Code of Criminal Procedure, 1973 – s.354(5) – Present writ petition in form of a public interest litigation u/Art.32 of the Constitution of India was filed challenging the constitutional validity of s.354(5), CrPC (corresponding to s.393(5) of the Bhartiya Nagarika Suraksha Sanhita, 2023) insofar as it prescribes hanging as the sole method of execution: Held: Constitutional validity of s.354(5) of the CrPC insofar as it prescribes hanging as the only mode of execution of death sentence has already been examined and settled by a three-Judges Bench of this Court in Deena hence, the scope of interference by a Bench of two-Judges on the very same issue is extremely limited – No case made out for referring the decision of the three-Judges Bench in Deena to a larger Bench for reconsideration of the constitutional validity of s.354(5) of the CrPC/s.393(5) of the BNSS – After a threadbare analysis of the scientific material and a wholesome consideration of the mechanism of the system of hanging, the three-Judges Bench in Deena held that the preliminary procedures are simple and quick; the chances of accident during hanging is minimal and; satisfies the constitutional obligation of the State u/Art.21 to ensure that the sentence is carried out with decency, dignity and without unnecessary brutality – Neither the petitioner nor the impleader has placed on record any material capable of casting doubt upon the view so expressed by the three-Judges Bench in Deena – Petitioner has failed to place any material before this Court which would justify doubting the correctness of view taken in Deena or to demonstrate that the aforesaid view has lost its efficacy or stands diluted by subsequent constitutional, scientific or empirical developments – No compelling reason to refer the correctness of three-Judges Bench decision in Deena to a larger Bench – Principle of Stare Decisis. [Paras 58-60, 63] Death Sentence – Hanging as a mode of execution vis-à-vis lethal injection – Much emphasis was laid by the petitioner that hanging as a mode of execution is physically painful and physiological traumatic to the condemned prisoner: Held: Such argument was not supported by any unimpeachable scientific or empirical evidence – Petitioner advanced a contention that intravenous lethal injection is a more scientific, humane and painless method for execution of a death penalty –The impleader, advanced a contrary submission by placing material before this Court highlighting the uncertainty and inconsistencies associated with execution by lethal injection – The material relied upon by the impleader serves to underscore the inherent complexities and practical difficulties associated with lethal injection and reinforces the necessity of subjecting any proposed alternative method of execution to rigorous constitutional scrutiny before its adoption – Consequently, there is no concrete scientific material on record to satisfy the Court that execution by lethal injection is demonstrably superior or more humane method of carrying out a sentence of death – The available material does not establish that lethal injection has any added advantage over hanging as a mode of execution of a death sentence – Hence, the argument advanced by the petitioner that lethal injection is a better and more humane mode of execution of the death sentence is totally unconvincing. [Paras 53, 54, 62]
Principle of Stare Decisis – Issue settled by a three-Judges Bench of this Court – Scope of interference by a Bench of two-Judges on the very same issue is extremely limited: Held: Constitutional validity of s.354(5) of the CrPC insofar as it prescribes hanging as the only mode of execution of death sentence has already been examined and settled by a three-Judges Bench of this Court in Deena hence, the scope of interference by a Bench of two-Judges on the very same issue is extremely limited – Principle of Stare Decisis mandates that a bench of lesser number of Judges should not depart from the ratio of a decision rendered by a larger bench, which has withstood the test of time for more than four decades – Unless it is demonstrated that the view so taken in the earlier decision has been rendered unconstitutional owing to some significant constitutional development, legislative amendment or cogent scientific and empirical evidence, there would hardly be any justification for a Bench of two-Judges to take a different view – Deena has further been considered and approved by a Constitution Bench of this Court in Shashi Nayar hence, the scope of interference by this Court becomes even more restricted. [Paras 48, 49, 51]
Law Commission Reports – Reliance upon – Observations therein are recommendatory in nature – Petitioner contended that the Law Commission in its 187th report submitted in the year 2003 observed that execution by hanging is accompanied by intense torture and pain:
Held: Observations made in the Law Commission Report are simply recommendatory in nature – It may reasonably be presumed that the legislators and the policy makers must have considered the 187th report of the Law Commission in its entirety and have thought fit not to amend the mode of execution of death sentence in the newly drafted BNSS which replaces the CrPC. [Para 61]
Death Sentence – Alternative mode of execution – Petitioner also argued as regards the alternative mode of execution of death sentence provided under the military statutes viz. Army Act, 1950, Air Force Act, 1950, Navy Act, 1957, wherein, death by shooting is recognized as an alternate mode of execution: Held: Said argument is irrelevant and unconvincing because the statutes in which shooting is provided as a mode of execution operate in a distinct field and govern a separate class of persons subject to military law – These instances cannot be relied upon to test the constitutional validity of the provisions governing the execution of a sentence of death imposed upon civilians under the ordinary criminal law. [Paras 55, 56]
Capital Punishment – Jurisprudence of – Historical development of the method of its execution, discussed. [Paras 4-24]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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