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In law, the purpose of punishment is to prevent the wrongdoer from committing the same offence again. Punishment follows the wrongful act. Chapter II (Sec. 6-52A) and Section 53 of the Indian Penal Code (IPC), 1860 cover necessary provisions for punishment. Section 53 provides for the various types of punishments the wrongdoer/offender may be liable to under the Penal Code. The five types enlisted in the section are death, life imprisonment, imprisonment (simple or rigorous), forfeiture of property and monetary punishment.


The death penalty or popularly called capital punishment is the kind of punishment wherein the person’s right to life is taken away with the due procedure established by law and in India, it is executed by hanging till death. It amounts to taking away the life (which is protected under Article 21 of the Constitution) of the offender with due authority in order to punish him/her for the wrongful act. Such extreme punishment has to be given as a matter of exception and not as a general rule and the Supreme Court has emphatically stated the ‘Rarest of the Rare Doctrine’ in Bachan Singh vs State of Punjab and Machhi Singh vs State of Punjab wherein it provided the guiding principles in cases of the death penalty. Capital punishment may be given for offences which are considered a crime against the society at large, some of which are enshrined under Sections 121, 132, 194, 302, 303, 305, 307, 364A and so on of the Indian Penal Code.

The Constitutionality of the death penalty was much debated but this was put to rest by the Apex Court in Jagmohan Singh Vs State of Uttar Pradesh wherein it was held that the deprivation of life is constitutionally lawful if done in accordance with the procedure as laid down in the Criminal Code of Procedure (CrPC).


The death penalty is the harshest form of punishment but what is worse is the delay in execution of the death penalty. It is a dehumanising factor. The convict’s agony of impending/lingering death is unparalleled. This delay is an additional torment which is not mandated by law; it is not part of the sentence awarded and therefore, it is in violation of the protections laid down in the constitution (Article 21) of the country. The uncertainty with regard to the execution was highlighted by the Delhi High Court in Sonu Sardar Vs Union of India & Anr wherein it empathised with the convict on the ambiguity of the call of the hangman. Such doubt of the future was metaphorically described as burning the living body (convict).


Various reasons have been identified for the delay-

  1. Mandatory confirmation by the High Court for the execution of the death sentence after the trial in the Sessions Court or Trial Court as per Section 366(1) of the Criminal Code of Procedure.
  2. Option to challenge the decision of the High Court in the Supreme Court given in Articles 132, 134 and 136 of the Indian Constitution. The constitution also provides for a review petition under Article 137 to the convict post the decision of the Apex court. If such a petition is dismissed, the convict also has the option of a curative petition.
  3. Mercy petition before the President can be filed as per Article 72 of the Constitution. This Article empowers the Head of the State to grant pardon, reprieve, respite or remission of punishment or suspend, remit or commute the accused. The convict further has the option to file a petition in the Apex court questioning the President’s decision.

A convict, thus, has a total of up to four petitions which on the one hand is a boon to the accused as it is his hope to get an acquittal or mitigating punishment but it is a curse to the same accused if he is not given any relief. Although this procedure’s prime aim is to put a check on the trial process and ensure that no innocent is punished.


The agony of the convict was relieved with the landmark judgement of Shatrughan Chauhan case in 2014. Herein, the Apex court highlighted that inordinate delay by the President whilst rejecting the mercy petition in cases of the death penalty amounts to misery and torture. It is thus considered to be violative of the ‘Right to Life’ as under Article 21 of the Constitution. It was held that unexplained, inordinate delay on the part of the President is sufficient ground for the convict to seek commutation. The court restrained from fixing a limit of particular years above which delay would amount to torture. Moreover, it also pointed out that the crime in question was irrelevant in cases of such delay. But delay simpliciter cannot alone be ground in commutation of death sentence, but it does highlight a special type of cases which deserve due review.


Sometimes, these procedures beginning from the death sentence imposed by a Sessions Court to the final acceptance/rejection of the mercy petition by the President/Governor can be abused. This was evident in the Nirbhaya case wherein all the convicts were to be executed together and when one convict’s petition was undertaken, other convicts could not be executed. All convicts having the option of four petitions used the legal procedure in their favour and delayed the execution by 8 years. Other well-known cases wherein there was inordinate delay in such execution were the Ajmal Kasab case and the Afzal Guru case.


Not just justice but also the execution is delayed in India. Therefore, the judicial authorities or the state alone cannot be held responsible for the delay. The legal remedies available to the convict may be exhausted but such procedures are often used in favour of the convict by making use of the loopholes as seen in the Nirbhaya case. But the psychological impact on the convict due to such delay must not be overlooked. A person’s impending death is not just having a toll on his/her mental health but also losing significant time of his/her life being denied opportunities and being socially isolated due to the stigmas in society. Such delay takes the life out of living. Thus, the apex court or the legislature must take certain decisive steps towards eliminating such horror from the minds of the accused persons as it is one of the worst types of violation of humaneness. Apart from this, the under-trial prisoners are often subject to violence and cruelty adding to the torture. This may be tackled by establishing fast-track courts for disposing of such petitions and issues. The floor is open to the readers to think of some other remedies for the same.

Author(s) Name: Bhavika Agrawal (Faculty of Law, University of Delhi)