'Govt Not Ready To Evolve': Supreme Court On Union's Opposition To Alternatives To Hanging For Death Sentence

In the PIL seeking abolishment of death-by-hanging, the Supreme Court today lamented the Union's opposition to a suggestion that death row convicts be given an option to choose lethal injection as mode of execution.

It was orally expressed that the Union government is not ready to evolve alongwith changes that have taken place over a period of time.

A suggestion was placed before a bench of Justices Vikram Nath and Sandeep Mehta that the old method of execution by hanging can be replaced with use of lethal injection. Or at least, an option can be given to a condemned prisoner to choose between hanging and lethal injection. However, when it was pointed out from the Union's counter affidavit that giving an option to a convict may not be "feasible", Justice Mehta remarked,

"Problem is, the government is not ready to evolve...it's a very old procedure, things have changed over a period of time."

At this point, Senior Advocate Sonia Mathur, for the Union, highlighted the Union's averment in its counter affidavit that ultimately the issue raised involves a policy decision. The matter was then adjourned until November 11.

To recap, the PIL seeks to abolish the present practice of executing a death row convict by hanging which involves “prolonged pain and suffering”. It prays that the mode of execution be replaced with intravenous lethal injection, shooting, electrocution or gas chamber in which a convict could die in just a matter of minutes.

In March 2023, the Court had pondered forming an expert committee and asked Attorney General R Venkataramani to find out data on the impact of death by hanging, pain caused, the period taken for such death to take place, and availability of resources to effectuate such hanging by death.

In May, the AG informed the Court that he had recommended the formation of an expert committee to decide upon whether there existed better alternatives to execute the death penalty. He added that the government had been mulling over the members for the said expert committee.

During today's hearing, Advocate Rishi Malhotra (petitioner) advocated for the adoption of use of lethal injection in place of hanging as mode of execution in death penalty cases. He informed the Court that 49 out of 50 states in USA have adopted the same. "Atleast give an option to the condemned prisoner whether he wants hanging or lethal injection...lethal injection is quick, humane and decent, as opposed to hanging, which is cruel, barbaric and lingering...for 40 minutes, the body lingers on the rope", Malhotra submitted, while highlighting that in the armed forces, option is given.

Background

The petition was filed seeking the following reliefs:

1. Declare provisions contained under Section 354(5) CrPC as ultra vires of the Constitution for being discriminatory and violative of Article 21 of the Constitution and also in contravention of the Constitution Bench judgment in Gian Kaur's case;

2. Declare right to die by a dignified procedure of death as a fundamental right (defined under Article 21 of the Constitution of India).

The petition states that while in hanging the entire execution process takes more than 40 minutes to declare prisoner to be dead, the shooting process involves not more than few minutes. In case of intravenous lethal injection, it's all over in 5 minutes.

The petitioner argues that execution as contemplated under Section 354(5) CrPC (hung by the neck till the person is dead) is not only barbaric, inhuman and cruel, but also against resolutions adopted by the United Nations Economic and Social Council (ECOSOC) that had categorically resolved that "where Capital punishment occurs, it shall be carried out so as to inflict minimum possible suffering".

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

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