Is there a humane way of executing death penalty?

The last few days have been interesting for the death penalty in India. The Supreme Court (SC) commuted the death sentence of Sundar alias Sundarajan because the possibility of his reform could not be ruled out; it ordered the release of a death row prisoner Narayan Chaudhary because he was 12 at the time of the arrest (he spent 25 years on death row); and it saw a discussion on the logistics and methods of executing a death sentence.

During this discussion, the judges inquired about humane modes of execution that were scientific in nature. In 1983, death by hanging was adjudicated by the top court to be the least painful way of executing a person. This reiterated the findings of the report by the 35th Law Commission (1967), but in 2003, a report by the 187th Law Commission indicated that execution by lethal injection might be a more humane way to execute a person.

Last week, the petitioner in the case argued that we must replace executions by hanging with lethal injections because this is less painful. Data from the United States — where lethal injections are currently the preferred way of execution — however indicates that this method, more often than not, leads to an excruciating death.

Research indicates that death by lethal injection may lead to less physically observable ways of a painful death because the drug protocol involves anaesthetic and paralytic drugs before the cardiac arrest-inducing drug is administered, but they do not guard against extreme pain. The anaesthetics and paralytics help the viewer by minimising the physical manifestations of the pain, but do not protect the person being executed from the trauma of pain.

The hearing in the apex court was very clinical, with science, drug protocols, pain and dignity in death being discussed. It prompted the Chief Justice of India to ask whether there could ever be a method of executing prisoners that would pass constitutional muster. Disguised behind the largely clinical and logistics-driven discussion was an uncomfortable reality — we were deliberating on ways to end a person’s life. This was not a discussion on euthanasia, where the person opts to end their life through active means (active euthanasia is not legal in India) or passively by refusing treatment (passive euthanasia was recently made legal).

In a country which imposes the death penalty where the law is forced to create legal fiction permitting the taking of life, this is not surprising. But if we are to allow the death penalty, we must also parse the technical jargon and the legalese. We first inflict terrible pain by sentencing people to death, and then try to soften the more immediate pain by resorting to phrases and values of “dignity in death”. But we must interrogate whether these discussions are reducing the pain for the person on death row, or the people watching.

In his book Limits to Pain, eminent criminologist Nils Christie meditates on the so-called “shield of words”. In the context of the criminal justice system, he talks about the cover that words can provide us to protect our sensibilities from the harm and pain that we knowingly inflict. The reason we take cover in words, Christie says, is to paper over the dissonance intentional infliction of pain creates with many of our commonly held values, such as dignity.

But there is another facet to this discussion. It further dehumanises the people sentenced to death, those who may be condemned to death but who are very much alive. Deliberating on humane ways to execute people treats death row prisoners as abstract entities, made real only because it involves the question of dignity in pain as a constitutional value. But if dignity in pain is our concern, then the constitutionality of this pain needs to be inquired into much prior to the last stage, i.e., the execution of the death sentence. Deliberations on methods of execution dehumanise death row prisoners in an attempt to restore our collective dignity.

To answer the original question — is there a constitutional way of executing a death sentence — the answer is no. The death penalty fails all legal and social ideals of dignity. The chaos in death penalty jurisprudence perhaps is an indication that the death penalty is fundamentally at odds with dignity.

Maitreyi Misra is director, Death Penalty Mitigation at Project 39A, National Law University Delhi. Project 39A provided legal representation to Narayan Chaudhary.