Even though the constitutional validity of the death penalty has been upheld by the Supreme Court, there have been persistent constitutional concerns with various aspects of the administration of the death penalty. Recent proceedings in the Supreme Court have, after nearly four decades, put the spotlight on the mode of execution in death penalty cases. It is inevitable that the Supreme Court will move towards the realisation that the concerns with the mode of execution to kill prisoners on death row raise insurmountable constitutional concerns.
Death row prisoners in India are executed by hanging and the constitutional validity of hanging was last considered and upheld by the Supreme Court nearly four decades ago in September 1983 (Deena v. Union of India). The Law Commission of India in October 2003 (187th Report) recognised the constitutional impermissibility of death by hanging and recommended that India consider using lethal injections instead. However, the two decades since the 187th LCI Report have seen a series of botched up executions in the US involving lethal injections.Earlier this week, the Supreme Court was called upon to reconsider its September 1983 decision on whether India could continue using hanging for executions. While the petitioner’s claim was that we must move to lethal injection as a humane method of execution, the proceedings raise some fundamental constitutional questions for the administration of the death penalty. The most immediate question is whether there exists any mode of execution that can meet constitutional requirements. It obviously cannot be the position that merely because the death penalty is currently permissible it is then open to the state to use any method of execution. Any mode of execution that the state adopts must be capable of meeting constitutional requirements and that is a burden for the state to discharge.
There is now a strong body of evidence establishing that death by hanging is a cruel and barbaric form of execution that violates human dignity. Contrary to the belief of “instantaneous death” by dislocating the cervical vertebrae, documentation of hangings in the US and the UK expose the cruel “lingering” between life and death as they undergo immense suffering due to asphyxiation before dying. Research is replete with instances of snapped ropes, necks that slipped out of nooses, partial or total decapitations, and slow death due to strangulation (instead of having the neck broken). The immediate and the painless nature of death attributed to hanging is an exception rather than the rule. Various courts including the Privy Council, Supreme Court of Uganda and the High Court of Tanzania have relied on the suffering caused by hangings to reject it as a humane method of execution.
Like the Law Commission in October 2003, the petitioners in last week’s proceedings seem to be keen to replace death by hanging with lethal injections. However, there is now incontrovertible evidence from the US that executions using lethal injections come with a real and substantial risk of being botched and leading to immense suffering. In fact, a study published by the British Journal of American Legal Studies (2012) that examined 9,000 executions in the US between 1900 to 2010 found that executions using the lethal injection had a higher rate of being botched than any other method. In addition, the Death Penalty Information Center, a non-profit in the US, catalogues 59 different instances of botched executions including 47 by lethal injection. While the US continues to use lethal injection as a mode of execution, the procedure has not been scientifically or medically studied on human beings. Most states rely on a three-drug combination of sodium thiopental, pancuronium bromide and potassium chloride. While sodium thiopental puts the prisoner to sleep, pancuronium bromide renders the prisoner paralytic and unable to show any pain before potassium chloride causes cardiac arrest. Any suffering that the prisoner goes through as a result of the induced cardiac arrest is masked by the effect of pancuronium bromide.
The petitioners in the current instance seem to have approached the court with the intention of wanting to reduce the pain of death row prisoners during executions. However, as Austin Sarat’s thought provoking work on the history of executions in the US has shown us, the conversation about “reducing pain” during executions is really about those viewing executions wanting to see less pain. Historically, societies using the death penalty have moved towards either carrying out executions in private away from the public gaze (like India does in its prisons with very few people witnessing the execution) or towards sanitising executions to make them look clean and without suffering (like the lethal injection executions in the US). However, neither of these options are really concerned with reducing pain for the prisoner and neither can they really achieve that reduction of pain. Society, as a consumer and supporter of the death penalty, does not want to see the immense suffering that is inflicted in killing the death row prisoner. As Sarat powerfully argues, it is almost like society wants to convince itself that it is killing the death row prisoner in a “civilised” way in contrast to the “savage” crime of the prisoner itself. It is now evident that all methods of execution that retentionist countries use inflict tremendous suffering on the death row prisoner.
The search for the “least painful method” is ultimately an endeavour in how much cruelty we are willing to tolerate. It is about our collective willingness to inflict cruelty on an individual while wanting to appear otherwise. Instead, it would be better for us to acknowledge that issues surrounding the methods of execution present yet another constitutional crisis point in the administration of the death penalty. Just like the arbitrariness in death penalty sentencing, the discriminatory and disparate impact of the death penalty on marginalised groups, the brutal realities of life on death row, and the mental health consequences of being on death row, the constitutional infirmities with the method of execution is yet another reason to revisit the very administration of the death penalty in India. Over the four decades since the constitutional validity of the death penalty was upheld, it is striking that significant constitutional concerns have emerged over every aspect of its administration without exception.
The author is Professor of Law and executive director, Project 39A at National Law University, Delhi. Research support by Namrata Sinha and Lakshmi Menon.