Hanging as a Constitutional Mode of Execution

Context: The Supreme Court upheld the constitutional validity of execution by hanging, rejecting a PIL that challenged it as cruel and violative of the right to dignity under Article 21.

About Hanging as a Constitutional Mode of Execution:

What it is?

• Execution by hanging is the statutory procedure prescribed under Section 393(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (formerly Section 354(5) of the CrPC, 1973), which directs that a condemned prisoner be hanged by the neck till he is dead.
• Designed on the long-drop method, it aims to cause instant unconsciousness and rapid death via cervical vertebra fracture (fracture-dislocation at C2–C3), functioning as India’s primary legal method for executing capital sentences.

Grounds of the Challenge Against Hanging:

• Violation of Right to Die with Dignity (Article 21): The petitioners argued that fundamental rights and human dignity do not cease at the gallows, asserting that the State is constitutionally bound to adopt the least painful and most humane method available.
• Lack of Guaranteed Instant Death: Petitioners relied on forensic evidence (such as a historical study of 34 executions in England) showing the intended hangman’s fracture occurred in only 3 cases, with several dying slowly from asphyxiation.
• Inherent Mechanical Unpredictability: Calculating the drop height based on weight is prone to physical error; too short a drop leads to prolonged strangulation, while too long a drop risks decapitation.
• Severe Psychological & Physical Trauma: The preparatory procedures and physical agony associated with the gallows were characterized by petitioners as cruel and degrading.
• Evolution Beyond Colonial-Era Practices: The petition highlighted that hanging, codified in 1861 under British rule, lags behind modern medical advancements such as intravenous lethal injections.

Why the Supreme Court Upheld Hanging?

• Reaffirmation of the Deena v. Union of India (1983) Precedent: A two-judge bench held that the petitioner failed to place material sufficient to displace the 3-judge bench ruling in Deena, which established that hanging causes the least possible pain when properly administered.
• Legislative Reaffirmation in BNSS (2023): The Court noted that Parliament consciously retained hanging under Section 393(5) of the BNSS while overhauling criminal laws, reflecting legislative intent.
• Absence of Proven Superior Alternatives: The bench observed that alternative execution methods have not conclusively demonstrated a distinct medical or humane advantage over hanging.
• Documented Failures of Lethal Injections Abroad: The Union highlighted that lethal injection has a well-documented history of botched executions, vein-access failures, and prolonged agony in jurisdictions like the United States.
• Decorum and Decency in Execution: The Court reaffirmed that hanging satisfies the constitutional mandate of executing a judicial sentence with administrative certainty, decency, and without unnecessary brutality.

Alternative Modes & Law Commission Views:

• 187th Law Commission Report (2003): Under Justice M. Jagannadha Rao, the Commission recommended amending the law to provide lethal injection as an alternative mode, allowing the convict a choice of execution method.
• Military Law Precedents (Shooting by Firing Squad): Under the Army Act, 1950, Navy Act, 1957, and Air Force Act, 1950, court-martial death sentences can be carried out either by hanging or by shooting.
• Recommendatory Nature of Law Commission: The Supreme Court reiterated that Law Commission reports are advisory and cannot supersede statutory provisions enacted by Parliament.
• International Divergence: While several retentionist nations have transitioned to lethal injections or firing squads, others face severe global shortages of lethal execution drugs and rising constitutional litigation over botched protocols.

Way Ahead:

• Room for Future Judicial Scrutiny: The Supreme Court explicitly clarified that its judgment does not permanently close the issue if new, compelling empirical or medical evidence emerges.
• Executive Examination of Alternatives: The Union Government may constitute an expert multidisciplinary committee (comprising criminologists, forensic pathologists, and bioethicists) to study less painful execution technologies.
• Drafting Comprehensive Jail Manual Safeguards: Standardize equipment calibration, drop-chart measurements, and executioner training across all state prison manuals to eliminate risks of execution error.
• Parliamentary Deliberation on Dual-Option Models: Parliament can debate introducing lethal injection as a statutory alternative alongside hanging, as suggested by the 187th Law Commission report.

Conclusion:

The Supreme Court’s judgment reaffirms that while capital punishment must be administered with dignity, replacing hanging requires conclusive empirical proof of a superior, painless alternative. By anchoring its reasoning in judicial precedent and recent legislative reaffirmation in the BNSS, the Court upheld the state’s existing execution framework. However, by leaving the door open to future scientific review, the judiciary has preserved space for constitutional law to evolve alongside advancements in medical science.