The debate on capital punishment has been revived once again following the execution of Yakub Memon and the recent Law Commission report. I do not wish to dwell on the actual conviction; the comparisons made with Maya Kodnani and Dara Singh; or the recent data which indicates that 75% of those sentenced to death in India between June 2013 and January 2015 were from less privileged backgrounds. The inconsistencies, the double standards and bias are a matter of record; even the Law Commission has termed the death penalty as excessive, arbitrary, unprincipled, judge-centric and prone to error; and recommended abolishing it.
My purpose is to look into the actual process of capital punishment which is intended to deter and punish in the “rarest of rare cases”. The phrase was extended by the Supreme Court in 2011 to “honour killings”; later to fake encounters and dowry deaths. Only the inclusion of corrupt politicians is pending! The “Presidential Pardon” under Article 72/161 of the Constitution, has been reduced to a political farce shackled to the opinion of the MHA and the pleasure of the cabinet; which in turn is driven by political considerations. There have been unsuccessful attempts by the Law Ministry to undo this coupling. Inordinate delays in dealing with petitions have led the SC to declare that the delay itself can be grounds for commuting the sentence to life imprisonment.
The concept of deterrence has no basis. In Canada, in 1975, the homicide rate per 100,000 population was 3.09. Capital punishment was abolished in 1976, and the homicide rate dropped to 1.8 by 2000; largely due to better policing and social factors. Ditto in Australia. Israel, faced with greater threats of terrorism than India, has not executed anyone since 1962. In fact the threat of the death penalty is believed to provide an incentive to murder the victim after rape, to avoid identification. As for punishment; whilst there is no doubt that some crimes provoke extreme disgust and anger, justice must remain distinct from cries for vengeance.
In India, the death penalty implies hanging for half an hour, after which the victim is to be examined by a doctor to certify death. In 1995 the Supreme Court agreed that keeping the body hanging for half an hour was barbarous and ruled that “a convict shall remain hanging only till he is declared dead by a medical officer”. This means that a doctor must examine a victim every minute or so in the hanging position, and if found alive, must so inform the jail authorities so that the hanging may continue, without providing any relief to the victim.
The Supreme Court ruled in “Deena vs Union of India” 1983, that the death should be “quick, simple, decent, and without mutilation causing immediate unconsciousness passing to death”. Hanging precipitates immediate death only when it causes a specific type of fracture of the second cervical vertebra known as the “hangmans’ fracture”. This compresses the vital centers at the brain stem, causing instant death. The problem is this is exceptional. In one study only 6 out of 34 cases had neck fractures, and of these only 3 had the classical “hangmans’ fracture”. In the majority of cases, death effectively occurs by strangulation and asphyxia. It is painful, prolonged and gruesome; with the victim thrashing about for 20 minutes or so. The tongue swells and protrudes from the mouth, the eyes pop out of the head, with severe congestion of the head and neck veins. There is bowel and bladder incontinence; sometimes terminal ejaculation. The skin of the neck is often ripped off by the rope; sometimes causing decapitation (as occurred in a judicial hanging in Karachi on 4th Aug 2015). Is this really what our Supreme Court meant by “quick, simple, decent and without mutilation”?
In 2003, the Law Commission recommended that hanging be replaced by lethal injection. This was discussed by the MCI Ethics Committee in April 2003, which decided that the death penalty should be abolished altogether. It is a curious historical fact that all the methods of execution have been designed by the medical fraternity. Today doctors are expected to examine the patient before the execution and if necessary, provide treatment, including psychiatric treatment so that the convict becomes “fit” to be killed! The execution is to be monitored without providing any medical assistance. Death is to be certified, and if applicable, harvesting of donor organisms for transplantation facilitated. The concept of being involved in the process of killing, however well camouflaged in legal jargon is totally abhorrent and contrary to the very core of the Hippocratic Oath.
Till date about 140 countries have abolished capital punishment. Professional bodies like the WMA, WPA, the International Council of Nurses, the AMA and BMA have condemned the involvement of doctors in executions as unethical. Our enthusiasm to change street names to erase memories of our colonial heritage contrasts with our hesitation to dump this colonial baggage. It is high time we extricated ourselves from the medieval dark ages and joined the mainstream of civilized societies. The Law Commissions observations that “the death penalty has no demonstrable utility in deterring crime” must prompt our legislators to remove capital punishment from the statute books and replace it with life imprisonment for the life of the criminal, with hard labour.
(Dr Gladstone D’Costa is the Chairman, Accreditation Committee and member, Executive Committee, Goa Medical Council.)
