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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 88 OF 2015

SHABNAM .....PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. .....RESPONDENT(S)

W I T H

WRIT PETITION (CRIMINAL) NO. 89 OF 2015

O R D E R

A.K. SIKRI, J.

Rule.

2) Ms. Pinky Anand, learned ASG, accepts notice on behalf of Union

of India and Ms. Pragati Neekhra, learned counsel, accepts notice

on behalf of State of Uttar Pradesh.

3) With the consent of the learned counsel appearing for the parties,

we have taken up these petitions for final hearing and propose to

dispose of these writ petitions by this order.

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4) Writ Petition (Criminal) No. 88 of 2015 is filed by Shabnam and

Writ  Petition  (Criminal)  89  of  2015  is  filed  by  National  Law

University, Delhi, espousing the cause of Salim.  Both Shabnam

and  Salim  (hereinafter  referred  to  as,  “the  convicts”)  were

co-accused in a murder case, that was tried against them on the

allegations that  they had committed murders of  seven persons

who  were  the  members  of  Shabnam's  family  during  the

intervening night  of  14th and 15th April,  2008.   They were tried

together and after the trial, the learned Sessions Court returned

with the finding holding them guilty of the said murders, for which

they were charged and pronounced death sentence on both these

convicts vide Judgment and Sentence dated 15.07.2010, subject

to confirmation by the High Court.

5) The High  Court  of  Allahabad confirmed the death  sentence of

both the convicts vide Judgment and order dated 26.04.2013. The

Judgment of the High Court was challenged in this Court and on

15.05.2015, the appeals of the convicts were dismissed by this

Court  as  well,  thereby  confirming  the  conviction  as  well  as

sentence of death imposed on them.

6) The  present  writ  petitions  are  filed  on  the  allegations  that  on

21.05.2015,  death  warrants  have  been  issued  by  the  learned

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Sessions Judge,  which are impermissible inasmuch as various

remedies  which  are  available  to  the  convicts,  even  after  the

dismissal of the appeals by this Court, are still open and yet to be

exercised by them.  It  is submitted that these convicts can file

review petition seeking review of the judgment dated 15.05.2015.

They also have the right to file mercy petitions to the Governor of

Uttar  Pradesh  and  to  the  President  of  India.   In  these

circumstances,  the  execution  of  the  death  warrants  within  six

days of  the dismissal  of  the Criminal Appeals is challenged as

illegal  and  contrary  to  the  provisions  of  Article  21  of  the

Constitution of India.

7) Notice of these petitions was issued to the Union of India as well

as to the State of Uttar Pradesh on 25.05.2015.  Ms. Pinky Anand,

learned ASG, has appeared on behalf of the Union of India and

Ms. Pragati Neekhra, learned counsel, has appeared on behalf of

the State of Uttar Pradesh.

8) Ms.  Pinky Anand,  learned ASG,  has brought  to  our  notice  the

instructions issued by the Ministry of Home Affairs, Government of

India,  which  delineates  the  procedure  regarding  petitions  for

mercy in death sentence cases.  She has referred to the following

portion from the said instructions which impose certain duties on

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the Superintendent of Jail in connection with petitions for mercy

from or on behalf of the convicts in sentence of death, paragraph

(II) thereof reads as under:

“On receipt of the intimation of the dismissal by the Supreme Court of the appeal or the application for special leave to appeal to it lodged by or on behalf of the convict, in case the convict concerned has made  no  previous  petition  for  mercy,  the  Jail Superintendent  shall  forthwith  inform  him  (the convict)  that if  he desires to submit a petition for mercy it should be submitted in writing within seven days of the date of such intimation.”

9) She fairly stated that the death warrants would not be executed

immediately and the procedure laid down as per the aforesaid

instructions of the Ministry of Home Affairs shall be followed.  The

learned counsel for the State of Uttar Pradesh also informed this

Court that after the death warrants dated 21.05.2015 issued by

the learned Sessions Judge were received by the Superintendent

of Jail, the Superintendent of Jail sent these death warrants back

to the learned Sessions Judge pointing out that the warrants were

defective as the date and time of execution of the death sentence

was not affixed thereupon.

10) The learned senior counsel appearing for the petitioners, on the

other  hand,  submitted  that  merely  following  the  procedure  as

contained  in  the  instructions  issued  by  the  Ministry  of  Home

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Affairs  would  not  suffice.   It  was the submission of  Mr. Anand

Grover, learned senior counsel, that this procedure is applicable

in respect of petitions for mercy.

11) On the other hand, in so far as the present case is concerned, the

stage of  petition for  mercy has not  yet  come inasmuch as the

convicts have right to file an application for review in this Court

seeking review of  the Judgment dated 15.05.2015, vide which,

the appeals of both the convicts were dismissed.  He has also

drawn our attention to the Judgment of the Division Bench of the

Allahabad High Court in a matter titled as  Peoples' Union for

Democratic Rights (PUDR) v. Union of India & Ors.1  He has

submitted that in the said case, the High Court has mandated the

following procedure which has to be followed before the execution

of  the  death  sentence.  The  said  portion  from the  judgment  is

extracted below:

“We are affirmatively of the view that in a civilized society,  the  execution  of  the  sentence  of  death cannot be carried out in such an arbitrary manner, keeping  the  prisoner  in  the  dark  and  without allowing him recourse and information.  Essential safeguards  must  be  observed.   Firstly,  the principles of natural justice must be read into the provisions of Sections 413 and 414 of Cr. P. C. and sufficient  notice  ought  to  be given to  the  convict before the issuance of a warrant of  death by the sessions  court  that  would  enable  the  convict  to consult his advocates and to be represented in the

1 PIL No. 57810 of 2014 decided on 28.01.2015

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proceedings.  Secondly, the warrant must specify the exact  date and time for  execution and not  a range of dates which places a prisoner in a state of uncertainty.  Thirdly, a  reasonable period of  time must elapse between the date of the order on the execution warrant and the date fixed or appointed in the warrant for the execution so that the convict will have a reasonable opportunity to pursue legal recourse against  the warrant  and to have a final meeting with the members of his family before the date fixed for execution.   Fourthly, a copy of  the execution warrant must be immediately supplied to the convict.  Fifthly, in those cases, where a convict is not in a position to offer a legal assistance, legal aid  must  be  provided.   These  are  essential procedural safeguards which must be observed if the  right  to  life  under  Article  21  is  not  to  be denuded of its meaning and content.”

12) He  also  pointed  out  that  this  Court  has  laid  down  several

guidelines to  govern  cases involving  capital  punishment  in  the

case of Shatrughan Chauhan v. Union of India & Ors.2  

13) In  the  present  case,  we  find  that  this  Court  pronounced  the

judgment  dated  15.05.2015  confirming  the  death  penalty  and

within six days of the dismissal of the criminal appeals filed by

these  convicts,  the  learned  Sessions  Judge  issued  the  death

warrants  on  21.05.2015.   This  is  clearly  impermissible  and

unwarranted for various reasons, as discussed hereinafter:

(I) First and foremost reason is that the convicts have not exhausted

their judicial and administrative remedies, which are still open to

2 (2014) 3 SCC 1

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them  even  if  their  appeals  in  the  highest  Court  have  failed

affirming the imposition of  death penalty.  Those appeals were

filed via the route of Article 136 of the Constitution.  However, law

gives such persons another chance, namely, to seek review of the

orders so passed, by means of filing of review petition.  It is to

provided under Article 137 of the Constitution. The limitation of 30

days is prescribed for filing such review petitions.  We have to

emphasize  at  this  stage  that  in  case  of  convicts  facing  death

penalty, the remedy of  review has been given high procedural

sanctity.

In  the  case  of  Mohd.  Arif  @Ashfaq v.  Registrar,  Supreme

Court of India & Ors.3, the Constitution Bench of this Court has

laid down that  the review petition in a case of  death sentence

shall be heard in the open court by giving an opportunity to the

review petitioner to make oral submissions, unlike other review

petitions  which  are  decided  by  the  Court  by  circulation  in

Chambers.  Not only this, such a review petition is to be heard by

a  Bench  consisting  of  minimum  three  Judges.   Following

discussion from the said Constitutional Bench judgment will bring

home  the  importance  which  we  are  attaching  to  these  review

petitions:

3 (2014) 9 SCC 737

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“30...A  sentence  is  a  compound  of  any  factors, including the nature of the offence as well as the circumstances  extenuating  or  aggravating  the offence.   A  large  number  of  aggravating circumstances and mitigating circumstances have been  pointed  out  in  Bachan  Singh  v.  State  of Punjab,  (1980)  2  SCC 684,  SCC at  pp.  749-50, paras  202 &  206,  that  a  Judge should  take  into account  when  awarding  the  death  sentence. Again,  as pointed out  above,  apart  from the fact that these lists are only illustrative,  as clarified in Bachan  Singh  itself,  different  judicially  trained minds  can  apply  different  aggravating  and mitigating  circumstances  to  ultimately  arrive  at  a conclusion, on considering all relevant factors that the death penalty may or may not be awarded in any  given  case.   Experience  based  on  judicial decisions  touching  upon  this  aspect  amply demonstrate  such  a  divergent  approach  being taken.  Though, it  is not necessary to dwell upon this aspect elaborately, at the same time, it needs to be emphasized that when on the same set of facts, one judicial mind can come to the conclusion that  the  circumstances  do  not  warrant  the  death penalty, whereas another may feel it to be a fit case fully justifying the death penalty, we feel that when a convict who has suffered the sentence of death and  files  a  review  petition,  the  necessity  of  oral hearing  in  such  a  review  petition  becomes  an integral part of “reasonable procedure”.

31.   We  are  of  the  opinion  that  “reasonable procedure”  would  encompass  oral  hearing  of review petitions arising out of death penalties.  The statement of Justice Holmes, that the life of law is not logic; it is experience, aptly applies here.

32.  The first factor mentioned above, in support of our  conclusion,  is  more  fundamental  than  the second one.  Death penalty is irreversible in nature. Once a death sentence is executed, that results in taking away the life  of  the convict.   If  it  is  found thereafter that such a sentence was not warranted, that would be of no use as the life of that person cannot  be brought  back.   This being so,  we feel that if the fundamental right to life is involved, any procedure to  be  just,  fair  and reasonable  should

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take into account the two factors mentioned above. Tht being so, we feel that a limited oral hearing een at the review stage is mandated by Art.  21 in all death sentence cases.”

Therefore, the right to file Review Petition is a valuable right

given to the convicts who are imposed death penalty.

(II) That  apart,  right  to  file  mercy petitions to  the Governor  of  the

State as well  as to the President of India also remains in tact.

These remedies are also of substance and not mere formalities.

This remedy is again a constitutional remedy as Executive Head

is empowered to pardon the death sentence (this power lies with

the President under Article 72 and with the Governor of the State

under Article 161 of the Constitution).  Thus, power to pardon is a

part of the constitutional scheme which has been reposed by the

people  through the Constitution in  the Head of  the State,  and

enjoys high status.  In exercise of their powers, the President or

the Governor, as the case may be, may examine the evidence

afresh and this exercise of power is clearly independent of the

judiciary.  It is clarified by this Court that while exercising such a

power, the Executive is not sitting as a Court of Appeal.  Rather

power to grant remission of sentence is an act of grace, humanity

in  appropriate  cases,  i.e.  distinct,  absolute  and  unfettered  in

nature (See  Shatrughan Chauhan  (supra)). Even this Court in

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V. Sriharan @ Murugan v. Union of India & Ors.4 observed that

clemency  procedure  under  Articles  72/161  of  the  Constitution

provides a ray of hope to the condemned prisoners and his family

members  for  commutation  of  death  sentence  into  life

imprisonment.   Of course,  in a given case, it  would be for  the

convict  to  make  out  a  justifiable  case  for  remission  of  death

sentence.  However, what is emphasized in the present context is

that this is again a constitutional remedy provided to the convicts

of  death  sentence  and  they  have  a  right  to  avail  this  remedy

which  cannot  be  snatched  by  executing  the  death  sentence

before even giving such convicts a chance or opportunity to avail

the same.  For  this  purpose,  State has to  wait  for  reasonable

period, even after such convicts fail in the review petition, if they

so file.

Otherwise, there would be violation of the famous rhetoric of

Emperor  Ashoka  who  said  'State  should  not  punish  with

vengeance'.

(III)   Article  21  of  the  Constitution  lays  down  that  nobody  shall  be

deprived of his life and liberty except according to the procedure

established  by  law.   After  long  judicial  debate,  it  now  stands

settled  that  the  procedure  established  by  law  has  to  be  'due

4 (2014) 4 SCC 242

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procedure' (See Maneka Gandhi v. Union of India5).  By judicial

interpretation, this Court has read the principle of reasonableness

into the said procedure contemplated by Article 21, holding that it

must  be  'right  and  just  and  fair' and  not  arbitrary,  fanciful  or

oppressive.  Even as per the statute book, this procedure does

not culminate with the dismissal of appeals of the convicts by the

final Court.  No doubt, when an accused is tried of an offence by a

competent court of law and is imposed such death penalty and

the  said  death  penalty  is  upheld  by  the  highest  Court,  the

procedure that is established by law has been followed up to this

stage.  However, in the statutory framework, further procedural

safeguards in the form of judicial review as well as mercy petitions

are  yet  to  be  traversed.   This  would  also  be  covered  by  the

expression 'procedure established by law' occurring in Article 21.

Therefore, till the time limitation period for filing the review petition

and thereafter reasonable time for filing the mercy petition has not

lapsed, issuing of death warrants would be violative of Article 21.

(IV)  There is another facet of right to life enshrined in Article 21 of the

Constitution  which  needs  to  be  highlighted  at  this  juncture,

namely, 'human dignity'.  Article 21 has its traces in the dignity of

human being.  It has been recognized as part of Article 21 of the

5 (1978) 1 SCC 248

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Constitution.  We would like to extract the following passage from

National Legal Services Authority v. Union of India & Ors.6:

“106.   The  basic  principle  of  the  dignity  and freedom of the individual is common to all nations, particularly  those  having  democratic  set  up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method  by  which  we  attempt  to  raise  the  living standard of the people and to give opportunities to every  person  to  develop  his/her  personality. It  is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right  of  a human being to choose  his  sex/gender  identity  which  is  integral his/her  personality  and is  one of  the  most  basic aspect of self-determination dignity and freedom. In fact,  there  is  a  growing  recognition  that  the  true measure  of  development  of  a  nation  is  not economic growth; it is human dignity.”

14) Once we recognize this aspect of dignity of human being, it does

not end with the confirmation of death sentence, but goes beyond

and  remains  valid  till  such  a  convict  meets  his/her  destiny.

Therefore,  the  process/procedure  from  confirmation  of  death

sentence  by  the  highest  Court  till  the  execution  of  the  said

sentence, the convict is to be treated with human dignity to the

extent which is reasonable and permissible in law.

15) This  right  to  human  dignity  has  many  elements.   First  and

foremost, human dignity is the dignity of each human being 'as a

6 (2014) 5 SCC 438

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human being'.  Another element, which needs to be highlighted, in

the context of the present case, is that human dignity is infringed

if a person's life, physical or mental welfare is armed.  It is in this

sense torture, humiliation, forced labour, etc. all infringe on human

dignity.  It is in this context many rights of the accused derive from

his  dignity  as  a  human  being.   These  may  include  the

presumption that every person is innocent until proven guilty; the

right of the accused to a fair trial as well as speedy trial; right of

legal aid, all part of human dignity.  Even after conviction, when a

person is spending prison life, allowing humane conditions in jail

is  part  of  human  dignity.   Prisons  reforms  or  Jail  reforms

measures to make convicts a reformed person so that they are

able to lead normal life and assimilate in the society, after serving

the jail term, are motivated by human dignity jurisprudence.

16) In fact, this principle of human dignity has been used frequently

by Courts in the context of considering the death penalty itself.

Way back in  the year  1972,  the United States Supreme Court

kept in mind this aspect in the case of Furman v. Georgia7.  The

Court,  speaking  through  Brennan,  J.,  while  considering  the

application  of  Eighth  Amendment's  prohibition  on  cruel  and

unusual punishments, summed up the previous jurisprudence on

7 408 US 238 (1972)

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the Amendment as 'prohibit(ing) the infliction of  uncivilized and

inhuman punishments.  The State, even as it punishes, must treat

its  members  with  respect  for  their  intrinsic  worth  as  human

beings.  A punishment is 'cruel and unusual', therefore, if it does

not comport with human dignity'.  In Gregg v. Georgia8, that very

Court,  again  through  Brennan,  J.,  considered  that  'the  fatal

constitutional infirmity in the punishment of death is that it treats

“members of the human race as non-humans, as objects to be

toyed  with  an  discarded.   (It  is),  thus,  inconsistent  with  the

fundamental premise of the clause that even the vilest criminal

remains a human being possessed of common human dignity'.

The Canadian Supreme Court, the Hungarian Constitutional Court

and the South African Supreme Court have gone to the extent of

holding that capital punishment constitutes a serious impairment

of human dignity and imposes a limitation on the essential content

of the fundamental rights to life and human dignity and on that

touchstone declaring that dignity as unconstitutional.

17) In this country, however, since the death penalty has been held to

be constitutionally valid (See Bachan Singh v. State of Punjab9),

we do not have to travel to that extent.  At the same time, even if

death sentence is to be awarded, it has to be in accord with due 8 428 US 153 (1976) 9 (1980) 2 SCC 684

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dignity.  In fact, this element of human dignity is well recognized in

choosing the mode of execution of death sentence with general

consensus that method of execution of death sentence should be

such which is certain, humane, quick and decent.  This was so

stated  in  the  35th Report  of  the  Law  Commission  on  Capital

Punishment  way  back  in  the  year  1967.   Thereafter,  the  Law

Commission of India brought out a consultation paper on 'Mode of

Execution of Death Sentence and Incidental Matters' and made

comparative analysis of hanging, intravenous lethal injection and

shooting as the mode of execution.  While undertaking this study,

the Law Commission also recognized and emphasized standards

of human decency in the following words:

“  The execution of the death sentence by hanging by rope has to be judged with   reference to the objective  factors  such  as  the  international standards  or  norms  or  the   climate  of  the international opinion, modern penological  theories and evolving  standards   of  human decency. The standards  of  human  decency  with  reference  to death   punishment  is  required to be judged with reference  to  various  aspects  which  vary  from society  to  society  depending  on  the  cultural  and spiritual  tradition  of  the  society,  its   history  and philosophy  and  its  sense  of  moral  and  ethical values.  To take  an  example,  if   a  sentence  of cutting off the arm for the offence of the theft or a sentence  of  stoning  to   death  for  the  offence  of adultery  were  prescribed  by  law, as  practiced  in South  Africa,  there  can  be  no  doubt  that  such punishment would be condemned as barbaric and cruel  in  our  country,  even  though  it  may  be regarded as proportionate to the offence and hence reasonable and just  in  some other  countries.  So

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also  the  standards  of  human decency  vary  from time to time even with in the same society. In an evolutionary  society, the  standards  of  human decency are progressively evolving to higher levels and  what was  regarded  as  legitimate  and reasonable  punishment  proportionate  to  the offence  at one  time  may  now  according  to  the evolving standards of human decency, be regarded as  barbaric  and  inhuman  punishment  wholly disproportionate to the offence.”

18) United Nations Economic and Social  Council  (ECOSOC), in its

Economic and Social Council Resolution 1984/50, annex. General

Assembly  Resolution  29/118,  1984,  described  one  of  the

important  standard  and  safeguards  against  the  death  penalty

enunciated  in  safeguard  No.9  as  “where  capital  punishment

occurs it  shall  be carried out so as to inflict  minimum possible

suffering'.  Even this Court, more than quarter century ago, laid

down fourfold test that is to be satisfied in the execution of death

penalty in Deena v. Union of India10.  This quadruple test is:

(i) The act of execution should be as quick and simple as possible

and free from anything that unnecessarily sharpens the poignancy

of the prisoner's apprehension.

(ii)   The  act  of  the  execution  should  produce  immediate

unconsciousness passing quickly into the death.

(iii) It should be decent.

(iv) It should not involve mutilation.

10 (1983) 4 SCC 645

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19) We  can  also  draw  sustenance  from  another  judgment  of  this

Court in the case of Sunil Batra v. Delhi Administration & Ors.11

Though  in  the  context  of  jail  conditions  for  those  prisoners

sentenced to death, the Court held that putting them in solitary

confinement was impermissible and provision to this effect was

unconstitutional  and violative of  a prisoner's fundamental  rights

under Article 21, 20(2), 19 and 14 of the Constitution.  The Court

held that prisoner in jail still retains his fundamental rights.  In the

eternal words of Justice V.R. Krishna Iyer in the said judgment:

“And in our constitutional order it is axiomatic that the prison laws do not swallow up the fundamental rights of the legally unfree, and, as sentinals on the qui-vive,  courts  will  guard  freedom  behind  bars, tempered, of course, by environmental realism but intolerant  of  torture  by  executive  echelons.   The policy  of  the  law  and  the  paramountcy  of  the Constitution are beyond purchase by authoritarians glibly  invoking  'dangerousness'  of  inmates  and peace  in  prisons”.   It  is  so  obvious  that  the aforesaid ageless message has its root in human dignity  which  has  to  be  preserved  even  when  a prisoner is sentenced to death.”

20) Thus,  we hold  that  condemned prisoners  also  have  a  right  to

dignity and execution of death sentence cannot be carried out in a

arbitrary, hurried and secret manner without allowing the convicts

to exhaust all legal remedies.

11 (1978) 4 SCC 494

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21) We  find  that  the  procedure  prescribed  by  the  High  Court  of

Allahabad in  PUDR's  case (supra) is in consonance with Article

21 of the Constitution.  While executing the death sentence, it is

mandatory to follow the said procedure and it is also necessary

for the authorities to keep in mind the guidelines contained in the

judgment of this Court in Shatrughan Chauhan's case (supra).

22) Since  we  find  that  the  death  warrants  were  signed  by  the

Sessions Judge in a haste, without waiting for the exhaustion of

the aforesaid remedies on the part of the convicts, the same are

hereby quashed and set aside.

23) We direct the respondents to follow the procedure, particularly the

five steps,  which are already extracted above,  as contained in

PUDR's case (supra) passed by the High Court of Allahabad, for

executing the death sentence.

24) We make the Rule absolute.  These writ petitions are allowed in

the aforesaid terms.

.............................................J. (A.K. SIKRI)

.............................................J. (UDAY UMESH LALIT)

NEW DELHI; MAY 27, 2015.

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