IMPORTANT POINT
There should be dignity in death also.

ORDER

Permission to appear and argue in person is granted.

Heard Mr. Rishi Malhotra, petitioner-in-person.

2. The petitioner has preferred this petition under Article 32 of the Constitution of India. The petitioner has called in question the constitutional validity of Section 354(5) of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C"). Section 354(5) reads as follows:-

"When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead."

3. It is contended by Mr. Rishi Malhotra that he does not intend to challenge the imposition of death penalty as the same has been put to rest by a Constitution Bench judgment in Bachan Singh v. State of Punjab (1982) 3 SCC 24.

4. Be it noted, the constitutional validity of Section 354(5) has been upheld by a three-judge Bench of this Court in Deena alias Deen Dayal and Others v. Union of India and Others (1983) 4 SCC 645. It is well settled in law that view of constitutional perspective does not remain static. The Constitution of India being an organic, living and a compassionate Constitution recognises the sanctity of progress with efflux of time. The provision that once held to be valid, with passage of time may become invalid, more so, when there is dynamic progress in science as well as social thinking.

5. It is submitted by Mr. Malhotra that when a man is hanged, his dignity is destroyed. Mr. Malhotra further submits that a man must have dignity even in his death and when dignity at the time of death is lost, living the life with dignity is dainted. He has drawn our attention to the dissenting opinion of Bhagwati, J. (as the learned Chief Justice then was) in Bachan Singh v. State of Punjab (supra). Paragraphs 29 and 30 of the said opinion reads as under:

"29. The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging is the most humane method of execution and so also in Ichikawa v. Japan,Vide : David Pannick on "Judicial Review of Death Penalty, page 73 the Japanese Supreme Court held that execution by hanging does not corrsspond to 'cruel punishment' inhibited by Article 36 of the Japanese Constitution. But whether amongst all the methods of execution, hanging is the most humane or in the view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly accompanied by intense physical torture and pain. Warden Duffy of San Quentin, a high security prison in the United States of America, describes the hanging process with brutal frankness in lurid details :

"The day before an execution the prisoner goes through a harrowing experience of being weighed, measured for length of drop to assure breaking of the neck, the size of the neck, body measurement et cetera. When the trap springs he dangles at the end of the rope. There are times when the neck has not been broken and the prisoner strangles to death. His eyes pop almost out of his head, his tongue swells and protrudes from his mouth, his neck may be broken, and the rope many times takes large portions of skin and flesh from the side of the face and that the noose is on. He urinates, he defecates, and droppings fall to the floor while witnesses look on, and at almost all executions one or more faint or have to be helped out of the witness room. The prisoner remains dangling from the end of the rope for from 8 to 14 minutes before the doctor, who has climbed up a small ladder and listens to his heart beat with a stethosco