Comparative Analysis of the Phenomena of Death Row and its Unconstitutionality

By Naveen Kumar Gautam, RMLNLU

‘Editor’s Note: Death Row phenomenon is an attribute of the long and slow infamous trials of Indian judiciary. It is a new phenomenon which throws light upon the double punishment a death sentence convict has to undergo. It talks about the duration of days a convict has to wait before the execution of his sentence and the consequential circumstances and the trauma which a convict has to suffer simultaneously. It increases with the unnecessary delay in trial. In our country where the conditions of jail are also pathetic this merely adds to the problem and gives birth to a different phenomenon known as Death Cell. This is well explained by the Supreme court in the case of Maneka Gandhi v Union of India it states that “…Even though the offence of murder is proved and the accused is sent to jail, it is the duty of the Court to ensure that the deprivation of liberty is accompanied by curative strategy and human dignity. Article 21 is the jurisdictional root for this legal liberalism….” This is also recognized by various international bodies, like Article 3 of ECHR [31], Article 10 of ICPPR etc. Therefore the probable solution seems to be providing all the rights to the prisoners which are not being curtailed by sentencing them or keeping them in custody.’


 It’s a cemetery that continues to grow every year with those that are not quite dead, but surely not alive.

“Playing God is playing with fire” [1] and we have opted to play with fire. At present, more than two third countries of the world have abolished death penalty in law or practice. [2] The present trend is towards abolition of death penalty, which is not prohibited by the ICCPR [3] or any other virtually universal international treaty. [4]

In the nations retaining capital punishment, delay in execution is generally and usually measured in years[5] and India is not an exception. [6] A new legal doctrine called the “Death Row Phenomenon” is emerging for the persons who challenge the legitimacy of death penalty. This is an indirect attack by the persons facing capital punishment on the system. The basic argument is that the execution after a prolonged and inordinate delay under the harsh conditions of death row constitutes cruel and inhuman punishment, thus the execution becomes unconstitutional.

The aim of the authors is not to challenge the constitutionality of death sentence but its execution after cruel and torturous period of delay. It is the agonizing delays prior to the execution that will be called into question as a violation of human rights and hence unconstitutional. The first part of the paper explains the death row phenomenon and its debilitating effects. The second part deals with its domestic and international acceptance, plus, the solution needed.

Part I: Death Row Phenomenon

The vilest deeds, like poison weeds, Bloom well in prison air;

It is only what is good in Man That wastes and withers there” [7]

The Death row phenomenon is used to describe detrimental and noxious effect of death row conditions [8]. Death row [9] is the duration under which the offender lives in jail while waiting for death i.e. execution of death sentence, depending upon the system this duration can vary from months to years. It is the inordinate and unreasonable delay which is the moot point, which is caused due to particularly three main reasons, [10]

  1. Delay entirely due to the fault of the prisoner (escape from custody, frivolous appeals);
  2. Delay caused by prisoners legitimate appeals;
  3. Delay cause by the State.

The first type of the delay cannot be a cause to benefit the inmate itself; it goes against established principle of nullus commodum capere potest de injuria suapropria. [11] It is the second and third type of delay which may amount to cruel and torturous punishment. However, the third type of delay is easy to deal with; if the state is causing delay then it shall be held responsible for it. The predicament arises in the second case which is also termed as attribution of delay to the prisoners itself; the prisoner by making appeal is responsible for causing delay therefore delay cannot be unconstitutional. The question to be answered here is, can the prisoner rely on the delay caused by his legitimate appeals, the Privy Council answered affirmatively by putting the burden of concluding appeals on the State. [12] Moreover, the death row phenomenon must not become established as a part of our jurisprudence [13] as it is leading people to think that whether death penalty should be abolished altogether. [14]

The delay cannot be attributed to the prisoner because it is the basic instinct of the humans to live or to struggle for life rather than death. One cannot blame the prisoner for this, as long as there is hope for life; prisoner is expected to pursue that hope, even in the face of continued cruelty. In the words of the ECHR [15]

Just as some lapse of time between sentence and execution is inevitable, if appeals are to be provided to the condemned person, so it is equally part of the human nature that the person will cling to the life by exploiting those safeguards to the full…the consequence is that the prisoner has to endure for many years, the conditions on death row, anguish and mounting tension of living in the ever-present shadow of death.

The prisoner will always opt for life rather than death; it is innate human quality to survive because humans don’t know what it would be like after death, what the new world be like, it is better to remain on earth.

 Debilitating Effect of Death Row Phenomenon

The dehumanizing condition of jail will surely make anybody mad and this has been aptly described by the pitiless poem of Oscar Wilde. [16]

Each narrow cell in which we dwell, Is foul and dark latrine,And the fetid breath of living Death chokes up each grated screen,And the bitter bread they weigh in scales, Is full of chalk and lime,And Sleep will not lie down, but walks, Wild-eyed and cries to Time.

 The death row prisoner lives under an ever-present shadow of death and mounting anguish of awaiting execution, with much of this time spent not knowing when the execution would take place. It has been universally recognized that a condemned person has to suffer a degree of mental torture even though there is no physical mistreatment and primitive torture, as between funeral fire and mental worry; it is the latter which is more devastating, for funeral fire burns only the dead body while the mental worry burns the living one. [17] Justice Krishna Iyer [18] aptly stated on debilitating effect of death cell phenomenon “…He must, by now, be more a vegetable than a person and hanging a vegetable is not death penalty…” The Supreme Court accepted that inordinate delay is torturous and in dehumanizing condition of the prison, prisoner’s condition would surely deteriorate and debilitate, which is an accepted notion [19]

The learned Sessions Judge, Jhansi had visited the said convict, Gyasi Ram, in jail, and had sent a report stating that Gyasi’s mental state is such that he might commit suicide by hanging his head on the iron grill of his cell if a decision on his petition is not taken soon.

The psychological torture brutalizes and degrades human spirit. For example, the reaction of death row inmates has been found to be similar to those of terminally ill patients, but further exacerbated due to physical conditions of cellular confinement. Such conditions have been described as ‘an austere world in which condemned prisoners are treated as bodies alive to be killed.’ [20] The death row phenomenon tortures the human spirit, thus the consequential question is whether it affects the legality and constitutionality of the execution of death sentence. This is the fundamental question which the authors will focus in the second part of this paper.

PART II: Delay in Execution of Death Penalty

Does Render it Unconstituional

Waiting to Die, Dying to Live

Indian Position

The question whether delay in execution will render it to be unconstitutional is cropping up on account of recent cases of Devender Bhullar [21], former PM Rajiv Gandhi’s killers [22]and the most popular one of Afzal Guru [23].

Delay can render execution unconstitutional if the delay being inordinate and not attributable to the conduct of the condemned, execution in such circumstances constitutes cruel, inhuman and unusual punishment, which is against the very basic scheme of the Constitution. The prisoner, under Article 32, has a fundamental right to move the Supreme Court in case of excessive delay, which is an established rule after Smt. Triveniben v. State of Gujarat [24]

“It is well-settled now that undue long delay in execution of death sentence would entitle the condemned person to approach this Court or to be approached under Article 32 of the Constitution, but this Court would only examine the nature of delay caused and circumstances that ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to reopen the conclusions reached by the Court while finally maintaining death sentence. But the court is entitled and indeed obliged to 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.”

Thus in Maneka Gandhi v. Union of India [25], the Apex Court said

            “…Even though the offence of murder is proved and the accused is sent to jail, it is the duty of the Court to ensure that the deprivation of liberty is accompanied by curative strategy and human dignity. Article 21 is the jurisdictional root for this legal liberalism….”

The convicts are not, by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess. The compulsion under the authority of law, following upon a conviction to live in a prison entails by its own force the deprivation of fundamental freedom. Likewise, even a convict is entitled to the precious right guaranteed under Article 21. [26] Articles 14, 19 and 21 sustain, strengthen and nourish each other. They are available to prisoners as well as free man. Prison walls do not keep out Fundamental Rights. A person under death sentence may also claim Fundamental Rights. The fiat of Article 21 entails just, fair and reasonable procedure. It implies a right to a speedy trial [27]. It implies humane conditions of detention, preventive or punitive. ‘Procedure established by law’ does not end with the pronouncement of sentence. And includes the carrying out of sentence, to hold that prolonged detention to await the execution of a death sentence is an unjust, unfair and unseasonable procedure and the only way to undo the wrong is to quash the death sentence. [28]

The Supreme Court recently in State of Punjab v. Dalbir Singh [29] cited a Uganda case[30] on the point that “delay in execution is a cruel, inhuman and degrading treatment.

The conferment of the fundamental right to move the Supreme Court under Article 32 shows that prolonged undue delay in the execution is a violation of prisoners transcendental, inalienable and primordial rights and it is due to arbitrary action of the executive, therefore, delay is clearly in contravention to Article 14 and 21; hence the only remedy available is to declare the execution unconstitutional and quash the death sentence.

 International Position

Article 3 of ECHR [31]

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

In the case of Soering v. UK [32], an arguably broader approach was taken where:

“the Court unanimously declined to extradite Soering, stating that to do so would cause “the condemned prisoner to  endure  for  many  years  the  conditions  on  death  row  and  the  anguish  and 7mounting  tension  of  living  in  the  ever-present  shadow  of  death.”[33]

Soering’ case has been recognized in the case of Catholic Commission For Justice and Peace, Zimbabwe v. Attorney General, Zimbabwe”[34], Chief Justice Gubbay, with consent of  the other Supreme Court judges sitting as a constitutional court, stated that the delayed execution of prisoners and degrading conditions, under which they were held, was unconstitutional and ruled that their death sentences be commuted to life imprisonment because the delay in carrying out their sentences of death violated the constitutional ban on inhumane and/or degrading punishment contrary to Section 15(1) of Zimbabwe’s Constitution.

The convicted persons said the delay in disposal of the mercy petitions had given them hope that they may be given an opportunity to live and putting aside their agony and shadow of death, equipped themselves educationally so as to be useful to society and to our families.

Article 10 of ICCPR [35]

“All  persons deprived  of  their  liberty  shall  be  treated  with  humanity  and  with  respect  for  the  inherent dignity of the human person”.

In the case of Kelly v. Jamaica [36],  where  the  Committee  held  that  the  harsh  conditions experienced  on  death  row  in Jamaica,  particularly  those  relating  to  medical  care,  did  violate Article 10.

 Article 7 

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”

In the case of Kindler v. Canada [37], the Court while examining Article 7 actually recognized the existence of death row phenomenon. [38]

Finally in the case of “Francis v. Jamaica” [39], violations of both Articles 7 and 10  were  found  due  to  sub-standard  conditions  on  death  row,  including  the  fact  that  the prisoner  was  regularly  beaten  and  ridiculed,  and  the  fact  that  his  mental  condition  had deteriorated  so  much  that  he  no  longer  behaved  as  a  normal  human  being.

In Pratt v. Attorney General of Jamaica [40], the Privy Council acknowledged “the existence of death row phenomenon” and held that due to a fourteen year delay that executing a man after this time would amount to torture while criticizing the delay experienced between sentence and execution stating it to be inhuman. Following the Pratt’s case, it can be argued that similar practices taking place in US could amount to a violation of the Eighth Amendment [41].

In Riley v. Attorney General for Jamaica [42], which preceded Pratt’s case, Lord Scarman expressed his minority  view, ‘Indeed,  there is  a  formidable  case  for  suggesting  that  execution after inordinate delay would have infringed the prohibition against cruel and unusual punishments to be found in Section 10 of the Bill of Rights, 1689’. Also this was subsequently affirmed by Pratt’s case.

When  looking  at  the  standards  which  international  conventions/covenants  impose,  it  is worth  noting  that  these  principles  are bare  minimum,  and  so  signatory  states  should endeavor  to  provide  much  better  containment  conditions  for  those  under  its  authority.

Importance of Public Confidence

It also becomes important to discuss it because “public opinion” has always played a significant role in administration of criminal justice. The executive has a duty to be fair and quick. Delay defeats justice and tends to lessen the deterrent effect of capital punishment and undermines the integrity of the entire criminal-justice system” which ultimately shakes public’s confidence.”However this delay may be characterized, it hardly inspires confidence in the public, for our criminal justice system” [43] Take for eg. the instance when the families of the eight security personnel slain in the attack on the Parliament, collectively returned the gallantry medals to the President, protesting against the delay in the execution of the main accused Mohammed Afzal. [44]

To the lay citizen who wants to see some visible evidence of justice being done in the case of horrendous crimes, excessive delay in execution seem inexplicable. But it is not so easy to lay down iron clad rules to prevent them. People administering criminal justice have to balance and understand the fact that excessive delay cannot be justified in any way.

Furthermore, it is well established that public knowledge of crime and justice is largely derived from the media as it gives firsthand knowledge [45] and plays a key role in the public’s perception of criminals, victims and those who work within the criminal-justice system. [46]Therefore it is necessary to maintain public confidence by preventing unnecessary delay as media has the habit of sensationalizing everything, which will be a blot on the system; whose job is to provide justice, denial of which renders the whole system meaningless. So preserving public confidence should be the paramount objective and hence delay caused must be held unconstitutional. This is not, however, an argument for hastening executions, as that reduces the possibility of adequate appeal or of evidence of possible innocence of the prisoner to emerge and even violate fair trial standards but unnecessary and excessive delays ought to be stopped as it can single-handedly shake the system.

Probable Solutions

Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.[47]

It becomes paramount that the prisoner should get a right to access Supreme Court under Article 32 against arbitrariness of the Executive and violation life & personal liberty, which makes it the most plausible and possible solution that can be provided.

No institutional framework can be established to deal with delay as it’s nor practically feasible. But what can be done is that the Supreme Court can rule that (may be in one of the delay petitions [48] being heard right now), the mercy petitions should normally be decided approximately in this much time which will set a benchmark for mercy petitions and all other remedies to be completed near about that time.  For example an amendment made in Article 72 & 161[49], thereby inserting a clause that the power should be exercised within reasonable time and delay, if caused, should be explained with reasons.

Article 39-A [50] provides for justice to be accessible to all, hence it becomes duty of the State to provide for adequate legal support to these humans who are now not really humans on account of such long and undue delay.

NGOs are considered a real force today [51] with their social and political impact on the system; they can act as a possible solution to this delay problem wherein they can focus their attention on such issues which will surely have more drastic consequences than are already seen.


Extreme delays in the imposition of death sentences, the deplorable conditions on death row and the anxiety created by the threat of one’s own imminent death are inflicting a great psychological pressure and trauma on death row inmates; so the wait times amount to prisoners getting two distinct punishments; the death sentence and the death cell phenomenon. Thus we can definitely conclude that delay in execution does make it unconstitutional as death row inmates, attuned to the bitter irony of their predicament, characterize their existence as a living death and themselves as the living dead. Hence eradicating this menace of excessive delay in execution is very necessary as these delays just makes the agony worse, not to mention the fact that in the process, justice is not seem to be done. The country is not abolishing capital punishment, and on top of that there is delay in carrying out the sentences. So basically, they are doing nothing i.e. neither they are creating a culture of compassion nor deterring anyone. So it shows the total failure of the system.

Formatted on 15th March 2019.


[1]Bryan Horrigan, Adventures in Law and Justice, Universal Law Publishing Co., 2003.

 [2] Sourced from: (Last visited March 23, 2012)

 [3]International Covenant on Civil and Political Rights, December 16, 1966, 999 UNTS 171. (entered into  force on  23 March, 1976)

[4]There are a number of instruments in force with fewer states parties that do abolish capital punishment. These include: the Second Optional Protocol to the International Covenant on Civil and Political Rights (60 ratifications, 7 signatures); the Protocol to the American Convention on Human Rights to Abolish the Death Penalty (eight ratifications, one signature); Protocol number 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (45 ratifications, one signature); Protocol no. 3 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (38 ratifications, 6 signatures).  Others strictly limit the death penalty, including: the Convention on Human Rights and Fundamental Freedoms of the Commonwealth of Independent States (22 parties); the American Convention on Human Rights (24 ratifications, 1 signature); and the Arab Charter on Human Rights (22 states). Similarly, international customary law does not prohibit the death penalty at the current time, but custom is rapidly changing towards a position in favour of worldwide abolition. International Bar Association, ‘The Death Penalty under International Law: A Background Paper to the   IBAHRI Resolution on the Abolition of the Death Penalty’, May 2008.

[5]Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Human Right under International Law?, 11 EJIL (4) 833, (2000). Sourced from: (Last visited March 26, 2012)

 [6] Bachan Singh v. State Of Punjab, AIR 1980 SC 898.

 [7] (Last visited March 24, 2012)

 [8]Oscar Wilde, “The Ballad of Reading Gaol”. See also Rajendra Prasad Etc. v. State Of Uttar Pradesh, AIR 1979 SC 916

 [9]  Sunil Batra v. Union of India, AIR 1978 SC 1675.

 [10] Khowaj Ali Barbhuiya v. State of Assam, (1986) 3 Crimes 87. In India it is also called as Death Cell see Madhu Mehta v. Union of India, AIR 1989 SC 2299(2300).

 [11]Caycie D Bradford, Waiting to die, Dying to Live. Sourced from: visited March,) 27 2012

 [12] Patrick Hudson, id at 850.

 [13]No one shall benefit from his own wrong; Riggs vPalmer, 115 N.Y. 506 (1889).

 [14]Pratt v. Attorney General of Jamaica [1994] 2 A.C. 1; Patrick Hudson Supra note 5 at 850.


 [16]Soering v. United Kingdom (1989) 11 EHRR 439.

 [17]The Ballad of Reading Gaol.Sourced from: (Last visited March 26, 2012).

 [18]Madhu Mehta v. Union of India, AIR 1989 SC 2299 ; see also Khem Chand v. State, 1990 CriLJ 2314; 40(1990) DLT 168.

 [19]Rajendra Prasad v. State of Uttar Pradesh, AIR 1979 SC 916.

 [20]Supra note 17.

 [21] Dr. Karen Harrison & Anouska Tamony, Death Row Phenomenon, Death Row Syndrome and their affect on Capital Cases In The US, International Journal of Criminology, 2010.

[22]Available at:

 [23] Vishwa Mohan, If Rajiv’s killers escape gallows, so may 21 others on death row, The Times of India, September 1, 2011. Available at: (Last Visited 22nd March, 2012).

 [24][1989] 1 SCC 678.

 [25][1978] 2 S.C.R. 621.

 [26]Article 21 of the Constitution of India, 1950

 [27]Hussainara Khatoon v.The State of Bihar, [1979] 3 SCR 169.

 [28]T.V. Vaitheeswaran v. State of Tamil Nadu, [1983] 2 SCR 348.

[29]The Constitutional court in Susan Kigula& 416 others v. A.G, [2005] UGCC 8

 [30]Rome European Convention on Human Rights, art.3, September 3, 1953, 4.XI.1950. Sourced from: (Last visited March 22, 2012)

 [31]1993 (4) SA 239 (Zimbabwe Supreme Court)

 [32]International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)

 [33]No.253/1987, UN Doc. A/46/40  241 (1991)

 [34]Comm.  No.  470/1991, U.N.  Doc. CCPR/C/48/D/470/1991 (1993)

 [35]Cox v.  Canada, Communication No. 539/1993, U.N. Doc. CCPR/C/52/D/539/19930. (1994).

 [36]No. 606/1994), UN Doc. CCPR/C/54/D/06/1994 (1995).

 [37] [1994] 2 A.C. 1.

 [38] Available at (Last visited 27th March, 2012.)

 [39] (1983) 1 A.C. 719.

 [40]W. John Moore, Death Row Delays, 21 The National Journal, (1989) at 768.

 [41]Shyam Lal Yadav, Hanging In The Middle, India Today, December 6, 2006 Available at: (Last Visited 25th March, 2012)

 [42]J.V. Roberts & M. Hough, Understanding Public Attitudes to Criminal Justice, Milton Keynes: Open University Press, 2005

 [43]Ian Marshal& Gaynor Melville, Crime, Justice and the Media, Routledge New York, 2009

 [44]Caycie D. Bradford, Supra note 9


 [46]Article 72 & 161 of the Constitution of India

 [47]Article 39-A of the Constitution of India

 [48]Dr Manjulata , Changing  Role of NGOs in 21st Century, Jagat Prakashan, Mahaveer and Sons: Publishers and Distributors, 2007

 [49] (Last visited March 27, 2012)

 [50] Hemchhaya De, Thereby Hangs A Tale, The Telegraph (India), September 7, 2011. Available at:

 [51] 1989 11 E.H.R.R. 439.

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