Abolish Death Penalty India: Lethal Injection

Wednesday, May 20, 2009

Lethal Injection

Law commission report proposes lethal injection for the death penalty
Vijay Hiremath

India is currently one of only 83 countries retaining the death penalty. In India, the death penalty is imposed by way of hanging or shooting. Recently, the Law Commission of India circulated a document entitled 'Consultation Paper on Mode of Execution of Death Sentence and Incidental Matter'. This document contained a questionnaire polling opinions on methods of execution. The questionnaire however, neither questions the use of the death penalty itself nor whether this method of punishment is necessary and justified.

The 'Consultation Paper' has been confined mainly to the following three issues: the method of execution in the death sentence; the process of elimination of difference in judicial opinion among judges of the apex court in passing the sentence of death penalty; and the need to provide to the accused a right of appeal to the Supreme Court in such cases.

Method of execution
In India, the death sentence is currently executed through hanging or shooting. The Criminal Procedure Code dictates that hanging should be the mode of execution and the Army Act, Navy Act, and Air Force Act dictate that the mode of execution for all persons sentenced to death should be shooting.

In Deena V. Union of India (1983)4 SCC 645, the apex court held that the execution of death should satisfy the following criteria: 1. It should be as quick and simple as possible.
2. The act of execution should produce immediate unconsciousness passing quickly into death.
3. It should be decent.
4. It should not involve mutilation.

Execution by hanging does not meet any of these requirements. There have been several cases reported where hanging has not immediately resulted in a broken neck and thus the convict is left to slowly strangle to death. This strangling results in the convict's eyes popping almost out of his head, his tongue swelling up and protruding from his mouth. In cases where the neck is in fact broken, the rope often tears large portions of the convict's flesh and muscle from that side of the face where the noose is. In many cases, the convict will end up urinating on himself and defaecating before death. The prisoner remains dangling from the end of the rope for 8-14 minutes before a doctor climbs up a small ladder and listens to his heartbeat with a stethoscope and pronounces him dead. Given these facts, it is clear that hanging is neither a quick and simple nor a decent method of execution as it involves mutilation of the body and, in some cases, prolonged suffering and torture before death.

Lethal injection is the method of execution currently being contemplated by the Law Commission. The proposition for using this method was first introduced in a medico- legal journal in New York, USA in 1888. In 1977, this proposition was re-introduced by Dr Stanley Deutsch, of the Oklahoma Medical School. Lethal injection is the primary method of execution used in the USA. As per the description provided in the Consultation Paper of the Law Commission, this method of execution involves the prisoner being secured on a gurney with lined ankle and wrist restraints. A cardiac monitor and a stethoscope are attached to the prisoner, and two saline intravenous lines are started, one in each arm. The saline intravenous lines are turned off, and sodium thiopental is injected, causing the inmate to fall into a deep sleep. The second chemical agent, pancuronium bromide, a muscle relaxant, follows. This causes the inmate to stop breathing due to paralyses of the diaphragm and lungs. Finally, potassium chloride is injected, stopping the heart.

This method, of all those available, appears to be the quickest and least painful. However, the reality is that even this method can result in cruel and unusual suffering. Amnesty International has documented numerous 'botched' executions involving lethal injection. The case of Scott Carpenter, who was executed in Oklahoma on May 18, 1997 serves as a prime example of this. Two minutes after the injection was administered, Carpenter started making noises; his stomach and chest had 'palpitations', and his body suffered 26 violent convulsions in the process. He was officially declared dead only 11 minutes after the injections were first administered.

The role of doctors in all methods of execution is very important. In cases where execution is by hanging, the doctors only check whether the person is actually dead or not. In cases of lethal injection, a medical expert is required to administer the injection and as such the doctor is directly involved in the execution. In these cases, the line between a medical practitioner and an executioner is crossed. Internationally, there have been many medical associations that have taken a stand that no medical practitioner should be asked to take part in bringing about the death of a convict. The British Medical Association held that it was opposed to any proposal to introduce a method of execution that would require the services of a medical practitioner.

The principle behind this reasoning is that the medical profession is intended to save lives, not to bring an end to them. It seems only appropriate that the Indian Medical Association and all other Indian organizations responsible for the practice of medicine in this country should state their position on this issue and convey their sentiments to the Law Commission of India. Our medical practitioners, sworn to protect lives, should not be participating in the execution of any individual, whatever the circumstances. A statement of this kind on the part of medical associations would greatly advance the move for complete abolition of the death penalty in India.

It has been proven through research that the death penalty does not functionally act as a deterrent to violent crime. The crime rate in Canada, where the death penalty was abolished in 1998, has substantially reduced since the abolition. At the same time, in the USA, a country where the socioeconomic climate is very similar to that of Canada but which has retained the death penalty, the crime rate has been consistently on the rise for a number of years.

Unanimity in decision
It is essential, in cases where the penalty is so severe, that there be unanimity among the judges awarding the death penalty. However, there are often differences of opinion among apex court judges in such hearings. Even if only a minority of the judges differ in their opinion, in these cases it is not reasonable to impose the death penalty. Rather, such convicts should be granted life imprisonment. However small the voice of opposition may be among the judges, such convicts should be granted some form of mercy.

Right to appeal
It is of utmost importance that in all cases where the death sentence is imposed or confirmed by the High Court there must be an automatic appeal made directly to the Supreme Court. Every convict who is facing a death sentence is entitled to a chance to appeal his conviction and save himself from the gallows. There are many mitigating circumstances that may have resulted in a person being wrongly convicted and sentenced to death. The accused may be poor and may not have received competent representation at the time of the trial. In any case where the state is electing to execute and thus terminate the life of one of its citizens the decision must be confirmed, as a matter of prudence, by the highest court of the land, and that too, unanimously.

The death penalty has existed since the beginning of recorded history. In all this time, it has never proven to be effective as a deterrent to crime in the way that popular perception would have it. No method of executing a human being can be termed as decent and humane because killing, whether it is done by the state or by an individual, constitutes an inhumane act in and by itself. The only humane solution that the Law Commission should offer the Government of India is the complete abolition of the death penalty.

This summary with comments is carried to generate public debate on the subject. Readers are encouraged to write in with their comments on the summary as well as the main report which is available on the internet athttp://lawcommissionofindia.nic.in/cpds1.pdf

The article was first published in Indian Journal of Medical Ethics in Jul-Sep 2003
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The Death Penalty Scenario in India

India is one of the 193 countries that retains death penalty. There has always been a few imminent judges who have pronounced compelling verdicts upholding the rights of prisoners on death row. There has been increasing debate in various platforms advocating abolition of death penalty or at least to rethink sentencing policies in India. The Indian government has however always been committed to the retention of the death penalty, irrespective of their political ideology. India has voted against a United Nations General Assembly (UNGA) draft resolution on the use of death penalty, saying it goes against the statutory law of the country where an execution is carried out in the "rarest of rare" cases. India retains the death penalty as punishment for a number of crimes including murder, kidnapping, terrorism, desertion, inducement to suicide of a minor or a mentally-retarded person and has more recently in 2013 come to include the offence of rape in certain circumstances. Most recently, there is an outrage over child rape and murder.

After observing an unofficial moratorium of 8 years in India, the Indian Government in November 2012 carried out the execution of Ajmal Kasab, convicted in the Mumbai attacks case, without public knowledge. This was followed by the secret execution of Afzal Guru, convicted in the Parliament attack case of 2001, in February 2013, under similar circumstances, without intimating his immediate family or affording a chance of judicial review. In both cases, the executions were carried out under covert operations conducted by the Government immediately upon rejection of their mercy petitions. Before these executions, the last execution to be carried out in India was that of Dhananjoy Chatterjee in 2004 who was convicted of rape and murder and which sentence was carried out after he had spent 13 years in solitary confinement. Following this, several mercy petitions of death row convicts have come to be rejected. The fear of execution of such convicts is imminent. Bolstered by the Government's unapologetic conduct and public outcry, especially in recent cases of rape and murder reported in the country, the courts are continuing to hand down death sentences at an alarming rate.

In the recent past, there have been a few empirical studies (mainly four) conducted with prisoners on death row. This has highlighted the situation of prisoners on death row.

(1) Most recently the India Exclusion Report 2017-18 found that fair trial rights and guarantees are reduced to a nullity and seeks to breach the citadel of the collective silence. It further said that Convicts on death row in India belong to groups marginalised along the axes of caste, religion, economic vulnerability and educational deprivation, and their fair trial rights, though a part of the Right to Life guaranteed by the Constitution, are invariably non-existent, a survey of 371 out of the 385 persons living under the death sentence and their families has revealed.

(2) Another study was The Death Penalty Research Project (2015) which was conceived with an aim to document the socio-economic profile of prisoners sentenced to death in India and map their experience within the criminal justice system.

There were two other academic studies that were done conducted by Dr. Reena Mary George –

(3)“Voices of prisoners surviving the death row in India” (2014) done through the University of Vienna under the guidance of Prof. Dr. Christoph Reinprecht (Sociology) and Prof. Dr. Manfred Nowak (Law and Ex-United Nations Rapporteur on Torture). George’s research highlights three salient features, namely: poverty, social exclusion and marginalisation are antecedent to death penalty; death penalty is a constructed account by the state machinery; and prisoners on death row situate dignity higher in the juxtaposition of death and dignity.

(4) Another one “Death Penalty – A Human Rights Perspective” (2009) done through the University of Mumbai under the guidance of Retired Justice Hosbet Suresh. This was a study in Maharashtra with the objectives to firstly study the impact of death penalty on the social, mental, and physical being of the inmate and secondly, to study the perception of opinion leaders on death penalty with reference to human rights. All the above reports are public documents.

According to the National Crime Records Bureau, Prison Statistics 2015, there are 101 prisoners sentenced to death. The actual figure of sentences originally awarded is much higher considering the death sentences of 49 convicts came to be commuted to life imprisonment in the said period. As of today, almost in 2019, the figures are unknown through government statistics, however, research centres claim this figure to be around 371 convicts. During the 1980s the Supreme Court sought to restrict the use of the death penalty by characterizing it as a punishment reserved only for the “rarest of the rare” cases. The doctrine has not had the desired effect. According to a former chief justice of the Delhi High Court, Rajindar Sachar: “after the rarest of rare doctrine was introduced in 1980, the Supreme Court confirmed death penalty in 40 per cent of cases in the period 1980-90 while it was 37.7 per cent between 1970 and 1980. For the high courts it rose from 59 per cent in 1970-80 to 65 per cent during 1980-90”. Over the past two decades the death penalty has been extended to include more crimes and been handed down with increasing frequency.

Most recently while commuting a sentence in Supreme Court (2018), Justice Joseph did not seek the reconsideration of the Bachan Singh judgment, but only sought to re-examine the purpose and practice of the death penalty, and whether as a punishment, it serves any goal at all. In other words, the death penalty can continue to remain constitutionally valid because of the Bachan Singh judgment, but its application in substantive cases coming before the court must be restricted to only those cases which meet the criteria laid down in that case.

While updating the blog and conducting my own empirical studies, I observed the heinous nature of the crimes that were committed and thought about the families, about their loss, about the victims who for no fault of their own died. If I lost my relative or a dear friend, would I still oppose death penalty and would I still advocate to abolish the death sentence? Having worked in the criminal justice system and also having the seen the other side, where often it is the marginalized, vulnerable and oppressed who are on death row makes me want to advocate for abolition of this punishment. Victims should definitely get justice for their loss, for their pain. No one should escape the rule of law. As long as humanity exists; crime will exist. Should we not re-consider our sentencing policies?

Reena Mary George

Abolish Death Penalty India

Wednesday, May 20, 2009

Lethal Injection

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