As part of the public celebration of 65 years of the rule of law, the Indian State staged two highly acclaimed plays of the same title, “Hanging Justice”, at two locations within hours of each other. Only one got critics’ attention. The other received no critical appraisal – its main actors, stage props, speed of transition from one scene to another, even the quality of the script were completely ignored. For “Hanging Justice” to be appreciated as the rule of law in India, both plays must be reviewed together since one is incomplete without the other.
Unfortunately, the one that got public attention is the one that was staged in the Supreme Court. There was extensive commentary on the integrity of the legal process, on the deficiencies in the treatment of the curative petition, on the late night drama – the 3 am knock at the Chief Justice’s door, which some argued showed the greatness of the Indian judicial process while others saw as spectacle without substance. The public, it seems, could not get enough of the discussions in the Supreme Court.
From the Attorney General’s charge of the accused as a “traitor” to the dismissal of the defence lawyers’ plea of the infirmity of the process, we were served high-octane drama. While many remarked that this was a measure of the maturity of the Indian judicial system, others wondered if it was not Inquisition redux. The performance of “Hanging Justice” in the Supreme Court kept the nation enthralled. The performance in the Nagpur jail was largely ignored. This must be remedied.
The lesser-known script
In an attempt to redress the imbalance, I propose to read the other script. It begins with the advice of great emperor Ashoka, who gave us our dharmachakra, that the “State should not punish with vengeance”. With this quote begins the 187th report on mode of execution of death sentence and incidental matters of the Law Commission of India. In its opening statement in chapter 1, the report endorses the views of the Royal Commission on Capital Punishment, 1949-53, “that three conditions should be fulfilled in executing the death sentence (a) it should be as less painful as possible; (b) it should be as quick as possible; and (c) there should be least mutilation of the body”.
Further, it observed that “whether there was any method still untried that would inflict death as painless and certain as hanging but with greater decency and without the degrading and barbarous association with which hanging is tainted… The Commission decided for various reasons that if lethal injection were to be constituted as method of judicial execution in the same case… The question should be periodically examined especially in light of progress made in the science of anesthetics”.
For the Law Commission, the direction of our moral evolution was unambiguous. Minimum pain, minimum mutilation, maximum speed, and continuous evaluation of the least painful method of execution in keeping with modern science. In short, it recommended the replacement of death by hanging with death by lethal injection.
This recommendation was given 13 years ago in October 2003 to the then Union Minister of Law and Justice, Arun Jaitley. It may also be worth noting that India was one of the key suppliers of the lethal cocktail of drugs used by US prisons for execution of condemned prisoners by lethal injection. Since the recommendations of the Law Commission have not been implemented, on July 30, this year, in Nagpur, an accused was hanged as per the instructions of the jail manual.
Did they suffer doubt?
This is a detailed script which specifies every step of the execution procedure. The Law Commission discusses the jail manual of Punjab and Haryana which is perhaps similar to the manual of the Nagpur Jail. It sets out in Chapter XXXI how the condemned prisoner’s cell must be checked twice daily, specifies the clothes to be worn, the diet restrictions to ensure that the condemned cannot commit suicide, the sequence to be followed on the day of execution, the height of the drop for persons of different weight, the nature of the rope and the method for testing it, and even the time of the execution in both summer and winter.
The manual directs that the Superintendent and Deputy Superintendent should identify the prisoner, read the warrant of death to him, and then get the necessary signatures from the condemned man. Reflecting on the current hanging I wondered if the officials looked into the condemned man’s eyes when they read out the warrant? As human beings, did they feel morally uncertain that they had to tell a healthy man that his death was to be carried out by them? Was there even a moment when they wanted to disobey the warrant or has the system indoctrinated them adequately to keep their emotions at home?
According to the manual, the prisoner should be led by the warden (another official) from the cell to the phansi yard. The manual directs the warden to hold his arm as he steps onto the platform, to help him, so to speak, to his own death. Here again more questions. Was the warden’s palm cold when he held the prisoner’s arm and was the arm warm? Did the warden think, again for that split second, that this arm would soon be ice cold, forever, because of untimely intervention, and that he was responsible for that intervention? These are thoughts that any ordinary human would naturally have but does not find mention in the jail manual. Odd that it should be ignored since it is a human that has to carry out the execution to ensure that the rule of law prevails.
The manual then moves on to give the executioner the stage. He shall strap, it says, the condemned prisoner’s “legs tightly together, place the cap over his head and face and adjust the rope tightly around his neck. The noose should be placed one and half inches to the right or left of the middle line and free from the flap of the cap. The warders holding the condemned man’s arms to withdraw at that time and at the signal from the Superintendent the executioner shall draw the bolt. The body of such condemned prisoner should remain suspended half an hour and shall not be taken down till the medical officer declares the life extinct. The Superintendent is required to return the warrant with the endorsement to the effect that the sentence has been carried out”.
Again more thoughts. What if the trap door does not open when the bolt is drawn? Should the executioner work it manually? In such an eventuality, is the prisoner to be freed for the failure or is he to be killed in a different way? Some months ago, in a US jail, a prisoner took hours to die because the injection given was ineffective. What are the executioner’s thoughts in these last moments when life ebbs away? Should we replace the executioner with a robot?
'Trustworthy' executioners
With considerable hesitation I have gone into this macabre script of the jail manual, giving details of how the execution is to be carried out. Although I was morally uncertain, I did it to bring into public debate the other ignored performance. How ethically paradoxical it is, I wonder, that the actors in the court engage in the high theory on the nature of the justice system, far removed from the choking of a dying man, while 10 ordinary persons are plucked from their ordinariness and asked to take the life of a healthy condemned man, as part of routine duty. The actors in the court go home to their routine and perhaps have a whisky. The actors in the jail live with the actual execution. Do they have a whisky, I wonder?
To understand the absurdity of the second script we need to read paragraph 868 of the jail manual on the executioner. “The execution is to be carried out by the public executioner, whenever service of such executioner are available. If such services are not available then some trustworthy individual who is locally trained is to be assigned this job. The duty is entrusted to the Superintendent to satisfy himself that the person so assigned is competent to fulfil the job.” What does “trustworthy individual” mean in the context of an execution? Is the “trustworthiness” of an Attorney General or a Law Minister the same as the “trustworthiness” of an executioner? Are they executioners in different ways? And then, not only must the executioner be trustworthy, the manual says, but he must also be “competent”. Who writes these job descriptions?
A healthy person was to be hanged on July 30, 2015. Officials were assigned specific tasks that ended with the hanging. A doctor was then required to confirm that that death had occurred. A certificate of death was issued. Newspapers reported that of the 10-odd officials who carried out the hanging, there were two women who played key roles from ensuring that the arrangements were in order to reading out the death warrant to the prisoner.
There seems to be something macabre here. Morally surreal. A healthy man to be hanged by faceless persons who were told that this was their job. One of them had to be trustworthy and competent. Another who had taken the Hippocratic Oath to save life was asked to stand and watch a healthy man’s life being taken away. Did they carry the scene from the phansi yard back home into their beds that night, have it lodged in their minds as they set about preparing meals and watching TV with their families?
Peter Ronald deSouza holds the Dr Sarvepalli Radhakrishnan Chair of the Rajya Sabha and is a Professor at the Centre for the Study of Developing Societies. Views are personal.
Unfortunately, the one that got public attention is the one that was staged in the Supreme Court. There was extensive commentary on the integrity of the legal process, on the deficiencies in the treatment of the curative petition, on the late night drama – the 3 am knock at the Chief Justice’s door, which some argued showed the greatness of the Indian judicial process while others saw as spectacle without substance. The public, it seems, could not get enough of the discussions in the Supreme Court.
From the Attorney General’s charge of the accused as a “traitor” to the dismissal of the defence lawyers’ plea of the infirmity of the process, we were served high-octane drama. While many remarked that this was a measure of the maturity of the Indian judicial system, others wondered if it was not Inquisition redux. The performance of “Hanging Justice” in the Supreme Court kept the nation enthralled. The performance in the Nagpur jail was largely ignored. This must be remedied.
The lesser-known script
In an attempt to redress the imbalance, I propose to read the other script. It begins with the advice of great emperor Ashoka, who gave us our dharmachakra, that the “State should not punish with vengeance”. With this quote begins the 187th report on mode of execution of death sentence and incidental matters of the Law Commission of India. In its opening statement in chapter 1, the report endorses the views of the Royal Commission on Capital Punishment, 1949-53, “that three conditions should be fulfilled in executing the death sentence (a) it should be as less painful as possible; (b) it should be as quick as possible; and (c) there should be least mutilation of the body”.
Further, it observed that “whether there was any method still untried that would inflict death as painless and certain as hanging but with greater decency and without the degrading and barbarous association with which hanging is tainted… The Commission decided for various reasons that if lethal injection were to be constituted as method of judicial execution in the same case… The question should be periodically examined especially in light of progress made in the science of anesthetics”.
For the Law Commission, the direction of our moral evolution was unambiguous. Minimum pain, minimum mutilation, maximum speed, and continuous evaluation of the least painful method of execution in keeping with modern science. In short, it recommended the replacement of death by hanging with death by lethal injection.
This recommendation was given 13 years ago in October 2003 to the then Union Minister of Law and Justice, Arun Jaitley. It may also be worth noting that India was one of the key suppliers of the lethal cocktail of drugs used by US prisons for execution of condemned prisoners by lethal injection. Since the recommendations of the Law Commission have not been implemented, on July 30, this year, in Nagpur, an accused was hanged as per the instructions of the jail manual.
Did they suffer doubt?
This is a detailed script which specifies every step of the execution procedure. The Law Commission discusses the jail manual of Punjab and Haryana which is perhaps similar to the manual of the Nagpur Jail. It sets out in Chapter XXXI how the condemned prisoner’s cell must be checked twice daily, specifies the clothes to be worn, the diet restrictions to ensure that the condemned cannot commit suicide, the sequence to be followed on the day of execution, the height of the drop for persons of different weight, the nature of the rope and the method for testing it, and even the time of the execution in both summer and winter.
The manual directs that the Superintendent and Deputy Superintendent should identify the prisoner, read the warrant of death to him, and then get the necessary signatures from the condemned man. Reflecting on the current hanging I wondered if the officials looked into the condemned man’s eyes when they read out the warrant? As human beings, did they feel morally uncertain that they had to tell a healthy man that his death was to be carried out by them? Was there even a moment when they wanted to disobey the warrant or has the system indoctrinated them adequately to keep their emotions at home?
According to the manual, the prisoner should be led by the warden (another official) from the cell to the phansi yard. The manual directs the warden to hold his arm as he steps onto the platform, to help him, so to speak, to his own death. Here again more questions. Was the warden’s palm cold when he held the prisoner’s arm and was the arm warm? Did the warden think, again for that split second, that this arm would soon be ice cold, forever, because of untimely intervention, and that he was responsible for that intervention? These are thoughts that any ordinary human would naturally have but does not find mention in the jail manual. Odd that it should be ignored since it is a human that has to carry out the execution to ensure that the rule of law prevails.
The manual then moves on to give the executioner the stage. He shall strap, it says, the condemned prisoner’s “legs tightly together, place the cap over his head and face and adjust the rope tightly around his neck. The noose should be placed one and half inches to the right or left of the middle line and free from the flap of the cap. The warders holding the condemned man’s arms to withdraw at that time and at the signal from the Superintendent the executioner shall draw the bolt. The body of such condemned prisoner should remain suspended half an hour and shall not be taken down till the medical officer declares the life extinct. The Superintendent is required to return the warrant with the endorsement to the effect that the sentence has been carried out”.
Again more thoughts. What if the trap door does not open when the bolt is drawn? Should the executioner work it manually? In such an eventuality, is the prisoner to be freed for the failure or is he to be killed in a different way? Some months ago, in a US jail, a prisoner took hours to die because the injection given was ineffective. What are the executioner’s thoughts in these last moments when life ebbs away? Should we replace the executioner with a robot?
'Trustworthy' executioners
With considerable hesitation I have gone into this macabre script of the jail manual, giving details of how the execution is to be carried out. Although I was morally uncertain, I did it to bring into public debate the other ignored performance. How ethically paradoxical it is, I wonder, that the actors in the court engage in the high theory on the nature of the justice system, far removed from the choking of a dying man, while 10 ordinary persons are plucked from their ordinariness and asked to take the life of a healthy condemned man, as part of routine duty. The actors in the court go home to their routine and perhaps have a whisky. The actors in the jail live with the actual execution. Do they have a whisky, I wonder?
To understand the absurdity of the second script we need to read paragraph 868 of the jail manual on the executioner. “The execution is to be carried out by the public executioner, whenever service of such executioner are available. If such services are not available then some trustworthy individual who is locally trained is to be assigned this job. The duty is entrusted to the Superintendent to satisfy himself that the person so assigned is competent to fulfil the job.” What does “trustworthy individual” mean in the context of an execution? Is the “trustworthiness” of an Attorney General or a Law Minister the same as the “trustworthiness” of an executioner? Are they executioners in different ways? And then, not only must the executioner be trustworthy, the manual says, but he must also be “competent”. Who writes these job descriptions?
A healthy person was to be hanged on July 30, 2015. Officials were assigned specific tasks that ended with the hanging. A doctor was then required to confirm that that death had occurred. A certificate of death was issued. Newspapers reported that of the 10-odd officials who carried out the hanging, there were two women who played key roles from ensuring that the arrangements were in order to reading out the death warrant to the prisoner.
There seems to be something macabre here. Morally surreal. A healthy man to be hanged by faceless persons who were told that this was their job. One of them had to be trustworthy and competent. Another who had taken the Hippocratic Oath to save life was asked to stand and watch a healthy man’s life being taken away. Did they carry the scene from the phansi yard back home into their beds that night, have it lodged in their minds as they set about preparing meals and watching TV with their families?
Peter Ronald deSouza holds the Dr Sarvepalli Radhakrishnan Chair of the Rajya Sabha and is a Professor at the Centre for the Study of Developing Societies. Views are personal.
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