In a significant development, the Supreme Court has prompted the Union government to consider offering condemned prisoners a choice between hanging and lethal injection for their execution. The court noted that methods of carrying out the death penalty have evolved considerably worldwide since India codified the practice of death by hanging during the colonial era.
A bench comprising Justices Vikram Nath and Sandanth Mehta made these observations while reviewing a petition challenging the constitutional validity of the current law, which mandates execution by hanging. This provision, found in Section 354(5) of the Code of Criminal Procedure, has been replaced by a similar one in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
The court suggested to the government’s counsel that the existing method is outdated and that the suggestions put forth by the petitioner, advocate Rishi Malhotra, should be considered. Malhotra argued that lethal injection is a more dignified and humane method of execution compared to hanging, which he described as excruciating and potentially prolonged.
He highlighted that over 40 countries have adopted lethal injection, citing that hanging can cause a body to linger for over half an hour. In response, the government’s counsel mentioned a May 2023 affidavit indicating the formation of an expert committee to examine less painful execution methods. The hearing was adjourned to November 11, with the court asking the government to provide an update on its review.
Previously, the Union government had maintained that hanging is the safest and quickest method. The affidavit had also raised concerns about lethal injection, citing U.S. data on botched executions and the potential reluctance of medical professionals to participate. The government had also argued that making the execution process too ‘comfortable’ could undermine its deterrent effect, while also stating openness to reviewing the system.
The court’s examination is also informed by its previous observations that earlier judgments upholding hanging did not adequately consider proportionality or compare empirical data on pain and suffering across different execution methods. Malhotra’s petition argues that hanging constitutes cruel, inhuman, and degrading treatment, violating the right to life with dignity under Article 21 of the Constitution. He also referenced international practices and a Law Commission report recommending the replacement of hanging.