Discuss the constitutional validity of clause (5) to Section 354.

Question: Discuss the constitutional validity of clause (5) to Section 354.

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Answer

Capital sentences are passed by Sessions Judges subject to confirmation by the High Court.

Clause (5) to Section 354 states that “When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”

The validity of clause (5) of this section was challenged on the ground that it was violative of Article 21 of the Constitution as being prescriptive of cruel punishment.

The Supreme Court, however, held in Deena @ Deena Dayal Etc. Etc v. Union Of India And Others [1983 AIR 1155] that the section was valid. It was held that execution of the death sentence by hanging by the neck as provided in clause (5) of section 354 was not violative of Article 21 of the Constitution.

It has been held by the Supreme Court that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty, the circumstances of the offender are also required to be taken into consideration along with the circumstances of the crime for the reason that life imprisonment is the rule and the death sentence is an exception.

The penalty of death sentence may be warranted only in a case where the Court comes to the conclusion that life imprisonment is totally inadequate in the circumstances of the case. Thus, for awarding the death sentence, there must be the existence of aggravating circumstances and the consequential absence of mitigating circumstances as held in Raj Kumar v. State of MP, 2014 Cr LJ 1943 (SC). In awarding the death sentence, discretion lies with the Court; hence, no norms can be laid down.

However, it has been held by the Supreme Court in V. Sriharan v. Union of India, AIR 2014 SC 1368 (Three-Judge Bench) that prolonged delay in execution of death sentence due to delay in disposal of mercy petition renders the process of execution of the sentence arbitrary, whimsical and capricious and, therefore, are in executable. It has been further held that prolonged delay in execution, by itself gives rise to mental suffering and agony. There is no obligation on the convict to demonstrate suffering occasioned by such delay as a pre-requisite for commutation of the death sentence.

When the above judgment was passed on 18 February 2014, the Tamil Nadu Government issued a letter dated 19 February 2014 whereby it proposed to remit the sentence of life imprisonment of the convicts of the Rajiv Gandhi Assassination case, whose death sentences were commutated by the above judgment dated 18 February 2014. The Union of India filed a criminal writ petition under Article 32 for quashing the letter dated 19 February 2014 issued by the Tamil Nadu Government.

A three-Judge Bench of the Supreme Court held in Union of India v. V. Sriharan, (2014) 11 SCC 1 that all the issues raised in the case are of utmost critical concern for the whole country, as the decision on these issues will determine the procedure for awarding sentences in the criminal justice system. The Bench framed seven questions and directed the writ petition to be placed before Constitution Bench for consideration.

In Ajay Kumar Pal v. Union of India, AIR 2015 SC 715 (Three-Judge Bench) a case of death sentence within three years of the award of the death penalty, the sentence attained finality. But his mercy petition remained pending for more than three years and ten months and during this period, he was kept in solitary confinement. It was held by the Supreme Court that the delay in the disposal of the mercy petition can be said to be inordinate.

A condemned prisoner is never segregated till the disposal of his mercy petition. Thus, keeping the prisoner under segregation for such a long period is a complete transgression of the rights under Article 21. Hence, the Supreme Court commuted the sentence to one of life imprisonment.

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