DEENA@DEEN DAYAL ETC. ETC. v. UNION OF INDIA AND OTHERS

. 4& t19s41 i s.c.R. • · either electrocution or lethal gas. In all the· three methods the prisoner had to be restrained in some way or the-other prior to the execution but, in electrocution the execution is preceded by shaving _and hand_cuffing while, in lethal gas the prisoner has to he stripped of his clothes, except a pair of shorts, in order that pockets of gas - may not persist in the clothes. In adaition, a stethoscope head_ has to be strapped to the chest under the lethal gas method.

On the question of "certainty", the Commission observes in paragraph 729 of its Report that the equipment required for hangini: is· simpler than _that which is required for electrocution. or execution by lethal gas. The lethal chamber is a complicated piece of - c mechanism while the electric chair depends for its efficacy upon the supply of electricity which is usually taken from commercial sources. In fact, in the_ United. States, executions by electrocutions were occasionally delayed by failure of the power. The Commission· recorded its conclusion by saying that·neither electrocution nor"Jethal chamber had any advantage over hanging, in so far as the .D requirement of "certainty" is concerned.

In paragraph 732, the Commission deals with the third aspect, namely, "Decency" in execution of the death sentence. _It says that while considering this aspect it had kept two things in mind: Firstly, ---'<, , E the obligation which obviously rests on every civilised State to conduct its judicial executions with decorum, and, secondly, that judicial execution should be performed without brutality, that it should avoid gross physical violence and should not mutilate or dis- tort the body. The Commission records its conclusion by s'aying that in so far as the requirement of decency is concerned, _the other two methods have an advantage ·over hanging though, al) the three methods were now .used with all the decency possible in the circumstances.

The Commission records its final conclusion in paragraph 734 G of the Report by saying that after weighing all the factors carefully and bearing in mind·that the onus of proof was on the advocates of change, it could not recommend that either electrocution or gas chamber should replace ·hanging as a method of judicial execution : -In the matter _of humanity and certainty, the -advantage lay wi~h H tl\e system of hanging; in regard to ode aspect of the requirement of decency the other two methods were preferable. But, according to the Commission, that advantage could not be regarded as enough to turn the scale. -

bEENA v. UNION (ChandrachuJ, C.J.) 41 The counter-affidavit filed on behalf of the Government of India by Shri P.S. Anauthanarayanan, Under Secretary, Ministry of A Home Affairs, shows that the Director General of Health Services, who -is the highest adviser to the Government of India in these and allied matters, was consulted on the question whether the system of hanging which is prevalent in India for executing the death sentence should be changed. The D.G.H.S. advised as follows :- B "Subject :- Mode of ~nding the life of a convict sentenced to death.

Continuation this Directorate u.o. No. 3!·204/55- MI, dated the 10th April, 1956, on the above subject.' c This Directorate has .consulted the . Administrative Medical Officers, Chemical examiners, other criminologists and experts, etc., on the subject and the views expressed by them fall into the "followiug groups :- D (I) Those who consider the present method of hanging being the best ... Number 15

,_ (2) Those favouring Electrocution .•. Number 17 E ' (3) Those favouring Medication, etc. ... Number 3

Even though electrocution has been advo'cated as a desirable method by a considerable number of those consulted, it is not a method without its drawbacks in that death is stated in this case not to be . always instan· F taneous or even painless and that this method involves the setting up of a cllnsiderable mechanical outfit. From the replies received from various sources; we also find that those who can speak with the authority of experience and knowledge have spoken with conviction regarding judicial hanging, properly carried out, as being the quic· kest and least painful method. This is also the view of the Serologist and Chemical Examiner .to the Government of India, Calcutta and the majority view of the Central Medico-Legal Advisory Committee. We are inclined to • H agree with' this view and do not recommend any change in the present method of execution by judicial banging in the present state of scientifi~ knowledge.'·'

SUPREME COURT-REPORTS (1984) i s.c.R.

Paragraph 16 of the counter-affidavit says that the D.G.H.S. held to A the same view as recently as in February 1982.

The 35th Report of the Law Commission of India on Capital Punishment, dated September 30, 1967 deals with "Execution of Sentences" in Chapter XV. The Commission observes in paragraph· B 1097 of the Report that though hanging continued to be the most prevalent method for e~ecutlng the death sentence, the course of events showed that it was being slowly abandoned. Thus, while in 1930, 17 States in U.S.A. used to employ that method, only 6 retained itin 1967. Again, while it was in force in Yugoslavia before 1950, it was replaced by the firing squad in that year. c In paragraph 1098, the Law Commission deals briefly with the Report ,of ,the Royal Commission of England while in paragraph 1099, it discusses the Report <'f the Canadian Committee on the

... D same subject. It would appear from what the Law Commission· bas stated in this paragraph that the Canadian Committee considered • four different l'.!letbods of execution, namely, hanging, electrocution, gas-chamber and lethal injection. The last mentioned method was believed to ensure instantaneous and painless death, ·but it could only be accomplished by an intravenous injection requiring .skill and the Canadian Committee•considered that it would not be reasonable to expect"a medical doctor to perform a task so re,pugnant to the traditions of the medical profession: Moreover, an intravenous could not be administered unless the condemned person was entirely acquiescent., The Canadian Committee appears to have noted that hangings in Canada were not conducted with the same degree of pr;cision as in U.K., as a result of which it was difficult ·to know how the death was caused and whether the loss of consciousness had supervened instantane~msly. Holding on the basis of the evidence before it that hanging was regarded generally as an obsolete, if not a oarbarous ;,ethod, the Commjttee recomme_nded that hanging should be'replaced by electrocution. G In paragraphs 1101 to 1148 (pages 339 to 345), the Law Commission of India extracts the views which were expressed before· it as to the ideal method for executing tbe death sentence. Noting in paragraph 1149 that there was a considerable body of opinion which would like hanging to be replaced by something ''more I human, and more painless", the Commission says in paragraph 1150 that to a certain extent the matter was one of medical opinion. · The

DEENA v. uNION (Chandrachud, c.i.) 43 general view expressed before the -Commission was that a method _ which is certain, humane quick and decent should be adopted Jor A ex,ecuting the death sentence. The society _owed it to itself that the agony at the exact point of execution should be kept to the minimum. 0

-· But the Commission felt that it was difficult to express any positive opinion as to which of the three.methods-hanging, electrocution and· - - gas-chamber-satisfied these tests most; particularly when electrocution _ B ,,. and gas-chamber were untried in India. In paragraph JISI, the Commission records its conclusion by saying_: •

"We do not therefore recommend a change in the law on this point." c In other words, the recommendation -of the Commission was that death sentence should .be executed by ·the method of hanging prescribed in_ section 354(5) of the Criminal Procedure. Code, since there w<se no circumstances justifying its substitution by any 0ther method and since, no other method was shown ·to be more D v _ · satisfactory.

In Fel\ruary 1978, Dr. Hira Singh, Prison Adviser to the Naiional_Institute of Social Defence, submitted his opm1on to the Ministry of Home .Affairs, Qovcrnment of India, as follows : E "In ancient days the execution of death senience was often attended by cruel forms of torture and -suffering inflicted on the offender. With the passage of time, howe_ver, the methods of execution have undergone -various changes. The old practices such as beheading, - ~ dr~wing, stoning, impaling, precipitation ~rom a height, etc.; have been gradually replaced in· all civilised conn· tries by new methods of· hanging, electrocution, gas chamber and shooting.· These changes have. occured mainly on the premise that death penalty means simply the deprivation of life-and as such should be made as quicker and less painful as possible. · The old methods were considered inhuman.

· According to ,_the study on_ Capital Punishment H published by the United Nations in 1962, hanging remains the most frequent method of execution in various conn·

SUPREME COURT REI'ORTs [i984J i S.C.R.

A tries including. the United Kingdom and generally ,\ throughout the Commonwealth. In the United States it is no doubt losing ground in favour of electrocution and lethal gas. The modern method of hanging differs from its traditional form as it. involves an abrupt and immediate severance of the cervical vertebrae. The whole B process is carried out with· care and skill so as to avoid· any bungling and untoward incident. The State Jail ·y ' Manuals contain eleborate instructions on the arrange· mcnt · for. execution, inspection of gallows, testing of equipment and the manner of execution." /

c The Prison Adviser thereafter sets out. guidelines contained in the Model Prison Manual which have to be followed while executing the death sentence by the method of hanging. In paragraph 3 of his opinion he says that the chances of a mishap in the electrocution process cannot be eliminated altogether and that in the United States, D there have been occasions when the current failed to· reach the chair when the switch was engageJ. After describing the procedur~ ·which is adopted in the methods of electrocution, gas chamber and shooting, he says that there are cases on record where execution·s by . shooting were bungled by nervous firing squads. Dr. Hira Singh concludes: E' "The question of introducing electric chair in place of hanging as a mode of execution may be examined from the administrative as well as •humanitarian view-points. It is often argued that death by hanging takes lesser time . .F to execute tban the other modes, though it may not be invariably true. In any case electric chair has in no way proved to be mo~e efficient in reducing pain or suffering inflicted on the offender. In hanging the body is liable to be disfigured but in electrocution also the leg is some- times slightly burnt. Above all electrocution involves G much costlier equipment and operational preciseness than hanging. In view cif such considerations there seems to be no particular. advantage in switching over to the electric chair in the execution of death sentence even if such a system may outwardly look to be more sophisticated." H ,:rhe opinion of the Prison Adviser is at Annexure V to the counter-affidavit of Shri P.S. Ananthanarayanan.

DEENA v. UNION (Chandrachud; C.J.) 45

We had allowed one Dr. Chandrakant of the All India Institute of Medical Sciences, New Delhi, (o intervene in these proceedings. A ' We may, with some -advantage, refer to his written submissions. ·' Dr. Chandrakant did his M.B.B.S. in 1970 and was in the Army Medical Corps for a period of five years. He holds a Diploma in Oto·rhino-Laryngology and the degree of M.D. in Forensic Medicine \ - and Toxicology. It appears that he has also done a three-year degree course of LL.B. from the Allahabad University. He is B presently working as a Lecturer in the Department of Fprensic Medicine of the Institute, .in which capacity he is required to conduct Medico-legal autopsies. He claims that he has conducted approximately llOO medico-legal autopsies uptil now. According to • him, hanging is the best method for executing the death sentence c since by that method,. death ensues instantaneouly due to a com- bination of shock, asphyxia and crushing .of Spinal Medulla. He says that there are misconceived notions about judicial hanging due to improvised and faulty mechanism of the process involved, in suicidal hangings and due to Jack of knowledge of the anatomical structure of the neck and human body, Dr. Chandrakant describes the human anatomy and says that in hanging, whenever there is injury to Medulla, to Pons or Medulla oblongata, all tbe three vital centres called as "Tripod of life" are affected which causes instantaneous death: Dr. Chandrakant has given a brief description of about 15 different methods which have been followed at one time or the other for ~xecuting the death sentence.

In a book called "Hanging through the ages (History of Capital Punishment)" by George R. Scott (Torchstream Books, London), the entire history of the technique of hanging has been traced. The au.thor says at page 211 that the· introduction of an improved technique of hanging has served to expedite the process of hanging, giving less pain to the prisoner and that, "the long drop" and . other improvements have achieved a great deal though, despite everything that has been done, accidents are inevitable. . ' G In "Kenny's Outlines of Criminal Law," (19th Ed. 1966) edited by J.W. Cecil Turner, it is stated at page 618; foot-note· 5 that : "Hanging does not operate now through suffocat;on, but by a 'long drop', inventented bl Prof. Haughton of Dublin; which dislocates the vertebrae and is calculated to produce an instantaneous and H painless deati\,"

46 SUPREME, COURT REPORi'S (1984] I s C.R.

In "New HoriZons in Criminology'' by Harry Elmer Barnes A. and Negley K. Teeters (3rd Ed. 1966), it is stated : "Society has resorted to many difierent methods in executing criminal and other , allegedly dangerous persons. Drpwrting, ·stoning to death, burning at the state and beheading have all been used in the past. Of all. the modern methods of administering the death penalty, banging bas been the most widely used. We· read of hangings in -the earliest B historic literatutre and throughout the world even today it is. still the most widely used.,,

In a publication called 'Capital Punishment' under the auspices of the United Nations, Department of Econon;iic and Social Affairs, c New York, 1962, it is stated in paragraph 57 ·of _the chapter called 'The Execution' that in earlier times, ~great variety of methods of ' execution was known to the law, the carrying out of a sentence of death being sometimes attended by 'cruel forms of turture intended in certain cases to aggravate the suffering. The publication says : D . ·'On grounds 'of humanity and of the respect due to' the human persqn the modern law has in general dropped these practi.ces. The death penalty means nowadays, simply the deprivation of life. The differ:ences which today exist regarding' the method• of carrying out ·the death sentence are attributable to the •efforts made to render death quicker and less painful". The same paragraph mentions· that I hanging has generally been abandoned in · the United States. .Acco~ding to the issue of 'Time' magazine dated January, 24, 1983,

F only four States of America still prestribe hanging as a method for executing the death sentence. Paragraph 59 of U.N. publication says that "Hanging remains the most frequent method ,in use". It lists over 25 countries of the world in which the method of hanging is used for executing the d~atb sentence. - ' In so far as the judicial exposition of this subject is .concerned, attention inay be· drawn to the latest· decision_ of this Court in Bachan Singh in which the majority said that under the successive G Criminal Procedure Codes which have been iii force in India for aboot IOO·ye~rs, the sentence of death is to be carried out by the method of hanging. The fou-nding fathers of the Constitution, some of 'whom were distinguished jurists (in 'the proper sense of that term), cannot be assumed to be ignorant of the provision contained· in section 354(5) of the Code. And, ~espite the fact that. the death ~entence bas to T?e carried out by the mode prescribed in that

DEENA v. UNION J_Chandrachud, C.J.) 47 section, they recognised the existence and validity of that sentence. The majority accepted the proposition that by reason of the pro- A vision contained in Article 21; no person can be deprived of his life · or personal liberty except in-accordance with fair, just and reason- able procedure established_ by law. Applying that postulate, it observed that the framers of the Constitution did not consider that either the death sentence or the traditional mode of its execution prescribed by section 3S4(5) of the Code was a degrading punish- ment which would defile the dignity of. the individual within the contemplation of the Constitution. These observations are signi- ficant with the caveat that the question as regards the validity . of sectio~ 354(5) of the Code was not directly in ·issue in Bachan Singh. c This then is the data on which reliance is or can be placed by the Union ofhdia for discharging the burden which rests upon it for proving that the method of hanging prescribed by section 354(5) of the Code does not violate the guarantee contained in Article 21 of the Constitution, D

Though it must be conceded that the various learned counsel for the petitioners led.by S~ri R.K. Garg and Dr. N.M. Ghatate have argued ther respective cases with great fervour, industry and tenacity, the writ petitions furnish no data. or reasons whatsoever as to why · E the method of the hanging is violative of Article 21. Mostly, the prayer clauses of petitions simply contain a request that the. system of hanging should be declared to be violative of Articles 14, 19 and 21 of the Constitution. Articles 14 and 19 were hardly even mentioned· ,. in the arguments on the main point and, rightly so. The arguments advanced in regard to the violation of Article 21 went far beyond the scope of the averments in the writ petitions but that is not --- "'' unprecedented in this Court. Moreover~ in a matter involving the question of life and death, technicalities cannot be allowed to defeat ., justjce. We could have asked the petitioners ~o - amend their petitions but rather than doing so, we decided to bear a full-dressed argument on the validity of section 354(5) of the Code, regardless of the paucity of pleadings, especially since the writ petitions do not involve any challenge under Article 14 of the Constittuion. We have . beard the petitioners' counsel at length on every conceivable aspect of the question involved in these petitions. We have proceeded to this judgment, on a careful consideration of the diverse submissions m11de befqre us,

48 SUPREME COURT REPORTS (1984) I S.C.R. \ Dr. Ghatate, who began the arguments on behalf of the A· petitioners, contended that the method of hanging involves pain, degradation and suffering wherefor that method ~iolates Article 21 and cannot be used ,for executing the death sentence. In support of this argument, he drew our attention to certain passages in the dissenting judgment of Bhagwati, J,, in Bachan Singh. B At ·pa$e 285 of the Report, the learned Judge has extracted a passage from a decision of the California Supreme Court in. which it is said that, "Penologists and medical experts agree that the process of carrying. out a verdict of death is often so. degrading and brutalizing to the h_!lman spirit as to. constitute psychological torture", In the absence of citation, we are unable to trace the c decision or to see the context in which the California Supreme Court made the particular observation. Vfe do not know who these ".Penologists and medical experts" are and where they have expres- sed agreed opinions attributed to them. It is not even clear whether the California Court was dealing wi~h the validity of death p~nalty or with the methods of executing that penalfy and, if the latter, whether it h.as condemned every method of the execution and not the method of hanging only. The purport of the passage seems to indicate that the questioh under inquiry was that death sentence is a 'cruel unusual punishment', As we. have shown, the expert evidence before the Royal Commission of U.K. was quite to the contrary, especially in regard to the ·improved technique of hanging which.came into operation after the recommendations of the Com- mittee appointed in 1886 were implemented.

Ai page 287 of the Report Bhagwati, J., has made certain observations which also Dr, Ghatate Iias pressed into service. We have already extracted those observations while dealing with the preliminary objection of· the _learned Solicitor General. The sum and substance of the particlur passage is that "hanging is undobtedly accompanied by intense physical torture and pain", In support of this conclusion, the learned Judge quotes Warden Duffy of San Quentin, a high security prison in U.S.A., who had described with particularity the procedure which obtains at the hangings of prisoners, After extracting· a statement of Warden Duffy at page 288, the learned Judge says: "If the drop is too short, there will be a slow. and agonising death by strangulation. On the other hand, if the drop is too lo'ng, the head will be torn off. In ,England centuries of prac- tice have produced a detailed chart relating a man's weight and physi- cal condition to the proper length of drop,, but even there mistakes '

DEENA v. UNION (Chandrachud, C.J.) 49 1 have been made." Our difficulty again is the absence of citation of the descriptive hassage which appears ·at page 288 of the Report. A We do not know where, and in which year, Warden Duffy gave the particular description of the hanging process. The process described by him is apparently similar to the one which is now regarded as outmoded and is no longe> in use.· Besides, Warden Duffy was a stern opponent of the capital punishment. In a series of articles .. ~ under the caption "San Quentin is my Home" which appeared in the B Saturday Evening Post, March 25 - May 13, 1950, he denounced the capital sentence by· pointing oui, inter alia, how every known method of executing that sentence is fraught with pain and suffering. We will have occasion to call attention to what he has to say about the Gas Chamber too. But evidence before us 'hows that the c mechanics of the method of hanging has undergone significant improvement over the years and if the expression is not inapt in the context, hanging has been almost perfected into a science. The -l chances of a mishap are minimal now though, the chances of an accident can never be elimi_nated totally, If that could be done, the D word "accident" will not appear in the dictionary of wise men. In regard to th·' improvements effected in the method of hanging, we will only draw attention to the findings of the Royal Commission and the opinion expressed by other experts to which we have already referred. E Finally, Dr. Ghatate relies upon an account given in 1927 by a Surgeon who witnessed a double execution, which has been extract• ~d in the judgment of Bhagwati, J., at page 288 of the Report. It appears from. the Surgeon's account that 'one of the supposed corpses' gave a gasp which the Surgeon was, very naturally, horrified F to bear. Two bodies not completely dead were then raised to the scaffold again. In his account the Surgeon has ·stated that though \ dislocation of.the neck is the ideal aimed at ill hanging, that bad proved rather an exception in his own post-mortem findings which , showed that in the majority of instances, the cause of death was ·strangulation and asphyxia. Relying on this account Bhagwati, l, G conclude1 : "These passages clearly establish beyond doubt that the execution of sentence of death by hanging does involve intense physical pain and suffering, tnough it may be regarded by some as more humane than electrocution or application of lethal gas." With great respect, our difficulty is the same as in regard to the two earlier H passages extracted by the learned Judge, one from the California Supreme Co.urt jud~ment and the other frol,ll Warden Duffy. W~

50 SUPREME COURT REPORTS (1984] I s.c.R.

do not know who the Surgon is' and from where the quotation is extracted. Besides, as we have ~.epeatedly said, there has been )1 significant improvement in the mechanism of hanging. Old ex- .periences are not to be discarded out of hand but they cannot te applied to new situations without a critical examination of their . relevance to th·ose situations. Otherwise, technical sciences, parti- 8 . cular the medical science, shall .have made their .remarkable advance .in vain. ···~

We have given our anious and respectful consideration to the . passages extracted and the observations made by our learned Brother . Bhagwati. The fact that these are cpntained in a majority judgment c· . is no justification for ignoring them. In a ma tier as socially sensi- . tive as this, it is improper to overlopk ·the opposing point of. view, whether it is expressed in a minority judgment or elsewere.

Bhagwati, J., says in the last passage extracted by us from his judgment that the method of hanging is perhaps regarded by some as more humane than electrocution or the application of lethal gas ... .Dr. Ghatate has his own point of view. He contends that electro: . cution is the quickest and the simplest method of executing the death sentence, in whtch there is no scope for failure of the apparatus. He has two alternative submissions to make : One, falling electrocution, administration of lethal injection should be adopted as a method for ·executing the death sentence and, two, failing lethal-injection, shoot- . ing by a firing squad should be resorted t!J. We assume that the learned counsel has obtained his client's instructions on the use of ..these alternative methods, particularly shooting. F Truly, we are not concerned to determine the merits and demerits of these alternative methods ·of execution .which are can- vassed by the learned counsel and some of which are in vogue in some other parts bf the world. If the method° prescribed by section 354 (5) of the Code is violative of Article 21. the matter must rest .G/. there because. as contended by Dr. Ghatate himself, the Court cannot substitute any other method of execution for the method prescribed by law and which alone is permissible under the law. However, an understanding of the process involved in the competing methods used for executing the death sentence and their comparative H assessment is not altogether pointless. If it can be demonstrated clearly that some other method bas a real and definite · advantage over the method of hanging, the question will naturally arise as to why the State dqes not adopt that 1Uethod. An· arbitarary rejectio11' t

DEENA v. UNION (Chandrachud, C.J.) 51

.) of a method proved to be simpler, quicker and more humane· than . .t hanging may not answer the constitutional prercription . A The ,Royal Commission• mentions in paragraph 717 of its Report that during their visit to America, they inspected the electric chairs in the Sing Sing Prison, New York and the District of Columbia Jail, Washington, and that they received evidence about > • the use of the electric ·chair in other States. The Commission has B given the following account of the method of electrocution based primarily on the information obtained by them iri Washington :

"The execution takes place at 10 a.m. At midninght on the preceding l\ightthe condemned man is taken from c the condemned cell block to a cell adjoining the electro- cution chamber. About 5.30 a.ni., the top of his head and the calf of one leg are shaved to afford direct contact • with the electrodes. (The prisoner is usually handcuffed during this operation to prevent him from seizing the razor.) At 7.1 S a.m., the death warrant-is read to him and D about 10 O'clock he is taken to the electrocution chamber......... Three officers ·strap the condemned man to the chair, tying him. around the waist, legs and wrists. A mask is placed over his face and the electrodes are attached to his head and legs. As E soon as this operation is completed (about two minutes

-· . " after he has left the cell,) the singal is given and the switch is pulled by the electrician; the current is left on · for two minajes, during which there is alternation of two or more different voltages. When it is switched off, the body slumps forw'!rd in the chair. The prisoner does not P. make any sound when the current is turned on, and unconsciousness is apparently instantaneous. He is not, however, pronounced dead for some minutes at'ter th~ c1ment is disconnected. The leg is sometimes slightly burned, but the body is uot otherwise marked or G mutilated.''

In paragraph 718, the Commission says :

• ''No case of mishap was recoraed in Washington, R - but it seems that in some other States there have been occasions when the current failed. to reach the chair when \he switch was en&aged. Some St.ates install an emergency

52 SUPREME COURT REPORTS (1984) 1 s.c.it.

generator in order t~at an executi0n may not be delayed by. failure of the commercial."

Lest it be thought that the Report · of the Royal Commission, having been given 30 years back, the dekription .of the process of electrocution contained therein may not apply to the modern conditions, we may draw attention to the cover story on the death ' B penalty which appeanend in the issue of 'Time' magazine, dated J~n. 24, 1983. The v.:rite-up. which is predominantly in favour of abolition of the death sentence, contains a vivid description of the methods of electrocution, gas chamber and lethal injection which arc used in some of the States in America. The cover story, "An Eye c for an eye", gives the fol) owing description of electrocution at page 12 of the issue:

"The chair is bolted to the floor near the back of a 12 ft. by 18ft. room. You sit on a seat of cracked rubber secured by rows of copper tacks. Your ankles are D strapped into half-moon-shaped foot cuffs lined with can- vas. A 2-ln-wide greasy leather belt with 28 buckle holes and worn· grooves where it has been pulled very tight many times is secured·around your waist just above the hips. A cool metal cone encircles your ·head. You are , now only moments away from death. E But you still have a few seconds left. Time becomes stretched to tlle outermost limits. To your right you see the mahogany floor divider that separates four brown church-type pews from the rest of the room. They look odd in this beige Zen-like chamber.. There is another F . door at the back through which the witnesses arrive and sit In the pews. You stare up at two groups of fluores- cont lights on the ceiling. They are on. The paint on the ceiling I~ peeling. '!"

G· . You fit in neat and snug. Behind the chair's back leg on your right is a cable wrapped in gray tape.. It will sluice the electrical current to three other wires : two going to each of your feet, and the third to the cone • H on top of your head. The room ~is very quiet. During yonr brief walk here, you looked over shoulder and saw early morning light creeping over the Berkshire Hj!J~. TJ:ien into this silent t<,>mb.

bEENA v. UNION (Chandrachud, C.J.) 53 ! The air vent above your head in the ceiling begins to \ hum. This means the executioner has turned on the fan A to suck up the smell of burning flesh. There is ·little time left. On your right you can see the waist-high, one-way mirror in the wall. Behind the mirror is ·t)le executioner, standing before a gray marble control pannel with gauges, switches and a foot-long lever of wood and metal at hip le\lel. B·

The executioner will pull this lever four times. Each time 2,000 volts ·will course through your body, making your eyeballs first bulge, then burst, and than broiling your brains ... " c

• Electrocution was first introduced in the New York State prison at Auburn on August 6, 1890. The initial victim was one William Kemmler whose challenge to the validity of the method of electro- D . cution as a cruel and unusual punishment was rejected by the U.S. Supreme Court.( 1) Though this method is now advocated as a humanitarian move, in reality, its original introduction appears to have been the result of. the effort of an electrical company to market its products.('). E

- Though it is generally believed that death by electrocution is entirely painless, a distinguished French scientist, L.G.V. Rota, dis- putes this contention. Labelling this method of executing the death sentence as a form of torture, Rota contends that a condemned victim may be alive for several minutes after the current has passed through h\s body without a physician being certain· whether death has actually occurred or not. He adds taat some persons have greater physiological resistance to the electric current than others, and that, no matter how weak the person, death cannot supervene instantly. Another attack on the pain of' death in electrocution was· G made by Nicola. Tesla, the electricai wizard.(') The opposite view is

(I) 136 U.S. 436. (2) So stated by Nicola Tesla in the New York World, November, 17, H 1929. (3) See "New Horizons in Criminology'', by Harry Barnes & Negley. Teeters (3rd Ed. 1966, pp. 308-309).

SUPREME COURT REPORTs [i984J i s.c.R., expressed by Robert G. Elliott in 'Agent of Death' (New York : '~· A, Duttqn, · 1940), Rebert Elliott; one-time executioner for several ,/ ~eastern States, who officiated at 387 executions maintains that electrocution is painless. ..,.. \ Power seldom fails in countries like. America, U.S.S.R., and Japan. Even then, the failure of electrical energey supplied by .I B commercial undertakings has been considered in America as an impediment in the use of the electric chair. With frequent failures • ,.. of electrical' power in our country, the· electric chair will become an·instrument of torture. One·can well imagine the consequences of . . the use of the electric chair in )he city of Cal cu ta or, for the matter c of that, in the capital City of Delhi. For technical reasons, even the Supreme Court complex is not spared from frequent load-shedding during working hours. Lawyers, litigants and Judges have now trained themselves to suffer the inconvenience arising from failure of electricity. But, it would be most unfair to expect a prisoner condemned to death to get into the electric chair twice or thrice, . for D ·the reason that the electric current failed during the process of electrocution. It is, not our intention to blame anyone for the - power crisis becaµse it would seem thatit is partly due to natural causes and is not man-made. But facts are facts and facts must he faced. E

·- Execution by lethal gas is discussed by the Royal Commission in paragraphs 719 to 722 of its Report. The Commission says in paragraph 719 that they did not inspect any lethal gas chamber during their visit to America, but they were .supplied with written evidence about execution by lethal gas. They also bad the advantage\ of hearing .evidence from one Mr. Philip Allen, th,e then Deputy Chairman of the Prison Commission and of receiving a report from the English' Neurologist, Dr. Macdonald Critchley, both of whom had inspected the lethal chamber at St. Quentin Prison, California, of which the famous Clinton Duffy was a · warden. In paragraph 720 G ·of the Report, the Royal Commission says : "The lethal chamber is very elaborate in:comparison with the apparatus needed for other methods of execution. It is expensive to install and requires a complicated series of operations to produce the gas and to dispose of it afterwards". The description of't.he gas-chamber method given • 'H by ·the Royal Commission is like this : The 'chamber is reqnired to be hermetically sealed to . prevent leakage of cyanide gas, the doors leading to the ·

hEENA v. UNION (Chandrachud, CJ.) 55 chamber are required to be connected with an electrically controlled panel, the prisoner's arms, legs and abdomen A are tied to the chair with leather ·straps, a 'pound of sodium cyanide pellets is placed in a trap in the seat of the chair and three pints of sulphuric acid and six pints of water mixed in a lead. container are placed 'in a position \

.. to receive the cyanide pellets. A rubber hose is connected to the head of a stethoscope which is strapped to the prisoner's chest. The entire clothing of the prisoner is B

removed except for shorts. Finally, a leather mask covers the prisoner's face. After the prisioner is pronoun· ced dead, Amonia gas is forced into the chamber untill the indicators within the chamber sho~ that all cyanide c gas has been neutralised. The Amonia gas is then removed by a specially constructed exhaust fan.

paragraph 721 of the Royal Commission's Report shows that the length of time taken by this method of execution is about · 45 D minutes .. In paragraph 722 the Commission says that \vhen this method was first employed, it was thought that the ·gas had a suffo· eating effect which would cause acute distress, if not actual pain, before the prisoner became unconscious. Ac9ording to the Commis· sion, it seems to be now generally agreed that unconsciousness ensues / very rapidly in the gas chamber method.

-- Clinton Duffy, warden of San Quentin Prison,. California; says that the operation of the gas chamber execution includes '"funnels, rubber gloves, graduates, towels soap, pliers, scissors, fuses and a mop : in , addition, sodium cyanide eggs, sulphuric acid, distilled li' water, and amonia".(') /

Coming to the method of shooting by a firing squad, we have already extracted an opinion which shows that there are chances of bungling in that method. But a more serious objection to wWch G this method is open is thaf it is the favourite· past-time of military regimes which trample upon human rights with impunity. They shoot their citizens for sport. Shooting' is an uncivilised method of • (1) From his series of articles, San, Quentin Is My Home'\ Saturday Evening Fost, March 25-May 13, 1950. This series was later p~blished in book ·rorm as The San Quentin Story (New York); Doubleday, 1950.

56 SUPREME COURT REPoRTS fliJ84J l s.C.R. extinguishing life and it is enough to say in order to reject in that ~-- the particular method is most recklessly and want only used for liquidating opposition and smoth-ering dis.sent in countries which do not respect the rule of law. Lastly, murders by shooting are becom- ing a serious.menace to law and order in our country. Shooting by the State in order to kill for executing the order of a Cou-rt of law 8 will unwittingly confer respectability on the 'shoot to kill, tactics which ~re a_larmingly growing in proportion.

What remains now to consider is the system of lethal injection. The Royal Commission· has discussed that method in paragraphs 735 to 749 of its Report. Lethal injection is by and large an untried c method. But that is not its most serious defect. The injection is 'y required to be administered intravenously, which is a delicate and skilled operation. The Prison Medical Officers who were interviewed by the Royal Commission doubted _whether the system of lethal injection was more humane than hanging (See paragraph 739 of the D Report). The Btitish ]'y[edical Association told the Commission _that no medical practitioner should be asked to take part in bringing a about the death of convicted murderer and that the Association would be most strongly opposed to any proposal to introduce ·a' method of execution which would require the ser~ices of a medical practitioner, ei!her in carrying out the actual process of killing or in - ~- E instructing others in the technique of that process. The Commission expressep its conclusion in paragraph 749 by saying that it could not recommend that, in the present circumstances, lethal injection should be substituted for hanging since they were not satisfied that executions carried out by the administration of lethal injections F would bring about death more quickly, l'ainlessly and decently in all cases,. The Commission, however, recommended, unanimously and emr hatica!ly, that the question should be periodically examined, especially in the light of the progress made in the science of anaesthetics.

G We may lastly refer to the affidavit filed by o·ne Dr. N.P. Singh who was allowed to intervene on behalf of the National Association of Critical Care Medicine (India), New Delhi. ·He says in his affida· vit that society has come to realise that death by hanging is not a merciful and pleasant way of putting a patient to a terminal end : H "As members of the medical profession and the Association, we feel that a patient may be put to sleep by any ' sleep inducing injection (barbiturates) and subsequently, the above mentioned electrocution·

DEENA v. UNION (Chandrachud, C.J.) 57 and gas chamber methods may be applied as the 'patient's sense would have been dulled by the drug injection". This system certainly A has the merit of naivete and novelty but, on the face of it, the system is impracticable and would appear to involve complications and torture to an uncommon degree. We may in this behalf draw attention to an article "The Death Penalty : Moral argument and capricious par~tice" bi;,Andrew. Rutherford, a senior Lecturer ·in B Law at the Southampton University, which appeared in . 'The Listener' of July 7, 1983, published by~ the British Broadcasting Corporation. In that article, the writer refers to an incident to tll.e effect that in 1982 December, a prisoner was put to death in Texas by means of an injection of sodium pentothpl. The incident led the American Medical Association to declare : ''The use of a ·lethal injec- c tion as a means of terminating the life of a' convict is not the practice of medicine". The writer proceeds to say that there is not likely to .be any great enthusiam for the method of electrocution as well, since in April 1983, it took three 30-seconds shots of 1,900 volts before a man in Alabama was pronounced dead. D It is clear from this narrative that neither electrocution, nor lethal gas, nor shooting, nor even the·lethal injection bas any distinct or demonstrable advantage over the system of hanging. Therefore, it is impossible to record the conclusion with any degree of certainty ·E that the method of hanging should be replaced by any of these • methods.

But, for due compliance with the mandate of Article 21, it is not enough (o find that none of the other methods of execution · has a real advantage over the method of hanging. The other methods may have some of 'the vices of being impracticable, complicated, slow and uncertain. That is only one side of the picture because, the circumstance that the other methods are not feasible does not establish of its own force that the method. of hanging is free from blame. The weakness of defence cannot establish the plaintiff'> case. In other words, though hanging• may not suffer in comparison with the other methods, what we must determine is whether, hanging as a method of executing the death sentence, considered in isolation, that is to say, without comparison with the other methods, offends against the cannons of Article 21.

There is a responsible body of scientific and legal opm10n which we have discussed, which holds the view that hanging by rope

. SUPROO COURT REPORTS (1984] l s.C,Jl . ·is not a cruel mode of executing the death sentence. That system is in A operation in large parts of the civilised world. That was the only method of executing the death sentence which was known to the Constituent Assembly and yet it did not express any disapproval' of that method, though it touched upon the question of death sentence while dealing with the Pr.esident's power of pardon under Article 72 (I) (c) of the Constitution. B Having given our most anxious consideration to the central point-of inquiry, we have come to the conclusion that, on the basis

' of the material to which we have referred extensively, the State has · discharged the heavy burden which lies upon it to prove that the c method of hanging prescribed ·by section 354(5) of the Code of Criminal Procedure does not violate the guarantee contained in Article 21 of the Constitution. The material before us shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. · The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner's apprebension. The chanc.es of an accident during the course of hanging can safely be exc.luded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows· as a result of the dislocation of the cervical vertebrae. The system of hanging, as no •v nsed, avoids to the full extent the chances of strangulation which remits on account of too short a drop or of decapitation which results on account of too long a drop. The F system is consisient with the obligation of the State to ensure that the process of executio1!' is conducted with decency and decorum without involving degradation of brutality of any kind.

At the~moment of final impact when life becomes extinct, some G physical pain Would be implicit in the very process of the ebbing out of life. B.ut, the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously. 'Imaginable', because in the very nature of things, there are no survivors who can give first· hand e~idence. of the pain involved .in the execution of a death sentence. Dead men tell no tales.. The B question' as regards tile factor of pain has therefore to be judged on the bais of scientific .investigations and by applying the test of reason. Tho conclusion that the system· of· banging is as painless ~

DEENA v. UNION (Chandrachud, C.I.)

·as is possible in the circumstances, that it causes no greater pain than any other known.method ·of executing the death sentence and that it involves no barbarity, torture or degradation is based on reason, supported by expert evidence and "the ·findings of modern medicine.

\. On the question of pain involved in a punishment, the concern of law _has to be to ensure that the various steps which ·are attendant upon or incidental to the execution of any sentence, more so the death sentence, do not constitiite punishments by themselves. If a prisoner is sentenced to death, it is lawful to execute that punish- ment and that only. Hecannot be subjected to humiliaiion, torture or degradation before the execution of that sentence, not even as. c necessary steps in the execution of that sentence. That would ' - amount to inflicting a punishment on the prisoner which does n@t have the authority of law. Humaneness is the hall-mark of civilised laws. Therefore, torture, brutality, barbarity, humiliation and ·degradation of any kind is ·impermissible in the execution of any sentence. Tb~ process of hanging does not any of these, directly, indirectly or inciden~ally.

Accordingly, we hold that the method prescribed· by section 354(5) of the Code of Criminal Procedure for executing the death sentence does not violate the provision contained in Article 21 of the Constitutign.

... There is one point which still remajns to be consider~d and . that is the point made by· Shri R.K. Garg. He contends that it is inhuman to kill under any circumstances, even under a judgment of F a Court and, therefore, no death sentence can be executed · at all by means fair or foul.· , The fact that the method prescribed by law for executing the death sentence is humane makes. no difference for, according to him, Article 21 imposes a total -prohibition on the taking of human life, which would include the execution of death . G sentence. · It is impossible t6 ·accept this co!'ltentfon. The argument, in truth and substance, is aimed :rt.the validity of the death sentence itself and, indeed, much of what Shri Garg said is directed at , showing the invalidity of section 302 of the' Penal Code rather than the invalidity of section 354(5) of the Code of Criminal Procedure. H We are unable to appreciate how it is unlawful, in the abstract and in the absolute, to execute a lawful order. If it is lawful to impose the sentence of death in appropriate cases, it would be lawful to

SUPREME cotrn.t REPORTS ii984J i s.c.tl. ~ . execute that sentence in an appropriate manner. Article 21, undoub- A tedly, has as much relevance on the passing of a sentence, as on the · manner of ~xecuting it. Therefore, a two·fold consideration has to be kept in min!! in the area of sentencing. Substantively; the sentence has to meet the constitutional prescription contained, especially, in Articles 14 and 21. Procedurally, the method by which the sentence is required by law to be executed has to meet the mandate of B Article 21. The mandate of Article ·21 is not that the death sen· tence shall nbt be executed but that it shall not be executed in a cruel, barbarous or degrading manner,

If we were to accept the argument of Shri Garg, the imposition c of death sentence_would become an exercise in futility : pass the sentence of death if you may but, it . .shall not be executed in any manner, under any circumstances. A Constitution so carefully conceived as ours cannot be construed to produce such a startling result. Indeed, the argument, if carried to its logical conclusion will D make it impossible to execute any sentence whatsoever, particularly of imprisonment, because every sentence of imprisonment necessarily involves pain and suffering to a lesser or greater degree. Painless punishment is a contradiction in terms. ·

The constraints of Bachan Singh deserve to be preserved but -- '\ E that means that it is only a rare degree of malevolence which invites and justifies the imposition of•death sentence. . Granting ihaJ the . sentence of death is constitutionally valid, not even . the sophisticated sensitivites can justly demand that those upon whom the extreme

F ·- penalty of law is imposed because of the magnitude of their crime, should not be made to suffer the execution \ of that sentence, unaccompained by torture or degradation of any kind.. If the larger interests of the community as opposed to the interests of an inividual require that the death sentence should be imposed in an exceptional class of cases, the same societal interests would justify the execution of that sentence,.though.in strict conformity with the requirements G of Article 21.

Though Article 21 was the focal point of this case, almost everyone of the learned counsel appearing on behalf of the petitioners drew inspiration from· the Eighth Amendment to the United States. H Constitution: which provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and · unusual punishments inflicted".

DEENA V. UNION (Chandrachud, C.J.) 61

The prohibition against cruel and unusual· punishment dates back to the Magna Carta though it found recognition in the English A· Law by its adoption in the English Declaration of Rights in 1688. The purpose of this enactment was to check the barbarous puni_sh, ments which were common during the regime of the Stuarts, like· pillory, disemboweling, decapitation and drawing and quartering, As a result of. the English reform movement which was started in the \ B seventeenth century by the Eurpean humanists, these punishments gradually fell into disrepute. The fundamental principal underlying the prohibition against cruel and unusual punishments was incorporated -~ into the Bill of Rights in 17'91. ' The early development ·of Jaw in America shows that the c prohibition against cruel and unusual punishments concerned itself with unusual· cruelty only, the emphasis being upon "unnecessary · cruelty and pain''. In Kemmler, death by electrocution was held not necessarily cruel. In O'Neil v. Vermont(') Justice Field, in his dissenting opinion, enlarged the concept of unusual ·punishment to D cover penalities "which shock the sense of justice". In Trap v. Dulles(') a sharply divi_ded Court held that divesture of citizenship was consti- tutionally forbidden. Chief Justice Warren, speaking for three Justices, observed _that the content of the Eighth Amendment was ) not static and that it "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society". E According to the learned Chief Justice, the Eighth Amendment whose "basic concept is nothing less than the dignity of man", ensures "the principle of civilized treatment". After the decision in .Trap, the American Supreme Court has formulated a sophisticated defini, tion of the Eighth Amendment ~lause in a series of important cases called the "18 Key cases''. A resume of those cases caa be found in 'Substantive Criminal Law'' by Prof. M. Chenf Bassiouni (Ed. 1978, p,>. 44-45). It shows that even a second electrocution after the failure of the first attempt, provided it is not an intentional effort to inflict unnecessary suffering, was held not violative of the Eighth Amendment (Louisiana v. Resweber(•). It was, observed in that case that :.

"the cruelty against which the ·constitution protects a convicted man is cruelty inherent in• the method of H (I) [1892] 144 U.S. 323, 339-340. (2) [1958] 356 U.S. 86, 101, 124-127, (1) [1949] 329 {)".S. 45~.

62 SUPREME COURT REPORTS (1984) I S.C.R.

punishment, not the necessary suffering involved in any ·· A method employed to extinguish life humanely, No one can deny that soi:ne suffering and anguish is bound to result to the condemned man at the time of execution of his death sentence. But it is not wholly inappropriate to observe that having had the opportunity to avoid that B suffering and anguish, he chose the path of risking it in favour of earning some other benefit. His minimal suffering is real, but so we believe was the suffering of his victims and even so will be the suffering of the victims of those other criminals who believe that they can commit crimes of great atrocity with .relative impugnity". c It is this 'relative impunity' which attracts the rule in Bachan Singh.

Though the Eighth Amendm~nt has th~s a dynamic content which has been evolved over the years as public moral perceptions 1) changed from time to time, several concurring opinion show that in America, capital punishment is not' considered to be violative of the Eighth Amendment('). In the words of Chief Justice Earl Warren, "the death penalty has been employed throughout our history, and, in a day which it is still widely E accepted, it cannot be said to violate the constitutional concept of cruelty", , What the Eiglith . Am1mdment prohibits is "some• thing inhuman and barbaro\ls aii.a something more than the mere extinguishmeht of life". The suffering necessarily involved in the execution of death sentence is not banned by the Eighth Amendment though the cruel form of execution is. F No sustenance can therefore be derived from the Eighth Amendment to thellrgument that either ·the death sentence or the method of executing that s~ntence by hanging is violative of Article 21 on the .ground. that· 'death sentence is barbarous or that the G method of hanging is cruel, inhuman or degrading. Hanging as a mode of execution is not relentless in its severity. As Judges we ought not to assume that we are endowed with a divine insight into the needs of a society. Or(the contrary, we should heed the warning given by Justice Frankfurter : "As ·history amply proves, the judi- H ,.. (1) :Death Penalties' ...!Jy Raoul -Berger (Aarvaid l!niversity Press, Ed. 1982, p. 112).

r DEENA v. UNION (Sabyasachi Mukharji, J. 63

' ciary is prone to misconceive the public good by confounding private { notio.ns with constitutional requirements( 1)" • A . For these r"easons the challenge to the constitutionality of section 354(5) of the Code of Criminal Procedure fails and the writ petitions are dismissed. Orders whereby the executions ·of death. sentence were s.tayed are hereby vacated except in W,P. (Crl.) No. B ' . _.,. 503 of 1983 which will b~ listed on 27th September, 1983, for being heard on merits. SLP (Crl.) No. 196 of 1983 is dismissed.

SABYASABH! MUKHARJI, J. I respectfully agree with the conclusions of my learned brother, the Chief Justice. I would like,· however, to state that in the judgment, my learned brother haa c observed:~

"Therefore, as soon as it is shown that the Act invades a right guaranteed by Article 21, it is necessary to enquire whether the ·state has proved that the person has been deprived of his life or personal liberty . according to procedure established by law, that is to say, a· by procedure which is just, fair and reasonable."

I respectfully agree that as soon as it is shown th.at a Statute or Act in question invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been deprived of his. life or personal liberty acco!dingto procedure ... ' established by law. I, howe\·er, respectfully at present WO).lld not express my opinion whether in all such cases, the State has a further initial burden to prove that the procedure established by law· rs just, fair and reas.onable. With this observation, I respectfully agree with all the other conclusions and· observations made by my brother, the learned Chief Justice:

H.L.C. Petitions dismissed. .G

(I) [1949) 335 U.S. 538, 55~, Americll!l [fas~ & Door Co.'s case.