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Doctors as executioners

It was a doctor who invented the guillotine, a dentist who helped design the electric chair and an anaesthesiologist who conceived of the lethal injection. It is a doctor who climbs up a ladder to certify that a prisoner kept hanging for several minutes is actually dead, and a doctor who administers the lethal injection. It’s time, says Vijay Hiremath, that the medical fraternity took a stand against capital punishment since every method of execution is intrinsically cruel and violative of their professional ethics

In the last few years, the use of medical technology and the involvement of medical professionals in criminal investigations has increased. Narcoanalysis, brain mapping and other medical tests for the purposes of interrogation have been challenged as unscientific and a violation of human rights; essentially, they have been viewed as forms of torture to extract confessions from the accused. The Supreme Court of India, in a recent judgment regarding the use of these tests, ruled that they could not be conducted without the consent of the accused.

Though the role of health professionals in these methods has been widely debated, the Supreme Court has not commented on this aspect (1).

Doctors are also involved in the execution of the death penalty, inasmuch as they certify that the convict being executed has, in fact, died. In 1993, the Law Commission circulated a ‘Consultation Paper on Mode of Execution of Death Sentence and Incidental Matters’. There was a suggestion that lethal injection be used, which would further involve medical professionals in the death penalty by making them actually carry out the execution.

The death penalty in India

India continues to be one of the few countries in the world that has retained the death penalty, extending its application in recent years to include, for example, crimes under special laws such as the Organised Crime Control Acts enacted in various states, and the Unlawful Activities Prevention Act -- all under the guise of fighting terrorism. The number of people sentenced to death has increased in the last few years. Although one is thankful that executions have not taken place at the same rate at which death sentences have been awarded (the last execution in India occurred in 2004 when Dhananjoy Chatterjee was convicted and sentenced for rape and murder), we cannot assume that executions will continue to be stayed.

It has been pointed out that most pending mercy petitions are of poor people. Ex-President of India A P J Abdul Kalam in 2005 questioned the criteria for awarding the death sentence and mentioned that most mercy petitions pending with him at that point of time involved extremely poor people. People convicted in political cases are also more likely to receive the death sentence than others convicted of similar crimes. The case of Afzal Guru, who has been convicted in the Parliament attack case and sentenced to death, comes up every so often. His mercy petition is pending before the President of India. His execution has become a political issue, with many right-wing parties demanding that he be hanged immediately. In the case of Swami Shradhanand, the Supreme Court commuted the death sentence in 2008 but also held that a convicted person should not be released on parole or be liable for premature release. This too is a dangerous trend as, eventually, the country could abolish the death penalty only to substitute it with life imprisonment without chance of parole or premature release.

In the recent case of Mulla vs State of UP (AIR2010SC942), the Supreme Court, while deciding on the death sentence for the accused, who were from Uttar Pradesh and were extremely poor, held that the courts should examine socio-economic factors while awarding sentences, especially the death sentence.

Methods of execution

Section 354 (5) of the Criminal Procedure Code states: “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.” The Air Force Act, the Army Act and the Navy Act prescribe shooting as one of the additional modes of execution of persons sentenced to death.

On July 6, 2009, the Supreme Court rejected a petition filed by Ashok Kumar Walia stating that hanging was a painful method of execution and asking that it be replaced by lethal injection. The apex court asked the petitioner who was arguing in person to create public opinion on the issue (2). The petition was dismissed at the initial stage; no detailed arguments were heard on behalf of the petitioner.

Law Commission reports

The 35th Law Commission report in 1967 recommended that the mode of execution of the death sentence be replaced by a more ‘humane’ method of execution. The Law Commission of India, in 2003, in its 187th report recommended that Section 354 (5) of the Criminal Procedure Code be amended and alternative modes of execution be introduced. However, there has been no change in the method of execution in India.

The Law Commission report (3) contained responses to a questionnaire on the death penalty as well as on the method of execution. Eighty-nine per cent of people who participated in the survey said that Section 354 (5) should be amended. The survey also found that 73% of respondents wanted the mode of execution to be changed to lethal injection. An analysis of responses from judges who participated in the survey shows that 80% were of the opinion that Section 354 (5) of the Criminal Procedure Code should be amended.

The Law Commission report also showed that an overwhelming majority of people who participated in the survey believed that a person should have the automatic right to appeal to the Supreme Court once the high court has confirmed the death sentence. They also felt that a death sentence should be decided by a five-judge bench of the Supreme Court.

In Deena vs Union of India (4), the Supreme Court held that execution of the death sentence should satisfy the following criteria:

  1. It should be as quick and as simple as possible.
  2. The act of execution should produce immediate unconsciousness passing quickly into death.
  3. It should be decent.
  4. It should not involve mutilation.

Death by hanging does not satisfy any of the criteria laid down by the apex court. Yet it continues to be the only mode of execution in the country, apart from death by shooting as under the Army, Navy and Military Acts.

In 1995, the Supreme Court of India struck down a provision in the Punjab and Haryana Prison Manual that stated that the body of the person executed should be kept hanging for half-an-hour. The apex court held that a dead body too should be treated with dignity (5). There have been several cases reported where hanging has not immediately resulted in a broken neck, and the convict is left to slowly strangle to death. This results in the convict’s eyes popping almost out of his head, his tongue swelling up and protruding from his mouth. In cases where the neck is in fact broken, the rope often tears large portions of the convict’s flesh and muscle from the side of the face where the knot is. In many cases, the convict ends up urinating and defecating on himself before he actually dies. The prisoner remains dangling from the end of the rope for 8 to 14 minutes before a doctor climbs up a small ladder, listens for a heartbeat with a stethoscope, and pronounces him dead. Given these facts, it is clear that hanging is neither quick and simple nor a decent method of execution as it involves mutilation of the body and, in some cases, prolonged suffering and torture before death.

Across the world, methods for executing people sentenced to death include hanging, shooting, the electric chair, lethal injection and, in some countries, stoning.

Although lethal injection is widely believed to be less painful, there have been cases in the United States where the person is still alive 20 minutes after the injection has been administered (6).

The idea of using this method of execution was first put forward in a medico-legal journal in New York, USA, in 1888. In 1977, the issue was re-introduced by Dr Stanley Deutsch of Oklahoma Medical School. Lethal injection is the primary method of execution in the US. According to the description provided in the consultation paper of the Law Commission, this method of execution involves the prisoner being secured on a gurney with lined ankle and wrist restraints. A cardiac monitor and a stethoscope are attached to the prisoner, and two saline intravenous lines are started, one in each arm. The saline intravenous lines are turned off and sodium thiopental is injected, causing the inmate to fall into a deep sleep. The second chemical agent, pancuronium bromide, a muscle relaxant, follows. This causes the inmate to stop breathing due to paralysis of the diaphragm and lungs. Finally, potassium chloride is injected, stopping the heart.

Of all the methods available, lethal injection appears to be the quickest and least painful. However, the reality is that even this method could result in cruel and unusual suffering. Amnesty International has documented numerous “botched” executions involving lethal injection. The case of Scott Carpenter, who was executed in Oklahoma on May 18, 1997, serves as a prime example of this. Two minutes after the injection was administered, Carpenter started making noises; his stomach and chest had “palpitations” and his body suffered 26 violent convulsions in the process. He was officially declared dead 11 minutes after the injections were first administered.

In most of these methods of execution, medical professionals play an important role. Under no circumstances however are they to try to alleviate the pain or suffering of the person sentenced to death, if the person does not die immediately.

Medical professionals have also played a key role in discovering new methods of execution. In the 18th century, Dr Antoine Louis designed, and Dr Joseph-Ignac Guillotine advocated, the decapitating machine as a humane method of execution that became infamous as the guillotine. Dr Alfred Southwick, a dentist, helped design the electric chair that was considered “more humane” for many years. Medical expertise played a vital role in use of the gas chamber, even in hanging. Dr Stanley Deutsch, an anaesthesiologist, conceived of a lethal injection along the lines of intravenous induction of general anaesthesia. The first ‘clinical trial’ of the lethal injection was carried out in Texas in 1982, on a 40-year-old African-American man who was injected with anaesthetic agents as two doctors watched. He was dead within minutes (7).

Conclusion

With the recent terror attacks in Mumbai and bomb blasts in various cities all over the country there is little possibility of the death penalty being abolished in India in the near future. However, parliamentarians and the judiciary must realise that capital punishment is not a deterrent to crime; that criminal cases are not free from error and that innocent people may be sentenced to death; that the criminal justice system in India is completely stacked against the poor and that there is a greater possibility that, for a similar offence, a rich person will escape the noose while a poor person is hanged.

Capital punishment is barbaric and a violation of basic human rights. It is time the death sentence was abolished in India. There can be no argument for humane killing; every method of execution is intrinsically cruel.

Since doctors play a crucial role in all methods of execution, the line between medical practitioner and executioner becomes blurred. Internationally, there have been medical associations that have taken the stand that no medical practitioner will be asked to take part in bringing about the death of a convict. The British Medical Association held that it was opposed to any proposal to introduce a method of execution that would require the services of a medical practitioner. The American Medical Association has also taken the position that medical professionals participating in executions are going against the oath they take, and that such actions violate professional ethics.

The principle behind this reasoning is that the medical profession is intended to save lives, not bring an end to them. It seems appropriate that the Indian Medical Association and all other Indian organisations responsible for the practise of medicine in this country state their position on the issue. A statement by medical associations that Indian medical and health professionals will not participate in executions and the use of torture as a method of interrogation and investigation will greatly advance the move towards abolition of the death penalty and medically-based torture in India.

(Vijay Hiremath is an advocate practising in Mumbai) 

References 

1 Reference to the latest Supreme Court judgment
2 Times News Network. ‘Execution By Hanging to Continue: SC’, The Times of India, July 7, 2009.  http://timesofindia.indiatimes.com/
4 Deena vs Union of India (1983) 4 SCC 645
5 (1995) 3 Supreme Court Cases 248
6 Case of Scott Carpenter, executed in Oklahoma on May 18, 1997
7 Amar Jesani ‘Medicalisation of “Legal” Killing: Doctors’ Participation in the Death Penalty’, October-December 2004. http://www.ijme.in/124ed104.html

Infochange News & Features, December 2010