Instead, they favour options like electric chair, lethal injection and firing squad.
In the backdrop of the death sentence for 26/11 convict Mohammad Ajmal Amir Kasab and the mercy petition of Parliament attack convict Afzal Guru, India’s judges are divided on the efficacy of executing a death sentence by hanging.
At least 80% of judges are in favour of amending section 354 (5) of the Code of Criminal Procedure that provides for execution through “hanging by neck” till a condemned person “is dead”. They feel alternate methods like lethal injection should be looked into. It is learnt that the Union home ministry and the law ministry are seized of the judges’ concerns.
A source said that in 2003, the then law commission chairman M Jagannadha Rao submitted a report to the then law minister Arun Jaitley on the legality of execution by hanging, but didn’t mention whether some other method is advisable. By a 4:1 judgment, the Supreme Court (SC) in 1982 upheld the constitutionality of the death sentence and also found that it should be executed by the pull of a rope.
The dissenter, justice PN Bhagwati, detailed a well-researched judgment that came two years after the majority judgment was pronounced, terming hanging deplorable and indecent, and the process of awarding the capital punishment by the SC “freakish”. He also said that a death sentence should be upheld by a bench unanimously.
It may be recalled that the law commission sought the response of various judicial forums and the armed forces on the mode of execution and whether a death convict should have the right to appeal before the SC. Judges of subordinate and military courts said once a death sentence is awarded, the convict should not have the right to challenge it before the SC. The commission rejected the military plea on death by shooting from point-blank range.
The government has not made any move since the commission forwarded its report to Jaitley, who submitted it to the then prime minister Atal Behari Vajpayee. As far as the Congress-led UPA government is concerned, it does not seem anxious to look into the commission’s recommendations as it is felt any change in the existing mechanism would involve an amendment in the law.
Nevertheless, the government is believed to have examined the data regarding public views on capital punishment.
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