The Supreme Court recently passed an order rejecting a petition seeking to replace death by hanging with other “less painful” methods such as lethal injection. Upholding the constitutional validity of capital punishment by hanging, the Supreme Court clarified that hanging would remain the method of execution in the country for now. A bench comprising Justices Vikram Nath and Sandeep Mehta dismissed a petition seeking to adopt an alternative method of execution that would cause less pain to the convicts and protect their dignity. The Supreme Court also rejected the plea to refer three earlier judgments on the issue to a larger bench, observing that there was no sufficient basis for doing so.
The petition, filed by lawyer Rishi Malhotra, suggested alternatives to hanging, such as lethal injection, shooting, electrocution and the gas chamber, as methods that could cause death within a few minutes. The public interest litigation (PIL) described hanging as extremely painful, inhuman, and cruel. The petitioner sought a declaration that the imposition of the death penalty by hanging under Section 354(5) of the CrPC was unconstitutional and that the right to a dignified death should be recognised as a fundamental right under Article 21 of the Constitution. The petition also stated that it takes nearly 40 minutes to declare a person dead after hanging, while the process is completed in about 5 minutes through shooting or lethal injection. Malhotra also cited a United Nations resolution stating that, where the death penalty is imposed, it should be carried out in a manner that inflicts the least possible suffering.
The court added that its judgment is not the final word on the subject and that the issue could be examined again in the future if compelling scientific evidence emerged in support of alternative methods of execution. The court clarified that the dismissal of the writ petition should not be understood as foreclosing future constitutional scrutiny if compelling scientific, medical or empirical evidence emerged to demonstrate that the factual and scientific basis of the decision in Dina had been displaced by subsequent developments. The court also observed that the Central government could, if it wished, constitute a committee of experts to conduct a comprehensive review of alternative methods of carrying out the death penalty.
In recent years, Parliament has expanded the scope of offences punishable by death. The Terrorist and Disruptive Activities (Prevention) Act (TADA), which was first enacted in 1985 and re-enacted in 1987, empowered special courts to impose the death penalty for certain broadly defined “terrorist” acts. These courts followed special procedures in which the rights of the accused are significantly curtailed. Despite Parliament’s decision allowing TADA to lapse in 1995, a large number of detainees remained subject to the Act pending completion of their trials. Thus, a person charged with an offence under TADA before 1995 would continue to be tried under its laws and procedures, and could be sentenced to death if convicted. Additionally, Parliament was considering a new piece of legislation – the Prevention of Terrorism Bill – which would reintroduce many aspects of the TADA regime.
The use of the death penalty has also been extended through other legislation. In 1987, the government passed the Commission of Sati (Prevention) Act, which provides for the death penalty for any person who directly or indirectly abets the commission of Sati. In December 1998, the Narcotic Drugs and Psychotropic Substances (Amendment) Act introduced the death penalty for financing or engaging in the production, manufacture or sale of specific quantities of narcotic or psychotropic substances following a previous conviction. In 1989, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act introduced the death penalty for fabricating or providing false evidence leading to the conviction or execution of an “innocent” member of a Scheduled Caste or Scheduled Tribe.
In April 2000, the government announced that it would consider imposing the death penalty or life imprisonment for certain serious offences. Under Section 376E of the Indian Penal Code (IPC), life imprisonment was prescribed for the commission of a repeat rape offence following a previous conviction. Section 376A of the IPC also provides for life imprisonment or the death penalty in cases where an offender, while committing rape, caused injury to the victim that resulted in the latter’s death.
The Supreme Court, in a series of decisions, has held that special reasons necessary for imposing the death penalty must relate not to the crime but to the criminal. The death penalty should be awarded in the rarest of rare cases, particularly those involving threats to the security of the state, society and public order, such as the 2001 Parliament attack and the terrorist attacks on Mumbai’s Taj Hotel in the year 2008.
The CrPC was re-enacted in 1973, and Section 354(3) required a judgment recording a conviction for an offence punishable with death to state special reasons for imposing such a sentence. The reason was that India was a signatory to the International Covenant on Civil and Political Rights, which was a significant step in the international debate on the abolition of the death penalty. Thus, the death sentence became an exception rather than the rule in cases of murder. The decision in Maneka Gandhi v. Union of India established that every law for punitive detention, both on procedural and substantive aspects, must pass the test of reasonableness on a collective reading of Articles 19, 14 and 21.
The aforesaid decisions and other judgments of the Supreme Court signify that the decision to abolish or retain the death penalty as well as to effect any change in the method of execution rests upon the Central government. Such action by the Centre may involve amending the existing law or forming a committee of legal experts to recommend an alternative method of execution.
By
Kanak Sarma
(The author is a retired District and Sessions Judge)