CAN DELAY IN DEATH PENALTY RENDER IT UNCONSTITUTIONAL?

We all think about the women atrocities and child labour but we never think about those convicts
who 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 penalty accompanied with imprisonment.
Even though they are prisoners but still as humans even they have certain rights and even they
deserve to have fundamental rights .The delay arising from the constitutional process of disposal
or rejection of mercy of death penalty is not a mitigating circumstance for commutation of death
sentence and also does not reduce the gravity of the crime. The death sentence may be awarded
in the cases like waging war against the state (section 121), abetting mutiny actually committed
(section 132), giving or fabricating false evidence whereby an innocent person suffers death
(section 194), murder (section 302), abetment of suicide of insane or intoxicated person (section
305), dacoit with murder (section 396), attempt to murder by person under sentence of
imprisonment for life if hurt is caused (section307). Infliction of capital punishment is an
admission on the part of the state that it has failed to achieve deterrence by threat of capital
punishment which is often delayed and leads to capital punishment plus life imprisonment.
According to Amnesty International, in India, at least 100 people in 2007, 40 in 2006, 77 in
2005, 23 in 2002, and 33 in 2001 were sentenced, but not executed, to death. The latest report of
the National Crime Records Bureau (NCRB) says there are 402 convicts, including 10 women, in
Indian jails who face the death penalty. The report, Prison Statistics India 2010, says there has
been no execution in India since 2004, when rapist DhananjayChatterji1 was hanged in West
Bengal. According to a bench headed by justice H.S Bedi in September 2009 “the condemned
prisoner and his suffering relatives have … a very pertinent right in insisting that a decision in
the matter be taken with a reasonable time failing which the power should be exercised in favour
of the prisoner “our constitution itself says under article 20 (2) of double jeopardy that no person
shall be prosecuted and punished for the same offence more than once. Then why in the name of
delay the prisoners have to suffer double punishment.
The RajivGandhi case is going to be a test case for death penalty in India .whatever be the
madras HC decision, the matter is bound to go to supreme court which could lay down
guidelines for timely disposal of mercy petition . if the court rules that inordinate delay is a
1 Dhananjay Chatterjee v State of West Bengal and others (2004)9 SCC 751

the accused himself may be responsible for the delay. Right to Life means the right to lead meaningful. the procedure established by law must be strictly followed. illegal and according to me. unfair and unreasonable way so as to offend art.21. It is something more than surviving or animal existence. 2001. unconstitutional. Every minute is a minute of suffering for a convict on death row . even the killers of the president of India have to suffer double jeopardy though they are not convicted twice legally but in the name of delay they are being punished twice for the same offence .” Even an undue delay in the death penalty violates article 21 of the constitution. On December 19. the appropriate relief would be to vacate the death sentence and substitute life imprisonment instead. it makes death penalty immoral.we can’t fault the petitioner for it . Afzal Guru is a Kashmiri terrorist who was arrested on December 12. then it would have bearing or all pending mercy petition . State of Tamil Nadu3 the court thought that the delay of two years would make it unreasonable to execute death sentence. But what about the case where the delay is because of the proceedings itself then in that that case why the prisoner have to suffer both imprisonment and death penalty.ground for converting a death penalty to life imprisonment . “unless the delay is properly explained or justified. The main objective of article 21 is that before a person is deprived of his life or personal liberty by the State. including that of Afzal Guru . There has even been delay in the case of Afzal Guru. Article 212 deals with the protection of life and personal liberty.In Vatheeswaran v. Even the senior counsel Vaigai and reputed human rights lawyer Colin Gonsalves argued that” the delay is unconstitutional and by no yardstick can a government sit on a mercy petition for so many years . It does not have restricted meaning.the delay is on the part of the president’s office.Ram Jethmalani who represented one of the convict in the Rajiv Gandhi case supreme court and high court judgments that the delay was a ground for commutation of sentence he said. 2001 he made a confession of the offences which was recorded and signed by him and he also confirmed having made the statement without 2 Deena v UOI AIR 1983 SC 1155 : (1983) 3 AIR 1981 SC 361(2) : (1983) 2 SCC 68 . it there is prolonged delay in execution of a death sentence then it would be an unjust. complete and dignified life. In such case. a convict in the case of conspiracy in the December 2011 attack on the Indian parliament. The cause of delay was immaterial . No person shall be deprived of his life or personal liberty except according to procedure established by law.

Around 16 crores so far have been spent on him by the Indian government but still he has not yet been executed. When the delay in execution is in issue. He was given a stay of execution and remains on death row. just. Section 120B read with Sections 302 and 307 read with Section 120B IPC. it must be treated as violation of the Constitutional mandate.V. He was sentenced to death by the Supreme Court of India in 2004 and his sentence was scheduled to be carried out on 20 October 2006. 1989 Sc 1335 : (1989) 1 SCC 678 . This is a violation of Article 217 8of the Indian Constitution which enshrines fundamental and sacrosanct rights of human beings. The Supreme Court held in Sher Singh v State of Punjab5 that prolonged delay in the execution of a death sentence is an important consideration to determine whether the sentence should be allowed to be executed.B. We have several judgements which show that there are no fix principles to determine delay in cases of death sentences.any threat or pressure. the sole convict in the 26/11 Mumbai terror attack case.121A. 4 See footnote 3 5 (1983)2 SCC 344 6 See footnote 1. ‘due process’ i. fair and reasonable process does not end with only reasonable pronouncement of death sentence rather it extends till the proper and due execution of sentence. As for a matter of fact speedy trial is an integral part of Part III of the Indian constitution and it is included under Article 21 and thus if there is a prolonged detention before execution of death sentence and the accused waits every moment for execution of death sentence. 122. A Division Bench consisting of Chinnappa Reddy and R. From past three years he is waiting on the death row just like Afzal Guru and various other prisoners who amount to around 402. Held in the case of T. In DhananjayChatterjee’s6 case there was a fourteen years’ delay in execution of death sentence which prima facie is a violation of human rights and fair procedure. Not to forget the most recent case of Ajaml Kasab.Vatheeswaran v State of Tamil Nadu4 that “Making all reasonable allowance for the time necessary for appeal and consideration of reprieve we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 of the Constitution and demand quashing of the sentence of death.e. He was convicted of conspiracy in the December 2011 attack on the Indian parliament under Sections 121. Mishra JJ. the court needs to find out the reasons for delay. Human beings are neither angles capable of doing only good nor they demons determined to destroy each other even at the cost of self-destruction.”Therefore. Thus. 7 Triveniben v State of Gujarat.

R. Incidentally. filed the same year. If the apex court does decide to commute Bhullar’s sentence on the basis of the delay that took place in deciding on his mercy petition. “But he didn’t talk about it even though they have been charged with death penalty why do they have to suffer imprisonment because of the delay. death penalty is not a deterrent.The Supreme Court hearing of Devender Pal Singh Bhullar’s last bid petition — slated to take place at the end of the month — is important because his plea for commuting his death sentence to a life sentence rests on the argument that the inordinate delay in deciding his mercy petition was a violation of his fundamental right. For they too have approached the courts to have their death sentence commuted to life on the same grounds. the President of India 8 Earl Pratt v Att. Santhan and Perarivalan — the three men sentenced to death for the assassination of Rajiv Gandhi. “In this age of terrorist bombers. former CBI director who had investigated the Rajiv Gandhi assassination case. His mercy petition to the President of India. points out. the legal co-ordinator in the Rajiv Gandhi assassination case. He was sentenced to death in 2001. of Jamaica. The simple question is if the court has to give death penalty then why don’t they just give it why the prisoners have to suffer double punishment just in the name of delay though they have done wrong and committed crime but they are already paying it with their life why do we have to make it more painful why the imprisonment becomes an extra punishment with death penalty which the prisoners have to suffer . But they never mean to make culprit suffer twice for the same offence even they believe that no person should be convicted for the same offence twice but still even though unknowingly but people are suffering twice for the same offence which makes death penalty unconstitutional and morally wrong even according to natural justice the person should not be punished twice for the same offence and if he is punished twice then it is unjust on his part and justice has not been served and the main motto of law is to give justice and maintain peace and harmony in the society but he cannot be partial or in order to give justice to one he cannot be unjust with another and the delay in death penalty is the classic example of this injustice unknowingly served by law where justice served to one is being injustice to another by granting him double punishment for the same crime . . As D. it could spell hope for Murugan. [1994] 2 AC 1. Says Mumbai advocate Yug Chowdhary.”Others feel that there is a degree of arbitrariness in awarding the death penalty. It is time Parliament has a debate on the issue. Gen.why their constitutional rights are being violated by the court of law itself . “There is tremendous arbitrariness and subjectivity in applying the ‘rarest of rare’ formula — that which justifies a death penalty — to murder cases. and the Supreme Court upheld the sentence in 2003. was rejected last May. Karthikeyan. Bhullar engineered a bomb blast in Delhi that killed nine people.The founding fathers and mothers of postIndependence India did not ban capital punishment and retained the 1861 Indian Penal Code providing for the death penalty. In 1993.

Maharashtra (49). Many have been convicted but not executed. it rendered the death penalty illegal and unconstitutional. It is the duty of the judicial system to provide justice but their duty doesn’t end only with giving death penalty to the convicts but they are also required to look in the matter that there is on time execution of the same as if there is a prolonged delay then the capital punishment cannot be said to be just and constitutional as it violates the fundamental rights of the prisoners like that given to every citizen under Article 21 and Article 20(2) of the Indian Constitution. They live in dilemma regarding the end of their lives. pitching strongly for the process to be expedited by bypassing the regular procedure.Vaigai another senior counsel in the same case that delay in disposal of the mercy petition by 11 years made the execution of death sentence unconstitutional. Bihar (31). Delhi (18). You have got the power in your hands and the power is the greatest justification in this world. This cannot be said to be justice and as was said by Ram Jethmalani in delay regarding the consideration of the mercy pleas of the three convicts in the Rajiv Gandhi’s death case that unless the delay was properly explained and justified. The statistics clearly speak for themselves that the delay leaves the prisoners and their relatives in trauma and they are not wrong when they ask for the decision to be taken in their favour after a long long period of wait for the execution. It is high time that the Indian Judiciary not only gives death penalty but rather also sees into the matter that there is on time execution of the same. It thus can be inferred from the statistics that there are many Afzal Gurus and Ajmal Kasabs waiting on the death row for their noose. whose jails have 131 such condemned prisoners. no person should be deprived of his life or personal liberty except according to procedure established by law. said as per Article 21. Every day they feel as today will finally be their last day but that last day has not come for many prisoners since the execution of Dhananjay Chatterjee in 2004. It can be inferred from such instances that though death penalty is inflicted on the convict a long time back still they await their execution and even if they apply for a mercy plea to the President it takes eleven years to decide whether to reject their plea or accept it. As it is violates the fundamental rights of the prisoners who keep waiting to be executed and face double punishment and those who apply for mercy pleas end up waiting for eleven long years and even at the end such a long period their plea is rejected. the maximum are from Uttar Pradesh. Taking 11 years for disposing of the mercy petition was not a procedure established by law. . It was also submitted by R. Colin Gonsalves another counsel in the same case. We know that the maxim ‘Might is right’ serves as your guiding motto. special public prosecutor in the 26/11 Mumbai attacks case. Kerala (14) and Jharkhand (12). you will certainly do it. Tamil Nadu (16). The delay in execution of death penalty frustrates its very purpose. It is followed by Karnataka (60). West Bengal (20). A passage from Bhagat Singh’s last petition to the Punjab governor should give us pause: “As to the question of our fates. The NCRB report says that out of the 402 death row convicts. please allow us to say that when you have decided to put us to death. The poor prisoners keep awaiting the noose and spend most part of their life on the death row.rejected the trio’s mercy petition only last August — 11 years after it was filed. said Ujjwal Nikam.

i. The court have that much power to give death sentence to accused in the rarer of the rare cases but why delaying it and making it more painful for the accused . We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. we claim to be shot dead instead of to be hanged”.The whole of our trial was just a proof of that.Thus it can be analysed and concluded based on the current statistics and delay in executions of death penalties that the sentence should be rendered unconstitutional if delayed.e. And we claim to be treated as such. ..