The stay by the Supreme Court on the execution of eight persons, whose mercy petitions had been rejected by President Pranab Mukherjee, highlights the pressing issue of delays in executions which, in these cases, has ranged from three to 12 years. It is a good question as to whether the deferral in execution should affect the quality of the punishment to be carried out and whether the postponement should result in a lesser punishment being given out, such as life imprisonment. This is a question which faces our Supreme Court and on which it has to decide. Delays are endemic in our system and the Supreme Court has to take into account whether the delays constitute another form of harsh reprimand in addition to the capital punishment. The matter has been agitated in the constitutional courts of other countries as well and a progressive jurisprudence has been slowly emerging. It has been argued that a long delay between the imposition of the death sentence and its actual execution constituted inhuman or degrading punishment. There is the dehumanising factor of prolonged delay in conjunction with the harsh and degrading conditions for prisoners in the condemned section of the holding prison.
As the Supreme Court of California has commented in the case of ‘People vs Anderson’, sentence of death is one thing, sentence of death followed by lengthy imprisonment prior to execution is another. It is cruel, inhuman, degrading and has dehumanising effects. It has been noted that keeping a prisoner facing the agony of execution for an extended period of time is an inhuman act, entitling the prisoner to a remedy, which is the commutation of the death sentence. This point of view has relevance as the death penalty itself is coming to be looked upon as cruel, inhuman and degrading. Death penalty is regarded as a severe affront to human dignity and delays merely aggravate its cruel, inhuman and degrading nature. Delays in the execution of sentence are being seen as a violation of the legal prohibition on cruel, inhuman or degrading treatment or punishment. It has even been acknowledged by some courts that a long delay can create an expectation in a prisoner’s mind that his death sentence has been commuted. These are the various factors that our Supreme Court must keep in mind as it continues to hear petitions on delays and the death penalty. The question of the inhumanity of delays in execution is not unrelated to the very question of the abolition of the death penalty.