Very recently, the Supreme Court of India in a path-breaking order directed the Union Government to adopt alternative methods regarding execution of death sentence and not by the way of ‘hanging’ by the neck till he is dead which is the prevalent practice since the days of British rule.
The court gave this direction in the wake of a Public Interest litigation (PIl) filed by advocate Rishi Malhotra. The court has expressed its view that it does not favour the execution of sentence of death by the process of hanging of a person till he is dead, as is being done today in respect of a death row convict, waiting to go to the gallows.
The court is quite akin with the view of the petitioner that the process of execution by hanging gives untold pain and suffering to the condemned prisoner before his death. It was pointed out to the court that in civilized countries like America, England and elsewhere in the western world, the sentence of death is executed by electric shock or by administration of lethal injection to the convict.
Of course, in countries like Iran and Sudan there is practice of throwing the convict from a very high place so as to execute sentence of death. Undoubtedly such a practice is barbarous, ghastly and it is a degrading human treatment, throwing all cannons of ethics, morality and human consideration to the melting pot.
In this backdrop, as a matter of fact, in the new millennium in a country like India, the largest democracy of the world, the practice of executing death sentence awarded to a convict by the process of hanging on his neck till he is dead is certainly against all norms of humanity.
It is gratifying that the word ‘Right to life’ employed in Article-21 of the Constitution is held to live with dignity as ruled by the Supreme Court in a number of judgments like the case of Maneka Gandhi, Charles Sobharaj and Sunil Batra case. Therefore according to the dicta of the apex court, while amplifying and enlarging the ambit of Article-21, the law is set at rest that right to life means to live with dignity. If this is the position as enshrined in the constitution in fundamental rights chapter of citizen, right to life also means right to die with dignity. Article – 21 speaks in laudable terms that “no person shall be deprived of his ‘life’ or ‘personal liberty’ except according to the procedure established by law”.
The Supreme Court in the year 1978 employed the doctrine of ‘due process of law’ of the American constitutional system while interpreting Article – 21 in the famous case of Maneka Gandhi popularly known as passport impounding case.
The court enlarged the scope of word ‘procedure’ as laid down in Article – 21 which means ‘just, proper and reasonable procedure’. Therefore the question is whether hanging of a person by his neck regarding execution of death sentence passed on him is a just, proper and reasonable procedure and does it answer the test of reasonableness of law.
It is worthy of mention that the Sessions Judge while passing death penalty under Section-354(5) of code of criminal procedure while issuing warrant to the jail authority, direct that the condemned prisoner be kept in safe custody until further orders.
It is worthy of mention that death sentence is required to be confirmed by the High Court as mandated by Section – 366 of CrPC.
After receipt of the confirmation order, the sessions court issues ‘warrant of execution of sentence of death’ to the jail superintendent according to Section – 413 and 414 CrPC where he is authorized and empowered to hang the convict on his neck till he is dead and to return the warrant to the court after its due execution.
Significantly, the law commission in its 187th report to the Government has mentioned that many countries of the world in the meantime have abolished capital punishment i.e. death penalty and in country like USA there is execution of death sentence by way of electric shock and by administering poisonous injection on the convict.
In any view of the matter the ‘State’ cannot be and should not be revengeful towards its citizen.
Therefore, the procedure provided in law to execute death sentence should be on human consideration, compassion and respect for human rights which is available to a person till the time of he is death.
Taking all these aspects into anxious consideration, it was submitted before the Supreme Court that the present method of execution of death sentence is absolutely painful to the convict and it is also degrading human treatment. It was argued that the prisoner should be allowed to die peacefully.
In conclusion, the order of the Supreme Court asking the Union Government to find out alternative method is a welcome step which would open a new vista in the criminal jurisprudence regarding execution of death sentence on the larger canvas of humanity.
(The writer is a former Special Judge, CBI and lives in Bhubaneswar, M: 9437022723)