and Haryana Jail Manual, the PIL says that the entire procedure was painful and violative of Article 21 of the Constitution. The 1996 judgment in the case of Gian Kaur Vs. State of Punjab is mentioned, which says:
“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.”
Malhotra also states that article 354(5) of the CrPC is also violative of the resolutions adopted by the United Nations Economic & Social Council (ECOSOC). “Where Capital punishment occurs it shall be carried out so as to inflict minimum possible suffering,” reads Safeguard number 9.
Malhotra has referred to an earlier Law Commission report to buttress his position that execution by hanging was painful, brutal and violative of Article 21 of the Constitution.
Referring to the Army Act, Air Force Act and the Navy Act, under which court-martial authority had the discretion to order death by shooting, the petitioner suggests that under the law there were other ways of putting a death row convict to sleep.
The methods suggested by Malhotra as more humane are electrocution, shooting or lethal injection, which were also noted by the Law Commission’s 187th report.
All three methods were compared by the Law Commission, which the petition presents in the following table.
(With IANS inputs)