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On A Less Painful Death

The Supreme Court (SC) has asked the Government of India to consider a less painful alternative of death, instead of hanging. On March 21, a SC Bench, led by Chief Justice of India (CJI) Dhananjaya Yeshwant Chandrachud, gave this instruction to the Government, reopening a decades-old debate over whether there could be a more humane and dignified way of executing the capital punishment. The Bench also asked the Government to set up a Committee of Experts in order to examine the issue.

R Venkataramani, the Attorney General (AG) of India, appeared in the Apex Court on behalf of the Indian Government during the hearing of a Public Interest Litigation (PIL) in this regard filed by Lawyer Rishi Malhotra in 2017. Lawyer Malhotra had sought to abolish the present practice of executing a death row convict by hanging, and to replace it with less painful methods, such as “intravenous lethal injection, shooting, electrocution or gas chamber“. It may be noted that PIL is a petition that can be filed by any member of the Indian society for any matter of public interest, for redress of public wrong or injury.

The SC Bench, comprising of CJI Justice Chandrachud and Justice Pamidighantam Sri Narasimha, reportedly asked the Attorney General to gather more information about the impact of death by hanging, pain caused, the period taken for such death to take place, and availability of resources to effectuate such hangings.

During the hearing, the Bench observed: “We cannot tell the Legislature that you adopt this method. But you (PIL petitioner) can certainly argue that something may be more humane… In lethal injections too, the person really struggles. On what basis does the Law Commission say that lethal injection is not a lingering death. There have been great divergences on what chemicals are to be used too. What research is there?” It also said: “We can have perspective on alternate methods (for executing the death row convicts). Or can we see whether this method (of hanging the convicts) satisfies the test of proportionality for it to be upheld? We must have some underlying data before we relook at it. You (Attorney General) can come back to us by next week and we can formulate a small order and constitute the committee. We can hear you on its remit (scope and ambit of the committee).” Meanwhile, the Bench agreed that there should be a more humane and dignified way of executing the death penalty or a noble mode of capital punishment.

Justice Chandrachud and Justice Narasimha stressed that the Indian Government could collect data regarding alternate methods of executing the death penalty from the National Law Universities, All India Institute of Medical Science (AIIMS), eminent doctors and scientists, and also from foreign experts. It may be noted that a SC Bench, led by the then CJI Dipak Misra, had passed a detailed order on this PIL on October 6, 2017, observing that “the Legislature can think of some other mode by which a convict who, in law, has to face the death sentence should die without pain. It has been said for centuries that nothing can be equated with painless death, and that is, possibly, the dignity in death“. The Bench had also sought the assistance of the Attorney General to help the Court in this matter. Six years later, the SC directed the Government of India to find an alternative method of execution.

Incidentally, there has been a debate across the globe whether the death penalty should be retained as the maximum punishment for committing a heinous crime. Thirty-six states in the US have already abandoned the practice of executing convicts by hanging.

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