[This article is authored by Ishaan Tyagi, a student from West Bengal National University of Juridical Sciences].

Introduction

The Supreme Court has made a major assessment that an incarcerated individual has the right to die in tranquillity and without suffering. The assertion is pertinent to a PIL questioning India’s execution of death sentences. Per Section 354(5) of the Code of Criminal Procedure (CrPC), there exists a provision delineating the prescribed method for executing death sentences within India. The Section establishes the execution of the death penalty as neck hanging until the offender is dead. Since 1973, only two methods have been used to carry out the death penalty: hanging by the neck until death or being shot to death – in cases of capital punishment awarded in court marshal.

The central argument of this paper is that the current methods of executing the death penalty are ethically and legally flawed, and there is no “moral” method of execution, the paper promotes a re-evaluation of the death penalty in light of constitutional principles. Part II of this paper will delve into the specifics of hanging as a mode of execution in India, addressing its inherent cruelty. Part III will explore other alternatives particularly lethal injections and the challenges associated. Part IV will examine the morality of capital punishment and whether there is a moral method to execute capital punishment. Part V will contain the concluding remarks.

Hanging as a method of Capital Punishment in India

Hanging is a widely used method of capital punishment, this method involves placing a noose around the neck of the convict and a sudden drop that causes the axis bone to break. Ethical and humanitarian concerns surround this method due to potential pain and debates about its deterrent effect. Over time, many countries have moved away from hanging, opting for alternative methods.

The main issue with hanging is the three possible outcomes. First, if executed precisely, the neck breaks, causing ‘spinal shock’ which is equivalent to a total power outage this is accompanied by a rapid drop in blood pressure. Second, insufficient force may lead to asphyxiation, brain herniation, and swelling.  Third, if the drop height is too high the convict is beheaded. Despite the aim for a quick and painless death, medical-legal experts argue that death in hanging cases is mainly due to strangulation, with neck fractures being an exception in judicial hangings.

In the legal precedent of Gian Kaur v. State of Punjab, it was judicially established that Article 21 of the Constitution of India extends its protection to death row inmates. Under Article 21[SK1] , the Supreme Court ruled that the right to die with dignity is also a fundamental right. In the case of Bachan Singh v. State of Punjab, Justice Bhagwati argued that a condemned prisoner who is hanged endures acute pain physically, and suffers mental distress, psychological tension, and somatic agony. According to her, the hanging death penalty execution was “cruel and inhuman”. Consequently, execution through hanging is deemed a contravention of the right to die by a dignified procedure as enunciated in Gian Kaur v. State of Punjab.

In the case of Deena v. UOI, the Supreme Court established a criterion for the implementation of the death penalty. Hon’ble court laid down a test and held that any method of execution should satisfy the following tests:

1. The process of execution should be speedy and simple, devoid of any elements that needlessly intensify the prisoner’s apprehension.
2. The execution procedure should swiftly induce unconsciousness, leading promptly to the death of the individual.
3. The procedure should maintain a level of decency.
4. The procedure should refrain from causing any form of mutilation.

Cruelty in hanging and other methods of execution

In the “Consultation Paper on Mode of Execution of Death Sentence and Incidental Matters“, the Law Commission of India, in its 187th report, discussed the diverse methods of administering the death penalty throughout the evolution of the criminal justice system. The consultation paper deliberated on several means of carrying out the death penalty like Burning at the stake, the wheel, Guillotine, Hanging and the garotte, Firing squad, Gas chamber, Electrocution, and Lethal injections.

When subjecting the modes of execution deliberated in the consultation paper to the criteria established in the case of Deena v. UOI, it becomes evident that certain execution methods, such as burning at the stake, guillotine, the use of a headman’s axe, firing squad, gas chamber, and electrocution, would not meet the standards delineated in that legal precedent. Moreover, hanging as a means of execution would also fall short of satisfying the established criteria due to its inherent lack of swiftness and simplicity. In most instances, the convict’s demise occurs through asphyxiation, rendering it an inhumane conclusion for those subjected to this method. Additionally, variables such as determining the precise distance required for the axis bone to fracture further compound the complexity of this process and hence it fails to meet the several standards set in the judgment.

Lethal Injections as an Alternative

The Law Commission, in its 187th report, also discussed lethal injections as a possible method to execute the death penalty and also noted its increasing popularity. The individual is restrained on a medical gurney with ankle and wrist restraints, connected to a cardiac monitor and stethoscope. Saline IV lines are initiated in both arms and later deactivated. Sodium Thiopental induces unconsciousness, followed by Pancuronium Bromide for muscle paralysis and respiratory cessation. Potassium Chloride is administered, leading to cardiac arrest. Typically, unconsciousness occurs within a minute after Sodium Thiopental, and death occurs around eight minutes later, without apparent physical suffering. On the face of it, if we subject this execution method to the test laid down in Deena v. UOI, it would fulfil the criteria set in that legal precedent. This method prioritises speed, avoids mutilation, and, at the same time, is more humane and less distressing.

As promising as this sounds in theory, it’s not without its challenges. Firstly, it blurs the distinction between the roles of healing and taking life, a convergence that seems nearly unavoidable when this method is employed for executions. Medical practitioners may be hesitant to apply the medical skills they’ve acquired to save lives and use them to end them instead. Furthermore, individuals with average proficiency levels may lack the necessary qualifications to ensure a peaceful conclusion for those facing execution. Finding a vein for intravenous (IV) insertion has been a problem in some cases, particularly in the US. This extends what was supposed to be a quick and painless death and raises the possibility of incisions in an inmate’s leg or neck to administer the chemicals. Such complications undermine the primary rationale for seeking an alternative, more humane execution method.

Is the Death Penalty Moral?

This brings us to the question: is there a moral way of executing the death penalty? Or is the death penalty even moral in the first place? It is submitted that the death penalty is immoral owing to a violation of several constitutional principles, and further, the death penalty has also been rendered redundant by the courts.

The judiciary has made capital punishment redundant. The imposition of the death penalty is now limited to the rarest of rare cases. Even in Amrit Singh v. State of Punjab, the Supreme Court revoked the death penalty of the accused, saying it was a “momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place.” Even such cases where the court itself recognised the brutal nature of the offence do not fulfil the criteria for the rarest of rare. The courts have essentially rendered capital punishment redundant by limiting it to extreme cases.

Capital punishment is also arbitrary due to a lack of specific criteria and because several irrelevant factors influence the decision. One such factor would be sex; women who kill and who are killed are judged by different standards than men who are murderers and victims. Further, other factors like race and ethnicity influence whether an individual will live or die. This shows a clear violation of Article 14 of the Constitution. Despite these several constitutional transgressions and the judiciary, itself severely curtailing capital punishment, they have refused to go the full mile and strike down capital punishment, possibly because a majority of the population still favours the death penalty.

A Moral Method of Capital Punishment

Further, to answer whether there is a “moral” method to execute the death penalty, the answer to that question is in the negative. There exists a level of cruelty in almost every mode of execution; even lethal injections as a mode of execution are not without its shortcomings, as stated above. Presently, none of the possible modes of execution completely fulfil the criteria laid down in Deena v. UOI. Moreover, even if such a mode of execution were to exist, the constitutional transgressions caused by capital punishment would not be rectified. Arbitrariness would still prevail as there lies no fixed criteria for determining when the death penalty should be given. Also, the influence of irrelevant factors such as race, ethnicity, and sex would not be done away with simply by changing the mode of execution. There is no way in which capital punishment can be enforced without violating constitutional principles.

Conclusion

An analysis of the methods employed in capital punishment in India unveils nuanced ethical and legal intricacies. Traditional hanging is criticised for its potential to cause suffering and its inability to meet criteria set in precedents.  Although considering alternatives such as lethal injections may appear more humane on paper, their practical application is complicated by ethical and practical considerations. The pursuit of a “moral” method of execution remains elusive. In light of the present legal climate, a thorough reassessment of the death penalty is necessary, taking into account constitutional tenets, societal viewpoints on justice, and ethical considerations.