SHATRUGHAN CHAUHAN & ANR. Vs UNION OF INDIA & ORS.
Bench: P SATHASIVAM,RANJAN GOGOI,SHIVA KIRTI SINGH
Case number: Writ Petition (crl.) 55 of 2013
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 55 OF 2013
Shatrughan Chauhan & Anr. .... Petitioner (s)
Versus
Union of India & Ors. .... Respondent(s)
WITH
WRIT PETITION (CRIMINAL) NO. 34 OF 2013 WRIT PETITION (CRIMINAL) NO. 56 OF 2013 WRIT PETITION (CRIMINAL) NO. 136 OF 2013 WRIT PETITION (CRIMINAL) NO. 139 OF 2013 WRIT PETITION (CRIMINAL) NO. 141 OF 2013 WRIT PETITION (CRIMINAL) NO. 132 OF 2013 WRIT PETITION (CRIMINAL) NO. 187 OF 2013 WRIT PETITION (CRIMINAL) NO. 188 OF 2013 WRIT PETITION (CRIMINAL) NO. 190 OF 2013 WRIT PETITION (CRIMINAL) NO. 191 OF 2013 WRIT PETITION (CRIMINAL) NO. 192 OF 2013 WRIT PETITION (CRIMINAL) NO. 193 OF 2013
J U D G M E N T
P.Sathasivam, CJI.
1) Our Constitution is highly valued for its articulation.
One such astute drafting is Article 21 of the Constitution
which postulates that every human being has inherent
right to life and mandates that no person shall be deprived
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of his life or personal liberty except according to the
procedure established by law. Over the span of years, this
Court has expanded the horizon of ‘right to life’
guaranteed under the Constitution to balance with the
progress of human life. This case provides yet another
momentous occasion, where this Court is called upon to
decide whether it will be in violation of Article 21, amongst
other provisions, to execute the levied death sentence on
the accused notwithstanding the existence of supervening
circumstances. Let us examine the supervening
circumstances of each individual case to arrive at a
coherent decision.
2) All the above writ petitions, under Article 32 of the
Constitution of India, have been filed either by the
convicts, who were awarded death sentence or by their
family members or by public-spirited bodies like People’s
Union for Democratic Rights (PUDR) based on the rejection
of mercy petitions by the Governor and the President of
India.
3) In all the writ petitions, the main prayer consistently
relates to the issuance of a writ of declaration declaring
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that execution of sentence of death pursuant to the
rejection of the mercy petitions by the President of India is
unconstitutional and to set aside the death sentence
imposed upon them by commuting the same to
imprisonment for life. Further, it is also prayed for
declaring the order passed by the Governor/President of
India rejecting their respective mercy petitions as illegal
and unenforceable. In view of the similarity of the reliefs
sought for in all the writ petitions, we are not reproducing
every prayer hereunder, however, while dealing with
individual claims, we shall discuss factual details, the
reliefs sought for and the grounds urged in support of their
claim at the appropriate place. Besides, in the writ petition
filed by PUDR, PUDR prayed for various directions in
respect of procedure to be followed while considering the
mercy petitions, and in general for protection of rights of
the death row convicts. We shall discuss discretely the
aforesaid prayers in the ensuing paragraphs.
4) Heard Mr. Ram Jethmalani, Mr. Anand Grover, Mr. R.
Basant, Mr. Colin Gonsalves, learned senior counsel and
Dr. Yug Mohit Chaudhary, learned counsel for the
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petitioners and Mr. Mohan Parasaran, learned Solicitor
General, Mr. L.N. Rao, Mr. Siddharth Luthra, learned
Additional Solicitor Generals, Mr. V.C. Mishra, learned
Advocate General, Mr. V.N. Raghupathy, Ms. Anitha
Shenoy, Mr. Rajiv Nanda, Mr. C.D. Singh, learned counsel
and Mr. Manjit Singh, Additional Advocate General for the
respondents. We also heard Mr. T.R. Andhyarujina,
learned senior counsel as amicus curiae.
5) Before considering the merits of the claim of
individual case, it is essential to deliberate on certain vital
points of law that will be incidental and decisive for
determining the case at hand.
Maintainability of the Petitions
6) Before we advert to the issue of maintainability of
the petitions, it is pertinent to grasp the significance of
Article 32 as foreseen by Dr. Ambedkar, the principal
architect of the Indian Constitution. His words were
appositely reiterated in Minerva Mills Ltd. and Ors. vs.
Union of India and Ors. (1980) 2 SCC 625 as follows:-
“87. ….If I was asked to name any particular Article in this Constitution as the most important – an Article without which
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this Constitution would be a nullity – I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it.” (emphasis supplied)
The fundamental right to move this Court can, therefore,
be appropriately described as the corner-stone of the
democratic edifice raised by the Constitution. At the same
time, this Court, in A.R Antulay vs. Union of India
(1988) 2 SCC 602, clarified and pronounced that any writ
petition under Article 32 of the Constitution challenging
the validity of the order or judgment passed by this Court
as nullity or otherwise incorrect cannot be entertained. In
this light, let us examine the maintainability of these
petitions.
7) The aforesaid petitions, under Article 32 of the
Constitution, seek relief against alleged infringement of
certain fundamental rights on account of failure on the
part of the executive to dispose of the mercy petitions
filed under Article 72/161 of the Constitution within a
reasonable time.
8) At the outset, the petitioners herein justly elucidated
that they are not challenging the final verdict of this Court
wherein death sentence was imposed. In fact, they
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asserted in their respective petitions that if the sentence
had been executed then and there, there would have been
no grievance or cause of action. However, it wasn’t and
the supervening events that occurred after the final
confirmation of the death sentence are the basis of filing
these petitions.
9) It is a time-honored principle, as stipulated in R.D
Shetty vs. International Airport Authority (1979) 3
SCC 489, that no matter, whether the violation of
fundamental right arises out of an executive
action/inaction or action of the legislature, Article 32 can
be utilized to enforce the fundamental rights in either
event. In the given case, the stand of the petitioners
herein is that exercise of the constitutional power vested
in the executive specified under Article 72/161 has
violated the fundamental rights of the petitioners herein.
This Court, as in past, entertained the petitions of the
given kind and issued appropriate orders as in T.V.
Vatheeswaran vs. State of Tamil Nadu (1983) 2 SCC
68, Sher Singh and Ors. vs. State of Punjab (1983) 2
SCC 344 Triveniben vs. State of Gujarat (1988) 4 SCC
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574 etc. Accordingly, we accede to the stand of the
petitioners and hold that the petitions are maintainable.
Nature of power guaranteed under Article 72/161 of
the Constitution
10) It is apposite to refer the relevant Articles which give
power to the President of India and the Governor to grant
pardons and to suspend, remit or commute sentences in
certain cases. They are as follows:
“Article 72. Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence –
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court martial.
(3) Nothing in sub-clause of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State, under any law for the time being in force.”
Article 161. Power of Governor to grant pardons,
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etc. and to suspend, remit or commute sentences in certain cases – The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”
11) The memoir and scope of Article 72/161 of the
Constitution was extensively considered in Kehar Singh
vs. Union of India & Anr., (1989) 1 SCC 204 in the
following words:
“7. The Constitution of India, in keeping with modern constitutional practice, is a constitutive document, fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional polity consisting of certain primary organs, institutions and functionaries to exercise the powers provided in the Constitution. All power belongs to the people, and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order. The Preambular statement of the Constitution begins with the significant recital:
We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic... do hereby adopt, enact and give to ourselves this Constitution.
To any civilized society, there can be no attributes more important than the life and personal liberty of its members. That is evident from the paramount position given by the courts to Article 21 of the Constitution. These twin attributes enjoy a fundamental ascendancy over all other attributes of the political and social order, and consequently, the Legislature, the Executive and the Judiciary are more sensitive to them than to the other attributes of daily existence. The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously and, recourse, either under express constitutional provision or through legislative enactment is
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provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest of experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened or continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr Justice Holmes, speaking for the Court in W.I. Biddle v. Vuco Perovich 71 L Ed 1161) enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it has been repeatedly affirmed in the course of argument by learned Counsel, Shri Ram Jethmalani and Shri Shanti Bhushan, appearing for the Petitioner that the power to pardon rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) of the Constitution, must act in accordance with such advice……” (Emphasis Supplied)
In that case, the Constitution Bench also considered
whether the President can, in exercise of the power
under Article 72 of the Constitution, scrutinize the
evidence on record and come to a different conclusion
than the one arrived at by the Court and held as under:
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“10. We are of the view that it is open to the President in the exercise of the power vested in him by Article 72 of the Constitution to scrutinise the evidence on the record of the criminal case and come to a different conclusion from that recorded by the court in regard to the guilt of, and sentence imposed on, the accused. In doing so, the President does not amend or modify or supersede the judicial record. The judicial record remains intact, and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. and this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him....
The legal effect of a pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the power which is determinative....
It is apparent that the power under Article 72 entitles the President to examine the record of evidence of the criminal case and to determine for himself whether the case is one deserving the grant of the relief falling within that power. We are of opinion that the President is entitled to go into the merits of the case notwithstanding that it has been judicially concluded by the consideration given to it by this Court.
16. …the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. and it is of great significance that the function itself enjoys high status in the constitutional scheme.”
12) Both Articles 72 and 161 repose the power of the
people in the highest dignitaries, i.e., the President or the
Governor of a State, as the case may be, and there are no
words of limitation indicated in either of the two Articles.
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The President or the Governor, as the case may be, in
exercise of power under Article 72/161 respectively, may
examine the evidence afresh and this exercise of power is
clearly independent of the judiciary. This Court, in
numerous instances, clarified that the executive is not
sitting as a court of appeal rather the power of
President/Governor to grant remission of sentence is an
act of grace and humanity in appropriate cases, i.e.,
distinct, absolute and unfettered in its nature.
13) In this context, the deliberations in Epuru Sudhakar
& Anr. vs. Govt. of A.P. & Ors., (2006) 8 SCC 161 are
relevant which are as under:
“16. The philosophy underlying the pardon power is that "every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy. [See 59 American Jurisprudence 2d, page 5]
17. The rationale of the pardon power has been felicitously enunciated by the celebrated Justice Holmes of the United States Supreme Court in the case of Biddle v. Perovich in these words 71 L. Ed. 1161 at 1163: A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” (emphasis added)
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14) Article 72/161 of the Constitution entail remedy to all
the convicts and not limited to only death sentence cases
and must be understood accordingly. It contains the
power of reprieve, remission, commutation and pardon for
all offences, though death sentence cases invoke the
strongest sentiment since it is the only sentence that
cannot be undone once it is executed.
15) Shri Andhyarujina, learned senior counsel, who
assisted the Court as amicus commenced his submissions
by pointing out that the power reposed in the President
under Article 72 and the Governor under Article 161 of the
Constitution is not a matter of grace or mercy, but is a
constitutional duty of great significance and the same has
to be exercised with great care and circumspection
keeping in view the larger public interest. He referred to
the judgment of the U.S. Supreme Court in Biddle vs.
Perovoch 274 US 480 as also the judgments of this Court
in Kehar Singh (supra) and Epuru Sudhakar (supra).
16) In this context, in Kuljeet Singh vs. Lt. Governor
(1982) 1 SCC 417, this Court held:
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“1. The question as regards the scope of the power of the President under Article 72 of the Constitution to commute a sentence of death into a lesser sentence may have to await examination on an appropriate occasion. This clearly is not that occasion because insofar as this case is concerned, whatever be the guide-lines observed for the exercise of the power conferred by Article 72, the only sentence which can possibly be imposed upon the petitioner is that of death and no circumstances exist for interference with that sentence. Therefore we see no justification for saying that in refusing to commute the sentence of death imposed upon the petitioner into a lesser sentence, the President has in any manner transgressed his discretionary power under Article 72. Undoubtedly, the President has the power in an appropriate case to commute any sentence imposed by a court into a lesser sentence and as said by Chief Justice Taft in James Shewan and Sons v. U.S., the “executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law” and that the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt. But the question as to whether the case is appropriate for the exercise of the power conferred by Article 72 depends upon the facts and circumstances of each particular case. The necessity or the justification for exercising that power has therefore to be judged from case to case. In fact, we do not see what useful purpose will be achieved by the petitioner by ensuring the imposition of any severe, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require. After all, the power conferred by Article 72 can be used only for the purpose of reducing the sentence, not for enhancing it. We need not, however, go into that question elaborately because insofar as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuaded the President to interfere with the sentence of death imposed upon the petitioner, in view particularly of the considerations mentioned by us in our judgment in Kuljeet Singh v. Union of India. We may recall what we said in that judgment that “the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp”, that the “survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and
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security”, and that “they are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a mature society.”
17) In concise, the power vested in the President under
Article 72 and the Governor under Article 161 of the
Constitution is a Constitutional duty. As a result, it is
neither a matter of grace nor a matter of privilege but is
an important constitutional responsibility reposed by the
people in the highest authority. The power of pardon is
essentially an executive action, which needs to be
exercised in the aid of justice and not in defiance of it.
Further, it is well settled that the power under Article
72/161 of the Constitution of India is to be exercised on
the aid and advice of the Council of Ministers.
Limited Judicial Review of the executive orders under Article 72/161
18) As already emphasized, the power of the executive
to grant pardon under Article 72/161 is a Constitutional
power and this Court, on numerous occasions, has
declined to frame guidelines for the exercise of power
under the said Articles for two reasons. Firstly, it is a
settled proposition that there is always a presumption that
the constitutional authority acts with application of mind
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as has been reiterated in Bikas Chatterjee vs. Union of
India (2004) 7 SCC 634. Secondly, this Court, over the
span of years, unanimously took the view that considering
the nature of power enshrined in Article 72/161, it is
unnecessary to spell out specific guidelines. In this
context, in Epuru Sudhakar (supra), this Court held
thus:
“36. So far as desirability to indicate guidelines is concerned in Ashok Kumar case it was held as follows: (SCC pp. 518-19, para 17)
“17. In Kehar Singh case on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in para 16 as under: (SCC pp. 217-18, para 16) ‘It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case-law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme.’
These observations do indicate that the Constitution Bench which decided Kehar Singh case was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myriad kinds and
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categories of cases which may come up for the exercise of such power. No doubt in Maru Ram case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution. But that was a mere recommendation and not a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh case. Therefore, the observation made by the Constitution Bench in Kehar Singh case does not upturn any ratio laid down in Maru Ram case. Nor has the Bench in Kehar Singh case said anything with regard to using the provisions of extant Remission Rules as guidelines for the exercise of the clemency powers.”
19) Nevertheless, this Court has been of the consistent
view that the executive orders under Article 72/161 should
be subject to limited judicial review based on the rationale
that the power under Article 72/161 is per se above
judicial review but the manner of exercise of power is
certainly subject to judicial review. Accordingly, there is no
dispute as to the settled legal proposition that the power
exercised under Article 72/161 could be the subject matter
of limited judicial review. [vide Kehar Singh (supra);
Ashok Kumar (supra); Swaran Singh vs. State of U.P
AIR 1998 SC 2026; Satpal and Anr. vs. State of
Haryana and Ors. AIR 2000 SC 1702; and Bikas
Chatterjee (supra)]
20) Though the contours of power under Article 72/161
have not been defined, this Court, in Narayan Dutt vs.
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State of Punjab (2011) 4 SCC 353, para 24, has held that
the exercise of power is subject to challenge on the
following grounds:
a) If the Governor had been found to have
exercised the power himself without being
advised by the government;
b) If the Governor transgressed his jurisdiction in
exercising the said power;
c) If the Governor had passed the order without
applying his mind;
d) The order of the Governor was mala fide; or
e) The order of the Governor was passed on some
extraneous considerations.
These propositions are culmination of views settled by this
Court that:
(i) Power should not be exercised malafidely. (Vide
Maru Ram vs. Union of India, paras 62, 63 &
65).
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(ii) No political considerations behind exercise of
power. In this context, in Epuru Sudhakar
(supra), this Court held thus:
“34. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds: a) that the order has been passed without application of mind; (b) that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.
35. Two important aspects were also highlighted by learned amicus curiae; one relating to the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. According to learned amicus curiae, reasons are to be indicated, in the absence of which the exercise of judicial review will be affected.
37. In Kehar Singh case this Court held that: (SCC p. 216, para 13)
“There is also no question involved in this case of asking for the reasons for the President’s order.”
38. The same obviously means that the affected party need not be given the reasons. The question whether reasons can or cannot be disclosed to the Court when the same is challenged was not the subject-matter of consideration. In any event, the absence of any obligation to convey the reasons does not mean that there should not be legitimate
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or relevant reasons for passing the order.”
21) A perusal of the above case-laws makes it clear that
the President/Governor is not bound to hear a petition for
mercy before taking a decision on the petition. The
manner of exercise of the power under the said articles is
primarily a matter of discretion and ordinarily the courts
would not interfere with the decision on merits. However,
the courts retain the limited power of judicial review to
ensure that the constitutional authorities consider all the
relevant materials before arriving at a conclusion.
22) It is the claim of the petitioners herein that the
impugned executive orders of rejection of mercy petitions
against 15 accused persons were passed without
considering the supervening events which are crucial for
deciding the same. The legal basis for taking supervening
circumstances into account is that Article 21 inheres a
right in every prisoner till his last breath and this Court will
protect that right even if the noose is being tied on the
condemned prisoner’s neck. [vide Sher Singh (supra),
Triveniben (supra), Vatheeswaran (supra), Jagdish
vs. State of Madhya Pradesh (2009) 9 SCC 495].
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23) Certainly, delay is one of the permitted grounds for
limited judicial review as stipulated in the stare decisis.
Henceforth, we shall scrutinize the claim of the petitioners
herein and find out the effect of supervening
circumstances in the case on hand.
Supervening Circumstances
24) The petitioners herein have asserted the following
events as the supervening circumstances, for
commutation of death sentence to life imprisonment.
(i) Delay
(ii) Insanity
(iii) Solitary Confinement
(iv) Judgments declared per incuriam
(v) Procedural Lapses
25) All the petitioners have more or less asserted on the
aforesaid grounds which, in their opinion, the executive
had failed to take note of while rejecting the mercy
petitions filed by them. Let us discuss them distinctively
and come to a conclusion whether each of the
circumstances exclusively or together warrants the
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commutation of death sentence into life imprisonment.
(i) Delay
26) It is pre-requisite to comprehend the procedure
adopted under Article 72/161 for processing the mercy
petition so that we may be in a position to appreciate the
aspect of delay as one of the supervening circumstances.
27) The death row convicts invariably approached the
Governor under Article 161 of the Constitution of India
with a mercy petition after this Court finally decided the
matter. During the pendency of the mercy petition, the
execution of death sentence was stayed. As per the
procedure, once the mercy petition is rejected by the
Governor, the convict prefers mercy petition to the
President. Thereafter, the mercy petition received in
President’s office is forwarded to the Ministry of Home
Affairs. Normally, the mercy petition consists of one or
two pages giving grounds for mercy. To examine the
mercy petition so received and to arrive at a conclusion,
the documents like copy of the judgments of the trial
Court, High Court and the Supreme Court are requested
from the State Government. The other documents
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required include details of the decision taken by the
Governor under Article 161 of the Constitution,
recommendations of the State Government in regard to
grant of mercy petition, copy of the records of the case,
nominal role of the convict, health status of the prisoner
and other related documents. All these details are
gathered from the State/Prison authorities after the
receipt of the mercy petition and, according to the Union
of India, it takes a lot of time and involve protracted
correspondence with prison authorities and State
Government. It is also the claim of the Union of India that
these documents are then extensively examined and in
some sensitive cases, various pros and cons are weighed
to arrive at a decision. Sometimes, person or at their
instance some of their relatives, file mercy petitions
repeatedly which cause undue delay. In other words,
according to the Union of India, the time taken in
examination of mercy petitions may depend upon the
nature of the case and the scope of inquiry to be made. It
may also depend upon the number of mercy petitions
submitted by or on behalf of the accused. It is the claim of
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the respondents that there cannot be a specific time limit
for examination of mercy petitions.
28) It is also the claim of the respondents that Article 72
envisages no limit as to time within which the mercy
petition is to be disposed of by the President of India.
Accordingly, it is contended that since no time limit is
prescribed for the President under Article 72, the courts
may not go into it or fix any outer limit. It is also
contended that the power of the President under Article
72 is discretionary which cannot be taken away by any
statutory provision and cannot be altered, modified or
interfered with, in any manner, whatsoever, by any
statutory provision or authority. The powers conferred on
the President are special powers overriding all other laws,
rules and regulations in force. Delay by itself does not
entail the person under sentence of death to request for
commutation of sentence into life imprisonment.
29) It is also pointed out that the decision taken by the
President under Article 72 is communicated to the State
Government/Union Territory concerned and to the prisoner
through State Government/Union Territory. It is also
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brought to our notice that as per List II Entry 4 of the
Seventh Schedule to the Constitution of India, “Prisons
and persons detained therein” is a State subject.
Therefore, all steps for execution of capital punishment
including informing the convict and his/her family, etc. are
required to be taken care of by the concerned State
Governments/Union Territories in accordance with their jail
manual/rules etc.
30) On the contrary, it is the plea of the petitioners that
after exhausting of the proceedings in the courts of law,
the aggrieved convict gets right to make a mercy petition
before the Governor and the President of India
highlighting his grievance. If there is any undue,
unreasonable and prolonged delay in disposal of his mercy
petition, the convict is entitled to approach this Court by
way of a writ petition under Article 32 of the Constitution.
It is vehemently asserted that the execution of death
penalty in the face of such an inordinate delay would
infringe fundamental right to life under Article 21 of the
Constitution, which would invite the exercise of the
jurisdiction by this Court.
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31) The right to life is the most fundamental of all rights.
The right to life, as guaranteed under Article 21 of the
Constitution of India, provides that no person shall be
deprived of his life and liberty except in accordance with
the procedure established by law. According to learned
counsel for the Union of India, death sentence is imposed
on a person found guilty of an offence of heinous nature
after adhering to the due procedure established by law
which is subject to appeal and review. Therefore, delay in
execution must not be a ground for commutation of
sentence of such a heinous crime. On the other hand, the
argument of learned counsel for the petitioners/death
convicts is that human life is sacred and inviolable and
every effort should be made to protect it. Therefore,
inasmuch as Article 21 is available to all the persons
including convicts and continues till last breath if they
establish and prove the supervening circumstances, viz.,
undue delay in disposal of mercy petitions, undoubtedly,
this Court, by virtue of power under Article 32, can
commute the death sentence into imprisonment for life.
As a matter of fact, it is the stand of the petitioners that in
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a petition filed under Article 32, even without a
presidential order, if there is unexplained, long and
inordinate delay in execution of death sentence, the
grievance of the convict can be considered by this Court.
32) This Court is conscious of the fact, namely, while
Article 21 is the paramount principle on which rights of the
convicts are based, it must be considered along with the
rights of the victims or the deceased’s family as also
societal consideration since these elements form part of
the sentencing process as well. The right of a victim to a
fair investigation under Article 21 has been recognized in
State of West Bengal vs. Committee for Democratic
Rights, West Bengal, (2010) 3 SCC 571, which is as
under:
“68. Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any constitutional or statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives
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and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State…”
We do comprehend the critical facet involved in the
arguments by both the sides and we will strive to strike a
balance between the rights of the accused as well as of
the victim while deciding the given case.
33) This is not the first time when the question of such a
nature is raised before this Court. In Ediga Anamma vs.
State of A.P., 1974(4) SCC 443 Krishna Iyer, J. spoke of
the “brooding horror of haunting the prisoner in the
condemned cell for years”. Chinnappa Reddy, J. in
Vatheeswaran (supra) said that prolonged delay in
execution of a sentence of death had a dehumanizing
effect and this had the constitutional implication of
depriving a person of his life in an unjust, unfair and
unreasonable way so as to offend the fundamental right
under Article 21 of the Constitution. Chinnappa Reddy, J.
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quoted the Privy Council’s observation in a case of such an
inordinate delay in execution, viz., “The anguish of
alternating hope and despair the agony of uncertainty and
the consequences of such suffering on the mental,
emotional and physical integrity and health of the
individual has to be seen.” Thereby, a Bench of two Judges
of this Court held that the delay of two years in execution
of the sentence after the judgment of the trial court will
entitle the condemned prisoner to plead for commutation
of sentence of death to imprisonment for life.
Subsequently, in Sher Singh (supra), which was a
decision of a Bench of three Judges, it was held that a
condemned prisoner has a right of fair procedure at all
stages, trial, sentence and incarceration but delay alone is
not good enough for commutation and two years’ rule
could not be laid down in cases of delay.
34) Owing to the conflict in the two decisions, the matter
was referred to a Constitution Bench of this Court for
deciding the two questions of law viz., (i) whether the
delay in execution itself will be a ground for commutation
of sentence and (ii) whether two years’ delay in execution
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will automatically entitle the condemned prisoner for
commutation of sentence. In Smt. Triveniben vs. State
of Gujarat (1988) 4 SCC 574, this Court held thus:
“2. …..Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but this Court will 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 re-open the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may 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. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran case cannot be said to lay down the correct law and therefore to that extent stands overruled.”
35) While giving full reasons which is reported in Smt.
Triveniben vs. State of Gujarat, (1989) 1 SCC 678 this
Court, in para 22, appreciated the aspect of delay in
execution in the following words:-
“22. It was contended that the delay in execution of the sentence will entitle a prisoner to approach this Court as his right under Article 21 is being infringed. It is well settled now that a judgment of court can never be challenged under Article 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra and also in A.R. Antulay v. R.S. Nayak the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a
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condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also.”
36) Though learned counsel appearing for the Union of
India relied on certain observations of Shetty, J. who
delivered concurring judgment, particularly, para 76,
holding that “the inordinate delay, may be a significant
factor, but that by itself cannot render the execution
unconstitutional”, after careful reading of the majority
judgment authored by Oza, J., particularly, para 2 of the
order dated 11.10.1988 and para 22 of the subsequent
order dated 07.02.1989, we reject the said stand taken by
learned counsel for the Union of India.
37) In Vatheeswaran (supra), the dissenting opinion of
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the two judges in the Privy Council case, relied upon by
this Court, was subsequently accepted as the correct law
by the Privy Council in Earl Pratt vs. AG for Jamaica
[1994] 2 AC 1 – Privy Council, after 22 years. There is no
doubt that judgments of the Privy Council have certainly
received the same respectful consideration as the
judgments of this Court. For clarity, we reiterate that
except the ratio relating to delay exceeding two years in
execution of sentence of death, all other propositions are
acceptable, in fact, followed in subsequent decisions and
should be considered sufficient to entitle the person under
sentence of death to invoke Article 21 and plead for
commutation of the sentence.
38) In view of the above, we hold that undue long delay
in execution of sentence of death will entitle the
condemned prisoner to approach this Court under Article
32. However, this Court will only examine the
circumstances surrounding the delay that has occurred
and those that have ensued after sentence was finally
confirmed by the judicial process. This Court cannot
reopen the conclusion already reached but may consider
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the question of inordinate delay to decide whether the
execution of sentence should be carried out or should be
altered into imprisonment for life.
39) Keeping a convict in suspense while consideration of
his mercy petition by the President for many years is
certainly an agony for him/her. It creates adverse physical
conditions and psychological stresses on the convict under
sentence of death. Indisputably, this Court, while
considering the rejection of the clemency petition by the
President, under Article 32 read with Article 21 of the
Constitution, cannot excuse the agonizing delay caused to
the convict only on the basis of the gravity of the crime.
40) India has been a signatory to the Universal
Declaration of Human Rights, 1948 as well as to the
United Nations Covenant on Civil and Political Rights,
1966. Both these conventions contain provisions
outlawing cruel and degrading treatment and/or
punishment. Pursuant to the judgment of this Court in
Vishaka vs. State of Rajasthan, (1997) 6 SCC 241,
international covenants to which India is a party are a part
of domestic law unless they are contrary to a specific law
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in force. It is this expression (“cruel and degrading
treatment and/or punishment”) which has ignited the
philosophy of Vatheeswaran (supra) and the cases
which follow it. It is in this light, the Indian cases,
particularly, the leading case of Triveniben (supra) has
been followed in the Commonwealth countries. It is useful
to refer the following foreign judgments which followed
the proposition :
i) Earl Pratt vs. AG for Jamaica [1994] 2 AC 1 – Privy
Council
ii) Catholic Commission for Justice & Peace in
Zimbabwe vs. Attorney General, 1993 (4) S.A. 239 –
Supreme Court of Zimbabwe
iii) Soering vs. United Kingdom [App. No. 14038/88,
11 Eur. H.R. Rep. 439 (1989)] – European Court of Human
Rights
iv) Attorney General vs. Susan Kigula, Constitutional
Appeal No. 3 of 2006 – Supreme Court of Uganda
v) Herman Mejia and Nicholas Guevara vs.
Attorney General, A.D. 2000 Action No. 296 – Supreme
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Court of Belize.
41) It is clear that after the completion of the judicial
process, if the convict files a mercy petition to the
Governor/President, it is incumbent on the authorities to
dispose of the same expeditiously. Though no time limit
can be fixed for the Governor and the President, it is the
duty of the executive to expedite the matter at every
stage, viz., calling for the records, orders and documents
filed in the court, preparation of the note for approval of
the Minister concerned, and the ultimate decision of the
constitutional authorities. This court, in Triveniben
(supra), further held that in doing so, if it is established
that there was prolonged delay in the execution of death
sentence, it is an important and relevant consideration for
determining whether the sentence should be allowed to be
executed or not.
42) Accordingly, if there is undue, unexplained amd
inordinate delay in execution due to pendency of mercy
petitions or the executive as well as the constitutional
authorities have failed to take note of/consider the
relevant aspects, this Court is well within its powers under
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Article 32 to hear the grievance of the convict and
commute the death sentence into life imprisonment on
this ground alone however, only after satisfying that the
delay was not caused at the instance of the accused
himself. To this extent, the jurisprudence has developed
in the light of the mandate given in our Constitution as
well as various Universal Declarations and directions
issued by the United Nations.
43) The procedure prescribed by law, which deprives a
person of his life and liberty must be just, fair and
reasonable and such procedure mandates humane
conditions of detention preventive or punitive. In this line,
although the petitioners were sentenced to death based
on the procedure established by law, the inexplicable
delay on account of executive is unexcusable. Since it is
well established that Article 21 of the Constitution does
not end with the pronouncement of sentence but extends
to the stage of execution of that sentence, as already
asserted, prolonged delay in execution of sentence of
death has a dehumanizing effect on the accused. Delay
caused by circumstances beyond the prisoners’ control
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mandates commutation of death sentence. In fact, in
Vatheeswaran (supra), particularly, in para 10, it was
elaborated where amongst other authorities, the minority
view of Lords Scarman and Brightman in the 1972 Privy
Council case of Noel Noel Riley vs. Attorney General,
(1982) Crl.Law Review 679 by quoting “sentence of death
is one thing, sentence of death followed by lengthy
imprisonment prior to execution is another”. The
appropriate relief in cases where the execution of death
sentence is delayed, the Court held, is to vacate the
sentence of death. In para 13, the Court made it clear
that Articles 14, 19 and 21 supplement one another and
the right which was spelled out from the Constitution was
a substantive right of the convict and not merely a matter
of procedure established by law. This was the
consequence of the judgment in Maneka Gandhi vs.
Union of India (1978) 1 SCC 248 which made the content
of Article 21 substantive as distinguished from merely
procedural.
44) Another argument advanced by learned ASG is that
even if the delay caused seems to be undue, the matter
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must be referred back to the executive and a decision
must not be taken in the judicial side. Though we
appreciate the contention argued by the learned ASG, we
are not inclined to accept the argument. The concept of
supervening events emerged from the jurisprudence set
out in Vatheeswaran (supra) and Triveniben (supra).
The word ‘judicial review’ is not even mentioned in these
judgments and the death sentences have been commuted
purely on the basis of supervening events such as delay.
Under the ground of supervening events, when Article 21
is held to be violated, it is not a question of judicial review
but of protection of fundamental rights and courts give
substantial relief not merely procedural protection. The
question of violation of Article 21, its effects and the
appropriate relief is the domain of this Court. There is no
question of remanding the matter for consideration
because this Court is the custodian and enforcer of
fundamental rights and the final interpreter of the
Constitution. Further, this Court is best equipped to
adjudicate the content of those rights and their
requirements in a particular fact situation. This Court has
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always granted relief for violation of fundamental rights
and has never remanded the matter. For example, in
cases of preventive detention, violation of free speech,
externment, refusal of passport etc., the impugned action
is quashed, declared illegal and violative of Article 21, but
never remanded. It would not be appropriate to say at
this point that this Court should not give relief for the
violation of Article 21.
45) At this juncture, it is pertinent to refer the records of
the disposal of mercy petitions compiled by Mr. Bikram
Jeet Batra and others, which are attached as annexures in
almost all the petitions herein. At the outset, this
document reveals that the mercy petitions were disposed
of more expeditiously in former days than in the present
times. Mostly, until 1980, the mercy petitions were
decided in minimum of 15 days and in maximum of 10-11
months. Thereafter, from 1980 to 1988, the time taken in
disposal of mercy petitions was gradually increased to an
average of 4 years. It is exactly at this point of time, the
cases like Vatheeswaran (supra) and Triveniben
(supra) were decided which gave way for developing the
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jurisprudence of commuting the death sentence based on
undue delay. It is also pertinent to mention that this Court
has observed in these cases that when such petitions
under Article 72 or 161 are received by the authorities
concerned, it is expected that these petitions shall be
disposed of expeditiously. In Sher Singh (supra) their
Lordships have also impressed the Government of India
and all the State Governments for speedy disposal of
petitions filed under Articles 72 and 161 and issued
directions in the following manner:
“23. We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self-imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice.
46) Obviously, the mercy petitions disposed of from 1989
to 1997 witnessed the impact of the observations in the
disposal of mercy petitions. Since the average time taken
for deciding the mercy petitions during this period was
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brought down to an average of 5 months from 4 years
thereby paying due regard to the observations made in
the decisions of this Court, but unfortunately, now the
history seems to be repeating itself as now the delay of
maximum 12 years is seen in disposing of the mercy
petitions under Article 72/161 of the Constitution.
47) We sincerely hope and believe that the mercy
petitions under Article 72/161 can be disposed of at a
much faster pace than what is adopted now, if the due
procedure prescribed by law is followed in verbatim.
Although, no time frame can be set for the President for
disposal of the mercy petition but we can certainly request
the concerned Ministry to follow its own rules rigorously
which can reduce, to a large extent, the delay caused.
48) Though guidelines to define the contours of the
power under Article 72/161 cannot be laid down, however,
the Union Government, considering the nature of the
power, set out certain criteria in the form of circular as
under for deciding the mercy petitions.
• Personality of the accused (such as age, sex or
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mental deficiency) or circumstances of the case
(such as provocation or similar justification);
• Cases in which the appellate Court expressed doubt
as to the reliability of evidence but has nevertheless
decided on conviction;
• Cases where it is alleged that fresh evidence is
obtainable mainly with a view to see whether fresh
enquiry is justified;
• Where the High Court on appeal reversed acquittal or
on an appeal enhanced the sentence;
• Is there any difference of opinion in the Bench of
High Court Judges necessitating reference to a larger
Bench;
• Consideration of evidence in fixation of responsibility
in gang murder case;
• Long delays in investigation and trial etc.
49) These guidelines and the scope of the power set out
above make it clear that it is an extraordinary power not
limited by judicial determination of the case and is not to
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be exercised lightly or as a matter of course. We also
suggest, in view of the jurisprudential development with
regard to delay in execution, another criteria may be
added so as to require consideration of the delay that may
have occurred in disposal of a mercy petition. In this way,
the constitutional authorities are made aware of the delay
caused at their end which aspect has to be considered
while arriving at a decision in the mercy petition. The
obligation to do so can also be read from the fact that, as
observed by the Constitution Bench in Triveniben
(supra), delays in the judicial process are accounted for in
the final verdict of the Court terminating the judicial
exercise.
50) Another vital aspect, without mention of which the
present discussion will not be complete, is that, as
aforesaid, Article 21 is the paramount principle on which
rights of the convict are based, this must be considered
along with the rights of the victims or the deceased’s
family as also societal consideration since these elements
form part of the sentencing process as well. It is the stand
of the respondents that the commutation of sentence of
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death based on delay alone will be against the victim’s
interest.
51) It is true that the question of sentence always poses
a complex problem, which requires a working compromise
between the competing views based on reformative,
deterrent and retributive theories of punishments. As a
consequence, a large number of factors fall for
consideration in determining the appropriate sentence.
The object of punishment is lucidly elaborated in Ram
Narain vs. State of Uttar Pradesh (1973) 2 SCC 86 in
the following words:-
“8. …the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs. The sentence to be appropriate should, therefore, be neither too harsh nor too lenient....”
52) The object of punishment has been succinctly stated
in Halsbury's Laws of England, (4th Edition: Vol. II: para
482) thus:
“The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is
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intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.”
53) All these aspects were emphatically considered by
this Court while pronouncing the final verdict against the
petitioners herein thereby upholding the sentence of
death imposed by the High Court. Nevertheless, the same
accused (petitioners herein) are before us now under
Article 32 petition seeking commutation of sentence on
the basis of undue delay caused in execution of their
levied death sentence, which amounts to torture and
henceforth violative of Article 21 of the Constitution. We
must clearly see the distinction under both circumstances.
Under the former scenario, the petitioners herein were the
persons who were accused of the offence wherein the
sentence of death was imposed but in later scenario, the
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petitioners herein approached this Court as a victim of
violation of guaranteed fundamental rights under the
Constitution seeking commutation of sentence. This
distinction must be considered and appreciated.
54) As already asserted, this Court has no jurisdiction
under Article 32 to reopen the case on merits. Therefore,
in the light of the aforesaid elaborate discussion, we are of
the cogent view that undue, inordinate and unreasonable
delay in execution of death sentence does certainly
attribute to torture which indeed is in violation of Article
21 and thereby entails as the ground for commutation of
sentence. However, the nature of delay i.e. whether it is
undue or unreasonable must be appreciated based on the
facts of individual cases and no exhaustive guidelines can
be framed in this regard.
Rationality of Distinguishing between Indian Penal Code, 1860 And Terrorist and Disruptive Activities (Prevention) Act Offences for Sentencing Purpose
55) In Writ Petition No. 34 of 2013 – the accused were
mulcted with TADA charges which ultimately ended in
death sentence. Mr. Ram Jethmalani, learned senior
counsel for the petitioners in that writ petition argued
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against the ratio laid down in Devender Pal Singh
Bhullar vs. State (NCT) of Delhi (2013) 6 SCC 195
which holds that when the accused are convicted under
TADA, there is no question of showing any sympathy or
considering supervening circumstances for commutation
of sentence, and emphasized the need for reconsideration
of the verdict. According to Mr. Ram Jethmalani,
Devender Pal Singh Bhullar (supra) is per incuriam
and is not a binding decision for other cases. He also
prayed that inasmuch as the ratio laid down in Devender
Pal Singh Bhullar (supra) is erroneous, this Court, being
a larger Bench, must overrule the same.
56) He pointed out that delay in execution of sentence of
death after it has become final at the end of the judicial
process is wholly unconstitutional inasmuch it constitutes
torture, deprivation of liberty and detention in custody not
authorized by law within the meaning of Article 21 of the
Constitution. He further pointed out that this involuntary
detention of the convict is an action not authorized by any
penal provision including Section 302 IPC or any other law
including TADA. On the other hand, Mr. Luthra, learned
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ASG heavily relying on the reasonings in Devender Pal
Singh Bhullar (supra) submitted that inasmuch as the
crime involved is a serious and heinous and the accused
were charged under TADA, there cannot be any sympathy
or leniency even on the ground of delay in disposal of
mercy petition. According to him, considering the gravity
of the crime, death sentence is warranted and Devender
Pal Singh Bhullar (supra) has correctly arrived at a
conclusion and rejected the claim for commutation on the
ground of delay.
57) From the analysis of the arguments of both the
counsel, we are of the view that only delay which could
not have been avoided even if the matter was proceeded
with a sense of urgency or was caused in essential
preparations for execution of sentence may be the
relevant factors under such petitions in Article 32.
Considerations such as the gravity of the crime,
extraordinary cruelty involved therein or some horrible
consequences for society caused by the offence are not
relevant after the Constitution Bench ruled in Bachan
Singh vs. State of Punjab (1980) 2 SCC 684 that the
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sentence of death can only be imposed in the rarest of
rare cases. Meaning, of course, all death sentences
imposed are impliedly the most heinous and barbaric and
rarest of its kind. The legal effect of the extraordinary
depravity of the offence exhausts itself when court
sentences the person to death for that offence. Law does
not prescribe an additional period of imprisonment in
addition to the sentence of death for any such exceptional
depravity involved in the offence.
58) As rightly pointed out by Mr. Ram Jethmalani, it is
open to the legislature in its wisdom to decide by enacting
an appropriate law that a certain fixed period of
imprisonment in addition to the sentence of death can be
imposed in some well defined cases but the result cannot
be accomplished by a judicial decision alone. The
unconstitutionality of this additional incarceration is itself
inexorable and must not be treated as dispensable
through a judicial decision.
59) Now, in this background, let us consider the ratio laid
down in Devender Pal Singh Bhullar (supra).
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60) The brief facts of that case were: Devender Pal Singh
Bhullar, who was convicted by the Designated Court at
Delhi for various offences under TADA, IPC and was found
guilty and sentenced to death. The appeal as well as the
review filed by him was dismissed by this Court. Soon
after the dismissal of the review petition, Bhullar
submitted a mercy petition dated 14.01.2003 to the
President of India under Article 72 of the Constitution and
prayed for commutation of his sentence. Various other
associations including Delhi Sikh Gurdwara Management
Committee sent letters in connection with commutation of
the death sentence awarded to him. During the pendency
of the petition filed under Article 72, he also filed Curative
Petition (Criminal) No. 5 of 2013 which was also dismissed
by this Court on 12.03.2013. After prolonged
correspondence and based on the advice of the Home
Minister, the President rejected his mercy petition which
was informed vide letter dated 13.06.2011 sent by the
Deputy Secretary (Home) to the Jail Authorities. After
rejection of his petition by the President, Bhullar filed a
writ petition, under Article 32 of the Constitution, in this
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regard praying for quashing the communication dated
13.06.2011. While issuing notice in Writ Petition
(Criminal) Diary No. 16039/2011, this Court directed the
respondents to clarify as to why the petitions made by the
petitioner had not been disposed of for the last 8 years. In
compliance with the courts direction, the Deputy
Secretary (Home) filed an affidavit giving reasons for the
delay. This Court, after adverting to all the earlier
decisions, instructions regarding procedure to be observed
for dealing with the petitions for mercy, accepted that
there was a delay of 8 years. Even after accepting that
long delay may be one of the grounds for commutation of
sentence of death into life imprisonment, this Court
dismissed his writ petition on the ground that the same
cannot be invoked in cases where a person is convicted
for an offence under TADA or similar statutes. This Court
also held that such cases stand on an altogether different
footing and cannot be compared with murders committed
due to personal animosity or over property and personal
disputes. It is also relevant to point out that while arriving
at such conclusion, the Bench heavily relied on opinion
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expressed by Shetty, J. in Smt. Triveniben (supra).
Though the Bench adverted to paras 73, 74, 75 and 76 of
Triveniben (supra), the Court very much emphasized
para 76 which reads as under:-
“76. … The court while examining the matter, for the reasons already stated, cannot take into account the time utilised in the judicial proceedings up to the final verdict. The court also cannot take into consideration the time taken for disposal of any petition filed by or on behalf of the accused either under Article 226 or under Article 32 of the Constitution after the final judgment affirming the conviction and sentence. The court may only consider whether there was undue long delay in disposing of mercy petition; whether the State was guilty of dilatory conduct and whether the delay was for no reason at all. The inordinate delay, may be a significant factor, but that by itself cannot render the execution unconstitutional. Nor it can be divorced from the dastardly and diabolical circumstances of the crime itself…” (emphasis supplied)
61) On going through the judgment of Oza, J. on his
behalf and for M.M. Dutt, K.N. Singh and L.M. Sharma, JJ.,
we are of the view that the above quoted statement of
Shetty, J. is not a majority view and at the most this is a
view expressed by him alone. In this regard, at the cost of
repetition it is relevant to refer once again the operative
portion of the order dated 11.10.1988 in Triveniben
(supra) which is as under:-
“2. We are of the opinion that:
Undue long delay in execution of the sentence of death
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will entitle the condemned person to approach this Court under Article 32 but this Court will 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 re-open the conclusions reached by the court while finally maintaining the sentence of death. This Court, however, may 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. No fixed period of delay could be held to make the sentence of death inexecutable and to this extent the decision in Vatheeswaran case cannot be said to lay down the correct law and therefore to that extent stands overruled.”
62) The same view was once again reiterated by all the
Judges and the very same reasonings have been
reiterated in Para 23 of the order dated 07.02.1989. In
such circumstances and also in view of the categorical
opinion of Oza, J. in para 22 of the judgment in
Triveniben (supra) that “it will not be open to this Court
in exercise of jurisdiction under Article 32 to go behind or
to examine the final verdict…the nature of the offence,
circumstances in which the offence was committed will
have to be taken as found by the competent court…”, it
cannot be held, as urged, on behalf of the Union of India
that the majority opinion in Triveniben (supra) is to the
effect that delay is only one of the circumstances that may
be considered along with “other circumstances of the
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case” to determine as to whether the death sentence
should be commuted to one of life imprisonment. We are,
therefore, of the view that the opinion rendered by Shetty,
J. as quoted in para 76 of the judgment in Triveniben
(supra) is a minority view and not a view consistent with
what has been contended to be the majority opinion. We
reiterate that as per the majority view, if there is undue
long delay in execution of sentence of death, the
condemned prisoner is entitled to approach this Court
under Article 32 and the court is bound to examine the
nature of delay caused and circumstances that ensued
after sentence was finally confirmed by the judicial
process and to take a decision whether execution of
sentence should be carried out or should be altered into
imprisonment for life. It is, however, true that the majority
of the Judges have not approved the fixed period of two
years enunciated in Vatheeswaran (supra) and only to
that extent overruled the same.
63) Incidentally, it is relevant to point out Mahendra
Nath Das vs. Union of India and Ors. (2013) 6 SCC
253, wherein the very same bench, taking note of the fact
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that there was a delay of 12 years in the disposal of the
mercy petition and also considering the fact that the
appellants therein were prosecuted and convicted under
Section 302 IPC held the rejection of the appellants’ mercy
petition as illegal and consequently, the sentence of death
awarded to them by the trial Court which was confirmed
by the High Court, commuted into life imprisonment.
64) In the light of the same, we are of the view that the
ratio laid down in Devender Pal Singh Bhullar (supra)
is per incuriam. There is no dispute that in the same
decision this Court has accepted the ratio enunciated in
Triveniben (supra) (Constitution Bench) and also noted
some other judgments following the ratio laid down in
those cases that unexplained long delay may be one of
the grounds for commutation of sentence of death into life
imprisonment. There is no good reason to disqualify all
TADA cases as a class from relief on account of delay in
execution of death sentence. Each case requires
consideration on its own facts.
65) It is useful to refer a Constitution Bench decision of
this Court in Mithu vs. State of Punjab (1983) 2 SCC
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277, wherein this Court held Section 303 of the IPC as
unconstitutional and declared it void. The question before
the Constitution Bench was whether Section 303 of IPC
infringes the guarantee contained in Article 21 of the
Constitution, which provides that “no person shall be
deprived of his life or personal liberty except according to
the procedure established by law”. Chandrachud, J. the
then Hon’ble the Chief Justice, speaking for himself, Fazal
Ali, Tulzapurkar and Varadarajan, JJ., struck down Section
303 IPC as unconstitutional and declared it void. The
Bench also held that all the cases of murder will now fall
under Section 302 IPC and there shall be no mandatory
sentence of death for the offence of murder. The reasons
given by this Court for striking down this aforesaid section
will come in aid for this case. Section 303 IPC was as
under:
“303. Punishment for murder by life convict.— Whoever, being under sentence of imprisonment for life, commits murder, shall be punished with death.”
66) Before striking down Section 303 IPC, this Court
made the following conclusion:
“3…The reason, or at least one of the reasons, why the
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discretion of the court to impose a lesser sentence was taken away and the sentence of death was made mandatory in cases which are covered by Section 303 seems to have been that if, even the sentence of life imprisonment was not sufficient to act as a deterrent and the convict was hardened enough to commit a murder while serving that sentence, the only punishment which he deserved was death. The severity of this legislative judgment accorded with the deterrent and retributive theories of punishment which then held sway. The reformative theory of punishment attracted the attention of criminologists later in the day…
5…The sum and substance of the argument is that the provision contained in Section 303 is wholly unreasonable and arbitrary and thereby, it violates Article 21 of the Constitution which affords the guarantee that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Since the procedure by which Section 303 authorises the deprivation of life is unfair and unjust, the Section is unconstitutional. Having examined this argument with care and concern, we are of the opinion that it must be accepted and Section 303 of the Penal Code struck down.”
67) After quoting Maneka Gandhi (supra), Sunil Batra
vs. Delhi Administration (1978) 4 SCC 494 and Bachan
Singh (supra), this Court opined:
“19…To prescribe a mandatory sentence of death for the second of such offences for the reason that the offender was under the sentence of life imprisonment for the first of such offences is arbitrary beyond the bounds of all reason. Assuming that Section 235(2) of the Criminal Procedure Code were applicable to the case and the court was under an obligation to hear the accused on the question of sentence, it would have to put some such question to the accused: “You were sentenced to life imprisonment for the offence of forgery. You have committed a murder while you were under that sentence of life imprisonment. Why should you not be sentenced to death”
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The question carries its own refutation. It highlights how arbitrary and irrational it is to provide for a mandatory sentence of death in such circumstances…”
23. On a consideration of the various circumstances which we have mentioned in this judgment, we are of the opinion that Section 303 of the Penal Code violates the guarantee of equality contained in Article 14 as also the right conferred by Article 21 of the Constitution that no person shall be deprived of his life or personal liberty except according to procedure established by law. The section was originally conceived to discourage assaults by life convicts on the prison staff, but the legislature chose language which far exceeded its intention. The Section also assumes that life convicts are a dangerous breed of humanity as a class. That assumption is not supported by any scientific data. As observed by the Royal Commission in its Report on “Capital Punishment” “There is a popular belief that prisoners serving a life sentence after conviction of murder form a specially troublesome and dangerous class. That is not so. Most find themselves in prison because they have yielded to temptation under the pressure of a combination of circumstances unlikely to recur.” In Dilip Kumar Sharma v. State of M.P. this Court was not concerned with the question of the vires of Section 303, but Sarkaria, J., in his concurring judgment, described the vast sweep of that Section by saying that “the section is Draconian in severity, relentless and inexorable in operation” [SCC para 22, p. 567: SCC (Cri) p. 92]. We strike down Section 303 of the Penal Code as unconstitutional and declare it void. It is needless to add that all cases of murder will now fall under Section 302 of the Penal Code and there shall be no mandatory sentence of death for the offence of murder.”
68) Chinnappa Reddy, J., concurring with the above view,
held thus:
“25. Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon as he pronounces the accused guilty of the offence. So final, so irrevocable and
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so irrestitutable [sic irresuscitable] is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional.”
69) It is clear that since Section 303 IPC excludes judicial
discretion, the Constitution Bench has concluded that such
a law must necessarily be stigmatized as arbitrary and
oppressive. It is further clear that no one should be
deprived of equality contained in Article 14 as also the
right conferred by Article 21 of the Constitution regarding
his life or personal liberty except according to the
procedure established by law.
70) Taking guidance from the above principles and in the
light of the ratio enunciated in Triveniben (supra), we
are of the view that unexplained delay is one of the
grounds for commutation of sentence of death into life
imprisonment and the said supervening circumstance is
applicable to all types of cases including the offences
under TADA. The only aspect the courts have to satisfy is
that the delay must be unreasonable and unexplained or
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inordinate at the hands of the executive. The argument of
Mr. Luthra, learned ASG that a distinction can be drawn
between IPC and non-IPC offences since the nature of the
offence is a relevant factor is liable to be rejected at the
outset. In view of our conclusion, we are unable to share
the views expressed in Devender Pal Singh Bhullar
(supra).
(ii) Insanity/Mental Illness/Schizophrenia
71) In this batch of cases, two convict prisoners prayed
for commutation of death sentence into sentence of life
imprisonment on the ground that the unconscionably long
delay in deciding the mercy petition has caused the onset
of chronic psychotic illness, and in view of this the
execution of death sentence will be inhuman and against
the well-established canons of human rights.
72) The principal question raised in those petitions is
whether because of the aforementioned supervening
events after the verdict of this Court confirming the death
sentence, the infliction of the most extreme penalty in the
circumstances of the case, violates the fundamental rights
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under Article 21. The petitioners have made it clear that
they are not challenging the death sentence imposed by
this Court. However, as on date, they are suffering from
insanity/mental illness. In this background, let us consider
whether the petitioners have made out a case for
commutation to life sentence on the ground of insanity.
73) India is a member of the United Nations and has
ratified the International Covenant on Civil and Political
Rights (ICCPR). A large number of United Nations
international documents prohibit the execution of death
sentence on an insane person. Clause 3(e) of the
Resolution 2000/65 dated 27.04.2000 of the U.N.
Commission on Human Rights titled “The Question
of Death Penalty” urges “all States that still maintain
the death penalty…not to impose the death penalty on a
person suffering from any form of mental disorder or to
execute any such person”. It further elaborates:
“3. Urges all States that still maintain the death penalty: (a) To comply fully with their obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes and only pursuant to a final judgement rendered by an independent and impartial competent court, not to impose it for crimes committed by persons below 18 years of age, to exclude pregnant women from capital
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punishment and to ensure the right to a fair trial and the right to seek pardon or commutation of sentence; (b) To ensure that the notion of "most serious crimes" does not go beyond intentional crimes with lethal or extremely grave consequences and that the death penalty is not imposed for non-violent financial crimes or for non-violent religious practice or expression of conscience; (c) Not to enter any new reservations under article 6 of the International Covenant on Civil and Political Rights which may be contrary to the object and the purpose of the Covenant and to withdraw any such existing reservations, given that article 6 of the Covenant enshrines the minimum rules for the protection of the right to life and the generally accepted standards in this area; (d) To observe the Safeguards guaranteeing protection of the rights of those facing the death penalty and to comply fully with their international obligations, in particular with those under the Vienna Convention on Consular Relations; (e) Not to impose the death penalty on a person suffering from any form of mental disorder or to execute any such person; (f) Not to execute any person as long as any related legal procedure, at the international or at the national level, is pending; 4. Calls upon all States that still maintain the death penalty: (a) Progressively to restrict the number of offences for which the death penalty may be imposed; (b) To establish a moratorium on executions, with a view to completely abolishing the death penalty; (c) To make available to the public information with regard to the imposition of the death penalty; 5. Requests States that have received a request for extradition on a capital charge to reserve explicitly the right to refuse extradition in the absence of effective assurances from relevant authorities of the requesting State that capital punishment will not be carried out; 6. Requests the Secretary-General to continue to submit to the Commission on Human Rights, at its fifty-seventh session, in consultation with Governments, specialized agencies and intergovernmental and non-governmental organizations, a yearly supplement on changes in law and practice concerning the death penalty worldwide to his quinquennial report on capital punishment and implementation of the Safeguards guaranteeing
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protection of the rights of those facing the death penalty; 7. Decides to continue consideration of the matter at its fifty-seventh session under the same agenda item.
66th meeting
26 April 2000”
74) Similarly, Clause 89 of the Report of the Special
Rapporteur on Extra-Judicial Summary or Arbitrary
Executions published on 24.12.1996 by the UN
Commission on Human Rights under the caption
“Restrictions on the use of death penalty” states
that “the imposition of capital punishment on mentally
retarded or insane persons, pregnant women and recent
mothers is prohibited”. Further, Clause 116 thereof under
the caption “Capital punishment” urges that
“Governments that enforce such legislation with respect
to minors and the mentally ill are particularly called upon
to bring their domestic criminal laws into conformity with
international legal standards”.
75) United Nations General Assembly in its Sixty-second
session, adopted a Resolution on 18.12.2007, which
speaks about moratorium on the use of the death penalty.
The following decisions are relevant:
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“1. Expresses its deep concern about the continued application of the death penalty; 2. Calls upon all States that still maintain the death penalty: (a) To respect international standards that provide safeguards guaranteeing protection of the rights of those facing the death penalty, in particular the minimum standards, as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May 1984;
*** *** *** 76th plenary meeting
18 December 2007”
76) The following passage from the Commentary on the
Laws of England by William Blackstone is relevant for our
consideration:
“…In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself. Also, if a man in his sound memory commits a capital offense, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.”
77) India too has similar line of law and rules in the
respective State Jail Manuals. Paras 386 and 387 of the
U.P. Jail Manual applicable to the State of Uttarakhand are
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relevant for our purpose and are quoted hereinbelow:
“386. Condemned convicts developing insanity – When a convict under sentence of death develops insanity after conviction, the Superintendent shall stay the execution of the sentence of death and inform the District Magistrate, who shall submit immediately a report, through the Sessions Judge, for the orders of the State Government. 387. Postponement of execution in certain cases – The execution of a convict under sentence of death shall not be carried out on the date fixed if he is physically unfit to receive the punishment, but shall not be postponed unless the illness is both serious and acute (i.e. not chronic). A report giving full particulars of the illness necessitating postponement of execution should at once be made to the Secretary to the State Government, Judicial (A) Department for the orders of the Government.”
Similar provisions are available in Prison Manuals of other
States in India.
78) The above materials, particularly, the directions of
the United Nations International Conventions, of which
India is a party, clearly show that insanity/mental
illness/schizophrenia is a crucial supervening
circumstance, which should be considered by this Court in
deciding whether in the facts and circumstances of the
case death sentence could be commuted to life
imprisonment. To put it clear, “insanity” is a relevant
supervening factor for consideration by this Court.
79) In addition, after it is established that the death
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convict is insane and it is duly certified by the competent
doctor, undoubtedly, Article 21 protects him and such
person cannot be executed without further clarification
from the competent authority about his mental problems.
It is also highlighted by relying on commentaries from
various countries that civilized countries have not
executed death penalty on an insane person. Learned
counsel also relied on United Nations Resolution against
execution of death sentence, debate of the General
Assembly, the decisions of International Court of Justice,
Treaties, European Conventions, 8th amendment in the
United States which prohibits execution of death sentence
on an insane person. In view of the well established laws
both at national as well as international sphere, we are
inclined to consider insanity as one of the supervening
circumstances that warrants for commutation of death
sentence to life imprisonment.
(iii) Solitary Confinement
80) Another supervening circumstance, which most of
the petitioners appealed in their petitions is the ground of
solitary confinement. The grievance of some of the
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petitioners herein is that they were confined in solitary
confinement from the date of imposition of death
sentence by the Sessions Court which is contrary to the
provisions of the Indian Penal Code, 1860, the Code of
Criminal Procedure, 1973, Prisons Act and Articles 14, 19
and 21 of the Constitution and it is certainly a form of
torture. However, the respective States, in their counter
affidavits and in oral submissions, have out rightly denied
having kept any of the petitioners herein in solitary
confinement in violation of existing laws. It was further
submitted that they were kept separately from the other
prisoners for safety purposes. In other words, they were
kept in statutory segregation and not per se in solitary
confinement.
81) Similar line of arguments were advanced in Sunil
Batra vs. Delhi Administration and Ors. etc. (1978) 4
SCC 494, wherein this Court held as under:-
“87. The propositions of law canvassed in Batra's case turn on what is solitary confinement as a punishment and what is non-punitive custodial isolation of a prisoner awaiting execution. And secondly, if what is inflicted is, in effect, 'solitary', does Section 30(2) of the Act authorise it, and, if it does, is such a rigorous regimen constitutional. In one sense, these questions are pushed to the background, because Batra's submission is that he is not 'under sentence of death' within the scope of Section 30 until the
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Supreme Court has affirmed and Presidential mercy has dried up by a final 'nay'. Batra has been sentenced to death by the Sessions Court. The sentence has since been confirmed, but the appeal for Presidential commutation are ordinarily precedent to the hangmen's lethal move, and remain to be gone through. His contention is that solitary confinement is a separate substantive punishment of maddening severity prescribed by Section 73 of the Indian Penal Code which can be imposed only by the Court; and so tormenting is this sentence that even the socially less sensitive Penal Code of 1860 has interposed, in its cruel tenderness, intervals, maxima and like softening features in both Sections 73 and 74. Such being the penal situation, it is argued that the incarceratory insulation inflicted by the Prison Superintendent on the petitioner is virtual solitary confinement unauthorised by the Penal Code and, therefore, illegal. Admittedly, no solitary confinement has been awarded to Batra. So, if he is de facto so confined it is illegal. Nor does a sentence of death under Section 53, I.P.C. carry with it a supplementary secret clause of solitary confinement. What warrant then exists for solitary confinement on Batra? None. The answer offered is that he is not under solitary confinement. He is under 'statutory confinement' under the authority of Section 30(2) of the Prisons Act read with Section 366(2) Cr.P.C. It will be a stultification of judicial power if under guise of using Section 30(2) of the Prisons Act, the Superintendent inflicts what is substantially solitary confinement which is a species of punishment exclusively within the jurisdiction of the criminal court. We hold, without hesitation, that Sunil Batra shall not be solitarily confined. Can he be segregated from view and voice and visits and comingling, by resort to Section 30(2) of the Prisons Act and reach the same result ? To give the answer we must examine the essentials of solitary confinement to distinguish it from being 'confined in a cell apart from all other prisoners'.
88. If solitary confinement is a revolt against society's humane essence, there is no reason to permit the same punishment to be smuggled into the prison system by naming it differently. Law is not a formal label, nor logomachy but a working technique of justice. The Penal Code and the Criminal Procedure Code regard punitive solitude too harsh and the Legislature cannot be intended to permit preventive solitary confinement, released even from the restrictions of Section 73 and 74 I.P.C., Section 29 of the Prisons Act and the restrictive Prison Rules. It would be extraordinary that a far worse solitary confinement, masked as safe custody, sans maximum, sans
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intermission, sans judicial oversight or natural justice, would be sanctioned. Commonsense quarrels with such nonsense.
89. For a fuller comprehension of the legal provisions and their construction we may have to quote the relevant sections and thereafter make a laboratory dissection thereof to get an understanding of the components which make up the legislative sanction for semi-solitary detention of Shri Batra. Section 30 of the Prisons Act rules :
30. (1) Every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Deputy Superintendent, and all articles shall be taken from him which the Deputy Superintendent deems it dangerous or inexpedient to leave in his possession.
(2) Every such prisoner, shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under charge of a guard.
This falls in Chapter V relating to discipline of prisoners and has to be read in that context. Any separate confinement contemplated in Section 30(2) has this disciplinary limitation as we will presently see. If we pull to pieces the whole provision it becomes clear that Section 30 can be applied only to a prisoner "under sentence of death". Section 30(2) which speaks of "such" prisoners necessarily relates to prisoners under sentence of death. We have to discover when we can designate a prisoner as one under sentence of death.
90. The next attempt is to discern the meaning of confinement "in a cell apart from all other prisoners". The purpose is to maintain discipline and discipline is to avoid disorder, fight and other untoward incidents, if apprehended.
91. Confinement inside a prison does not necessarily import cellular isolation. Segregation of one person all alone in a single cell is solitary confinement. That is a separate punishment which the Court alone can impose. It would be a subversion of this statutory provision (Section 73 and 74 I.P.C.) to impart a meaning to Section 30(2) of the Prisons Act whereby a disciplinary variant of solitary confinement can be clamped down on a prisoner, although no court has awarded such a punishment, by a mere construction, which clothes an executive officer, who
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happens to be the governor of the jail, with harsh judicial powers to be exercised by punitive restrictions and unaccountable to anyone, the power being discretionary and disciplinary.
92. Indeed, in a jail, cells are ordinarily occupied by more than one inmate and community life inside dormitories and cells is common. Therefore, "to be confined in a cell" does not compel us to the conclusion that the confinement should be in a solitary cell.
93. "Apart from all other prisoners" used in Section 30(2) is also a phrase of flexible import. 'Apart' has the sense of 'To one side, aside,... apart from each other, separately in action or function' (Shorter Oxford English Dictionary). Segregation into an isolated cell is not warranted by the word. All that it connotes is that in a cell where there are a plurality of inmates the death sentencees will have to be kept separated from the rest in the same cell but not too close to the others. And this separation can be effectively achieved because the condemned prisoner will be placed under the charge of a guard by day and by night. The guard will thus stand in between the several inmates and the condemned prisoner. Such a meaning preserves the disciplinary purpose and avoids punitive harshness. Viewed functionally, the separation is authorised, not obligated. That is to say, if discipline needs it the authority shall be entitled to and the prisoner shall be liable to separate keeping within the same cell as explained above. "Shall" means, in this disciplinary context, "shall be liable to". If the condemned prisoner is docile and needs the attention of fellow prisoners nothing forbids the jailor from giving him that facility.
96. Solitary confinement has the severest sting and is awardable only by Court. To island a human being, to keep him incommunicado from his fellows is the story of the Andamans under the British, of Napoleon in St. Helena ! The anguish of aloneness has already been dealt with by me and I hold that Section 30(2) provides no alibi for any form of solitary or separated cellular tenancy for the death sentence, save to the extent indicated.
111. In my judgment Section 30(2) does not validate the State's treatment of Batra. To argue that it is not solitary confinement since visitors are allowed, doctors and officials come and a guard stands by is not to take it out of the category.”
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82) It was, therefore, held that the solitary confinement,
even if mollified and modified marginally, is not
sanctioned by Section 30 of the Prisons Act for prisoners
'under sentence of death'. The crucial holding under
Section 30(2) is that a person is not 'under sentence of
death', even if the Sessions Court has sentenced him to
death subject to confirmation by the High Court. He is not
'under sentence of death' even if the High Court imposes,
by confirmation or fresh appellate infliction, death penalty,
so long as an appeal to the Supreme Court is likely to be
or has been moved or is pending. Even if this Court has
awarded capital sentence, it was held that Section 30 does
not cover him so long as his petition for mercy to the
Governor and/or to the President permitted by the
Constitution, has not been disposed of. Of course, once
rejected by the Governor and the President, and on further
application, there is no stay of execution by the
authorities, the person is under sentence of death. During
that interregnum, he attracts the custodial segregation
specified in Section 30(2), subject to the ameliorative
meaning assigned to the provision. To be 'under sentence
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of death' means 'to be under a finally executable death
sentence'.
83) Even in Triveniben (supra), this Court observed
that keeping a prisoner in solitary confinement is contrary
to the ruling in Sunil Batra (supra) and would amount to
inflicting “additional and separate” punishment not
authorized by law. It is completely unfortunate that
despite enduring pronouncement on judicial side, the
actual implementation of the provisions is far from reality.
We take this occasion to urge to the jail authorities to
comprehend and implement the actual intent of the
verdict in Sunil Batra (supra).
84) As far as this batch of cases is concerned, we are not
inclined to interfere on this ground.
(iv) Judgments Declared Per Incuriam
85) Many counsels, while adverting to the cause of the
petitioners, complained that either the trial court or the
High Court relied on/adverted to certain earlier decisions
which were either doubted or held per incuriam such as
Machhi Singh vs. State of Punjab (1983) 3 SCC 470,
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Ravji alias Ramchandra vs. State of Rajasthan (1996)
2 SCC 175, Sushil Murmu vs. State of Jharkhand
(2004) 2 SCC 338, Dhananjoy Chatterjee vs. State of
W.B. (1994) 2 SCC 220, State of U.P. vs. Dharmendra
Singh (1999) 8 SCC 325 and Surja Ram vs. State of
Rajasthan (1996) 6 SCC 271. Therefore, it is the claim of
the petitioners herein that this aspect constitutes a
supervening circumstance that warrants for commutation
of sentence of death to life imprisonment.
86) It is the stand of few of the petitioners herein that the
guidelines issued in Machhi Singh (supra) are contrary
to the law laid down in Bachan Singh (supra).
Therefore, in three decisions, viz., Swamy
Shraddananda (2) vs. State of Karnataka (2008) 13
SCC 767, Sangeet and Another vs. State of Haryana
(2013) 2 SCC 452 and Gurvail Singh vs. State of
Punjab (2013) 2 SCC 713 the verdict pronounced by
Machhi Singh (supra) is held to be per incuriam.
87) In the light of the above stand, we carefully
scrutinized those decisions. Even in Machhi Singh
(supra), paragraphs 33 to 37 included certain aspects,
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viz., I. manner of commission of murder; II. motive for
commission of murder; III. anti-social or socially abhorrent
nature of the crime; IV. magnitude of crime and V.
personality of victim of murder. Ultimately, in paragraph
38, this Court referred to the guidelines prescribed in
Bachan Singh (supra). In other words, Machhi Singh
(supra), after noting the propositions emerged from
Bachan Singh (supra), considered the individual
appeals and disposed of the same. In this regard, it is
useful to refer a three-Judge Bench decision of this Court
in Swamy Shraddananda (2) (supra). The Bench
considered the principles enunciated in Machhi Singh
(supra), Bachan Singh (supra) and after analyzing the
subsequent decisions, came to the conclusion in
paragraph 48:
“48…It is noted above that Bachan Singh laid down the principle of the rarest of rare cases. Machhi Singh, for practical application crystallised the principle into five definite categories of cases of murder and in doing so also considerably enlarged the scope for imposing death penalty. But the unfortunate reality is that in later decisions neither the rarest of rare cases principle nor the Machhi Singh categories were followed uniformly and consistently.”
88) Except the above observations, the three-Judge
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Bench has nowhere discarded Machhi Singh (supra). In
other words, we are of the view that the three-Judge
Bench considered and clarified the principles/guidelines in
Machhi Singh (supra). It is also relied by the majority in
Triveniben (supra). As regards other cases, in view of
the factual position, they must be read in consonance with
the three-Judge Bench and the Constitution Bench.
89) As pointed out by learned ASG for the Union of India,
no decision mentioned above was found to be erroneous
or wrongly decided. However, due to various factual
situations, certain decisions were clarified and not applied
to the facts of the peculiar case. In these circumstances,
we are of the view that there is no need to give
importance to the arguments relating to per incuriam.
(v) Procedural Lapses
90) The last supervening circumstance averred by the
petitioners herein is the ground of procedural lapses. It is
the claim of the petitioners herein that the prescribed
procedure for disposal of mercy petitions was not duly
followed in these cases and the lapse in following the
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prescribed rules have caused serious injustice to both the
accused (the petitioners herein) and their family
members.
91) Ministry of Home Affairs, Government of India has
detailed procedure regarding handling of petitions for
mercy in death sentence cases. As per the said
procedure, Rule I enables a convict under sentence of
death to submit a petition for mercy within seven days
after and exclusive of the day on which the
Superintendent of Jail informs him of the dismissal by the
Supreme Court of his appeal or of his application for
special leave to appeal to the Supreme Court. Rule II
prescribes procedure for submission of petitions. As per
this Rule, such petitions shall be addressed to, in the case
of States, to the Governor of the State at the first instance
and thereafter to the President of India and in the case of
Union Territories directly to the President of India. As soon
as mercy petition is received, the execution of sentence
shall in all cases be postponed pending receipt of orders
on the same. Rule III states that the petition shall in the
first instance, in the case of States, be sent to the State
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concerned for consideration and orders of the Governor. If
after consideration it is rejected, it shall be forwarded to
the Secretary to the Government of India, Ministry of
Home Affairs. If it is decided to commute the sentence of
death, the petition addressed to the President of India
shall be withheld and intimation to that effect shall be sent
to the petitioner. Rule V states that in all cases in which a
petition for mercy from a convict under sentence of death
is to be forwarded to the Secretary to the Government of
India, Ministry of Home Affairs, the Lt. Governor/Chief
Commissioner/Administrator or the Government of the
State concerned, as the case may be, shall forward such
petition, as expeditiously as possible, along with the
records of the case and his or its observations in respect
of any of the grounds urged in the petition. Rule VI
mandates that upon receipt of the orders of the President,
an acknowledgement shall be sent to the Secretary to the
Government of India, Ministry of Home Affairs,
immediately in the manner prescribed. In the case of
Assam and Andaman and Nicobar Islands, all orders will be
communicated by telegraph and the receipt thereof shall
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be acknowledged by telegraph. In the case of other
States and Union Territories, if the petition is rejected, the
orders will be communicated by express letter and receipt
thereof shall be acknowledged by express letter. Orders
commuting the death sentence will be communicated by
express letters, in the case of Delhi and by telegraph in all
other cases and receipt thereof shall be acknowledged by
express letter or telegraph, as the case may be. Rule
VIII(a) enables the convict that if there is a change of
circumstance or if any new material is available in respect
of rejection of his earlier mercy petition, he is free to make
fresh application to the President for reconsideration of
the earlier order.
92) Specific instructions relating to the duties of
Superintendents of Jail in connection with the petitions for
mercy for or on behalf of the convicts under sentence of
death have been issued. Rule I mandates that
immediately on receipt of warrant of execution,
consequent on the confirmation by the High Court of the
sentence of death, the Jail Superintendent shall inform the
convict concerned that if he wishes to appeal to the
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Supreme Court or to make an application for special leave
to appeal to the Supreme Court under any of the relevant
provisions of the Constitution of India, he/she should do so
within the period prescribed in the Supreme Court Rules.
Rule II makes it clear that, on receipt of the intimation of
the dismissal by the Supreme Court of the appeal or the
application for special leave to appeal filed 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 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. Rule III says that if the
convict submits a petition within the period of seven days
prescribed by Rule II, it should be addressed, in the case
of States, to the Governor of the State at the first instance
and, thereafter, to the President of India and in the case of
Union Territories, to the President of India. The
Superintendent of Jail shall forthwith dispatch it to the
Secretary to the State Government in the Department
concerned or the Lt. Governor/Chief
Commissioner/Administrator, as the case may be, together
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with a covering letter reporting the date fixed for
execution and shall certify that the execution has been
stayed pending receipt of orders of the Government on
the petition. Rule IV mandates that if the convict submits
petition after the period prescribed by Rule II, the
Superintendent of Jail shall, at once, forward it to the State
Government and at the same time telegraphed the
substance of it requesting orders whether execution
should be postponed stating that pending reply sentence
will not be carried out.
93) The above Rules make it clear that at every stage the
matter has to be expedited and there cannot be any delay
at the instance of the officers, particularly, the
Superintendent of Jail, in view of the language used
therein as “at once”.
94) Apart from the above Rules regarding presentation of
mercy petitions and disposal thereof, necessary
instructions have been issued for preparation of note to be
approved by the Home Minister and for passing
appropriate orders by the President of India.
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95) Extracts from Prison Manuals of various States
applicable for the disposal of mercy petitions have been
placed before us. Every State has separate Prison Manual
which speaks about detailed procedure, receipt placing
required materials for approval of the Home Minister and
the President for taking decision expeditiously. Rules also
provide steps to be taken by the Superintendent of Jail
after the receipt of mercy petition and subsequent action
after disposal of the same by the President of India.
Almost all the Rules prescribe how the death convicts are
to be treated till final decision is taken by the President of
India.
96) The elaborate procedure clearly shows that even
death convicts have to be treated fairly in the light of
Article 21 of the Constitution of India. Nevertheless, it is
the claim of all the petitioners herein that all these rules
were not adhered to strictly and that is the primary reason
for the inordinate delay in disposal of mercy petitions. For
illustration, on receipt of mercy petition, the Department
concerned has to call for all the records/materials
connected with the conviction. Calling for piece-meal
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records instead of all the materials connected with the
conviction should be deprecated. When the matter is
placed before the President, it is incumbent upon the part
of the Home Ministry to place all the materials such as
judgment of the Trial Court, High Court and the final Court,
viz., Supreme Court as well as any other relevant material
connected with the conviction at once and not call for the
documents in piece meal.
97) At the time of considering individual cases, we will
test whether those Rules have been strictly complied with
or not on individual basis.
Analysis on Case-to-Case Basis
Writ Petition (Crl.) Nos. 55 and 132 of 2013
98) Mr. Shatrughan Chauhan and Mr. Mahinder Chauhan,
family members of death convicts – Suresh and Ramji
have filed Writ Petition (Crl.) No. 55 of 2013. Subsequent
to the filing of the Writ Petition (Crl.) No. 55 of 2013 by the
family members, the death convicts themselves, viz.,
Suresh and Ramji, aged 60 years and 45 years
respectively, belonging to the State of Uttar Pradesh, filed
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Writ Petition (Crl.) No. 132 of the 2013.
99) On 19.12.1997, the petitioners were convicted under
Section 302 IPC for the murder of five family members of
the first petitioner’s brother for which they were awarded
death sentence. On 23.02.2000, the Allahabad High Court
confirmed their conviction and death sentence and,
subsequently this Court dismissed their Criminal Appeal
being No. 821 of 2000, vide judgment dated 02.03.2001.
100) On 09.03.2001 and 29.04.2001, the first and the
second petitioners herein filed mercy petitions
respectively addressed to the Governor/President of India.
On 28.03.2001, Respondent No. 2–State of Uttar Pradesh
wrote to the prison authorities seeking information inter
alia on the conduct of the first petitioner in prison. On
05.04.2001, the prison authorities informed Respondent
No. 2 about his good conduct.
101) On 18.04.2001, this Court dismissed the Review
Petition (Crl.) being No. 416 of 2001 which was filed on
30.03.2001.
102) On 22.04.2001, Respondent No. 1–Union of India
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wrote to Respondent No. 2 asking for the record of the
case and for information on whether mercy petition has
been rejected by the Governor. Meanwhile, other mercy
petitions were received by Respondent No. 1. There is no
reference in the affidavit of Respondent No. 1 that the
same were forwarded to Respondent No. 2 for
consideration.
103) On 04.05.2001, Respondent No. 2 wrote to the
Government Advocate, District Varanasi asking for a copy
of the trial court judgment, which information is available
from the counter affidavit filed by Respondent No. 2. On
23.05.2001, Respondent No. 2 sent a reminder to the
Government Advocate, District Varanasi to send a copy of
the trial court judgment. On 04.09.2001, the District
Magistrate, Varanasi informed Respondent No. 2 that it is
not possible to get a copy of the trial court judgment as all
the papers are lying in the Supreme Court.
104) On 13.12.2001, without obtaining a copy of the trial
court judgment, Respondent No. 2 advised the Governor
to reject the mercy petition. On 18.12.2001, the Governor
rejected the mercy petition after taking nine months’ time.
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On 22.01.2002, Respondent No. 2 informed Respondent
No. 1 that the Governor has rejected the petitioners’
mercy petition. It is the grievance of the petitioners that
neither the petitioners nor their family members were
informed about the rejection.
105) On 28.03.2002, Respondent No. 1 wrote to
Respondent No. 2 seeking copy of the trial court
judgment. On 12.06.2002, the judgment of the trial court
was furnished by Respondent No. 2 to Respondent No. 1.
106) Rule V of the Mercy Petition Rules which exclusively
provides that the mercy petition should be sent along with
the judgments and related documents immediately, states
as follows:
“In all cases in which a petition for mercy from a convict under sentence of death is to be forwarded to the Secretary to the Government of India, Ministry of Home Affairs, the Lieut Governor/Chief Commissioner/Administrator or the Government of the State concerned as the case may be shall forward such petition as expeditiously as possible along with the records of the case and his or its observations in respect of any of the grounds urged in the petition”.
107) There is no explanation for the delay of about five
months in sending the papers to Respondent No. 1. On
07.12.2002, Respondent No. 2 wrote to Respondent No. 1
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seeking information about the status of the petitioners’
mercy petition. Twelve reminders were sent between
17.01.2003 and 14.12.2005.
108) On 27.07.2003, Respondent No. 4-Superintendent of
Jail, in accordance with the provisions of the U.P. Jail
Manual, wrote to Respondent No. 2 seeking information
about the petitioners’ pending mercy petitions.
Thereafter, twenty-seven reminders were sent by the
prison authorities between 29.09.2003 and 29.05.2006.
109) On 08.04.2004, Respondent No. 1 advised the
President to reject the mercy petition. On 21.07.2004, the
President returned the petitioners’ file (along with the files
of ten other death-row convicts) to Respondent No. 1 for
the advice of the new Home Minister. On 20.06.2005,
Respondent No. 1 advised the President to reject the
mercy petitions. On 24.12.2010, Respondent No. 1
recalled the files from the President. On 13.01.2011, the
said files were received from the President. On
19.02.2011, Respondent No. 1 advised the President to
reject the mercy petition.
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110) On 14.11.2011, Respondent No. 2 wrote to
Respondent No. 1 seeking information about the status of
the petitioners’ mercy petitions.
111) On 29.10.2012, the President returned the file for the
advice of the new Home Minister. On 16.01.2013,
Respondent No. 1 advised the President to reject the
mercy petition. On 08.02.2013, the President rejected the
mercy petitions.
112) On 05.04.2013, the petitioners heard the news
reports that their mercy petitions have been rejected by
the President of India. It is asserted that they have not
received any written confirmation till this date.
113) On 06.04.2013, the petitioners authorized their
family members, viz. Mr. Shatrughan Chauhan and Mr.
Mahinder Chauhan, to file an urgent writ petition in this
Court, which was ultimately numbered as Writ Petition
(Crl.) No. 55 of 2013. By order dated 06.04.2013, this
Court stayed the execution of the petitioners. Only on
20.06.2013, the prison authorities informed vide letter
dated 18.06.2013 that the petitioners’ mercy petitions
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have been rejected by the President.
114) All the above details have been culled out from the
writ petitions filed by the petitioners and the counter
affidavit filed on behalf of the Union of India as well as the
State of Uttar Pradesh. The following are the details
relating to disposal of mercy petitions by the Governor
and the President:
Custody suffered till date 6.10.1996 – 17.12.2013
17 years 2 months
Custody suffered under sentence of death
19.12.1997 – 17.12.2013
16 years
Total delay since filing of mercy petition till prisoner informed of rejection by the President
27.04.2001 – 20.06.2013
12 years 2 months
Delay in disposal of mercy petition by Governor First petitioner
Second petitioner
9.3.2001 – 28.01.2002
27.04.2001 – 28.01.2002
10 months
9 months
Delay in disposal of mercy petition by the President
28.01.2002 – 08.02.2013
11 years
Delay in communicating rejection by the President
8.02.2013 – 20.06.2013
4 months
115) There is no dispute that these petitioners killed five
members of their family – two adults and three children
over property dispute. It is a heinous crime and they were
awarded death sentence which was also confirmed by this
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Court. However, the details furnished in the form of
affidavits by the petitioners, counter affidavit filed by
Respondent Nos. 1 and 2 as well as the records produced
by Mr. Luthra, learned Additional Solicitor General, clearly
show that there was a delay of twelve years in disposal of
their mercy petitions. To put it clear, the Governor of
Uttar Pradesh took around ten months to reject the mercy
petitions (09.03.2001 to 28.01.2002) and the President
rejected the petitions with a delay of eleven years
(28.01.2002 to 08.02.2013). We also verified the
summary prepared by the Ministry of Home Affairs for the
President and the connected papers placed by learned
ASG wherein no discussion with regard to the same was
attributed to.
116) On going through various details, stages and
considerations and in the light of various principles
discussed above and also of the fact that this Court has
accepted in a series of decisions that undue and
unexplained delay in execution is one of the supervening
circumstances, we hold that in the absence of proper,
plausible and acceptable reasons for the delay, the delay
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of twelve years in considering the mercy petitions is a
relevant ground for the commutation of death sentence
into life imprisonment. We are also satisfied that the
summary prepared by the Ministry of Home Affairs for the
President makes no mention of twelve years’ delay much
less any plausible reason. Accordingly, both the death
convicts – Suresh and Ramji have made out a case for
commutation of their death sentence into life
imprisonment.
Writ Petition (Crl.) No. 34 of 2013
117) This writ petition is filed by Shamik Narain which
relates to four death convicts, viz., Bilavendran, Simon,
Gnanprakasam and Madiah aged 55 years, 50 years, 60
years and 64 years respectively.
118) The case emanates from the State of Karnataka.
According to the petitioners, the accused persons are in
custody for nearly 19 years and 7 months. All the persons
were charged under IPC as well as under the provisions of
the TADA. By judgment dated 29.09.2001, the Designated
TADA Court, Mysore convicted the accused persons for the
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offence punishable under TADA as well as IPC and the
Arms Act and sentenced them inter alia to undergo
rigorous imprisonment for life.
119) All the accused persons preferred Criminal Appeal
being Nos. 149-150 of 2002 before this Court which were
admitted by this Court. The State of Karnataka also filed a
Criminal Appeal being No. 34 of 2003 against the
judgment dated 29.09.2001 praying for enhancement of
sentence from life imprisonment to death sentence. On
09.01.2003, this Court refused to accept the claim of the
State of Karnataka and dismissed its appeal on the ground
of limitation. However, this Court, by judgment and order
dated 29.01.2004, suo motu enhanced the sentence of the
accused persons from life imprisonment to death. In the
same order, this Court confirmed the conviction and
sentence imposed by the TADA Court and dismissed the
appeals preferred by the accused.
120) On 12.02.2004, separate mercy petitions were filed
by the petitioners and the Superintendent, Central Jail,
Belgaum forwarded the same to Respondent No. 1.
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121) On 29.04.2004, the review petitions filed by the
petitioners were also dismissed by this Court.
122) On 29.07.2004, the Governor rejected the mercy
petitions and, according to the petitioners, they were
never informed about the same.
123) On 07.08.2004, Respondent No. 2 forwarded the
mercy petitions to Respondent No. 1 which were received
on 16.08.2004. Here again, there is no explanation for the
delay of six months from 12.02.2004, when the mercy
petitions were first forwarded to Respondent No. 1.
124) On 19.08.2004, Respondent No. 1 requested
Respondent No. 2 for a copy of the trial court judgment.
Here again, the trial court judgment and other relevant
documents should have been sent to Respondent No. 1
along with the mercy petitions. We have already
extracted Rule V of the Mercy Petition Rules relating to
forwarding of the required materials as expeditiously as
possible. On 30.08.2004, Respondent No. 2 sent a copy of
the trial court judgment to Respondent No. 1 which was
received on 09.09.2004.
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125) On 18.10.2004, the petitioners’ gang leader
Veerappan was killed in an encounter by a Special Task
Force and his gang disbanded.
126) On 29.04.2005, the Home Minister advised the
President to reject the mercy petitions. There was no
further progress in the petitions till the files were recalled
from the President and received back in the Ministry of
Home Affairs, i.e., six years later on 16.05.2011. Though
separate counter affidavit has been filed by Respondent
No. 1, there is no explanation whatsoever for the delay of
six years. Learned counsel for the petitioners pointed out
that it is pertinent to take note of the fact that two
consecutive Presidents had deemed it fit not to act on the
advice suggested. In any event, this procrastination
violated the petitioners’ right under Article 21 of the
Constitution by inflicting six additional years of
imprisonment under the constant fear of imminent death
not authorized by judgment of any court.
127) On 28.02.2006, Curative Petition being No. 6 of 2006
was dismissed by this Court.
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128) In the meanwhile, letters were sent by the petitioners
to the President of India highlighting their grievance about
their procrastination for about last twelve years. The
information furnished by the Ministry of Home Affairs
under the Right to Information Act shows that mercy
petitions submitted after the petitions of the petitioners
were given priority and decided earlier while the mercy
petitions of the petitioners were kept pending.
129) On 16.05.2011, the mercy petitions were recalled by
Respondent No. 1 from the President. Here again, there is
no explanation for the delay of six years. On 25.05.2011,
the Home Minister advised the President for the second
time to reject the mercy petition. On 19.11.2012, the
President returned the file stating that the views of the
new Home Minister may be ascertained. Here again, there
is no explanation for the delay of 1 ½ years while the file
was pending with the President. On 16.01.2013, the
Home Minister advised the President for the third time to
reject the mercy petitions. On 08.02.2013, the President
rejected the mercy petitions and Respondent No. 2 was
informed vide letter dated 09.02.2013.
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130) It is the grievance of the petitioners that though they
were informed orally and signatures were obtained, the
prison authorities refused to hand over the copy of the
rejection letter to them or to their advocate. The details
regarding delay in this matter are as follows:
Custody suffered till date 14.07.1993 – 17.12.2013
20 years 5 months
Custody suffered under sentence of death
29.01.2004 – 17.12.2013
9 years 11 months
Total delay in disposal of the mercy petitions
12.02.2004 – 08.02.2013
9 years
131) The delay of six months (12.02.2004 – 07.08.2004)
when the mercy petitions were being considered by the
Governor is attributed to Respondent No. 1 because the
mercy petition had been sent to Respondent No. 1 on
12.02.2004 and also because Respondent No. 2/Governor
did not have jurisdiction to entertain the mercy petitions
and even if clemency had been granted, it would have
been null and void.
132) From the particulars furnished by the petitioners as
well as the details mentioned in the counter affidavit of
Respondent Nos. 1 and 2, we are satisfied that the delay
of nine years in disposal of their mercy petitions is
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unreasonable and no proper explanation has been offered
for the same. Apart from the delay in question, according
to us, it is important to note that delay is undue and
unexplained. Certain other aspects also support the case
of the petitioners for commutation.
133) We have already mentioned that on 29.01.2004, this
Court, by its judgment and order, suo motu enhanced the
sentence from life imprisonment to death. It is relevant to
point out that when the State preferred an appeal for
enhancement of the sentence from life to death, this Court
rejected the claim of the State, however, this Court suo
motu enhanced the same and the fact remains that the
appeal filed by the State for enhancement was rejected by
this Court.
134) In the earlier part of our discussion, we have already
held that the decision in Devender Pal Singh Bhullar
(supra), holding that the cases pertaining to offences
under TADA have to be treated differently and on the
ground of delay in disposal of mercy petition the death
sentence cannot be commuted, is per incuriam. Further,
this Court in Yakub Memon vs. State of Maharashtra
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(Criminal Appeal No. 1728 of 2007) delivered on
21.03.2013 and in subsequent cases commuted the death
sentence passed in TADA case to imprisonment for life.
135) Taking note of these aspects, viz., their age, in
custody for nearly twenty years, unexplained delay of nine
years in disposal of mercy petitions coupled with other
reasons and also of the fact that the summary prepared
by the Ministry of Home Affairs for the President makes no
mention of the delay of 9 ½ years and also in the light of
the principles enunciated in the earlier paragraphs, we
hold that the petitioners have made out a case for
commutation of death sentence to imprisonment for life.
Writ Petition (Crl.)No. 187 of 2013
136) Praveen Kumar, aged about 55 years, hailing from
Karnataka, has filed this petition. He was charged for
murdering four members of a family and ultimately by
judgment dated 05.02.2002, he was convicted under
Sections 302, 392 and 397 IPC and sentenced to death.
The petitioner was defended on legal aid.
137) By judgment dated 28.10.2002, death sentence was
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confirmed by the Division Bench of the High Court of
Karnataka and by order dated 15.10.2003, this Court
dismissed the appeal filed by the petitioner.
138) On 25.10.2003, the petitioner sent the mercy petition
addressed to the President of India wherein he highlighted
that he has been kept in solitary confinement since the
judgment of the trial Court, i.e., 05.02.2002.
139) On 12.12.2003, Respondent No. 1 requested
Respondent No. 2 to consider the petitioner’s mercy
petition under Article 161 of the Constitution and intimate
the decision along with the copies of the judgment of the
trial Court, High Court, police diary and court proceedings.
Respondent No. 1 also received mercy petition signed by
260 persons. By order dated 15.09.2004, the Governor
rejected the mercy petition. On 30.09.2004, Respondent
No. 2 informed Respondent No. 1 that the petitioner’s
mercy petition has been rejected by the Governor.
140) On 18.10.2004, Respondent No. 1 requested
Respondent No. 2 for the second time to send the
judgment of the trial Court along with the police diary and
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court proceedings. On 20.12.2004, according to
Respondent No. 1, Respondent No. 2 sent the requested
documents to Respondent No. 1 but Respondent No. 1
claimed that the same were in Kannada. On 07.01.2005,
Respondent No. 1 returned the documents sent by
Respondent No. 2 with a request to provide English
translation. The State Government was again reminded in
this regard on 05.04.2005, 20.04.2005, 04.06.2005 and
21.07.2005. Even after these reminders, the translated
documents were not sent.
141) On 06.09.2005, the mercy petition of the petitioner-
Praveen Kumar was processed and examined without
waiting for the copy of the judgment of the trial Court and
submitted for consideration of the Home Minister. The
Home Minister approved the rejection of the mercy
petition. On 07.09.2005, Respondent No. 1 advised the
President to reject the petitioner’s mercy petition. On
14.03.2006, Respondent No. 2 sent the translated
documents to Respondent No. 1.
142) On 20.08.2006, the petitioner wrote to the President
referring to his earlier mercy petition dated 25.10.2003
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stating that for the last four years and seven months he
has been languishing in solitary confinement under
constant fear of death.
143) On 29.09.2006, the petitioner wrote to the Chief
Minister of Karnataka referring to his earlier mercy petition
dated 25.10.2003 highlighting the same grievance.
144) The information received under RTI Act shows that
mercy petitions submitted after the petition of the
petitioner were given priority and decided earlier while the
mercy petition of the petitioner was kept pending.
145) On 01.07.2011, the petitioner’s mercy petition was
recalled from the President and received by Respondent
No. 1 and thereafter it remained pending consideration of
the President of India for five years and 10 months. There
is no explanation for this inordinate delay.
146) On 14.07.2011, Respondent No. 1 advised the
President to reject the petitioner’s mercy petition. The file
remained with the President till 29.10.2012, i.e. for 1 year
3 months and no explanation was offered for this delay.
147) On 29.10.2012, the President returned the
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petitioner’s mercy petition to Respondent No. 1 ostensibly
on the ground of an appeal made by 14 former Judges.
However, this appeal, as is admitted in the counter
affidavit filed by Respondent No. 1 itself, “had not
indicated any plea in respect of Praveen Kumar”. On
16.01.2013, Respondent No. 1 advised the President to
reject the petitioner’s mercy petition.
148) On 26.03.2013, the President rejected the
petitioner’s mercy petition. On 05.04.2013, the petitioner
heard news reports that his mercy petition has been
rejected by the President of India. He has not received
any written confirmation of the same till date.
149) On 06.04.2013, this Court stayed the execution of
the sentence in Writ Petition (Crl.) No. 56 of 2013 filed by
PUDR. The following details show the delay in disposal of
petitioner’s mercy petition by the Governor and the
President:
Custody suffered till date
2.3.94- 19.2.95+1.2.99- 17.12.13
15 years 9 months
Custody suffered under sentence of death
04.02.02-17.12.13 11 years 10 months
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Total delay since filing of mercy petition till prisoner coming to know of rejection by President
25.10.2003-5.4.2013 9 years 5 months
Delay in disposal of mercy petition by Governor
25.10.03-30.09.04 11 months
Delay in disposal of mercy petition by President
30.09.04-26.03.2013 8 ½ years
150) Though learned counsel for the petitioner highlighted
that the trial Court relied on certain decisions which were
later held to be per incuriam, in view of the fact that there
is a delay of 9½ years in disposal of the mercy petition,
there is no need to go into the aspect relating to the
merits of the judicial decision. On the other hand, we are
satisfied that even though the Union of India has filed
counter affidavit, there is no explanation for the huge
delay. Accordingly, we hold that the delay in disposal of
the mercy petition is one of the relevant circumstances for
commutation of death sentence. Further, we perused the
notes prepared by the Ministry of Home Affairs as well as
the decision taken by the President. The summary
prepared by the Ministry of Home Affairs for the President
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makes no mention of the unexplained and undue delay of
9 ½ years in considering the mercy petition. The
petitioner has rightly made out a case for commutation of
death sentence into life imprisonment.
Writ Petition (Crl.)No. 193 of 2013
151) Gurmeet Singh, aged about 56 years, hailing from
U.P. has filed this petition. According to him, he is in
custody for 26 years.
152) The allegation against the petitioner is that he
murdered 13 members of his family on 17.08.1986. By
order dated 20.07.1992, the trial Court convicted the
petitioner under Sections 302, 307 read with Section 34
IPC and awarded death sentence.
153) On 28.04.1994, the Division Bench of the Allahabad
High Court pronounced the judgment in the petitioner’s
Criminal Appeal No. 1333 of 1992. The two Hon’ble
Judges disagreed with each other on the question of guilt,
Malviya, J. upheld the petitioner’s conviction and death
sentence and dismissed his appeal, while Prasad, J.
acquitted the petitioner herein and allowed his appeal.
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154) On 29.02.1996, in terms of Section 392 of the Code,
the papers were placed before a third Judge (Singh, J.),
who agreed with Malviya, J. and upheld the petitioner’s
conviction and sentence.
155) On 08.03.1996, the Division Bench dismissed the
appeal of the petitioner herein and confirmed his death
sentence.
156) On 28.09.2005, this Court dismissed the petitioner’s
appeal and upheld the death sentence passed on him.
The petitioner was represented on legal aid.
157) On 06.10.2005, the petitioner sent separate mercy
petitions through jail addressed to the President of India
and the Governor of Uttar Pradesh.
158) On 24.12.2005, the Prison Superintendent sent a
radiogram to Respondent No. 2 reminding about the
pendency of the mercy petition. Thereafter, 10
radiograms/letters were sent till 16.05.2006. These 11
reminders are itself testimony of the unreasonable delay
by the State Government in deciding the petitioner’s
mercy petition.
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159) On 04.04.2006, the Governor rejected the
petitioner’s mercy petition.
160) On 26.05.2006, the fact of the rejection by the
Governor was communicated to Respondent No. 1 and to
the Prison authorities after a delay of more than 1½
months.
161) On 16.06.2006, the President forwarded to
Respondent No. 1 letter dated 02.06.2006 of the
Additional District & Sessions Judge, Shahjahanpur,
addressed to Respondent No. 2 requesting to intimate the
status of the petitioner’s mercy petition pending before
the President.
162) On 07.07.2006, Respondent No. 1 forwarded the
letter of the Additional District and Sessions Judge to
Respondent No. 2 with a request to forward the
petitioner’s mercy petition as the same has not been
received along with the judgment of the courts, police
diary etc.
163) On 09.02.2007, Respondent No. 2 sent the mercy
petition and other related documents to Respondent No.
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1, i.e., 10 months after the mercy petition was rejected by
the Governor. The Mercy Petition Rules, which we have
already extracted in the earlier part, explicitly provide that
the mercy petition and the related documents should be
sent immediately. There is no explanation for the delay of
10 months in sending the papers to Respondent No. 1.
164) On 18.05.2007, Respondent No. 1 advised the
President to reject the petitioner’s mercy petition.
165) On 04.11.2009, the petitioner’s mercy petition file
was received from the President’s office by Respondent
No. 1.
166) Again on 09.12.2009, Respondent No. 1 advised the
President to reject the petitioner’s mercy petition. There
was no progress in the petitioner’s case for the next 2
years and 11 months, i.e., till 29.10.2012.
167) On 29.10.2012, the President returned the
petitioner’s mercy petition to Respondent No. 1, ostensibly
on the pretext of an appeal made by 14 former judges,
even though, as is admitted in the counter affidavit filed
by Respondent No. 1, this appeal does not in any way
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relate to the case of the petitioner.
168) On 16.01.2013, Respondent No. 1 advised the
President to reject the petitioner’s mercy petition.
169) On 01.03.2013, the President of India rejected the
petitioner’s mercy petition.
170) On 05.04.2013, the petitioner heard the news reports
that his mercy petition has been rejected by the President
of India. However, till date the petitioner has not received
any official written communication that his mercy petition
has been rejected either by the Governor or by the
President.
171) On 06.04.2013, this Court stayed the execution of
the death sentence of the petitioner in W.P. (Crl.) No. 56 of
2013 filed by the Peoples’ Union for Democratic Rights
(PUDR).
172) On 20.06.2013, 3 ½ months after the actual rejection
of the petitioner’s mercy petition, the news was
communicated to the prison authorities. The following are
the details regarding the delay in disposal of mercy
petition by the Governor and the President:
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Custody suffered till date
16.10.1986- 17.12.2013 less 1 year of under-trial bail
26 years 2 months
Custody suffered under sentence of death
20.07.1992- 17.12.2013
21 years 5 months
Total delay since filing of mercy petition till prisoner coming to know of rejection by President
6.10.2005- 20.06.2013
7 years 8 months
Delay in disposal of mercy petition by Governor
6.10.2005-4.4.2006 6 months
Delay in disposal of mercy petition by President
4.4.2006-1.3.2013 6 years 11 months
Delay in communicating rejection to petitioner
1.3.2013-20.06.2013 3 ½ years
The above details clearly show that there is a delay of 7
years 8 months in disposal of mercy petition by the
Governor and the President.
173) Though Respondent No. 1 has filed a separate
counter affidavit, there is no acceptable reason for the
delay of 7 years 8 months. In the absence of adequate
materials for such a huge delay, we hold that the delay is
undue and unexplained.
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174) In the file of the Home Ministry placed before us, at
pages 31 & 32, the following recommendations have been
made for commutation of death sentence to life
imprisonment which are as under:
“I think that in this case too, we can recommend commutation of death sentence to life imprisonment for two reasons:
1) There was a disagreement amongst the Hon. Judges of the High Court implying thereby that there was some doubt in the mind of at least one Hon. Judge that this might not be the ‘rarest of the rare cases’.
2) Unusual long delay in investigation and trial is another reason. This kind of submission was also made by the learned amicus curiae but was disregarded by the Court. I think the submission should have been accepted.
Accordingly, I suggest that we may recommend that the death sentence of Sh. Gurmeet Singh be commuted to that of life imprisonment but he would not be allowed to come out of prison till he lives.
Sd/-“
However, this was not agreed to by the Home Minister.
175) In view of the reasons and discussion in the earlier
part of our order, the petitioner-convict is entitled to
commutation of death sentence into life imprisonment.
Even in the summary prepared by the Ministry of Home
Affairs for the President makes no mention of the delay of
7 years 8 months. We are satisfied that the petitioner has
made out a case for commutation of death sentence into
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life imprisonment.
Writ Petition (Crl.) No. 188 of 2013
176) Sonia and Sanjeev Kumar, aged about 30 and 38
years respectively, hailing from Haryana, have filed this
petition. According to them, they are in custody for about
12 years.
177) On 27.05.2004, both of them were convicted for the
offence punishable under Section 302 and sentenced to
death by the trial Court. By order dated 12.04.2005, the
High Court confirmed their conviction but modified their
sentence of death into life imprisonment. The order of the
High Court was challenged before this Court in Criminal
Appeal No. 142 of 2005 and Criminal Appeal No. 894 of
2005 and Criminal Appeal No. 895 of 2006. By order
dated 15.02.2007, this Court upheld their conviction and
enhanced the imprisonment for life to death sentence.
178) In February, 2007, the petitioners filed a mercy
petition before the Governor of Haryana. Similar mercy
petitions were sent to the President.
179) On 23.08.2007, the Review Petitions being Nos. 260-
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262 of 2007 filed by the petitioners were dismissed.
180) On 31.10.2007, Respondent No. 2 informed
Respondent No. 1 that the mercy petitions filed by the
petitioners have been rejected by the Governor of
Haryana and forwarded the relevant documents.
181) On 08.02.2008, Respondent No. 1 advised the
President to reject the petitioner’s mercy petitions. The
mercy petitions remained pending with the President till
16.04.2009.
182) On 16.04.2009, the President sent the petitioners’ file
along with the first petitioner’s letter dated 17.02.2009 to
reject their petitions conveying their difficult position to
continue with their life to Respondent No. 1.
183) On 20.05.2009, Respondent No. 1 advised the
President for the second time to reject the petitioners’
mercy petitions.
184) On 04.02.2010, the President returned the
petitioners’ file to Respondent No. 1 seeking clarification
whether the first petitioner’s request to reject the mercy
petition amounts to withdrawal of original mercy petition
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and if so, is there further need to reject the petition? On
17.02.2010, Respondent No. 1 referred the President’s
query to the Law Department. On 05.03.2010, Respondent
No. 1 advised the President for the 3rd time to reject the
petitioners’ mercy petitions. On 03.01.2012, upon the
request of Respondent No. 1, the President returned the
petitioners’ file to Respondent No. 1. On 18.01.2012,
Respondent No. 1 advised the President for the 4th time to
reject the petitioners’ mercy petitions.
185) On 29.10.2012, the President returned the
petitioners’ file back to Respondent No. 1 in the light of
the appeal made by 14 former judges. It is pointed out by
learned counsel that admittedly the appeal was made for
other prisoners and not for the petitioners and so there
was no need to return the files.
186) On 29.01.2013, since it was found that the judges’
appeal did not pertain to the petitioners, Respondent No. 1
advised the President for the 5th time to reject the
petitioners’ mercy petitions. On 21.02.2013, the
petitioners, anxious for a decision on their mercy petitions,
wrote to the President again reiterating their plea for
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mercy.
187) On 28.03.2013, the President returned the
petitioners’ file to Respondent No. 1, supposedly on
account of the petitioners’ letter dated 21.02.2013. On
06.06.2013, Respondent No. 1 advised the President for
the 6th time to reject the petitioners’ mercy petitions “as
no mitigating circumstance was found”. Finally, on
29.06.2013, the President rejected the petitioners’ mercy
petitions.
188) On 13.07.2013, the petitioners’ family members
received a letter dated 11.07.2013 from the prison
authorities informing that the petitioners’ mercy petitions
have been rejected by the President of India. The
following are the details regarding the delay in disposal of
the mercy petition by the Governor and the President:
Custody suffered till date
26.08.2001/19.09.2001- 17.12.2013
12 years 3 months
Total delay since filing of mercy petition till prisoner coming to know of rejection by President
Feb.2007-13.07.2013 6 years 5 months
Delay in disposal of mercy petition by
Feb. 2007-31.10.2007 8 months
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Governor
Delay in disposal of mercy petition by President
31.10.2007-29.06.2013 5 years 8 months
189) In view of the above details as well as the
explanation offered in the counter affidavit filed by
Respondent No. 1, we hold that the delay in disposal of
mercy petitions is undue and unexplained and in the light
of our conclusion in the earlier part of our order, the
unexplained and undue delay is one of the circumstances
for commutation of death sentence into life imprisonment.
190) In addition, due to unbearable mental agony after
confirmation of death sentence, petitioner No.1 attempted
suicide. In view of our conclusion that the delay in
disposal of mercy petitions is undue and unexplained, we
hold that the petitioners have made out a case for
commutation of death sentence into life imprisonment.
Writ Petition(Crl.)No. 192 of 2013
191) PUDR has filed this petition for Sundar Singh, who is
hailing from Uttarkhand. On 30.06.2004, Sundar Singh
was convicted by the Sessions Court under Sections 302,
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307 and 436 IPC and sentenced to death. On 20.07.2005,
the High Court confirmed the death sentence passed by
the trial Court. On 16.09.2010, this Court dismissed the
appeal filed by Sundar Singh through legal aid.
192) On 29.09.2010, Sundar Singh sent a mercy petition
through jail authorities addressed to the President of India
stating therein that he had committed the offence due to
insanity and that he repented for the same each day and
shall continue to do for the rest of his life.
193) On 29.09.2010, the prison authorities filled in a
nominal roll for Sundar Singh in which they stated that
Sundar Singh’s mental condition is abnormal. The said
form was sent to Respondent Nos. 1 and 2. The prison
authorities noticed that Sundar Singh’s behaviour had
become extremely abnormal. He was initially treated for
mental illness by the prison doctor and, thereafter, he was
examined by doctors from the HMM District Hospital,
Haridwar. Thereafter, when he continued to show signs
of insanity, the prison authorities called a team of
psychiatrists from the State Mental Institute, Dehradun to
examine him. The psychiatrists found him to be suffering
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from schizophrenia and recommended that he be sent to
Benaras Mental Hospital. On 15.10.2010, Sundar Singh
was admitted to Benaras Mental Hospital and he remained
there for 1 ½ years till his discharge on 28.07.2012 with
further prescriptions and advice for follow up treatment.
194) On 19.10.2010, Respondent No. 1 informed
Respondent No. 2 in writing that Sundar Singh’s mercy
petition should be first sent to the Governor.
195) Based on the direction of Respondent No. 1, on
20.10.2010, the prison authorities forwarded the mercy
petition of Sundar Singh to the Governor. On 21.01.2011,
the Governor rejected the mercy petition of Sundar Singh
and Respondent No. 2 forwarded the same to the
President.
196) On 24.05.2011, Respondent No. 1 wrote to
Respondent No. 2 asking for a copy of Sundar Singh’s
nominal roll, medical record and crime record. On
01.06.2011, Respondent No. 2 sent Sundar Singh’s
nominal roll and medical report to Respondent No. 1. In
the covering letter, Respondent No. 2 informed
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Respondent No. 1 that Sundar Singh had been declared to
be a mental patient by medical experts and was admitted
to Varanasi Mental Hospital for treatment on 11.12.2010.
197) On 03.02.2012, Respondent No. 1 advised the
President to reject the mercy petition filed by Sundar
Singh. On 30.10.2012, the President returned the mercy
petition of Sundar Singh ostensibly because of the petition
sent by 14 former judges wherein there was a specific
reference to the case of Sundar Singh.
198) On 28.12.2012, Sundar Singh was examined by a
doctor in prison who noted that he was “suicidally
inclined” and prescribed him very strong anti psychotic
medicines. Despite that, on 01.02.2013, Respondent No. 1
advised the President to reject the mercy petition of
Sundar Singh.
199) On 16.02.2013, the prison authorities again called a
team of three psychiatrists from the State Mental Hospital,
Dehradun, who examined Sundar Singh. In their report,
they mentioned that Sundar Singh had already been
diagnosed as suffering from undifferentiated
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schizophrenia. They noted that he was “unkempt and
untidy, cooperative but not very much communicative”
and his “speech is decreased in flow and content” and “at
times is inappropriate and illogical to the question asked.”
They concluded as follows:
“he is suffering from chronic psychotic illness and he needs long term management”.
The prison authorities sent this report to Respondent No.
1.
200) On 31.03.2013, the President rejected the mercy
petition of Sundar Singh. On 02.04.2013, Respondent No.
1 informed Respondent No. 2 that the President has
rejected the mercy petition of Sundar Singh. On
05.04.2013, Sundar Singh was orally informed by the
prison authorities that his mercy petition had been
rejected by the President but he did not appear to
understand and did not react.
201) On 06.04.2013, this Court stayed the execution of
death sentence of Sundar Singh in W.P.(Crl.) No. 56 of
2013 filed by PUDR.
202) On 31.10.2013, at the instance of the prison
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authorities, Dr. Arun Kumar, Neuro Psychiatrist from the
State Mental Institute, Dehradun was brought to the prison
to examine Sundar Singh. He opined as follows:
“Sundar Singh is suffering from schizophrenia (undifferentiated) and requires long term bed rest. He is not mentally fit to be awarded for death penalty.”
203) We have carefully perused all the details. Though
there is a delay of only 2 ½ years in considering the mercy
petition of Sundar Singh, the counter affidavit as well as
various communications sent by the jail authorities clearly
show that Sundar Singh was suffering from mental illness,
i.e., Schizophrenia.
204) In the earlier part of our order, while considering
“mental illness”, we have noted Rules 386 and 387 of the
U.P. Jail Manual which are applicable to the State of
Uttarakhand also, which clearly show that when
condemned convict develops insanity, it is incumbent on
the part of the Superintendent to stay the execution of
sentence of death and inform the same to the District
Magistrate. In the reply affidavit filed on behalf of
Respondent Nos. 2-4 insofar as mental illness of the
convict – Sundar Singh is concerned, it is stated as under:
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“16. As far as illness of the convict Sunder Singh is concerned, he has been regularly medically examined as per the provisions of the jail manual, he was examined by Medical Officers of HMM District Hospital, Haridwar and thereafter on the recommendation of the Doctors of State Mental Health Institute, Dehradun, the Prisoner was sent to Mental Hospital, Varanasi on 15.10.2010 for examination and treatment.
17. Convict Sunder Singh was admitted in the Mental Hospital, Varansai for treatment and after his treatment, Board of Visitors under Chairpersonship of District Judge, Varansai, convict Sunder Singh was found fit and, therefore, they discharged the convict Sunder Singh along with certain prescription and advice on 28.7.2012 from Mental Hospital, Varanasi…
18. In pursuance of above advice of the Doctors of Mental Hospital, Varansai, on the request of the Jail Administration to State Mental Hospital, Selaqui, Dehradun, a panel of three Doctors visited on 16.2.2013 and examined the Convict Sunder Singh and opined that on the basis of information and present assessment, he is suffering from chronic psychiatric illness and he need long term treatment…
19. Convict has thereafter been regularly provided due medical assistance in the form of medicine and examination. On 31.10.2013, Dr. Arun Kumar, neuro psychiatric from State Mental Health Institute, Selaqui, Dehradun visited to the District Jail for examination of the Convict Sunder Singh and opined: Impression: Sunder Singh is suffering from Schizophrenia (undifferentiated) and require long term bed rest. He is not mentally fit to be awarded for death penalty…
20. On 5.11.2013, on the aforesaid report dated 31.10.2013, Chief Medical Superintendent, State Medical Health Institute Selaqui Dehradun, has been requested to send a panel of Doctors for thorough examination of the mental state of the said Prisoner Sunder Singh. Upon medical examination by a board of Doctors and receipt of the examination report the State and Jail Authorities shall act in accordance with law.
In view of the above submission, this Hon’ble Court may kindly pass appropriate orders disposing of the present petition. The answering respondent is duty bound to comply the orders passed by the Hon’ble Court.”
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Along with the reply affidavit, the State has fairly enclosed
the medical reports, various correspondence/intimation
about the Schizophrenia of lunatic nature/mental illness of
the petitioner suffering from Schizophrenia. Further, even
on 24.05.2011, the Government of India, Ministry of Home
Affairs, after receipt of mercy petition of the condemned
prisoner – Sundar Singh requested the Principal Secretary,
Government of Uttarakhand, Secretariat, Dehradun to
furnish the following documents/information at the
earliest:
(i) Present age of the prisoner along with nominal roll.
(ii) Medical report of the prisoner
(iii) Previous crime record, if any, of the prisoner.
205) Pursuant to the same, Shri Rajeev Gupta,
Principal Secretary, Government of Uttarakhand furnished
all the details to the Joint Secretary (Judicial), Ministry of
Home Affairs, Government of India, Jaisalmer House, New
Delhi enclosing various medical reports. Learned counsel
for the State has also placed mental status of Sundar
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Singh duly certified by the State Mental Health Institute,
Dehradun which is as under:
“MENTAL STATUS EXAMINATION REPORT
Prisoner Name: Mr. Sunder Singh, age about 40 yrs/male, S/o Mr. Har Singh with mark of identification – Black mole over left side lower part of neck, has been assessed by following experts on 16/2/2013 at District Jail, Haridwar.
Dr. J.S. Bisht, Psychiatrist
Dr. Arun Kumar, Psychiatrist
Dr. Pratibha Sharma, Psychiatrist
As per information by jail staff and fellow prisoners above mentioned prisoner is not interacting with others, not concerned about personal hygiene and would like to stay alone.
Previous record show that he was referred to Banaras Mental Hospital on 11/12/2010 for Management after being diagnosed as Undifferentiated Schizophrenia by previous psychiatrist.
Current mental status examination shows that he is unkempt and untidy, cooperative but not very much communicative. Speech is decreased in flow and content. At time it was inappropriate and illogical to the question asked. Affect is blunted. Thought flow is decreased and there is poor awareness…
OPINION
On the basis of information and present assessments he is suffering from chronic Psychotic illness and he needs long term treatment.
(Signature of Dr. illegible) (Signature of Dr. illegible)
(Signature of Dr. illegible)
Date 16/2/2013 Dr. J.S. Bisht Dr. Arun Kumar Dr. B. Pratibha Sharma Psychiatrist
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Thumb Date 16/2/13 Distt. Jail Haridwar”
MENTAL STATUS EXAMINATION REPORT
Prisoner Name: Mr. Sunder Singh, age about 41 years/male, S/o Mr. Har Singh
Identification Mark: Black mole over left side lower part of neck.
Index prisoner is examined by me at District Jail, Haridwar.
As per information by jail staff, prisoner records and current mental status examination, the sufferings from undifferentiated Schizophrenia which is chronic illness. The patient/prisoner require long term treatment to remain in remission period. Person with mentioned diagnose remain in remission and cannot be said as cured.
Impression: Sunder Singh is suffering from Schizophrenia (Undifferentiated) and required long term treatment.
He is not mentally fit to be awarded for death penalty.
(Signature of Dr. Arun Kumar) Date 31/10/13
Dr. Arun Kumar (MBBS, DPM, DNB) Neuropsychiatries
State Mental Health Institute Salequi Dehradun
Thumb Attested LTI of Sunder Singh
(Signature of Dr. Arun Kumar) Date 31/10/13 Dr. Arun Kumar (MBBS, DPM, DNB) Neuropsychiatries State Mental Health Institute Salequi Dehradun”
206) Even if we agree that there is no undue delay in
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disposal of the mercy petition by the President, we are
satisfied that Sundar Singh is suffering from mental
illness, i.e., Schizophrenia as noted by 3 doctors, viz., Dr.
J.S. Bisht, Dr. Arun Kumar, and Dr. Pratibha Sharma,
Psychiatrists attached to the State Mental Health Institute,
Salequi, Dehradun.
207) In the earlier part of our discussion, we have
highlighted various Rules from the U.P. Jail Manual which
are applicable to the State of Uttarakhand also, various
international conventions to which India is a party and the
decisions by the U.N.O. regarding award of death sentence
and execution of persons suffering from mental illness.
Though all the details were furnished by the persons
concerned to Respondent No. 1, Ministry of Home Affairs,
unfortunately, those aspects were neither adverted to by
the Home Minister nor the summary prepared by the
Ministry of Home Affairs for the President makes any
reference to the mental condition as certified by the
competent doctors.
208) We are satisfied that in view of the mental
illness, he cannot be executed. On this ground, the death
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sentence has to be commuted to life imprisonment. If the
condition of Sundar Sigh requires further treatment, we
direct the jail authorities to provide all such medical
facilities to him.
Writ Petition (Crl.)No. 190 of 2013
209) The death convict Jafar Ali, aged about 48 years,
hailing from U.P., has filed the above writ petition.
According to him, he is in custody for more than 11 years
(single cell confinement).
210) On 14.07.2003, the petitioner was convicted under
Section 302 IPC for the murder of his wife and five
daughters and was sentenced to death. On 27.01.2004,
the Division Bench of the Allahabad High Court confirmed
the death sentence passed on the petitioner. On
05.04.2004, the petitioner through legal aid filed SLP (Crl.)
No. 1129 of 2004. This Court did not grant special leave
and dismissed the SLP in limine.
211) On 19.04.2004, the petitioner sent a mercy petition
through jail superintendent to the President of India and
the Governor of Uttar Pradesh. On 22.04.2004,
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Respondent No. 4 sent a radiogram to Respondent No. 2
to enquire about the status of the petitioner’s mercy
petition. Thereafter, between 24.04.2004 and 16.05.2005,
14 more such radiograms/letters were sent by Respondent
No. 4 to Respondent No. 2 enquiring about the status of
the petitioner’s mercy petition. These 15 reminders
testify to the unreasonable delay caused by the State
Government in deciding the petitioner’s mercy petition.
212) On 20.05.2005, one year after the receipt of the
mercy petition, Respondent No. 2 wrote to the District
Magistrate and the Government Advocate, Allahabad High
Court for the trial court as well as the High Court
judgments relating to the petitioner’s case. Here again,
there is no explanation for the delay of 11 months.
213) On 30.09.2005, the Government Advocate, Allahabad
High Court sent the High Court judgment in the
petitioner’s case to Respondent No. 2. Here again, there
is no explanation for the delay of four months in sending
the judgment.
214) On 28.11.2005, the Governor rejected petitioner’s
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mercy petition. It took one year and seven months in
rejecting the petitioner’s mercy petition in spite of 15
reminders. On 30.12.2005, the Special Secretary, UP
Government informed the Home Ministry, Government of
India about the rejection of mercy petition by the
Governor.
215) On 22.12.2005, information about the rejection of the
mercy petition by the Governor was communicated to the
prison authorities one month after its rejection. On
18.01.2006, Respondent No. 1 requested Respondent No.
2 to furnish the petitioner’s mercy petition along with the
recommendation of the Governor, judgments of the courts
and other records of the case.
216) On 17.07.2006, Respondent No. 2 sent the
documents to Respondent No. 1 which were requested
vide letter dated 18.01.2006 along with a request for an
early intimation of the decision on the mercy petition.
Here again, there is no explanation for the delay of seven
months in sending those documents.
217) As pointed out earlier, Rule V of the Mercy Petition
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Rules explicitly provides that the mercy petition should be
sent along with the judgments and related documents
immediately. There is no explanation for this inordinate
delay of seven months in sending the papers to
Respondent No. 1.
218) On 17.08.2006, Respondent No. 1 advised the
President to reject the mercy petition. On 16.01.2007,
Respondent No. 2 sent another reminder to Respondent
No. 1 regarding the pendency of the petitioner’s mercy
petition. Thereafter, further 15 reminders were sent on
various dates i.e., on 06.09.2007, 10.07.2008, 19.02.2009,
17.03.2009, 29.05.2009, 27.07.2009, 10.09.2009,
29.09.2009, 10.11.2009, 14.01.2010, 20.04.2010,
26.07.2010, 30.08.2010, 15.07.2011 and 22.11.2011.
These 16 reminders testify the unreasonable delay caused
in deciding the petitioner’s mercy petition.
219) On 30.09.2011, Respondent No. 1 recalled the files
from the President. There is no explanation for this
inordinate delay of 5 years and 1 month. On 01.11.2011,
Respondent No. 1 advised the President to reject the
mercy petition.
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220) On 30.10.2012, the President returned the mercy
petition to Respondent No. 1 ostensibly on the ground of a
petition sent by 14 retired judges to the President. There
was no reference of the plea of Jafar Ali in the
representation made by 14 retired judges. On
24.01.2013, Respondent No. 1 advised the President to
reject the mercy petition. On 14.03.2013, the President
rejected the mercy petition, viz., 7 years and 4 months
after rejection by the Governor and after 16 reminders
sent by the State Government.
221) On 19.03.2013, Respondent No. 1 informed
Respondent No. 2 of the rejection of the mercy petition.
On 05.04.2013, the petitioner heard the news reports that
his mercy petition has been rejected by the President of
India.
222) On 06.04.2013, this Court stayed the execution of
the petitioner in Writ Petition (Crl.) No. 56 of 2013 filed by
PUDR.
223) On 22.06.2013, the prison authorities were informed
vide letter dated 18.06.2013 that the President rejected
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the petitioner’s mercy petition. There is no explanation
for this delay of three months in informing the prison
authorities and the petitioner about the rejection of the
mercy petition.
224) On 08.07.2013, Respondent No. 4 informed the
petitioner that his mercy petition had been rejected by the
President.
225) The details regarding delay in disposal of mercy
petitions by the Governor and the President are as follows:
Custody suffered till date 27.07.2002 – 17.12.2013
11 years, 5 months
Custody suffered under sentence of death
14.07.2003 – 17.12.2013
10 years, 5 months
Total delay in disposal of mercy petition
19.04.2004 – 22.06.2013
9 years, 2 months
Delay in disposal of mercy petition by Governor
19.04.2004 – 29.09.2005
1 year, 5 months
Delay in disposal of mercy petition by the President
29.09.2005 – 14.03.2013
7 years, 5 months
Delay in intimating prisoner of rejection of mercy petition by President
14.03.2013 – 22.06.2013
3 months
226) A perusal of the details furnished by the petitioner,
counter affidavit filed by the Union of India as well as the
State clearly shows that the delay was to the extent of 9
years. Though in the counter affidavit Respondent No. 1
has discussed various aspects including the decision taken
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by the Home Ministry and the note which was prepared for
the approval of the President, the fact remains that there
is no explanation at all for taking seven years and five
months for disposal of a mercy petition by the President.
It is for the executive, viz., the Home Ministry, to explain
the reason for keeping the mercy petition for such a long
time. To that extent, everyday, after the confirmation of
death sentence by this Court is painful for the convict
awaiting the date of execution.
227) Accordingly, in view of the unexplained and undue
delay of nine years in disposal of mercy petition by the
Governor and the President, we hold that the petitioner is
entitled to commutation of death sentence to life.
228) Apart from undue and unexplained delay in disposal
of mercy petition, another relevant aspect has not been
noted by the Ministry while preparing the notes for the
President, viz., when the petitioner preferred special leave
to appeal against the decision of the High Court
confirming the death sentence, this Court did not grant
special leave and dismissed the SLP in limine. Though
such recourse is permissible inasmuch as since it is a case
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of death sentence, it is desirable to examine the materials
on record first hand in view of time-honoured practice of
this Court and to arrive at an independent conclusion on
all issues of facts and law, unbound by the findings of the
trial court and the High Court. This principle has been
highlighted in various decisions including the recent one in
Mohd. Ajmal Kasab vs. State of Maharashtra (2012) 9
SCC 1.
229) In addition, we also perused the notes prepared by
the Ministry of Home Affairs, the decision taken by the
Home Ministry and the notes placed for the approval of
the President. It is not in dispute that the summary
prepared by the Ministry of Home Affairs for the President
failed to consider the undue delay and there is no
explanation for the same at all.
230) We are satisfied that all these grounds enable this
court to commute death sentence into life.
Writ Petition (Crl.) Nos. 191 and 136 of 2013
231) Writ Petition (Crl.) No. 191 of 2013 has been
filed by Maganlal Barela, death convict, aged about 40
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years, hailing from the State of M.P. and on his behalf,
PUDR has filed Writ Petition (Crl.) No. 136 of 2013 for
similar relief.
232) The petitioner claims that he is in custody for more
than three years (single cell confinement). On 03.02.2011,
the petitioner, who is a tribal, was convicted by the
Sessions Court under Section 302 IPC for the murder of his
five daughters and under Section 309 IPC and was
imposed a sentence of death. On 12.09.2011, the Division
Bench of the Madhya Pradesh High Court confirmed the
death sentence passed on the petitioner who was
represented on legal aid. On 09.01.2012, the petitioner,
through legal aid, filed SLP (Crl.) Nos. 329-330 of 2012.
This Court did not grant special leave and dismissed the
SLP in limine.
233) On 02.02.2012, the petitioner sent a mercy petition
through jail addressed to the President of India and the
Governor of Madhya Pradesh. The mercy petition, which
was verified by the prison authorities, stated inter alia that
the petitioner was suffering from mental illness and was
continuously undergoing treatment through Central Jail,
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Bhopal.
234) On 20.02.2012, the Prison Superintendent, in
accordance with Rule 377 of the Madhya Pradesh Prison
Manual, submitted a form to the State Government. In
column 18, it was stated that his conduct in prison was
good. Against column 19, which was for the Prison
Superintendent to opine on alteration of the petitioner’s
sentence, the Superintendent opined as follows:
“Commutation of sentence is recommended”.
235) On 20.02.2012, the Prison Superintendent, in
accordance with the Government Law and Judiciary
Department Circular No. 4837/21 dated 13.12.1982
submitted to the State Government a form entitled
“Required Information”. The entries made by the
Superintendent in the said form stated inter alia that the
petitioner is not a habitual criminal, he belongs to the
weaker section of the society and he is of mental disorder
and at present under treatment of Psychiatry Department
Hamidia Hospital, Bhopal. Against Column No. 11 which
seeks the Superintendent’s recommendations, it was
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stated that, “Commutation of Sentence is recommended”.
236) On 07.08.2012, Respondent No. 1 received the
petitioner’s mercy petition forwarded by Respondent No.
2. There was a delay of six months in forwarding the
mercy petition to Respondent No. 1 and no explanation
was given by Respondent No. 2 in the counter affidavit.
237) On 31.08.2012, Respondent No. 1 wrote to
Respondent No. 2 requesting the petitioner’s medical
report since in the mercy petition, it was stated that the
petitioner is suffering from mental illness. Respondent No.
1 also requested Respondent No. 2 to confirm whether the
petitioner had filed a review petition in this Court against
the dismissal of his SLP.
238) On 19.10.2012, Respondent No. 1 sent a reminder to
Respondent No. 2 about the queries vide letter dated
31.08.2012. On 29.11.2012, Respondent No. 1 sent the
second reminder to Respondent No. 2 about the queries.
On 26.02.2013, Respondent No. 1 sent a third reminder to
Respondent No. 2 about the same.
239) On 25.03.2013, the Jail Superintendent, Central Jail,
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Indore forwarded the medical report to Respondent No. 1
and it was also informed that the petitioner has not filed a
review petition in this Court against the dismissal of his
SLP.
240) On 06.06.2013, the Home Minister advised the
President to reject the mercy petition. On 16.07.2013, the
President rejected the petitioner’s mercy petition. There
was no reference to the petitioner’s mental health report
in the note prepared for approval of the President.
Likewise, there was no reference to the fact that this Court
had rejected the petitioner’s SLP in limine in a death case.
241) On 27.07.2013, the petitioner was orally informed by
the prison authorities that his mercy petition has been
rejected by the President of India. The petitioner was
neither furnished with any official written communication
regarding the rejection of his mercy petition by the
President of India nor the petitioner was informed that his
mercy petition has been rejected by the Governor.
242) On 27.07.2013, the Superintendent of the Central
Prison, Jabalpur sent a letter to the Icchawar Police Station
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asking them to inform the petitioner’s family to meet the
petitioner urgently.
243) On 07.08.2013, this Court stayed the execution of
the petitioner in Writ Petition (Crl.) No. 136 of 2013 filed
by PUDR. The details regarding delay in disposal of mercy
petition are as follows:
Delay by State to send mercy petition to MHA
2.02.2012 – 07.08.2012
6 months
Total delay since mercy petition was filed
2.02.2012 – 27.07.2013
1 year 6 months
Delay by State to send medical report to MHA
31.08.2012 – 25.03.2012
7 months
Delay by President 7.08.2012 – 27.07.2013
1 year
Insofar as the delay is concerned, it cannot be
claimed that the same is excessive though there is a delay
of one year in disposal of mercy petition by the President.
However, during the period of trial before the Sessions
court and even after conviction, the petitioner was
suffering from mental illness. This is clear from the note
made by the Prison Superintendent who opined for
alteration of petitioner’s sentence from death to life. This
important aspect was not noted by the Home Ministry.
244) Another relevant event which was not noticed by the
Home Ministry while considering the notes for approval of
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the President was that the petitioner filed SLP through
legal aid and this Court did not grant special leave and
dismissed the SLP in limine. As highlighted in the previous
case, we reiterate that in case of death sentence, it is
desirable to examine all the materials on record first hand
in accordance with the time-bound practice of this Court
and arrive at an independent conclusion on all the issues
of fact and law irrespective of the findings of the trial court
and the High Court. Such recourse was not adopted in
this case. This was not highlighted in the notes prepared
for the approval of the President. As stated earlier, the
summary prepared by the Ministry of Home Affairs for the
President fails to consider the mental illness as well as the
opinion offered by the Prison Superintendent in terms of
the M.P. Prison Manual as a ground for commutation of
sentence. For all these reasons, more particularly, with
regard to his mental illness, we feel that ends of justice
would be met by commuting the sentence of death into
life imprisonment.
Writ Petition (Crl.) Nos. 139 and 141 of 2013
245) Shivu – death convict, aged about 31 years,
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hailing from Karnataka, has filed Writ Petition (Crl.) No.
139 of 2013. Jadeswamy, aged about 25 years, also
hailing from Karnataka, has filed Writ Petition (Crl.) No.
141 of 2013. Both are challenging the rejection of their
mercy petitions on various grounds. According to them,
they are in custody for 11 years and 10 months.
246) Both the petitioners were convicted for an offence
under Sections 302, 376 read with Section 34 IPC and
were sentenced to death. On 07.11.2005, the Karnataka
High Court confirmed the petitioners’ death sentence. On
13.02.2007, this Court dismissed their appeal and upheld
the death sentence awarded to them.
247) On 27.02.2007, both the petitioners filed separate
mercy petitions addressed to the Governor of Karnataka
and the President of India through the Prison
Superintendent.
248) On 21.03.2007, Respondent No. 1 wrote to
Respondent No. 2 requesting to consider petitioners’
mercy petitions under Article 161 of the Constitution and,
in the event of rejection, to send the mercy petition along
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with the recommendations, copies of the judgments,
copies of the records of the case, etc. to Respondent No. 1
for consideration under Article 72 of the Constitution.
249) On 05.04.2007 and 09.05.2007, review petitions filed
by the petitioners were dismissed.
250) On 10.08.2007, Respondent No. 2 informed
Respondent No. 1 that the Governor has rejected the
mercy petitions and forwarded the copy of the trial court
judgment, the Supreme Court judgment and mercy
petitions.
251) On 09.10.2007, Respondent No. 1 wrote to
Respondent No. 2 requesting him to provide the judgment
of the High Court, the police diary, the court proceedings
and the English translation of the trial court judgment.
Respondent No. 2 sent some of these documents on
26.07.2012, i.e., after 4 years and 9 ½ months and the
rest of the documents were sent on 03.12.2012, i.e., after
5 years and 2 months. There was also no explanation as
to why Respondent No. 1 did not take steps to expedite
the matter for such a long period.
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252) On 03.04.2013, Respondent No. 1 advised the
President to reject the mercy petitions. There was a delay
of 5 years and 8 months after the Governor rejected the
mercy petitions.
253) On 27.05.2013, the President returned the file along
with the mercy petitions sent by Shivu’s mother and the
members of the Badrayyanhalli Gram Panchayat.
254) On 24.06.2013, Respondent No. 1 advised the
President to reject the mercy petitions. On 27.07.2013,
the President rejected the petitioners’ mercy petitions.
255) On 13.08.2013, the petitioners were informed by the
prison authorities that their mercy petitions have been
rejected by the President. On 16.08.2013, the local police
visited the petitioners’ family members and informed that
they would be executed at 6 a.m. on 22.08.2013 at
Belgaum Central Prison. The said procedure was contrary
to the Prison Manual. As per the present Rules, the
execution can only be scheduled after 14 days of
informing the prisoner of rejection of mercy petition and in
this case the same was not being followed. The following
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are the details regarding delay in disposal of mercy
petitions by the Governor and the President:
Total custody period till date 15.10.2001 – 17.12.2013
12 years 2 months
Period under sentence of death 29.07.2005 – 17.12.2013
8 years 5 months
Total delay in deciding mercy petitions
27.02.2007 – 13.08.2013
6 ½ years
Delay by the Governor 27.02.2007 – 10.08.2007
6 months
Delay by the President 10.08.2007 – 13.08.2013
6 years
256) It is true that there is some explanation in the
affidavit filed on behalf of the State in respect of the time
taken by the Governor for rejection of their mercy
petitions, however, there is no acceptable/adequate
reason for delay of six years at the hands of the Ministry of
Home Affairs followed by the rejection order by the
President.
257) Though learned counsel has referred to the fact that
the trial court and the High Court followed certain
decisions which were later held as per incuriam, in view of
the fact that there is undue delay of six years which is one
of the circumstances for commutation of sentence from
death to life, we are not adverting to all other aspects.
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258) We also perused the records of the Ministry of Home
Affairs produced by learned ASG and the summary
prepared for approval of the President. There is no
specific explanation in the summary prepared by the
Ministry of Home Affairs for the President for the delay of
six years. In view of the same and in the light of the
principles enunciated in various decisions which we have
adverted to in the earlier part of our judgment, we hold
that the petitioners have made out a case for
commutation of sentence.
Guidelines:
259) In W.P (Crl) No 56 of 2013, Peoples’ Union for
Democratic Rights have pleaded for guidelines for
effective governing of the procedure of filing mercy
petitions and for the cause of the death convicts. It is well
settled law that executive action and the legal procedure
adopted to deprive a person of his life or liberty must be
fair, just and reasonable and the protection of Article 21 of
the Constitution of India inheres in every person, even
death-row prisoners, till the very last breath of their lives.
We have already seen the provisions of various State
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Prison Manuals and the actual procedure to be followed in
dealing with mercy petitions and execution of convicts. In
view of the disparities in implementing the already
existing laws, we intend to frame the following guidelines
for safeguarding the interest of the death row convicts.
1. Solitary Confinement: This Court, in Sunil Batra
(supra), held that solitary or single cell confinement
prior to rejection of the mercy petition by the
President is unconstitutional. Almost all the prison
Manuals of the States provide necessary rules
governing the confinement of death convicts. The
rules should not be interpreted to run counter to the
above ruling and violate Article 21 of the
Constitution.
2. Legal Aid: There is no provision in any of the Prison
Manuals for providing legal aid, for preparing appeals
or mercy petitions or for accessing judicial remedies
after the mercy petition has been rejected. Various
judgments of this Court have held that legal aid is a
fundamental right under Article 21. Since this Court
has also held that Article 21 rights inhere in a convict
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till his last breath, even after rejection of the mercy
petition by the President, the convict can approach a
writ court for commutation of the death sentence on
the ground of supervening events, if available, and
challenge the rejection of the mercy petition and
legal aid should be provided to the convict at all
stages. Accordingly, Superintendent of Jails are
directed to intimate the rejection of mercy petitions
to the nearest Legal Aid Centre apart from intimating
the convicts.
3. Procedure in placing the mercy petition before
the President: The Government of India has framed
certain guidelines for disposal of mercy petitions filed
by the death convicts after disposal of their appeal
by the Supreme Court. As and when any such
petition is received or communicated by the State
Government after the rejection by the Governor,
necessary materials such as police records, judgment
of the trial court, the High Court and the Supreme
Court and all other connected documents should be
called at once fixing a time limit for the authorities
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for forwarding the same to the Ministry of Home
Affairs. Even here, though there are instructions, we
have come across that in certain cases the
Department calls for those records in piece-meal or
one by one and in the same way, the forwarding
Departments are also not adhering to the
procedure/instructions by sending all the required
materials at one stroke. This should be strictly
followed to minimize the delay. After getting all the
details, it is for the Ministry of Home Affairs to send
the recommendation/their views to the President
within a reasonable and rational time. Even after
sending the necessary particulars, if there is no
response from the office of the President, it is the
responsibility of the Ministry of Home Affairs to send
periodical reminders and to provide required
materials for early decision.
4. Communication of Rejection of Mercy Petition
by the Governor: No prison manual has any
provision for informing the prisoner or his family of
the rejection of the mercy petition by the Governor.
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Since the convict has a constitutional right under
Article 161 to make a mercy petition to the Governor,
he is entitled to be informed in writing of the decision
on that mercy petition. The rejection of the mercy
petition by the Governor should forthwith be
communicated to the convict and his family in writing
or through some other mode of communication
available.
5. Communication of Rejection of the Mercy
Petition by the President: Many, but not all, prison
manuals have provision for informing the convict and
his family members of the rejection of mercy petition
by the President. All States should inform the
prisoner and their family members of the rejection of
the mercy petition by the President. Furthermore,
even where prison manuals provide for informing the
prisoner of the rejection of the mercy petition, we
have seen that this information is always
communicated orally, and never in writing. Since the
convict has a constitutional right under Article 72 to
make a mercy petition to the President, he is entitled
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to be informed in writing of the decision on that
mercy petition. The rejection of the mercy petition
by the President should forthwith be communicated
to the convict and his family in writing.
6. Death convicts are entitled as a right to receive
a copy of the rejection of the mercy petition by
the President and the Governor.
7. Minimum 14 days notice for execution: Some
prison manuals do not provide for any minimum
period between the rejection of the mercy petition
being communicated to the prisoner and his family
and the scheduled date of execution. Some prison
manuals have a minimum period of 1 day, others
have a minimum period of 14 days. It is necessary
that a minimum period of 14 days be stipulated
between the receipt of communication of the
rejection of the mercy petition and the scheduled
date of execution for the following reasons:-
(a) It allows the prisoner to prepare himself mentally
for execution, to make his peace with god, prepare
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his will and settle other earthly affairs.
(b) It allows the prisoner to have a last and final
meeting with his family members. It also allows
the prisoners’ family members to make
arrangements to travel to the prison which may be
located at a distant place and meet the prisoner
for the last time. Without sufficient notice of the
scheduled date of execution, the prisoners’ right to
avail of judicial remedies will be thwarted and they
will be prevented from having a last and final
meeting with their families.
It is the obligation of the Superintendent of Jail to
see that the family members of the convict receive
the message of communication of rejection of mercy
petition in time.
8. Mental Health Evaluation: We have seen that in
some cases, death-row prisoners lost their mental
balance on account of prolonged anxiety and
suffering experienced on death row. There should,
therefore, be regular mental health evaluation of all
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death row convicts and appropriate medical care
should be given to those in need.
9. Physical and Mental Health Reports: All prison
manuals give the Prison Superintendent the
discretion to stop an execution on account of the
convict’s physical or mental ill health. It is, therefore,
necessary that after the mercy petition is rejected
and the execution warrant is issued, the Prison
Superintendent should satisfy himself on the basis of
medical reports by Government doctors and
psychiatrists that the prisoner is in a fit physical and
mental condition to be executed. If the
Superintendent is of the opinion that the prisoner is
not fit, he should forthwith stop the execution, and
produce the prisoner before a Medical Board for a
comprehensive evaluation and shall forward the
report of the same to the State Government for
further action.
10. Furnishing documents to the convict: Most
of the death row prisoners are extremely poor and do
not have copies of their court papers, judgments, etc.
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These documents are must for preparation of
appeals, mercy petitions and accessing post-mercy
judicial remedies which are available to the prisoner
under Article 21 of the Constitution. Since the
availability of these documents is a necessary pre-
requisite to the accessing of these rights, it is
necessary that copies of relevant documents should
be furnished to the prisoner within a week by the
prison authorities to assist in making mercy petition
and petitioning the courts.
11. Final Meeting between Prisoner and his
Family: While some prison manuals provide for a
final meeting between a condemned prisoner and his
family immediately prior to execution, many manuals
do not. Such a procedure is intrinsic to humanity and
justice, and should be followed by all prison
authorities. It is therefore, necessary for prison
authorities to facilitate and allow a final meeting
between the prisoner and his family and friends prior
to his execution.
12. Post Mortem Reports: Although, none of the
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Jail Manuals provide for compulsory post mortem to
be conducted on death convicts after the execution,
we think in the light of the repeated arguments by
the petitioners herein asserting that there is dearth
of experienced hangman in the country, the same
must be made obligatory.
In Deena alias Deen Dayal and Ors. vs. Union of
India (1983) 4 SCC 645, the petitioners therein
challenged the constitutional validity of Section
354(5) on the ground that hanging a convict by rope
is a cruel and barbarous method of executing death
sentence, which is violative of Article 21 of the
Constitution. This court held as follows:-
“7. …After making this observation Bhagwati, J., proceeds thus :
The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman. In India, the method of execution followed is hanging by the rope. Electrocution or application of lethal gas has not yet taken its place as in some of the western countries. It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony. It is no doubt true that the Royal Commission on Capital Punishment 1949-53 found that hanging
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is the most humane method of execution and so also in Ichikawa v. Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment inhibited by Article 36 of the Japanese Constitution. But whether amongst all the methods of execution, hanging is the most humane or in view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly unaccompanied by intense physical torture and pain." (emphasis supplied).
81. Having given our most anxious consideration to the central point of inquiry, we have come to the conclusion that, on the basis of the material to which we have referred extensively, the State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material before us shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner's apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. The system of hanging, as now used, avoids to the full extent "the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop. The system is consistent,with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind.”
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It is obvious from a reading of the aforesaid decision that
the method of hanging prescribed by Section 354(5) of the
Code was held not violative of the guaranteed right under
Article 21 of the Constitution on the basis of scientific
evidence and opinions of eminent medical persons which
assured that hanging is the least painful way of ending the
life. However, it is the contention of learned counsel for
the respondents that owing to dearth of experienced
hangman, the accused are being hanged in violation of
the due procedure.
260) By making the performance of post mortem
obligatory, the cause of the death of the convict can be
found out, which will reveal whether the person died as a
result of the dislocation of the cervical vertebrate or by
strangulation which results on account of too long a drop.
Our Constitution permits the execution of death sentence
only through procedure established by law and this
procedure must be just, fair and reasonable. In our
considered view, making post mortem obligatory will
ensure just, fair and reasonable procedure of execution of
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death sentence.
Conclusion:
261) In the aforesaid batch of cases, we are called upon to
decide on an evolving jurisprudence, which India has to its
credit for being at the forefront of the global legal arena.
Mercy jurisprudence is a part of evolving standard of
decency, which is the hallmark of the society.
262) Certainly, a series of Constitution Benches of this
Court have upheld the Constitutional validity of the death
sentence in India over the span of decades but these
judgments in no way take away the duty to follow the due
procedure established by law in the execution of
sentence. Like the death sentence is passed lawfully, the
execution of the sentence must also be in consonance
with the Constitutional mandate and not in violation of the
constitutional principles.
263) It is well established that exercising of power under
Article 72/161 by the President or the Governor is a
constitutional obligation and not a mere prerogative.
Considering the high status of office, the Constitutional
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framers did not stipulate any outer time limit for disposing
the mercy petitions under the said Articles, which means it
should be decided within reasonable time. However, when
the delay caused in disposing the mercy petitions is seen
to be unreasonable, unexplained and exorbitant, it is the
duty of this Court to step in and consider this aspect. Right
to seek for mercy under Article 72/161 of the Constitution
is a constitutional right and not at the discretion or whims
of the executive. Every Constitutional duty must be
fulfilled with due care and diligence; otherwise judicial
interference is the command of the Constitution for
upholding its values.
264) Remember, retribution has no Constitutional value in
our largest democratic country. In India, even an accused
has a de facto protection under the Constitution and it is
the Court’s duty to shield and protect the same.
Therefore, we make it clear that when the judiciary
interferes in such matters, it does not really interfere with
the power exercised under Article 72/161 but only to
uphold the de facto protection provided by the
Constitution to every convict including death convicts.
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265) In the light of the above discussion and observations,
we dispose of the writ petitions. In the cases of Suresh,
Ramji, Bilavendran, Simon, Gnanprakasam, Madiah,
Praveen Kumar, Gurmeet Singh, Sonia, Sanjeev, Sundar
Singh, Jafar Ali, Magan Lal Berala, Shivu and Jadeswamy,
we commute the death sentence into imprisonment for
life. All the writ petitions are, accordingly, allowed on the
above terms.
……….…………………………CJI. (P. SATHASIVAM)
……….……………………………J.
(RANJAN GOGOI)
..….….……………………………J. (SHIVA KIRTI SINGH)
NEW DELHI; JANUARY 21, 2014.
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