Death Penalty and Inordinate Delay -
A discourse on rights and procedureIntroduction
In recent times there have been a lot of cases where convicts in 'rarest of
rare' cases have tried to avoid the death penalty, or their execution had been
grossly delayed. Over decades these people have misused the technicalities of
the law to their end and have tried to, if not completely, absolve their
sentences. But how is that possible? How is it that these people are getting
away with their crimes? The answer lies simply in the functioning of Articles 72
and 161 of the Indian Constitution, 1950.
Before we apply our judicial minds to the reality and the aberration of the
death sentence itself, we must solidify our understanding concerning the
existing judicial pronouncements and the division in law which they seem to
misuse. And to begin we must start at the purpose and principles that were
adopted by the constitution itself.
For the sake of extreme brevity, let us first discuss the Doctrine of Separation
of Powers, without the support of any legislation on that behalf, so that we can
concentrate on its conceptual aspect.
The doctrine of Separation of Powers
The framers of the Constitution clearly saw the need for a distinct judiciary,
executive and legislature in the Union and State Machinery. However, it posed
another major problem. If this independence would be allowed to subsist, then a
situation may arise wherein either one or all of the state machinery may start
acting with extreme self-interest and thus mete out severe injustice to the
Considering this system, it was realised that although these functions will be
separate and distinct. A system of checks and balances was allowed to exist, to
keep these factions accountable to each other and the Union. A beautiful example
is the Powers of President and Governor as enshrined under article 72 and 161 of
the Indian Constitution which provides them with the right to grant pardons
against judicial mandates if such a need arises.
It should be pertinent to note, that if this system of checks and balances were
to over-exceed their bounds, it could misconstrue the basic moral fabric which
our constitution is based upon and the separation
of these powers will cease
to exist. Instead, a new situation may arise, wherein one state functionary
shall start dispensing the functions of others. Which in itself may not only be
patently ill-legal but unconstitutional.
Regarding articles 72 and 161, and the case of mercy petitions a similar
situation has been seen to arise. Wherein it seems the check and balance system
has been misinterpreted for more than a few decades. Before we go into the
nitty-gritty of the situation therein. Let us just Gloss over what Article 72
The article reads:
72. Power of President to grant pardons, etc, and to suspend, remit or commute
sentences in certain cases:
- The President shall have the power to grant pardons, reprieves, respites
or remissions of punishment or to suspend, remit or commute the sentence of
any person convicted of any offence
- In all cases where the punishment or sentence is by a Court Martial;
- In all cases where the punishment or sentence is for an offence against
any law relating to a matter to which the executive power of the Union
- In all cases where the sentence is a sentence of death
- Noting in sub-clause (a) of Clause (1) shall affect the power to
suspend, remit or commute a sentence of death exercisable by the Governor of
a State under any law for the time being in force
Article 161 has not been repeated for the sake of brevity as it is a mirror
reflection of this article in terms of meaning. So from a reading of Article 72,
we can understand that there has been made a juncture between the executive and
the judiciary, which seems to be purporting the idea of checks and balances. Now
comes a pertinent question. 'Is the use of the word Shall therein imposing a
mandate or is merely obligatory and/or discretionary?'
If the word shall therein is understood to be that of a mandatory nature, then
in that manner Article 72 would be misinterpreted and the constitutional heads
therein would be acting as a court of appeal. Which clearly is not the objective
sought here. But how can we know for sure that this was not the intention of the
framers of the constitution?
A thumb of rule under Interpretation of Statutes states that to understand the
meaning of an enactment, we must first look at the enactment itself and its
language, for this purpose, tools of literal construction are utilised. When
these tools fail us, and there is still a lack of transparency we look at the
adjacent sections, or the act (in this case the constitution) itself. The
division of chapters and schedules come of great avail to interpret
Thus considering this Golden Rule, if we look at the placement of articles 72
and 161, we find that they have been placed under Part V, Chapter 1 and Part VI,
Chapter 2 respectively. These headers, which are also used as tools of
interpretation, herein are Union Executive and State Executive. Whereas the
Union Judiciary and State Judiciary has been enumerated under Part V, Chapter 4
and Part VI, chapter 5 respectively.
So how is this distinction important? We see that under the header of Judiciary
of both union and states, we see the procedure for Appeal. For example, in the
case of the Union Judiciary, we see articles 132 to 137 dealing with appeals.
The presidential power of pardon has not been mentioned here. Thus if the word
shall therein was of a mandatory nature it would make the president an
appellate body and thus his/her power would have been discussed therein, and not
under other chapters.
The distinction of these chapters is abundantly clear to show that:
- It is an executory function and not a judicial function.
- The power therein is discretionary and on the pleasure of the president
and not as a matter of right to the accused availing benefit therein.
If such a situation is allowed to subsist as a right, then it not only goes on
to violate the separation of powers doctrine but ropes in the executive as a
mandatory judicial functionary, which clearly is not the intention of the
framers of the constitution and thus proceeding to do so is not only based on
erroneous interpretations but is patently unconstitutional.
We will further solidify this argument, in the later section with the help of
other judicial pronouncements. Let us now deal with the Legality of the death
sentence, in itself.
Death Sentence under International Law
In regards to our international obligations that we have ratified, we are bound
by Article 7 ICCPR (signed on 23rd December 1976) and Article 5 UDHR (signed on
12th December 1948). But we clearly know that International Law holds no
enforceable mandate and to understand the Judicial Trend, we need to look at a
few post-ratification judgements and their reasoning as it helps us understand
the Indian Standing on Death Sentences.
In Bachan Singh v State of Punjab
, whilst relying on the 35th report of Law
Commission of India, it was held that Death Penalty neither violates the Basic
Structure nor offends the Golden Triangle of Fundamental Rights as enshrined
and brought about by Maneka Gandhi v. Union Of India
 and Kesvanada Bharti v.
Union Of India
In Jagmohan Singh v. State of Uttar Pradesh
, the court emphasized the need
for & intention of framers to allow for death sentences. Court emphasized the
need and sought its validity under articles 21, 72, 134, 161, & entries I and II
of list III of VIIth schedule.
Paras Ram v. State of Punjab
 relied further on Jagmohan Singh Judgement, it
has been remarked that in the interests of social justice, an important function
is discharged by judges in suppressing grievous injustice to humanist values by
inflicting deterrent punishment on dangerous deviants by imposing the death
Thus considering these circumstances it can be understood that the Indian
Jurisprudence is in favour of the Death Sentence if an opposing view has been
adopted by courts and they try to head away from the death sentence, then there
is not much reason as to why such an idea is adopted.
And if not overreaching, In the case of Nirbhaya death penalty was again upheld.
Thus we have established that the grant of death sentence is not patently
ill-legal rather necessary in certain circumstances. However, it is still
appalling to see that these criminals get away with their crime. To understand
why such a situation exists we just need to understand the protection sought by
the convicts in these cases.
The spectre of the Accused
The accused seeks to avail protection under article 21 on the grounds of
inordinate delay caused in the deliberation of their mercy petitions. In
furtherance of this issue, they approach the Supreme Court under article 32 and
sentences have been commuted on this ground alone.
The accused pleads on the
grounds of inordinate delay by stating that since they have been subjected
solitary confinement & such a punishment provides a degrading and inhuman
treatment, them being made to undergo such a punishment for long periods of time
violates Article 21. Now we need to understand what the courts have stated in
this regard and whether a violation truly exists.
In Sunil Batra v. Delhi Administration
, Section 30(2) of The Prisons Act was
discussed in great detail. Justice Krishan Iyer observed that the aforesaid
section postulates segregation on the ground of the death sentence. But also a
remarkable observation has been provided along with. He has observed that
segregation should not come into place until a finally executable death sentence
has been delivered. A finally executable death sentence would be said to prevail
when all judicial remedies have been exhausted, and the only thing left to do is
the execution itself.
It was then understood and adopted that such death row convicts must not be kept
separate, and this thus killed one of their defences. However, the delay still
went on to persist.
In Shatrughan Chauhan v. Union of India
, it has been held that The delay so
caused, must not be at the instance of the accused himself. But we see clearly
here that when the convict requests for a pardon, he himself is causing the
delay. However, this position has not been realised due to a lot of oversights
in law, as discussed further because we see how various judgements have shaped
this view totally out of character.
The issue at hand
After considering these points, we feel the urge to go to the centre of the
problem, i.e. Inordinate Delay as a ground for commutation of the death
sentence. This delay stems from the running of the accused from pillar to post,
invoking The Supreme Court's Jurisdiction under article 32, and that of the
president and the governors under articles 161 and 72. So the fundamental
problem brings us back to the issue, why is there existence of inordinate delay?
The accused is given a Right to Speedy Trial, under the expansive meaning of
Article 21 as has been brought forward by the Maneka Gandhi
 Judgement. But
would it be right to deem the process of presidential pardon as a trial?
We know by common understanding and various lexicons, that trial is said to be
held when an adjudicator adjudicates over a matter, parties are given a chance
to present their case (Audi alteram partem), the evidence is adduced by both
parties and the guilt of the accused is determined. However, it is not so in the
case under the presidential/governor's pardon. Parties do not further their
case, neither the president or governor has the obligation to apply judicial
knowledge to the facts and circumstances when a mercy petition is brought before
The ground for relief sought herein is never based on law, but principles
of morality and mercy, which as we know through various jurists are subjective
hence there is no uniform application and this process is a consideration of
moral and ethical factors.
In State of Haryana v. Jagdish
 it was held:
This power under articles 72 & 161, was never intended to be an unbridled power
of reprieve. It is a power that needs to be exercised cautiously. …. It is a
power of the sovereign that is exercised against its own Judicial Mandate
Thus from this observation, it can be understood, that this is a system of
checks and balances in the Indian democratic system. And it is a power to be
sparingly used, and when used it is only when the President/governor feels that
there has been an overreach in meting out justice and therefore this power is
free from Judicial Consideration but is benevolent of the ethical and moral
fibre of society.
It can be argued that this procedure though not a trial in itself but can be
considered a sentencing procedure. Concerning Criminal matters, the sentencing
procedure has been outlined in Section 235 of the CrPC. But holding a view of
the sort will be absolutely incorrect as the words of section 235 clearly
illustrate the words After hearing arguments and points of law (if any), the
judge shall give a judgement in the case.
The definition of judgement needs no
explanation here, as the order of pardon is not a judgement but an order at best
or maybe an acceptance of a plea.
But for sake of argument, let us consider that the constitution did mandate the
need for the President/Governor to preside over the judicial the mandate, then
at least that power should remain supreme and unquestionable. But unfortunately,
the case is not so, as a matter of fact rather than limiting the extent of these
organs, the judicial interpretation of these articles have further gone on to
dilute the Doctrine of Separation of Powers
rather than maintaining the
system of checks and balance, as rightly pointed out in State of Haryana v.
For a clearer illustration let us consider these judgements. In Devender Pal
Singh Bhullar v. State of NCT. Of Delhi
, the court set out three grounds for
bringing under review a president's/governor's pardon. They are, namely:
Shatrughan Chauhan judgement
- Decision Taken without application of mind.
- Founded on extraneous or irrelevant considerations.
- Malafide or patent arbitrariness.
 provided four other supervening circumstances:-
- Judgements relied upon declared per incuriam.
- Solitary Confinement
- Lapses in procedure
In Narayana Dutt v. State of Punjab
, further grounds for judicial
review have been brought forward for challenging exercise under articles 72 &
- If president/governor exercised the power himself, without the advice of
- If president/governor transgressed his jurisdiction.
- If president/ governor passed the order without application of mind.
- If president/governor passed the order on some extraneous
However in Epuru Sudhara v. State of Andhra Pradesh
 it was held that:
- There must not be any political consideration in the exercise of such
- Moreover, if the executive does choose to exercise this power, it must
do so after considering all relevant materials & circumstances before
arriving at any conclusion.
In Epuru Sudhara i
t is abundantly clear that the judiciary intends to separate
the legislature and the executive, but again in Narayana Dutt and the
judiciary has bridged the gap from executive to the legislature, and curtailed
the exclusive power of the president/governor with that of a combined power of
the legislature and executive by allowing such order of the president to be
subject to judicial review if it is found that he did not consult the
Which is not only in contravention of the doctrine of
separation of powers, but also an overreach. The doctrine of separation of
powers if so violated, also goes against the arbitrary use of power which has
been prevented by the constitution under article 14. Considering this
standpoint, such a position is also against the basic structure of the
Another aberration is the extremely subjective condition of non-application of
mind. These wordings are so vague and non-exhaustive that in any case or
circumstances, this principle can be invoked and then the judiciary again has
the power of review over a case it originally itself considered. And thus the
entire provision of article 72 and 161, becomes redundant.
The same reasoning can be gained when the Apex Court reviewed the case of
Shatrughan Chauhan, and on consideration of 'supervening circumstances'
brought upon it the onus of review of the presidential mandate and to such
justification sought approval from the Narayana Dutt guidelines. Thus a
question arises in these circumstances, what is the use of such a power when it
can be termed redundant by the same organisation, against which such power was
Thus the interpretation by the law over the years of these articles has seen to
only create problems, and make delay inevitable. Thus if the delay can be
claimed as a ground of relief, there is no procedure to stop delay. It is
pertinent to note that once, the judiciary reviews the presidential/governor's
mandate, there is no bar against moving the president/governor again on a mercy
plea. Thus this creates absolute arbitrariness and this endless process, will
inevitably cause the delay.
Again for arguments sake, let us consider that this power granted, is not a
discretionary power but mandatory, then in all likelihood, it is part of the
judicial process. And if such an interpretation is believed to be true, another
judgement entirely metes out the problem of delay.
In Triveniben v. State of Gujrat
, it was held Under Article 32, the
court will only examine the nature of the delay caused and circumstances that
ensued after the sentence was finally confirmed by the judicial process.
Thus if it is an accepted position of law, that the powers of the president and
governors are a part of the judicial process, then no question arises to commute
sentence on delay, because the judicial process is still underway and to commute
the sentence, is an act that is not only ill-legal but limitless. Because if an
exception is drawn to the judicial process herein, then who decides where the
embargo will stand? Can a person even before reaching and settling the issue
before High Court, claim inordinate delay?
Because death sentence as understood by Sunil Batra v. Delhi Administration
is not a death sentence until it is a finally executable death sentence. Thus
the question of delay is unnecessary and defeats the end of justice.
An interesting opinion here is that of Justice Y.V. Chandrachud in the case of Sher Singh v. State of Punjab
 wherein it was held by him that post mercy
jurisdiction exists with courts, but they must be cautious in exercising a free
hand over such cases. He warned that all prisoners on death row belong to the
same breed of 'rarest of rare' criminals & to allow some of them to take the
benefit of the delay would be unfair to others. The same opinion was upheld in
the Triveniben judgement.
The amazing feature of the Triveniben judgement, which gives us the closest link
to a correct interpretation has never in itself been over-ruled. It was brought
up during argument in The Bhullar case as Triveniben judgement had overturned
the judgement T.V. Vatheeswaran v. State of Tamil Nadu
. But the Triveniben
judgement was not touched by the justices then, and the argument was merely
termed attractive. The importance to bring up the fact that Vatheeswaran
judgement was overturned is because it is this judgement that states that 'Long
Delay makes sentence degrading and inhuman'.
Thus the enforcement of this provision is a two-edged sword. If you address the
powers of the president/governor as a duty to sit in appeal, then you bring them
under judicial process and then the relief of delay cannot be claimed.
And if it is not a duty but a power as understood etymologically, then it is a
benefit enjoyed at the pleasure of the president/governor. Therefore any such
delay that is caused is due to the instance of the accused themselves and thus
cannot claim relief against the same and the same point has been upheld in
The other problems with the structure and further dilution of the separation
What is the most fascinating aspect of this entire comedy of errors is the
factor that in order to send your mercy plea to the president, it goes through
the Ministry of Home Affairs, which each bureaucrat starting at the lowest to
the top passes on their comments insertions, additions, subtractions to these
petitions, so in the end when and if they do reach the president, it is a
rendering of the opinion of the bureaucrats and not the president.
Constitution did not provide for the legislature to delve into the
president's/governor's exclusive power. Thus this is patently ill-legal and
breaches the doctrine of separation of powers and makes an absolute mockery of
the system of checks and balances and creates imminent delay. And if the process
cannot be changed, and delay is imminent, then such protection should not be
extended to these hard-core criminals, so that they make out on bail after
already undergoing a life sentence and behead another man. (Sher Singh judgement).
The additional question arises in this circumstance is the question of the
victim's rights. The law is dead silent in this regard. We have put immense
consideration into the accused's rights here, and maybe such protection may be
needed in the law. But to what extent?
We know the criminal case is fought
against the state, as a crime is against society and the public at large? What
happens to the justice much deserved by state and public, just because a
hardcore criminal is caused inconvenience doesn't mean the society should be put
at risk again. Because once granted life imprisonment, they will be liable to be
granted bail. And what then? Status Quo? And society being affected at large?
What happens to the jurisprudence deriving a strict need for the death penalty?
Another issue here is that, this delay that is dearly claimed by these accused
are generally those accuse din high profile cases, who get expensive lawyers who
fight for them and thus commute their sentence to life by running an absolutely
continuous cycle of litigation one after the other. This makes justice for the
poor man much harder to achieve, and if I may be curt impossible
. Thus if the
delay is a ground that only the rich and litigious can avail, then there is an
inherent bias involved and hence antithetical to Article 14.
And where goes reform? No single judgement has considered whether the accused
had actually reformed, and sentences are commuted merely on the basis of delay.
Isn't reform an essential part of the prison system, and if it is felt there is
no reform, then why commute such a sentence? But the Indian judiciary prefers to
keep mum over the same.
Lastly, as a closing statement, I would like to quote the great words of an
American Founding Father, A distinguished attorney, constitutional interpreter,
founder of the famed 'New York Post' and first treasurer of United States,
Alexander Hamilton. His words in the Federalist no. 78 and the Anti-Federalist
no. 78 are of great importance over here, he said The complete independence of
the courts of justice is peculiarly essential in a limited Constitution. These
words hold grave importance today and are a point of introspection for all of us
to re-interpret and re-understand the constitution and enforce its spirit in the
manner it was intended.
Because if such a wrongful interpretation is allowed to persist, it would not
only defeat the ends of justice and cause extreme injustice to our constitution
itself, but will go on to absolutely dissolve rights of both the accused and the
victim in the very same instance.
- (1980) 2 SCC 684
- (1978) 1 SCC 248
- (1973) 4 SCC 225
- (1973) 1 SCC 20
- (1981) 2 SCC 508
- (1978) 4 SCC 409
- (2014) 3 SCC 1
- AIR (2010) SC 1690
- AIR 2010 SC 1690
- AIR 2013 SC 1975
- (2011) 4 SCC 353
- (2006) 8 SCC 161
- (1989) 1 SCC 678
- (1978) 4 SCC 409
- (1983) 2 SCC 244
- (1983) 2 SCC 68