CAN DELAY IN EXECUTION OF DEATH SENTENCES RENDER IT

UNCONSTITUTIONAL?
Death sentence (capital punishment) is a highly controversial area of criminal
jurisprudence. It has divided the world into two camps: Abolitionists and Retentionists. The
chief arguments of the abolitionists are: (i) Death penalty is irreversible, it can be or has been
inflicted upon innocent people. But there is no convincing evidence that death penalty serves
any penalogical purpose. (ii) Its deterrent effect remains unproven, (iii) Execution by
whatever means is a cruel inhuman and degrading punishment. The retentionists argue that:
(i) A murderer who takes the life of another forfeits his right to his own life. (ii) Death
penalty serves as a deterrent to the criminals. (iii) It is the duty of the state to take revenge on
behalf of the victim. (iv) Death sentence is not usually awarded, it is awarded only in cases of
rarest of rare crimes.
Senior counsel Ram Jethmalani, who represented death row convict Murugan in the Rajiv
Gandhi Assassination Case[1]stated in the Madras High Court that 11 year delay in executing
the death penalty was itself in violation of fundamental rights, hence unconstitutional. An
undue delay violated Article 21 of the Constitution (protection of life and personal liberty).
Unless the delay is properly explained or justified, it makes the death penalty immoral, illegal
and unconstitutional. In the Rajiv Gandhi Assassination Case an inordinate delay of 11 years
occurred in considering the mercy pleas of the three death convicts, Murugan, Santhan and
Perarivalan, with their pleas being ultimately rejected on August 11, 2011 by the President of
India. This is only one instance of the inhuman, unconscionable and arbitrary manner in
which mercy pleas of convicts condemned to death are kept pending by the government for
years on end. The courts of civilised states have recognised and acknowledged that a
prolonged delay in executing a death sentence can make the punishment inhuman and
degrading. Afzal Guru, convicted for his role in the 2001 terrorist attack on parliament, has
been on death row for nearly 5 years, after his appeal was dismissed by the Supreme Court on
August 5, 2005. His execution, due on October 20, 2006, was stayed by the government
because a clemency petition was filed by his family to the President. A decision on the
clemency petition has not been taken till today. In the meantime Afzal Guru suffers in solitary
isolation, not knowing whether he will be executed or not. The trauma and physical stress
coupled with solitary confinement of a convict known as the death-row phenomenon is
itself a cruel punishment. The prolonged anguish of oscillating between hope and despair, the
agony of uncertainty, the consequences of such suffering on the mental, emotional and
physical integrity and health of not only the convict but also his family should not be allowed
in civilised societies. In Dhananjoy Chatterjee v State of West Bengal, the Supreme Court
observed: Imposition of appropriate punishment is the manner in which the courts respond
to societys cry for justice against the criminals. Justice demands that courts should impose
punishment befitting the crime so that the courts reflect public abhorrence of the crime. A
passage from Bhagat Singhs last petition to the Governor of Punjab should give us pause:
As to the question of our fates, please allow us to say that when you have decided to put us
to death, you will certainly do it. You have got the power in your hands and the power is the
greatest justification in this world. We know that the maxim Might is right serves as your
guiding motto. The whole of our trial was just a proof of that. We wanted to point out that
according to the verdict of your court we had waged war and were therefore war prisoners.
And we claim to be treated as such, i.e. we claim to be shot dead instead of to be hanged.[2]
The constitutional validity of section 302 of IPC & section 354(3) of CrPC was challenged
before the Supreme Court in Bachan Singh[3] which had to be tested on the anvil of Articles

14, 19 and 21 of the Constitution. In the above mentioned case it shows that the court is
perceptibly veering away from capital punishment to life imprisonment. A forceful plea was
made before the Supreme Court for laying down standards or norms restricting the area of
imposition of death penalty to a narrow category of murders. The plea was rejected by the
court holding that first, there is little agreement among penologist and jurist on what
information about the crime and criminal is relevant and what is not relevant for fixing the
dose of punishment. Secondly, the criminal cases do not fall into the same behavioural
pattern. Thirdly, standardisation of sentencing procedure which leaves little room for judicial
discretion to take account of variation in culpability ceases to be judicial. And fourthly,
standardisation of sentencing discretion is a policy matter which belongs to the sphere of
legislation. The principle of rarest of rare cases was laid down in the above mentioned case.
The Supreme Court in Swamy Shradananda case, where the convict (a tantrik) had
committed gruesome murder of his wife, taking into consideration some mitigating
circumstances, commuted death sentence of the convict and substituted it with imprisonment
for life and directed that he shall not be released from prison till the rest of his life. In the
United States of America, this type of sentence is known as life imprisonment without parole
(LWOP). Some penologists argue that LWOP is a far more severe punishment than death.
In the instant case, the Assam trial court held Ram Deo Chauhan alias Raj Nath Chauhan
guilty of murdering four members of a family in March 1992 and slapped the death penalty
on him. This was confirmed by the Guwahati High Court and later by the Supreme Court in
July 2000. Justice K. T. Thomas in his minority judgment, felt that since there was a doubt
whether Ram Deo was a minor or not when the offence was committed, it would be in the
interest of justice to commute death to life imprisonment. The Mattoo[4] case dealt with the
brutal rape and murder of Priyadarshini Mattoo, a law student, by one of her seniors, Santosh
Singh. This was a crime of the most abominable variety. The trial court was convinced that
Santosh Singh was the culprit. It, however, acquitted him on the basis of certain
inconsistencies in the forensic evidence which let chain of custody of samples picked up at
the scene. The CBI escalated the matter to the Delhi High Court, which accepted the
prosecution story in totality and sentenced Santosh to death. The matter went in appeal to the
Supreme Court. Delivering the judgment recently, the two member bench held the accused
guilty but commuted his sentence to one of life. The judges cited the youth of the accused and
the fact that he got married after acquittal by the Trial Court and became a father as reasons
why he deserved compassion. In Jagdish v State of Madhya Pradesh[5], the court in a
strongly expressed judgment noted the cruelty and torture of a prisoner on death row caused
by the inordinate delay in deciding his petition. The court cited a U.S. Supreme Court
decision which observed The cruelty of capital punishment lies not in the execution itself
and the pain incident thereto, but also in the dehumanising effects of the lengthy
imprisonment prior to execution. The prospect of pending execution exacts a frightful toll
during the inevitable long wait between the imposition of the sentence and the actual
infliction of death. The Constitution doesnt provide any maximum time-limit within which
a mercy petition has to be decided. There have been instances of mercy petitions lying with
the President for over a decade without any decision being taken. The Ministry of Home
Affairs cant ask the President to speed up the process.
In Smt.Triveniben v State of Gujarat[6], the Supreme Court held as under:
Constitution of India, Articles 32 and 21-Death sentence awarded by court-Undue
delay in execution of death sentence-It entitles the condemned prisoner under Article
32 of Constitution of India to approach court that his death sentence be commuted

to life imprisonment-No fixed period of delay, however, could be fixed to make the
death sentence in-executable-The delay which could be considered to make the
death sentence in-executable starts from the date the judgment by apex court is
pronounced i.e when judicial process has come to an end-The delay which is to be
considered is the delay is disposal of mercy petitions or delays occurring at the
instance of the executive.
The Home Ministry has rejected the contention of Devender Pal Singh Bhullar, sentenced to
death for the 1993 bomb attack on the then youth congress president M S Bitta, that he was
entitled to get his death penalty commuted to life term in view of the delay over his mercy
petition. In an affidavit filed in the Supreme Court, Joint Secretary J L Chugh cited more than
a dozen reasons in a bid to repudiate Bhullars arguments. Mercy cannot be claimed as a
matter a right. In death sentence cases, the prisoner cannot be executed before the
disposal/rejection of the mercy petition and this period of time cannot be claimed as double
sentence i.e death plus imprisonment, the affidavit said in response to the main contention of
the death row convict. The legal as well as constitutional processes are time consuming and
any delay arising from this is not a mitigating circumstance for commutation of death
sentence and also does not reduce the gravity of the crime. The Ministry also contended that
the discretionary powers enjoyed by the President under Article 72 of the Constitution for
granting mercy or rejecting such pleas are special powers overriding all other laws, rules and
regulations in force. The Presidential decisions in such cases cannot be altered, modified or
interfered with in any manner whatsoever by any statutory provision or authority. Also, no
time frame could be set for the president in this regard. The Home Ministry further contended
that delay by itself does not entail the person under sentence of death to demand for
quashing the sentence and converting it to life imprisonment. The inordinate delay may be a
significant factor, but that by itself cannot render the execution unconstitutional, it was
contended. The Supreme Court could, however, consider the delay and decide whether the
execution of sentence should be carried out or altered into imprisonment for life, it said. The
Ministry described as a specious argument Bhullars contention that the delay is an act of
cruelty as it had added to his suffering. It is the pendency of the mercy petition that has
given the petitioner the right to live, albeit in prison. Besides, even if the mercy petition were
to be allowed, the prisoner would not become free. He would remain in prison for the rest of
his natural life, unless a specific order is passed under section 433 of Cr PC. Further, no
fixed period of delay can be held to make the death sentence non-executable. Bhullar was
convicted for a terror act which resulted in the killing of nine persons, besides leaving 29
injured. Considering all this, Bhullars plea is devoid of merit and hence should be
dismissed, the government said.
The short stay on the execution of death row convicts Perarivalan, Santhan and Murugan who
were involved in the assassination of Rajiv Gandhi in 1991 has become an occasion to revisit
the old debate on whether or not capital punishment should be outlawed in India. But one
pertinent question that must also be asked here is - given that death sentences continue to be
awarded in our country, why does it take so long to execute them? Some legal experts believe
that if the system cannot function without such delays, it would only be just and humane to
commute the punishment to life imprisonment. In the case of Perarivalan, Santhan and
Murugan, the Supreme Court upheld their death penalties 1999, their plea for clemency was
submitted to the president in 2000. It was only last month, i.e. 11 years after their clemency
plea was submitted, that the President finally rejected it. Lawyers in the case, including senior
counsel Ram Jethmalani who appeared for Murugan, have argued that the 11 year delay in
carrying out the death penalty was itself a violation of the convicts fundamental rights. There

are several other instances of inordinate delays on the part of the authorities in meting out
capital punishment. Afzal Guru, pronounced guilty of conspiracy the December 2001 attack
on Parliament, was sentenced to death by the Supreme Court in 2004. The sentence was due
to be carried on October 20, 2006. But the execution was stayed after his wife filed a mercy
petition. Early last month, the Indian Home Ministry recommended that the President reject
his petition. The matter is pending before the President.
But leaving aside the lengthy trial process, what explains the unusually long hiatus between
the Apex Court upholding a death sentence and the final execution of the penalty. The
ineffectual legal system should be blamed, and then there are vested interests from the
political sphere at play which essentially stall efforts to execute sentences. In a 1983 case, the
Apex Court held that a delay of two years for execution was permissible, beyond which the
sentence ought to be converted to life. Again, in a 1989 ruling, the Supreme Court,
acknowledging the suffering endured in the long way for execution, said: when mercy
petitions under Article 72 or 161 are received by the authorities concerned, it is expected that
these petitions shall be disposed of expeditiously. Undue long delay in execution of the
sentence of death will entitle the condemned person to approach this court under Article
32(right to approach the Supreme Court) to look into this. To the lay citizen who wants some
visible evidence of justice being done in case of a horrendous crime, the delays in executing a
death sentence seem inexplicable. But legal experts say that it is not so easy to lay down iron
clad rules to prevent them. People who are administering criminal justice have to be
balanced. In the conduct of such affairs, they cannot show vendetta. The country is not
abolishing capital punishment, and on top of that there is this delay in carrying out sentences.
So, basically, they are doing nothing - neither are they creating a culture of compassion nor
deterring anyone. Agrees Justice K. T. Thomas, who presided over the bench that handed the
death penalty to the accused in the Rajiv Gandhi assassination: The longer the wait for the
execution of the death sentence, the greater should be the chance of commutation. One cannot
put a person perpetually on tenterhooks. This should be ground enough to commute his
sentence. In UK where life without parole sentences are used. which means, a life sentence
means a sentence for life - that is they wont be allowed to come out of jail till they die. In
most capital punishment cases, the Indian governments attitude is actually similar, but they
wont make it official. This is abominable - if one is sentenced for a life in jail, one will at
least know that he or she will be alive in jail. In some other countries where capital
punishment is in force, the execution of the sentence usually takes much less time. For
instance, Timothy McVeigh who was found guilty of the murder of 168 people in the 1995
bombing of a government building in Oklahoma city, USA, was sentenced to death in 1997
and executed in 2001. The delays in dispensing with a mercy petition just makes the agony
worse, not to mention the fact that in the process, justice is also not seen to be done.
What really is the need of the hour is establishment of a time frame within which the mercy
petitions are to be disposed off. It definitely is inhuman to delay the death sentence, affecting
the convicted and his family as well. But it should also be noted that the convicted was
awarded a death sentence by law because of his clearly established inhuman actions. It is not
only the convicts family that is distressed but also the families that were affected by the
convicts actions, waiting if justice will be served and the guilty be punished. Merely stating
delay in disposing the mercy petitions should not be reason enough to commute the death
sentence. This delay could have been a result of complex procedures under the Constitution
for processing the mercy petition or due to the presence of governments unseen hand to
harness their political interests. Whatever be the reason, citing delay to be inhuman, for
reducing the sentence is also nothing short of being inhuman to the families at a loss.

Government should seriously consider in abolishing death penalty. If they take years to
decide on the mercy petitions of the accused, this is merely a joke on the fundamental rights
of the concerned persons. The government does not have the will to think about the problem.
If a person is in jail for more than 20 years and his mercy petition is sent to the President for
accepting or rejecting the petition. The governments answer is that there is no time limit. The
inordinate delay on the part of authorities, would give a chance to other states, viz. Punjab for
Bhullar, Kashmir to the terrorist who bombed Indian Parliament. Prolonged judicial process
in inordinate delays in deciding mercy petitions is a real torture and grave injustice for the
families of the victims. Till the time death penalty is there in our country, the judicial process
should be swift. JUSTICE DELAYED IS JUSTICE DENIED.

[1] Mr. Rajiv Gandhi was assassinated on May 21, 1991.

[2] Bhagat Singh v The King Emperor AIR 1931 PC 111.
[3] (1980) 2 SCR 864.
[4] State (Through CBI) v Santosh Kumar Singh 2007 CriLJ 964: 133 (2006) DLT 393.
[5] AIR 1981 SC 1167.
[6] AIR 1989 SC 1335.