This article has been written by Sunayana_Babar, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction   

Meaning

Oxford Dictionary defines the term “warrant” as “An official authorization enabling the police or some other body to make an arrest, search premises, etc. It is a document issued by the competent legal authority authorizing the police or another body to carry out some action in pursuance of administration of justice.” There are several kinds of warrants that the judicial authority issues against the alleged offenders e.g. Search warrant, arrest warrant, death warrant, etc. 

Death warrant also commonly known as ‘Black Warrant’ is issued by the Court authorising a Jail Officer to carry out the execution of a convicted person sentenced of death only after exhausting all the legal remedies. 

Issued by whom?

The Court of Session under Sections 413 and 414 of the Code of Criminal Procedure, 1973 is empowered with issuing the death warrant after the convicted person has exhausted all the legal remedies available to him under the law. Any haste done by the Sessions Court in issuing a death warrant without giving the accused an opportunity of exhausting their remedies shall be liable to be quashed or set aside.

Contents of Black Warrant

Image: Copy of Form no.42, Black Warrant

A draft of the Death warrant titled ‘Warrant of Execution of a Sentence of Death’ has been provided under Form No. 42 of the Second Schedule of CrPC, 1973.  The contents of the warrant are herein under laid:

1. The warrant is to be addressed to the Officer in charge of Jail where the death row prisoner is kept in confinement.
2. The warrant includes the name of the prisoner/s and the case no. in which he/she is convicted.
3. The date on which the Court of Session has sentenced the accused to death.
4. The date on which the High Court has confirmed the sentence of death awarded by the Sessions Court. 
5. An authorization to the Officer in charge of jail to carry the sentence into execution by causing the convicted person to be hanged by the neck until he is dead.
6. It should specify the exact time and place of the execution of the said sentence.
7. After the sentence has been executed, the warrant is to be endorsed certifying that the sentence has been duly carried out and return it to the Court that issued it.
8. It ends with the seal of the Court and signature of the Judge who issues the warrant.

Methods of execution

In India, a death penalty or sentence is executed either by hanging the convicted person until he’s dead or by shooting him. The former method of execution of death sentence has been provided in the Criminal Procedure Code, 1973 and the latter in the Army, Navy and Air Force Act.

Hanging

Hanging is an ancient and prevalent form of execution of a death sentence and is applicable to only civilians. Under Section 354(5) of the Criminal Code of Procedure, 1973, ‘Hanging by neck till death’ has been provided as a method of executing a death sentence. In this method of execution, the offender is compelled to stand on a trapdoor and is tied a rope around his neck. When the executioner pulls the lever of the trapdoor it is then, the person is suspended by a rope until he dies by asphyxiation.  This is the traditional way of execution by hanging, however; many arguments arise over this method of execution. 

Shooting

‘Death by Shooting’ is another method of executing a death sentence that is provided under the Army Act of 1950, Navy Act of 1957 and Air Force Act, 1950. ‘Shooting’ as well as ‘Hanging’ are in executing the death sentence are the methods that are only applicable to the defence personnel. It is at the discretion of the Court Martial to award the death sentence either by shooting or hanging until dead.

Procedure: How death warrant is executed?

Every state has almost similar procedure relating to the execution of a death warrant and is to be carried out accordingly as laid out in their respective jail manuals. Following is a step-by-step analysis of how the warrant of death is executed in the largest prison complex of South Asia, Tihar Jail under the Delhi Prison Rules, 2018.

Process of admission of prisoner sentenced to death

• After all the remedies available to convict are exhausted, death warrant is issued by the Court of Session to the Jail Superintendent and the convict is transferred to the jail and accordingly, the Superintendent reports the Government about the date and time fixed for the execution. On the admission of the convict to the jail, he is thoroughly searched and the Medical Officer in-charge notes down his observations in the medical record book e.g. the height, weight, etc.

Confinement in a special cell

• The prisoner is kept in a cell in a special yard popularly referred to as ‘phansi kothi’, away from the other prisoners under day and night surveillance. Prior to this, the cell is thoroughly checked by the Superintendent for sharp objects and articles which the prisoner might use as a weapon to harm himself or others. 

Issue of Articles

• The prisoner is allowed a fresh set of cotton clothes and toiletries after his admission to the cell. However, great care is taken in issuing articles as even the string of the pant/pyjama can be used by the prisoner for taking his life. 

Health observation

• The officer-in-charge monitors the behaviour of the prisoner with a special focus on his mental health. A note of psychological observation has to be maintained by the Dy. Superintendent and is checked daily by the Superintendent.

Special marking on communication

• Every communication relating to capital sentence including the orders of rejection of petitions, postponement of sentence, etc. shall be received to the Superintendent in a distinctive red envelope with words ‘death sentence’ and ‘immediate’ inserted on the top left and right corners of the envelope respectively. The words ‘Death Sentence’ are inserted before the address in communication relating to capital sentences.

On final confirmation of death sentence

• The relatives of the prisoner sentenced to death shall be notified of the date of his execution and the authorities shall facilitate their last meeting.  The prisoner shall also be permitted to prepare his will. No prisoner sentenced to death is to be executed on a public holiday. 

Arrangement of execution

• The Superintendent is authorized to fix the time of execution and the same is to be communicated to the Inspector General, the Session Judge that issued the warrant and the Government. A week before the hanging, the prisoner is notified about the same. 
• Days before the execution, the PWD arranges the inspection of gallows and a proper procedure is to be followed. In absence of which, the execution can cause  risks like decapitation and other mishaps. Wax, butter and sometimes even mashed bananas are applied on the loop of the rope to ensure that swift execution.
• A test is mandatorily conducted by a dummy or bag of sand weighing 1.5 times the prisoner’s weight to make sure that the noose of the rope is strong enough and does not break. Two spare ropes for each prisoner are kept ready in the event of accidents. 

The execution

• The execution takes place in the early hours of the morning before it gets bright. Neither the other prisoners nor the relatives of the prisoner are allowed to watch the execution. 
• The prisoner is woken up early by the Superintendent and is allowed to take bath and is served breakfast. If the prisoner so desires, he is allowed some time alone to remember his friends and family and to recite prayers. 
• The Superintendent, Dy. Superintendent, Medical officer in charge, Resident Medical Officer along with guard of ten constables and two Head Constables are to be present at the execution of black warrant.
• Following the protocol, the prisoner is examined by the Medical Officer after which, the convict’s hands are tied at the back and his face is then covered with a black cotton cap and is led towards the gallows. 
• The prisoner is made to stand on the trapdoor directly under the beam to which the rope is attached and the executioner or hangman adjusts the rope around the prisoner’s neck.
• It is only on the signal of the Superintendent that the hangman pulls the lever that releases the trapdoor and the prisoner’s body is suspended until he’s dead i.e. for half an hour.
• After half an hour, the Medical Officer present at the execution checks for the pulse of the death row prisoner and declares him dead.

Black warrants around the world

Execution of death penalty by various means is carried out in countries throughout the world. The ancient and inhumane methods of execution are still prevalent in many parts of the world.

• Egypt: Two methods of execution of death sentence are prevalent in Egypt i.e. ‘Hanging’ for civilian convictions and ‘Firing’ for convictions commissioned against military personnel.
• Somalia: It is the only African country that carries out public executions i.e. the general public can voluntarily attend the execution. The method of execution of a death sentence consists of Hanging, firing squad or stoning.
• Sudan: Death penalty in Sudan is executed by means of ‘Garrote’. It is an execution and torture device that consists of a rope attached to a stick, used in constructing a limb in such a way that death is caused by strangulation.
• Florida: Lethal injection and electrocution are the methods of execution used in Capital Punishment. The method of electrocution is carried out by confining the death row prisoner to a chair and an electric shock or current of high voltage is passed throughout the body ultimately, resulting in death. The lethal injection is the practice of administering a drug via injection that causes rapid death. 

Conclusion

Eminent jurists have time and again communicated their views concerning whether the execution of a death warrant via hanging is a painless and humane approach. A controversy persists over the method in which the death warrant is executed in India. 

The 187^th Report of the Law Commission of India on ‘Mode of Execution of Death Sentence and Incidental Matters’ was taken up suo moto to provide for a more humane and less cruel mode of execution of death sentence.  Furthermore, the commission had recommended the use of ‘lethal injection’ as another mode of execution of death sentence. However, the recommendations stand only on paper and no adequate implementation as such have been made by the Legislature in facilitating the execution of black warrants.

References   

1. Law Commission Report on ‘Mode of Execution of Death Sentence and Incidental Matters’
2. https://www.indiatvnews.com/fyi/nirbhaya-convicts-hanging-procedure-protocol-explained-tihar-hang-until-death-584608
3. https://deathpenaltyinfo.org/executions/methods-of-execution#:~:text=Lethal%20injection%20is%20the%20most,%2C%20hanging%2C%20and%20firing%20squad.
4. https://scroll.in/article/943999/in-a-book-about-convicts-sentenced-to-death-a-jailer-reveals-details-of-afzal-gurus-final-hours
5. https://timesofindia.indiatimes.com/india/24-hours-before-they-hanged-dinner-for-the-convict-bananas-for-the-noose/articleshow