Report No. 187
Mode of Execution of Death Sentence
The Commission in this background proposes to comparatively analyse various modes of execution of death sentence and suggest the most humane, least painful mode, with no mutilation of body and easy to execute. This chapter aims at a comparative analysis of the Hanging, Intravenous Lethal Injection and Shooting. This analysis is founded on some basic and widely accepted norms.
These are drawn from the cases decided by Hon'ble Supreme Court of India, findings of the Commissions and resolutions adopted by the United Nations Economic and Social Council(ECOSOC resolution as to standards and safeguards guaranteeing protection of the rights of those facing the death penalty viz; Economic and Social Council Resolution 1984/50, annex. General Assembly Resolution 29 / 118, 1984.).
The test laid down in Deena v. Union of India (1983)4 SCC 645 provides that the execution of death punishment should satisfy the threefold test viz;
1. It should be quick and simple as possible, the act of execution should be as quick and simple as possible and free from anything that unnecessarily sharpens the poignancy of the prisoner's apprehension.
2. The act of the execution should produce immediate unconsciousness of the person passing quickly into the death
3. It should be decent.
4. It should not involve mutilation.
The ECOSOC describes one of the important standards and safeguards against the death penalty and this is enunciated in safeguard No.9 as,
"Where capital punishment occurs it shall be carried out so as to inflict minimum possible suffering."
The execution of the death sentence by hanging by rope has to be judged with reference to the objective factors such as the international standards or norms or the climate of the international opinion, modern penological theories and evolving standards of human decency. The standard of human decency with reference to death punishment is required to be judged with reference to various aspects which vary from society to society depending on the cultural and spiritual tradition of the society, its history and philosophy and its sense of moral and ethical values.
To take an example, if a sentence of cutting off the arm for the offence of theft or a sentence of stoning to death for the offence of adultery were prescribed by law, as practiced in South Africa, there can be no doubt that such punishment would be condemned as barbaric and cruel in our country, even though it may be regarded as proportionate to the offence and hence reasonable and just in some other countries. So also the standards of human decency vary from time to time even with in the same society.
In an evolutionary society, the standards of human decency are progressively evolving to higher levels and what was regarded as legitimate and reasonable punishment proportionate to the offence at one time, may now according to the evolving standards of human decency, be regarded as barbaric and inhuman punishment wholly disproportionate to the offence.
It may be observed that even when a dog is to be killed, shooting it is no longer a norm but it is killed by intravenous injection. Therefore the question arises as to why man should be executed through archaic method of extinguishing a life?
In light of the above safeguards and views, it is important to note here the view taken by Justice Bhagwati (in dissenting Judgment) in Bachan Singh v. State of Punjab 1982(3) SCC 25). The said view is as follows:-
"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, p. 73), the Japanese Supreme Court held that execution by hanging does not correspond 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 36drop to assure breaking of the neck, the size of the neck, body measurements 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 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 from 8 to 14 minutes before the doctor, who has climbed up a small ladder and listens to his heartbeat with a stethoscope, pronounces him dead. A prison guard stands at the feet of the hanged person and holds the body steady, because during the first few minutes there is usually considerable struggling in an effort to breathe.
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 long, the head will be torn off. In England centuries of practice have produced a detailed chart relating a man's weight and physical condition to the proper length of drop, but even there mistakes have been made. In 1927, a surgeon who witnessed a double execution wrote :
"The bodies were cut down after fifteen minutes and placed in an antechamber, when I was horrified to hear one of the supposed corpses give a gasp and find him making respiratory efforts, evidently a prelude to revival. The two bodies were quickly suspended again for a quarter of an hour longer Dislocation of the neck is the ideal aimed at, but, out of all my post-mortem findings, that has proved rather an exception, which in the majority of instances the cause of death was strangulation and asphyxia.
(These passages clearly establish beyond doubt that the execution of sentence of death by hanging does involve intense physical pain and suffering, though it may be regarded by some as more humane than electrocution or application of lethal gas." These observations of Bhagwati, J., are clear in light of the fact that most of the developed as well as developing countries have replaced the mode of execution by hanging by the modes of intravenous lethal injection or by shooting. The description of these methods of executions prove that the death penalty by hanging involves immense pain and suffering.
It is with these views and the observations made in relation to the various other modes of execution that the lethal injection becomes acceptable as the most humane method of execution of the death sentence. This mode involves less pain and suffering to the convict undergoing the death sentence. The death as a result of the hanging in most of the cases is because of the asphyxia or strangulation which causes the lingering and painful death of the condemned person. We may here again quote from justice Bhagwati's (supra) judgment:
"30. If this be the true mental and physical effect of death sentence on the condemned prisoner and if it causes such mental anguish, psychological strain and physical agony and suffering, it is difficult to see how it can be regarded as anything but cruel and inhuman. The only answer which can be given for justifying this infliction of mental and physical pain and suffering is that the condemned prisoner having killed a human being does not merit any sympathy and must suffer this punishment because he 'deserves' it.
No mercy can be shown to one who did not show any mercy to others. But, as I shall presently point out, this justificatory reason cannot commend itself to any civilized society because it is based on the theory of retribution or retaliation and at the bottom of it lies the desire of the society to avenge itself against the wrong-doer. That is not a permissible penological goal."
It is important to state here that the Law Commission of India is aware that the views expressed by the learned judge in the above mentioned case are not a result of any special bias as is clear from what is stated in the Para 38 of the judgment:
"I may make it clear that the question to which I am addressing myself is only in regard to the proportionality of death sentence to the offence of murder and nothing that I say here may be taken as an expression of opinion on the question whether a sentence of death can be said to be proportionate to the offence of treason or any other offence involving the security of the State."
It is also important to mention here the viewpoint adopted by the Supreme Court in the case of Deena v. Union of India, 1983 (4) S.C.C. 645 with regard to the lethal injection based on the information and practice of the use of lethal injection prevalent more than two decades ago. It was observed as follows,
"76. What remains now to consider is the system of lethal injection. The Royal Commission has discussed that method in paragraphs 735 to 749 of 39its Report. Lethal injection is by and large an untried method. But that is not its most serious defect. The injection is 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 Report).
The British Medical Association told the Commission that no medical practitioner should be asked to take part in bringing about the death of a convicted murderer and that the Association would be most strongly opposed to any proposal to introduce a method of execution which would require the services of a medical practitioner, either in carrying out the actual process of killing or in instructing others in the technique of that process.
The Commission expressed its conclusions 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 would bring about death more quickly, painlessly and decently in all cases. The Commission, however, recommended, unanimously and emphatically, that the question should be periodically examined, specially in the light of the progress made in the science of anaesthetics.1 "
1 This issue from Law Commission's 35th Report On Capital Punishment 1967 has been already been dealt in the introduction to this report.
This was also, as mentioned earlier, the opinion of the Law Commission of India expressed in its 35th Report of 1967.
In light of these observations it is important to note that the process of administering lethal injection is not regarded as a practice of medicine and most of the states in the U.S.A. are able to overcome this issue and outside the scope of medical ethics. One of the solutions to this problem is to train persons having knowledge of the 8 . 40medicine and related field specifically for this purpose, and to see that such persons are designated by the appropriate authority in this behalf (similar practice adopted in various States of U.S.A. e.g. New Jersey, Montana, Idaho etc.).