The backlog in cases at the Supreme Court has meant that death row inmates in India spend years, even decades, in the shadow of death, while they pursue legal remedies available to them. GAURI ANAND writes about the Supreme Court’s September 1 notification on death penalty case hearings and analyzes the status of the 40 death penalty cases currently being heard by it to underscore the need for structural changes to address delays in the system.

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ON September 1, 2021, the Supreme Court issued a notification stating that 40 death penalty cases were to be listed before three-judge benches of the apex court with effect from September 7. As of the end of September, 11 of these cases have been listed, but none have come to their logical conclusion.

Upon going through the orders in these cases once they arrived at the Supreme Court, we see that even though the Court is cognizant of the fact that death penalty hearings must be concluded in a timely manner, the proceedings are rife with adjournments and delays. These are glaring indications of an overburdened legal system.

Also read: Delhi High Court Women Lawyers Forum Debates Death Penalty

Overburdened courts and their officers 

It becomes evident from perusing the court proceedings that the courts are not the only overburdened components in India’s criminal justice system. With advocates taking on more than they have the bandwidth for, often, despite cases being listed, further adjournments are granted at the cost of the accused or convicted individuals’ time, freedom, and mental health.

The first of the cases in the notification, Bibi Sidhika vs. State of Madhya Pradesh, was brought before the Supreme Court in October 2014. After a few hearings while documentary requirements were being fulfilled, the case was not heard for over two years between 2016 and 2018. It was last adjourned in December 2019, at which time the counsel for the petitioner requested more time. When it was listed this September, it was once again adjourned for over a month.

In the case of Mohd.Arif @ Ashfaq, no proceedings were been recorded between August 2012 and October 2018. When the matter was eventually listed in January 2021, the counsel for the petitioner requested additional time, and was granted six weeks. The matter was also listed twice this September, with the counsel for the petitioner requesting an adjournment both times.

Manoj & Ors vs. State of Madhya Pradesh was first heard in February 2015, when the execution of the death sentence was stayed. No Court proceedings were recorded between August 2016 and March 2019. In February this year, the counsel for the appellants requested six weeks’ additional time when the matter was finally listed. On that occasion, the apex court reiterated that death penalty cases must be heard expeditiously, and granted a two-week adjournment. No proceedings have been recorded thereafter till it was listed this September. It has been part heard, and was to be listed later the same month.

In Chandra Bhushan, even though the case was brought before the Supreme Court in 2013, trial court records were only called for in 2018, and there are no records of arguments in the matter so far. The state of Bihar appealed the decision of the Patna High Court, which had negated a death reference and freed the accused. Thereafter, the counsel for the state failed to file the necessary documents despite multiple opportunities and adjournments, causing a delay of almost five years.

Similarly, in Madan vs. State of UP, multiple adjournments were granted between 2019 and 2020 upon the request of the counsel for the appellant. In Manoj Pratap Singh vs. State of Rajasthan, when the matter was finally listed in September this year, it was once again adjourned as requested by the counsel for the petitioner.

To drive the point home in the most ironically tragic way, in Bhagwani vs. State of MP, the petitioner had passed away in April 2019, but the counsel for the respondent state was still filing vakalatnama at the last recorded hearing in January 2020.

Also read: Death penalty is premeditated murder in the name of society’s ‘collective conscience’

Structural and systemic deficiencies leading to delays

 The delay in hearing death cases in India is also in large part caused by the poorly functioning mechanisms of lower courts. Given the lacuna in proceedings involving the chain of custody of documentation, there is an urgent need to establish a standard operating procedure that functions under the assumption that all judgments will be appealed.

To illustrate, in Mehtab vs. State of Uttarakhand, arguments have still not been possible as original records from the lower courts were yet to be made available. When the matter was listed in September, the amicus curiae was unable to access the original records.

In some cases, even if original documents are sent in a timely manner, translations or digitized copies are delayed, further delaying proceedings before the Supreme Court.

In the case of Sunder @ Sundararajan, the execution of the death sentence was stayed as far back as in March 2013. At the last recorded hearing in February 2020, the apex court was still requesting the lower courts for translations of the original records and documents from the trial.

Even more incredibly, in Karan @ Faitya and in Naveen @ Ajay, when the Supreme Court reminded the Madhya Pradesh High Court to send original records, in both cases, the High Court wrote back stating that the trial court record had already been sent, while the Supreme Court Registry could find no such records.

That Article 348 of the Indian Constitution mandates that all proceedings before the Supreme Court take place in English, was reiterated by the Court in Bhagwani. While waiting for the concerned High Court to comply with the apex court order, however, the petitioner expired in April 2019, a year after his petition was admitted by the latter court.

Structural deficiencies are evident in almost all the cases the Supreme Court has notified. In State of Maharashtra vs. Feroz Abdul Rashid Khan & Anr., the Registry was asked to expedite the transfer of documents in November 2017. The death penalty was finally stayed only in May 2019, after which the Registry stated it would take 60 days to digitize the 1,35,000-page original record pertaining to the 1993 Mumbai serial blasts that killed 250 and injured 700. 28 years later, proceedings continue to be delayed by digitization requirements.

Along a similar vein, in the case involving the 2003 Mumbai blasts accused, one of the three accused, Arshad Ahmad’s appeal was brought before the Court in 2012. After significant delays in filing translated documents, and repeated adjournments, in 2018, the counsels requested continuous hearings, given the subject matter of the case. However, in April 2019, one of the accused passed away, and the matter has continued to be adjourned.

In attempting to minimize the amount of time wasted in procedural delays, perhaps the first step would be to streamline digitization and translation processes at the lower courts right from the trial and appeal stages, rather than to undertake this arduous task in a piecemeal manner at later stages.

There are, perhaps, some exceptions to these prolonged timelines. In Pappu vs. State of Uttar Pradesh, after almost two years of adjournments and other delays, the matter was finally heard this September, and judgement has been reserved.

There is something to be said about a legal system, though, when three years is considered a short duration for a death penalty case to be concluded.

Also read: Death penalty shows just how political in nature the criminal justice system happens to be in India

The details of all 40 cases are enumerated below:

Case No.	Name	Stay of execution/ First listed	Date last heard	Summary of orders before SC	Status after September 1 notification
1	Bibi Sidhika v State of MP	17.10.14	12.12.2019	There were no hearings recorded between August 2016 and November 2018. The matter was last adjourned in December 2019 when the counsel for the petitioner requested time.	Matter adjourned to October 20.
2	Manoj & Ors v State of MP	06.02.2015	10.02.2021	No hearings recorded between August 2016 and March 2019. The counsel for the appellants prayed for six weeks in February 2021, was denied, and granted two weeks.	8th September 2021, a request was made for urgent medical care for the appellant as he was bleeding due to hemorrhoids. The court ordered that the patient be taken to AIIMS and if sufficient care can be provided at the prison, he be moved back. The matter has since been part heard and was listed for September 29.
3	Mohd Arif @ Ashfaq v State (NCT of Delhi)	28.08.2012	Ongoing	No hearings recorded between August 2012 and October 2018. The counsel for the petitioner requested six weeks in Jan 2021.	The counsel for the petitioner requested 2 weeks, and was denied. The matter was listed on September 22, at which time the counsel requested adjournment once again. The matter was thereafter listed on September 28. No orders uploaded
4	Narayan Chetanram Chaudhary & Anr v State of Maharashtra	24.11.2000	Ongoing	The review petition was dismissed in November 2000. No hearings have been recorded between November 2000 and July 2017. The review petition ws later reopened under the Juvenile Justice Act. The counsel for the state requested adjournments, claiming that he hadn’t received instructions. The court observed negligence and lethargy on his part. The matter was then referred to a sessions judge in Pune to decide juvenility. The sessions court found that the petitioner was a juvenile at the time the crime was committed (he was 12 years and six months). The petitioner was released on parole for 7 days to attend his father’s funeral, after which time the matter was adjourned multiple times upon request by the counsels.	The Registry has been directed to list the matter before a 3 judge bench.
5	Manoj Pratap Singh v State of Rajasthan	18.01.2016	10.04.2019	Parole was granted to the petitioner to attend his mother’s funeral ceremony. In April 2019, the senior counsel for the petitioner requested time to study the case. The matter has not been heard therafter until now.	The last hearing on 21st September. The matter was adjourned on request of the counsel for the petitioner.
6	Madan v State of UP	10.08.2017	04.03.2020	Multiple adjournments on request by counsel for the appellant between 2019 and 2020. The matter was to be was to be listed for March 17 2020, but no proceedings have been recorded.	Not listed yet.
7	Sundar @ Sundararajan v State of TN	20.03.2013	28.02.2020	In 2013, no merits were found in the review petition, and it was dismissed. In 2018, the court asked for records on the appellant’s behaviour in jail, education received, medical records, and other relevant information so that the matter could be heard afresh. It held that the order from March 2013 staying the execution would continue to be in force. 10 months later, the court was still awaiting original records from the HC. In Feb 2020, the court was still requesting the HC for translations of documents as they were sent in vernacular languages.	Not listed yet.
8	Irappa Sidappa Murgannavar v State of Karnataka	22.08.2017	29.01.2020	The matter was consistently adjourned upon the request of both counsels. It has not been heard since January 2020.	Arguments heard; reserved for judgement.
9	Rahul v State	20.03.2015	13.04.2021	The matter was adjourned for years (between 21-04.2016 – 31.07.2017) because the counsel for the State did not file an NOC. One of the counsels passed away during this time, and almost a year long gap followed. Eventually, when hearings began, there was an incident in the prison, where the accused-appellant was found intoxicated in his cell. The offenders were punished using means not in accordance with previous court orders and the accused was found to be injured when he appeared in court. Medical examinations were ordered and the prison authorities claimed that CCTV footage was not available. The last adjournment was in April and was prayed for by the advocate representing the SCLSC.	Not listed yet.
10	Prakash Nishad @ Kewat Zinak Nishad v State of Maharashtra	18.01.2016	19.10.2016	The state failed to submit a counteraffidavit between April to October 2016.	Adjourned on request of counsel for petitioner.
11	State of Maharashtra v Feroz Abdul Rashid Khan & Anr	21.11.2017	02.02.2021	The registry was told to expedite the transfer of documents in November 2017. The death penalty was stayed in May 2019. The registry said it would take 60 days to digitize the original record, which contained 1,35,000 pages. The prosecution was originally conducted by the CBI, whose presence the court ordered. The matter was to be listed for July 2021.	Not listed yet.
12	Ashrat @ Arshad Shafiq Ahmad Ansari v State of Maharashtra	28.03.2012	23.01.2020	In July 2012, the Court stated that the execution order would remain stayed. Thereafter, it was stated that the translation of the documents had been completed. However, the counsel for the state requested a further 8 week adjournment in February 2014 and 4 weeks in August 2014 to file translated documents. Arguments finally commenced in January 2015 after multiple adjournment requests. The matter is related to the Bombay blast cases. Therefore, the counsels requested continuous hearings in November 2018. One of the accused passed away in April 2019, after which a number of adjournments followed.	Not listed yet.
13	Rajesh & Anr v State of MP	15.12.2017	14.12.2020	Multiple adjournments throughout the proceedings. In December 2020, the appellant was granted permission to attend his father’s last rites. There have been no recorded hearings since then.	Not listed yet.
14	Mofil Khan v State of Jharkhand Home Dept	24.10.2016	16.09.2019	The matter was inally listed for hearing in April 2019. However, it was adjourned consistently and no orders have been passed.	Listed on October 21.
15	Chotaku v State of UP	06.03.2018	23.08.2018	No hearings throughout 2019.	Hearings adjourned both times.
16	Sonam @ Sonu v State of Haryana	07.09.2018	26.08.2019	There have been no hearings. The proceedings are still in the stage of fulfilling requisite documentary requirements.	Not listed yet.
17	Jaikam Khan v State of UP	08.06.2018	17.03.2021	There have been multiple adjournments on account of notices and translations pending and delayed filing of counter affidavits. At the last hearing, one respondent was still avoiding notice.	Not listed yet.
18	Mehtab v State of Uttarakhand	29.10.2018	28.01.2020	Until the last hearing, the Court was still waiting on original records from the lower courts.	The amicus curiae was unable to access original records.
19	Abdul Nassar v State of Kerala & Anr	04.09.2018	29.11.2019	The court was awaiting records until September 2019. Therafter, in November 2019, counsels were given 4 weeks to file additional documents. No hearings have been recorded after that date.	Not listed yet.
20	Lochan Shrivas v State of Chattisgarh	05.04.2018	20.01.2020	The court was still awaiting original records the High Court in August 2018. Some translated records had still not been received on the last listed date.	Not listed yet.
21	Pappu v State of UP	31.08.2018	30.09.2019	The matter was adjourned various reasons – first, the court was awaiting records from HC, thereafter other documentary requiements remained unfulfilled, and there were requests for adjournments by the counsels.	Hearing concluded. Judgement reserved.
22	Irfan @ Naka v State of UP	08.06.2018	15.07.2019	There have been no hearings. The court is still awaiting HC and trial court original records and translations. At the last hearing, the counsel for the respondent asked for a later date.	Not listed yet.
23	Bhagwani v State of MP	25.08.2018	16.01.2020	The court observed that Article 348 mandates all proceedings in SC take place in English, as observed in Crl Ap No. 1256/2017. It directed HCs to furnish translations. However, the petitioner expired in April 2019.	Not listed yet.
24	Veerendra v State of MP	04.01.2018	21.01.2020	The court observed that in a recent judgment it was observed that in cases where legal aid is assigned to an accused, and death sentence is granted, a senior advocate must be appointed as amicus curiae for legal assistance.	Not listed yet.
25	Munna Pandey v State of Bihar	08.10.2018	22.01.2020	Original records from the lower courts were only received by January 2020. There have been no recorded hearings therafter.	Not listed yet.
26	Bhagchandra v State of MP	09.02.2018	27.08.2018	The last listed hearing was in 2018. There have been no arguments in this matter.	Not listed yet.
27	Dilip Sharma v State of MP	19.01.2016	21.08.2019	The court was waiting original records till October 2017. The matter was only listed twice after that. At the last hearing in August 2019, the matter was adjourned for 4 months, and it was ordered that the depositions of the witnesses were to be translated.	Not listed yet.
28	State of MP v Phoolchand Rathore	03.01.2019	18.06.2020	The accused was aqcuitted by the HC. The state requested a delay for filing spare copies of the SLP at the last recorded hearing.	Not listed yet.
29	State of Bihar v Chandra Bhushan & Ors	12.07.2013	15.01.2019	There were no hearings till 2015; the court was waiting on the issue of notice. One respondent died in April 2015. Thereafter, the counsel for the petitioner failed to file documentation despite multiple opportunities and adjournments. The trial court record was called for only in 2018 and the matter never heard; there were a number of adjournments and orders to list the matter on non miscellaneous days.	Not listed yet.
30	Rabbu @ Sarvesh v State of MP	07.03.2019	13.02.2020	The court was awaiting original records from the HC at the last hearing. Original records from the trial court had been received, but xeroxed, scanned, digitized copy were yet to be received.	Not listed yet.
31	Naveen @ Ajay v State of MP	14.03.2019	13.12.2019	As per the office report, the High Court has written a letter stating therein that the certified copy of the trial court record has been sent. However, according to Registry, the certified copy of the trial court record has not been found.	Not listed yet.
32	Karan @ Faitya v State of MP	01.04.2019	13.12.2019	As per the office report, the High Court has written a letter stating therein that the certified copy of the trial court record has been sent. However, according to Registry, the certified copy of the trial court record has not been found.	Not listed yet.
33	Mahendra Singh Gond v State of MP	12.02.2019	31.01.2020	At the last hearing, the court was awaiting original records from the HC after a DO letter was issued.	Not listed yet.
34	Shahjad Ali @ Ali ur Rehman v State of Uttarakhand	14.03.2019	06.02.2020	The court issued a fresh reminder for records from the lower courts.	Not listed yet.
35	Rajendran v State of Kerala	12.02.2019	02.12.2019	The original records had been received, and the Registry was to process the matter for listing. No hearings recorded.	Not listed yet.
36	Padam @ Parmod & Ors v State of Haryana	04.07.2019	14.10.2019	The service of notice had been completed. The matter was to be processed for listing. A total of two dates have been recorded.	Not listed yet.
37	Chandrabhan Sudam Sanap v State of Maharashtra	09.05.2019	14.02.2020	The court was awaiting original records at the last hearing.	Not listed yet.
38	Bhagwani v State of MP	25.05.2018	16.01.2020	The petitioner passed away in April 2019. The counsels for the respondents were filing vakalatnama at the last hearing in 2020.	Not listed yet.
39	Jasbir Singh @ Jassa v State of Punjab & Ors	23.10.2019	20.01.2021	The matter was transferred to 3-judge bench. The state argued that the Punjab Jail Manual does not have provisions for parole for death convicts. However, the court granted parole to the convict to attend his mother’s last rites. The matter was to be listed for final hearing in December 2020, but the matter has not been concluded.	Not listed yet.
40	Anokhilal v State of MP	10.01.2014	18.12.2019	Section 309(1) CrPC states that trial must be completed within 60 days; in trial court – amicus curiae didn’t appear, a new one was assigned, and charges were framed on the same day; within 2 weeks, the trial court convicted and imposed the death penalty, both on the same day; “Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded.” Appeals as to procedural issues at trial court stage, i.e., substantial appeal disposed of. The matter was to be listed in February 2020 to decide other issues.	Not listed yet.

Also read: The Cruelty of Clemency: Mercy Petitions and the Abolitionist Discourse

A fine balance

 While at one end, we discuss the questions of justice that hearings held in abeyance bring up, Anokhilal vs. State of Madhya Pradesh is a fine example of how a hurried hearing cannot grant justice either. The amicus curiae appointed by the trial court failed to appear at the hearing, at which time, the trial court assigned a new advocate to the position, and charges were framed on the same day. Within 13 days, the trial court had also heard and convicted the accused, imposing the death penalty on the same day the trial was concluded.

At the last hearing of this appeal, the Supreme Court found that “expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the   opportunity to the accused, on which postulates, the entire criminal administration of justice is founded.”

Finding that the trial court had erred in expediting the process to this degree, the Supreme Court concluded its opinion on the procedural issues at the trial court, without prejudicing the issue of merits. No proceedings in the matter have been recorded since December 2019, however, which begs the question of finding the balance between two extremes, to ensure justice is truly served in the end.

Also read: Justice A K Sikri and the Death Penalty

Inordinate delays and the shadow of death

Indian courts continue to hand out death sentences in large numbers each year; in 2020, 77 death sentences were imposed by sessions courts. As of December 31, 2020, India had 404 prisoners on death row, with a total of eight executions in the last 20 years.

The death row phenomenon, a condition that leads to severe physical and mental deterioration, therefore, has immense significance in India, especially given the pathetic living conditions in the country’s prisons.

With the growing backlog of death row cases in India, precedent from the 1950s seems almost inapplicable.  In Mohinder Singh vs. The State, decided in 1950, the Supreme Court held that ordering a retrial would be “unfair to ordinary and settled practice seeing that the appellant has been in a state of suspense over his sentence of death for more than a year.” Today, one year would be a luxury to many who are lucky to have their matter heard once within a year.

Perhaps this is why the apex court’s Vatheeswaran judgement of 1983 that stated that a two year gap between an initial death sentence and the hearing of the case would render the death sentence quashed, was overruled in Sher Singh within a matter of months. In Triveniben (1988), a five-judge Constitution bench went a step further to lay down that no fixed period of delay could be laid down as a cut-off.

Evidently, the Supreme Court’s consideration of delay while commuting death sentences has been inconsistent, to say the least. In Daya Singh (1991), it commuted a death sentence by considering the cumulative time the convict had spent imprisoned, while in Dhananjoy Chatterjee (2004), it went the opposite way and refused to consider delay as a ground for commuting the sentence, even though the delay was attributable to the negligence of State authorities.

In most cases where it is argued that inordinate delay in hearing cases and disposing of mercy petitions amounts to torture, the State has held the position that the delay gives the convict a new lease on life, basically arguing that life on death row is better than death itself.

In January 2020, under pressure to execute the convicts in the 2012 Delhi rape case, the central government approached the Supreme Court seeking modifications to the execution guidelines, arguing that Supreme Court guidelines regarding mercy petitions and execution of death sentence were being misused by convicts.

Ironically, the State demanded that a seven day limit be set within which sentences could be challenged, even while many of the cases the State itself appeals, have been backlogged for years or have had to have delays condoned.

Even though the seven-day limit was not granted, all said and done, the four convicts were executed in March 2020, with the government at the centre treating this as a consolation and victory.

The emerging pattern here appears to be one of general apathy. Lengthy passages of time in the shadow of death have become endemic to the Indian criminal justice system. Many watch their loved ones die or themselves pass away while awaiting a decision.

Also read: An Open Letter to Swati Maliwal in protest against her move for death penalty for rape of minors

In the United States, the prolonged periods of time that individuals remain on death row have been linked to high rates of depression, and more largely, the ‘death row syndrome’. The death row phenomenon has been denounced in many countries, and has been treated as a reason not to extradite individuals to the United States, or to forbear the death penalty altogether.

In contrast to India’s stand on capital punishment, 142 countries have abolished the death row in practice or by law, with many categorizing inordinate delay as cruel, inhuman, or degrading treatment or punishment as described in Article 7 of the International Covenant on Civil and Political Rights.

Perhaps the Supreme Court’s notification of these 40 cases, many of which were brought before it less than five years ago, is an indication of a changing tide. While it would be naïve to hope that these hearings will change the jurisprudence on the constitutionality of the death penalty, one can hope that the Court applies a more humane approach to the proceedings; even the ‘worst of the worst’ have a right to life with dignity.

(Gauri Anand is an environmental lawyer and part of the research and editorial team at The Leaflet. The views expressed are personal.)