Right to a Decent Execution

What the Supreme Court’s guidelines about death-row convicts tell us

The Supreme Court’s commutation of the sentences of 15 death row prisoners because of delays in carrying them out is one of the rare occasions in recent times when you can find some hope for the idea of India as a liberal democracy.

At the end of the judgment, the court frames guidelines ‘for safeguarding the interest of death row convicts’. This means that even the worst of prisoners—the ones who have committed the rarest of rare crimes, the dregs at society’s very bottom who have lost the right to participate in it—have to be treated with decency.

Consider some of the guidelines: legal aid should be provided at every stage; if mercy petitions get rejected, convicts must know in writing instead of orally and with a copy of the rejection letter; there must be a 14 day interval between the rejection of a mercy petition and the date of execution so that the prisoner can meet his family, wind up his affairs and ‘make his peace with God’; prisoners must be mentally and physically healthy before they are executed; before any execution, prison authorities must facilitate a final meeting of the prisoner with his or her family; post mortems must be performed after execution so that the cause of death can be ascertained.

To understand how sensible some of these guidelines are, take the last one on post mortem. There is a reason for it. Hanging is a painless and instantaneous death only if the neck breaks; if the rope is not properly placed, death is by long-drawn strangulation. Till now, after centuries of this practice in India, there has been no evaluation of how exactly a prisoner died, and whether it was really by the snapping of the cervical vertebrae, as is claimed. Post mortems must examine this, and if it is found that many die due to strangulation, there will then be data to support a move to a better form of killing, like lethal injections.

The necessity to frame these guidelines actually show how basic dignities are not available for death convicts at present. Take the rationale given for the 14-day interval between the mercy petition’s rejection and the execution. The judgment says it ‘allows the prisoners’ family members to make arrangements to travel to the prison, which may be located at a distant place, and meet the prisoner for the last time. Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.’

If one is forced to accept capital punishment because it is legal, then such a measure seems morally appropriate; a kind and just way to kill. But then you take a glance back at the recent executions of Ajmal Kasab and Afzal Guru and find that even this basic courtesy was denied them. They were killed in secrecy without an opportunity to meet their family. Most of this country saw little wrong in this because they were terrorists. But it signalled that the State had decided, purely for reasons of political convenience, that it was alright not to be compassionate in carrying out capital punishment.

In the case of the 15 prisoners now, the State swung the other way and refused to kill them because it was morally problematic. But at the same time without the courage to commute the sentences (as the SC has now done). The prisoners were kept in limbo on death row in the hope that society would gloss over their existence.

It is this attitude that the Supreme Court has said cannot be permitted in a civilised country; there must be a price to pay for cowardice and cruelty by the State when it tramples over the rights that all human beings—even terrorists—are born with.

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