Report No. 262
(i) Enduring Long Years on Death Row
6.7.8 The Supreme Court in T.V. Vatheeswaran v. State of Tamil Nadu, (1983) 2 SCC 68 ('Vatheeswaran'), sets the due process bar very high for an execution to be allowed to be carried out after imposition of an otherwise valid death sentence. The Court in Vatheeswaran for the first time recognized the constitutional implications flowing from the unique nature of suffering and pain implicit in pre-execution imprisonment of a convict on death row waiting for the hanging to take place. The Supreme Court in Vatheeswaran based its analysis on the fact that Article 21 inheres in the prisoner till his last breath and even while the noose is being fastened around his neck.
The Court also observed that other than the mass of suffering a prisoner has to endure on account of living for years in the shadow of death sentence, avoidable delay also makes the process of execution of death sentence unfair, unreasonable, arbitrary and capricious and thereby, violative of procedural due process guarantees enshrined under Articles 21, 14 and 19. T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, at para 20; Sher Singh v. State of Punjab, (1983) 2 SCC 344, at para 23; Jagdish v. State of M.P., (2009) 9 SCC 495, at paras 48-49. The Court in Vatheeswaran captures the injury done to Article 21 rights of the convict in following terms:
11. While we entirely agree with Lord Scarman and Lord Brightman about the dehumanising effect of prolonged delay after the sentence of death, we enter a little caveat, but only that we may go further. We think that the cause of the delay is immaterial when the sentence is death. Be the cause for the delay, the time necessary for appeal and consideration of reprieve or some other cause for which the accused himself may be responsible, it would not alter the dehumanising character of the delay.
12. What are the constitutional implications of the dehumanising factor of prolonged delay in the execution of a sentence of death? Let us turn at once to Article 21 of the Constitution, for, it is to that Article that we must first look for protection whenever life or liberty is threatened. Article 21 says: "No person shall be deprived of his life or personal liberty except according to procedure established by law."
The dimensions of Article 21 which at one time appeared to be constricted by A.K. Gopalan v. State of Madras [AIR 1950 SC 27] have been truly expanded by Maneka Gandhi v. Union of India [(1978) 1 SCC 248] and Sunil Batra v. Delhi Administration [(1978) 4 SCC 494]. T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, at paras 11-12. (Emphasis supplied)
6.7.9 The Court while siding with the dissenting opinion of Lord Scarman and Lord Brightman in the Privy Council decision in Noel Riley v. Attorney-General, 1982 Criminal Law Review 679 held that prolonged delay in the execution of a death sentence contravenes Article 21 rights of the convict regardless of the cause and nature of delay. The Court held 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 and demand the quashing of the sentence of death." T.V. Vatheeswaran v. State of T.N., (1983) 2 SCC 68, at para 21.
In other words, the Vatheeswaran limit of two years did not treat judicial delay differently from clemency delay i.e. the Court in Vatheeswaran extended this protection also to delays caused during trial and appeal. This aspect of Vatheeswaran came to be doubted by a three judge Bench of Sher Singh v. State of Punjab, (1983) 2 SCC 344.
The Court observed in Sher Singh that the appellate courts in normal course take upto four or five years to process appeals apart from the time spent by the Constitutional authorities under Articles 72 and 161 in considering the mercy petitions. The Court in Sher Singh therefore, departed from the rule of thumb approach (of 2 years) propounded by the Vatheeswaran Court and held that no pre-determined period of delay can be held to guarantee frustration of death sentence.
6.7.10 A Constitution Bench of the Supreme Court in Triveniben v. State of Gujarat, (1989) 1 SCC 678 also found favour with the conclusions arrived at by the Court in Sher Singh. The Court in Triveniben held that a death row convict while waiting for his appeal to be taken up in the appellate life cycle still has a "ray of hope" of getting a favourable judicial order. The Court held that in such circumstances where appeal is still pending, the convict does not suffer from mental torture of waiting for an eventual execution as the sentence of death has not yet become a sure certainty.
The Triveniben Court in certain terms held that the delay for the purpose of an Article 21 claim made by the convict could only be said to kick in once the judicial process has come to an end after the Supreme Court has dismissed the appeal. Sher Singh v. State of Punjab, (1983) 2 SCC 344, at paras 18-19; Triveniben v. State of Gujarat, (1989) 1 SCC 678, at para 16; Triveniben v. State of Gujarat, (1988) 4 SCC 574, at para 2.
6.7.11 The Supreme Court in Sher Singh also held that in such Article 32 petitions a death row convict cannot be allowed to take advantage of delay which is caused on account of proceedings filed by him to delay the execution. The Court held that the equitable basis of a prisoner's plea for commutation in such a case is compromised if he has in any away contributed to the delay caused in disposal of his mercy petition. Triveniben v. State of Gujarat, (1989) 1 SCC 678, at paras 17, 23; Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1, at para 48.
a. Revised Standard of Delay in Pratt
6.7.12 The Supreme Court in Sher Singh and thereafter in Triveniben purportedly rationalized the law on degrading punishment on account of avoidable delay in execution by pushing time taken in the appellate proceedings out of the delay calculation. It also forbids the convict to claim benefit for delay caused on account of proceedings preferred by him. It is to be noted that the Supreme Court in Sher Singh cited the common experience of disposal of appeals before the High Court and the Supreme Court to be four or five years on this count. However, the international norms on this count have since undergone change.
6.7.13 A decade after the decision in Noel Riley v. Attorney-General, 1982 Criminal Law Review 679, came out, the Privy Council reversed itself in Pratt and Others v. AG of Jamaica,  2 AC 1 ('Pratt'), citing the Indian Supreme Court decisions in Vatheeswaran, Sher Singh and Triveniben, and recognized that prolonged delay renders the death sentence too inhuman and degrading to be executed.
But in doing so, the Privy Council presented a wholesome understanding of delay. The Privy Council today does not make a distinction on the basis of nature of delay and causes of delay while considering the oppressive effect of long years of wait on the death row prisoner. The focus of the Privy Council is only on the human rights implications flowing from the delayed execution. The Privy Council in Pratt noticed the shift in Indian law from Vatheeswaran to Triveniben on the aspect of definition of delay constituting degrading punishment and sided with the former. The Privy Council held:
In India, where the death penalty is not mandatory, the appellate court takes into account delay when deciding whether the death sentence should be imposed. In Vatheeswaran v. State of Tamil Nadu, Chinnappa Reddy J. said at page 353:-
The court held that delay exceeding two years in the execution of a sentence of death should be sufficient to entitle a person under sentence of death to demand the quashing of his sentence on the ground that it offended against Article 21 of the Indian Constitution which provides "No person shall be deprived of his life or personal liberty except according to procedure established by law."
In Sher Singh and Others v. The State of Punjab the court held:
"Prolonged delay in the execution of a death sentence is unquestionably an important consideration for determining whether the sentence should be allowed to be executed. But no hard and fast rule 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 and demand the quashing of the sentence of death' can be laid down as has been in Vatheeswaran."
The court pointed out that to impose a strict time limit of two years would enable a prisoner to defeat the ends of justice by pursuing a series of frivolous and untenable proceedings.
In Smt. Treveniben v. State of Gujarat(1989) 1 S.C.J. 383 the Supreme Court of India approved the judgement in Sher Singh v. The State of Punjab and held that a sentence of death imposed by the "Apex Court", which will itself have taken into account delay when imposing the death sentence, can only be set aside thereafter upon petition to the Supreme Court upon grounds of delay occurring after that date. Oza J. said, at page 410:-
"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."
In their Lordships' view a State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure.
If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence.
6.7.14 The two-year standard set out by the Supreme Court in Vatheeswaran was neither sensitive to the distinction between executive delay in consideration of mercy petitions and judicial delays nor to the delay caused on account of litigation efforts of the prisoner.
The Supreme Court in Vatheeswaran, like the Privy Council now in Pratt, took a principled position on the consequences and the effect of avoidable delay on a death row convict. However, the Vatheeswaran decision, which served as a positive precedent for the Privy Council decision in Pratt, stands overruled today. The law as crystallized in Triveniben does not recognize pending appeals as actionable delay in terms of the death row phenomenon.
(b) Delayed Execution serves No Penological Purpose and is, therefore, Excessive
6.7.15 The Supreme Court has also held that delayed execution of the death sentence does not serve any of the penal purposes originally expected of it at the time the court confirmed the same on the convict. A delayed death sentence to that extent only embodies mindless and medieval retributive quality which offends the present civilizational norms of punishment.
The Supreme Court in Jagdish v. State of M.P., (2009) 9 SCC 495 invoked the embargo against cruel and unusual punishment in Eighth Amendment to the US Constitution to rule that delayed executions fail to serve both the retributive and deterrence rationales of death penalty. The Court observed:
43. Penologists and medical experts agreed that the process of carrying out a verdict of death is often so degrading and brutalising to the human spirit as to constitute psychological torture. Relying on Coleman v. Balkcom [68 L Ed 2d 334 : 451 US 949 (1981)] , US at p. 952 the Court observed that "the deterrent value of incarceration during that period of uncertainty may well be comparable to the consequences of the ultimate step itself" and when the death penalty "ceases realistically to further these purposes, its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.
A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment." The Courts have, however, drawn a distinction whereby the accused himself has been responsible for the delay by misuse of the judicial process but the time taken by the accused in pursuing legal and constitutional remedies cannot be taken against him.
44. It has been repeatedly emphasised that the death sentence has two underlying philosophies:
(1) that it should be retributive, and
(2) it should act as a deterrent and as the delay has the effect of obliterating both the above factors, there can be no justification for the execution of a prisoner after much delay. Some extremely relevant observations have been quoted above from Coleman v. Balkcom [68 L Ed 2d 334 : 451 US 949 (1981)] , US at p. 952.
45. While examining the matter in the background of the Eighth Amendment to the US Constitution which provides that:
"excessive bail should not be required, nor excessive fine imposed, nor cruel and unusual punishment inflicted"
it has been observed that though the death penalty was permissible, its effect was lost in case of delay (Gregg v. Georgia [49 L Ed 2d 859 : 428 US 153 (1976)]) Jagdish v. State of M.P., (2009) 9 SCC 495, at paras 43-45.