Erroneous Capital Punishment in India

ERRONEOUS CAPITAL PUNISHMENT IN INDIA
A term paper Submitted to

AMITY LAW SCHOOL, LUCKNOW
In Partial Fulfilment of the Requirement of the B.Com.LL.B(H) Course
Supervised by:- Submitted by:-
Mr. Ashish Pathak Nishant Sharma
Lecturer Course- B.Com.LL.B(H)
Amity Law School, Lucknow Semester- IXth
Enroll No.-A8121611042
AMITY UNIVERSITY, UTTAR PRADESH
LUCKNOW CAMPUS
2015
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Dated: ______________
CERTIFICATE
This is to certify that Nishant Sharma has written his dissertation entitled “Erroneous
Capital Punishment in India” in partial fulfilment for the award of Degree of
B.Com.LL.B(H), under my supervision and guidance.
I am pleased to have supervised the work of Nishant Sharma the outcome of which is
presented here in the form of this dissertation. I am exceedingly glad to note that he has
put in hard work, sincerely collected the relevant material from various sources and
analysed it precisely for the purpose of this work. He has discussed important issues in an
objective and dispassionate manner. He has also presented the subject in a very lucid,
concise and comprehensible language and in a systematic form.
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Dated: ___________
ACKNOWLEDGEMENT
“It is not possible to prepare Term Paper without the assistance and encouragement of other
people. It is certainly no exception”
On the completion of this project, I feel indebted to all those who proved instrumental for the
completion of this project and hence would like to thank them all for making my endeavours
worthwhile.
I wish to express my deep sense of gratitude to my Internal Guide, Mr. Ashish Pathak, Lecturer
at Amity University, Uttar Pradesh, Lucknow Campus for his able guidance and useful
suggestions, which helped me in completing the term paper in time. It is because of his mature,
able guidance, constant encouragement and inspiration that I have been able to accomplish this
task.
At Last I would also thank my Institution and faculty members without whom this project would
have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.
Nishant Sharma
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PREFACE
It is a matter of pleasure for me to present this Dissertation on “Erroneous Capital Punishment in

India”. It has provided me opportunity to make a research on this topic thoroughly in the light of
the judicial decisions and statutory amendments. In this dissertation several important cases have
been decided by the courts. Such as-:
Mohinder Singh v State of Punjab Cr Appeal No. 1278-1279 of 2010, Mithoo Singh v. State
of Punjab (1983) 3 SCC 470, Attoreney General v Lachma Devi (1899SCC{CRI}413)
Deena v. Union of India AIR 1983 SC 1155, Jagmohan Singh v State of U.P (1972)1SCC20
Bacchan Singh v State of Punjab, Kehar Singh v UOI AIR 1989 SC 653
Maru Ram v UOI [1981] 1SCC 107, Dhananjoy Chatterjee alias Dhana v State of WB
[2004]9 SCC 759, Swaran Singh v State of UP [AIR 1998 SC2026]
Epuru Sudhakar v Gov of AP & Ors AIR2006 SC 3385, Sher Singh & ors v State of Punjab
1984Supp SCC 684, Daya Singh v UOI & Ors (1991) 3 SCC61.
These cases are notable cases and have been stated at the appropriate places in this Dissertation.
In this Dissertation mainly the decisions of the Supreme Court have been mentioned. This
Dissertation also contains Central Acts and Rules. In the selection of the judicial decisions and
statutory provisions the researcher has exercised his full discretion. Whatever materials have
been considered by the researcher, relevant for the readers have been included in this
dissertation. Efforts have been made to provide accurate materials. The issues on which the
relevant materials are scattered and required to be collected from different places in the
Dissertation, an attempt have been made to state them in brief at one place and to discuss them in
detail at the appropriate places in the Dissertation. This has been done even at the cost of
repetition of materials, because, in the opinion of the researcher, it is quite useful to the readers.
The Researcher has written some Articles also on the Topics pertaining to the Constitutional
Law, Administrative Law, etc. Some of the important facts have been included in the book.
The Researcher extends his Special Thanks to Mr. Ashish Pathak for his full cooperation in the
completion of this Dissertation.
-Nishant Sharma
B.Com.LL.B(H)
IXth Sem
Amity University, Uttar Pradesh
Lucknow Campus
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TABLE OF CONTENT
(i) Front Page…………………………………………................................. Page 1
(ii) Certificate of Internal Guide …………………….................................... Page 2
(iii) Acknowledgement……………………………………………………… Page 3
(iv) Preface…………………………………………………………………... Page 4
(v) Table of Content………………………………………………………… Page 5
(vi) Table of Cases……………………………………………….. …………. Page 6
(vii) Bibliography……………………............................................................. Page 65
CHAPTERS
Chapter 1 Introduction……………………………………………………… Page 8
Chapter 2 Constitutional Provision………………………………………….. Page 21
Chapter 3 Erroneous Punishment Includes Delay in Death……………………. Page 28
Chapter 4 Concern about Executive Handling the Capital Cases…………… Page 51
Chapter 5 Judicial Errors in Death Sentence…………………………………. Page 55
Chapter 6 Recommendation…………………………………………………… Page 60
Chapter 7 Conclusion and Suggestions…………….. Page 62
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TABLE OF CASES
Pg No
1. Mohinder Singh v State of Punjab Cr Appeal No. 1278-1279 of 2010 11

2. Machhi Singh v. State of Punjab (1983) 3 SCC 470 14, 16
3. Attoreney General v Lachma Devi (1899SCC{CRI}413) 14
4. Deena v. Union of India AIR 1983 SC 1155 14
5. Jagmohan Singh v State of U.P (1972)1SCC20 15, 30
6. Bacchan Singh v State of Punjab 16, 31, 56, 64
7. Kehar Singh v UOI AIR 1989 SC 653 22
8. Maru Ram v UOI [1981] 1SCC 107 22
9. Dhananjoy Chatterjee alias Dhana v State of WB [2004]9 SCC 759 22, 31
10. Swaran Singh v State of UP [AIR 1998 SC2026] 24
11. Epuru Sudhakar v Gov of AP & Ors AIR2006 SC 3385 24
12. Sher Singh & ors v State of Punjab 1984Supp SCC 684 24,28,36, 37
13. Daya Singh v UOI & Ors (1991) 3 SCC61 24
14. Shivaji Jaising Babar v State of Maharashtra MANU/SC/0472/1991 24
15. Mahindra Nath Das v UOI 25, 31
16. Trivenben v State of Gujarat[1989 AIR 1335] 28,37
17. Maneka Gandhi v UOI AIR 1978 SCC597 28, 31
18. Rajendra Prasad v State of UP 30, 51
19. T.V. Vatheswaran v State of Tamil Nadu (1983 2 SCC68) 30
20. Vivian Rodrick v State of WB 1971 AIR 1584 32,36
21. Ediga Anamma v State of AP 1974 AIR 799 31,35
22. Sadhu Singh alias SuryabPratap v State of UP AIR 1978 SC 1506 32
23. Jagdish v State of MP AIR 2002 SC 2540 33, 37
24. Soering v United Kingdom Eur Hum Rts Rep 439(1989) 34
25. Bhoor Singh & Anr v State of Punjab [(1974)3SCC314] 36
26. Neti Sreeramali v State of AP [(1974)3SCC314] 36
27. RamDeo Chauhan@ Raj Nath v State of Assam (AIR 2001 SC2231) 51
28. Devandra Pal Singh v State of NCT of Delhi & Anr 52
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29. Bhagwan Swarup v State of UP (AIR 1977SC 429) 52

30. Shiv Mohan Singh v Delhi Administration (AIR 1977 SC949) 52
31. Joseph Peter v State of Goa, Daman & Diu[(1977)3 SCC 280] 52
32. Kuljeet Singh alias Ranga v UOI [(1981)3SCC 324] 53
33. State of UP v Satish MANU/SC/0090/2005 58
34. Rahul Agrawal v Rakesh Jain & Anr /SC/0040/2005 58
35. Swamy Sharddhananda@Murli Manohar Miahra v State of Karnataka
MANU/SC/3096/2008 58
36. Alok Nath Dutta & Anr v State of WB[MANU/SC/8774/2006] 58
37. Santosh Kumar Satish Bushan BAriyar v State of Maharashtra 59
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CHAPTER -1
INTRODUCTION
1.1 INDRODUCTORY
1.1.1 CAPITAL PUNISHMENT

1.1.2 DEATH PENALTY UNDER THE INDIAN PENAL CODE, 1860
1.1.3MODE OF EXECUTION
1.1.4 CONSTITUTIONAL VALIDITY OF DEATH PENALTY
1.1.5 WHEN CAN DEATH SENTENCE BE INFLICTED
1.2 OBJECT AND PURPOSE OF STUDY

1.3 RESEARCH QUESTIONS
1.4 SIGNIFICANCE OF STUDY
1.5 DATA BASE & RESEARCH METHODOLOGY
1.6 CHAPTERISATION PLAN
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1.1 INTRODUCTORY
Capital Punishment is the end of all punishment in any State in any criminal justice system.
Many country has abolishes it but some countries still have in practice. My project is not on the
pros and cons of the Capital punishment or whether it should be awarded by the state or abolish
by it but my area of interest lies on the point that in a country when a death penalty is given to
the culprit it should be so fair by law that it must not be questioned by a single person. It must be
flawless.
Recently the execution of Yakub Memon raised a series of questions which are circulating in
various circles of law, which raise disturbing issues about how Yakub Memon’s last ditch efforts
to stay his execution were handled. There are series of questions which look that how the case
was handled, such questions are as follows-:
1) The Supreme Court Rules, 2013, while dealing with curative petitions, says “three senior-
most judges” of the Supreme Court should be part of the curative bench. The Chief
Justice of India is never described in any Statute or the Constitution as the “senior-most
judge”. His distinct identity in law is the Chief Justice of India. An example for this is
found in the Constitution (Ninty Ninth Amendment) Act, 2014. So should the curative
process in the Memon petition have included the third senior most Judge in the Supreme
Court, Justice J.S.Khehar?
2) Why was Memon not given an opportunity to file additional written arguments as
permitted under order Order 48 Rule 4(2) of the Supreme Court Rules, 2013 as part of the
Curative Process? The 2013 Rule say “unless otherwise ordered by the court, a curative
petition shall be disposed of by circulation without any oral arguments but the petitioner
may supplement his petition by additional written arguments.
3) Memon’s writ petition under Article 32 of the Constitution for quashing the death
warrant was rejected by a three judge bench (Justice Dipak Mishra, P.C.Pant and
Amitava Roy) at 4.15 p.m. on July 29-the eve of execution- and the judgement was
uploaded at around 11:00 p.m., a few hours before Memon was scheduled to be hanged to
death if he had not got a reasonable opportunity to read for himself the judgement before
he was sent to the gallows, does it not amount to violation of Natural Justice? Again, did
Memon get an opportunity to read the Judgement delivered at around 5:00 a.m on on july
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30, refusing to give him a 14 days breather between the President’s rejection of the
Mercy Petiton and the hanging? It is not enough if the lawyer knows the Judgement, the
filed by Memon, and he should read it himself. The case is in his name, the lawyer only
pleads. The case is in his name, the lawyer only pleads. The Judgement is not for the
lawyer, but for Memon.
4) Article 137 is a constitutional remedy available to a person to file a review (against the
July 29, 30 judgements). This was denied to him.
5) The right to challenge the rejection of the mercy petition was denied; and this is wholly
opposed to the constitutional scheme.
6) An argument has been brought up that the first mercy petition filed by his brother
Suleiman on behalf of Yakub Memon was dismissed in 2014, and there was no need for
further time for him to prepare for the July 30 execution. This argument doesnot take into
account that Yakub Memon had filed several petitions(a review heard in open court for
10 days, a curative petition, two writ petition of which one merely sought 14 days time to
make peace with god and settle family affairs) which gave him hope of continued
existence in life. When a final ‘No’ is said, should some reasonable time not be given for
him to reconcile to his fate?
7) Has a Constitutional court anywhere in the history, refused a person begging to live for
just two more weeks? After spending 21 years in jail, what would have happened if his
life was extended for just another 14 days, too, in single cell in the jail.
8) Why was the final petition seeking a 14 day breather posted to the same three judge
Bench, which dismissed Memon’s plea for quashing the death warrant earlier the same
day(July 29) and was exhausted hearing the case? In the normal course, the roster would
have been a bench of two judges.
9) In the history of the Supreme Court, has any case been heard with such speed? A three
judge bench, on July 29, decided Memon writ petition on merits without even issuing
notice or giving an opportunity to file a counter.
10) Under Article 21 of the Constitution, the Supreme Court is the protector of the life, but
why did the Supreme Court put so much strain in last two days before Memon’s Hearing?
Should it have been more composed? What was the hurry? Memon could have continued
his existence 0f 21 years for a few more days in a single jail cell.
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11) Memon spent 21 years in Jail, did the President consider whether he was a reformed
person? Was his conduct in jail considered? Under the theory of punishment, a reformed
person should not be executed. Retribution should not be the sole reason to send a person
to the gallows.
12) Has a person who has spent 21 years of his life behind bars without a single parole, a
“zero person”, been executed before in the history of this country? Was Memon worth
hanging?
And also the execution of Afzal Guru raised many question on the government of India and
Privilege of the president exercising his power. Many people have raised doubt on the delay and
the procedural errors done by the authorities which was the most burning topic of the 2013. After
Afzal execution many there was a line of rejection of the mercy petition. So, it become necessary
to moot that why after the Supreme Court judgment on any death penalty there is delay in
entertaining the mercy petitions on the part of the Executives. The very second point is that even
the judiciary has admitted it errors in awarding the death penalty to many convicts and many of
those are still on death row and even some of them has been executed. So who is accountable for
these defects in death penalty?
Afzal Guru walked to the gallows on 9th Feb morning at the end of the macabre rite governments
enact from time to time to propitiate that most angry of gods, a vengeful public. Through this
grim, secret ceremony, however, India has been gravely diminished. The reasons for this are not
just the obvious ones among them, that Guru was a bit-actor in the attack on Parliament, and his
trial marred by procedural and substantive errors. These arguments were examined by the highest
court in the country and found wanting. There is one argument, though, that wasn't ever
examined which is precisely why Guru, like scores of other Indians, ended up on death row in
the first place. The answer has a great deal to do with expedience, and nothing to do with justice.
The hideous truth is this: judicial executions in India have all the rationality of the roulette table.
On January 28 2013 Justices P Sathasivam and FakkirKalifullah commuted the death penalty
given to Mohinder Singh for killing both his daughter and wife -- this while out of prison on
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parole where he was serving time for earlier raping the girl.1 The judges argued that the death
penalty ought to only be considered when a perpetrator posed “a menace and threat to the
harmonious and peaceful coexistence of the society.” One week later, Justices Sathasivam and
JagdishKhehar upheld death for Sundararajan, who kidnapped and then killed a seven year old
boy. The judges noted, among other things the “agony for parents for the loss of their male child,
who would have carried further the family lineage.” 2 Besides the obvious imprint of gender
values on judicial reasoning, it is the arbitrariness of outcome in cases that are similar which tells
us something is seriously wrong. In a signal article published recently in this newspaper. V.
Venkatesan noted how the Supreme Court has itself admitted that many of those on death row
are there because of “erroneous legal precedents set by it.”Yet, both the judiciary and the
government have been reluctant to announce a moratorium on executions until a thoroughgoing
review is carried out. This ought not to surprise us: in case after case, the course of criminal
justice has been shaped by public anger and special-interest lobbying.
Indians must remember the foundational principle of our Republic, the guardian of all our rights
and freedoms, isn't popular sentiment: it is justice, which in turn is based on the consistent
application of principles. For one overriding reason, Guru’s hanging ought to concern even those
unmoved by his particular case, or the growing ethics-based global consensus against the death
penalty. There is no principle underpinning the death penalty in India today except vengeance.
And vengeance is no principle at all. 3
1
Mohinder Singh Vs. State of Punjab Criminal Appeal Nos. 1278-1279 of 2010
2
http://articles.timesofindia.indiatimes.com/2013-02-05/india/36764294_1_male-child-sc-awards-death-gunny-bag
(Last accessed 1 October 2015 )
3
http://www.thehindu.com/opinion/editorial/the-hangmans-justice/article4120370.ece (Last accessed 1 October
2015)
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1.1.1 CAPITAL PUNISHMENT
Supporters of capital punishment bear a special responsibility to ensure the fairness of this
irreversible punishment.
(Bill Clinton, former US President)
Capital punishment is our society's recognition of the sanctity of human life.
(Orrin Hatch, US Senator)
Most systems of religion or ethics teach that bad actions lead to bad consequence. There are two
main reasons for inflicting the punishment. One is the belief that it is both right and just that a
person who has done wrong should suffer for it; the other is the belief that inflicting punishment
on wrongdoers discourages others from doing wrong. The death penalty also rests on the same
proposition as other punishments. Because of its drastic and irrevocable nature, it is even more
open to debate over its fairness, appropriateness and effectiveness than other punishments. The
proponents of death penalty believe that it is an effective way to stop crime. They focus on the
death penalty as a deterrent or something that will stop or lesson crime. They believe that the
death penalty brings the most justice to the victim of a heinous crime. 4Death penalty has been a
mode of punishment since time immemorial. The arguments for and against has not changed
much over the years. Crimes as well as the mode of punishment correlate to the culture and form
of civilization from which they emerge.
Nowhere there in Statute has been given the meaning of death Penalty. Indian Penal code Sec 53
essentially determines the nature of punishment that a judge can impose on the accused when the
accusation against the accused have been proved beyond doubt which include death penalty but
do not define Capital Punishment anywhere.5According to Black’s Law dictionary “the term that
applies to capital punishment and is the worst penalty given for committing a murderer
4
http://www.legalserviceindia.com/articles/cap_pp.htm ( Last Accessed 5 October 2015)
5
Pillai’s PSA, Criminal Law, Dr KI Vibhite, 11 th Edition 2012 Pg 273.
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an atrocious assault.”
According to oxford Dictionary, Capital punishment is the legally authorized killing of someone
as punishment for a crime. 6 Capital punishment is the death sentence awarded for capital
offences like crimes involving planned murder, multiple murders, repeated crimes; rape and
murder etc where in the criminal provisions consider such persons as a gross danger to the
existence of the society and provide death punishment.7
1.1.2 DEATH PENALTY UNDER THE INDIAN PENAL CODE, 1860
The Indian penal code was drafted by the 1st law commission of India and it goes without saying
that it is one of the most wonderfully drafted laws in India. This is what the authors of the Code
had to say about death as a punishment:-
“We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only
in cases where either murder or the highest offence against the state has been committed."
The major substantive criminal law in India of the IPC provides for death sentence and life
imprisonment as alternative punishment under certain circumstances. 8 There is not a single
6
http://oxforddictionaries.com/definition/english/capital%2Bpunishment (last accessed 1 November 2013)
7
http://www.legal-explanations.com/definitions/capital-punishment.htm (Last Accessed 2 October 2013)
8
(a) Waging war against the Government of India, attempting or abetting thereof under Section 121.
(b) A betting mutiny by a member of the armed forces under Section 132.
(c) Fabricating false evidence leading to conviction of an innocent person and his execution under Section 194
(second para).
(d) Abetting suicide of a child, insane or intoxicated person under Section 305.
(e) Attempting murder by a person under sentence of imprisonment of life if hurt is caused under Section 307.
(f) Committing dacoity accompanied with murder under Section 396.
(g) Acts committed in furtherance of common intention under Section 34.
(h) Acts committed in furtherance of common object under Section 149.
(i) Abetment under Sections 109-115.
(j) Criminal Conspiracy under Section 120-B.
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offence in the IPC which is punishable with mandatory death penalty and Section 303 of the IPC
has been repealed.9The statutory provisions do not provide any guidelines as to when the judges
should impose capital punishment in preference to imprisonment for life, or award lesser
sentence of life imprisonment. The judiciary is allowed to exercise its discretion and reasoning in
the adjudication process. It has to draw up a balance sheet of aggravating and mitigating
circumstances from the facts of the case as set forth by the Apex Court in the case of Mithoo
Singh v. State of Punjab.10
1.1.3 MODE OF EXECUTION
In India, the mode of execution of death sentence is hanging. Section 354 (5) of the Code of
Criminal Procedure Code, 1973 provides that when any prisoner is sentenced to death, the
sentence shall direct that he be hanged by the neck till he is dead. Hanging is still the most
common method of executing convicts. The issue regarding the constitutionality of the Section
354 (3) first came up before the Supreme Court in Deena v. Union of India.11 Though the Court
asserted that it was a judicial function to probe into the reasonableness of a mode of punishment,
it refused to hold the mode of hanging as being violative of Article 21 of the Constitution.
The issue of public hanging came to the Supreme Court through a writ petition Attorney General
v. Lachma Devi12in this petition the order of Rajasthan High Court regarding the execution of the
petitioner by public hanging under the relevant rules of Jail manual. The S.C. held that public
hanging even if permitted under the rules would violate Article 21 of the Constitution.
(h) Punishment for causing Death or resulting in persistent vegetative state of victim 376(A)
(i)
9
As struck down in Mithu v. State of Punjab, AIR 1983 SC 473.
10
(1983) Cr LJ 1457: AIR 1983 SC 957: (1983) 3 SCC 470.
11
(1983) 4 SCC 645: 1983 SCC (Cri) 879; AIR 1983 SC 1155
12
1989 SCC [CRI] 413
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1.1.4 CONSTITUTIONAL VALIDITY OF DEATH PENALTY
In Jagmohan Singh v State of U.P. 13 , the constitutional validity of capital punishment was
challenged before the Apex Court. It was argued that the ‘Right to life’ was the basic
Fundamental Right under Article 21 of the Constitution. The Supreme Court rejected the
contention and held that capital punishment could not be said to be violative of Article 21 of the
Constitution.
It is important to note that Justice Krishna Iyer in Rajendra Prasad v State of U.P. 14
emphatically stressed that death emphatically stressed that death penalty is violative of Articles
14, 19 and 21 of the Indian Constitution. However, he observed that where murder is
premeditated and gruesome and there are no extenuating circumstances, the offender must be
sentenced to death as a measure of social defence.
The next important case, and which can be termed as a milestone in the Indian Criminal
Jurisprudence is the case of Bachan Singh V/s State of Punjab15 the Apex Court emphasized
upon Section 354 (3) of the CrP.C saying that under it life imprisonment as punishment was the
rule and death sentence was an exception to be awarded in the rarest of rare cases. This was the
first time that the Supreme Court coined the concept of ‘rarest of rare cases’. On the question of
reasonableness of death penalty, the SC observed- "....- ".......if not withstanding the view of the
abolitionists to the contrary , a very large segment of people, the world over, including
sociologists , legislature , Jurists , judges and administrators still firmly believe in the worth and
necessity of capital punishment for the protection of society, if in the perspective of prevailing
crime conditions in India, contemporary public opinion canalized through the peoples
representatives in parliament, has repeatedly including the one made recently to abolish or
specifically restrict the area of death penalty, if death penalty is still a recognized legal sanction
for murder or some types of murder in most of the civilized countries in the world , if the farmers
of the Indian constitution were fully aware of the existence of death penalty as punishment for
13
(1973) 1 SCC 20: 1973 SCC (Cri) 169
14
AIR 1979 SC 916.
15
AIR 1980 SC 898
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murder, under the Indian Penal Code, if the 35th report and subsequent reports of law
commission suggesting retention of death penalty, and recommending revision of the Cr.P.C. and
the insertion of the new sections 235 (2) and 354 (3) were before the Parliament when it took up
revision of the Cr.P.C., it is not possible to held that the provision of death penalty as an
alternative punishment for murder, in sec. 302, Penal Code is unreasonable and not in the public
interest. The impugned provision in Sec. 302 violates neither the letter nor the ethos of Article
19"16
1.1.5 WHEN CAN DEATH SENTENCE BE INFLICTED
Now comes the questions as to when should the courts be inclined to inflict death sentence to an
accused? As have been stated earlier, after Cr.P.C. 1973, death sentence is the exception while
life imprisonment is the rule. Therefore, by virtue of section 354(3) of CR.P.C, it can be said that
death sentence be inflicted in special cases only. The apex court modified this terminology in
Bachan Singh's Case17 and observed-" A real and abiding concern for the dignity of human life
postulates resistance to taking a life through law's instrumentality. That ought to be done save in
the rarest of rare cases when the alternative option is unquestionably foreclosed."
As observed in Mithoo Singh 18 that to decide whether a case falls under the category of rarest of
rare case or not was completely left upon the court's discretion. However the apex court laid
down a few principles which were to be kept in mind while deciding the question of sentence.
One of the very important principles is regarding aggravating and mitigating circumstances. It
has been the view of the court that while deciding the question of sentence, a balance sheet of
aggravating and mitigating circumstances in that particular case has to be drawn. Full weightage
should be given to the mitigating circumstances and even after that if the court feels that justice
Will not be done if any punishment less than the death sentence is awarded, then and then only
death should be imposed.
16
Bachan Singh v State of Punjab, Para 132
17
AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713
18
1983 AIR 957, 1983 SCR (3) 413
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1.2 OBJECT AND PURPOSE OF STUDY
The object of this study of these Errors in death penalty is:
 To study Laws on the Death penalty in India.

 Make a report on the intensity of death penalty in India.
 Study the reports of the mercy petitions silent from the years and its effect.
 How delay and judicial errors violates Right to life of person
 Study how delay in death penalty ruins the life of the convict and his family members.
 To make a report that execution of a person should be part of justice not a vengeance.
1.3 RESEARCH QUESTIONS
The very basic research question is that:
 Whether delay in death Penalty amounts to double jeopardy?

 Whether Death row amount to violation in right to life?
 Whether there is no law to specify the time limit taken by President in the deciding mercy
petitions?
1.4 SIGNIFICANCE OF STUDY
The significance of this study would let out the procedural errors done by the authorities of the
country while executing a person. By this study there would be shown the defects start from the
judiciary by their whim and fancy and sitting of executives by many years takes life of a person
and even not let him be dead. This study would be pointing out where are the loopholes of the
authorities and on what area law should be enacted.
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1.5 DATA BASE & RESEARCH METHODOLOGY
This research is work is mainly explanatory and diagnostic. Looking into requirement of the
objective of the study the research design employed for the study descriptive .The scope of the
project was restricted only to the primary sources, secondary sources.
The project aims at carrying out a complete thorough research to enhance the basic knowledge of
the subject.
The paper has highlighted the defects and lacuna in execution system of the country and presents
various reports on it.
 Primary source
The project has been made by using the Hindu Editorials and News papers.
 Secondary source
The books, various article and reports did provide a lot of information and proved to be
very helpful.
1.6 CHAPTERISATION PLAN
The present study is divided into seven chapters. The first chapter deals with the Introduction
part which lays down the meaning of capital Punishment in India & law regarding it. It defines
the mode of execution and Constitutional validity of Death sentence. Second Chapter deals with
the Constitutional provision of the power of Executive to commute the death Sentence and its
judicial review. Third Chapter Deals very broadly the basic error of delay in awarding capital
Punishment which causes the death row syndrome, violation of right to life & also causes Double
jeopardy in one and other sense. In Fourth chapter the cases are of executives handling the
cases of death penalty i.e. how judges knowingly that executives are the last resort give death
penalty & how the executive on decide mercy petition on political approach. Fifth Chapter
deals with the errors done by the judiciary while awarding the death sentence which makes the
judgment judges centric approach rather than crime centric approach. Sixth Chapter Deals with
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the recommendations & last Seventh Chapter deals with the conclusion on the Erroneous
capital Punishment. The Bibliography has been appended at the end of this term paper.
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CHAPTER-2
CONSTITUTIONAL PROVISION IN EXECUTION
2.1 INTRODUCTION
2.2 PROVISION OF PARDON IN CONSTITUTION
2.3 PARDONING POWER UNDER JUDICIAL REVIEW
2.4 CONCLUSION
Page 21
2.1 INTRODUCTION
“I have always found that mercy bears richer fruits than strict justice.”
-Abraham Lincoln, 16th U.S President
Justice Holmes of US Supreme Court where he points out that pardon as of today is not an act of
grace but is a constitutional scheme which when granted is determination of the ultimate
authority that the public welfare will be served by inflicting less than what the judgement fixed.19
In England, the power of pardon was one of the royal prerogatives of the Crown to be exercised
as an act of grace by the Sovereign. By the word prerogative we usually understand, observes Sir
William Blackstone, “that special pre-eminence which the King hath over and above all the other
persons, and out of the ordinary course of the common law, in right to his royal dignity.” 20
Therefore, the power of pardon of the British Crown was a prerogative to be exercised as an act
of grace in order to administer justice with mercy.21
Pardon has become virtually the only way that a sentence, once final, can be reconsidered and, in
appropriate cases, reduced. A pardon case provides a unique birds-eye view of how the criminal
justice system is being administered, revealing where particular laws or enforcement policies are
overly harsh, and where prosecutorial discretion is being unwisely exercised. A criminal justice
system may be harsh and inflexible in which pardon power is a major boon for offenders who
could have their convictions reviewed, prison sentences reduced, and rights of citizenship
restored. 22
19
American jurisprudence, 2d, 5 as cited in written submissions of Soli Sorabjee as Amicus Curie in the case of
EpuruSudhakar and anr v. Government of Andhra Pradesh AIR 2006 SC 3385.
20
JOSEPH CHITTY, A TREATISE ON THE LAW OF THE PREROGATIVES OF THE CROWN AND THE
RELATIVE DUTIES AND RIGHTS OF THE SUBJECT 4 (1820).
21
ibid
22
Seervai H.M., Constitutional Law of India, Vol. II, fourth edn., Universal Book Traders, New Delhi, India, 1999
Page 22
2.2 PROVISION OF PARDON IN CONSTITUTION
The power to pardon is a part of the Constitution scheme which has been reposed by the people
through the constitution in the Head of the State who enjoys high status and such power rests on
the advice tendered by the Executive to President.23
In India, the power of Pardon has been vested in the President and the Governor by the people
through the Constitution, not as an act of grace, but as part of the constitutional scheme.24 The
Constitution of India invested the President of India and Governor of the States under Article 72
and 16225 respectively with the power to grant to grant pardon (absolute or conditional), reprieve
(temporary suspension of law fixed by the law), respite (postpone to the future date of
exececution of the death sentence), remission (to reduce the amount of punishment without
changing the character of the punishment) or to suspend remit or commute the sentence of any
person convicted of offences.26 (i) Against any Union law (ii) sentence by the court marshal (iii)
in all cases of death sentences.
The Governor’s power to pardon, as can be seen, extends to all punishments and sentences
imposed under any law relating to a matter to which the executive power of the State extends.
The only exception to the above rule is in case of death sentences where the President has the
power to pardon regardless of the law the person is convicted under, and clause (3) of Article 72
23
AIR 1989 SC (657}: 1983 Cri. L.J. 941
24
Kehar Singh v. Union of India, AIR 1989 SC 653, pg 7
25
1. The President shall have the power to grant pardons, reprieves, or remissions of punishment or suspend, or
remit or commute the sentence of any person convicted of any offence (a) in all cases where the punishment or
sentence is by a court martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to any matter to which
the executive power of the union extends;
(c) in all cases where the sentence is a sentence of death. And
Article 161 The Governor of a State 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 against any law
relating to a matter of which the executive power of the State extends.
26
Shukla V.N. The Constitution of India 10thEdn (2001) Pg 335-339. Power of India can be tracked by Regulating
Act 1773, which vested the power of governor General.
Page 23
ensures that such power is independent of, and does not affect the power of the Governor to
pardon such punishment if the Executive power of the State extends to the same.
2.3 PARDONING POWER UNDER JUDICIAL REVIEW
The constitutional provisions implicitly allow for a two-tier process of seeking pardon, first from
the state governor and then from the President at the Centre. It is clear from the constitution that
like other powers of the president and the governor, the power to pardon is also to be exercised
on the advice of council of ministers which means the president yet again acts out as a rubber
stamp fulfilling a prerogative as under the constitution.
In Maru Ram v Union of India27 , the Constitutional Bench of Supreme Court held that the power
under Article 72 is to be exercised on the advice of the Central Government and not by the
President on his own, and that the advice of the Government binds the head of the Republic.
In Dhananjoy Chatterjee alias Dhana v State of West Bengal,28 the Supreme Court reiterated its
earlier stand in Maru Ram’s case and said:
“The power under Articles 72 and 161 of the Constitution can be exercised by the Central and
State Governments, not by the President or Governor on their own. The advice of the appropriate
Government binds the Head of the state.”
Supreme Court once again in Kehar Singh v Union of India,29 reiterated its earlier stand and held
that the grant of pardon by the President is an act of graceand, therefore, cannot be claimed as a
matter of right. The power exercisable by the President being exclusively of administrative
nature is not justifiable.
27
[(1981) 1 SCC 107]
28
[2004] 9 SCC 759
29
(1989 SCC (1) 204) remarked that the power of pardon rests on advice of the executive which is subject to
provisions of article 74(1) of the constitution.
Page 24
In Swaran Singh v State of U.P30, the Governor of U.P. had granted remission of life sentence
awarded to the Minister of the State Legislature of Assembly convicted for the offence of
murder. The Supreme Court interdicted the Governor’s order and said that it is true that it has no
power to touch the order passed by the Governor under Article 161, but if such power has been
exercised arbitrarily, mala fide or in absolute disregard of the “finer cannons of
constitutionalism”, such order cannot get approval of law and in such cases, “the judicial hand
must be stretched to it.” The Court held the order of Governor arbitrary and, hence, needed to be
interdicted.
In a landmark judgment EpuruSudhakar v Govt of A.P. & Ors,31 it was held by the Supreme
Court that it is a well-set principle that a limited judicial review of exercise of clemency powers
is available to the Supreme Court and High Courts. Granting of clemency by the President or
Governor can be challenged on the following grounds:
 The order has been passed without application of mind.

 The order is mala fide.
 The order has been passed on extraneous or wholly irrelevant considerations.
 Relevant material has been kept out of consideration.
 The order suffers from arbitrariness.
Another reason why the Supreme Court should intervene in the exercise of executive clemency is
due to the delay in decision-making on mercy petitions by either the President or Governors. In
Sher Singh and Ors v State of Punjab 32 C.J Chandrachud led the Supreme Court benches in
suggesting that the state accept a self-imposed rule and decide on mercy petitions within three
months.
In response to delays caused by the executive considering mercy petitions the Court commuted
the sentences of the condemned prisoners in both Daya Singh v. Union of India and ors33and in
30
[AIR 1998 SC 2026], (para 12 at p. 2028)
31
AIR 2006 SC 3385.
32
1984 Supp SCC 684
33
(1991) 3 SCC 61
Page 25
Shivaji Jaising Babar v State of Maharashtra34Supreme Court observed that It can be said that
on an average, four to five years are taken for disposal of a mercy petition. Those who have been
sentenced for the death penalty have to wait for an agonisingly long time- before the High Court
confirm such a sentence of the trial court, before the Supreme Court disposes off related Special
Leave Petitions, and the President, Governor or the concerned governments grapple with the
issues of pardon and commutation of the sentence. Such delays add immeasurably to the
inhumanity of capital punishment.
In a very Recent case Mahindra Nath Das vs Union Of India &Ors.35 Supreme Court held that
while examining challenge to the decision taken by the President under Article 72 or the
Governor under Article 161 of the Constitution, as the case may be, the Court’s power of judicial
review of such decision is very limited. The Court can neither sit in appeal nor exercise the
power of review, but can interfere if it is found that the decision has been taken without
application of mind to the relevant factors or the same is founded on the extraneous or irrelevant
considerations or is vitiated due to malafides or patent arbitrariness.
The issue remains unresolved till date with increasing number of delays in processing and
passing of mercy petitions. For instance in the year 2006, there were 23 cases involving 44
condemned prisoners pending for disposal before the president of India. Out of which 2 cases are
pending for less than a year, 8 cases for one to three years and 13 cases over three years. 22
petitions filed before the President of India have been processed in the Ministry of Home Affairs
and submitted to the Hon`ble President of India for taking a decision on the petitions. One
petition is being processed in the Ministry of Home Affairs. Some of the cases were pending
before the president from 1998.36
34
MANU/SC/0472/1991 (Last accessed 15 October 2013)
35
CRIMINAL APPEAL NO. 677 OF 2013, (Arising out of SLP(Crl.) No. 1105 of 2012)
36
http://www.legalindia.in/power-of-pardon-in-india (Last accessed on 1 November 2013)
Page 26
2.4 CONCLUSION
A time limit needs to be provided for the processing and final disposal of a mercy petition which
would bring relief to the death chamber convicts. Agony of waiting to be executed traumatizes
and kills the convict many more times than the actual execution. Also, the president needs an
advisor who has some degree of independence from those who prosecuted the underlying
criminal case; who can bring a different policy perspective and different values to bear on the
matter, and whose independent political accountability can provide the president a measure of
protection from public criticism.
Furthermore there should be equity before law and equal opportunity to all. For this the poor and
the illiterate should be provided assistance in drafting, and pursuing their mercy petitions. Lastly
and most importantly, it should be made a matter of policy that those prisoners who seem to have
atoned and reformed should be pardoned and suitably rehabilitated. This shall encourage the
criminal offenders to turn their lives around and start afresh. The president should use his
wisdom and discretion well in order to take a just decision based on objective criteria to grant
pardons.
Above all by the time the above recommendations are put into action the judicial review of
pardoning power remains inevitable even if in a limited way.
Page 27
CHAPTER- 3
ERRONEOUS PUNISHMENT INCLUDES DELAY IN DEATH
3.1 ERRONEOUS PUNISHMENT CAUSES DEATH PENATLY

3.2 DELAY IN DEATH PENALTY VIOLATES RIGHT TO LIFE
3.3 DELAY IN JUSTICE A KIND OF DUAL PUNISHMENT
3.4 DELAY CAUSES DEATH ROW SYNDROME
3.4.1 DEATH ROW PHENOMENON EMERGENCE IN INTERNATIONAL
JURISPRUDENCE
3.4.2 INDIAN JUDICIARY ON DEATH ROW
3.4.3 THE CONDITION OF THE FAMILY OF THE CONVICT
3.5 REPORTS ON THE MERCY AND DEALY IN DEATH PENALTY IN

INDIA TILL 2013
3.5.1 THE INTENSITY OF DEATH PENALTY IN INDIA
3.5.2 CASE DETAILS OF REJECTED MERCY PETITIONS PENDING BEFORE THE

HIGH COURTS AND SUPREME COURT
3.6 CONCLUSION
Page 28
3.1 ERRONEOUS PUNISHMENT
In India as in most countries where the power of pardon is available to the highest executive
authority, it is generally recognized that no time limit can be fixed within which a mercy petition
ought to be decided by that authority.
Earlier, in the case of Sher Singh and Ors .v. State of Punjab 37 the SC was constrained to
observe:“We must take this opportunity to impress upon the Government of India and the State
Governments that petitions filed under Articles 72 and 161 of the Constitution or under sections
432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self-imposed
rule should be followed by the executive authorities rigorously, that every such petition shall be
disposed of within a period of three months from the date on which it is received. Long and
interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of
justice and indeed, such delays tend to shake the confidence of the people in the very system of
justice”
In Trivenben's case (1989),38 the SC observed:
"The Court may only consider whether there was undue long delay in disposing of mercy
petition; whether the State was guilty of dilatory conduct and whether the delay was for no
reason at all. The inordinate delay may be significant factor, but that by itself cannot render the
execution unconstitutional. Nor it can be divorced from the dastardly and diabolical
circumstances of the crime itself."
It is impossible to visualize a situation where the Executive would just not be able to decide for
an inordinate length of time whether clemency is deserved or not. Indeed, it is submitted that
after a time, it would be safe to presume that there is no case for clemency and as such it ought to
be treated as having been rejected.
37
AIR 1983 SC 465
38
(1989) 1 SCC 678
Page 29
3.2 DELAY IN DEATH PENALTY VIOLATES RIGHT TO LIFE
No person shall be deprived of his life or his personal liberty except according due to procedure
establishes by law. 39
Undoubtedly, the right to life has been recognized by jurisprudence of nation and its constitution
as the most precious right of them all, a right without enjoyment of its any other right is possible.
Seemingly the right to life is only the basis to applying the law but a fundamental instrument to
achieve the correct application of law. A right to life reasoning” must be understood as the
application and the aspiration in law. In the context of a social contract, protection of life must
logically be understood as a process and only the starting point in judicial reasoning. This
process fails whenever there is a scope for limiting the right to life.
India, however retain capital punishment through Article 21 of the constitution , which allows
the state to deprive any person the right to life provided that it is done by a procedure establish
by law.
Article 21 of the constitution guarantees right to life and personal liberty to all which includes
right to live with human dignity. No person shall be deprived of his right except according to the
procedure established by law. Therefore, the state may take away or abridge even right to life in
the name of Law and public order following the procedure established by Law. But this
procedure must be “due process” as held in Maneka Gandhi v. Union of India40.
39
The Constitution of India 1950, Article 21
40
AIR 1978 SC 597.
Page 30
3.3 JUDICIAL APPROACH
In Jagmohan Singh v State of U.P.41the Supreme Court held that “in important cases like murder
the court always gives a chance to the accused to address the court on the question of death
penalty”. The Court also held “deprivation of life is constitutionally permissible provided it is
done according to procedure established by Law. The death sentence per se is not unreasonable
or not against public interest. The policy of the Law in giving a very wide discretion in the
matter of punishment to the Judges has its origin in the impossibility of laying down standards.
Any attempt to lay down standards as to why in one case there should be more punishment and
in the other less punishment would be an impossible task.”
In Rajendra Prasad v. State of U.P.42 V. R. Krishna Iyer, J. observed:
“………………….the humanistic imperative of the Indian Constitution, as paramount to the

punitive strategy of the Penal Code, has hardly been explored by the courts in this field of ‘life or
death’ at the hands of the Law. The main focus of our Judgement is on this poignant gap in
human rights Jurisprudence within the limits of the Penal Code, impregnated by the
Constitution…..in the Post-Constitutional period section 302, IPC and section 354(3) of the
Code of Criminal Procedure have to be read in the human rights of Parts III and IV, further
illuminated by the Preamble to the Constitution.”
In T.V.Vatheeswaran v. State of Tamil Nadu43the issue was whether delay in execution of death
sentence violates Art 21 of the Constitution and whether on that ground death sentence may be
replaced by life imprisonment. A Division Bench consisting of Chinnappa Reddy and R B. Misra
JJ held that prolonged delay in execution of death penalty is unjust, unfair, unreasonable and
inhuman; which also deprives him of basic rights of human being, guaranteed under article 21 of
the Constitution i.e., right to life and personal liberty.
Therefore, ‘due process’ i.e. just ,fair and reasonable process as held in Maneka Gandhi44 does
not end with only reasonable pronouncement of death sentence rather it extends till the proper
41
AIR 1973 SC 947, 1973 Cr. L.J. 330, 1973 SCC (Original) 162.
42
AIR 1979 SC 916.
43
(1983) 2 SCC 68.
44
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
Page 31
and due execution of sentence. There was two years delay in execution of death sentence. The
court reiterated that speedy trial is an integral part of Part III of our Constitution and it is
included under article 21 and there was prolonged detention before execution of death sentence
and the accused was waiting every moment for due execution of death sentence. Every moment
he was terrorised. Therefore, it must be treated as violation of the Constitutional mandate.
Execution of Dhananjay Chatterjee45 in 2004, after fourteen years in death cell and thereafter in
the year 2006 Md. Afzal’s instance of capital punishment again gave new impetus to the debate
between abolitionists and retentionists concerning speedy justice, fair trial, protection of human
rights of the persons under death sentence, their human dignity as well as the victimological
perspective to maintain law and order in society.
In the words of P.N. Bhagwati, J. in Bachan Singh v State of Punjab46“the judges have been
awarding death penalty according to their own scale of values and social philosophy and it is
not possible to discern any consistent approach to the problem in the judicial decisions”.
Even in DhananjayChatterjee’s case 47 there was fourteen years’ delay in execution of death
sentence but it was not commuted to life imprisonment although in some earlier cases two years,
two and half years, three years and nine years delay in execution was treated as violation of
human rights and fair procedure and their sentences were commuted to life imprisonment. Is this
not a violation of articles 14 and 21 of the Constitution which enshrine fundamental and
sacrosanct rights of human beings?
Recently in MahendraNath Das v UOI 48 case the SC commuted to life imprisonment the death
sentence awarded to MahendraNath Das, whose mercy petition was rejected by the President after a 12-
year delay referring previous case laws.
45
DhananjayChatterjee v. State of West Bengal and Ors. (2004)9 SCC 751.
46
See supra note 16.
47
See supra note 23.
48
Criminal Appeal No. 677 of 2013 (Arising out of SLP(Crl.) No. 1105 of 2012)-Decided on 1-5-2013
Page 32
3.4 DELAY IN JUSTICE A KIND OF DUAL PUNISHMENT
Article 20 (2) of the Constitution prohibits the punishment of a convict twice for the same
offence, and Section 302 of the Indian Penal Code, 1860 (“the IPC”) prescribes punishment for
murder as being either death, or imprisonment for life. Upon a joint reading of these provisions,
it may be argued that if a person is punished, and is made to suffer death as well as a term
commensurate to life imprisonment, it would amount to punishing the person twice. Such a
practice would violate not only Article 20 (2) but also the Article 21 prohibition of the
deprivation of life of any person except in accordance with the law.49
Therefore, no matter how rare his crime may be, a convict cannot constitutionally be
made to suffer both death and life imprisonment.
Delay has been a factor in the sentencing decisions of the Supreme Court. In VivianRodrick v.
State of West Bengal,50 Justice Sikri observed, “the extremely excessive delay in the disposal of
the case of the appellant would by itself be sufficient for imposing a lesser sentence of
imprisonment for life under s. 302. Section 302, I.P.C., prescribes two alternate sentences,
namely, death sentence or imprisonment for life, and when there has been inordinate delay in the
disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High
Court to take into consideration for imposing the lesser sentence.”
In Ediga Anamma v. State of Andhra Pradesh51Justice Krishna Iyer said: Extraordinary features
in the judicial process, such as that the death sentence has hung over the head of the culprit
excruciatingly long, may persuade the court to be compassionate.”
In Sadhu Singh alias Surya Pratap v. State of Uttar Pradesh,52 the SC, while allowing the appeal
partially, observed, “the appellant has been under specter of the sentence of death for over 3
years and 7 months, and in the circumstances we think that the sentence of imprisonment for life
may be substituted in place of the sentence of death.”
49
http://www.mylaw.net/Article/Triple_jeopardy/#.Umpzs3B0yaM (Last accessed 11 October 2013)
50
1971 AIR 1584
51
1974 AIR 799
52
AIR 1978 SC 1506
Page 33
That being the situation, the issue in the context of commutation of a sentence of death boils
down to the deadlocked question of how much of a delay in the actual execution of the sentence
would amount to being commensurate to imprisonment for life. While many jurisdictions have
laid down the minimum term of life imprisonment and abide by it in practice, no country has
stipulated the maximum term of such imprisonment that applies evenly across their legal systems
and India is no exception.53
SUITABLE CIRCUMSTANCES
Imprisonment for a term equivalent to or longer than the maximum cap provided to which a life
sentence may be commuted, should qualify as a suitable circumstance to commute the death
sentence. Not doing so would amount to actual infliction of two sentences (double jeopardy), not
to mention a third sentence – the mental agony of living indefinitely under the fear of death.54
It is appropriate to conclude with the following observation made by the Supreme Court in
Jagdish v. State of Madhya Pradesh 55
“Imagine the plight of a prisoner who has been under a sentence of death for 15 years or more
living on hope but engulfed in fear as his life hangs in balance and in the hands of those who
have no personal interest in his case and for whom he is only a name. Equally, consider the
plight of the family of such a prisoner, his parents, wife and children, brothers and sisters, who
too remain static and in a state of limbo and are unable to get on with life on account of the
uncertain fate of a loved one. What makes it worse for the prisoner is the indifference and ennui,
which ultimately develops in the family, brought about by a combination of resignation,
exhaustion, and despair. The very terminology used to identify such prisoners - death row in-
mates, or condemned prisoners, with their even more explicit translations in the vernacular - tend
to remind them of their plight every moment of the day. In addition to the solitary confinement
and lack of privacy with respect to even the daily ablutions, the rattle on the cell door heralding
the arrival of the Jailor with the prospect as the harbinger of bad news, a condemned prisoner
lives a life of uncertainty and defeat. In one particular prison, the horror was exacerbated as the
53
http://www.mylaw.net/Article/Triple_jeopardy/#.Umpzs3B0yaM (Last Accessed 20 October 2013)
54
ibid
55
AIR 2002 SC 2540
Page 34
gallows could be seen over the wall from the condemned cells. The effect on the prisoners on
seeing this menacing structure each morning during their daily exercise in the courtyard can well
be imagined.”
3.4 DELAY CAUSES DEATH ROW SYNDROME
The term “death row phenomenon” grew in recognition following the European Court of Human
Rights (ECHR) decision on the extradition case of Jens Soering 56 from the United Kingdom
(UK) to the United States (US).57 International jurisprudence on the death row phenomenon was
further developed in Pratt et al v. Attorney-General for Jamaica et al.58In accordance with the
ICCPR and its Optional Protocol, the United Nations Human Rights Committee (HRC) has also
addressed the death row phenomenon in a large number of cases.59Death row phenomenon cases
typically arise as violations of ICCPR Articles 7 and 10.
Article 7 of the ICCPR provides that: “No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.” In General Comment 20 concerning Article 7 of the
ICCPR, the Office of the High Commissioner for Human Rights noted that the aim of the Article
7 provisions extends “to protectboth the dignity and the physical and mental integrity of the
individual.”60The comment further noted that the prohibition of Article 7 is “complimented by
the positive requirements of Article 10, Paragraph 1 of the Covenant,” which stipulates that: “All
persons deprived of their liberty shall be treated with humanity and with respect for the inherent
dignity of the human person.
56
Soering v. United Kingdom,11 Eur. Hum. Rts. Rep. 439 (1989).
57
DavidWallece-Wells, What is the Death Row Syndrome? And who came up with it?, Slate.com, 1 February 2005
58
Pratt et al v. Attorney-General for Jamaica et al, 4 ALL ER 769 (1993).
59
Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Human Rights under International Law?
60
Office of the High Commissioner for Human Rights, General Comment No. 20, 10 March 1992
Page 35
3.4.1 DEATH ROW PHENOMENON EMERGENCE IN INTERNATIONAL

JURISPRUDDENCE
At its basic level, the death row phenomenon raises the legitimacy of capital punishment by
establishing that “execution after prolonged delay under the harsh conditions of death row
constitutes cruel and inhuman punishment.” It confronts the implications of a death sentence
following a “tortuous period of delay.”
The death row phenomenon results from compounded conditions endured while under a death
sentence. Despite variances in perceived detention facility quality worldwide, death row
conditions are generally characterized as bleak, with “rigid security, isolation, limited movement,
and austere conditions” 61 As noted in Soering v. United Kingdom, 62 circumstances such as
extremely harsh death row conditions, prolonged execution waiting times and pervading anguish
from execution anticipation work in concert to produce the death row phenomenon.
Discussions regarding the increased periods of time spent by inmates on death row draw debate
on the significance of attribution of delays.63 Death rows have been characterized as “a prison
within a prison,” subject to the most rigid of security regimes, affording minimal freedoms. It is
a “graveyard behind high walls far from the eye of the public.”.” In death row, prisoners may
expect 24 hour light, “temperature extremes, inadequate nutrition and sanitation, lack of exercise
[and] loss of contact with the outside world.”
The relationship between the temporal, physical and experiential components of the death row
phenomenon is inextricably complicated and intertwined. Increased study & documentation of
the death row phenomenon is needed to better understand its implications.
61
Center for Constitutional Rights, An Examination of the Death Row Experience from a Human Rights Perspective.
62
Soering v. United Kingdom, 11 Eur. Hum. Rts. Rep. 439 (1989).
63
David A. Sadoff, International Law and the Mortal Precipice: A Legal Policy Critique of the Death Row
Phenomenon
Page 36
3.4.2 INDIAN JUDICIARY ON DEATH ROW
“LivingDeath …”
ChiefJusticeChandrachud, describing the time spent by a condemned prisoner on death row, in

Sher Singh and Ors.v. State of Punjab64
Theimpact of extended periods of time under sentence of death has been recognised by the
Supreme Court..In Vivian Rodrick v. The State of West Bengal65the Court found that six years
since the trial sentence had caused “unimaginable mental agony”, while EdigaAnamma v. State
of Andhra Pradesh 66 and Bhoor Singh and Anr v. State of Punjab 67 referred to the “brooding
horror of hanging” haunting the prisoners. In NetiSreeramulu v. State of Andhra Pradesh68the
Supreme Court referred to the “agonizing consciousness and feeling of being under the sentence
of death that must have constantly haunted the appellant.”
Though the Supreme Court of India has not yet referred explicitly to delays in execution
amounting to cruel, inhuman and degrading treatment, in Deena alias Deen Dayal and ors. v.
Union of India and ors.69(With other cases), the Court observed, “If a prisoner is sentenced to
death, it is lawful to execute that punishment and that only. He cannot be subjected to
humiliation, torture or degradation before the execution of that sentence, not even as necessary
steps in the execution of that sentence.”
64
(AIR 1983 SC 465)
65
[(1971) 1 SCC 468]
66
(AIR 1974 SC 799
67
[(1974) 4 SCC 754]
68
[(1974) 3 SCC 314],
69
(AIR 1983 SC 1155)
Page 37
3.4.3 THE CONDITION OF THE FAMILY OF THE CONVICT
Apart from the torment and agony suffered by the death row convict, it has been universally
recognised that the agony is suffered also by his near and dear ones in the same manner by the
delay. A leading textbook on death penalty states that “the trauma for families is especially
evident when the date of the execution draws near. In recognition of this, it appears to be the
common practice in most retentions countries to allow relatives to visit the condemned person
prior to execution, to inform them of the date of the execution, and to deliver them the body for
burial.”70
In Sher Singh vs. State of Punjab71 , the Court repeated the same observations, and in the larger
Constitutional Bench in Triveniben vs. State of Gujarat72 in The Court held that if there was an
inordinate delay in execution, the condemned prisoner would be entitled to move the Court to
examine whether it was just and fair to allow the sentence of death to be executed. The
disclosure of the rejection of the mercy petition was, therefore, mandatory. In the case
Of Jagdish vs. State of Madhya Pradesh in 2012, the Supreme Court highlighted not only the
agony of the convict by inordinate delay of execution but also the agony and trauma of his close
relatives.
3.5 REPORTS ON THE MERCY AND DEALY IN DEATH PENALTY IN

INDIA TILL 2013
The SC is to consider “inordinate executive delay” as grounds for commutation of capital
punishment to life imprisonment, India conducting more executions remains imminent. There are
at least two death-row convicts whose mercy petitions have been rejected by the President in less
than three years. Condemned prisoner, Maganlal Barela of Madhya Pradesh filed his mercy
petition on 9 January 2012 and it was rejected by the President on 22 July 2013 in less than two
70
http://www.thehindu.com/todays-paper/tp-opinion/an-execution-most-foul/article4429631.ece (Last accessed on
28 October 2013)
71
1983 AIR 465, 1983 SCR (2) 582
72
1989 AIR 1335, 1989 SCR (1) 509
Page 38
years. The mercy petition of condemned prisoner Sunder Singh of Uttarakhand was filed on 16
September 2010 and rejected by the President on 4 April 2013 in less than three years.
According to the National Crimes Records Bureau, Ministry of Home Affairs, Government of
India, a total of 1,455 convicts or an average of 132.27 convicts per year were given death
penalty during 2001 to 2011. This also implies that on average one convict is awarded death
penalty in less than every third day in India. During this period, the highest number of death
penalty has been imposed in Uttar Pradesh (370) followed by Bihar (132), Maharashtra (125),
Karnataka and Tamil Nadu (95 each), Madhya Pradesh (87), Jharkhand (81), West Bengal (79),
Delhi (71), Gujarat (57), Rajasthan (38), Kerala (34), Odisha (33), Haryana (31) etc.73
At the end of 2012, there were 414 death row convicts who remained in various prisons at the
end of 2012. The maximum numbers of death row convicts at the end of 2012 were in Uttar
Pradesh with 106 followed by Karnataka (63); Maharashtra (51); Bihar (42); Delhi (27); Gujarat
(19); Punjab (16); Kerala (14); Tamil Nadu (12); while Assam, Jammu and Kashmir and Madhya
Pradesh each had 10 death row convicts 74 . Out of 414 death row convicts, 13 were female.
Maharashtra had maximum female death row convicts with five followed by Delhi (four);
Punjab (two); and one each in Haryana and Karnataka.75
3.5.1 THE INTENSITY OF DEATH PENALTY IN INDIA
According to the National Crimes Records Bureau, Ministry of Home Affairs, Government of
India, a total of 1,455 convicts or an average of 132.27 convicts per year were given death
penalty during 2001 to 2011.
This also implies that on average on less than every third day, one convict is awarded death
penalty in India. Death penalty therefore is not awarded in the rarest of rare cases but in most
cases. During the same period, sentences for 4,060 convicts were commuted from death penalty
to life imprisonment. This indicates that thousands of convicts remain on death row at any given
point of time.
73
ncrb.gov.in, Indian death Penalty Report 2013
74
Prison Statistics Report, 2012, National Crime Records Bureau, Ministry of Home Affairs, Government of India.
75
Ibid
Page 39
Table 1:Year-wise statistics of death penalty given and death penalty commuted during 2001-2011 76
Year No. of Death Penalty No. commuted to life No of Executed

imprisonment
2001 106 303 0
2002 126 301 0
2003 142 142 0
2004 125 179 1
2005 164 1,241 0
2006 129 1,020 0
2007 186 881 0
2008 126 46 0
2009 137 104 0
2010 97 62 0
2011 117 42 0
Total 1,455 4,321 1
Table 2: State-wise number of convicts in prison awarded death penalty during 2012 77
Sl. No. States Death penalty

1 Andhra Pradesh 5
2 Arunachal Pradesh 0
3 Assam 10
4 Bihar 42
5 Chhattisgarh 1
6 Goa 0
7 Gujarat 19
8 Haryana 6 (1 female)
9 Himachal Pradesh 0
76
ncrb.gov.in, Indian death Penalty Report 2013
77
Prison Statistics Report, 2012, National Crime Records Bureau, Ministry of Home Affairs, Government of India
Page 40
10 Jammu and Kashmir 10

11 Jharkhand 6
12 Karnataka 63 (1 female)
13 Kerala 14
14 Madhya Pradesh 10
15 Maharashtra 51 (5 female)
16 Manipur 0
17 Meghalaya 3
18 Mizoram 0
19 Nagaland 0
20 Odisha 0
21 Punjab 16 (2 female)
22 Rajasthan 2
23 Sikkim 0
24 Tamil Nadu 12
25 Tripura 2
26 Uttar Pradesh 106
27 Uttarakhand 1
28 West Bengal 6
29 Andaman and Nicobar Island 0
30 Chandigarh 2
31 Dadra & Nagar Haveli 0
32 Daman and Diu 0
33 Delhi 27 (4 female)
34 Lakshadweep 0
35 Pondicherry 0
Total 414 (13 females)
A number of death row convicts have also submitted their mercy petitions to the Governors of
the States under Article 161 of the Constitution. For example, ten mercy petitions were pending
with the Governor of Maharashtra as on 15 June 2013.78
78
RTI Reply No. RB-2013/Admin/RTI/23805 from the Governor’s Secretariat, Raj Bhawan, Mumbai, 15 June 2013
provided to Asian Centre for Human Rights
Page 41
3.5.2 CASE DETAILS OF REJECTED MERCY PETITIONS PENDING BEFORE THE

HIGH COURTS AND SUPREME COURT
As per the information provided by the Additional Solicitor General of India to the Supreme
Court, between 1950 and 2009, over 300 mercy petitions were filed before the President of India.
Out of these, 214 were accepted by the President and the sentence of death was commuted into
life imprisonment while 69 petitions were rejected by the President. The result of one petition
was obscure while about 18 petitions filed between 1999 and 2011 remained pending for a
period ranging from 1 year to 13 years.79
There are 20 condemned prisoners whose rejection of mercy petitions by the President of India
are under adjudication by the High Courts and the Supreme Court on the grounds of delay. The
period of delay for consideration of the mercy pleas ranges from one year (MaganlalBarela) to
14 years (Dharampal) as given below.
Case 1: Death row convict, Dharampal (14 years delay)
In 1991, Dharampal was charged with rape of a girl in Sonepat, Haryana. Dharampal was
convicted and sentenced to 10 years imprisonment in 1993. While on parole, Dharampal, killed
five members of the victim’s family while they were sleeping. Nirmal, Dharampal’s brother, who
helped Dharampal in the killings, was also sentenced to death. The Punjab and Haryana High
Court upheld both Dharampal and Nirmal’s sentences in 1998. In 1999, the Supreme Court
upheld Dharampal’s sentence, but commuted Nirmal’s sentence from death to life imprisonment.
Dharampal submitted his mercy petition in 1999, which was rejected in 2000.80The Ministry of
Home Affairs reviewed his mercy petition and forwarded its final recommendations to the
President on 2 May 2005.81
79
Writ petition (Criminal) D.No. 16039 of 2011 (Devender Pal Singh Bhullar versus State of N.C.T. of Delhi) with
Writ Petition (criminal) no. 146 of 2011 and Writ Petition (Criminal) no. 86 of 2011.
80
President Pranab Mukherjee rejects mercy plea, Haryana rape convict will hang next week, The Indian Express, 4
April 2013, available at: http://www.indianexpress.com/news/president-pranab-mukherjee-rejects-mercy-plea-
haryana-rape-convict-will-hang-next-week/1097421/ (Last accessed on 30 September 2013)
81
Available at: http://media2.intoday.in/indiatoday/images/Cases_of_terrorist_activities.pdf
Page 42
On 4 April 2013, President Pranab Mukherjee rejected the mercy petition of Dharampal of
Haryana. 82 On 10 April 2013, the Punjab and Haryana High Court stayed the hanging after
Dharampal moved the court on the ground of delay.83
Case 2: Death row convicts, Murugan, Santhan and Arivu(13 years delay)
Death row convicts, Murugan, Santhan and Arivu were convicted in the Rajiv Gandhi
assassination case of 21 May 1991. On 8 November 1997, the designated court under the
Terrorists and Disruptive (Prevention) Act convicted all 26 accused and sentenced them to death.
On 11 May 1999, the Supreme Court upheld the death penalty sentence handed down to Nalini,
Santhan, Murugan and Perarivalan, alias Arivu. The Supreme Court rejected their review petition
in 2000. Thereafter, Nalini, Santhan, Murugan and Perarivalan, alias Arivu, submitted mercy
petitions to the Governor. In April 2000, the Governor rejected the mercy petitions of Santhan,
Murugan and Perarivalan, but commuted Nalini's death sentence to imprisonment for
life.84Nalini’s mercy petition was accepted by the Governor based on the Council of Ministers’
advice that “mercy may be shown to Nalini as she has a daughter who would become an
orphan”. Santhan, Murugan and Perarivalan submitted mercy petitions to the President on 26
April 2000.85 On 11 August 2011, President PritibhaPatil rejected their mercy petitions86
Santhan, Murugan and Perarivalan were scheduled to be hanged on 9 September 2011, but the
Madras High Court stayed their execution on 30 August 2011 after they moved the High Court
seeking commutation to life term on the ground of delay. They contended that the delay of 11
years and four months in the disposal of their mercy petitions made the death sentence “unduly
82
President Pranab rejects five mercy petitions, commutes death sentence to life term for two, Sahara Samay, 4
April 2013, available at: http://www.saharasamay.com/nation-news/676527184/president-pranab-rejects-five-mercy-
petitions-commutes-death-sen.html
83
HC extends stay on Dharmapal hanging till July 31, The Times of India, 11 July 2013, available at:
http://articles.timesofindia.indiatimes.com/2013-07-11/chandigarh/40514012_1_devinderpal-singh-bhullar-july-31-
hc-division-bench.
84
Chennai Corner, Outlook, 23 November 2012, available at:http://www.outlookindia.com/printarticle.aspx?283082
85
Letter No. 406 dated 24.04.2000 of Secretary to the Government of Tamil Nadu, Home Department to death row
convict Nalini obtained by The Asian Centre for Human Rights under the RTI Act, 2005
86
President rejects mercy plea of Rajiv Gandhi's killers, The Indian Express, 30 August 2011, available at:
http://www.indianexpress.com/news/president-rejects-mercy-plea-of-rajiv-gandhis-killers/830448/
Page 43
harsh and excessive”, amounting to violations of their rights to life under Article 21 of the
Constitution. On 1 May 2012, the Supreme Court took over the petitions of the three convicts.87
87
SC takes over case of Rajiv Gandhi assassination case convicts, The Times of India, 2 May 2012, available at:
http://articles.timesofindia.indiatimes.com/2012-05-02/india/31537779_1_death-row-convicts-mercy-pleas-death-
penalty
Page 44
Case 3: Death row convicts, Suresh and Ramji (11 years delay)
Suresh and Ramji (brothers) of Uttar Pradesh have been on death row since 2001. In 2001, the
trial court convicted and sentenced them to death for killing five of their relatives, including
three children. On 23 February 2001, the Allahabad High Court confirmed the death penalty,
which was upheld by the Supreme Court on 2 March 200188.
In 2002, Suresh and Ramji filed mercy petitions to the President, but they were subsequently
rejected. However the Ministry of Home Affairs reviewed the petitions and forwarded its
recommendations to the President on 21 June 2005.89 In 2002, Suresh and Ramji filed mercy
petitions to the President, but they were subsequently rejected. However the Ministry of Home
Affairs reviewed the petitions and forwarded its recommendations to the President on 21 June
2005.90
President Pranab Mukherjee rejected the mercy petitions on 4 April 2013. On 6 April 2013, a
bench of Justices P Sathasivam and M Y Eqbal of the Supreme Court stayed the executions of
Suresh and Ramji following a petition filed by People’s Union for Democratic Rights on their
behalf.91
88
UP officials begin process for hanging of 4 convicts, The Times of India, 5 April 2013, available at:
http://articles.timesofindia.indiatimes.com/2013-04-05/lucknow/38305676_1_four-convicts-mercy-petitions-death-
sentence
89
UP officials begin process for hanging of 4 convicts, The Times of India, 5 April 2013, available at:
http://articles.timesofindia.indiatimes.com/2013-04-05/lucknow/38305676_1_four-convicts-mercy-petitions-death-
sentence
90
Available at: http://media2.intoday.in/indiatoday/images/Cases_of_terrorist_activities.pdf
91
petitions-commutes-death-sen.html. 8 convicts denied mercy by President get SC stay on hanging, The Times of
India, 7 April 2013
Page 45
Case 4: Death row convict, Praveen Kumar (9 years delay)
Praveen Kumar of Karnataka was convicted for killing four members of a family on 23
February 1994. He filed his mercy petition on 26 October 2003, and President Pranab
Mukherjee rejected his mercy petition on 4 April 2013.92 On 6 April 2013, a bench of Justices
P Sathasivam and M Y Eqbal of the Supreme Court stayed the execution of Praveen Kumar
following a petition filed by People’s Union for Democratic Rights on his behalf.93
Case 5: Death row convicts, Simon, Gnanaprakash, Madaiah and Bilavendran (9 years
delay)
Simon, Gnanaprakash, Madaiah and Bilavendran, associates of the slain forest thief,
Veerappan, were convicted for killing 22 persons in a landmine blast in 1993. They filed mercy
petitions on 12 February 2004 after the Supreme Court upheld their conviction by a TADA
court in Mysore in 2001 and increased the sentence to death. President Pranab Mukherjee
rejected their mercy petitions in February 2013. On 20 February 2013, a bench of Chief Justice
AltamasKabir and Justices Anil R. Dave and VikramajitSen of the Supreme Court extended the
stay on their execution.94
Case 6: Death row convict, SaibannaNigappaNatikar(8 years delay)
SaibannaNigappaNatikar (60), a resident of Mandwal village in Gulbarga, Karnataka, was

initially convicted for life for murdering his first wife in 1992. While on parole in September
1994, Saibanna killed his second wife and her daughter. On 21 April 2005, the Supreme Court
92
petitions-commutes-death-sen.html
93
8 convicts denied mercy by President get SC stay on hanging, The Times of India, 7 April 2013, available at:
http://articles.timesofindia.indiatimes.com/2013-04-07/india/38345226_1_mercy-plea-suresh-and-ramji-chief-
justice-altamas-kabir.
94
Execution of Veerappan aides stayed for 6 weeks, The Hindu, 20 February 2013, available at:
http://www.thehindu.com/news/national/execution-of-veerappan-aides-stayed-for-6-weeks/article4434522.ece (Last
Accessed on August 2013)
Page 46
upheld the verdict of the Karnataka High Court, which had confirmed death penalty imposed by
the trial court. 95 On 22 January 2013, the Karnataka High Court stayed the hanging of
SaibannaNigappaNatikar after his mercy petition was rejected by the President on 4 January
2013.96Saibanna moved the Karnataka High Court pleading for stay of the death penalty on the
ground of delay and commutation of the death sentence to life imprisonment97
Table 3: Delay in consideration of the mercy pleas
Sl Name of convicts Date of Date of Date of Rejected/ Period of Charges

No. Supreme mercy mercy commuted/ pendency
Court petition petition pending
judgment filed decided
by the
President
1 Dharampal 18.3.1999 1999 4.4.2013 Rejected 14 Rape and
murder of
five persons
2 Murugan, Santhan and 11.5.1999 2000 11.8.2011 Rejected 13 Rajiv Gandhi
Arivu assassination
case, 1991
3 Suresh and Ramji 2.3.2001 2002 4.4.2013 Rejected 11 Murder of
five
including
three minors
4 Praveen Kumar 25.10.2003 2004 4.4.2013 Rejected 9 Murder of
four persons
5 Simon, Gnanaprakash, 29.01.2004 12.2.2004 February Rejected 9 Killing of 22
Madaiah and 2013 persons in a
Bilavendran, land mine
blast
6 SaibannaNingappa 21.04.2005 2005 4.1.2013 Rejected 8 Murder of
Natikar two wives
95
Karnataka HC stays hanging of Saibanna, The Hindu, 22 January 2013, available at:
http://www.thehindu.com/news/cities/bangalore/karnataka-hc-stays-hanging-of-saibanna/article4332078.ece
96
Karnataka HC extends stay on murder convict Saibanna's execution till April 6, The Times of India, 5 March
2013, available at: http://articles.timesofindia.indiatimes.com/2013-03-05/india/37469072_1_murder-convict-
mercy-petition-execution ( last accessed on 19 September 2013)
97
Karnataka HC stays hanging of Saibanna, The Hindu, 22 January 2013, available at:
http://www.thehindu.com/news/cities/bangalore/karnataka-hc-stays-hanging-of-saibanna/article4332078.ece
Page 47
and a minor
daughter
7 Jafar Ali 5.4.2004 18.8.2006 4.4.2013 Rejected 7 Murder of
his wife and
five
daughters
8 Gurmeet Singh 28.09.2005 2007 4.4.2013 Rejected 6 Murder of 13
family
7members
9 ShivuMunishetty and 2007 28.2.2007 13.8.2013 Rejected 6 Rape and
JadeswamyRangashetty murder of a
girl
10 Sonia and Sanjeev 2007 2007 4.7.2013 Rejected 6 Murder of
eight family
members
11 Sunder Singh 16.9.2010 2011 4.4.2013 Rejected 2 Murder of
five family
members
12 MaganlalBarela 9.1.2012 2012 22.7.2013 Rejected 1 Beheaded his
five minor
daughters on
11.6.2010
Total –20
Scale of execution in independent India

As per the 35th Report of the Law Commission, out of the 1410 executions, 21 were executed in
1953; 108 in 1954; 150 in 1955; 151 in 1956; 153 in 1957; 144 in 1958; 181 in 1959; 174 in
1960; 150 in 1961; 107 in 1962; and 71 in 1963.98
As per the National Crime Records Bureau (NCRB), the following 21 condemned prisoners have
been executed by India since 1995:99
98
35th Report, Volume II (Capital Punishment), September 1967 of the Law Commission of India, Ministry of Law,
Government of India, available at: http://lawcommissionfindia.nic.in/1-50/Report35Vol2.pdf
99
Prison Statistics Reports, 1995 to 2011, National Crime Records Bureau, Ministry of Home Affairs, Government
of India.
Page 48
Year Number of States

executions
1995 13 Uttar Pradesh (11), Delhi (1) and Assam
(1)
1996 1 Kerala
1997 1 Andhra Pradesh
1998 3 Haryana
1999-2003 No execution
2004 1 West Bengal (DhananjoyChatterjee)
2005-2011 No execution
2012 1 Maharashtra (Mohammad Amir
AjmalKasab)
2013 1 Delhi (Afzal Guru)
3.6 CONCLUSION
The Supreme Court of India must not only consider the death penalty through the right to life
principle100but also through the absolute prohibition of torture or cruel, inhuman or degrading
treatment or punishment. Since India has ratified International Covenant on Civil and Political
Rights (ICCPR) in 1979, it is bound by its treaty obligations. Under Articles 4 and 7 of the
ICCPR, torture and inhuman or degrading treatment or punishment is prohibited even in times of
public emergency, which threatens the life of the nation.101
100
Article 21 of the Constitution of India and Article 6 of the International Covenant on Civil and Political Rights
101
Article 7 of ICCPR: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or scientific
experimentation.” Article 4 of ICCPR: 1. In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating
from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other obligations under international law and do not
involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation
from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to
the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the
present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from
which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through
the same intermediary, on the date on which it terminates such derogation.
Page 49
The Supreme Court of India has the responsibility to ensure that India complies with its legal
obligations on the absolute prohibition of torture or cruel, inhuman or degrading treatment or
punishment with respect to the death row convicts by commuting that death penalty to life
imprisonment. That the delay upto 14 years in deplorable prison conditions in India constitutes
violations of India’s obligation with respect to absolute prohibition of torture require little
introduction.
Page 50
CHAPTER-4
4. CONCERN ABOUT EXECUTIVE HANDLING THE CAPITAL

CASES
After the final verdict of the SC there are two ways in which convict can at any stage avoid
execution. The first is the “commutation” of the death sentence by the appropriate government
under the provision of IPC and Crpc.102. The second is the commutation of pardon given by the
President of India or the Governor of the relevant state under article 72 & 161. However, the
President can exercise this power only on the aid of the council of ministers.
In Rajendra Prasad v. State of Uttar Pradesh103, the majority Bench of the Supreme Court had
observed that courts could not be complacent and rely on executive clemency powers in case
they erred, pointing out that, “for one thing, the uneven politics of executive clemency is not an
unreality when we remember it is often the violent dissenters, patriotic terrorists, desperadoes
nurtured by the sub-culture of poverty and neurotics hardened by social neglect and not the
Members of the establishment or conformist class, who get executed through judicial and
clemency processes.”
102
Section 54 of IPC provides that the Commutation of sentence of death.-- In every case in which sentence of death
shall have been passed, 3[ the appropriate Government] may, without the consent of the offender, commute the
punishment for any other punishment provided by this Code. This power to commute death sentence is given
Section 432, 433 & 433A of the CrPc grant power to appropriate government to suspend the execution of the
sentence or to remit the whole or any part of the punishment imposed by the trial court without the conditions and or
the condition upon the accused accept. Section 433 of the CrPc grants power to the appropriate government to
commute the death sentence to any other punishment provided under the IPC without the consent of the Accused.
103
(AIR 1979 SC 916)
Page 51
Despite such a warning however, the courts continue to rely on the executive powers of
clemency to correct wrongs where they feel that their judicial powers are restricted. Thus in
RamDeoChauhan @ Raj Nath v State of Assam 104while two judges took opposing views on
whether to accept the claims that the accused was a juvenile and commute the sentence, the third
(and therefore decisive) judge agreed to reject the petition, arguing that the accused had the
remaining remedy of executive clemency. Similarly, the majority Bench in Devender Pal Singh
v. State, N.C.T. of Delhi and anr. (with Krishna Mochi)105also relied on this safety-net when
upholding the death sentence after the three judges were completely divided on questions of guilt
as also of sentence.
Ina number of cases, many of which have been referred to previously in this study, the Supreme
Court has felt unable to reduce the sentence and unwillingly upheld sentences of death, but in its
judgments has included hints to the executive which it clearly hoped would inform the
executive's decision-making on clemency.
In BhagwanSwarup v State of U.P106the trial court observed that the accused did not appear more
than 19 years of age but observed that age alone was an insufficient ground for lesser
punishment, though this could be used as a relevant consideration in a mercy petition. Such hints
have been used by judges, particularly Justice Krishna Iyer, as a means of reconciling their
personal objections to the death penalty and their duty to observe the law. Thus even while
refusing to admit a special leave petition in Joseph Peter v. State of Goa, Daman and Diu,107
Justice Krishna Iyer stated that while the Court could not consider the young age of the accused
and the fact that he had been under sentence of death for six years, presidential power was
broader than judicial power.
In Shiv Mohan Singh v. The State (Delhi Administration 108 (where the President had already
rejected the mercy petition once and there was no judicial remedy, Justice Iyer attempted to give
the accused a final chance by clarifying the legal position, “The judicial fate notwithstanding,
104
(AIR 2001SC 2231)
105
(AIR 2003 SC 886)
106
(AIR 1971 SC 429)
107
[(1977) 3SCC280]
108
AIR 1977SC 949
Page 52
there are some circumstances suggestive of a claim to Presidential clemency. The two
jurisdictions are different, although some considerations may overlap. We particularly mention
this because it may still be open to the petitioner to invoke the mercy power of the President and
his success or failure in that endeavor may decide the arrival or otherwise of his doomsday.”A
rare instance where the Supreme Court appeared to hint towards a rejection of a mercy petition
was in Kuljeet Singh alias Ranga v. Union of India and anr.109Where the Bench observed, “We
hope that the President will dispose of the mercy petition stated to have been filed by the
petitioner as expeditiously as he find his convenience.”
In practice, the exercise of clemency by the executive has more potential than the courts to be
arbitrary, especially since there is no requirement placed on the executive to give reasons for
either accepting or rejecting mercy petitions and decisions are neither reported widely nor
published. In fact it was reported that the eventual decision by the Governor of Orissa to
commute the sentence of DayinidhiBisoi in 2003 was influenced by the absence of hangmen in
the State. .110The absence of any transparency in the process of executive clemency is a serious
concern, especially since the government may be subject to a large number of other electoral
pressures extraneous to the case. It is a moot point whether the execution of Dhananjoy
Chatterjee would have taken place in August 2004 (after a period of approximately seven years
in which no executions had been carried out in India) had the ruling Central Government not
been reliant on the political support of its coalition partner-the Communist Party of India
(Marxist)-which was theruling party in West Bengal (from where the prisoner hailed) and a
strong advocate in favour of carrying out his execution. 111 Even Afsa Guru &AjmalKasab
execution was an approach to win the confidence of people of Central Government for the very
next election going to held in 2014.
In the year 2005, in view of the mounting number of mercy petitions before him, the President of
India, Dr. A.P.J. Kalam put together a list of approximately 44 persons under sentence of death.
109
[(1981) 3 SCC 324]
110
‘Non availability of hangman delays execution in Orissa’, www.hindustantimes.com, 15 August 2003.(last
accessed on 11 October 2013)
111
Report of Amnesty international; Lethal lottery: Death penalty in India
Page 53
Addressing a note to the Ministry of Home Affairs, the President reportedly sought a review of
the cases of these persons based on the following guidelines:
1. The Home Ministry, before recommending any action on a petition, should consider the
sociological aspect of the cases;
2. Besides the legal aspects, the Ministry should examine the humanist and compassionate
grounds in each case; these grounds include the age of the convict and his physical and
mental condition;
3. The Ministry should examine the scope for recidivism in case a death sentence is
commuted to life imprisonment through the President's action; and
4. The Ministry should examine the financial liabilities of the convict's family.
This Presidential note and the reported response of the Ministry that while the government ought
to consider the socio-economic factors and the age and health of each convict before advising the
President on the mercy petitions, it was equally crucial for the Home Ministry to take into
account the gravity of the offence, whether the offence was premeditated or not, and the
conduct of the convict in jail,112highlights tension within the executive itself on this issue.
112
Frontline, 'Death Penalty: The Presidential Dilemma', S. Venkatesan, Volume22 Issue 23, Nov. 5-18 2005
Page 54
CHAPTER-5
JUDICIAL ERRORS IN DEATH SENTENECE
5.1 INTRODUCTORY
5.2 ERRORS DONE BY SUPREME COURT
5.3 JUDGES CENTRIC APPROACH
Page 55
5.1INTRODUCTORY
Examples abound of judicial error in death penalty cases where persons have been wrongly
convicted or sentenced to death. In Bachan Singh Case, Justice Bhagwati, a former Chief Justice
of India, said that the Supreme Court had been awarding death penalties “arbitrarily and
freakishly”. 113Was he wrong?
The Supreme Court’s five-judge Constitution Bench judgment in Bachan Singh 114is the source
of contemporary death penalty jurisprudence in India. Its major contribution was to limit the
imposition of death penalty to the rarest of rare crimes, and for laying down the principle that the
courts must impose the death sentence on a convict only if the alternative sentence of life
imprisonment is unquestionably foreclosed. For achieving these twin objectives, the court held
that judges must consider the aggravating features of the crime, as well as the mitigating factors
of the criminal.
However, the application of its principles by the courts to various cases before them has been
very uneven, and inconsistent. This has naturally led to the criticism that the jurisprudence
suffers from a judge-centric approach, rather than a principles-centric approach
It is a matter of concern when this criticism emanates from the judiciary itself, as it smacks of its
helplessness. The frequency of such criticism from the judiciary may appear to be exercises in
genuine introspection but to the litigants, the very credibility of the court’s death penalty
decisions is at stake.
In October 1975, the Allahabad High Court confirmed the death sentence imposed by the trial
court on Jeeta Singh, Kashmira Singh and Harbans Singh for playing equal roles in murdering
four members of a family. Each of them challenged their sentence separately before the Supreme
Court. While Jeeta Singh’s appeal was dismissed by a Bench of three judges (Justices Y.V.
Chandrachud, V.R. Krishna Iyer and N.L. Untwalia) and he was hanged, a different Bench of
two judges (Justices M. Fazal Ali and P.N. Bhagwati) commuted Kashmira Singh’s death
sentence to life imprisonment. Another Supreme Court Bench dismissed Harbans Singh’s appeal
113
AIR 1979 SC 916.
114
ibid
Page 56
and review petition though he had sought equal treatment with Kashmira, and he was scheduled
to be hanged with Jeeta Singh. But he appealed again. This time, the court stayed his execution
and recommended presidential clemency, which was granted.115.
5.2 ERRORS DONE BY SUPREME COURT
Examples abound of “a pattern of confusion, contradiction and aberrations” in judgments in

death penalty cases. A study of Supreme Court judgments in death penalty cases from 1950 to
2006 116 shows that cases in which the death penalty was imposed are often indistinguishable
from those in which it was commuted. Nothing has changed since then. Dharmendra Singh
(2002) and Kheraj Ram (2003), doubting their spouses’ fidelity and the parentage of their
offspring, killed their wives and children. The former was sentenced to life imprisonment, the
latter to death. Vashram (2002) and Sudam (2011) murdered their wives and children because
they were being nagged. The former’s sentence was commuted, while the latter was sent to the
gallows. Nagging was decreed a mitigating circumstance and sustained provocation in only one
case though it was the cause of both murders.
In two cases of child sacrifice, the court commuted the death penalty in one case but upheld it in
the other. It commuted the death penalty in Damu (2000), where three children were killed, and
upheld it in Sushil Murmu (2004), where one child was killed. The grounds for commutation –
that the accused acted out of ignorance and superstition – applied squarely to Murmu as well,
which was also less heinous a case than Damu. In each of these comparisons, the court ignored
its own precedent and imposed the death penalty in the subsequent case.
Mohan (2008) was sentenced to death for the rape and murder of two minor girls, having earlier
been convicted twice of raping other minor girls. Sebastian (2010), described as a violent
paedophile with previous convictions for molestation, kidnapping, rape and murder of a young
child, was given life imprisonment for yet another rape and murder of a child. There is little to
differentiate the case of Sebastian’s from Mohan’s, except the composition of the Bench. While
Justices K.G. Balakrishnan and S.B. Sinha commuted all death sentences for child rape and
115
Vol:29 Iss:17 URL: http://www.flonnet.com/fl2917/stories/20120907291702500.htm
116
(“Lethal lottery: The death penalty in India” (2008)) by Amnesty International and the People’s Union for Civil
Liberties (PUCL)
Page 57
murder, Justice A. Pasayat upheld or imposed the death penalty in every such case even when
lower courts had acquitted the accused or commuted the sentences.117
5.3 JUDGES CENTRIC APPROACH
State of U.P. v Satish118convicted of raping and strangling a five-year-old girl, was sentenced to
death by Justice Pasayat’s Bench even though the case was based on weak circumstantial
evidence and the High Court had acquitted him. Rahul Agarwal v Rakesh Jain and
Anr. 119 convicted of the rape, sodomy and murder of a four-year-old girl, was given life
imprisonment by Justice Balakrishnan’s Bench. In SwamyShraddananda @ MuraliManohar
Mishra v State of Karnataka,120 the court admitted: “The truth of the matter is that the question
of death penalty is not free from the subjective element and the confirmation of death sentence or
its commutation by this court depends a good deal on the personal predilection of the judges
constituting the Bench.”
The death sentence becomes more indefensible when a majority of such cases are assigned to
two or three out of the 14 or so Benches of the Supreme Court. This creates a lottery, where the
mere presence or absence of a particular judge gives the convict a significantly better or worse
chance of survival, statistically, regardless of the evidence. A comparison of three judges
(derived from judgments reported in Supreme Court Cases) clarifies the importance of a judge’s
personal predilections in death-penalty adjudication.
Justice Pasayat’s conviction rate of about 73 per cent was significantly higher than the collective
conviction rate (19 per cent) of other judges during his tenure. Thus, a case not allotted to Justice
Pasayat’s Bench was about four times more likely to escape capital punishment. A death-penalty
case had an almost equal chance of being heard by Justice Pasayat’s or Justice Sinha’s Bench,
but the convict’s chances of living were almost 100 per cent if his case was allotted to the latter
instead of the former. A prisoner’s chances of living were better by more than 50 per cent if his
117
118
MANU/SC/0090/2005
119
MANU/SC/0040/2005
120
MANU/SC/3096/2008
Page 58
case was allotted to Justice Balakrishnan’s Bench rather than Justice Pasayat’s Bench. Would a
death sentence appellant not be justified in asking, “Am I to live or die on the basis of the
constitution of the Bench and not the evidence in the case? Is that justice according to law?”121
As we saw in Harbans Singh, and as is becoming clearer by the day, the imposition or
commutation of the death penalty depends less on the evidence than on the personal predilections
of the judges. Such glaring inconsistencies in death-penalty judgments have caused disquiet
among not only litigants, lawyers and academics but also judges themselves. Aloke Nath Dutta
and Ors .v State of West Bengal122contains a poignant expression of sorrow and helplessness:
“We have also noticed hereinbefore that different criteria have been adopted by different benches
of this court, although the offences are similar in nature. No sentencing policy in clear-cut terms
has been evolved by the Supreme Court. What should we do?”
Underlying such anguish is a realisation that the court has treated similarly situated convicts
differently and thereby violated the fundamental rights it was expected to protect:
Santosh Kumar SatishbhushanBariyar v State of Maharashtra 123 held that “Equal protection
clause ingrained under Article 14 [of the Constitution] applies to the judicial process at the
sentencing stage. We share the court’s unease and sense of disquiet in Swamy Shraddananda
case and agree that a capital sentencing system which results in differential treatment of similarly
situated capital convicts effectively classifies similar convicts differently with respect to their
right to life under Article 21…. In the ultimate analysis, it serves as an alarm bell because if
capital sentences cannot be rationally distinguished from a significant number of cases where the
result was a life sentence, it is more than an acknowledgement of an imperfect sentencing
system. In a capital sentencing system if this happens with some frequency there is a lurking
conclusion as regards the capital sentencing system becoming constitutionally arbitrary”
121
122
MANU/SC/8774/2006
123
MANU/SC/0801/2009
Page 59
CHAPTER-6
RECOMMENDATIONS
In the immediate interim, I believe that there are a number of steps that can and should be
taken:
 ENSURE OPENNESS, TRANSPARENCY AND INFORMED DEBATE

 End the secrecy surrounding application of the death penalty by making all
information regarding the past use of the death penalty, and the total number of
persons presently on death row with details of their cases, publicly available.
 Having made available such statistical information and having carried out an
independent study of capital cases and their conformity to national and
international law, initiate a parliamentary debate on abolition of the death penalty.
 IMPROVE PROCEDURAL SAFEGUARDS
 Provide a mandatory appeal to the Supreme Court in all cases where a death sentence
has been awarded (including by any military court)as previously recommended by the
Law Commission of India;
 Implement the Law Commission's recommendation that a Bench of five judges
decides any capital case in the Supreme Court;
 Recognized t h e requirement o f unanimity o f judges as a procedural safeguard in
the award of the death penalty;
 Disallow the award of the death sentence or enhancement of a sentence to death by
the High Court or Supreme Court, in any case where a trial court has directed an
acquittal or awarded any other sentence.
Page 60
 END TORTURE, ILL-TREATMENT AND COERCED CONFESSIONS

 Order an investigation into the cases of prisoners on death row who were reported to
have been tortured, ill-treated or denied access to legal counsel during police
questioning;
 Ensure that 'confessions' obtained under duress are never invoked by state prosecutors
in legal proceedings against criminal suspects;
 Ensure that anyone who faces the death penalty has an effective right to competent
state appointed legal counsel of the defendant's choice during the entire legal process,
including appeals and mercy petitions;
 Ratify the UN Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment as also its Optional Protocol.
Page 61
CHAPTER- 7
CONCLUSION AND SUGGESTION
CONCLUSION
At last in conclusion this report has referred to a large number of cases that place it beyond doubt
that whether an accused should finally be sentenced to capital punishment or not is an arbitrary
matter, a decision reliant on a number of extremely diversified and often subjective factors, there
is no stipulated time till what that time a person’s plea for commuting there death penalty to life
imprisonment should be decided or till what time a person’s death sentence should be executed
after the judgement of the Hon’ble Court, it totally depends upon the will, his behaviour, and his
way of thinking towards the accused which many times results into the miscarriage of justice.
In the words of P.N. Bhagwati, J. in Bachan Singh v. State of Punjab124 “the judges have been
awarding death penalty according to their own scale of values and social philosophy and it is not
possible to discern any consistent approach to the problem in the judicial decisions”. Therefore,
whether the sentence will be given upon death or for life imprisonment depends, in a large measure,
upon the hon’ble court or composition of bench of that hon’ble court. We have also seen earlier
decisions about execution and commutation of death sentences into life imprisonment, there are
several judgments which clearly shows that there are no fix principles to determine delay and other
factors in the that similar cases. Even in Dhananjay Chatterjee’s case125 there was fourteen years’
delay in execution of the death sentence but at last it was not be commuted to life imprisonment and
also in some earlier cases in which two years, two and half years, three years and nine years, there is
delay in execution which was also treated as violation of human rights and fair procedure of law and
after the delay their sentences were commuted to life imprisonment. Is this not a violation of articles
14 and 21 of the Constitution which talks about “Equality before law” and “ Right to life and
personal liberty” enshrine in fundamental rights and also sacrosanct rights of human beings?
124
See supra note 15
125
See supra note 38
Page 62
By this paper I would like to submit that when in any country there is provision of death penalty
then it should be so impartial, fair and reasonable by the authorities of country that it should not
be challenged by any single person. In India recent death penalty of Yakub Memon, Afzal guru
and Bhullar case and many more lined in death row have been criticized on ample amounts by
their own citizens. There are many grey areas on which government must make enact laws and
regulations i.e. There should be law to govern the time limit in entertaining mercy petitions,
There must be uniformity in decision which is lack of in Indian judiciary, the death penalty
should not be given on judges centric approach but on the basis of crime done by the culprit, due
to delay giving passive double jeopardy must be stop and all, political approach must be
completely abolished from the capital punishment because of this it the faith in judiciary and
power of president has marked a question on its credibility.
The delay in death penalty and errors in giving death penalty judgment raises a burning alarm
over government and judiciary that recent execution and lined up death rows are whether a part
of justice or vengeance?
FURTHER SUGGESTIONS
In the immediate interim, I believe that there are a number of steps that can and should be taken:
1. The Judiciary should try to ensure that the death penalty should not to be imposed or carried
out on any person suffering from a mental disease - either permanent or temporary; should not to
give anyone suffering from a mental disease from death row and must provide that persons with
appropriate and fine medical treatment.
2. The Judiciary should try to ensure that cases of persons likely to be suspected to have been
juveniles(i.e below 18 years of age) at the time of the commission of offence and presently on
death row the age should of that juvenile should be examined properly without further delay.
3. The Judiciary should try to Abolish all the provisions made by legislature which provides for
the mandatory death sentences in many cases.
Page 63
4. The Judiciary should try to order to the legislature to provide for compensation and care to
those found to have been the victims of miscarriages of justice in cases related to capital
punishment.
Page 64
BIBLOGRAPHY
BOOKS
1. Gaur K.D.; Criminal Law - Cases and Materials, Butterworth’s India, New-Delhi (3d edn).
2. Vibhute K.I , PSA Pillai’s Criminal Law, Butterworth’s Wadhwa,(11th edn)
3. Dhirajlal & Ratanlal : The Indian Penal Code, Lexis Nexis, (33rd edn)
4. Gaur K.D, A Text Book on the Indian Penal Code (1998), Universal, Delhi
5. Gupta C. Subash, Capital punishment In India, Deep & Deep Publication, 1998 PG 22
6. Pylee, M.V, Our Constitution Government & Politics, -Delhi: Universal Law Publishing Co.
Pvt. Ltd., 2002.
7. Basu, Durga Das, Introduction to the Constitution of India,New Delhi: Wadhwa and
Company Law Publishers, 2002
8. Jain, M.P. Indian Constitutional Law, -New Delhi: Wadhwa and Company Nagpur, 2003
9. Dhirajlal & Ratanlal, Prasad B.M & Mohan Manish; The Code of Criminal Procedure
(CRPC), 21th edition, 2013
10. Kelkar's R.V., Criminal Procedure, 5th Edition, Eastern Book Co 2008
REPORTS
11. Consultation paper on Mode of Execution of Death by Law Commission Of India

12. 42nd Law Commission Report Indian Penal Code , June 1971
13. Lethal Lottery: The death Penalty in India; Amnesty International India
14. Report on Mercy Trials in India; Asian Center For Human Rights, 2013
15. The State of Death Penalty in India 2013: Discriminatory treatment amongst the death row
convicts; New Delhi 14 February, 2013
Page 65
WEBSITES
16. http://www.manupatra.com/
17. http://articles.timesofindia.indiatimes.com/2013-02-05/india/36764294_1_male-child-sc-
awards-death-gunny-bag
18. http://www.thehindu.com/opinion/editorial/the-hangmans-justice/article4120370.ece
19. http://oxforddictionaries.com/definition/english/capital%2Bpunishment
20. http://www.legal-explanations.com/definitions/capital-punishment.htm
21. http://www.legalindia.in/power-of-pardon-in-india
22. http://www.mylaw.net/Article/Triple_jeopardy/#.Umpzs3B0yaM
23. http://www.thehindu.com/todays-paper/tp-opinion/an-execution-most-foul/article4429631.ece
24. http://www.saharasamay.com/nation-news/676527184/president-pranab-rejects-five-mercy-petitions-
commutes-death-sen.html
25. http://www.indianexpress.com/news/president-pranab-mukherjee-rejects-mercy-plea-
haryana-rape-convict-will-hang-next-week/1097421/
26. http://www.vakilno1.com/
27. http://www.legalservicesindia.com/
Page 66

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ERRONEOUS CAPITAL PUNISHMENT IN INDIA

ERRONEOUS CAPITAL PUNISHMENT IN INDIA

A term paper Submitted to

Supervised by:- Submitted by:-

Mr. Ashish Pathak Nishant Sharma

Lecturer Course- B.Com.LL.B(H)

Amity Law School, Lucknow Semester- IXth

AMITY UNIVERSITY, UTTAR PRADESH

It is a matter of pleasure for me to present this Dissertation on “Erroneous Capital Punishment in

(i) Front Page…………………………………………................................. Page 1

(ii) Certificate of Internal Guide …………………….................................... Page 2

(iii) Acknowledgement……………………………………………………… Page 3

(iv) Preface…………………………………………………………………... Page 4

(v) Table of Content………………………………………………………… Page 5

(vi) Table of Cases……………………………………………….. …………. Page 6

(vii) Bibliography……………………............................................................. Page 65

Chapter 1 Introduction……………………………………………………… Page 8

Chapter 2 Constitutional Provision………………………………………….. Page 21

Chapter 3 Erroneous Punishment Includes Delay in Death……………………. Page 28

Chapter 4 Concern about Executive Handling the Capital Cases…………… Page 51

Chapter 5 Judicial Errors in Death Sentence…………………………………. Page 55

Chapter 6 Recommendation…………………………………………………… Page 60

Chapter 7 Conclusion and Suggestions…………….. Page 62

1. Mohinder Singh v State of Punjab Cr Appeal No. 1278-1279 of 2010 11

29. Bhagwan Swarup v State of UP (AIR 1977SC 429) 52

1.1.1 CAPITAL PUNISHMENT

1.2 OBJECT AND PURPOSE OF STUDY

1.4 SIGNIFICANCE OF STUDY

1.5 DATA BASE & RESEARCH METHODOLOGY

1.6 CHAPTERISATION PLAN

1.1.1 CAPITAL PUNISHMENT

(Bill Clinton, former US President)

Capital punishment is our society's recognition of the sanctity of human life.

(Orrin Hatch, US Senator)

1.1.2 DEATH PENALTY UNDER THE INDIAN PENAL CODE, 1860

1.1.3 MODE OF EXECUTION

1.1.4 CONSTITUTIONAL VALIDITY OF DEATH PENALTY

1.1.5 WHEN CAN DEATH SENTENCE BE INFLICTED

1.2 OBJECT AND PURPOSE OF STUDY

The object of this study of these Errors in death penalty is:

 To study Laws on the Death penalty in India.

1.3 RESEARCH QUESTIONS

The very basic research question is that:

 Whether delay in death Penalty amounts to double jeopardy?

1.4 SIGNIFICANCE OF STUDY

1.5 DATA BASE & RESEARCH METHODOLOGY

1.6 CHAPTERISATION PLAN

CONSTITUTIONAL PROVISION IN EXECUTION

2.2 PROVISION OF PARDON IN CONSTITUTION

2.3 PARDONING POWER UNDER JUDICIAL REVIEW

 The order has been passed without application of mind.

ERRONEOUS PUNISHMENT INCLUDES DELAY IN DEATH

3.1 ERRONEOUS PUNISHMENT CAUSES DEATH PENATLY

3.5 REPORTS ON THE MERCY AND DEALY IN DEATH PENALTY IN

3.5.2 CASE DETAILS OF REJECTED MERCY PETITIONS PENDING BEFORE THE

3.1 ERRONEOUS PUNISHMENT

3.2 DELAY IN DEATH PENALTY VIOLATES RIGHT TO LIFE

3.3 JUDICIAL APPROACH

In Rajendra Prasad v. State of U.P.42 V. R. Krishna Iyer, J. observed:

“………………….the humanistic imperative of the Indian Constitution, as paramount to the

3.4 DELAY IN JUSTICE A KIND OF DUAL PUNISHMENT

3.4 DELAY CAUSES DEATH ROW SYNDROME

3.4.1 DEATH ROW PHENOMENON EMERGENCE IN INTERNATIONAL

3.4.2 INDIAN JUDICIARY ON DEATH ROW