The Supreme Court on Tuesday dismissed a plea seeking abolition of the practice of executing a death row convict by hanging and replacing it with methods such as intravenous lethal injection.

A bench of Justices Vikram Nath and Sandeep Mehta said the material placed before it does not establish that lethal injection has any added advantage over hanging as a mode of execution of a death sentence.

The bench said it was not persuaded that a case was made out for referring a 1983 decision of a three-judge bench to a larger bench for reconsideration of the constitutional validity of Section 354(5) of the Code of Criminal Procedure (CrPC).

 

Section 354(5) says that when any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.

“Before parting, we clarify that the dismissal of the present writ 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 (1983 verdict) proceeded has been materially displaced by subsequent developments,” the bench said.

It said constitutional interpretation is organic and must remain responsive, both to the evolution of constitutional doctrine and to advances in scientific knowledge.

The top court said its verdict would not preclude the Centre, should it consider it appropriate, from undertaking a comprehensive review of the existing method of execution through an expert body with a view to examine whether any alternative method of execution better serves the constitutional objective of minimising unnecessary pain while preserving the dignity of the condemned prisoner.

“Any such exercise would lie squarely within the domain of the Executive and the Legislature and may be undertaken as a matter of policy, in light of future scientific or technological developments,” it said.

The bench delivered its verdict on a plea, filed in 2017 by senior advocate Rishi Malhotra, seeking removal of the present mode of execution of death row convicts by hanging from the statute.

The top court noted that constitutional validity of Section 354(5) of CrPC insofar as it prescribes hanging as the only mode of execution of death sentence, was already examined and settled by the three-judge bench in the 1983 verdict.

“Hence, the scope of interference by a bench of two judges on the very same issue is extremely limited,” it said.

It said the entire scope and ambit of hanging as the mode of execution of a death sentence was exhaustively considered in the 1983 verdict with reference to foreign precedents, expert opinions and other scientific materials then available before the court.

The bench also noted that the 1983 verdict was further considered and approved by a Constitution bench verdict.

It said though much emphasis was laid by the petitioner that hanging as a mode of execution is physically painful and physiological traumatic to the condemned prisoner, such argument was not supported by any unimpeachable scientific or empirical evidence.

The bench said there was no concrete scientific material on record to satisfy it that execution by lethal injection was demonstrably superior or more humane method of carrying out a sentence of death.

Dealing with the contention that Law Commission in its 187th report submitted in 2003 had observed that execution by hanging was accompanied by intense torture and pain, the bench said “we may simply note that the observations made in the Law Commission report are simply recommendatory in nature”.

“It may reasonably be presumed that the legislators and the policy makers must have considered the 187th report of the Law Commission in its entirety and have thought fit not to amend the mode of execution of death sentence in the newly drafted BNSS which replaces the CrPC,” it said.

The bench said it finds merit in the submission advanced by Attorney General R Venkataramani that the petitioner has failed to demonstrate, by any credible material, even a single instance of a botched execution in India under the existing statutory framework.

“On the contrary, the material placed on record by the impleader itself demonstrates that in the United States of America, where lethal injection has been adopted in several States as a mode of execution of death sentence, there have been numerous botched executions,” it said.

The bench said the argument advanced by the petitioner that lethal injection was a better and more humane mode of execution was “totally unconvincing”.

In its verdict, the bench said legitimacy of death penalty has been debated over centuries.

“The issue is not one about the existence of the State’s power to impose capital punishment, which stands recognised in law, but the limits within which that power must operate,” the bench said.

It said the exercise of such power is necessarily conditioned by constitutional safeguards.

“The State, even when authorised to take life, cannot do so in a manner that is arbitrary, excessive, or incompatible with human dignity. The method of execution must therefore satisfy the constitutional requirements that it minimises suffering and preserves, to the greatest extent possible, the inherent dignity of the condemned,” the bench said.

It also noted that eight executions were carried out between 2001 and 2023 in India.