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This article is written by Indrasish Majumdar, LawSikho Intern. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).


The death penalty is the most severe form of capital punishment approbated to an offender for committing murder or any other serious form of crime that threatens to endanger or imperil the life of a human being. The controversy surrounding death penalty revolves largely around questions concerning its constitutionality, how to locate the punishment in contemporary criminal jurisprudence and discourses surrounding the human rights of convicts and ensuring justice to them. Several international organisations, both governmental and non-governmental have endorsed the debate as well as abolitionists in India. They have tried to raise the issue in Parliament thrice without much success. All three debates furthering the campaign against the death penalty were instituted in the Rajya Sabha twice in 1958 and 1961, once in the Lok Sabha in 1956. However, after significant debate and deliberation, all three bills were either withdrawn or rejected. 

The “Bachan Singh Judgement” upheld the constitutional validity of capital punishment. The court based its opinion on the thirty-fifth law commission report. The Apex Court consequently upheld and inseminated the same in a plethora of judgements. Therefore, India retains the death penalty as one of over a hundred countries to retain the same.

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A salient question that often arises in the course of the debate is what steps might be taken in cases wherein the execution of death sentences has been delayed. Through this article, the author seeks to explore delay in the execution of the death penalty as a ground for commutation of life imprisonment. 

Delay in the execution of death sentences

Convicts of death sentence have asserted of late, that the delay in the execution of a death sentence should be considered a ground for commutation, upon the rejection of their clemency petitions by the executive. The convicts assert that the period between them being awarded the death penalty, them petitioning for clemency before the president, and the disposal of the “petition” constitutes excessive delay which seems like another “degrading and inhuman punishment”. The convicts in Indian prisons, by citing the “substantive due process” in the Indian constitution, are trying to commute their death sentences to life imprisonment.  

On previous occasions, the Apex Court has deliberated on the question of delay in the awarding of death penalties, treating a convict on death row humanely and not subjecting him to the agony of waiting for his execution. In Devender Pal Singh Bhullar v. State of N.C.T Delhi, the Court propounded that delay could not be a ground for the commutation of death sentences to life imprisonment in terror cases and rejected the convict’s petition, thereof. In Mahendra Nath Das v. Union of India, the Court opined that a delay of twelve years between the closure of the case and the death penalty being awarded, amounted to inordinate delay and the same could be regarded as a ground for commutation. The Judgement stayed the execution order of fifteen convicts, the clemency petition of whom had been rejected by the executive. The Chief Justice of India accordingly created a bench to deliberate on the correctness of ” post-mercy” rejection jurisdiction. The judgement in Shatrughan Sinha v. Union of India delivered in January 2014, expressed the opinion of the bench on the same issue. The court opined that the delay in execution can be the only ground for commutation in death sentences.

Death penalty in India : a historical insight 

Before deliberating on the debate surrounding the inordinate delay in awarding of the death penalty by the Apex Court, it is pertinent to delve into the history of capital punishment in India. Awarding of capital punishment is an ancient sanction and there is no country in the world wherein at some point in history the punishment has not existed. In ancient Greece, for instance, under the “laws of Draco (7th Century B.C.E)” capital punishment was awarded for crimes including murder, arson, rape etc. Plato had argued in his book “The Republic” that punishment should be limited only for the “incorrigible”. The above-stated observation of mine is supported by a comment by Sir Henry Maine: “The Roman Republic did not abolish death sentence though its non-use was primarily directed by the practice of punishment or exile and the procedure of questions”. 

An intricate examination of the debates in the British Legislative assembly will show that until 1931 no debates were raised in the Assembly concerning capital punishment. It was in the year 1931 that a member from Gaya, Shri Gaya Prasad Singh proposed to introduce a bill in the house abolishing the punishment for death under the Indian Penal Code. However, the then Home Minister rejected the proposal. 

The Home Minister of pre-independent  India, Sir John Thorne, threw light in 1946 on the Government’s policies on capital punishment in the debates of the Legislative assembly. The Minister stated that “The Government does not think it wise to abolish capital punishment for any type of crime for which that punishment is now provided”.

India retained several of its laws post Independence which were introduced by the colonial government, including the “Code of Civil Procedure, 1898” and the “Indian Penal Code, 1860”. The IPC introduced six punishments including death that can be sanctioned under the law. The Parliament repealed Section 367(5) CrPC, 1898 in 1955 which altered the position concerning the death penalty in the country, significantly. The courts were no longer required to register special reasons for not imposing the death penalty in cases where it was prescribed as punishment, and the death sentence was no longer the crime.

Several changes were incorporated in the CrPC 1973, particularly to Section 354(3): “When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”

The situation was significantly modified post the 1955 amendment (wherein, in a capital case, terms of imprisonment and the death penalty were equivalent possibilities) and an alteration of the stance under the 1898 law (wherein death sentence was considered the norm and if any other punishment was imposed the reason had to be recorded). A possibility of a post-conviction hearing on sentence, including the death sentence, was brought in by the amendment under Section 235(2), which stated that: “If the accused is convicted, the Judge shall unless he proceeds per the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

Death by hanging is the prescribed mode of capital punishment in India. A caveat needs to be placed before further delving into this debate. The author of this paper does not intend to enter a debate concerning the legality of capital punishment, irrespective of whether it is on, sociological, moral or penological basis, much like the judgements of the Supreme court propounded regarding the same. The discussion of this paper is limited to whether a delay in the execution of capital punishment for a convict on death row can be an extenuating factor and position of the “Supreme court of India” concerning the same. 

Death sentence in Britain : a historical insight 

Death punishment laws date back to the eighteenth century B.C.  finding reference in “the Code of King Hammurabi of Babylon ”. “The Hammurabi Code” endorsed the death penalty for twenty different offences. The death penalty was awarded per the “Hittite Code in the fourteenth century B.C”. “The Draconian Code of Athens, in the seventh century B.C.” mandated solitary imprisonment for all crimes irrespective of its nature. “In the fifth century B.C.” “The Roman Law ” as enumerated in the “Twelve Tablets” endorsed sentencing a Roman citizen to his/her death. Capital punishments were executed in manners ranging from boiling in oil, burying alive, devouring, torturing,  slaughtering, gutting, choking, hanging, impalement, stoning, gagging, quartering.” 

Hanging was the most preferred mode of execution in Britain until the tenth century A.D. In the eleventh century, William the Conqueror prohibited death by hanging and by and large proscribed execution for any crime, except those committed amidst war. However, his mandates were not adhered to for long and in the 16th century, as many as 72,000 people were executed during the reign of “Henry VIII”. The means of execution used at this time ranged from foaming, drawing to stretching at the stake, beheading and quartering. Capital offences included marrying a Jew, not admitting/ falsely admitting to a crime and foul play.”

In the following two centuries, in Britain, the number of capital crimes increased exponentially. By the 1700s, more than two hundred convicts were sentenced to death in Great Britain for myriad offences; some as insignificant as chopping down a tree and burglarizing a rabbit warren. However, considering the seriousness of capital punishment, juries rarely sentenced citizens to the guillotine, if offences were not genuine and horrendous enough. The sympathetic attitude of the juries to a punishment of such extreme stature prompted the change in Britain’s capital punishment laws. By 1837, capital punishment was criminalised for more than half of the crimes previously deserving death.

The death penalty in the United Kingdom lasted from the time of Hammurabi until the second half of the twentieth century. The Homicide Act of 1957 was enacted by the then Labour M.P Sydney Silverman. Only certain types of murder were allowed by the act e.g. those committed in furtherance of theft.  The last execution in the United Kingdom took place in the year 1964, of Gwynne Evans and Peter Alan for the murder of a taxi driver, which was done in furtherance of theft and had been deemed a capital crime. After this, the death penalty was criminalised for murder  (in 1965 in Great Britain and 1973 in Northern Ireland) with the ratification of the 1965 Murder Act which suspended the death penalty for an initial five year period. Albeit banned and rarely used, capital punishment was a legitimate form of punishment for specific offences, for example, treachery, until being completely abrogated in 1998. In 2004 with the ratification of the 13th Protocol to the European Convention on Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances” the United Kingdom by the virtue of being a signatory of the covenant criminalised the death penalty in all situations including crimes committed in wartime and for posing an immediate threat of war. 

Judicial Committee of Privy Council on whether the delay in execution of death penalty can render the execution unlawful

If a delay in execution of a death sentence is inordinate and not attributable to the conduct of the convict, it can be rendered unlawful: proceeding with the death penalty under such circumstances is considered inhuman and cruel in violation of the eighth amendment of the United States Constitution. The tradition of the United Kingdom has historically been that the execution of a death sentence should immediately follow the sentencing of the same by the court. Only for appeal and considerations of the Crown Reprieve could any delay in the execution of death sentences be allowed.  

The majority opinion in the case of Noel Riley v. Attorney General of Jamaica of the “Judicial Committee of the Privy Council” held that when a death sentence has been imposed per provisions of the law whatever may be the reasons for the length of delay it could not proffer the execution unlawful, even if the delay could be explained as degrading or inhuman to the mental health of the accused and his family.

The minority opined in an entirely different light. The question the minority asserted was not whether the delay and the governing circumstances behind it were reasonable, but whether the inordinate delay, rendered an inhuman and cruel impact on the mental health of the convict even when the delay was not attributable to him. The court considered whence after awarding a death penalty a certain degree of mental anguish is inevitable, it needs to be gleaned whether the further delay as a consequence of appeal and consideration of reprieve could prolong the suffering and impose on the convicted person an unusual and cruel punishment. 

The test the court opined was not to ascertain the reasonableness of the delay in execution, but the repercussions of such a delay on the mental health of the accused and all of the circumstances. The test of adjudging the “reasonableness” of the decision is not the “general interpretation” that the law requires because it was too stringent and incapable of prioritising the suffering of the victim in interpreting the terms “degrading” and “inhuman”. The minority opinion, in this case, considered the effect of a delay from the shoes of the condemned person- in analysing how the delay affected the convict. The bench upheld the fundamental right to the dignity of a person irrespective of the ghastly nature of the crimes he might have been condemned of thereby recognising the inhumanity and degrading impact of a delayed death penalty and the fact that a condemned murderer was no less of a human being. The minority opinion refused to acknowledge the pain and suffering caused in consequence of awarding the death sentence as inevitable and argued it was the unreasonable extension of that penalty that amounted to the inhumane and degrading treatment. 

The two opinions in the judgement are directly opposed to each other. However, the considerate approach of the minority exemplified that the general perception of a death row convict as sub-human, before the case, was changing and a reconstituted bench of the Judicial Committee of Privy Council might choose to follow it in the future. The above-stated assumption does not indicate that the majority opinion could be challenged on grounds of illegality, but that as the values and standards of justice change in a rapidly evolving society, a time may be envisaged when the principle formulated in the dissenting opinion of the case will sanction legal validity. 

The minority opinion, to explain in simple words, is that when an inordinate delay is caused in the execution of a death sentence and the same cannot be attributed to any commission/omission on the convict’s end; the execution becomes illegal and ceases to be as per the “due process of law”. The appellant (convict) in such a situation is inoculated for simply exercising his constitutional right to appeal. It is not fair on his part to endure suffering for the oversight or procrastination of another. Once the suffering of the prisoner transcends the “severity threshold” as enumerated in the Eighth Amendment, his constitutional rights are infringed under this section, irrespective of the plethora of reasons that can contribute to the slow operation of the appeal procedures. 

A landmark judgement was pronounced by the Judicial Committee of the Privy Council in the case of Henry Pratt v. Attorney General of United States of America. The case concerned a constitutional challenge to the legality of sentencing commonwealth prisoners to hanging, particularly those who had been on death row for a period exceeding five years. The counsel unambiguously declared execution under the given circumstances was illegal and allowed the appeal. 

This change of a social perception towards convicts on death row was presupposed in the case of Abbott v. Attorney General of Trinidad and Tobago by Lord Diplock wherein he stated “… In such a case, which is without precedent and, in their Lordship’s view, would involve delaying measured in years, rather than in months, it might be argued that the taking of the condemned man’s life was not by due process of law”. 

Part of the English legislation enforced in 1727 was the Bill of Rights of 1689 ratified at the commencement of the “Reign of George II” and was therefore applicable to all colonies of Britain, including the colonies of America. The legislation read that the execution of a prisoner was not an act that could be completed at any time after the sentence is passed: from the time the accused was sentenced to the death penalty to the moment of burying his body within the confines of the walls the execution of a condemned prisoner was governed by existing customs and practise. However, an important point of consideration in this process was the time”.  Every stage of the process of sentencing someone to death had to be carried out without undue delay. The right to life could be infringed only per the due process of law.  The “due process of law” is not completed upon the pronouncement of a judgement but continues till the judgements are effectively enforced in a civil suit and sentences are carried out in a criminal case. 

The presence of Section 10 of the Bill of Rights is proof of the evidence and the need for ratification. The minority in the Riley case contended that ” there is a formidable case for suggesting that execution after inordinate delay would have infringed the prohibition against cruel and unusual punishment to be found in section 10 of the Bill of Rights.” 

Therefore the decisions of the Judicial Committee of the Privy council in the cases deliberated above indicates the position concerning rendering the death penalty unlawful on grounds of delay as perceivable from the above-mentioned change with time. What was the minority opinion in the Riley case became the majority in Pratt v. Attorney General for Jamaica and a more humane approach was adopted for treating convicts on death row. 

Process of awarding death sentence (the rarest of rare doctrine)

It is nothing short of trite to explain the death penalty in India can be awarded only in the “rarest of the rare cases”. However, more strenuous is the task of deciphering which cases the court brings under the “rarest of rare doctrine”. The courts while categorising cases under the particular doctrine consider a plethora of factors in addition to the case being one of uncommon culpability. The other factors are namely: introspection into the accused’s state of mind, the place and time of the crime, to determine if the case is suitable for capital punishment, to determine whether or not to sentence an individual to capital punishment. In applying the judicial mind on whether to sentence an individual to capital punishment the judge considers several pointers including expectation, extant nature, scope and causality behind the commission of the offence. Adjudication of the above-mentioned factors makes it easier for the court to designate a particular case under the “rarest of the rare” doctrine. 

The judiciary has attempted to reinterpret the cases wherein capital punishment may be awarded, endorsing a humanitarian approach towards the penalty. The judiciary in consonance to the global outcry to put an end to punishment by death and India’s International obligations, have tried to reformulate the jurisprudence, manifesting the changing perception towards capital punishment. The author in this section typifies the “rarest of rare” doctrine as established by the Apex Court and how the detailed procedures involved in classifying a case under the doctrine often adds to the delay in the awarding of death sentences by the court.  

The question concerning the constitutional validity of the doctrine was adopted for the first time by the “Apex Court” in the case of Jagmohan Singh v. State of Uttar Pradesh. In this case, the court upheld the validity of the death sentence. The court opined on the importance of the roles discharged by judges in the interests of social justice by  “suppressing grievous injustice to humanist values by in acting deterrent punishment on dangerous deviants and imposing the death penalty”.

The decision of the Apex Court in Bachchan Singh subsequently rendered significant changes in the judicial and legislative policy coupled with the amendment to Section 303 of the Indian Penal Code and the Maneka Gandhi Decision which brought forth the “due process” right within Indian Jurisprudence. Any law or amendments now have had to be examined per Articles 14, 19 and 21, which complement each other and are not mutually exclusive. The opinion of the law commission concerning the elimination of the death penalty was backed by the judges who agreed that the situation in India was still not conducive to abolishing the death penalty altogether. The judges asserted neither the “golden triangle” of “fundamental rights” nor the “basic structure of the Constitution” was affected by the awarding of the death penalty. Concerning the procedures, the courts iterated the guidelines enumerated in the Jagmohan Reddy case that in the awarding of death sentences courts “ought to draw up a balance sheet of aggravating and mitigating circumstances”. The court additionally opined to merit consideration at the stage of sentencing; factors like the age of the defendant, their physiological condition, socioeconomic stature, whether life imprisonment would rehabilitate and ultimately reform them need to be considered. 

The court additionally noted the brutal and horrifying nature of the crime must be paid due regard before awarding a death sentence. The nature and brutality of the crime, the court opined, should be determined upon the examination of the “modus operandi”- the type of weaponry used, and the conditions under which the crime was committed. Justice Sarkaria appropriately surmised the approach of the judiciary concerning the awarding of the death penalty. He opined: “Judges should never be bloodthirsty… a real and abiding concern for the dignity of human life postulates resistance to taking a life through life’s instrumentality”. “That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The trend of the judiciary up until this juncture was to award a death sentence as a “rule of thumb”. A change was marked by the case of Bachchan Singh in the judicial fiat and the Apex court opined in favour of life imprisonment being the norm and the death penalty being awarded only under exceptional circumstances. The court reaffirmed its position in the case of Machhi Singh v. State of Punjab wherein the meaning of these “rarest of rare” cases was expounded. The court deliberated on the circumstances under which it might award death penalty “When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner to arouse intense and extreme indignation of the community […] When the murder is committed for a motive which evinces total depravity and meanness […] When the crime is enormous in proportion […] [and] when the personality of the victim of murder [elicits similar reactions]”. 

Adjudication of crimes stating the death penalty as punishment became lengthy and time-consuming over the years as the tests to determine whether or not to award the death penalty became more specific and their scope of applicability was narrowed. The Apex court much later in the case of Santosh Kumar Bariyar v. the State of Maharashtra designed an ingenious test. The court suggested conducting a comparative analysis of all the past cases wherein the death penalty has been awarded. The court expounded the same “would guarantee stability in the death penalty jurisprudence and ensure judges are not able to impose such punishments arbitrarily”. The Apex Court opined “Though each case must be judged on its merit, judges should be cognisant of other cases where death sentences have been imposed to ascertain the common thread.”  

It is evident from the above deliberations of the Supreme court, that the death penalty today is awarded to a very limited category of cases after much consideration. The court therefore while adjudicating a particular case within this narrow sphere i.e the golden triangle of “fundamental rights” and the “basic structure of the constitution”, while being immune to public opinion needs to consider a much higher threshold of constitutional values. The nature and seriousness of these crimes need to be placed on a higher pedestal when compared to others, considering the Apex court and the executive, despite being empowered to commute a death sentence in the greater interest, did not do so and has held the convicts guilty. Therefore in light of the above mentioned procedural requirements for the imposition of the death penalty, immanent systematic delays in the criminal justice system is inevitable. 

“Commutation of capital punishment to life imprisonment” in light of “Bullar”, “M.N Das” and “Shatrughan Chauhan”  

M.N. Das and Bullar both cases are judgments delivered by the Division Bench of the Supreme Court, by Justice G.S Singhvi. Inevitably, consistency in both the judgements become apparent. The debate surrounding the death penalty was reinvigorated by the Bullar and M.N Das judgements pronounced within twenty days of each other. The Chief Justice of India, in light of these decisions, constituted a larger bench to decide on the Shatrughan Chauhan case and deliberate on the question of whether delay can be an extenuating factor in death sentences.

The petitioner in Bullar was responsible for the murder of the senior Superintendent of Police in Chandigarh employing remote-controlled bombs. The convict was held responsible for the death of nine persons and the then president of Youth Congress. The accused was charged under Sections 419, 420, 468 and 471 of the Indian Penal Code and Section 12 of the Passport Acts, 1967 and Sections 2, 3 and 4 of the Terrorist and Disruptive Activities Act, 1987“(“TADA”). The Apex court later dismissed his review petition.

The appellant in M.N Das case was already sentenced to life imprisonment for killing one man and had killed another man upon being released on bail. The death sentence of the petitioner by the sessions court was subsequently confirmed by the High Court. The Supreme court of India on appeal noted the antagonising circumstances of how the murder was committed, including blows to the body of the victim with a sword, cutting off his hand. The court additionally noted the murder was committed when he had already been condemned to life imprisonment. The court taking these factors into consideration felt compelled to award the death penalty.

The court in the Shatrughan Chauhan case handled twelve separate petitions unlike Bullar and M.N Das wherein they dealt with one particular writ petition. Eleven out of the twelve petitions dealt with the commutation of the death sentence on various grounds ranging from mental illness, delay in hearing the clemency petition by the executive, one on grounds of delay, the others were premised in delay by the executive in adjudicating the mercy petitions.  

The arguments furthered by the petitioners concerning the question of “supervening circumstances” that revitalised their demand for commutation is relevant to our discussion. In Bullar,  the counsel for the petitioner gleaned the court’s attention to various International Human Rights doctrines to which India is a party. The ratio of these arguments was however based on the interpretation of the “due process” in Maneka Gandhi v. Union of India. Wherein the Supreme Court had opined that every judicial and executive order must align with the “golden triangle; Articles 14, 19 and 21 of the Indian Constitution”. The States as per this test are required to operate in a “just, fair and reasonable” manner per the standards of dignity, liberty and freedom as enumerated under the Constitution of India. 

It was argued that a delay in the decision of the executive to reject or accept the petitioner’s plea of mercy, inflicted inhuman torture on the petitioner and amounted to degrading treatment. In the immediate case of Maneka Gandhi, the petitioner was left mentally ill by the inordinate delay in awarding him the penalty. The courts additionally are supposed to uphold the petitioner’s right to a speedy trial implying death sentences that are delayed should be commuted. The petitioner in the above-mentioned case prayed for commutation on sympathetic grounds as the situation since the offence was committed had changed substantially. 

Another plea concerning the commutation of death sentences on grounds of the inordinate delay was raised in the case of M.N Das, wherein it was extensively argued by the counsel that a delay of twelve years was ample time for the court to deploy its power under Article 136 of the Constitution and commute the sentence awarded.  

The court in Shatrughan Sinha considered four other circumstances under which death sentences can be commuted namely:

1) the accused was suffering from mental illness. 

2)  the judgement which the trial court premised on to propound its decision to sentence is declared “per incuriam”.

3) procedural oversights.

4) the accused being kept in “solitary confinement”.

The “supervening circumstances” enumerated above dissects the judgement of the court in three categories:

1) mental illness schizophrenic in nature can be the only ground for commutation of death sentence

2) Judgments of the trial court or high court declared “perineurium” cannot be considered as the sole ground for commutation.

3) The court finally opined procedural lapses being grounds for commutation of death sentences would differ from a case-to-case basis.

Commutation is a consequence of delay 

The most decisive judicial dictum concerning the delay of cases has been laid down in the Triveniben case. Judicial dictums, however, have deviated from the position as enumerated by the court. The judgement in simple and plain words enumerated that for a delay to be considered a valid ground for commutation it must be perceived in light of all circumstances.

One of the arguments on behalf of the petitioner in Bullar was that the judgement in T.V. Vatheeswaran v. State of Tamil Nadu, which opined that sentences were rendered inhuman and degrading because of long delays, was the correct position of law, despite the decision being overruled in Triveniben. The court, however, maintained a stance of neutrality, neither rejecting nor accepting such an argument and simply termed it “attractive”.

The court perceived the above-mentioned case with inhibition since the present case was a terror case. The court crafted an exception to the Triveniben rule. It was felt by the court even if the decision in Triveniben v. the State of Gujarat was deemed the correct position in law, a “terror exception” was necessary since such the rule would be inapplicable for cases registered under Terrorist and Disruptive Activities (Prevention Act, 1987 and ancillary statutes. The court reasoned the difference in the application of the rule was essential because cases registered under TADA entailed culpability of the higher threshold. The political nature of such offences, the types of weapons used, and the magnitude of the crime determines whether it involves a higher degree of culpability than other offences. However, the court via its judgement wrongly emphasised the repercussions of such offences on the social fabric. Offences of such kind incite demonstrations and have a divisive impact on large sections of the populace, especially the youth who are encouraged to join militant organisations in the name of religion or to achieve other aspirations which often paves the path for genocide. The court additionally placed a burden on the petitioner to prove that the mental or physical ailments were of such a degree that the death sentence was rendered inhuman, degrading and cruel because of the same and, accordingly non-executable. 

However, the very same judge in the M.N Das case recognised the existence of the Triveniben rule which stated that an unreasonable delay in the execution of a death penalty will supplicate the petitioners a cause of action. He opined the cases wherein delay alone sufficed as a ground to commute death sentence namely: Madhu Mehta v. Union of India and Daya Singh v. Union of India, the court did not completely exercise its power to do justice under “Article 142 of the Constitution” but instead resorted to Article 136. 

The importance of this opinion lies in the fact that this was the first time that the court deciphered its power to commute death sentences, one that is not codified in any legal statute explicitly. Therefore, while delay could be regarded as a good ground for commutation the court opined the same should be accompanied by other factors necessitating commutation. The decision of the Supreme court explicates the same wherein it stated: “delay of twelve years, coupled with the rejection of clemency petition by the President being ultra vires, jointly constitute  grounds for vacating the death sentence.”

In the Shatrughan Chauhan case, the court recommenced the debate from the Vatheeswaran case and noted Justice Shetty’s concurring opinion in the Triveniben case. He opined that “inordinate delay may be a significant factor, but that cannot render execution unconstitutional.”

The court sequentially noted the average time required to dispose of a mercy petition in the 1980s ranged from fifteen days to 10 months which increased later to four years between 1980-88 and twelve years from the 1990s to this date. The court further shed light on the role played by the executives of the Union Government in the delayed disposition of mercy petitions by self-enacted rules to adjudge mercy petitions which too should be included as a factor behind the delay in execution of death sentences. Interestingly in Shatrughan Chauhan, the court observed that “supervening circumstance” was caused by delay alone, mandating commutation, thereby implicitly endorsing the argument of the petitioners that mental sickness alone constituted a valid ground for commutation. 

Thereafter the court strongly criticised the “terror exception” formulae devised in the Bullar case and enumerated, under any legislation in India, the penal effect of sentencing a person to his death would have a similar outcome. Further, the court held “once condemned to death, no person could be further punished based on the depravity of his act”. Thereby the court opined the judgement delivered in Bhullar case per incuriam and reasoned that under IPC and other cases are of a similar disposition. The court thereafter asked for conducting a medical examination of Bhullar’s physiological health and commuted the death sentence of the convict to life imprisonment inspired by its judgement in Shatrughan Chauhan. Similarly, the orders for the death sentence of Rajiv Gandhi’s assassins were commuted on account of inordinate delay in execution. 

For purposes of uniformly implementing the subsisting procedure, the court in its concluding remarks in the Shatrughan Chauhan judgement explicated certain guidelines. The guidelines were enumerated to ease the inhuman torture often inflicted upon a death row convict by delay in the execution of the offence. Via the instructions the court held that:

1) under the aegis of Article 21 of the Constitution, before the dismissal of mercy petition solitary confinement is unconstitutional. 

2) as a matter of right pro bono legal ad should be provided to all the prisoners and the nearest legal aid clinic, the prisoner and his family should be notified of the rejection of a mercy petition at the earliest. 

3) the guidelines by the Union Government on whether to accept or reject a mercy petition should be enforced unwaveringly without delay.

 4) occasional evaluation of the mental health of death row convicts should be undertaken.

 5) before execution the convict should be given a minimum notice of fourteen days.

 6) the convict should be allowed to access all documents on the case. 

7) meeting between the family of the convict and himself/herself should be facilitated and after the execution takes place there should be a mandatory post mortem.

The Supreme Court of India on the inordinate delay in announcing death penalty verdicts 

The Supreme Court of India in January 14th 2014 in Shatrughan Chauhan v. Union of India reinstated the importance of the due process of law, particularly in terms of its application to those who have been marginalised by us as a society. As has already been discussed above, the commutations in Shatrughan Chauhan were ordered on grounds of delay in disposing of mercy petitions by the president. The court contended that a person who has been sentenced to the death penalty for years in the end without receiving any answer to his plea for clemency undergoes mental agony which violates his constitutional right to life. 

The issue before the court at stake in Chauhan was simple: Whether the powers bestowed on the president and governor under Articles 161 and 72 can be subject to judicial review. The court enumerated the powers vested in certain constitutional duties on the authorities obliging them to conform to the due process as typified in the Maneka Gandhi Judgement. Therefore only in exceptional cases wherein the concerned authority in acting contrary to the due process has repudiated its responsibility, its verdicts can be brought under the purview of judicial scrutiny.

The conclusion in Chauhan in many ways was not particularly ingenious: it was more of assimilation and vindication of what has already been enumerated by the court in multiple cases previously e.g. T.V Vatheeswaran v. State of Tamil Nadu and Triveniben v. the State of Gujarat. However, the Apex court in Chauhan enunciates an important point that a death sentence would be precluded by an inordinate delay in execution even when the convict in question has been accused under the TADA Act. The court in enumerating so, overruled its decision in the case of Devender Singh Bhullar v. State of NCT Delhi (2013) wherein as mentioned above it had opined that “a delay in disposing of a mercy petition was, by itself, insufficient ground for commuting the sentence of those convicted to death under anti-terrorism statutes.” The judgement in Chauhan in rectifying this aberration reinstated an age-old constitutional principle “the Constitution demands that the state treats all those subject to its powers as having equal status; when there is no constitutional basis for differentiating between convicts found guilty of offences such as murder and convicts found guilty of terrorism offences, any delay in execution is to be treated equally, as a violation of due process, irrespective of the offence committed.”

Unlike the Bullar judgement which was overruled by a larger bench of the Supreme Court in the Chauhan case, the dictum of the court in Afzal court could not be overruled because the convict had already been executed. The accused “Afzal Guru” was accused and sentenced to the death penalty for carrying out terror attacks on the parliament. After seven years of him being awarded the death penalty and almost six years of serving the clemency petition to the President in February 2013, Afzal guru was executed. The family during all these years remained in day-in-day-out antagonising suspense. In addition to the delayed execution, the clemency petition after being rejected by the President was deliberately not disclosed to the convict or his family, in case it becomes the subject matter of judicial consideration. Afzal guru within days of his mercy petition getting rejected was executed amidst morbid silence without any information being supplicated to his family and his body was buried within the confines of Tihar Jail in New Delhi without being shown to his family members.

At the very core of the findings of the court in the Chauhan,  was the deeply entrenched notion that to keep a convict sentenced to the death penalty inordinately waiting amounted to mental torture. Take Praveen Kumar (55) for example, one of the writ petitioners before the Apex court charged with quadruple murder and sentenced to capital punishment in February 2002. His sentence was confirmed by the court in October the following year. Kumar soon after the confirmation of the sentence by the court petitioned before the president pleading mercy on grounds of having been in solitary confinement ever since the trial court deemed him guilty. As per the provisions of Article 161, the petition was forwarded by the office of the president to the governor’s office in December 2003, to decide on whether to accept or reject the plea.

The Governor, however, refused to exercise his power by a decision dated 30th September 2004″ upon reviewing the various judgements from this particular court. The petition was thereof returned to the president who spent nine years trying to decide on whether to accept or reject the petition and finally it was dismissed on March 26th 2013. The convict spent 11 years and 10 months in custody after the filing of the petition anticipating whether or not capital punishment will be awarded. 

In civilised societies in the twenty-first-century death penalty is perceived as an abomination, but making the prisoner further wait for an additional period after the passing of the sentence is not safeguarded by the constitution nor envisioned by the law. “The right to life and personal liberty” as the court appropriately noted under Article 21 was inclusive of a right to be treated with dignity, irrespective of whether it is a law-abiding citizen or a convict of death row. Unexplained delays in determining the merits of a mercy petition and execution of a death sentence is an infringement of the abovementioned right. It might be asked why the protection of the law should be approbated to the most ruthless men and women, but disregarding due process for the most brutish criminals paves the path for it to be ignored for the rest of the citizenry. 

The dictum of the court in Chauhan while reminding us of the importance of safeguarding our most cherished human rights and constitutional dogmas, disperses light on a glaring loophole in the approach of the Apex court to the civil rights jurisprudence, especially in its implementation of the “comparative constitutional law”. The court in the Chauhan case was visibly driven towards safeguarding Human rights, even of convicted prisoners and terrorists, and gleaned International legal precedents with an illuminated mind. The court compared decisions of the Apex Court to that of the United Kingdom’s privy council and opined “the same respectful consideration” towards convicts of death row has been showcased by both the courts. The court by contrast in Bullar spoke disparagingly of the “bandwagon” which endorses the cause of terrorists and  “raises the bogey of human rights.”

As against the hundred and forty countries which have abolished the death penalty and deemed it unconstitutional only fifty-eight countries have still retained it. In India, the punishment has been retained by the Apex court via the unpredictable and uncertain “rarest of the rare” doctrine. The Supreme court’s oscillatory and fractured approach is a matter of utmost concern, considering the most salient aspects of judicial functioning are affected by it: the protection of fundamental rights.

As early as 1974, Justice Krishna Iyer had commented on the despicable condition of prisoners on death row in his statement “brooding horror of haunting the prisoner in the condemned cell for years.” It is essential for the Supreme Court as the highest court in the pecking order to endorse consistent practices while adjudicating cases: and the same can be ensured by allowing no less than five judges to decide on a particular case. However, for the time being, it appears the best has to be made out of what appears to be one step forward and two steps for the Supreme Court. However, it is at the same time of some consolation that the court had ultimately decided firmly on the illegality of executing the death penalty in the Bullar case after an inordinate period of agonising suspense to the convict and his family.

“The reasons for a delay in execution of death sentence” : conclusion and suggestions 

Almost seven years down the line since the gang rape and murder of the 23-year-old student of paramedicine, in the wee hours of 20th March 2020, the four convicts in Nirbhaya was executed within the premises of Tihar jail. The convicts left no stones unturned to save themselves from the death penalty. A fast track court awarded the death sentence, however, it took six years for the sentence to be executed. The following section of the paper shall explicate the various reasons that contribute to the inordinate delay in awarding death penalties.

  • Mandating the confirmation of death sentence by High Court 

The trial of cases under the rarest of the rare doctrine usually takes place in the trial court or the sessions court or a specific fast track court. The court, based on the severity of the offence, can pronounce the sentence. Section 366(1) of the code of Criminal Procedure mandates it for the High Court to confirm the sentence before sentencing someone to the death penalty. This procedural requirement often operates as a ground for delay for crimes committed under the CrPC. However, the requirement does not apply to central legislations such as the “Air Force Act 1950”, “Army act 1950”, “Assam Rifles Act 2006” which are excluded from the purview of CrPC which ensures comparatively swift disposal of cases. 

  • Constitutional levy given to the convicts to challenge the decisions of “the High Court” before “Supreme Court” 

Upon the awarding of death sentence to a convict by the High Court, he/she has the option to approach the Supreme Court questioning the decision of the High Court under the aegis of Articles 132, 134 and 136 of the Indian Constitution. A curative petition can be filed by the convicts if the review petition gets rejected by the court. 

  • “Mercy petition before the State Governor or the president for commutation” 

As has been discussed above, a convict on death row is entitled to file a mercy petition for pardon before the President of India under Article 72 of the Indian Constitution or the Governor of a state under Article 161 on grounds of law, health and age. Based on the suggestions of the state Governor and approval of the Home Ministry the petition can be disposed of by the Governor or President. The Governor or President can also grant, if deemed fit, reprieve, respite, pardon or remit and commute the convict upon the disposal of the petition. However, for the respective execution to take place disposing of the mercy petition is necessary. The convict is further entitled to question the decision of the President concerning the mercy petition on its merits before the “Supreme Court”. Once the Supreme court disposes of this petition the execution may be carried out. The long-drawn procedural requirements, especially the stage at which the President or Governor is required to dispose of the petition adds to the delay in the overall execution of the sentence.  

  • Convicts are entitled to file up to four petitions 

Up to four petitions can be filed by the convict challenging his/her sentence. The very reason why the provision has been granted to the convicts is to ensure the decision concerning the death penalty is not hastily made. To ensure no innocent person is convicted of such a grievous punishment the procedure ensures sufficient checks and balances in course of the trial. 

  • The “rarest of rare” doctrine 

As has already been discussed above, the Supreme court in Bachan Singh v. the State of Punjab, 1982 enumerated only in the “rarest of the rare” cases could capital punishment be given. The doctrine was needed to resolve the ambiguity concerning the category of cases wherein the death penalty can be awarded. The judgement additionally stated the mitigating and aggravating circumstances per which whether or not to sentence a particular convict to death row may be decided by the court before arriving at a decision. 

The abovestated reasons are few among many behind the inordinate delay in disposal of cases concerning the death penalty. This contention of mine is cemented by data from the National Crime Records Bureau (NCRB). Since the beginning of the 21st century per data released by the NCRB as of 31st, 2018 2493 people were sentenced to the death penalty. However, at the time the data was released only four were executed. A total of eight death row convicts have been executed since 2000 including the latest executions. Much of the low rate as has been deliberated above owes to the procedural requirements to be met before awarding capital punishment and the legislative protections approbated to the convicts on death row. It has been recommended by the law commission of India that except in cases of terrorism and waging war death penalty should be abolished. 


Sentiments of the public channelized into the chambers of the parliament by the efforts of the lawmakers have time and again reflected a determination to retain the death penalty. However, the “intelligentsia” as exemplified through a plethora of law commission reports and multiple judgements delivered by the highest judicial authorities has every so often felt the need to retain the penalty. Therefore this sentiment is not a reflection of ” mob mentality” ganging up on a criminal. 

A belief of such kind is not ingenious to India but persists across other civilised nations who have premised their judicial machinery on the principles of equality, fairness and following the rule of law. Additionally, an academic discussion entirely reliant on citing statistics and conducting an empirical survey is not enough to glean a true picture of the intangible impact the idea of the death penalty has on the social life of the convict and his family. Therefore when imposing such a punishment, commuting or deeming them unlawful the court must stride with caution. 

The author hopes for a day when India will criminalise the act of convicting someone to death, and as it rightfully may, such a day is not far into the future. However, it must be considered that until that day comes misgivings of most of the “abolitionists” have been manifested in the judgements, which have filtered the circumstances under which a person may be sentenced to the death penalty. In fact, one can assume, under the current circumstances, the number of cases wherein the death penalty may be awarded if applied effectively per judicial guidelines, will further reduce.

However, to analyse the issue at hand, the legality or morality of such punishment need not be considered but as enumerated in the Riley case by the Privy council, the effect of such an inordinate delay in prolonging the degrading and inhuman impact of a death sentence. However, the fact persists, that in a post mercy case a punishment of such kind has already been awarded, and reinstated based on notions of the rule of law by the various social organs. 

Ultimately, it needs to be remembered that no codified legal principles have laid down the power of courts to commute death sentences. The court commutes the sentence if it considers the same to be the most appropriate legal remedy in furtherance of its “supervening power” to do justice and pertain to the principles of rule of law. However, the court as the executioner of justice and enforcers of law must not perceive justice as a “one-sided concept”. The interests of justice, it needs to be understood, are not served by looking into the effects of a delay on the prisoner alone. A more holistic perspective needs to be adopted that involves the society at large, family and friends of the victim who has lost their loved ones.

No amount of compensation can have an analeptic effect on the loss they have suffered. Accordingly, the Supreme court being a constitutional court, in essence, must be cautious while deliberating on the law of the land, because the respective legislation transcends the life of real people and has far-flung implications on the convicts and permeates the very heart and mind of the society in addition to the victims and their family. The approach of the courts must be humane as enumerated in the Pratt case by the Judicial Committee of Privy Council. That does not whatsoever imply the court should not cower away from their obligation to harden their hearts and pronounce the just, exemplary punishment when demanded so by the situation. 

A special category of cases is epitomised by delay matters, wherein both the judiciary and the legislature, in all their wisdom has concluded it unfit to commute a death sentence in the interests of justice for the rarest of rare cases. Therefore the question concerning commuting death sentences on grounds of delay should be treated with caution. The sentence of death row inmates should not be commuted by the judges so long they propound their judgements per the Triveniben Dicta. As enumerated by Justice Mukherjee when reiterating the death sentence “If in spite thereof, we commute the death sentence to life imprisonment we will be yielding to spasmodic sentiment, unregulated benevolence and misplaced sympathy”. Therefore, it can be concluded based on the above-stated arguments, that delay alone for the ground is not sufficient to commute the death sentence.

Effectively fixing the time limits of filing a mercy petition, disposal of such petitions and the subsequent remedies in law in case of such rejection can help in minimising the issue of delay. The efficiency of the judicial process can be augmented by strictly adhering to the time limits, without making concessions in the legal remedies already available. As the saying goes “justice delayed is justice denied but justice hurried is not justice at all.” Therefore the court should attempt and strike a concord between the delay in execution of death sentence and human rights of death row convicts. It would be nothing but extremely unfortunate if the rights of prisoners were compromised merely for delay. 



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