Article 21 Constitution

‘Hanging by neck’ under Section 354(5) CrPC challenged by lawyer in Supreme Court for violation of Article 21 Constitution

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A public interest litigation has been filed in the Supreme Court challenging the vires of Section 354(5) of the Code of Criminal Procedure, which provides for the method of execution of death sentence in India – hanging by neck till the convict is dead.

The petition, which has been filed by advocate Rishi Malhotra, has relied extensively on the Supreme Court judgment in Gian Kaur v. State of Punjab to contend that hanging by neck is in violation of Article 21 of the Constitution and that “Right to Die by a dignified procedure of death is a Fundamental right” under the said Article.

“The petitioner by virtue of the instant Writ Petition which is in the nature of a Public Interest Litigation has filed the instant Writ Petition under Article 32 of the Constitution demonstrating violation of Article 21 of the Constitution which further has been spelt out by the Constitution Bench of this Hon’ble Court in Gian Kaur’s case (supra) as Right to Life includes Right to a dignified life upto the point of death including a dignified procedure of death.”

The petition states,

“That the instant Public Interest Litigation is being filed primarily challenging the vires of sec.354(5) Cr.P.C. which reads as under:-

“(5) When any person is sentence to death, the sentence shall direct that he be hanged by the neck till he is dead.”  

Malhotra has contended that execution contemplated under Section 354(5) is

“not only barbaric, inhuman and cruel but also against the Resolutions adopted by the United Nations Economic & Social Council (ECOSOC)”.

He has placed reliance on the case of Deena v. Union of India in which the Supreme Court had held that execution of death penalty should the satisfy the following test:

  • It should be quick and simple as possible, the Act of execution should be as quick and as simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner’s apprehension.
  • The Act of the execution should produce immediate unconsciousness passing quickly into the death.
  • It should be decent.
  • It should not involve mutilation

Malhotra has then cited the decision in Gian Kaur v. State of Punjabin which the Court held that,

 “The Right to Life including the Right to Live with human dignity would mean the existence of such a right upto the end of natural life.  This also includes the right to a dignified life upto the point of death including a dignified procedure of death.  In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out.”

Malhotra has also relied on Law Commission report to argue that execution by lethal injection or shooting is a more humane and acceptable method of execution of death row convicts.

“The above-mentioned passages as rightly noted by the Law Commission of India clearly establishes beyond doubt that the execution of sentence by ‘hanging’ thus, involve intense physical pain and suffering.  Appropriate to mention herein that Justice Bhagwati (in dissenting Judgment) in “Bachan Singh Vs. State of Punjab, 1982 (3) SCC” has thus, rightly observed that most of the developed as well as developing countries have replaced the execution by hanging by the intravenous lethal injection or by shooting which is most acceptable and humane method of executing death sentence involving less pain and suffering to a condemned prisoner.”

Based on the above, Malhotra has prayed for declaring Section 354(5) of Cr.PC, to be ultra vires the Constitution and in contravention of Article 21 of the Constitution. He has also sought a declaration to the effect that “Right to Die by a dignified procedure of death is a Fundamental right as defined under Article 21 of the Constitution of India”.


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