POSTPONEMENT OF DEATH SENTENCE & ITS

EFFECT

By: Dharu ram, 1434 A

The general principle and the humane approach is to convert a death sentence into life
imprisonment if a long time has elapsed between the sentencing and the execution and
any sort of delay is said to be a vitiating circumstance with regard to the death sentence
due to the horror and mental anguish which the sentenced individual has to go through till
the time he is actually executed.

The earlier view of the Supreme Court was that any delay even the one caused due to the
postponement of the sentence because of an appeal that was preferred by the accused
himself. The Court has gone on to observe that the soul of the punished would be
tormented to such an extent that the death punishment itself would be much less a
punishment in its comparison.

Therefore, through a number of decisions, the Supreme Court has adopted a stand on this
issue but there still seems to be a discrepancy which is more because of the factual matrix
of a particular matter. This Article seeks to understand that stand of the Court and analyze
the same with a reference to humanity and logic.

The Code of Criminal Procedure, 1973 provides for the postponement of death sentence
in case the accused prefers to appeal before a higher judicial authority. There are two
sections which have been inserted into the Code as reframed in 1973 and these are
Sections 4151 & 4162 for pregnant women.

Section 415, this is a new addition to the Code and it provides for the postponement of
execution of sentence of death in case of appeal to Supreme Court. The Law
Commissioners in 41st Report observed3 “We propose the insertion of another new
section providing for the postponement of execution of a death sentence in cases where
an appeal against the judgment of a High Court passing or confirming such sentence can
be preferred to the Supreme Court under the Constitution. Our object in recommending
the new provision is to ensure that where there is a possibility of appealing to the
Supreme Court, the appeal is not rendered infructuous by an unfortunately prompt
execution of the sentence.”

Appeals in capital sentence cases may come up before the Supreme Court:

(i) As of right under sub-clause (a) or (b) of Article 134(1); or

(ii) On a certificate of fitness granted by the High Court under Articles 132 and
134(1) (c) or

1
Postponement of execution of sentence of death in case of appeal to Supreme Court:- (1) Where a person
is sentenced to death by the High Court and an appeal from its judgment lies to the Supreme Court under
sub-clause (a) or sub-clause (b) of Clause (1) of Article 134 of the Constitution, the High Court shall order
the execution of the sentence to be postponed until the period allowed for preferring such appeal has
expired, or if an appeal is preferred within that period, until such appeal is disposed of.
(2) Where a sentence of death is passed or confirmed by the High Court, and the person sentenced makes
an application to the High Court for the grant of a certificate under Article 132 or under sub-clause (c) of
Clause (1) of Article 134 of the Constitution, the High Court shall order the execution of the sentence to be
postponed until such application is disposed of by the High Court or if a certificate is granted on such
application, until the period allowed for preferring an appeal to the Supreme Court on such certificate has
expired.
(3) Where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that
the person sentenced intends to present a petition to the Supreme Court for the grant of special leave to
appeal under Article 136 of the Constitution, the High Court shall order the execution of the sentence to be
postponed for such period as it considers sufficient to enable him to present such petition.

2
Postponement of capital sentence on pregnant woman- If a woman sentenced to death is found to be
pregnant, the High Court shall order the execution of the sentence to be postponed, and May, if it thinks fit,
commute the sentence to imprisonment for life.
3
Law Commission’s 41st Report, Vol. 1, p. 241, Paragraph 28.2

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 (iii) After obtaining special leave of the Supreme Court under Article 136 of the
Constitution.

In the first case, since the appeal is as of right, it is clearly necessary that execution
should be postponed until the period of limitation for preferring the appeal expires, or, if
an appeal is filed within that period until the appeal is disposed of.

In the second case, it is only if an application for a certificate is made to the High Court
that there is reasonable possibility of the appeal. If such application is made, execution
should be postponed until the application is disposed of. If the certificate is granted, the
possibility of appeal becomes almost a certainty, and the execution should be further
postponed till the period of limitation for preferring an appeal expires. Within that period,
the person sentenced should prefer an appeal and obtain a stay from the Supreme Court.

In the third case, it is sufficient if execution is postponed for such period as would enable
the person sentenced to apply for special leave to the Supreme Court. Within that period,
the person sentenced can apply for special leave and obtain from the Supreme Court
orders for stay of execution.

This new provision is made in order that the appeal to the Supreme Court, if preferred, is
not rendered infructuous and to safeguard the interests of the condemned prisoner who
may ultimately be acquitted or his sentence reduced by the Supreme Court.

Section 416, The High Court is the only judicial tribunal in which the law has vested the
powers to postpone the execution of a sentence of death confirmed by it. 4 This is an
instance of a case contemplated by Section 362 in which the High Court, after signing or
passing the judgment may review or alter the same.

These provisions inordinately lead to delay in the execution of death sentences but the
same cannot be remitted to life imprisonment on this ground alone, as then the sentenced
person would invariably attempt to scuttle the punishment. Therefore, the present
situation is that the delay in execution would be considered only from the time that is
beyond the control of the sentenced individual. This position has evolved after a number
4
Weir 441 Page 1551

3
of conflicting decisions of the Supreme Court. The cases will be analyzed in the
following chapter as they influenced the law in relation the delay in chronological order.

The cases that will be analyzed in this Article follow a chronological pattern. All these
cases show the march of law towards the present judicial position. But, in order to
completely appreciate the present position, it is necessary to introduce the older
conflicting provision.

In T.V.Vatheeswaran v. State of Tamil Nadu5, This case has been overruled twice later and
this ratio does not stand anymore, nevertheless this was an important judgment and seems
logical as well. There was no consideration given to the cause of delay and the
postponement of sentence by the sentenced individual was not considered to be outside
the ambit of delay.

The appellant was the part of a conspiracy to impersonate Customs Officers and then
pretend to question unsuspecting visitors at the city of Madras, to abduct them on the
pretext of interrogating them, administering sleeping pills to the unsuspecting victims,
steal their cash and jewels and finally murder them. The appellant has alleged that he was
kept for about eight years during his trial in illegal solitary confinement and for two years
in remand. Therefore, he claims his right under Article 21 and prays for the remission of
his sentence.

It was held that any delay exceeding two years in the execution of a sentence of death
should be considered sufficient to entitle the person under sentence of death to invoke
Article 21 and demand the quashing of the sentence of death. We therefore accept the
special leave petition, allow the appeal as also the Writ Petition and quash the sentence of
death. In the place of the sentence of death, the Court substituted the life imprisonment.
The important element of this judgment is that they fixed a time limit which defines delay
and therefore, seems to provide logical solution to this inhumane situation. The time limit
was fixed as two years between sentencing and execution.

5
In T.V.Vatheeswaran v. State of Tamil Nadu, AIR 1983 SC 361B

4
The Court began with examining judgments by the Federal Court as well as the Supreme
Court decisions with regard to the matter. The first case discussed was Piaradusadh v.
Emperor6, where the Federal Court of India took into consideration the circumstance that
the appellant had been awaiting the execution of the death sentence for over a year to
alter the sentence to one of transportation for life. Again, in the case of Ediga Annamma
v. State of Andhra Pradesh7, Krishna Iyer and Sarkaria, JJ, observed that “the ‘brooding
horror of hanging’ which has been haunting the prisoner in her condemned cell for over
two years” had an ‘ameliorative impact’ and was “a factor of humane significance in the
sentencing context”. Thereafter the Court went on to examine a number of Indian as well
as foreign decisions in the matter and came to the conclusion that the jurisprudence of the
civilized world, much of which is derived from common law principles and the
prohibition against cruel and unusual punishment in the English Bill of Rights, has
recognized and acknowledged that prolonged delay in executing a sentence of death can
make the punishment when it comes inhuman and degrading.

The most important element of this judgment and its reasoning seems to be the fact that
the Court decided not to consider the factor of the cause of the delay and stated that the
same is immaterial when the sentence is death. Be the cause for the delay, the time
necessary for appeal and consideration of reprieve or some other cause for which the
accused himself may be responsible, it would not alter the dehumanising character of the
delay. Therefore, there appears to be an element of anomaly in this part with regard to the
provisions of Section 415 of the Code. The provision provides for the postponement of
the death sentence for the purpose of appeals but if the same takes more than two years
the sentence must be remitted to one of life imprisonment. Therefore, it seems to give the
sentenced individual an advantage over the law and he can very well circumvent the
proceedings and get his death sentence remitted without much ado.

Sher Singh v. State of Punjab 8,This case overrules the earlier case of T.V.Vatheeswaran
and was presided over by a three judge bench. This case presents the element of the

6
Piaradusadh v. Emperor A.I.R. 1944 FC 1
7
Ediga Annamma v. State of Andhra Pradesh AIR 799 1974 SCR (3) 329
8
Sher Singh v. State of Punjab, AIR 1983 SC 465

5
anomaly as discussed in the earlier analysis and the same appears to have been set right
by the express overruling of the above case. Even this case has since been overruled but
an analysis of the position as changed by this case is imperative in order to study the
effect of delay and the explanation provided to the expression ‘delay’.

The petitioners, Sher Singh and Surjit Singh, and one Kuldip Singh were convicted under
Section 302 read with Section 34 of the Penal Code and were sentenced to death. The
High Court of Punjab and Haryana reduced the sentence imposed upon Kuldip Singh to
life imprisonment but upheld the sentence of death imposed upon the petitioners. A
Special Leave Petition filed by the petitioners against the judgment of the High Court was
dismissed by the Supreme Court. The petitioners then filed a Writ Petition in this Court
challenging the validity of Section 302 of the Penal Code which again was dismissed. A
Review Petition against the dismissal of their S.L.P. was dismissed. The petitioners filed
yet another petition under Article 32 of the Constitution, this time challenging the validity
of Section 34 of the Penal Code which again was dismissed. After failing in these
seemingly inexhaustible series of proceedings, the petitioners filed these two writ
petitions, basing themselves on the decision rendered in Vatheeswaran. This delay
referred to in the instant case is quite clearly due to the inexhaustible waste of time
employed by the petitioners and the effect of the Vatheeswaran case would have been the
condoning of such delaying tactics.

The Court held that, in the instant case, the sentence of death imposed upon the
petitioners by the Sessions Court and which was upheld by the High Court, and the
Supreme Court, cannot be vacated merely for the reason that there has been a long delay
in the execution of that sentence. Therefore, the Court refused to vacate the death
sentence only for the reason of delay and decided to ask the State Government of Punjab
to explain the delay.

The Court began with examining the same Federal Court judgment that was examined in
the case of Vatheeswaran and came to a different conclusion. After going into details
about the case, it was concluded by the Court that the death sentence was commuted to
transportation for life “largely for other reasons”, that is to say, for reasons other than that

6
along delay had intervened after the death sentence was imposed. The Federal Court
commuted the death sentence on the ground that the sentence of transportation for life
was more appropriate in the circumstances of the case. They added that the appellant was
awaiting the execution of his death sentence for over a year. Therefore, Piare Dusadh is
concluded not to be an authority for the proposition that if a certain number of years have
passed since the imposition of a death sentence, that sentence must necessarily, be
commuted to life imprisonment.

Secondly, in the judgment of Ediga Amma the Court was again hearing an appeal filed
against the confirmation of the death sentence and there also the Court took a number of
other factors into consideration like, her being involved into a sex net, and her having a
young son, before commuting the sentence of death to life imprisonment. The Court was
of the opinion that the reason for commutation must not only be delay but must also have
its footing in a number of other factors like the change in essential facts and the
circumstances might have changed essentially. The Court goes on to quote from a
psychological study called ‘Condemned to Die, Life under Sentence of Death’, by Robert
Johnson.

The Court went on to agree with the interpretation provided by Vatheeswaran for Article
21 and has come to the conclusion that a delay in the execution of the death sentence is
indeed tormenting and therefore, there needs to be a mechanism for remitting such
sentences.

The only area of difference is that the Court felt that there could be no hard and fast rule
for determining how much time would be appropriate for constituting delay and this
would definitely not be two years as the same is completely insufficient after due
consideration is provided to the time taken by our Courts in the hearing of appeals and
the corresponding delay in the same.

Therefore, this judgment seems to be more logical and applying the same principles as
envisaged by Vatheeswaran has reached to a more logical and practical conclusion. Even
here the fact that the delay could have been caused by the accused himself is rendered
immaterial.

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Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra9, This case has been
overruled in Triveniben which provides the correct position with respect to this issue and
was presided over by a two judge bench.

The petitioner had been accused of certain cruel and multiple murders and he was
convicted and sentenced to death by the learned Sessions Judge of Thane. The Bombay
High Court confirmed the sentence of death and an appeal preferred by the petitioner to
the Supreme Court under Article 136 of the Constitution was dismissed. The petition for
review was dismissed on and then the petition for clemency was also rejected by the
President of India. The petitioner filed the present writ petition under Article 32 of the
Constitution praying that in view of his tender age, his reformation in jail and the long
lapse of time since the passing of the sentence of death on him, the execution of the
sentence of death may be stopped and the sentence may be commuted to one of
imprisonment for life.

The Court held that in view of the circumstances of the case and the delay, it was within
the power of the Court to vacate the sentence of death and replace it with that of life
imprisonment.

The Court in its reasoning seems to be at odds with the judgment of another bench in the
case of Sher Singh and has attempted to answer some of the queries posed by the three
judge bench by way of this judgment. Though the same is distinguished from the present
matter. On the question of whether two years were enough to complete proceedings or
not, the Court has stated that in most cases involving death sentence, the High Court took
about three months to the maximum and the delay started only when the matter reached
the Supreme Court. Therefore, Justice Reddy exhorted the Supreme Court to devise a
mechanism to dispose of these cases quickly instead of carrying on with the practical
situations which were only inhuman.

The Court here seems to be on a justification mode as it goes on to the extent of

questioning the authority of the three judge bench to overrule a two judge bench decision
as happened in the case of Sher Singh when it overruled Vatheeswaran. Even though the
9
Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 23

8
Court decided no to delve deep into the matter, the bench still has managed to get its
point across by mentioning the same expressly in its judgment.

Triveniben v. State of Gujarat10, This case has settled the question of deciding delay once
and for all and has laid down the correct position with regard to the interpretation of
Article 21 with regard to the delay in execution caused due to unforeseeable
circumstances. It overrules all three of the above judgments and has been delivered by a
five judge Constitutional bench.

The Court commuted the sentence of one Harbhajan Singh to that of life imprisonment on
the grounds of there being inordinate delay.

Undue long delay in execution of the sentence of death will entitle the condemned person
to approach this Court under Article 32 but, this Court will only examine the nature of
delay caused and circumstances ensued after sentence was finally confirmed by the
judicial process and will have no jurisdiction to re-open the conclusion reached by the
Court while finally maintaining the sentence of death. This Court, however, may consider
the question of inordinate delay in the light of all circumstances of the case to decide
whether the execution of sentence should be carried out or should be altered into
Imprisonment for life. No fixed period of delay could be held to make the sentence of
death inexecutable and to this extent the decision in Vatheeswaran's case cannot be said to
lay down the correct law and therefore to that extent stands overruled.

The Court in this case examined four issues which are:

 Delay in execution of the sentence of death

 What should be the starting point for computing this delay?

 What are the rights of a condemned prisoner who has been sentenced to death but
not executed?

10
Triveniben v. State of Gujarat AIR 1989 SC 1335

9
  What could be the circumstances which could be considered alongwith the time
that has been taken before the sentence is executed?

The Court begins to answer the points by assessing all possible options and therefore, this
judgment seems to be an exhaustive study. On the point of the start of the delay and the
point where the death sentence must be considered to have started to torment the prisoner,
the contentions are varied, there is an opinion that once the death sentence has been
granted by the Sessions Judge, the mental element is involved and therefore, time should
be calculated since then, but the Court is of the opinion that this computation must only
start from the date of final verdict by the Supreme Court. The day when all the appeals
and revisions have been finally heard and decided by the apex Court and the death
sentence becomes final.

In case mercy petitions have been applied for, the Court was of the opinion that the Court
must not consider the time taken by the accused in filing the same but, when it comes to
the final disposal of such a petition, the slackness of the executive or any undue delay
would be taken into consideration.

The Court came to the conclusion that the nature of the offence, circumstances in which
the offence was committed will have to be taken as found by the competent court while
finally passing the verdict. It may also be open to the court to examine or consider any
circumstances after the final verdict was pronounced if it is considered relevant. The
question of improvement in the conduct of the prisoner after the final verdict also cannot
be considered for coming to the conclusion whether the sentence could be altered on that
ground also. Therefore, the conduct of the prisoner which was considered a major ground
for commutation of sentence in the case of Javed Ahmed has been considered to be
infructuous in the present case.

Then again, another important feature of the decision of the earlier cases considering the
right of the sentenced individual under Article 21 in case there is delay in judicial
proceedings seems to have been completely rejected in the present judgment. The

10
decision of Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Anr.11 has
been considered and Judiciary is supposed to be outside such a scrutiny of Article 21.

Therefore, the Court has adopted a pragmatic attitude, one not necessarily humane or
favouring the sentenced individual but one that is definitely prone to be twisted and
turned as and when required by the Court.

The position of the condemned as it stands in our country today is quite contrary to the
guarantee of equal protection as envisaged by our Constitution. The present status seems
to be that in case of delay which is caused due to the hectic and lengthy procedure of our
Courts is the death sentence would not be remitted and will be done only in cases of
undue delay and if the same is not caused by the accused himself. The majority of the
Supreme Court judgments recognizes the inhumanness of the delay and has used
grandiose phrases to describe the same, but, none of them seem to have actually thought
about the enormity of convincing oneself and having the belief to be able to pull it off.

The judgment in the case of Sher Singh has considered a psychological study of the
sentenced convicts but does not rely on the same. The study has established that any
attempt to securing life requires a lot of effort from a man condemned to die and if the
same is scuttled by way of delay in the judicial process which is a hallmark of our society
and legal system. The present approach seems bereft of any humanity and a sentenced
convict is bound to live in constant fear of death and in the opinion of Jason Roberts, the
famous psychologist such a torment is worse than getting punished with death.

11
Naresh Shridhar Mirajkar and Ors. Vs. State of Maharashtra and Anr 1967 AIR, 1 1966 SCR (3) 744

11