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Constitutionality of Execution of Death Penalty in India

The Indian Penal Code, 1860 prescribes the sentence of capital punishment in six different Sections, namely 120-B (punishment for criminal conspiracy), 121 (waging, or attempting to wage war, or abetting waging of war, against the Government of India), 132 (abetment of mutiny, if mutiny is committed in consequence thereof), 302 (punishment for murder), 307 (in some cases of attempt to murder).

The Supreme Court of India stated in Bachan Singh v. State of Punjab that the death penalty should be imposed only in  the rarest of rare cases . The two judge's bench in Des Raj v. State of Punjab case (decided on 07.09.2007), consisting of Hon'ble Judges:
R. V. Raveendran and B. Sudershan Reddy, emphasized upon the reasonability of the capital punishment by stating that:
All murders are cruel but such cruelty may vary with degree of culpability and when culpability assumes the proportion of extreme depravity that ‘special reasons' can legitimately be said to exist for awarding death sentence.

In India, the capital punishment which comprises of execution by hanging till death is believed to be a deterrent to grave crimes by dint of instilling a sense of consequential death in reward of a person's ghastly act, has often been facing debate over its relevance. Retribution and deterrence are often considered the two facets of punishment.

Inordinate and unreasonable delay in execution of death sentence is violative of Right to Life, which is the most fundamental of all rights guaranteed by the Constitution, and entails as a ground for commutation of capital punishment to life term. It certainly becomes an agony for a convict who is kept in suspense while consideration of his mercy petition is by the President. It literally creates psychological stress and adverse physical conditions on the convict under sentence of death.

Supporting the existence of capital punishment, the Law Commission of India, in its 35th report pronounced that:
Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the vastness of its area, to the diversity of its population, to the disparity in the level of morality and to the paramount need for maintaining law and order in the country at the present juncture, India cannot just risk the experiment of abolition of capital punishment. [i]

The Model Prison Manual for the Superintendence and Management of Prisons in India explains the process to be followed for executing the convict.

A clear appraisal of the administration of criminal justice of ancient times reveals that death penalty was used commonly in cases of heinous crimes. However, if compared today there was great divergence as to the modes of execution. In ancient time, the common modes of inflicting death sentence on the offender were usually crucification, boiling, drowning, beheading, flaying or skinning off alive, throwing before wild beasts etc.

Also what were included were hurling the offender from rock stoning, strangling, amputating, shooting by gun or starving him to death.

Hanging the offender till death in public places has been a common mode of putting to an end to the life of an offender. These draconic and barbarous methods of punishing criminals to death were justified on the ground that they were the quickest and easiest modes of punishment and at the same time carried. With them an element of deterrent and retribution.[ii] They have however, fallen disuse with the advance of time and modem humanitarian approach to penology.

Once the death sentence gets confirmed by the final judicial forum, any hope of acquittal which might be lingering on in the mind of the condemned prisoner is thereby foreclosed and the spectre of death starts looming on that very person. "One never knows when he might be called upon to answer the call of the hangman.

This uncertainty, i.e. the doubt of a tomorrow, is what burns the living body,"[iii] the court said. The bench said this was "a form of additional torment not mandated by law, not part of the sentence awarded to the convict and hence, it violates the constitutional protections.  This delay inserts a dehumanizing factor in the execution of the death sentence inasmuch it deprives one of his life in an unfair, unjust and unreasonable manner, running awry of the due process of law enshrined in Article 21 (protection of life and personal liberty) of the Constitution [iv]

Definition of Death Sentence

A death sentence is a legal process where a person is put to death by the state as a punishment of a crime committed by him. The judicial decree that someone should be punished in this manner is called a death sentence, while actual process of killing person in lieu of this is called execution. [v] Crimes that can result in a death penalty are known as capital crimes or capital offenses. The term capital has a Latin origin from the term capitalist, literally  regarding the head . It refers to a sentence that condemns a convicted defendant to death. It is also an affliction or a situation that is considered to be fatal; also, a prognosis of death.

 In India, section 368 of the Criminal Procedure Code gives the power to High Courts on the matters of confirmation of a death sentence and is normally given for offences like murder, waging war against state, rape and also in cases cited as Rarest of Rarest Cases. [vi]

Methods of Execution of Death

The various types of methods of execution are as follows:
  1. Death by burning: This type of execution was seen in the famous situation of Joan of Arc who was sentenced to death by burning on the ground that she was a witch.
  2. Wheel: The process can include rolling a wheel full of spikes on top of a person or attaching a person to a wheel and roll him down a hill.
  3. Execution by firing: The most common form of execution during World War II whereby a firing squad is called and then the accused person is tied to a pole and then fired upon.
  4. Headman's Axe: This is the method by which the head is placed on a wooden platform and the executioner chops off the head of the convict by the use of an axe.
  5.  Guillotining:  Another common form of execution as seen in the French Revolution. Dr. Joseph Guillotine invented this method whereby the accused person's head was placed in a round hole on a wooden block and a blade is dropped cutting the person's head. [vii]
  6. Gas chambers: The most common form of execution seen in Nazi Germany whereby the enemies of Adolf Hitler were sent to concentration camps. They were sent to chambers where a toxic gas released and killed people.

Steps in Execution as provided by Prison Manuals

The execution of the death penalty in India, under the Criminal Procedure Code is carried out with  hanging by neck till death  during the last over hundred years. The execution of the death penalty is carried out in accordance with section 354(5) Criminal Procedure Code[viii] and the Jail manual of Punjab & Haryana, Chapter XXXI throw light on the variation steps leading to the execution of the death sentence which are as follow:
Every prisoner under the sentence of death shall immediately on his arrival in the prison after sentence, be searched by, or by order of the Deputy Superintendent, and all articles, shall be taken from him which the Deputy Superintendent deems it dangerous or inexpedient to leave in his possession [ix]

 Every such prisoner shall be confined in a cell apart from all other prisoners and shall be placed by day and by night under the charge of a guard .[x] After such admission of the prisoner in jail, the Deputy Superintendent is required to examine the cell and has to satisfy himself that it is secure and has no article which can be used as a weapon or instrument with which the prisoner can commit suicide. The said deputy superintendent also has to ensure that there is nothing in the cell which in his wisest opinion is inexpedient to permit its remaining in such cell.

Role of Delay in Execution of Death

Delay is regarded is an obnoxious feature of the judicial system as Justice delayed is justice denied. Any delay in providing justice to the individuals makes justice a meaningless and empty word to them. Prompt justice has been regarded as a basic human right.

The Indian Constitution, under Articles 72 and 160, confers the power to pardon the death sentence in the hands of the President and the Governor respectively. The main object of conferring the power to them is to correct the probable judicial errors, as no human system of judicial administration can be free from imperfections.[xi]

Delay in the execution of a death sentence should be reasonable factor enough to be considered for reducing the sentence from death penalty to life imprisonment keeping in mind the mental agony inflicted on the accused during the tenure. The Supreme Court has repeatedly held that excessive delay in executing the death penalty, leaving the condemned prisoner to suffer a  dehumanizing effect  of  facing the agony of alternating between hope and despair [xii] renders the capital punishment too inhuman to be inflicted, thus entitling the prisoner to the lesser sentence of a life term. According to the latest data, the delay in the trial of death row convicts makes the very punishment of death penalty ineffective and instead increases the torture inflicted on the convict and his family.

By the end of December 2017, there were said to be 371 convicts waiting on the death row in India with the oldest case from 1991 which is 27 ago according to the death penalty report published on January 2018. Still, only four of the convicts on death row are executed in the last 13 years with one being a rapist of a minor child and the other three convicted of terrorism crimes. According to Law Commission report of 2015 on death penalty, death row prisoners still continue to face long delays in trials, appeals and thereafter in executive clemency.

Apart from causing mental agony to the condemned person living under the shadow of death, inordinate delay is also regarded as a serious obstacle in the administration of justice condemning the delay in the disposal of mercy petition by the Executive Chief Justice Chandrachud observed: ‘Long and interminable delay in the disposal of these petition are a serious hurdle in the dispensation of justice and indeed such delays tend to shake the confidence of the people in the very system of justice.[xiii]

According to a study carried by the center on death penalty, the average time faced for trials by the 373 convicts facing death row was 5 years. Of 127 prisoners, the trial time faced was more than 5 years and of 54 convicts it continued for more than 10 years. The delay has been extreme to such a limit that a convict in one case had spent 21 years on death row waiting for execution. On May 4, 2018, the Supreme Court upheld its verdict on awarding the death penalty to two of the four convicts accused in the Nirbhaya gangrape and murder case. The last time an execution was carried out was in the year 2015 when Yakub Memon was convicted after being found guilty of being involved in the Mumbai Terrorist in the year 1993 which had killed 257 people.

Causes of Delay in Execution

Delay in the execution of punishment often consists of two parts. The first part covers the long- time taken by the judiciary to complete the proceedings in the processes of trial, appeal, further appeal and review. The second part takes into account the time taken by the executive in the exercise of its prerogative clemency. Delay can be caused due to prolonged time for confirmation of death sentences. This the prime reason for causing delay to prisoners awaiting death sentence.

Other reasons include health of convicts awaiting death sentence i.e they should be physically as well as mentally fit when death sentence is carried out. Also, feasible mental health of the awaiting prisoners is a questionable matter because of the extreme agony they face n the whole procedure of being convicted for a death sentence.

As stated by the Supreme Court of India, Inordinate and unreasonable delay attribute to torture. The time taken in the judicial proceedings by way of trial and appeal is for the benefit of the accused. It ensures a fair trial to the accused and avoids hurry-up justice. The provisions the IPC, the CrPC, the Evidence Act, etc. and the various judicial precedents are taken in account while deciding a case for proper examination of the guilt of the accused and ensure a correct sentence. If the delay in passing the sentence cannot render the execution unconstitutional, the subsequent delay cannot also render it unconstitutional. It is arbitrary to fix any period for execution on the ground of Article 21.

The Court has power and no doubt must consider where there has been inordinate delay, to allow the appeal so far as the death sentence is concerned, and substitute a sentence for imprisonment for life on account of time factor alone. But in a case of murder in which the extreme penalty of law is called for circumstances that the murder absconded for a number of years before he was brought to trial, is not by itself a ground for reducing the sentence of death to one for life imprisonment.[xiv]

Delay as a ground affecting sentence is ordinarily delay due to the processes of law. It is laws' delays that are relevant consideration in this matter. But this principle cannot be extended where a criminal absconds and keeps absconding for seven years and thus himself is responsible for the delay.

It is not then has open to him to say that because he has successfully absconded and because he has been a successful fugitive from justice and therefore, the sentence must be reduced on the ground, that he has successfully kept at bay the process of law and courts, Absconsion therefore, cannot be revoked for the reduction of legitimate sentence.[xv]

For clemency, a person can approach the Governor or the President, as per the case. But at times mercy petitions and review petitions are repeatedly filed by the convict or his relatives, leading to an unreasonable delay, which should not be taken in consideration.

Due to such a long delay in the judgments of the judiciary, a convicted person has to be given treatment because of the mental torture he undergoes since he starts to lose the hope to live. At times there have been situations where convicts on the death row, whose execution is being kept delayed on and on literally have to beg the officials to carry out their sentence so that their suffering can come to an end.

As in the case of Devender Pal Singh Bhullar & Anr vs State Of NCT Of Delhi,  a Khalistani terrorist who has been languishing in Tihar Jail for the last few years has been suffering from schizophrenia due to mental torture because his execution kept on being delayed [xvi].

As long as the execution is delayed, the will power of the prisoner who is sentenced to death will go down finally driving him to a state where he has to finally beg to the officials to carry out his execution. Due to the extreme delay faced by him in conviction on 31 March 2014, the Supreme Court commuted his death sentence to life Imprisonment on the grounds of inordinate delay in deciding his mercy petition and his suffering from schizophrenia.

Constitutional Effect of Inordinate Delay in Execution of Death Sentence

  1. Whether can prisoner acclaim Fundamental Rights
    Inordinate delay means the taking of condemned man's life without by due process of law. In Maneka Gandhi case the Supreme Court has laid down that the expression procedure established by law in Art. 21 mean fair just and reasonable procedure. This interpretation has led to an argument that death sentence, although justifiably imposed, may not be executed if the subsequent events make its execution harsh, unjust and unfair.

    The inordinate delay in the execution of death penalty assumes special importance as this penalty has adverse psychological effect on the minds of condemned prisoner. Therefore, inordinate delay in the execution of death penalty has constitutional implications. [xvii]
  2. Question of Justiciability arises
    The Court held that broad sweep of Article 21 required the procedure to be just, fair and reasonable at all stages of the trial, the sentence, the imprisonment and the execution of the sentence. Even a rightly inflicted sentence of death was liable to be quashed if the subsequent events made its execution unjust & unfair. But two year rule laid in Vatheeswan case was not acceptable to the court.

    It rejected the fixation of this time limit as unsatisfactory and held that no hard and fast rule could be laid down regarding the duration of delay sufficient to entitle the condemned person to invoke Art 21 and demand the annulment of the death sentence imposed on him. The court further rejected Vatheeswam ruling that cause of delay in execution of death sentence was immaterial.

    The court agreed that every condemned person had a right to pursue all remedies lawfully open to him to get rid of the death sentence. But at the same time the court was also aware that it was easy to defeat the ends of justices. Therefore, he held that the delay caused by the accused himself should not be considered relevant while considering the commutation of death sentence. The court also held that inordinate delay in the execution of death sentence was not the sole factor in deciding its commutation. Other factors were also to be taken into account while considering this question
  3. Whether Breach of Fundamental Right of Speedy Trial
    If a person is deprived of his liberty under a procedure which isn't reasonable, fair or just, such deprivation would be violative of his Fundamental Rights under Article 21 and would be entitled to enforce such fundamental right and secure his release. Now obviously procedure established by law for driving a person of his liberty cannot be reasonable, fair or just unless that procedure ensures a speedy trial for determination of the guilt of such person.

    No procedure which doesn't ensure a speedy trial for determination of the guilt of such person. No procedure which doesn't ensure a reasonably quick trial can be regarded as ‘reasonable, fair or just' and it would fall foul of Article 21.  By speedy trial what is literally meant is the reasonably expeditious trial, an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 .[xviii]

It is true that Article 21 implicitly guarantee the right to speedy trial but it is also equally true that delay has become an inherent feature of the judicial system. Therefore, it is desirable that steps should be taken to ensure that speedy trials of the cases but this should not be at the cost of the security of the society.

Right to speedy trial is implicit in the right to life and liberty guaranteed by Article 21 of the Constitution. The right to a speedy trial may to be an expressly guaranteed constitutional right to a fair trial which has been held to be part of the right to life and liberty guaranteed by Article 21 the Constitution.

International views on Death Penalty

Death penalty as a form of punishment has been criticised by many countries and organisations. The United Nations General assembly stated that in the case of capital punishment, there is a dire need for a high standard of fair trial which should be followed by every other country.

The United Nations Economic and Social Council has asked its member countries to abolish the death sentence but stated that those member countries which wished to retain the death sentence must ensure speedy trial to the defendants. Most of the countries in the European Union has abolished the death sentence. On the 3rd of May 2002, the  13th protocol to the European Convention for the protection of Human Rights and Fundamental Freedoms was open for the signature of member countries for the abolition of death sentences in all circumstances. [xix]

Much international legislation were also in favour of abolishment of a death sentence. Article 5 of the Universal Declaration of Human Rights, 1948 & Article 7 of the International Covenant on Civil and Political Rights 1966 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Capital Punishment has been recognized as a cruel, inhuman and degrading punishment which infringes on the basic human rights of the accused [xx] as expressed in article 3 of the European Convention of Human Rights. Article 3 of the Universal Declaration of Human Rights provides for the right to life, liberty, and security of human beings. In England, it was abolished by the Murder (Abolition of Death Penalty) Act, 1965 though at the end of the 1th century about 200 hundred offences were punishable by death.

India has time and again opposed the UN resolution for a moratorium on the death penalty since every member state of the UN has the sovereign right to determine its own legal system and appropriate legal penalties. Also in India, the death penalty is exercised only in the rarest of the rare cases when the crime committed is so grave that it outrages the conscience of the whole society. The United Nations Secretary- General has repeatedly mentioned in his reports on the moratorium on the death penalty that the decision taken by the Supreme Court of India have also tried to limit the awarding of the death penalty in cases and also to protect the rights of those who have been sentenced to death.

Position of Death Penalty in India

Since the last 20 years, India's execution rates have reduced drastically. Article 21 of the Constitution of India guarantees to its citizens the right to life and personal liberty which includes the right to live with dignity. According to this article, no person shall be deprived of his life and personal liberty except according to the procedure established by law. This means that a person's life and personal liberty can be disputed only if that person has committed a crime. Therefore the state may take away or abridge even right to life in the name of law and public order following the procedure established by law. But this procedure must be  due process  as held in Maneka Gandhi vs. Union of India (1978).

The procedure which takes away the sacrosanct life of a human being must be just, fair and reasonable. In Mithu v. the State of Punjab (2001), the Supreme Court declared that section 303 is unconstitutional because it is not in tune with articles 14 and 21 of the constitution.

In India, non-governmental organizations are fighting against inhuman, degrading and cruel punishment and protection of human rights. Although judiciary has evolved the principle of  rarest of rare cases  and has indicated that it is with special reasons that death penalty must be imposed in cases of exceptional and aggravating circumstances where offenses are very grave in nature, the application of the principle itself, as evident from a plethora of cases, is in violation of Constitutional provisions.

Justice V.R. Krishna Iyer, an eminent jurist and former judge of the Supreme Court of India was himself against death sentence. According to Justice Iyer, life is given by God and can be taken away by God himself. The state does not have the right to take away a person's life. Execution by state amounts to inhumanity. He further stated that Gandhi's country must set an example by abolishing death penalty. Even if supported by a judicial decision, the state must not hang a person.

The condition of people undergoing death sentence is quite horrendous when compared to the Indian Context. Various studies conducted by different organizations have found that the death convicts undergo both physical and mental torture while waiting for the news on what day they are to be executed. Taking the case of Devendra Pal Singh Bhullar, who was accused in the 1993 Delhi bomb blast case, was languishing in jail till his death sentence was commuted to life imprisonment in 2014. The prisoners themselves are  mentally dead  as they keep on waiting for the day of their execution which in fact keeps on getting delayed.

Fully agreeing with the recommendation of the Law Commission in its 262nd Report. The Law Commission in its 262nd Report has called for the abolishment of the death penalty in all cases except for those relating to terror cases. This was in the wake of the hanging of Yakub Abdul Razak Memon who was hanged on the early morning hours of 30th July 2015 in spite of his advocates trying to stay the execution and convert it into a life sentence. Legislation enacted by the Tripura Assembly has also called for the abolishment of the death penalty in India.

Also, certain guidelines have to be laid down as to the execution of death warrants within a specified time limit. In case there is an unconditional delay (except in cases of terror), then provisions must be made whereby the mental condition of the convict, his death sentence can be converted into life imprisonment. Execution to death must not be for political purposes as seen in the recent case of Yakub Memon. Above all only the supreme creator has the right to take the lives of the people on earth and not the state or any other organ of the state.

The delay in the execution of capital punishment has often been a debatable issue on the ground of constitutionality. Many arguments have been put forth for and against the issue. The Apex Court has also often been in two minds on the issue. It can be inferred that all these decisions are of very little importance to decide upon the constitutionality of the issue. In case the issue is critically viewed from the perspective of the Constitution of India and other laws and statues, it is noticeable that no specific period has ever been mentioned as being mandatory for the completion of the case.

Neither is the President or the Governor bound by the laws for deciding upon the mercy petition in a specific period of time. It shows that one can't challenge the constitutionality of the decision in itself on the ground of delay in execution. Also, the challenging of the execution on the basis of Article 21 of the Constitution is highly rebuttable and the Apex Court has often been double-sided on the point.

In the absence of Indian Constitution providing any deadline, it can be stated that the delay can be challenged on the grounds of morality and humanity. But morality in itself can't render anything unconstitutional unless the law in itself forbids it. The Oxford Dictionary defines the term ‘unconstitutional as ‘not in accordance with the political constitution or with procedural rules. The issue of the execution of the capital punishment after delay being unconstitutional i.e. not being on the grounds of the Article 21 of the Indian constitution, and others, is highly rebuttable, and the Apex Court has also never been constant on the issue.

But, in terms of the canons of moral jurisprudence, it is highly desirable to bring some changes in the system. There is certainly a need to cast certain accountability on part of those causing the delay. There should be a reasonable timeline affixed for the disposal of the cases and the mercy petitions. In case the timeline is not followed, the Home Ministry must be answerable to it.

Also, a system should be incorporated where President is accountable to the delay and he should be having a consultation with some legal experts for a proper and faster disposal of clemency petitions, as the delay clearly leads to immense mental trauma of the aggrieved persons, which is against the humanity and it does come under the purview of violation of human rights.

Thus, it can be stated that it is rather ambiguous and debatable to render the execution of the capital punishment unconstitutional on the ground of delay, and the delay in itself does not make the execution unconstitutional per se, but suggested measures do need to be taken in direction of the issue.

  1. The Failure Of Human Rights Watch In Venezuela And Haiti By Joe Emersberger, (last visited Nov 7, 2019).
  2. Can delay in execution of death sentence render it unconstitutional? Alexis Foundation, (last visited Nov 15, 2019)
  3. PTI, Delay in execution of death row convict is dehumanizing, THE INDIAN EXPRESS, June 29, 2017 at 2.
  4. Id. At 1.
  5. Monika, Critical Analysis of Death Penalty, IPLEADERS, (April 20, 2019),
  6. Robert, The Death Penalty and Capital Punishment, BARTLEBY (Apr 25, 2015),
  7. Isha Beniwal, Intrduction Criminology, SCRIBD, (Sept 5, 2019),
  8. Critical Analysis Of Death Penalty In India iPleaders, (last visited Nov 13, 2019).
  9. Jail Manual ofPunjab & Haryana, Chapter XXXI Paragraph 847 (1).
  10. Ibid, Paragraph 847 (2).
  11. Basu–Introduction to the Constitution of India, Part II, p. 21, (3rd Ed.).
  12. Monika, supra note 5.
  13. Sher Singh vs. State ofPunjab AIR 1983 SC 465,473.
  14. (last visited Nov 15, 2019).
  15. Anant Kumar Karan V. The State, AIR 1962 Cal 428 (438).
  16. Aman, Death Penalty of Devinderpal singh Bhullar commuted to life imprisonment by the Supreme Court, GKTODAY, (Apr 1, 2014),
  17. W. Venketeshwar v. The State of Tamil Nadu, AIR 1983 SC 361 (365) : 1983 Cr. LJ 481
  18. Hussainara Khatoon v. Home Secretary (1980) 1 SCC 81 : AIR 1979 SC 1360.
  19. PTI, India abstains from voting on UNGA resolution on goods used for capital punishment, TOI, June 29, 2019, at 2.
  20. Id.

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