Law · Politics

Can delay in execution of death sentence render it unconstitutional?


Capital punishment, or the death sentence is a process established by law, as per which a person committing a heinous crime is put to death by the State as a punishment for his act. The motive behind such punishment is the deterrence and retribution of crime in the society. Death sentence in itself is a debatable issue as its relevance has often been questioned. But, the dilemma regarding the capital punishment further raises on the issue of whether the convict should be commuted due to the delay in the execution of the capital punishment (especially due to the time taken in judicial proceedings and the time taken by the Executive in exercise of its prerogative clemency), on the grounds of his right to life guaranteed under sections 14 and 21 of the Indian Constitution, which makes it  mandatory that that no person should be deprived of his life or personal liberty except according to the procedure established by law.

The paper analyses the various concepts of the capital punishment and discusses various issues for and against the topic, by presenting many arguments and judicial precedents. Various aspects of the delay are examined in the essay and the author also presents his own views and arguments along with the laws. Both sides of the issues are well-examined and a conclusion is ultimately drawn up along with personal suggestions of the author.


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[1]  that the death penalty should be imposed only in “the rarest of rare cases”.  The two judge’s bench in Des Raj v. State of Punjab[2] case (decided on 07.09.2007), consisting of Hon’ble Judges: R. V. Raveendran and B. Sudershan Reddy, emphasized upon the reasonability of the capital punishment by stating that “All murders are cruel but such cruelty may vary with degree of culpability and when culpability assumes the proportion of extreme depravity that ‘special reasons’ can legitimately be said to exist for awarding death sentence.”  In India, the capital punishment which comprises of execution by hanging till death is believed to be a deterrent to grave crimes by dint of instilling a sense of consequential death in reward of a person’s ghastly act, has often been facing debate over its relevance. Retribution and deterrence are often considered the two facets of punishment. Sarkaria, J., conferred in Bachan Singh v. State of Punjab[3] that retribution and deterrence are not two divergent ends of capital punishment, but they are convergent goals which ultimately merge into one. The issue of capital punishment, in itself, has often been debatable, but the punishment has never ceased to exist in the country. Before 1955, the Court was expected to give reasons if it chose not to pass a sentence of death as normally sentence of death was the rule and alternative sentence of imprisonment of life could only be given for special reasons. Section 367 Clause (5) in the CrPC, 1898 stated:

“If the accused is convicted for an offence punishable with death, and the court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why the sentence of death was not passed.”

But the section was amended in 1955 and after the amendment the discretion was left to the courts to give either of the sentences. Section 367(5) after the amendment reads:

“In trials by jury, the Court need not write a judgment, but the Court of Session shall record the heads of the charge to the jury, provided that it shall not be necessary to record such heads of the charge in cases where the charge has been delivered in English and taken down in shorthand.”

Thus, the part of the sub-clause which made it binding for the judiciary to explain the reasons of not awarding death sentence was dropped down and the new amended clause made it discretionary for the court to award either of the sentences. In the CrPC 1973, Section 354 Clause (3) reads as: “When the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment of 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.” Thus, it has been provided that in all cases of murder, life imprisonment should be given unless there are special reasons for giving 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 disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.”[4] The Model Prison Manual for the Superintendence and Management of Prisons in India explains the process to be followed for executing the convict.

Delay in execution

The 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. The issue of delay in judicial proceedings was taken in account in T.V. Vatheeswaram v. State of Tamil Nadu,[5] in which it was stated that a period of two years as prolonged detention would include the time necessary for appeal from the sentence of death and consideration of reprieve. But it was not taken in account in Sher Singh and Ors v. State of Punjab,[6] in which it was conferred that fixation of time limit to two years did not accord with the common experience of time normally consumed by the litigative process and the proceedings before the Government.

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.[7] The President takes the advice of the Council of the Ministers in making his decision. But, the Indian Constitution does not provide for any maximum time limit within which a mercy petition has to be decided. It often leads to a sluggish and delayed decision by the President over the mercy petition. For instance, the delay of more than a decade occurred in considering the mercy pleas of the three death-convicts in the Rajiv Gandhi assassination case, Murugan, Santhan and Perarivalan, with their pleas being ultimately rejected on August 11, 2011 by the President of India. In another case, Afzal Guru, who was convicted of conspiracy in the the December 2001 attack on the Indian Parliament was sentenced to death by the Supreme Court of India on August 5, 2005, but the government has not taken a decision on his clemency petition for six years now. In another instance of the delay, on June 12, 2011, the Gauhati High Court issued notice for the delay of 12 years in the case of Mahendra Nath Das, who was sentenced to death in August 1997 for a murder in Guwahati, Assam in 1996, and whose mercy petition was sent to the Government of India in 2000 but was only decided upon in May 2011.

The issue of delay has often been raised in the courts in various cases like T.V. Vatheeswaran v. State of Tamil Nadu,[8] Sher Singh v. State of Punjab,[9] Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra,[10] State of Uttar Pradesh v. Lalla Singh and Ors.,[11] Sadhu Singh v State of U.P.,[12] State of U.P. v Sahai,[13] Joseph Peter v State of Goa, Daman & Diu,[14] A.R. Antulay v. R.S. Nayak,[15] etc. and the delay in the execution of capital punishment has been widely challenged on the basis of Article 21 of the Constitution, which makes it mandatory that no person should be deprived of his life or personal liberty except according to the procedure established by law. It has often been argued that the death sentence in itself brings a constant mental torture for the convict, and the delay further aggravates it, making his condition worse than what death can do, which should lead to clemency. It is also argued that when the death sentence is announced, the sentence awarded is only sentence of death, and not sentence of death plus imprisonment, and hence if a prisoner is made to suffer in jail in accordance with a long wait for mercy, it amounts to a punishment of sentence of death and imprisonment for some time, and it leads to double jeopardy, which is against Article 20 of the Constitution of India, and unjustified by the law.

The factor of delay has often been a deciding factor in various cases. For instance, in Nethi Sreeramulu v. State of A.P.,[16] the Supreme Court while disposing the appeal in 1973 commuted the sentence of death given in 1971 to life imprisonment. Further, in State of U.P. v. Lalla Singh and Ors.,[17] the Court considered the delay of six years as a ground for not giving the capital punishment. In Sadhu Singh v. State of U.P.,[18]  the delay of three years and seven months was one of the factors which led to reduction of the sentence to life imprisonment, and in Ram Adhar v. State of U.P.,[19] where the delay of six years was held sufficient to commute the punishment of capital sentence to life imprisonment.

But, the delay in itself can’t be a sole reason for granting the clemency. There are many factors which can be taken account of in this regard.

  • 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.
  • 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.
  • Deducing from Sunil Batra v.Delhi Administration and Ors,[20] it can be stated that a prisoner who is sentenced and is kept in jail custody is neither suffering rigorous imprisonment nor simple imprisonment. He is kept safely in jail with a purpose that he would be available for the awarded execution. Hence, it would not amount to double jeopardy, and it would not render capital punishment as unconstitutional.
  • It was conferred in Naresh Shridhar Mirajkar v. State of Maharashtra[21] that a judgment of court can never be challenged under Article 14 or 21. It can be deduced that the execution of capital punishment can’t be challenged on the grounds of Article 21 of the Constitution of India.
  • The time is spent in the public interest for proper administration of justice. Moreover, if a court awards capital punishment, without considering the delay in disposal of the case, there cannot be a second look at the sentence, except through a review.
  • As stated in Lajar Mashi v. State of U.P.,[22] the delay in itself can’t be divorced from the diabolical circumstances of the crime itself, which fully justifies the award of capital sentence for the murder of the deceased.

There have been various decisions by the Apex Court of India in which delay has not been taken account of for commuting the capital punishment. For instance, in Nachhittar Singh v. State of Punjab,[23]  the Apex Court did not accept delay as a mitigating factor. In Maghar Singh v. State of Punjab,[24]  the Court stated that delay can’t be a good reason to commute the capital punishment in view of the pre-planned and brutal murder by the accused. Similarly, in Lajar Mashi v. State of U.P.[25], the Court did not take into account the ground of delay.


The delay in the execution of capital punishment has often been a debatable issue on the ground of constitutionality. Many arguments have been put forth for and against the issue. The Apex Court has also often been in two minds on the issue. It can be inferred that all these decisions are of very little importance to decide upon the constitutionality of the issue. In case the issue is critically viewed from the perspective of the Constitution of India and other laws and statues, it is noticeable that no specific period has ever been mentioned as being mandatory for the completion of the case. Neither is the President or the Governor bound by the laws for deciding upon the mercy petition in a specific period of time. It shows that one can’t challenge the constitutionality of the decision in itself on the ground of delay in execution. Also, the challenging of the execution on the basis of Article 21 of the Constitution is highly rebuttable and the Apex Court has often been double-sided on the point.

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

But, in terms of the canons of moral jurisprudence, it is highly desirable to bring some changes in the system. There is certainly a need to cast certain accountability on part of those causing the delay. There should be a reasonable timeline affixed for the disposal of the cases and the mercy petitions. In case the timeline is not followed, the Home Ministry must be answerable to it. Also, a system should be incorporated where President is accountable to the delay and he should be having a consultation with some legal experts for a proper and faster disposal of clemency petitions, as the delay clearly leads to immense mental trauma of the aggrieved persons, which is against the humanity and it does come under the purview of violation of human rights.

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

By: Avinash Kumar, National Law University, Delhi


[1] AIR 1980 SC 898

[2] [2007] 9 SCR 774

[3] ( 1980 ) 2 SCC 684

[4] Taken from: (last visited March 26, 2012)

[5] ( 1983 ) 2 SCC 68

[6] ( 1983 ) 2 SCC 344

[7] Basu–Introduction to the Constitution of India, Part II, p. 21, (3rd Ed.)

[8] ( 1983 ) 2 SCC 68

[9] AIR 1983 SC 465

[10] 1984 CriLJ 1909

[11] ( 1978 ) 1 SCC 142

[12] AIR 1978 SC 1506

[13] 1981 CriLJ 1034

[14] ( 1977 ) 3 SCC 280

[15] AIR 1988 SC 1531

[16] ( 1974 ) 3 SCC 314

[17] AIR 1978 SC 368

[18] ( 1979 ) SCC(Cri) 49

[19]AIR 1979 SC 702

[20] ( 1980 ) 3 SCC 488

[21] AIR 1967 SC 1

[22] AIR 1976 SC 653

[23] ( 1975 ) 3 SCC 266

[24] 1975 CriLJ 1102

[25] ( 1976 ) 1 SCC 806

Leave a Reply