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
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
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:
- 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.
- 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.
- 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.
- 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.
- 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]
- 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
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
.[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
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
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
- 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.
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]
- 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
- 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
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
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
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(last visited Nov 15, 2019)
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