The Supreme Court on Tuesday dismissed a petition seeking to declare hanging unconstitutional and replace it with a more painless method of executing the death penalty in India.
A Bench of Justices Vikram Nath and Sandeep Mehta, hearing the plea in Rishi Malhotra v. Union of India, declined to refer the earlier three-judge Bench decision in Dina to a larger Bench for reconsideration of the constitutional validity of provisions prescribing hanging as the mode of execution.
However, the Bench clarified that its judgment does not permanently close the issue. It said the constitutional validity of hanging could be reconsidered in the future if compelling scientific, medical or empirical evidence demonstrates that the factual and scientific basis underlying the Dina judgment has been materially displaced by subsequent developments.
The Court emphasised that constitutional interpretation is an organic process and must remain responsive to developments in constitutional doctrine as well as advances in scientific knowledge.
It also observed that the Union government may independently undertake a scientific review of the existing method of execution. The Court said the government could constitute an expert body comprising specialists in law, forensic medicine, neuroscience, criminology and allied disciplines to examine whether an alternative method could better serve the constitutional objective of minimising unnecessary pain while preserving the dignity of condemned prisoners.
The petition was filed in 2017 by Senior Advocate Rishi Malhotra, challenging the constitutionality of Section 354(5) of the CrPC, now corresponding to Section 393(5) of the BNSS, which provides for execution by hanging until death.
Malhotra had argued that hanging was cruel and barbaric and that the right to life encompasses the right to die with dignity. The petition also proposed alternatives such as lethal injection, pointing out that several countries had moved away from hanging as a method of execution.
The Union government, represented by Attorney General R Venkataramani, had informed the Court earlier this year that the issue was being examined at the highest level.
The Bench also heard submissions from Project 39A, a criminal justice programme providing legal aid and representation to prisoners facing the death penalty. Senior Advocate Meenakshi Arora, appearing for the project, submitted that lethal injection had not proved to be a particularly successful alternative. She nevertheless supported the constitution of an expert committee to comprehensively examine the issue.
The Court ultimately dismissed the petition while leaving open the possibility of future constitutional scrutiny if significant scientific or medical evidence emerges warranting reconsideration.
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