SC: Can courts direct less painful form of execution?

The Supreme Court on Thursday questioned whether it falls within the domain of a constitutional court to decide if a less painful and more humane method of execution could replace hanging, even as the Union government told the court that the issue is under active consideration by a committee constituted at the highest level.

- Utkarsh Anand

A bench of justices Vikram Nath and Sandeep Mehta acknowledged that the death penalty has consequences not only for the condemned prisoner but also for those tasked with carrying it out, including the hangman, but expressed reservations about whether the judiciary could direct the executive to alter the statutorily prescribed mode of execution.

“The question is who should decide all this,” observed the bench during the hearing, even as it noted the psychological impact on the person executing the sentence and those witnessing it.

The court was hearing a petition filed by senior advocate Rishi Malhotra, appearing in person, challenging the constitutionality of execution by hanging under Section 354(5) of the Code of Criminal Procedure, now reflected in Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which mandates that a death sentence be carried out by hanging.

Arguing that hanging is an archaic and painful method of execution, Malhotra submitted that the Supreme Court has repeatedly held that the right to also encompasses the right to die with dignity.

“Lethal injection is more dignified and less painful. Like in the Arms Act and the Air Force Act, a condemned prisoner should be given a choice,” Malhotra told the bench, relying on Law Commission reports and past judgments of the Supreme Court.

When Malhotra urged the court to either quash or read down the statutory provision prescribing hanging, the bench flagged the central legal issue:

“Whether this court can direct the government to frame a policy? That is the legal question before this court.”

The bench asked Malhotra to file detailed written submissions, indicating that the matter raises complex constitutional and institutional questions.