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

ground for converting a death penalty to life imprisonment , then it would have bearing or all
pending mercy petition , including that of Afzal Guru . 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 .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, unless the delay is properly explained or
justified, it makes death penalty immoral, illegal and according to me, unconstitutional. 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 .
Every minute is a minute of suffering for a convict on death row .we cant fault the petitioner for
it .the delay is on the part of the presidents office.
Even an undue delay in the death penalty violates article 21 of the constitution. Article 212 deals
with the protection of life and personal liberty. No person shall be deprived of his life or personal
liberty except according to procedure established by law. The main objective of article 21 is that
before a person is deprived of his life or personal liberty by the State, the procedure established
by law must be strictly followed. Right to Life means the right to lead meaningful, complete and
dignified life. It does not have restricted meaning. It is something more than surviving or animal
existence. it there is prolonged delay in execution of a death sentence then it would be an unjust,
unfair and unreasonable way so as to offend art.21.In Vatheeswaran v. State of Tamil Nadu3 the
court thought that the delay of two years would make it unreasonable to execute death sentence.
The cause of delay was immaterial .the accused himself may be responsible for the delay. In such
case, the appropriate relief would be to vacate the death sentence and substitute life
imprisonment instead. 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.
There has even been delay in the case of Afzal Guru, a convict in the case of conspiracy in the
December 2011 attack on the Indian parliament. Afzal Guru is a Kashmiri terrorist who was
arrested on December 12, 2001. On December 19, 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

any threat or pressure. He was convicted of conspiracy in the December 2011 attack on the
Indian parliament under Sections 121,121A, 122, Section 120B read with Sections 302 and 307
read with Section 120B IPC. 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. He was given a stay of
execution and remains on death row. Not to forget the most recent case of Ajaml Kasab, the sole
convict in the 26/11 Mumbai terror attack case. Around 16 crores so far have been spent on him
by the Indian government but still he has not yet been executed. From past three years he is
waiting on the death row just like Afzal Guru and various other prisoners who amount to around
402.
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. A Division Bench consisting of Chinnappa
Reddy and R.B. Mishra JJ. Held in the case of T.V.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.Therefore, due process i.e. just,
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. Thus, it must be treated as violation of the
Constitutional mandate. When the delay in execution is in issue, the court needs to find out the
reasons for delay. 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.
We have several judgements which show that there are no fix principles to determine delay in
cases of death sentences. In DhananjayChatterjees6 case there was a fourteen years delay in
execution of death sentence which prima facie is a violation of human rights and fair procedure.
This is a violation of Article 217 8of the Indian Constitution which enshrines fundamental and
sacrosanct rights of human beings.
4 See footnote 3
5 (1983)2 SCC 344
6 See footnote 1.
7 Triveniben v State of Gujarat; 1989 Sc 1335 : (1989) 1 SCC 678

The Supreme Court hearing of Devender Pal Singh Bhullars 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. In 1993, Bhullar engineered a bomb blast in Delhi that
killed nine people. He was sentenced to death in 2001, and the Supreme Court upheld the
sentence in 2003. His mercy petition to the President of India, filed the same year, was rejected
last May. If the apex court does decide to commute Bhullars sentence on the basis of the delay
that took place in deciding on his mercy petition, it could spell hope for Murugan, Santhan and
Perarivalan the three men sentenced to death for the assassination of Rajiv Gandhi. As D.R.
Karthikeyan, former CBI director who had investigated the Rajiv Gandhi assassination case,
points out, In this age of terrorist bombers, death penalty is not a deterrent. It is time Parliament
has a debate on the issue.Others feel that there is a degree of arbitrariness in awarding the death
penalty. Says Mumbai advocate Yug Chowdhary, the legal co-ordinator in the Rajiv Gandhi
assassination case, There is tremendous arbitrariness and subjectivity in applying the rarest of
rare formula that which justifies a death penalty to murder cases. But he didnt talk about
it even though they have been charged with death penalty why do they have to suffer
imprisonment because of the delay. The simple question is if the court has to give death penalty
then why dont 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 .why their constitutional rights
are being violated by the court of law itself .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. 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 . For they too have approached the courts to have
their death sentence commuted to life on the same grounds. Incidentally, the President of India

8 Earl Pratt v Att. Gen. of Jamaica, [1994] 2 AC 1.

rejected the trios mercy petition only last August 11 years after it was filed. 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. The poor prisoners keep awaiting the
noose and spend most part of their life on the death row. The NCRB report says that out of the
402 death row convicts, the maximum are from Uttar Pradesh, whose jails have 131 such
condemned prisoners. It is followed by Karnataka (60), Maharashtra (49), Bihar (31), West
Bengal (20), Delhi (18), Tamil Nadu (16), Kerala (14) and Jharkhand (12).
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. The delay in execution of death penalty frustrates its
very purpose, said Ujjwal Nikam, special public prosecutor in the 26/11 Mumbai attacks case,
pitching strongly for the process to be expedited by bypassing the regular procedure. 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. 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. 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 Gandhis death case that
unless the delay was properly explained and justified, it rendered the death penalty illegal and
unconstitutional. It was also submitted by R.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. Colin Gonsalves another counsel in the same case, said as per Article 21, no
person should be deprived of his life or personal liberty except according to procedure
established by law. Taking 11 years for disposing of the mercy petition was not a procedure
established by law.
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. They live in dilemma regarding the end of their lives.
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. Many have been convicted but
not executed. It is the duty of the judicial system to provide justice but their duty doesnt 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. A
passage from Bhagat Singhs last petition to the Punjab governor 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. 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 .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.