New Delhi: The Supreme Court on Wednesday, while hearing a PIL seeking to replace hanging as the sole method of executing death row convicts, observed that the “government is not ready to evolve”.
The division bench of justices Vikram Nath and Sandeep Mehta has posted the matter for further hearing on 11 November.
The petition, filed by advocate Rishi Malhotra in 2017, recommended lethal injection—a method commonly used in the US. He argued that the traditional method of execution by hanging is “extremely painful, inhuman as well as cruel, and the entire process takes about 40 minutes.” There have been several hearings since 2017, the latest one being in October this year.
Capital punishment in several countries
Lethal injection is an active form of euthanasia, where drugs are administered to cause death. It is a process primarily used for capital punishment in the United States of America, China, Vietnam and several other countries.
In the nineteenth century, lethal injection was first proposed as an alternative to death by hanging. Like Malhotra’s plea, back then too, a section of experts and thinkers had advocated chemicals as a more “humane” way of ending life. However, the idea wasn’t brought into practice and execution by the electric chair continued.
In the 1970s, the debate was revisited when a former doctor of the Oklahoma state medical examiner, Dr Jay Chapman, suggested the use of lethal injection. In 1977, the state of Oklahoma adopted this method. But it was used for the first time in 1982, in Texas, for executing Charles Brooks Jr, who had committed a murder. Since then, this has become a more common method of capital punishment in the country.
Apart from this, electrocution, gas chamber, hanging and firing squad are other methods practised in the US. In some US states, the prisoners are given a choice to pick a method of ending his or her life.
Till now more than 1,500 convicts have been executed in the US from 1976 to 2024. Of which, 1,413 were administered lethal injection.
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Should be administered in specific order
A medical personnel is assigned to give the drugs in a specific order. The first drug, a sedative, would be given ensuring the inmate feels no pain. It is followed by a paralysing drug pancuronium bromide and lastly, potassium chloride is administered in large enough doses that gradually stops the heart. The entire procedure takes less than 10 minutes.
All three drugs have to be given in large enough quantities. Activist groups in the US have cited that if sedatives are not injected correctly, the other two drugs, pancuronium bromide and potassium chloride, could make the process painful and difficult. The sedatives can cause intense pain, while the other two are strong enough to jolt the inmates awake. Witnesses to these executions have reported incidents of inmates’ eyes opening, gasping for air and sometimes speaking about the pain they are feeling.
Although the US top court has upheld the use of lethal injection, it continues to get challenged by individuals. In a case from 2015, where inmates of Oklahoma sued the government, claiming that the process is painful, cruel and unusual. They called it unconstitutional. The supreme court in Glossip et al. v. Gross et al. gave the judgment in favour of the state.
The country is now facing a severe shortage of the drugs needed to perform executions, which has resulted in “the cheap” way of killing an expensive one. The only company in the US, Hospira, which was authorised to manufacture sodium thiopental (a sedative), has stopped manufacturing it, citing moral concerns over its use in lethal injections.
Battle in India
In his nine-year-long legal battle with the judiciary, Malhotra has continued to argue that death by hanging has prolonged pain and suffering. He further argued that lethal injection is being practised in 49 out of 50 states in the US.
Malhotra’s plea was the first one to challenge the method of execution by death by hanging legally in the country. The petition also challenged Section 354(5) of the Code of Criminal Procedure (CrPC), which states that a person sentenced to death must be hanged by the neck till he is dead. Malhotra, in his petition, terms this clause as unconstitutional and inconsistent.
He argues the right to die by a dignified procedure of death as a fundamental right as guaranteed under Article 21.
He cites the top court verdict on the Gian Kaur case. In the 1996 case, Kaur and her husband Harbans Singh were charged with abetting the suicide of their daughter-in-law under Section 306 of the Indian Penal Code (IPC). Kaur later challenged the conviction by citing P. Rathinam v. Union of India (1994), which said the right to die is part of the right to life (Article 21). However, the Supreme Court rejected the argument and overruled the 1994 verdict in P. Rathinam v. Union of India (1994) case. Malhotra stated that Section 354 (5) contradicts the verdict of the Supreme Court in the Gian Kaur case.
(Edited by Saptak Datta)