death by firing squad as a legal way to end a convict’s life. The question of the noose was addressed by the Supreme Court in the Deepa Vs Union of India judgement in 1983, almost 34 years ago, but the horror that accompanies hanging was explicitly expressed only in this one.
Justice Bhagwati, in his minority judgement, provided a graphic description of the execution process. Here’s an extract: “The day before an execution, the prisoner goes through the harrowing experience of being weighed, measured for the length of (the) drop 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 does not break, and the prisoner strangles to death. His eyes almost pop out of his head, his tongue swells and protrudes from his mouth, his neck may or may not break, and the rope claims large portions of skin and flesh from the side of the face. He urinates, he defecates, and droppings fall to the floor while witnesses look on, and almost all executions have had one or more person fainting or being helped out of the witness room. The prisoner remains dangling from the end of the rope for eight to 14 minutes before the doctor climbs up a small ladder and listens to his heartbeat with a stethoscope and pronounces him dead.”
While the case primarily tested the constitutionality of death by hanging, it also discussed alternative methods of execution. However, the eventual conclusion was that hanging is indeed the most humane, painless and speedy way to execute a felon.
Ruling in defense of hanging, the judges said: “Hanging by rope is not a cruel way to execute the death sentence. The mechanics of hanging have undergone significant improvement over the years, and it has almost been perfected into a science. The system is consistent with the obligation of the state to ensure that the process of execution is conducted with decency and decorum, and without causing degradation or brutality of any kind.”
The court then looked into alternative methods of execution that are in vogue elsewhere. Electrocution, lethal gas, shooting and lethal injection were all dismissed as likely alternatives because they were found to have no “demonstrable advantage” over hanging.
The option of electrocution was rejected because it was not an “entirely painless” mode of execution. “Besides, power cuts have been considered as an impediment to the use of the electric chair in America. With the frequency of power cuts in our country, the electric chair will become an instrument of torture,” the judges said.
They also refused to consider lethal injection as a mode of execution, stating that it was by-and-large an untried method. The firing squad idea was shot down on the grounds that it was an unreliable technique, and not a very “civilised” way of ending somebody’s life. The gas chamber method was likewise dubbed as a complicated one that would expose the prisoner to an uncommon level of torture
Nevertheless, it has to be acknowledged that a lot has changed since the 1983 judgement. Hanging as a mode of execution has come under severe scrutiny.
In 2003, the Law Commission of India took it upon itself to study the pros and cons of hanging as the choice mode of execution. This exercise, which invited comments on the matter from judges, police and members of the legal fraternity, threw up some astounding results.
According to the study, as many as 80% of the judges said the mode of executing the death penalty should be changed. They were all in favour of the lethal injection. However, this method is also known to have its problems, with several instances of botched-up executions cropping up in recent times.
The jury is still out on the pertinent question of, if not hanging, what is the best way to legally kill a person? The debate, at least, has begun.
India’s Law Commission has recommended that the country moves toward abolishing the death penalty, except in terrorism cases to safeguard national security.
It marks a shift for the body that advises the government on which laws have become outdated: In its previous major review in 1967, the commission concluded that India couldn’t risk the “experiment of abolition of capital punishment.”
This time around, in a 251-page document, “the Commission feels that the time has come for India to move towards abolition of the death penalty.”
At the moment, judges in India impose the death penalty in the rarest of rare cases, including treason, mutiny, murder, abetment of suicide and kidnapping for ransom.
In 2013, an amendment to the law permitted death as a punishment in cases where rape was fatal or left the victim in a persistent vegetative state; as well as for certain repeat offenders.
According to the Law Commission report, recent executions have been few and far between. The latest was the execution of Yakub Memon in July. He was found guilty of being behind a series of explosions that rocked Mumbai in 1993, killing more than 250 people. On average, 129 people are sentenced to death row in India every year, the Law Commission report said, citing figures from the National Crime Records Bureau.
Despite the fact that death sentences are rarely converted to executions in India, the Law Commission said the penalty should be abolished in most cases. Here are the reasons the Law Commission gave:
Previously, in reviewing the death penalty, the Law Commission rejected its abolition citing the size of the country and diversity of its population across which law and order had to be maintained.
India’s murder rate has declined, falling from 4.6 per 100,000 people in 1992 to 2.7 per 100,000 in 2013. That has coincided with a decline in the rate of executions, “raising questions about whether the death penalty has any greater deterrent effect than life imprisonment,” the report said.
India’s Supreme Court has raised questions about “arbitrary sentencing” in death penalty cases, the report said. Making the sentencing less arbitrary would be difficult since any categorization of offenses doesn’t take into account the differences between cases, it added.
Administration of criminal justice in India is in “deep crisis,” the report says. It cites a lack of resources, an overstretched police force and ineffective prosecution as among the reasons. As a result, the administration of capital punishment is vulnerable to misapplication, it said. Mercy powers have failed in acting as a final safeguard against a miscarriage of justice, the report says, adding that the Supreme Court has pointed out gaps and illegalities in how courts have discharged the powers.
People sentenced to death by Indian courts face long delays in trials and appeals, the report said. “During this time, the prisoner on death row suffers from extreme agony, anxiety and debilitating fear arising out of an imminent yet uncertain execution,” the Law Commission said. It added that solitary confinement and harsh conditions imposed on prisoners were degrading and oppressive and that the Supreme Court had acknowledged that the circumstances of being on death row in India amount to “near torture” for the convict.
India has retained capital punishment while 140 countries have abolished it in law or in practice, the report says. That leaves the South Asian nation in a club with the US, Iran, China, and Saudi Arabia as a country which retains it.
What set Afzal Guru's killing apart is that, unlike those tens of thousands who died in prison cells, his life and death were played out in the blinding light of day in which all the institutions of Indian democracy played their part in putting him to death.
Now that he has been hanged, will our collective conscience be satisfied? Or is our cup of blood still only half full?