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Report No. 262

G. Constitutional Implications of Pain and Suffering Imposed on Convicts on Death Row in the Pre-Execution Phase

6.7.1 In India, death row convicts typically spend many years by the time they exhaust their criminal appeals. Once the death sentence is finally confirmed by the Supreme Court, a convict further waits for years on end waiting to hear from the Governor and the President of India on the mercy petition preferred by him. More often than not, death row convicts are shifted to solitary confinement as soon as the trial court awards them death sentence and are also exposed to multiple execution warrants.

6.7.2 A prisoner under a sentence of death ekes out an existence under the hangman's noose and suffers from extreme agony, anxiety and debilitating fear of an impending execution and uncertainty regarding the same. The amalgam of such unique circumstances produces physical and psychological conditions of near torture for the death row convict. Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 61. This experience thus endured by a prisoner on the death row is also termed as 'death row phenomena'.

6.7.3 One of the main components of the death row phenomena pertain to the unique stresses of living under a sentence of death which includes the convict's mental anguish of anticipating the impending execution. The passage of every moment also presents the convict with a prospect of hope, which in turn produces constant mental struggle as to whether he will eventually live or not.

6.7.4 Further, the death row phenomenon is compounded by the degrading effects of conditions of imprisonment imposed on the convict, including solitary confinement, and the prevailing harsh prison conditions.

6.7.5 Constitutionally, the question relate to implications flowing from a scenario where a death row convict prior to execution of his death sentence is subjected to a prolonged period of imprisonment where he suffers from anguish, rising levels of agony and stress arising out of living in the ever-present shadow of the noose. The question is whether this dehumanizing and degrading experience borne by the convict constitutes a legal condition which can have the effect of rendering the subsequent execution of death sentence impermissible.

6.7.6 The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68 and thereafter in Sher Singh v. State of Punjab, (1983) 2 SCC 344 ('Sher Singh') and Triveniben v. State of Gujarat, (1989) 1 SCC 678 ('Triveniben') has recognized the degrading and dehumanizing nature of the suffering endured by a death row convict on account of prolonged delay in the execution of his death sentence. The Court has treated prolonged delay as a "supervening circumstance" which has the effect of rendering the sentence of death inexecutable.

6.7.7 Over the years, an international consensus has emerged around the fact that execution after avoidable delay under the harsh conditions of death row constitutes cruel and excessive punishment. Soering v. United Kingdom, 161 Eur. Ct. H.R. at 154 (1989); Francis v. Jamaica (No. 606/1994). UN Doc. CCPR/C/54/D/606/1995 (1995); Pratt v. The Attorney General for Jamaica, Privy Council Appeal No. 10, 22 (1993). The Privy Council in Pratt [1994] 2 A.C. 33 held that "it was torture, far more cruel that death itself, for a person to be kept on death row in a state of suspended animation, knowing that on any day the authorities could carry out their announced intention to deliberately extinguish life."

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