The Supreme Court on Tuesday dismissed a PIL challenging the constitutional validity of execution by hanging under section 354 of the CrPC or Section 393(5) of the BNSS, while clarifying that the issue may be constitutionally examined again if compelling scientific, medical or empirical evidence emerges in the future.
The petition, filed by advocate Rishi Malhotra under Article 32, specifically challenged Section 354(5) of the CrPC, which prescribed that when a person is sentenced to death, the sentence shall direct that the person be “hanged by the neck till he is dead.” The petitioner had made it clear that he was not challenging the imposition of the death penalty itself, which had been upheld by the Constitution Bench in Bachan Singh v. State of Punjab, (1980) 2 SCC 684, but was questioning hanging as the method of carrying out a death sentence.
The challenge was principally based on Article 21 and the right to dignity, with the petitioner arguing that the State’s power to execute a person must nevertheless be exercised through a method that causes the least possible pain and suffering. The plea also relied upon developments in science and alternative methods of execution adopted in other jurisdictions.
The constitutional validity of Section 354(5) had earlier been upheld by a three-Judge Bench in Deena alias Deen Dayal v. Union of India, (1983) 4 SCC 645. However, the Supreme Court had earlier observed at the outset of the present proceedings that constitutional interpretation is not static and that a provision upheld at one point in time could potentially require reconsideration in light of advances in science and changes in social understanding.
The Bench of Justice Vikram Nath and Justice Sandeep Mehta has now declined to refer Deena to a larger Bench. It held:
“
“In the wake of the discussion made hereinabove, we are not persuaded that a case has been made out for reference of the decision of the three-Judge Bench in Deena to a larger Bench for reconsideration of the constitutional validity of Section 354(5) of the CrPC/Section 393(5) of the BNSS.”
Importantly, however, the Court did not treat the dismissal as permanently foreclosing the constitutional question. It expressly recognised 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 Court also left open the possibility of executive reconsideration of the mode of execution. It clarified that nothing in its judgment prevents the Union Government, if it considers it appropriate, from constituting an expert body of specialists in law, forensic medicine, neuroscience, thanatology and allied disciplines to comprehensively examine the existing method of execution, and to examine whether an alternative method of execution could better achieve the constitutional objective of minimising unnecessary pain while preserving the dignity of condemned prisoners.