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Report No. 262

(iv) Delay and the death penalty

2.4.21 Delay has been a matter of concern in the criminal justice system, with the adage 'justice delayed is justice denied' being attributed to the plight of both victims of crime as well as the accused. Long terms of incarceration, periods of which are on death row and in solitary confinement, have been the concerns of courts through the years. In the case of T.V. Vatheeswaran v. State of Tamil Nadu ('Vatheeswaran'), (1983) 2 SCC 68, the Court held that a delay in execution of sentence that exceeded two years would be a violation of procedure guaranteed by Article 21.

However, in Sher Singh v. State of Punjab, (1983) 2 SCC 344, it was held that delay could be a ground for invoking Article 21, but that no hard and fast rule could be laid down that delay would entitle a prisoner to quashing the sentence of death.

2.4.22 A Constitution Bench of the Supreme Court in the case of Triveniben v. State of Gujarat, (1989) 1 SCC 678, considered the question, and held that only executive delay, and not judicial delay, may be considered as relevant in an Article 21 challenge. The Court said, "the only delay which would be material for consideration will be the delays in disposal of the mercy petitions or delay occurring at the instance of the Executive." Triveniben v. State of Gujarat, (1989) 1 SCC 678, at para 17

2.4.23 If, therefore, there is inordinate delay in execution, the condemned prisoner is entitled to come to the court requesting to examine whether, it is just and fair to allow the sentence of death to be executed.

2.4.24 The Court also held:

Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusions reached by the Court while finally maintaining the sentence of death. No fixed period of delay could be held to make the sentence of death inexecutable. Triveniben v. State of Gujarat, (1989) 1 SCC 678, at para 23

2.4.25 This was reaffirmed in the case of Shatrughan Chauhan v Union of India, (2014) 3 SCC 1. This case also laid down guidelines for "safeguarding the interest of the death row convicts", Shatrughan Chauhan v. UOI, (2014) 3 SCC 1, at para 241 which included reaffirming the unconstitutionality of solitary or single cell confinement prior to rejection of the mercy petition by the President, necessity of providing legal aid, and the need for a 14 day period between the rejection of the mercy petition and execution.

2.4.26 Recently, the Supreme Court also upheld the constitutionality of Section 364A, IPC, which allows for the imposition of the death sentence in cases of kidnapping with ransom. In the case of Vikram Singh @ Vicky & Anr. v. Union of India & Ors, Criminal Appeal No. 824 of 2013, Supreme Court of India, decided on August 21, 2015 it had been argued that Section 364A was unconstitutional, among other things, because it denied courts the discretion of awarding a punishment that was not life imprisonment or the death sentence especially in cases of kidnapping which may not warrant such a high punishment.

The Supreme Court acknowledged that "punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed". Vikram Singh @ Vicky & Anr. v. Union of India & Ors, Criminal Appeal No. 824 of 2013, Supreme Court of India, decided on August 21, 2015, at para 49.

However, it held that "Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional", Vikram Singh @ Vicky & Anr. v. Union of India & Ors, Criminal Appeal No. 824 of 2013, Supreme Court of India, decided on August 21, 2015, at para 50, saying death sentences would only be awarded in the rarest of rare cases. The Court did not address the question of whether the death sentence was an appropriate punishment for a non-homicide offence, or applicable international law standards on this issue.



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