NEW DELHI: The Supreme Court on Tuesday rejected the PIL seeking removal of the present mode of execution of death row convicts by hanging from the statute.
"We are not persuaded that a case has been made out for reference of the decision of the three-Judge Bench in Deena (Deen Dayal Upadhyay case) to a larger Bench for reconsideration of the constitutional validity of Section 354(5) of the CrPC/Section 393(5) of the BNSS," said a two-judge bench of the apex court headed by Justice Vikram Nath and Justice Sandeep Mehta.
The court thereby dismissed the petition filed by lawyer Rishi Malhotra, as it did not find any merit in the plea.
The bench, however, did not treat the dismissal as permanently foreclosing the constitutional question. It clarified that scientific and medical developments could alter the factual foundation on which the earlier judgment proceeded.
“The dismissal of the present petition must not be understood as foreclosing future constitutional scrutiny should compelling scientific, medical or empirical evidence emerge demonstrating that the factual and scientific basis on which the decision in Deena proceeded has been materially displaced by subsequent developments. Constitutional interpretation is organic and must remain responsive both to the evolution of constitutional opinion and to the advances in scientific knowledge," the bench said.
The petitioner, Malhotra, sought a direction that the SC should direct the government to adopt the use of lethal injection in place of hanging as mode of execution in death penalty cases.
He argued before 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. The 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 stated.
He sought to abolish the present practice of executing a death row convict by hanging which involves "prolonged pain and suffering". He sought 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.
On the other hand, the Central government had, in its counter affidavit, filed last year, submitted to the Supreme Court that hanging is far safer and quicker than lethal injection or firing squad in connection with a petition filed by a lawyer, seeking alternative way of execution other than hanging.
The Union further had stated that hanging as a mode of execution is easy to assemble. "It (Hanging) is quick and simple and free from anything that would unnecessarily sharpen the poignancy of the prisoner's apprehension. It is quick and certain means to execute the death penalty by hanging. Hanging eliminates the possibility of a lingering death," the Union of India in its counter affidavit told the apex court.
Malhotra in his plea sought directions to declare provisions contained under Section 354(5) CrPC (Code of Criminal Procedure), as hung by the neck till the person is dead, as ultra vires of the Constitution for being discriminatory and violative of Article 21 of the Constitution.
"Declare right to die by a dignified procedure of death as a fundamental right (defined under Article 21 of the Constitution of India)," he said in his PIL.
The petitioner argued before the apex court that execution by hanging is also against the 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".